LASPO has created an unfair and inefficient justice system – Bar Council

Posted On: 
25th October 2018

A new report into the LASPO Act reaches a bleak verdict, showing that it has failed to meet its aims and has created an unfair and inefficient justice system, says the Bar Council.

The Ministry and the Government must not "gloss over" what barristers and other legal professionals, the judiciary and the public are seeing happening in the courts, says Andrew Walker QC, Chair of the Bar.

The Bar Council, which represents barristers in England & Wales, has said that five years after the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force, it has done the opposite of what the Government set out to achieve. 

Part 1 of LASPO and its subordinate legislation have produced a regime which impedes the public’s access to justice, jeopardises the efficient operation of the justice system, and damages the future of the publicly-funded legal professions.

In responding to calls from the Ministry of Justice for evidence ahead of its review of LASPO, the Bar Council released research which shows a worrying picture on the front line of the justice system five years after LASPO came into force.

The Bar Council has surveyed and interviewed barristers on their experiences from the front-line of the impact of LASPO.

The research found that more than 91 per cent of respondents reported that the number of individuals struggling to get access to legal advice and representation had increased 'significantly'.

The problems are also reflected by the fact that almost 25 per cent of respondents have reportedly stopped doing legal aid work and 48 per cent of barristers surveyed do less legal aid work than before.

The means test for legal aid is currently set at a level that requires many people on low incomes to make contributions to legal costs that they could not afford while maintaining a socially acceptable standard of living. Consequently, the report concludes, people on incomes up to 30% below the minimum income standard are still deemed ineligible for legal aid by the means test.

Before LASPO was introduced, the Bar Council warned that the reduction in legal aid would result in an increase in litigants in person which would in turn increase court costs as a result of cases taking longer. This has been proven to be the case by the research, where 91 per cent of respondents reported a significant increase in members of the public attempting to represent themselves in court in family cases; and 77 per cent of respondents reported a significant increase in civil cases.

Andrew Walker QC, Chair of the Bar, said the survey results made it clear that "LASPO has not just failed: it has caused untold damage to our justice system and to access to justice."

He stated that: "Whilst savings have been made to the Ministry of Justice’s budget spreadsheets, the Government is still unable to show that those savings have not been diminished or extinguished, or even outweighed, by knock-on costs to other government departments, local authorities, the NHS and other publicly funded organisations."

According to Walker, the Act has failed its aims, namely to ensure legal aid is targeted at those who need it and to discourage unnecessary or adversarial litigation.

"If anything, LASPO has had the opposite effect, and has denied access to the justice system for individuals and families with genuine claims, just when they need it the most," said Walker.

In its submission to the LASPO Review, the Bar Council questioned whether the Ministry of Justice was evaluating the true impact of the Act effectively.

The Bar Council said it had grave concerns over whether the Ministry had gathered the necessary evidence about the direct impact of LASPO on all aspects of the justice system; and whether the department had commissioned meaningful research about the consequential costs LASPO has caused to other government departments.

Walker stated that the Ministry and the Government must not "gloss over" what barristers and other legal professionals, the judiciary and the public are seeing happening in the courts. 

He said that the fact there are significant delays in the family and civil courts is a "red flag."

“For those at the front-line, the results are clear: the true costs of LASPO, and the harm it has caused, are far greater than the Government has admitted. 

“We need a significant change of direction to rectify five years of failure,” said Walker.

In its response, the Bar Council has also called for the following, as steps that need to be taken urgently and as a priority:

  • Crime: reverse the “innocence tax” upon those acquitted of criminal offences who are unable fully to recover the reasonable costs of a privately funded defence;
  • Family: reintroduce legal aid in a range of family law proceedings, including for respondents facing allegations of domestic abuse and for private law children proceedings;
  • Civil: reintroduce a legal help scheme for welfare benefit cases;
  • Coroner inquests: relax the criteria for exceptional case funding where the death occurred in the care of the state and the state has agreed to provide separate representation for one or more interested persons; and
  • Means testing: introduce a simplified and more generous calculation of disposable income and capital so that the eligibility threshold, and contribution requirements, are no longer an unaffordable barrier to justice.