Access to justice policy is in need of some innovative thinking; the Bach Commission’s recommendations provide it
While I’d hate to come across as someone who holds a grudge, I bitterly recall Tony Blair saying in his speech to the Labour party conference in 2003 that he was going to end ‘the legal aid gravy train’. It was a deeply damaging remark: as well as being insulting to legal aid practitioners, such rhetoric contributed to the perception that legal aid was a problem to be solved rather than an essential part of the justice system that needed (and still needs) political support. Last month, atonement for Labour’s past sins against the legal aid scheme came in the form of a report published by think tank the Fabian Society, which has close ties to the party.
The right to justice
has been nearly two years in gestation. It is the work of the Bach Commission on Access to Justice, led by the former legal aid minister, Lord Willy Bach.1LAG was invited to sit on the commission, which has non-Labour party representatives, but we believe it would not have been compatible with our charitable status and role as independent commentator on access to justice.
It calls for a complete overhaul of the legal aid system, bringing back into scope areas of law cut by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and suggests changes to the means test to widen access to justice (see page 4 of this issue).
The commission’s flagship policy idea is a new Right to Justice Act to protect access to justice and to establish a Justice Commission to ‘monitor and enforce the right’ (page 19). Also included is a proposal to correct the mistake Labour made while in government, which put in train the process that led to the administration of legal aid being subsumed into the Ministry of Justice (MoJ).
At the tail end of Gordon Brown’s government, relations between the Legal Services Commission (LSC), which then administered legal aid, and the MoJ had deteriorated markedly. At the root of the problem were disagreements over high-profile cases including the Gurkhas’ fight for immigration status after serving in the British army. A number of senior figures at the LSC believed that government ministers had overstepped the mark by attempting to interfere in decisions to grant legal aid. For their part, the politicians took exception to the LSC having a role in influencing policy decisions on legal aid.2Steve Hynes, Austerity Justice, LAG, 2012, pages 69–73.
Jack Straw, who was then justice secretary and lord chancellor, decided to set up a review of the governance of legal aid under the former senior civil servant, Sir Ian Magee. It was clear at the time that the review was established with the primary aim of providing justification for taking direct control of the administration of legal aid.
The Bach report stresses that it is important for the administration of legal aid to be a ‘transparent and independent process which is open to proper scrutiny’.
It came as no surprise, then, that in his final report, published in March 2010, Magee recommended the abolition of the LSC and the establishment of an executive agency within the MoJ to administer legal aid. At the time, Lord Bach said this was necessary ‘to improve legal aid by strengthening governance and establishing a more rigorous approach’.3Afua Hirsch, ‘Ministers axe Legal Services Commission to wrest back control of legal aid budget’, Guardian, 3 March 2010.
After Labour lost the general election in May 2010, the Conservative-led coalition decided to implement the Magee recommendations in LASPO.
The Bach report stresses that it is important for the administration of legal aid to be a ‘transparent and independent process which is open to proper scrutiny’, going on to say that the ‘creation of the [Legal Aid Agency (LAA)] with its closer relationship to government resulted in a blurring of boundaries between Whitehall and the administration of the legal aid scheme’ (page 35). It argues that the legal aid scheme should be returned to a body at ‘arm’s length’ from government and that all appeals against decisions to refuse legal aid should be ‘heard by an organisation which is wholly independent of government’ (page 35), but the detail of the actual recommendation falls short of this.
The LSC was a non-departmental public body (NDPB). NDPBs enjoy greater independence from government than what the Bach Commission is now proposing. It suggests that the new body should run along similar lines to HM Courts and Tribunals Service (HMCTS), which is an executive agency. What the Bach proposal amounts to is a new board for the executive agency with an independent chair and three judicial appointments to counterbalance the senior executives who currently outnumber the non-executives on the LAA board. It’s a fudge that falls short of the stated aim. It would make more sense (and, we’d suggest, be considerably cheaper) to create a new NDPB to both administer legal aid and have oversight of protecting the right to justice.
Putting aside the concern over the proposed governance arrangements for the legal aid scheme, the Bach Commission’s recommendations represent the sort of innovative thinking that access to justice policy needs. Assuming recommendations are adopted by the party, the difficult bit is yet to come for Labour: getting back into government to implement them.