“If you put your mind to it, you can accomplish anything.” – Marty McFly
I’ve written here often about the abolition of legal aid for most private law family matters back in 2013, under the dreaded Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). That, of course, was a crucial moment in the demise of legal aid, but in reality the system that had once served so many so well had been under attack from successive governments for at least the previous two decades. The attacks came from both directions: on one hand changes to financial eligibility limits meant that fewer people were able to get legal aid, and on the other hand stagnant rates of pay and increasing bureaucracy discouraged more and more law firms from offering a legal aid service.
It is therefore quite wrong to blame the last government entirely for the present situation regarding legal aid, and the fact that a Labour Party-backed report makes recommendations that aim to turn back the legal aid clock does not exonerate the Labour government. I say this not to do-down the Labour Party, but just to be even-handed given its support for the publication.
The report is, as my feeble pun in the title to this post suggests, the final look at access to justice by the Bach Commission, which was led by Labour peer and former Justice Minister Lord Willy Bach. It is entitled The Right to Justice.
The central recommendation is that there should be a new Right to Justice Act which would, amongst other things, “codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford”. The most significant recommendations are, however, to widen the scope of legal aid, bringing it back to areas of law that were removed from eligibility back in 2013. From a family law point of view this would mean:
1/ Restoring legal aid for early legal help for family matters.
2/ Bringing all matters concerning legal support for children back into the scope of civil legal aid.
3/ Bringing family law cases with the following characteristics back into the scope of civil legal aid, with respect to representation in court:
a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute);
b) cases involving an application to remove a child from the jurisdiction;
c) cases where there is local authority involvement in private proceedings concerning children;
d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it;
e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute; and
f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
Responding to the report, Justice Minister Dominic Raab played the part of bully Biff Tannen in Back To The Future. He said: “We spent £1.6bn in legal aid last year, a quarter of the Ministry of Justice’s budget, to maintain access to justice. We will continue to focus legal aid on those who most need help, recognising the cost of this support is met by the taxpayer, even as Labour produce yet more unfunded proposals.” So not exactly a glowing endorsement there…
For myself, I would love to see legal aid restored for the purposes mentioned above. The matters referred to in paragraph 3 above would mean that a large number of cases would come back into the scope of legal aid, repairing a great deal of the damage inflicted by LASPO.
But will any of this happen? In a word, no. Obviously, as Dominic Raab indicated, the government is under no obligation to accept the recommendations of the report, and even if it was, the money required to implement the recommendations is simply not there. Without a DeLorean and a mad professor, there will be no return to the good old days of legal aid, even in the limited form envisaged by the Bach Commission.
I’m sorry, but it’s just not going to happen. The whole thing is pie in the sky, a wasted effort. I don’t want be pessimistic, and I wish I was wrong (I’ll be the first to cheer if I am), but litigants who can’t afford a lawyer are on their own now, and that’s how it’s going to be. Like it or not, we have a two-tier legal system, one tier for the rich and one tier for the poor. The whole idea of equal justice for all (or, as the Bach Commission puts it, the right to justice) has been consigned to history.
In short, Marty McFly was sadly wrong: it doesn’t matter how much you put your mind to it, you can’t accomplish the impossible.
The full report can be read here.
Postscript: After I came up with my hugely witty idea for the title and theme for this post I, unsurprisingly, found that others had also had the same, or similar, ideas. Just goes to show that bad punning is universal. Apologies for the lack of originality!