Impact of LASPO on Legal Services

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18/05/20 Law Reference this

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Briefing paper on the impact of LASPO on legal services and whether it has limited access to justice

Introduction

Historical background: In regard to legal aid, the system was made in 1949 and it was under the administration of the law society until the legal aid act, which was formed in 1988. The formation of Access to justice Act 1999 resulted in Community legal services and Criminal Defence Services. Ideas were formed by the government to decrease public spending. This led to the Legal Aid, Sentencing and Punishing of Offenders Act 2012  

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The Issue of reform was raised due to many people being  unable to get access to legal aid to follow up their cases in court. This resulted in individuals having to pay for legal representation themselves and solving their own issues. The impact of this would be unresolved cases because not everyone can afford their own representation. In 2015 the justice committee stated that the only goal LASPO achieved was significantly reducing funding to legal aid to increase their savings  

The current law

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), introduced in 2013, aimed to decrease legal aid funding meaning people who needed legal representation were less able to gain access. In accordance to the Ministry of Justice, LASPO intended to deject any unnecessary lawsuits, increase the availability of legal aid towards those most in need of it, make savings to the cost and deliver better value for money for those who pay tax[1]. Schedule 1 of the LASPO shows which areas of the law are in scope to be provided with funding. S 10 of LASPO provides us with information for exceptional case funding for  areas in law in which legal aid is difficult to obtain [2].There are many different types of practical initiatives that assist you in a Lawsuit. The first one being a McKenzie friend. There are many different types of McKenzie friends. For example, family members and friends who offer moral support in court without charging a fee, they can be volunteer helpers in association with institutions or charities who do not charge a fee and finally they may be mckenzie friends who help with court proceedings that come with a fee. They usually help by providing moral support , taking notes, helping with case papers and quietly giving advice. The second type is the Public Defender Service. The Public Defender Service was established in 2001 and provides high quality defence representation in all types of criminal cases. In 2014 they enhanced their level of service by creating a specialist Advocacy Team. This team provides a complete advocacy service with particular emphasis on serious and complex crown court cases. Their Advocates are based across the country and can operate anywhere within England and Wales. Furthermore, there are community advice centres. One of the centres is called “Citizens Advice”. By working with a range of national partners they improve the lives of the most vulnerable groups in society. They work with partners from the public, private and third sectors to ensure their experience, and that of our clients, is used proactively to inform policy and practice for the better. They also advice on discrimination, racial/ religious discrimination, hate crime and more.

Analysis of current law

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) increased savings in the cost of scheme as a result of reducing funding towards legal aid. ­However, the justice committee stated that LASPO had only met one of their targets (making significant savings as mentioned above), but it is possible that it resulted in limited access to justice for some litigants. There has been a reduction in spending in the civil legal aid budget and it requires an immediate investigation as it is possible that it leads to significant damage towards achieving justice.[3]

The current legal means test doesn’t stay level with the current level of inflation and costs of living, making it challenging for people to gain legal assistance. It is also difficult to access and figure out whether people are entitled to legal aid. It is concerning that costs may increase in other areas of the public sector due to the savings made from the legal aid budget.[4]

Legal aid was available for almost all sections of law. However, since LASPO was introduced, certain individuals haven’t been able to get aid which correlates to their needs. There is evidence present which supports the fact that legal aid is not being directed at those who need it the most. It was reported by Amnesty International that a there was a disproportionate impact on disadvantaged groups, which involves: young people, migrants and refugees, and people with ‘additional vulnerabilities’[5]. It has put a stress on children and their representatives on gaining access to legal advice and representation, regardless of the government assuring that children are to be protected from this.  Lord McNally who is the  former Minister of State for justice, quoted that : “As far as possible, our intention is that, where children are involved, legal aid will still be provided”[6]. This has yet to occur and many children are forced to receive legal advice and representation themselves or try to solve issues on their own.

The reduced  scope of legal aid through LASPO caused wide gaps to open up in provision of legal advice. The government was confident in the increased uptake of mediation and predicted an increase of 9,000 mediation assessments and 10,000 mediation cases for the year 2013-2014[7]. However, the government failed to consider the fact that removing access to early advice from a solicitor would hinder the uptake of mediation[8]. Due to the reforms, there was a downfall of 17346 in mediation within the year. The reason for this is that because people aren’t aware of the existence of mediation and how to access it, due to people lacking early advice from solicitors.

Non-legal initiatives can be taken into account when solving the problem. One approach could be using informal advice from family, friend or even perusing the case on your accord. This approach would be beneficial as it cuts costs. However, it may be not be the most reliable way. A secondary approach could be paying a fee to a solicitor or a private firm for formal advice. This would be from someone who isn’t an expert This approach could provide helpful guidance, but it may also be unreliable or out-dated. An additional approach may be obtaining free professional guidance from a law firm or surrounding universities. This may come at a standard fee. An alternative to all of the above would be to not take an action regarding the legal issue.

Analysis of the need for reform

First of all, it is recommended the civil  legal aid means test should be reviewed and regularly updated to show current levels of inflation and changes in cost of living. Secondly, a primary goal should be to make legal aid more available and easily accessible to younger people and so as a result the government should modernise exceptional case funding guidance. Thirdly, advertisement in relation to legal aid should be increased and be carried out more effectively in order to make people more aware as to what kind of legal aid they can receive. Also, the government should carefully assess the use of mediation and consider what other action should be taken if take-up does not increase in correlation with the expectations.

The recommended reforms may potentially prove advantageous . Firstly, people with incomes that are significantly low will be able to access legal assistance and more important, justice, through the review of the civil aid means test. Secondly, if the exceptional case funding applications are simplified and easier to comprehend, it would lead to a rise in applications  which would be beneficial. This is because chance of achieving justice would increase as a result of this money being spent on improving legal representation. Thirdly, young people would feel safe and protected as they know legal aid is easily available for them. Finally, usage of the gateway and mediation is low due to not many individuals being aware of it. Therefore, providing the public with correct and adequate information will increase the usage. Opposing the recommended reforms, they may prove to have potential disadvantages. Firstly, inflation changes over time and it may be difficult to examine the levels of change. Also, a rise in number of applications received means the time of processing increases and it can be very time-consuming causing potential delays. 

The effectiveness of practical initiatives also needs to be considered. There are many things McKenzie friends are unable to do. They cannot speak in court, meaning hey cannot talk to the judge or ask the witness any questions, they cannot manage cases outside the case. as a result, you may have to get professional help, and finally they cannot act as an agent. If McKenzie friends do wish to speak, they may do so after obtaining permission from the judge. However, this is very rare. (this is referred to as right of audience). Furthermore, they will not provide expert consultation which you would expect from a trained solicitor. McKenzie friends lack training.[9] Many people are forced to undergo this option as they cannot afford profession help. A downside of advice centres is that although you have expert consultation, you must present this the court room on your own as you are not provided with a free lawyer from the centre. The final initiative is the Public Defender Service. Although this may assist many individuals with their legal issues, it is also costly.

Conclusion

To conclude, people that are unable to pay for professional help may turn to practical initiatives for help. This may hinder chances of success as lacking expert knowledge may cause damage to their case. This is because practical initiatives are not the most effective way of dealing with legal disputes. Applying these reforms would make it easier for litigants to gain access to justice and avoid them using resources that’s are not very reliable and should not be depended on. As a result, the above reforms should be implemented as they may prove beneficial.

Bibliography

Reports:

  • the impact of changes to legal aid under Part 1 of the LASPO act
  • Justice Select Committee, 2015
  • EHRC Report on the Impact of LASPO on Access to Justice (September 2018)
  • Ministry of Justice, Family Mediation Taskforce, Report to the Family Mediation Taskforce, July 2014

Statutes:

  • Legal Aid, Sentencing and Punishment of Offenders Act 2012

[1] Equality Impact Assessment, Legal Aid Sentencing and Punishment of Offenders Bill paragraph (15)

[2] Legal Aid, Sentencing and Punishment of Offenders Act 2012 s10(3)

[3] Justice Select Committee, 2015: 21

[4] EHRC Report on the Impact of LASPO on Access to Justice (September 2018)

[5] Amnesty International Cuts that hurt: the impact of legal aid cuts in England on access to justice. (2016) <www.amnesty.org.uk/files/aiuk_legal_aid_report.pdf> accessed 26 February 2019

[6] Official Report, 7/7/11; col. 343 – Publications- parliament  

[7] National Audit Office, Implementing reforms to civil legal aid HC 784

[8] Ministry of Justice, Family Mediation Taskforce, Report to the Family Mediation Taskforce, July 2014

[9] Impact of changes to legal aid under Part 1 of LASPO paragraph 127

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