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Access to Justice – Bach Commission Report

Our People - Luke Cowles
22 September, 2017

In 2015 the Bach Commission on Access to Justice was set up. Its objective was to report on how the ‘right to justice’ could be re-established as an entitlement akin to healthcare or education. This follows LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) which drastically cut legal aid. This article aims to provide a quick-glance view of some major key points.

Problems highlighted

The scale of cuts is best highlighted by the government’s stated intention to save £450m a year in real terms, yet in 2016 legal aid spending was £950m less than in 2010 (pre-cuts).

Even more startling is the reduction of legal help matters; 933,815 in 09/10 to 146,618 in 16/17 (84% decrease).

Exceptional Case Funding (ECF) was introduced by LASPO and the Ministry of Justice planned for 847 children and 4,888 young adults to be granted this yearly. But in a true literal meaning of the word ‘exceptional’ it meant periods such as Oct ‘13 – June ’15 whereby only 8 children and 28 young adults received ECF (with a fractional increase since).

The report

The final report proposes a new statute to codify these rights – the proposed name being The Right to Justice Act (RJA).

The report is split into two parts made up of six chapters.

  • Part 1 – The Right to Justice Act
  • Part 2 – Urgent Policy Changes [requiring adoption by the government to comply with the RJA]

Right to Justice Act

The argued point as to why the RJA is required, is that anything less than a statute/act of parliament would most likely be little more than a stop-gap to ‘paper over cracks’.

Overall the general flow of the RJA is to try and create a simpler, more generous and flexible legal aid system. This includes serious reforms to (non-exhaustively):

1. The scope of legal aid; which means an extension to the areas of law covered.

  • Allowing for earlier ‘legal help’ before a matter is forced to proceed to court. This would assist in reducing unnecessary costly and stressful court proceedings that could have been negotiated or dealt with at an earlier stage.
  • Proposed expansion for areas of law such as welfare benefits, specific family law cases, legal advice for children, immigration, housing, employment, inquests and reform to judicial review funding.  

2. The eligibility requirements of legal aid; which means simpler and more generous financial assessments.

  • Reduce unaffordable lump-sum legal aid capital contributions or regular contributions.
  • Automatic legal aid for those on ‘passported’ benefits (e.g. income support, income related ESA, income related JSA, Guarantee Pension Credit, Universal Credit).
  • Exemptions for owner-occupied housing (as ‘converting’ equity in your house into cash for legal fees is not practical).
  • Income assessments – simply aggregating ‘gross’ income only (with thresholds varying based on family size).
  • Reduction of red tape by reforms to ‘evidence’ requirements to prove eligibility.

3. The RJA would set up an independent Justice Commission (JC) to:

  • Carry out inquiries.
  • Issue guidance (for courts, public bodies and the government to follow).
  • Challenge government decisions.
  • Intervene in individual litigation to support implementation of RJA rights.

A key point discussed is the trade-off between the JC’s independence on the one hand, and enforceability on the other hand. The report then quotes the evidence given by former Lord Chancellor Lord Falconer to give an indication as to which side of the balance they favour:

                  “What is the good, ultimately, of rights that are not enforceable?”

I completely agree. Their powers of intervention are crucial.

Additionally consideration is made about several bodies/commissions already in existence. The JC must therefore serve a unique purpose. Additionally it must build on the mistakes made by existing bodies such as being either; too wide (and possibly unfocused) or too narrow (failing to see the ‘big picture’).

What next?

At the time of writing – the Bach Commission report is only hours old. But the government is completing a post-implementation review of LASPO – due April 2018. It is vital this report is central in review considerations. 

Moreover, as the government continues to execute ‘Brexit’, it is paramount that we make our own domestic legal system sufficiently robust.

The RJA should not be a pre-cursor to a replacement British ‘bill of rights’. My view is the RJA should stand alongside the existing Human Rights Act 1998 (which implements the totally separate non-EU created European Convention on Human Rights).

I’d be interested to hear from you and what your experiences of access to justice is.
Tweet me with your thoughts.

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Head of Claims Against Public Authorities Department
Luke Cowles is an Associate Solicitor who works predominantly in the actions against police team but also assists in the mental health team. He advises both clients who are eligible to receive legal aid as well as private clients.

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