As the Law Council of Australia reviews access to justice via its Justice Project, the UK’s recently released Bach Commission report recommends drastic action to restore a failing legal aid system. JULIE MCCROSSIN reports from London.
It may come as a surprise to many in the legal profession that Australia’s legal aid system is in pretty great shape. Compared to the United Kingdom, that is. Julie Bishop, an Australian Legal Aid veteran and director of the London-based Law Centres Network, firmly believes this – and she is uniquely placed to offer pertinent views on the state of both legal aid systems.
“The mixed system (i.e. a combination of Legal Aid staff, community legal centres, and private practitioners) developed in NSW, though underfunded, is really good,” says Bishop as she queues for a security check under the looming shadow of Big Ben.
“The system in England is not as integrated as in NSW. While there are always tensions, there is actually a solid partnership between the various parts of the legal sector – community legal centres, private firms, Aboriginal legal centres and Legal Aid. This is replicated in most states across Australia.
“Australians need to recognise this, foster it, and build on it. They need to protect it, including with some sort of legislative protection. That is the number one lesson I have learned.”
Bishop is one of 13 commissioners who recently produced The Right to Justice: the Final Report of the Bach Commission, named after its Chair, Lord Willy Bach. According to Lord Bach, a Labour peer, barrister and former Parliamentary Under-Secretary of State in the Ministry of Justice, work on the report began in 2015 after Jeremy Corbyn was elected as Labour party leader. Bach approached Corbyn with a proposal to review the UK’s legal aid system – an idea which Corbyn welcomed.
Why? Over the past six years, government cuts have seen an effective 70 per cent drop in the UK’s civil legal aid funding, largely due to the introduction of austerity measures and a push towards a policy of self-reliance. Understandably, these cuts have been a major cause of consternation within the legal profession.
Working with the Fabian Society, a think-tank dedicated to new public policy and political ideas, Lord Bach assembled a team of expert commissioners, including Bishop, to examine the effects of the funding cuts.
Over a period of two years, the commissioners heard and received evidence from more than 100 individuals and organisations. An interim report based on this evidence introduced the idea that there should be a statutory right to justice, and this proposal is examined in detail in the final report.
As she wanders around the iconic Westminster Palace, through the centuries-old lobby full of whispering MPs that gave us the term “lobbyist”, it is obvious that Bishop is at home in this environment. She nods a greeting to many people as she climbs the stairs to the public meeting rooms that form the beating heart of what she calls “a living, working building”.
Bishop’s job as Director of the Law Centres Network brings her to Westminster on a regular basis. Lobbying and presenting evidence to committees is a major part of her work, including advocating for funds for the many law centres crying out for financial assistance.
“There are 45 law centres in the network around England,” she explains. “We use legal skills to address the underlying causes of poverty by providing free legal assistance in areas of the law that affect poor people. So it’s housing, immigration, employment, mental health, access to education, access to social care, access to services for disabled people, the elderly, human rights, discrimination, public law and those sorts of things.”
The peak organisation Bishop leads has three key functions: to support the law centres to be sustainable, including financially; to facilitate the centres working together and sharing ideas and skills; and to identify systemic issues and be the “voice of law centres” by advocating and campaigning on issues arising from case law.
“The key challenge we face is meeting demand with reduced circumstances,” Bishop says.
The centres face the constant pressure of case work for individual clients through participation in the Duty Court Scheme, often addressing immediate issues such as evictions in the lives of vulnerable people affected by an overall reduction in government services.
It is startling to learn that England has no salaried legal officers working in legal aid. Contracts to provide legal aid are advertised, and lawyers who meet certain criteria are funded to do a certain number of matters, such as housing matters, for a set fee.
No person should be denied justice simply because they can’t afford it. We need a new Act which defends and extends the right to justice, and we need a new body tasked with implementing it.
SIR HENRY BROOKE CMG,
retired Lord Justice of Appeal
Over the past 10 years, says Bishop, there has been a significant drop in the number of lawyers willing to bid for these contracts. From the client’s point of view, despite a general advice telephone line and various websites, it can be difficult finding a lawyer who does legal aid work.
This causes problems in an era when, for example, Theresa May’s government has a so-called “hostile environment” policy aimed at making life as difficult as possible for illegal immigrants. The controversial policy is generating a lot of work for legal centres, with a wide variety of people finding themselves in precarious situations.
“What the hostile environment means is that schools, health care services, real estate agencies, landlords, banks, social security and all services have to check whether people seeking a service have the right to remain in the UK. Essentially, everyone is an outpost of the UK Border Agency,” Bishop explains.
In January this year, a cross-party Commons Home Affairs Select Committee handed down its report after a 12-month inquiry into the scale and nature of illegal immigration. It was highly critical of the many errors associated with the implementation of the hostile environment policy, including denying access to rental accommodation, revoking driver’s licences, and closing the bank accounts of people listed as illegal immigrants.
The committee Chair, former Labour Cabinet Minister Yvette Cooper, told a press conference: “We are concerned the policy is unclear and, in some instances, too open to interpretation and inadvertent error. Not only is this deeply damaging and distressing to those involved – as with letters sent to EU nationals about their right to live in the UK, they also undermine the credibility of the system. This is particularly worrying in advance of the need to register EU nationals in preparation for Brexit.”
In the face of this challenging political and economic environment, Bishop talks about a recent significant win for the Legal Centres Network. Legal centres around the country have been working on a project to contact isolated European migrant communities and offer legal services and support. Centres worked closely with local community organisations and public authorities in each region, leading to a number of significant cases, including a case challenging the government’s deportation of rough sleepers.
In mid-December 2017, the Public Interest Law Unit at Lambeth Law Centre had a successful result. The High Court ruled that the Home Office policy of detaining and deporting rough sleepers from European Economic Area countries was unlawful for allegedly abusing EU free movement rights.
Mrs Justice Lang DBE granted claims for judicial review in the cases of Gureckis, Perlinski & Cielecki v the Secretary of State for the Home Department. The Public Interest Law Unit’s media release after the case included these comments: “Experience has shown that if we stand by and allow a marginalised group to be victimised, others can expect the same treatment. Homelessness cannot humanely be dealt with by detaining and forcibly removing homeless people. This practice has been found unlawful and must immediately cease.”
The Bach Commission report was released shortly before this judgment came down in late 2017. The Commission’s core purpose was to develop realistic but radical proposals with cross-party appeal for re-establishing the right to justice as a fundamental public entitlement, equivalent to that of education or health.
The final report states: “The Commission has found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent.”
The Bach Report contains a number of recommendations, yet in media commentary and at the public briefing held at Westminster for MPs, the legal community, and many non-government organisations, there was one key message. It is summed up by Sir Henry Brooke CMG, a retired Lord Justice of Appeal and the acknowledged key author of the final report: “No person should be denied justice simply because they can’t afford it. We need a new Act which defends and extends the right to justice, and we need a new body tasked with implementing it.”
The report calls for the creation of a new, legally enforceable right to justice that would guarantee people reasonable legal assistance without incurring costs they cannot afford. According to the report, minimum standards on access to justice should be upheld through a new Right to Justice Act.
The proposed Right to Justice Act would “codify existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford, establish a set of principles that guide interpretation of this new right, and establish a new body called the Justice Commission to monitor and enforce this new right”.
In order to make the Act a reality, the report sets out an action plan for government “to widen the scope of legal aid with a focus on early legal help, reform the eligibility requirements for legal aid, replace the Legal Aid Agency with an independent body, and improve the public’s understanding of the law”.
“The critical thing is the concept that there should be enshrined in the legislative framework a principle that says, ‘If you’ve got no money, you too can have your day in court’, says Bishop. “It’s not only for the rich. Democracy depends on it.”
A sad post-script to the Bach Commission Report was the sudden death of Sir Henry Brooke on 29 January this year at the age of 81. Bishop says his role on the Bach Commission, as Vice Chair, was crucial.
“As a former Lord Justice of Appeal, he was absolutely critical in getting the Commission to work,” Bishop says. “He was the most tireless member of the committee. He attended every hearing. He pulled the evidence together and summarised and synthesised it. He brought cross-party appeal because of his gravitas.
“He believed that this concept of the Right to Justice Act was fundamental in ensuring that the rule of law was preserved and that it not be undermined.”
The Bach Commission Report Executive Summary
The commission was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement. Over the course of the nearly two years the commission has been in existence, we have heard from well over 100 individuals and organisations with special expertise in all parts of the justice system.
The commission has found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.
The commission has concluded that the problems in the justice system are so widespread and varied that there is a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. This act will:
- Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford
- Establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation
- Establish a new body called the Justice Commission to monitor and enforce this new right.
- The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice. But early government action is also required. In part two of this report we set out an action plan for government so that it can take the first steps required to make the right to justice a reality.
- Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice. This includes establishing a simpler and more generous assessment scheme for civil legal aid, ensuring all benefit recipients automatically qualify for legal aid, and making the contributions to legal aid more affordable.
- The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. The priority should be to bring early legal help back into the scope of legal aid – across a broad range of legal issues – in order to encourage early dispute resolution and prevent further distress and cost downstream. All matters concerning children should be brought back into the scope of legal aid. With respect to representation at court, some areas of family and immigration law should also be brought back into scope.
- The operation of the legal aid system needs reform. The legal aid system is creaking at the seams, and practice as a legal aid lawyer is becoming increasingly unsustainable. An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers.
- Public legal capability must be improved. At present, most people’s ability to understand a legal problem or to know where to turn for information and support is poor. We call for a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community.
When the government first introduced LASPO it estimated it would save £450m a year in today’s prices. But last year, legal aid spending was actually £950m less than in 2010. The Fabian Society estimates that the costs of the proposals in this report will initially total less than this underspend, at an estimated cost of around £400m per year.