Access to justice

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The LASPO Act Post-Implementation Review: did it make a difference?

CILEx evaluates the findings of the Ministry of Justice’s recent evidence-based review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

About the author: Chandni Patel is the policy and research <span class=" id="142665

Of all the acronyms often used in the legal profession today, ‘LASPO’ (for the Legal Aid, Sentencing and Punishment Offenders Act 2012) must be one of the most common, and for good reason too. No other five-letter acronym has penetrated all corners of our justice system to quite such an extent, not to mention its knock-on impacts on wider social issues.

The LASPO Act - passed as part of austerity measures to reduce public spending - flipped the legal aid landscape on its head (which, six years later, is still reeling from the impact) and reversed the approach taken by its predecessor, the Access to Justice Act 1999. Overnight, the system was transformed from one where legal aid was available unless explicitly ‘excluded’ to one where legal aid became limited to only those matters that were explicitly ‘included.’

Among unprecedented cuts, LASPO also made for more stringent eligibility criteria, replaced the Legal Services Commission with the Legal Aid Agency and provided for exceptional case funding that, in the early years at least, was rarely given.

This was the explicit intent of the legislation, which was implemented to achieve the following four aims:

• to discourage unnecessary and adversarial litigation at public expense;
• to target legal aid to those who need it most;
• to make significant savings to the cost of the scheme; and
• to deliver better overall value for money for the taxpayer.¹

The Post-Implementation Review

Despite initial commitments that a review to assess if and how these objectives had been met would be conducted three to five years after LASPO first came into force, the long overdue Post-Implementation Review (PIR) was finally published in early February this year.² However, after a series of delays and much anticipation from the legal and advice sectors, the PIR’s reception has been lukewarm, to say the least, with many unconvinced that the outcomes proposed shall be able to right the wrongs of the last few years.

The PIR took place as a series of consultative engagements from April 2018, and included evidence submissions from over 80 organisations.³ CILEx engaged with the Ministry of Justice at its consultative events to articulate apprehensions - echoed by others in the room - that the impacts of cuts to legal aid have cost more than they have saved, not just in pounds but in natural justice.

Nevertheless, the PIR did come bearing a handful of comforting prospects. The acute importance of early legal intervention and the fact that pro bono is not, and should never be treated as, a replacement for legal aid were among the singular truths voiced as the sector banded together in an unwavering message that more is needed to counteract the seismic shift in legal aid provision. In addition, the sector was able to welcome a few recommendations contained in the PIR, and its complementary Legal Support Action Plan, as the following highlights from the action plan demonstrate.

Comprehensive review of legal aid eligibility

Government Action 1: We will complete a comprehensive review of the legal aid eligibility regime by summer 2020

Amendments introduced to the financial eligibility criteria made it harder for people to access legal aid post-LASPO, which was justified on the ground of achieving LASPO’s second aim ‘to target legal aid to those who need it most’. The problem arose in that the heavy-handed approach to these new requirements made the eligibility criteria overtly stringent, whittling down the majority of applicants, so much so that even those who ‘needed legal aid most’ were arguably no longer included.

In the context of the civil justice system, problems also occurred as the thresholds for financial eligibility were frozen and, thus, unable to take account of the rise in the cost of living. As a result, the criteria were no longer fit for purpose nor accurate in determining who should be eligible for legal aid. It is hoped that this shall be addressed in the upcoming review.

In the context of the criminal justice system, CILEx further hopes that the government considers an additional test of eligibility (such as the point at which a conviction becomes spent under the Rehabilitation of Offenders Act 1974) to counteract the impacts that replacing short-term prison sentences with community sentencing is likely to have on the availability of legal aid.›

Government Action 2: We will complete a comprehensive review of the criminal legal aid fee schemes and structures – by summer 2020

Impacts on criminal legal aid fee schemes have been widely criticised since the passing of LASPO (including by way of a judicial review, R (The Law Society) v Lord Chancellor [2018] EWHC 2094 Admin), 3 August 2018). The changes introduced threaten the sustainability of the criminal justice system and undervalue those that keep the system running. A promise to conduct a full review of these fee schemes and structures was, therefore, pledged by the government in late 2018, and the terms of this review have since been disclosed.›

The review intends to follow legal aid throughout the life cycle of a criminal case, including all levels of the court structure from the magistrates’ court and the youth court to the Crown Court.

CILEx will be contributing to the work of the Defence Practitioner Advisory Panel, which has been set up by relevant government departments to advise on the review and wider legal aid-related considerations, such as technological developments, HM Courts and Tribunals reforms and changes to justice more broadly.

CILEx welcomes members working in criminal practices to share any opinions or anecdotal information that you might have on these matters - and the effect of the current fees regimes, in particular - so that we may bridge the gap between policy and practice and bring your views to the table. 

Government Action 3: We will work with legal practitioners to consider whether the process for applying for. Exceptional Case Funding can be simpliÿed, and ensure that the forms and guidance are as accessible as possible … We will consider whether it is necessary to introduce a new emergency procedure for urgent matters to access Exceptional Case Funding – by the end of 2019

To account for the huge reductions in legal aid spending and tightened measures around eligibility requirements, LASPO came equipped with a safeguard in the form of the exceptional case funding (ECF) scheme for cases where denial of legal aid risked breaching an individual’s human rights. However, data around the take-up of this scheme has produced worrying results suggesting that there are prohibitive barriers which are not only symptomatic of problems in the ECF but of LASPO’s overall impact on the public’s most basic and inherent need to access justice.›

While further information on how this work shall be undertaken is still limited, CILEx will monitor progress closely, including calling for the thresholds to be lowered and funding reintroduced for completing the application forms. In addition, we hope to see the proposal to introduce a new emergency procedure for urgent matters open to public consultation.

Government Action 4: We will remove the mandatory requirements from the telephone gateway for debt, discrimination and special educational needs cases which are already in scope – by spring 2020

The mandatory use of the Civil Legal Advice Gateway received much criticism for the way it restricted government-funded