Appointing a 'chief inspector of the justice system to hold government to account’ is among the suggestions of a high-profile commission to review access to justice set up by former justice minister, barrister and Labour peer Lord Bach.
The commission's interim report, published today, says that entrenched problems in the justice system cannot be solved simply by reversing legal aid cuts. Instead, the commission identifies six features that it says undermine the ability to provide justice for all.
These include Legal Aid Agency bureaucracy, high court and tribunal fees, inadequate public legal education and advice, and failings of the scheme to provide exceptional funding.
The commission says minimum standards for access to justice, which would be enshrined in law, could include legal aid for all those who need it, equality of arms and sufficient and comprehensive legal education. These could be enforced by an independent inspectorate.
The report states: 'Just as there is a chief inspector of prisons, the commission will consider whether there should be a chief inspector of the justice system to hold government to account.'
The commission will also consider a ‘polluter pays’ principle for legal actions against the government, highlighting the number of successful tribunal appeals against the Department for Work and Pensions decisions as an example.
The report states: ‘If the DWP had to pay a levy if more than (say) 10% [on rulings against the department] it might incentivise them to get decisions right first time round. This levy would raise money for legal services, which could then be hypothecated to reducing court and tribunal fees.'
Witnesses have called for further work into the possibility of a 'polluter pays' scheme, the report states, incorporating government departments beyond the DWP, 'which would shift costs to those who cause them'.
The commission was set up in January, after Lord Bach was asked by Labour party leader Jeremy Corbyn and the shadow lord chancellor, Lord Falconer, to review the legal aid system.
In a foreword to the report, Bach (pictured) said: 'When he was lord chancellor, it looked for a moment as though Michael Gove had grasped the crisis in access to justice: some of the worst excesses of government policy were reined in during his brief tenure. I hope that his replacement, Liz Truss, will be attuned to the importance of access to justice in a way that her predecessors, Chris Grayling and Kenneth Clarke, were not.’
Witness sessions for the review heard from bodies including the Law Society, Bar Council, Legal Action Group, the Low Commission, the Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association. Around 100 individuals and organisations submitted written evidence.
Law Society chief executive Catherine Dixon said Chancery Lane agreed with the commission's initial recommendation that improving access to justice requires a broader approach to policy-making. 'The right to British justice should apply to everyone who is subject to the laws of this country irrespective of background or income. This is sadly no longer the case,' she said.
In its submission to the commission earlier this year, the Society warned that civil legal aid cuts would result in increased costs to the taxpayer. 'That is because when things go wrong in people's lives they are not getting the expert legal advice they need. This can result in homelessness, family breakdown and health issues,' Dixon added.
A spokesperson for the Ministry of Justice said: 'We have a world-leading legal system and last year spent more than £1.5bn on legal aid. We must ensure legal aid is sustainable and fair - both for those who need it and the taxpayer who pays for it. That is why we have made sure support remains available to the most vulnerable and in the most serious cases.
'We have committed to carrying out a post-implementation review of the civil legal aid changes and an announcement on this will be made in due course.'
See comment piece by Lord Bach.
Raju Bhatt - co-founder, Bhatt Murphy Solicitors
Julie Bishop – director, Law Centres Network
Sir Henry Brooke – retired Lord Justice of Appeal
Joanne Cecil – criminal defence practitioner
Andrea Davies – specialist children lawyer; Law Society’s children panel member
David Gilmore, managing director of legal consultancy DG Legal
Nick Hanning – partner, Dutton Gregory
Dr Laura Janes – consultant solicitor-advocate specialising in youth justice
Andrew Keogh – barrister; head of content, CrimeLine
Nicola Mackintosh – sole principal, Mackintosh Law
Christina Rees – Labour MP for Neath; shadow justice minister
Carol Storer – director, Legal Aid Practitioners Group
Bill Waddington – director, Williamsons Solicitors; former chair of the Criminal Law Solicitors’ Association
John Cooper QC - barrister, 25 Bedford Row
James Sandbach - policy manager, Legal Action Group