Family Law

The Lord Chancellor, David Lidington, has announced a long-awaited post-legislative review of the controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

The Government has published a policy paper which serves as the post-legislative memorandum for Pts 1, 2 and 3 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It is part of the post-legislative scrutiny process, which considers how LASPO has worked in practice relative to its objectives. The memorandum outlines further information about a post-legislative review of the legal aid reforms. The Ministry of Justice aims to publish its review by summer 2018 and will call for views from ‘interested parties’.

As a result of LASPO, legal aid is no longer available for advice or representation for most cases concerning family breakdown, welfare benefit issues, clinical negligence, unfair dismissal, immigration, and housing.

In September, the Bach Commission's report into legal aid, The Right to Justice, found that LASPO cuts have gone too far, and called for an independent body to replace the Legal Aid Agency.

Post-implementation review

The post-implementation review will assess:

• the changes to legal aid, especially the reduced expenditure and changes to eligibility;
• the ‘merits’ test which applicants for legal aid in civil and family proceedings need to satisfy;
• the success of the Exceptional Case Funding Scheme;
• the establishment of the Legal Aid Agency to replace the Legal Services Commission (LSC);
• the creation of the mandatory gateway for telephone advice in debt, discrimination and special educational needs matters;
• changes to judicial review permissions;
• changes to legal aid entitlement for prison law proceedings.

Under the pre-LASPO contributory rates, clients would not be required to contribute more than 20% of their disposable income per month to the cost of their legal representation. Post-LASPO, this figure rose to 30%, due to the increased rates. The post-implementation review will also explore what effect this policy is having.

Law Society President Joe Egan welcomed the news of the long-awaited review but stressed that it must be comprehensive. He said:

‘This Act meant hundreds of thousands of people eligible for legal aid on 31 March 2013 became ineligible the very next day. Even those in England and Wales whom parliament vowed at the time of LASPO should be able to access legal help are unable to get the advice and representation they need.’

A Law Society report Access denied? LASPO four years on was published in June 2017. Egan says the report suggested legal aid cuts have actually increased pressure on wider public services, growing numbers of people representing themselves in court, and escalating legal problems because of the removal of legal aid for early advice.

Chair of the Bar Council, Andrew Langdon QC, said:

‘This long-awaited review offers the Government an important opportunity to take stock of the damage caused by the unprecedented cuts to legal aid that LASPO introduced and to reassess the value of justice to citizens. This review comes not a moment too soon; society has become increasingly aware of the importance of access to justice in underpinning the rule of law and our democratic constitutional arrangements.

The announcement follows several years of sustained pressure from the Bar Council and many other organisations who work to promote the public interest of our citizens.

The Bar Council looks forward to engaging constructively with this review and will continue to press for a wide scope which includes the impact of LASPO on society and considers the combined and interactive effect of legal aid cuts with welfare and other civil justice reforms.’