A right to justice? The Bach Commission Final Report

The Bach Commission on Access to Justice was founded at the end of 2015 to develop realistic but radical proposals with cross-party appeal for re-establishing the right to justice in England and Wales as a fundamental public entitlement, equivalent to entitlement to education or healthcare. This post gives brief overview of the Commission’s recently published final report and its recommendations and notes that the report’s appendices provide a valuable resource for researchers interested in the impact of legal aid cuts.

‘It is, after all, fairly simple: unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and in the rule of law breaks down. When that happens, society breaks down.’

Lord Willy Bach

Over the past two years the Commission has gathered evidence on the impact of legal aid cuts following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The picture that has emerged is one in which ‘justice’ is inaccessible for most people: the Act removed much of civil law from the scope of legal aid, including key areas like early legal help for social welfare matters. Even for matters still in scope for legal aid, means testing puts it out of reach for people even on modest incomes. The Commission notes that the number of civil legal aid matters initiated has decreased 84 percent between 2009-10 (933,815) to 2016-17 (146,618). Furthermore, LASPO has resulted in a loss of expertise within the advice sector, and the Commission notes that there is a ‘risk that the skills of advisers and practitioners in this complex area will be completely lost’. The Commission suggests the situation is not only an issue of lack of access to justice for individuals but a threat to the rule of law.

An interim report, ‘The Crisis in the Justice System in England and Wales’ was published in November 2016. The Commission notes: ‘Despite significant rulings in the courts since then, most notably the July 2017 Supreme Court ruling declaring employment tribunal fees unlawful, the situation remains largely unchanged. More and more people are unable to exercise their basic right to justice.’ In September 2017 the Commission published its final report, ‘The Right to Justice’, in which it proposes a statutory ‘right to justice’ and a new Commission to monitor and enforce the legislation.

‘The right to justice is an ancient right enshrined in Magna Carta. It has been further developed by common law over the centuries, and it is also a fundamental human right guaranteed to us by the Human Rights Act. Yet current provision is failing to meaningfully secure our right to justice.’

Right to Justice Act

Describing a justice system in crisis, the Commission has concluded that the far-reaching effects of cuts in legal aid, which extend from ‘insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems’, create a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. The aims of the Act would be to:

• 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 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

Enforcing the right to justice should not be the responsibility of the Ministry of Justice alone. Each government department should consider how the quality of its decision-making impacts on the right to justice and should provide information in their departmental plans on how they assist people with their right to justice.

Recommended reforms related to administrative justice

Among the reforms needed are changes to legal aid eligibility and scope, an independent body to administer legal aid at arm’s length from government, and more public legal education. A particularly bold recommendation is that everyone who receives a means-tested benefit should automatically be eligible for legal aid. The report notes that the roll-out of Universal Credit provides an opportunity to introduce this reform.

Restoring early legal help (support prior to representation in courts and tribunals) to pre-LASPO levels for all social welfare law (which includes debt, employment, welfare benefits, immigration and housing) would ‘encourage early dispute resolution and prevent further distress and cost downstream’. Other recommendations related to administrative justice include:

• All matters concerning legal support for children should be brought back into the scope of civil legal aid.
• Judicial review cases have formally remained within the scope of legal aid, but new regulations, which have dissuaded providers from issuing proceedings, should be repealed.
• Where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased.
• The mandatory requirement for mortgage debt, special educational needs and discrimination law to be accessed via the civil legal aid gateway telephone service should be removed, and face-to-face help should be available for those who need it.
• The government should support the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice.
• Any government action suspected of breaching people’s right to justice could be challenged by judicial review.

Costs

Acknowledging there is a cost in the reforms put forward, the Commission notes that the costs created by legal aid cuts were not sufficiently anticipated:

‘LASPO may well have cost the exchequer more than it has saved. If a person is unable to obtain early legal advice to challenge a benefits decision, for example, their problems can often spiral and place a significant burden on other parts of the public sector, like the health service. The National Audit Office has criticised the Ministry of Justice for not considering the downstream implications of LASPO, arguing that it “did not have a good understanding of how people would respond to the changes or what costs or benefits might arise”.’

The Commission also notes that ‘the government has saved more than twice as much as it expected to, when it first introduced LASPO’. The annual estimated cost of the proposed Commission (£400 million) is less than half the savings made by the government under LASPO.

Related to costs, the Commission proposes a ‘polluter pays’ principle for appeals in which government decisions are overturned: ‘cross-charging the costs of justice that are associated with decisions made by arms of the state’.

Rich evidence resource

The oral and written evidence supplied to the Commission, and an analysis of this evidence produced by Sir Henry Brooke, are available in appendices to the final report, as is a history of legal aid from 1945-2010. The appendices are a rich resource for researchers exploring the facts and figures of post-LASPO life and the everyday stories of its impact.