Y3610024

York Law School

The University of York

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Examination Number: Y3610024

Module & Assessment: UG Public Law 2 Coursework 2017

Assessment Deadline: 24/04/2017, 3pm

Word Count: 2000/2000

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DRAFT SUBMISSION TO THE FORTHCOMING POST-
LEGISLATIVE REVIEW OF THE LEGAL AID, SENTENCING, AND
PUNISHMENT OF OFFENDERS ACT 2012 (LASPO)

1. Introduction

1.1The dizzying1 cuts caused by the act of vandalism2 that is the Legal
Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO) 3 has
created an uneven landscape of legal assistance in England and
Wales today.4

1.2The Governments preference for cost cutting over the provision of

appropriate and available access to justice for all citizens 5 has had a
particularly serious impact on vulnerable people, and the essential
instrument for a system of fair justice is quickly falling flat as the
restrictive and poorly-planned Act decimates Legal Aid, particularly for
vulnerable people in England and Wales. 6

1.3There is, however, some hope in that 89% of people surveyed by The
Guardian support pushing provision of Legal Aid to disadvantaged
groups.7 It is wished that this hope can be made a reality following this
upcoming legislative review, and that the playing field will level out,
giving vulnerable people a fair chance to receive Legal Aid.

1 S Shackle, How Legal Aid cuts are harming the voiceless and most vulnerable
(The New Statesman, 13th January, 2014) accessible at
http://www.newstatesman.com/politics/2014/01/how-legal-aid-cuts-are-harming-
voiceless-and-most-vulnerable - Accessed April 15th, 2017
2 C Baksi, Civil Legal Aid: Access Denied (The Law gazette, 7th April, 2014)
Accessible at https://www.lawgazette.co.uk/law/civil-legal-aid-access-
denied/5040722.article - Accessed April 16th, 2017
3 Legal Aid, Sentencing, and Punishment of Offenders Act 2012
4 Cuts That Hurt: The Impact of Legal Aid cuts in England on Access to Justice
(Amnesty International UK, October 2016) 3
5 Legal Aid, Sentencing, and Punishment of Offenders Act 2012: One Year On
Final Report (Bar Council, September 2014) 11
6 supra note 4 at 4, 10
7 O Bowcott, Access to justice a greater concern than free healthcare poll (The
Guardian, 13th April 2015) Available at
https://www.theguardian.com/law/2015/apr/13/justice-concern-free-healthcare-
yougov-poll-legal-aid-cuts Accessed April 18th, 2017
 Y3610024

1.4Here at Voiceness, we specialise in advocating for the vulnerable

people in society those with mental health issues, disabilities,
cognitive problems and degenerating conditions such as Alzheimers.
We are committed to serving people in this group and ensuring that
they have a fair and accessible level of justice, and we therefore take
great interest in the potential reform of LASPO as we see many clients
who are unable to carry out the typical tasks of moving through legal
proceedings, with the lack of assistance from the Government tipping
the balance away from their favour. We idealise a flat, single-tier
system which allows all people from all walks of life to equally apply
and be considered for Legal Aid, and that the criteria are open enough
so that provision of the service would be based upon need, rather than
the current minefield of criteria that we see today. 8

1.5Following analysis of two government objectives - of targeting Legal Aid

to those who need it most; and delivering better overall value-for-
money for the taxpayer we will make possible recommendations to
the Government which will aid the reform of Legal Aid.

1.6We welcome the comments of Sir Oliver Heald, who heralds a

forthcoming review of LASPO and says that in order to uphold a
fundamental pillar of the justice system, the Government intends to
work closely and collaboratively with other parties and provide a
robust, evidence-based analysis of the current system.9 It is hoped
that this review will precede positive reform to the Legal Aid system in
England and Wales, in line with our recommendations in Section 4.

2. Reform: Target Legal Aid to those who need it most

2.1The aim of targeting Legal Aid to those who need it most 10 is self-
explanatory. Officially, there is no definition of the group entitled those
who need it most, however it is our view that this group must include
the vulnerable in society - those with severe learning difficulties,
mental health issues, cognitive problems including sensory failure and
conditions such as dementia.

2.2In theory, the above reform should benefit people in this group, as they
are at a severe disadvantage to other people without such issues, and
consequently are the most in need.11

8 R Miller, The End of the World as we knew it? (Legal Action, April 2013) 10
9 M Fouzder, At last: MoJ announces timetable for LASPO review (The Law
Gazette, 18th January 2017) Available at https://www.lawgazette.co.uk/law/at-last-
moj-announces-timetable-for-laspo-review/5059442.article - accessed April 16th,
2017
10 Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing,
and Punishment of Offenders Act 2012, Eighth Report of Session 2014-15 (House
of Commons Justice Committee, 12th March, 2015) 3
11 supra note 4
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2.3In practice, however, this has not happened. The devastating12

consequences of LASPO have proven that the Act has not been
effective in aiding the most vulnerable people in their legal situations;
shown through statistics that only 16 out of 1,315 Exceptional Case
Funding (ECF) applications were granted in the first year following the
Act.13 Numbers showing only 1,200 applications for ECF in 2015, where
the Government was expecting between 5,000 and 7,000 applications
per year, prove the extent to which this scheme is failing. 14

2.4The statistics above prove two points: First, not enough ECF
applications are being granted; and second, that the Government is not
doing enough to ensure that society is aware of the services available
to them.

2.5The fact that LASPO has harmed access to justice15 for some
members of society has affected vulnerable people detrimentally and
disproportionately. The system that has emerged makes even harder
the task of accessing justice for someone who is impaired and unable
to understand various situations. This further limits vulnerable peoples
access to vindication of their Article 6 rights 16 and thus undermines the
rule of law. The group of people in most need cannot, except with help,
understand legal situations and proceedings properly, putting them at
a disadvantage to those who are unimpaired. It is this disadvantage
that LASPO aims to alleviate. However, presently the Act is seemingly
widening the gap into a two-tier17 system of those who can, and
those who cannot afford legal assistance.

2.6The two-pronged fork resulting from the poorly organised Act is the
denial of effective access to justice for members of society a black
mark on the Governments Human Rights record 18; and the further
marginalisation of those on the fringe of society. It is clear that cost
cutting in the wrong areas and without adequate prior research 19
causes inherent problems, including the inadvertent failure of an
objective of the reforms set out by LASPO.

2.7The objective in question is that of avoiding unnecessary and

adversarial litigation. If Legal Aid were targeted to those most in need,

12 supra note 5 at 41
13 supra note 4 at 24; see also Legal Aid Statistics in England and Wales (Legal
Aid Agency, 2013-14 Ministry of Justice Statistics Bulletin, 24th June, 2014)
14 Implementing Reforms to Civil Legal Aid (National Audit Office, 20th November
2014) 7
15 supra note 10
16 Article 6, European Convention on Human Rights 1950; see also Article 6,
Human Rights Act 1998
17 supra note 4 at 36
18 The UKs Compliance with the United Nations Convention on the Rights of the
Child Eighth Report of the Session 2014-15 (House of Lords and House of
Commons Joint Committee on Human Rights, 18th March 2015) 35
19 Proposals for the Reform of Legal Aid in England and Wales Response of Bar
Council of England and Wales to the Consultation Paper CP12/1 (Bar Council,
2011) 25
 Y3610024

vulnerable people would not need to act as litigants-in-person and

contribute to the adversarial litigation that LASPO aims to reduce. 20 It
is pertinent to note that litigation has become paradoxically more
adversarial21 as a result of LASPO due to the lack of legal aid
provision; and the requirement for individuals to act as LIPs in court
cases is increasing thus proving a backward step for the Government
in its aim to reduce the number of adversarial court cases. 22

3. Reform: Ensure better value-for-money for the taxpayer

3.1LASPO, in the age of an unprecedented financial challenge23, was

designed to streamline the Legal Aid service, saving the Government,
and the taxpayer, money in the process both in the short- and long-
term. As Sir Oliver Heald explains, substantial reforms arose from
some very difficult decisions made as a result of the financial
situation in 2011-12.24

3.2Though the Governments initial intention may have been positive, it

failed to use appropriate foresight and forethought as to the
consequences of such drastic reforms, and the true cost of such
reforms to the taxpayer.

3.3In order to secure value-for-money for the taxpayer, a Bill must be

structurally sound before it is passed. The urgent and poorly
structured Act demonstrates the inherent failings of the Coalition
Government in 2012 to put forward a robust piece of legislation
designed to help society as a whole. 25 The alarming lack of evidence
of prior research proves how little was undertaken initially; particularly
concerning is the insufficient data surrounding disability and the
Legal Aid service.26

3.4Whilst we submit that the reform objective of making significant

savings in the cost of the scheme has been achieved, this has been at
the sacrifice of the other three objectives. 27 It is the juxtaposition of
these objectives that causes the problem: the Governments most
important objective was to save money, meanwhile societys most
20 supra note 10
21 supra note 19 at 42
22 supra note 4 at 44: Litigants-in-person have changed from doing so out of
choice to doing so out of necessity. Vulnerable people in this position are often
unable to conduct themselves properly, causing stress and strain to themselves
and the court (Evidence given to Government via Amnesty)
23 M Rogers, Sir Oliver Heald QC outlines LASPO review timetable (Solicitors
Journal, 18th January 2017) available at
https://www.solicitorsjournal.com/news/201701/sir-oliver-heald-qc-outlines-laspo-
review-timetable - accessed April 15th, 2017
24 ibid
25 supra note 4 at 4
26 supra note 19
27 supra note 10
 Y3610024

important objective(s) were the others, relative to the practicality of

receiving Legal Aid. If the Government had had more practical and
utilitarian thought, perhaps the situation we find ourselves in might not
have occurred. We see that cuts were made with insufficient regard
for the potential negative impacts such cuts could have. 28 The financial
situation at the time of decision was not ideal, however it is imperative
that when passing legislation that affects thousands, if not millions of
vulnerable citizens, the Government makes the correct decision, and
here it has not.

3.5LASPOs negative impacts have led to calls for the Ministry of Justice to
identify the wider costs of LASPO as part of the full evaluation of the
reforms due in 2018.29 The 2018 review comes at a sizeable cost to the
taxpayer, alongside the problems caused by non-recipients of Legal Aid
having to use other public services such as the NHS as a result of the
lack of assistance they have been afforded. Whilst it is apparent that
the Government saved money in the short term, thus achieving one of
their objectives, it is also apparent that in the long term, the taxpayer
will find themselves paying for further reviews, public services, and
various additional public costs accrued directly as a result of LASPO. 30

3.6In order to achieve better value-for-money for the taxpayer considering

the tightening public purse, LASPO should not have been initially
rushed. If LASPO had been systematically implemented with a great
deal of research and forward planning, there would be less financial
issues with the scheme today certainly not involving cries for an
overhaul six years after its inception, at a greater cost to the taxpayer.

4. Recommendations

4.1Following our analysis of the reforms to the Legal Aid structure through
LASPO, we wish to make recommendations to the Ministry of Justice
which will, in our view, benefit society as a whole from the
Government, to legal professionals, recipients of Legal Aid; and
taxpayers.

4.2Firstly, in line with Amnesty International and the House of Commons

Committee for Public Accounts, we recommend that the MoJ undertake
a thorough review of the current situation, reflecting upon the previous
implementation of LASPO. Such a review will allow the Ministry to
systematically scrutinise, understand, and modify the Legal Aid
structure in order to further advance the achievement of its prior
objectives. A review will also allow the Ministry to evaluate the impact
of LASPO on vulnerable citizens, and the taxpayer, before facilitating
reform based on its findings.

28 supra note 4
29 Implementing Reforms to Legal Aid: Thirty-sixth report of Session 2014-15
(House of Commons Committee of Public Accounts, 19th January, 2015) 7
30 supra note 14
 Y3610024

4.3Following such a review, we recommend that the Ministry spends

considerable time researching and re-planning the structure of the
scheme, building upon the positive steps already taken in February
2017 regarding domestic violence.31

4.4Secondly, we suggest that the Government adopts appropriate

measures to alleviate future unnecessary cost by ensuring that Legal
Aid is offered to those in society who require it most. Value for money
for the taxpayer will become apparent once these recipients cease to
use public services as a means to undertake their legal battles. We
uphold the value of spending money in order to save money. Whilst it is
admirable that the Government has managed to save millions of
pounds by reforming Legal Aid, we recommend that spending money
on a structurally sound scheme today will reduce the necessity to
spend on Legal Aid unnecessarily tomorrow. This would be beneficial
for both the Government and the taxpayer, as both will see a positive
return on their outgoings.

4.5Regarding vulnerable people and the front-line aspect of Legal Aid, we

advise, following Susskind and Amnesty Internationals
recommendations, that the Ministry ensures better provision of
education to society, in order that the public knows exactly what they
can receive in the form of legal assistance from the Government. 32

4.6Practically, following the view of the Bar Council, we support the

suggestion to widen the ECF test so that ECF is more attainable to
more people in society.33 Particularly, we endorse amending ECF to
include cases of overwhelming importance to the client to ensure
that the needs of vulnerable people requiring Legal Aid are met. 34

4.7Finally, and most significantly, we urge the Government to ensure that

access to Legal Aid is based upon need and enables all people to
enforce their right of effective access to justice. Achieving this
objective would secure assistance for those who require it, and would
allow an open, level playing field for all people to seek help. This would
allow vulnerable people the opportunity to receive the same level of
aid as non-vulnerable people without the difficulty of facing an unfair
system. An open, fair, and accessible system of Legal Aid based on
need would eliminate the current two-tier system we see today, and
would benefit all members of society in the advancement of the
enforcement of their rights and the appropriate provision of Legal Aid.

31 O Bowcott, Legal Aid shakeup hands lifeline to domestic violence victims (The
Guardian, 23rd February, 2017) Available at
https://www.theguardian.com/law/2017/feb/23/legal-aid-domestic-violence-law-
courts - Accessed April 14th, 2017
32 supra note 4 at 4; see also R Susskind: Verbal evidence The Crisis in the
Justice System in England and Wales Interim Report (Bach Commission/Fabian
Society, November 2016) 20
33 supra note 10
34 Legal Services Commission, Funding Code Chapter 27 (2011), 3C-635
 Y3610024

Bibliography

Legislation

European Convention on Human Rights [1950]

Human Rights Act [1998]

 Y3610024

Legal Aid, Sentencing, and Punishment of Offenders Act [2012]

Official Government Publications

Impact of changes to civil legal aid under Part 1 of the Legal Aid,
Sentencing, and Punishment of Offenders Act 2012, Eighth Report of
Session 2014-15 (House of Commons Justice Committee, 12 th March, 2015)

Implementing Reforms to Civil Legal Aid (National Audit Office, 20th

November 2014)

Implementing Reforms to Legal Aid: Thirty-sixth report of Session 2014-15

(House of Commons Committee of Public Accounts, 19th January, 2015)

Legal Aid Statistics in England and Wales (Legal Aid Agency, 2013-14
Ministry of Justice Statistics Bulletin, 24th June, 2014)

Legal Services Commission, Funding Code Chapter 27 (2011), 3C-635

The UKs Compliance with the United Nations Convention on the Rights of
the Child Eighth Report of the Session 2014-15 (House of Lords and
House of Commons Joint Committee on Human Rights, 18 th March 2015)

Non-Governmental Publications and Reports

Cuts That Hurt: The Impact of Legal Aid cuts in England on Access to
Justice (Amnesty International UK, October 2016)

Legal Aid, Sentencing, and Punishment of Offenders Act 2012: One Year
On Final Report (Bar Council, September 2014)

Proposals for the Reform of Legal Aid in England and Wales Response of
Bar Council of England and Wales to the Consultation Paper CP12/1 (Bar
Council, 2011)

Susskind R, Verbal evidence The Crisis in the Justice System in England

and Wales Interim Report (Bach Commission/Fabian Society, November
2016)

Articles; Websites; Magazines

Baksi C, Civil Legal Aid: Access Denied (The Law gazette, 7th April, 2014)
Accessible at https://www.lawgazette.co.uk/law/civil-legal-aid-access-
denied/5040722.article - Accessed April 16th, 2017
 Y3610024

Bowcott O, Access to justice a greater concern than free healthcare poll

(The Guardian, 13th April 2015) Available at
https://www.theguardian.com/law/2015/apr/13/justice-concern-free-
healthcare-yougov-poll-legal-aid-cuts Accessed April 18th, 2017

Bowcott O, Legal Aid shakeup hands lifeline to domestic violence victims

(The Guardian, 23rd February, 2017) Available at
https://www.theguardian.com/law/2017/feb/23/legal-aid-domestic-violence-
law-courts - Accessed April 14th, 2017

Fouzder M, At last: MoJ announces timetable for LASPO review (The Law
Gazette, 18th January 2017) Available at
https://www.lawgazette.co.uk/law/at-last-moj-announces-timetable-for-
laspo-review/5059442.article - accessed April 16th, 2017

Miller R, The End of the World as we knew it? (Legal Action, April 2013) 10-
11

Rogers M, Sir Oliver Heald QC outlines LASPO review timetable (Solicitors

Journal, 18th January 2017) available at
https://www.solicitorsjournal.com/news/201701/sir-oliver-heald-qc-outlines-
laspo-review-timetable - accessed April 15th, 2017

Shackle S, How Legal Aid cuts are harming the voiceless and most
vulnerable (The New Statesman, 13th January, 2014) accessible at
http://www.newstatesman.com/politics/2014/01/how-legal-aid-cuts-are-
harming-voiceless-and-most-vulnerable - Accessed April 15th, 2017