Saving A Justice System In Crisis – The Bach Commission Report 2017


The Law Of… Promoting Access To Justice

Earlier this month, the Bach Commission released its anticipated report on the cuts made to legal aid by the coalition Government in 2012 under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

Aimee Brackfield, Paralegal in Education Law and Community Care, takes a look at the report's recommendations and its impact on the most vulnerable.

Why Was The Report Commissioned?

Led by the Fabian Society and the Bach Commission, the goal of the process was to re-establish the public's fundamental right to have access to justice.

This report follows on from an interim report published in November 2016, which outlined the crisis facing the justice system such as the severely limited access to legal aid for the most vulnerable.

Taking 2 years to complete, the new report offers proposals and solutions to the problems identified previously. The report is certainly ambitious, seeking the introduction of a new 'Right to Justice Act' and a Justice Commission to "advise on, monitor and enforce the right to justice."

Sadly, it also paints a bleak picture of the current situation in relation to legal aid and individuals’ ability to access justice and states that "the justice system is in crisis."

Key Recommendations

Some of the most important recommendations made by the report include:

  • Introducing a new Right to Justice Act
  • Creating a new Justice Commission
  • Reforming eligibility rules for legal aid on a large scale 

Promoting And Enforcing Access To Justice – The Right To Justice Act

One of the key recommendations made by the report is for a new Right to Justice Act, which would bring together the various rights and principles in relation to a person’s right to access justice.

The report mentions concerns regarding the Human Rights Act 1998 being repealed as a consequence of Brexit, and the resulting need to protect rights regarding access to a fair trial. This new law would aim to protect existing rights as well as making it more difficult for "a lord chancellor to propose new legislation that overrides our human rights or the common law principle of unrestricted access to the courts."

Establishing A Justice Commission

Putting a new Justice Commission in place to monitor and enforce the right to access justice is another important proposal.

This Commission would have the ability to intervene in cases where they believe that an individual or group has had their right to justice taken away or infringed.

"Essentially, it would function as a watchdog over the courts and Government policy to ensure that access to justice is promoted, not prevented", Aimee explains.  

Reforming Eligibility Rules For Legal Aid

A drastic change in the eligibility rules for legal aid is called for by the report, which also suggests replacing the Legal Aid Agency with an independent body that stands apart from the Government.

Accessing legal aid at this point in time isn't very easy, with people having to meet a high threshold. Recognising how serious this obstacle is, the Bach Commission suggests reforming the rules around eligibility for legal aid.

Guaranteeing Access To Justice

The Commission wants to guarantee that everyone can access "reasonable legal assistance which they can afford." It also wants people receiving any kind of welfare benefit to automatically qualify for legal aid.

Under LASPO, only people who are in receipt of certain 'passporting benefits' (which includes income-based ESA, jobseekers allowance, and universal credits) automatically qualify for legal aid. If this was changed in line with the Commission's recommendation, this would completely reform the eligibility criteria and would increase the number of people who are eligible.

An effect of this reform would also mean that the capital threshold would need to be adjusted and, more importantly, those who receive benefits and own and occupy their own property would still automatically qualify. This was the practice before 2012 and was one of the biggest reforms to the LASPO cuts in terms of eligibility.

Given the strict eligibility requirements for legal aid, another barrier to accessing justice is the requirement for people with savings above a certain threshold to contribute to the Legal Aid Agency.

Under LASPO and the relevant statutory guidance, someone who has more than £3,000 in savings, but under £8,000, must make a one-off capital contribution to the Legal Aid Agency of 100% of their savings over the £3,000 threshold. This is described as "particularly punitive" by the Commission and an "unaffordable barrier to justice."

To ensure the right to justice is upheld, the Commission proposes that clients should be asked to pay only a certain percentage of their savings over the threshold. This will help to ensure that they are still able to access justice without feeling punished.

The importance of accessing legal help early on is also highlighted in the report, which calls for this to be brought back into the scope of legal aid. Early legal help allows individuals to seek advice and support at the early stages of a dispute, and prevent the matter going to court.

Alarmingly, since the reduction in legal aid there's been an 84% drop in the number of legal aid cases from 2009 – 2017.

Matters Relating To Children With Special Educational Needs

The civil legal aid gateway telephone service is a mandatory requirement in special educational needs matters, and the report raises concerns that the service doesn't allow certain vulnerable people to access the assistance they need.

As a result of this, the Commission recommends that the telephone service should be removed and face-to-face help should be available for those who need it.

Under the current arrangements, anyone with a legal issue relating to their child’s (or their) special educational needs (SEN) in an education law context can only access legal support through the telephone gateway service. This requires you to contact the service and explain your situation to someone who will assess your legal aid eligibility. If you're seen as eligible your case will be passed to one of two specialist education law providers, including Simpson Millar LLP.

This system is problematic for 2 reasons:

  • Clients may struggle to explain their legal issues and key information may be missed by the telephone worker, which may result in the client being told they are not eligible for free advice.
  • Only being able to receive legal services via a telephone service can be distressing and difficult to access for many clients, particularly those who are vulnerable and have SEN. According to the report, the amount of advice being given out is 75% less than expected, raising questions over whether the civil legal aid gateway acts as a hurdle to accessing justice.

Judicial Review Proceedings

The report also states that the restrictive remuneration regulations for judicial reviews have deterred many providers from bringing judicial review proceedings, and has called for this to be repealed. This is in relation to regulations that dictate when and how providers can receive legal aid payment in relation to judicial review proceedings.

"Judicial review is a key and important route to upholding and enforcing a person's rights and access to justice", explains Aimee.

"The idea that this may be prevented because the Legal Aid Agency would refuse to fund certain pieces of essential work prevents many individuals from being able to access justice. Often, judicial review is the last resort for righting a legal wrong and it is therefore extremely important that it can be accessed by all those in need of it."

Aimee comments on the report's overall findings:

"Overall, this report aims to undo the damage done to legal aid and access to justice caused by LASPO."

"Further to the Supreme Court's landmark decision that Employment Tribunal issue fees are unlawful and a barrier to accessing justice, it would seem that legal aid practitioners, the Supreme Court and now the Bach Commission agree that reforms to Legal Aid are required in order to promote access to justice."

"But whether the Government will listen to this and enact such change is still very much unknown."

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