LAG | Up to date comment and analysis on legal aid and access to justice issues.
Legal Action Group promotes equal access to justice as a fundamental democratic right. LAG works with lawyers and advisers to improve standards and knowledge of social welfare, family and criminal law among practitioners, by publishing legal handbooks and its monthly magazine, Legal Action, and by providing training and events for lawyers and advisers.
Like a few of you, I’ve been weighing up the events of last week and their likely impact on legal and access to justice policy.
Firstly, there is a chance that another general election might be on the cards before many MPs, especially in the government ranks, might want. The Good Friday agreement commits both the UK and Irish governments to demonstrate ‘rigorous impartiality’ in their dealings with the different political traditions in Northern Ireland. It’s difficult to see how a deal with the Democratic Unionist Party (DUP) will not either be a direct breach of the agreement or, at least, the spirit of it. So, the first question is: will the government’s pact with the DUP unravel in the courts? We will know better about the chances of this happening once the details emerge of what has been agreed between the two parties to get the Queen’s speech passed.
As far as justice policy goes, Liz Truss made mistakes, though not on the scale that Grayling managed. Her biggest error was losing the confidence of the judiciary because she failed to defend the Supreme Court judges promptly enough against attacks from the press over the article 50 case. Her replacement as lord chancellor, David Lidington, needs to appreciate that his first duty is to defend the rule of law and this often involves suppressing political instincts. In other words, he should put constitutional principle before chasing favourable headlines (indeed, it might be beneficial if all cabinet members were required to do so).
The Prisons and Courts Bill, which included provisions to establish online courts and virtual hearings, was abandoned due to the general election. I’m pretty sure it will return in an altered form, but who knows in these political febrile times. I believe the prisons and court reform provisions in the bill had broad cross-party support, though I’d add a couple of caveats to that statement.
Security and penal policy, perhaps understandably, is something of an obsession for the DUP. They might balk at some of the rhetoric around rehabilitation as opposed to punishment in the original bill. We are unlikely to get many pointers from the Queen’s speech on whether they have influenced a rehashed bill. A forensic analysis of the original compared to the text of any new bill will be required to detect the DUP’s policy fingerprints.
The government’s flimsy parliamentary majority means, despite it being a manifesto commitment, it might have drop plans to change the rules around compensation for whiplash. If the proposal makes it to the draft bill, expect some heavy lobbying by interest groups on both sides of the argument at the committee stage.
A couple of thoughts about Jeremy Corbyn. He has, though he probably would not like the comparison, turned out to be a bit of a Tony Blair on the campaign trail. Like Blair, he is a Heineken politician: he reaches parts of the electorate other politicians don’t (Labour’s energising of the youth vote is one of the main stories of this election). Also, like Blair, Corbyn – in contrast to May – has proved himself to be an adept TV performer with an unflustered and disarming style (the Mr Zen persona seems to connect with viewers).
Due to his success in increasing Labour’s vote, Corbyn will be around for some time. In the context of legal aid policy this is important. As Lord Bach, the former legal aid minister, has said: ‘Jeremy really does get legal aid.’ Bach heads a commission, established by the Labour leader, on legal aid that published an interim report last year. I’d anticipate Labour will be putting increasing pressure on the government over the lack of advice in family and DV cases, as well as over the need generally for early advice in civil cases.
Well, we are in the middle of a general election campaign that no one predicted. It seems a combination of a commanding lead in the opinion polls and a brighter than expected economic outlook meant Theresa May could not resist the temptation to go to the country to try to secure her own mandate. LAG believes the election campaign raises opportunities to get commitments from the political parties on legal and access to justice policies.
Due to the election, and much to the relief of personal injury lawyers, the Prisons and Courts Bill had to be abandoned. This had included provisions that would have reformed the rules around compensation for whiplash in road traffic accidents and other personal injury cases.
Many argued that the government, in its proposals, had caved in to the insurance industry lobby and that the proposed reforms would have led to much injustice. They would also have had a devastating impact on high street solicitors’ firms that rely on this business.
With the bill failing to make what is called the ‘wash-up’ of legislation that is quickly passed on to the statute book before a general election, important reforms were lost around prisons and the protection of domestic violence victims from having to face cross-examination by their abusers.
The bill also included provisions that would have enabled the planned digital transformation of the courts and tribunals. Such are the pressures on parliamentary time due to Brexit that it is unclear whether, if re-elected, the Conservatives will put the bill into the Queen’s speech for the new parliament.
As already stated, we would argue that the immediate economic outlook was one of the reasons the PM called the general election now. The International Monetary Fund has predicted that the UK economy will grow by a healthy two per cent this year. The remainers’ dire predictions for the economy in the EU referendum campaign have not come to pass, at least not yet.
So far, the Conservative government has got away with revealing very little of the detail of its Brexit plans. However, holding this line during the coming weeks will be challenging in the heat of the election campaign in which one of the main dividing lines will be hard v soft Brexit and the risks to the economy of not getting a deal on access to the single market.
The parliamentarians LAG spoke to all expressed doubts over whether the undertaking is possible within the two-year deadline imposed by article 50. And this was before the general election was called, which will delay this process by at least two months. It seems likely that the new government will be seeking interim measures to facilitate untangling our relationship with the EU.
Of concern to many, including LAG, are the extensive powers the Conservatives want to be granted to create secondary legislation under the proposed Great Repeal Bill. The white paper on the bill is very vague on what protections there will be against the abuse of these powers. Assurances need to be sought during the election campaign around the proper parliamentary scrutiny of these measures and a strict sunset clause should be attached to any additional powers.
Immigration and the status of EU citizens in the UK, meanwhile, is something else that should be ventilated in the coming weeks. A question mark cannot be allowed to hang over the status of EU nationals.
Another casualty of the prime minister’s unexpected decision to go to the country was the post-legislative review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The government had started the process, but this will now be put on hold.
LAG believes the combined impact of LASPO and austerity policies is choking off access to justice for many hundreds of thousands of people. The Ministry of Justice’s (MoJ’s) own most recent research indicates that around a third of the population experience civil legal problems that may lead to a legal solution through a court or tribunal hearing.
The MoJ acknowledges that research shows some groups of people, ‘particularly those vulnerable to social exclusion’, are more likely to experience a legal problem.
In its report on the civil legal aid reforms two years ago, the House of Commons Justice Select Committee concluded that LASPO has ‘harmed access to justice’ for some litigants (page 75, para 50) and that the MoJ should take steps to remedy the problems it had identified. LAG wholeheartedly agrees with these sentiments.
We must therefore put pressure on all of the political parties to reinstate the post-legislative review of LASPO after the election.
Since the implementation of the LASPO* cuts in April 2013 the number of civil legal aid cases has reduced by two-thirds. Figures released by the Ministry of Justice (MoJ) last month show a continuing decline in the take-up of civil legal aid. LAG believes that the government is failing to ensure that legal services are available for people still eligible to receive help.
According to the report, published on the MoJ website, there was a 12% decrease in housing cases in Oct-Dec 2016 compared to the same quarter in the previous year. There was also a 24% reduction in asylum cases and a 5% reduction in mental health cases. None family law cases like these account for just over 20% of the total expenditure on civil legal aid. Overall spending on civil legal aid for 2016 was £676m compared to £709m in 2015.
Last year the Law Society (LS) published evidence on the lack of availability of legal aid for housing advice in many areas of England and Wales. The LS found that in three areas- Surrey, Shropshire and Suffolk- there were no housing providers and in many other places there were too few to meet the potential demand for advice on homelessness, serious disrepair and harassment.
In its report published in 2014 the influential Public Accounts Committee (PAC) found that that there were 53 local authority areas in which fewer than 50 face to face civil legal aid cases had been started and in 14 other areas none at all had commenced. The PAC recommended that the government should establish mechanisms to identify shortfalls in the provision of legal aid to ensure that those people eligible for help could receive it. These latest statistics demonstrate that this has just not happened.
For family law, which is the biggest area of civil legal aid spending, the picture is more mixed. While there were 15% fewer cases for Oct-Dec 2016 compared to the same quarter in 2015, the number of more complex and expensive civil representation cases has grown by 7%. According to the MoJ’s analysis this increase has been driven by a growth in public law family cases.
There is some good news in the report on the take-up of Exceptional Case Funding (ECF) as this has increased. This system was introduced by LASPO as a safety net for civil cases which are not in scope, but would breach human rights law if legal aid for advice and/or representation were not available.
Post LASPO the number of ECF cases was much lower than the 5-7,000 originally estimated by the MoJ, but the numbers of cases are growing. Compared to the same quarter in 2015, in Oct-Dec last year there was a rise of 43% in applications. A total of 441 were received of which 57% were immigration matters. This increase was partly driven by the case of Gudanavicience and others in which the Court of Appeal decided that the government had set the threshold too high to qualify for ECF in many immigration cases.
While the increase in ECF cases is a cause for some modest celebration, LAG’s main concern with these latest figures is the continuing drop in the number of cases. Our report, Justice in Freefall, published last year, highlighted the reductions in civil legal aid post-LASPO. The recent statistics from the MoJ confirm an ongoing spiralling decline in civil legal aid which could be terminal unless ministers take urgent action to address the problem.
*Legal Aid Sentencing and Punishment of Offender Act
Figures released by the Ministry of Justice earlier this month show an overall increase in the number of tribunal claims. Growing numbers of Social Security and Child Support (SSCS) Tribunals are driving this.
Appeals against decisions on Employment Support Allowance and Personal Independence Payments accounted for 85% of all SSCS appeals in the quarter October to December 2016. There was an increase of 47% of cases against the same quarter in the previous year. At the end of the quarter there were 79,455 appeals outstanding, an increase of 43% compared to the same quarter in 2015. Overall 63% of SSCS tribunal cases were decided in favour of the applicant.
Single claims for unfair dismissal and other cases that can be brought before an Employment Tribunal are remaining steady at around 4,300 per quarter. The number of such claims dropped considerably after the introduction of fees to bring a claim in July 2013. In 26% of cases in the quarter Oct- Dec 2016 a full or partial issue fee remission was granted. Most of the applications for full or partial concerned single cases; large multiple claims, the numbers of which fell in the quarter, tend to involve applicants who have the backing of a trade union or other representative.
Since the introduction of the Immigration Act 2014 the number of First-Tier Tribunal (Immigration and Asylum Chamber) claims has been declining. In October to December 2016, they were down by a third on the same quarter in 2015.
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