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Response of the Equality and Human Rights Commission to the PostImplementation Review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 September 2018

Consultation details: Title:

Post-Implementation Review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)

Source of consultation:

Ministry of Justice

Date:

4 September 2018

For more information please contact: Lorel Clafton Equality and Human Rights Commission Fleetbank House 2-6 Salisbury Square London EC4Y 8JX Telephone number:

020 7832 7800

Email address:

[email protected]

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About the Equality and Human Rights Commission 1. The Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited at UN level as an ‘A status’ National Human Rights Institution, in recognition of its independence, powers and performance. Summary 2. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force in 2013 and made significant changes to the provision of civil legal aid in England and Wales. The Government’s aims were to discourage unnecessary and adversarial litigation at public expense; to target legal aid to those who need it most; to make substantial savings to the cost of the scheme; and to deliver better value for money for the taxpayer.1 3. LASPO considerably narrowed the scope of legal aid, with the result that it is no longer available for most private family, housing, debt, welfare benefits, employment and clinical negligence matters. 2 The remaining legal aid is available for some issues in areas including discrimination, asylum applications, housing repossession, debt matters where a person’s home is at immediate risk, forced marriage, and family problems where there is a risk of domestic abuse.3 In making these scope changes the Government considered the importance of the issue, the ability of individuals to present their own case, the availability of alternative sources of funding, and the availability of other routes to resolution.4

1

Ministry of Justice (2011), Reforms of legal aid in England and Wales: the Government response, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228 890/8072.pdf. 2

Legal Aid, Sentencing and Punishment of Offenders Act 2012, Schedule 1, Part 1, available at: http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted 3

Ibid.

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Ministry of Justice (2010), Proposals for the reform of legal aid in England and Wales, available at: http://webarchive.nationalarchives.gov.uk/20111013060755/http://www.justice.gov.uk/downloads/cons ultations/legal-aid-reform-consultation.pdf.

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4. LASPO made changes to the financial eligibility criteria for legal aid, including by increasing the amounts that people have to contribute from their income, and by removing automatic eligibility for people on means-tested benefits.5 5. The amount of legal aid provided for both initial legal advice and for representation in court or at the upper-level tribunal has fallen significantly since LASPO was introduced. By March 2018 the number of cases where legal aid was provided for initial advice had fallen by more than 75 per cent compared with pre-LASPO levels,6 and the number of grants for legal aid for representation had fallen by 30 per cent. 7 6. The number of civil legal aid providers has fallen significantly since LASPO was introduced, from 4,253 providers in 2011-12 to 2,824 in 2017-18, including both solicitor firms and not-for-profit organisations. 8 In some parts of England and Wales there is evidence of advice ‘deserts’, where there are few or no legal aid providers for particular areas of law. 9 7. A scheme of exceptional case funding (ECF) was intended to provide a safety net for cases that would otherwise not be in scope of legal aid, but where a failure to provide legal aid could result in a breach of an individual’s human rights, or rights to the provision of legal services under EU law. The Government anticipated between 5,000 and 7,000 ECF applications each year,10 of which around 3,700 would be granted.11

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The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, available at: http://www.legislation.gov.uk/uksi/2013/480/contents/made. See also Ministry of Justice (2017) Legal Aid, Sentencing and Punishment of Offenders Act 2012: post-legislative memorandum, paras 17 & 28, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655 971/LASPO-Act-2012-post-legislative-memorandum.pdf. 6

Legal Aid Agency (2018), Legal aid statistics tables – January to March 2018, table 5.1: Legal help and controlled legal representation matters started, available at: https://www.gov.uk/government/statistics/legal-aid-statistics-january-to-march-2018. For the year ending March 2013 legal help was provided in 573,737 cases, compared with 140,091 in 2017-18, a fall of 76 per cent. 7

Legal Aid Agency (2018), Legal aid statistics tables, table 6.1: Civil representation, applications received in period and grant status. For the year ending March 2013 legal aid for representation was granted for 157,409 cases, compared with 108,890 cases in 2017-18, a fall of 31 per cent. 8

Legal Aid Agency (2018), Legal aid statistics tables, table 9.1: Number of provider offices completing work in each period by legal aid scheme. 9 Law Society (2016), Parliamentary brief: legal aid deserts in England and Wales, available at: http://www.lawsociety.org.uk/Policy-campaigns/documents/legal-aid-deserts-parliamentary-brief. 10

National Audit Office (2015), Implementing reforms to civil legal aid, available at: https://www.nao.org.uk/report/implementing-reforms-to-civil-legal-aid/. 11

Lord Faulks (2014), House of Lords Hansard 11 February 2014: Column 530. Available at: http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140211-0001.htm#14021176000398.

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In the first year after LASPO was introduced only 1,516 applications were made and only 70 (fewer than 5 per cent) were granted.12 8. LASPO introduced a telephone helpline for civil legal aid, which is the mandatory single source - subject to some limited exceptions - for accessing legal aid in special educational needs cases, discrimination claims, and debt, to the extent that debt remains in scope of legal aid.13 There are concerns about the operation of the gateway and its accessibility for disabled people and those with limited English language skills.14 The Commission will be examining the operation of the gateway as part of our inquiry into the extent to which victims of discrimination can access justice through the provision of legal aid.15 9. When LASPO was introduced, the Government anticipated that people with legal problems in areas taken out of scope of legal aid would use alternative, less adversarial means of resolution.16 The Commission asked the University of Liverpool to carry out research into whether these alternative routes to resolving legal problems were in fact providing access to justice (we refer to this as ‘the Liverpool Research’ in this submission).17 The study focussed on people in the Liverpool City Region with family, employment or welfare benefits problems who would have met the financial eligibility criteria for legal aid but whose problems were out of scope.18 The research raised concerns about the extent to which people were able to resolve their problems without legal aid, and highlighted the emotional, social, financial and mental health impacts that people experienced as a result. Context 10. Changes to the provision of legal aid have taken place in the context of wider reforms to the justice system, including changes to 12

Legal Aid Agency (2018), Legal aid statistics tables, table 8.1: Exceptional Case Funding (ECF) applications. 13

Ministry of Justice (2011), Reforms of legal aid in England and Wales: the Government response.

14

See eg Law Society (2017), Access denied? LASPO four years on: a Law Society review, available at: http://www.lawsociety.org.uk/support-services/research-trends/laspo-4-years-on/. 15

See: https://www.equalityhumanrights.com/en/our-legal-action/inquiries-and-investigations/legalaid-victims-discrimination-our-inquiry

16

Ministry of Justice (2011), Reforms of legal aid in England and Wales: the Government response. Legal aid remained available for mediation and for some legal advice in support of mediation. 17

James Organ and Jennifer Sigafoos, University of Liverpool (2018), The impact of LASPO on routes to justice, available at: https://www.equalityhumanrights.com/en/publication-download/impactlaspo-routes-justice. 18

Financial eligibility was self-reported. Participants in the study were provided with details of the means test for legal aid and asked to confirm that they would have met the requirements.

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judicial review,19 increases in court fees,20 the now reversed regime of fees in employment tribunals,21 and the closure of more than 230 crown, county and magistrates courts22 as part of an ongoing programme of reform that would see attendance at court largely replaced by digital alternatives such as online courts and virtual hearings.23 These changes have a cumulative effect on people’s ability to access justice, and it is therefore important to consider carefully and monitor the impacts in the round. 11. Reflecting on relevant case law precedents since the introduction of LASPO, particularly the Supreme Court’s judgment in R (on the application of UNISON) v Lord Chancellor, the threshold to justify barriers to justice is much higher than may have been appreciated at the time when LASPO was created.24 The Government’s analysis of LASPO must address the lessons learned from the UNISON case, which include that greater weight must be given to the public interest in preserving the right of access to justice, and that the financial eligibility criteria must be carefully calibrated to accurately reflect the realities of life. 12. We welcome the Government’s Post-Implementation Review of LASPO and we are pleased to contribute evidence to this process. The Commission provided advice on the potential impacts of LASPO during the passage of the bill in 2012,25 and we have continued to highlight our 19

Bingham Centre for the Rule of Law, JUSTICE and the Public Law Project (2015), Judicial review and the rule of law: an introduction to the Criminal Justice and Courts Act 2015, Part 4, available at: https://2bquk8cdew6192tsu41lay8t-wpengine.netdna-ssl.com/wp-content/uploads/2015/10/JudicialReview-and-the-Rule-of-Law-FINAL-FOR-WEB-19-Oct-2015.pdf. 20

See Ministry of Justice (2015), Court and tribunal fees: the Government response to consultation on further fees proposals, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/515 460/further-fees-proposals-gov-response-consultation.pdf. 21

See Ministry of Justice (20 October 2017), ‘News story: opening stage of employment tribunal fee refund scheme launched,’ available at: https://www.gov.uk/government/news/opening-stage-ofemployment-tribunal-fee-refund-scheme-launched. 22

Response to Parliamentary Question 136450, available at: https://www.parliament.uk/business/publications/written-questions-answers-statements/writtenquestion/Commons/2018-04-18/136450. 23

See HM Courts and Tribunals Services (2018), Fit for the future: transforming the court and tribunal estate, available at: https://consult.justice.gov.uk/digital-communications/transforming-court-tribunalestate/supporting_documents/hmctsstrategyapproachconsultation.pdf. For the Commission’s response to the consultation on these proposals see Equality and Human Rights Commission (2018), Response to the consultation on transforming the court and tribunal estate, available at: https://www.equalityhumanrights.com/sites/default/files/reponse_to_the_consultation_on_the_strategy _to_transform_the_courts_and_tribunal_estate.pdf. 24

R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51. The case details and judgement are available at: https://www.supremecourt.uk/cases/uksc-2015-0233.html. 25

See Equality and Human Rights Commission (2012), House of Lords report stage briefing: Legal Aid, Sentencing and Punishment of Offenders Bill, available at:

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concerns since its implementation, including in our reporting on the UK’s international human rights treaty obligations and in our statutory review of equality and human rights, ‘Is Britain fairer?’26 The Commission would like to emphasise our willingness to continue engaging with the Ministry of Justice throughout the Post-Implementation Review and in the development of future proposals. 13. In this submission we draw on our evidence base on the impacts of LASPO to identify concerns across four main themes: the overall impact on access to justice; the disproportionate impacts on access to justice for people with certain protected characteristics; the impact on individuals’ ability to seek redress for breaches of their human rights; and the impact on individuals’ ability to seek redress for discrimination under the Equality Act 2010. We make eight recommendations for action. Our recommendations 14. Recognising that restrictions to the scope of legal aid and changes to the eligibility criteria for legal aid following LASPO may have created insurmountable obstacles for many individuals when they need to seek redress from the justice system, we recommend that the Government: i.

Use the full range of evidence available to assess the impact of LASPO on the ability of individuals to enjoy effective access to justice as required by common law, by Article 6 to schedule 1 of the Human Rights Act 1998 and under EU law. The Government should commission further research and analysis where necessary, including analysis of how and whether people can access justice when they cannot access legal aid.

ii.

Revise the means test for legal aid with a view to expanding eligibility and ensuring that any contributions individuals are required to make are truly affordable and do not prevent the maintenance of an adequate standard of living. As a minimum, the Government should ensure that individuals in receipt of meanstested benefits automatically qualify for legal aid.

iii.

Reinstate legal aid for initial advice, in at least family and housing cases, so that legal problems can be addressed before they escalate, helping to prevent the detrimental emotional and financial

https://www.equalityhumanrights.com/en/parliamentary-library/legal-aid-sentencing-and-punishmentoffenders-bill. 26

Our most recent report was published in 2015, see: https://www.equalityhumanrights.com/en/britain-fairer. The next report will be published in October 2018.

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impacts that worsening legal problems have on individuals, the unnecessary pressure on courts to deal with more complex cases that could have been prevented, and the knock-on costs to other parts of the public sector, for example as a result of ill health or increased demand for welfare benefits. iv.

Address the shortfall in take-up of legal aid by providing appropriate and accessible information on the areas of law where legal aid remains available. Further, the Government should continue to support the work of the Public Legal Education Panel to ensure that individuals have the information and resources they need to understand and enjoy their rights.

v.

Reform the exceptional case funding scheme so that it works effectively to ensure that the absence of legal aid does not lead to violations of people’s rights under the Human Rights Act 1998 or under EU law. The Government should ensure there is an effective procedure for urgent applications for exceptional case funding, and take action to address all other shortcomings identified in the scheme, including barriers in the application process.

vi.

Identify where LASPO has had a disproportionately negative impact on people sharing certain protected characteristics and take mitigating action, including bringing areas of law back into scope where necessary. Priority attention should be given to the impacts on disabled people, women and people from ethnic minorities. The Government should encourage and facilitate participation in its Post-Implementation Review by groups representing people sharing these protected characteristics.

vii.

Take action to address any reduction in people’s access to redress for human rights breaches as a result of the restrictions to legal aid arising from LASPO. In doing so, both breaches of the rights incorporated through the Human Rights Act 1998 and EU law, and the effect on rights protected by the international human rights treaties to which the UK Government is a signatory, should be considered.

viii.

Make changes to the mandatory telephone advice gateway to make it effective and accessible for all, including by implementing any recommendations resulting in due course from the Commission’s inquiry into the provision of legal aid for discrimination claims. Particular consideration should be given to the accessibility of the telephone gateway for disabled people and those with limited English language skills. 8

The legal framework 15. The right of access to justice is a cornerstone of the constitutional protections provided by common law. The ability to seek legal redress for unlawful acts underpins the rule of law and protects our democratic ideals. It facilitates lawful economic and social relations between individuals and acts as a constraint on how those with power treat others. Any statutory impediment or hindrance to the right of access to justice must be clear and explicit, and rationally connected to and proportionate with the legitimate aims or objectives approved by Parliament. Failure to satisfy these standards can result in the actions of Ministers, for instance through regulations or orders that restrict access to justice, being declared ultra vires by the domestic courts. 16. The common law right of access to justice is supported by the requirements of the European Convention on Human Rights (ECHR), including the right to a fair trial (article 6) and the right to an effective remedy from a national authority for violations of convention rights (article 13). Section 6(1) of the Human Rights Act 1998 (HRA) further provides that public authorities must not act incompatibly with the incorporated ECHR rights. Under Article 10 of the Treaty establishing the European Community, member states are required to provide effective judicial protection for rights deriving from EU law, such as free movement, workers’ rights and the principle of equal treatment. 17. Under the Equality Act 2010, it is unlawful for public bodies, including the Ministry of Justice, to discriminate in providing services or exercising public functions on the basis of the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation.27 Discrimination can take several forms, including both direct discrimination and indirect dis...