The glaring hole is legal aid

LABOUR’S NPF JUSTICE AND HOME AFFAIRS policy commission is consulting on policy on immigration, prisons, victims’ rights and access to justice.

On access to justice the document is bland. It asks what a statutory minimum expectation on access to justice would look like in practice, states that Labour is committing to scrapping employment tribunal fees and asks what other issues inhibit access to justice. How could the public be better educated about their legal rights and what can be done to improve the experience using the civil courts?

The glaring hole is legal aid. The document notes the cuts made by the government by reducing the scope of legal aid. This is an understatement. In 2013, legal aid was removed from family cases (unless there is evidence of domestic violence), immigration cases excluding asylum, employment, several types of housing disputes, and - most shocking of all - welfare benefits advice. At the same time, legal aid rates of pay to lawyers, already frozen for the previous 15 years, were slashed so that legal aid lawyers struggle to stay afloat. The result is that lawyers’ firms collapse and there is a shortage of legal aid lawyers. In many counties in England and Wales, there are only one or even no legal aid housing lawyers.

The Labour Party had its own independent review into the consequences of the cuts to legal aid: the Bach Commission. Its first report was published in November 2016.

There has been a huge decrease in the numbers of people financially eligible for legal aid, and non-for-profit legal advice centres have gone from over 3,000 in 2005 to just over 1,000. It also notes the deterrent effect of High Court fees, particularly for employment tribunal applications, and that the number of employment tribunal cases has fallen by around 67%. The Bach Commission invites consideration of systems for helping the public to educate themselves around legal issues, and the introduction of new technology to make courts more accessible. The possibility of new technology, possibly culminating in on-line courts, is now being implemented by the government in the Prisons and Courts Bill currently before Parliament.

An effective system of access to civil justice would restore legal aid and advice for family cases, welfare benefits and the other areas cut in 2012. One of the dreadful consequences of the loss of legal aid for family cases, with an exception where there is evidence of domestic violence, is that more and more people are claiming to have experienced domestic violence and cannot produce evidence of it. That has led to a culture of disbelief. Rather than exempt victims of domestic violence we should just restore legal aid (subject to means) across the board.

Another dreadful consequence is that DWP decisions, notoriously poorly-made and often overturned at tribunals, are not challenged, because claimants don’t have access to free specialist advice and can’t afford to pay. This has allowed the state to escape scrutiny of poor decision-making.

Labour should seriously consider implementing the recommendations of the Low Commission when in government. The Low Commission, set up after the 2013 cuts to legal aid, recommended public investment in legal advice and advice centres nationally. Even if legal representation is outside the scope of legal aid, then early, free legal advice allows people to identify problems, receive realistic advice (which can prevent them litigating pointlessly) and settle grievances early and cheaply.

Labour should also reduce court fees, along with abolishing the employment tribunal fees. The fee for a simple debt claim, issued in the County Court, is between £185 - £410, amounts which can represent a significant deterrent for many potential debtors or other claimants. Submissions can be made by 31st May to www.policyforum.labour.org.uk.