Bach Commission calls for ‘legally enforceable’ right to justice and for eligibility to legal aid to cover half of all households

The Bach Commission has called for ‘a new legally enforceable right to justice’ and a widening in scope for the legal scheme to ‘fix the crisis in the justice system’ in its final report published today. Jon Robins reports. This article first appeared on LegalVoice.

The independent group, set up by the Labour party and backed  by the Fabian Society, has heard from more than 100 individuals and groups since it launched two years ago.

In its final report, the group headed by Labour peer Sir Willy Bach calls on the government and other political parties to support the idea of ‘minimum standards on access to justice’ set out in a new Right to Justice Act.  Its members include solicitor Raju Bhatt; the director of the Law Centres Network, Julie Bishop; director of the Legal Aid Practitioner’s Group; LV co-founder David Gilmore; and the former court of appeal judge Sir Henry Brooke.

The body proposes a Right to Justice Act to codify existing rights to justice and to create ‘a new right for individuals to receive reasonable legal assistance without costs they cannot afford’. It proposes that right is bolstered by a set of principles to ‘guide interpretation of this new right’ and backed by a Justice Commission to ‘monitor and enforce this new right’.

It makes the case for widening the scope of legal aid for to include all matters concerning children, reinstating legal aid for areas of family law and immigration law. It proposes public funding for bereaved families in inquests and scrapping rules which limiting remuneration for judicial review cases.

The commission  proposes radical reform of the regulatory regime around legal aid. The entire justice system was ‘riddled with operational problems’. ‘Excessive administrative costs in the Legal Aid Agency burden the public finances at a time when the rest of the justice sector is facing crippling cuts and seemingly permanent austerity,’ the report says. It calls for the LAA to be scrapped and replaced by ‘an independent body that operates the legal aid system at arm’s length from government’.

The Fabian Society has costed the proposals at ‘around £400m’ a year. The commission argues that in the long term eligibility for legal aid would probably need to be extended ‘to give practical effect to the right to justice, so that it ultimately covers perhaps half of households as was the case in the 1990s’. The proportion of the population has eligible for legal aid has collapsed from 80% in 1980 to 29% in 2007. The Haldane Society of Socialist Lawyers told the commission that the the figure could be as low as 20%.

‘Justice expenditure will remain a tiny share of overall public spending, and the commission believes some extra spending is a worthy investment to realise a vision of a public legal service for civil and criminal law that is available to a wide range of people,’ the report says.

‘No person should be denied justice simply because they cannot afford it,’ Bach said. ‘We need a new Act which defends and extends the right to justice, and we need a new body tasked with implementing it. The government must take urgent action to address the crisis in our justice system. This means broadening the scope of legal aid, reforming eligibility requirements and taking action to improve the public’s understanding of the law.’

Andrew Harrop, Fabian Society general secretary, said that the report set out ‘a radical new approach to fix the crisis in the justice system’. ‘Commission has heard deeply concerning evidence about the crisis in our justice system. Its proposals should be considered seriously by all politicians and policy makers.’

‘Tens of thousands of people have been priced out of defending their rights in recent years as a result of swingeing Conservative government cuts in the justice sector, that have hit the most vulnerable hardest,’ commented the shdow justice minister Richard Burgon MP. ‘Lord Bach and his commission of respected legal experts are to be commended for their in-depth report. There is much to be welcomed in this pioneering report. I am particularly excited by the idea of a new legally enforceable Right to Justice, that would guarantee access just as we have for healthcare and education.’

Labour would produce ‘detailed plans on how we will take forward Lord Bach’s recommendations in government, as part of our efforts to repair a justice system that is in crisis,’ Burgon said. ‘The Conservative government should now stop dragging its feet and get on with publishing its own delayed review into its legal aid changes. There is much in Lord Bach’s report that the government could implement ahead of the next election if it is serious about restoring access to justice.’

RECOMMENDATIONS

Reform of legal aid assessment

• The government should introduce a ‘simpler and more generous scheme for legal aid’ with a means test based on a simple assessment of gross household income;
• Everyone who receives a means tested benefit should be automatically eligible;
• The government should scrap separate capital assessments for legal aid and adopt the same capital provisions as for means tested benefits;
• If the government chooses to retain the existing means test for civil legal aid, it should be made more generous and consistent with other means tests;
• The government should extend the discretion to disregard capital and/or income as part of the means test where reasonable.

Reform of legal aid contributions

• Legal aid contributions should be reformed to reflect ‘our proposals for a more generous calculation of disposable income and capital so that contribution requirements are no longer an unaffordable barrier to justice’;
• Existing capital contributions are particularly punitive so ‘more generous capital thresholds and exemptions used for means tested benefits should be ap plied to ensure consistency;
• The government should consider how to simplify and clarify the means testing process in criminal courts, and review the level of contributions made.

Reform of legal aid means test and other evidence requirements

• The evidence requirements for applications for civil and criminal legal aid should be simplified;
• There should be further liberalising reforms to the domestic violence gateway – lawyers and domestic violence support organisations should be able to confirm that an individual is a victim of domestic violence.

A wider scope for legal aid

• The government should restore legal aid for early legal help;
• Children: All matters concerning legal support for children should be brought back into the scope;
• Family: Family law cases with the following characteristics should brought back into the scope of civil legal aid, with respect to representation in court:
• a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute)
• b) cases involving an application to remove a child from the jurisdiction
• c) cases where there is local authority involvement in private law children proceedings
• d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it
• e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute
• f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
• Immigration: There should be a full investigation into which areas of immigration law should be within the scope of legal aid funded representation;
• Inquests: Where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased;
• Judicial review: Regulations limiting the remuneration of legal aid providers for judicial review cases, should be repealed.

Reform of exceptional case funding

• The exceptional case funding scheme has manifestly failed, and needs urgent review and reform.

The replacement of the Legal Aid Agency

• The Legal Aid Agency should be replaced by an independent body that operates the legal aid system at arm’s length from government.

Reduce administrative burdens for providers

• Immediate action should be taken to fix the Legal Aid Agency’s client and cost management system;
• There should be a new legal aid composite audit, in place of today’s numerous, overlapping and burdensome assessments, which should be conducted with a short notice period.

Reduce administrative burdens for the public

• The mandatory requirement for mortgage debt, special educational needs and discrimination law to be accessed via the civil legal aid gateway telephone service should be removed, and face-to-face help should be available for those who need it.

Action to ensure the continued viability of the legal aid profession

• The government should commission an independent review of the state of the legal aid profession and its continued viability. Ts.

Better public legal education in schools 

Universally accessible advice

• The government should support the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice.
• The government should create a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities.