Posts Tagged ‘Bach Commission’
Post-legislative scrutiny : LASPO 2012
The concept of the post-legislative scrutiny was introduced in 2008, following a report on the idea, published by the Law Commission in 2006.
Now called ‘Post Implementation Review’, the Government has decided to subject Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, 2012 (LASPO) to such a review. This is the part of LASPO which deals with legal aid.
The effect of LASPO was to make significant cuts to the provision of legal aid in England and Wales. There have been many calls – from the legal profession, from the judiciary and from those working in the advice sector, among others – for those cuts to be reversed.
The Low Commission (2014) and the Bach Commission’s Report (2017) argued that the cuts had led to legal advice deserts and were having an adverse impact on the citizens’ access to justice.
The Government has recently (March 2018) set out the terms of reference for what it calls the ‘consultation’ phase of the LASPO review and has invited the submission of evidence on the impact of the 2012 changes.
The process is currently being monitored by the Select Committee on Justice. It has recently published correspondence with the Secretary of State for Justice.
It may also be noted that criminal legal aid barristers are currently threatening strike action on the impact of changes to the rates of pay they receive for doing criminal legal aid work.
It is likely that many of the submissions to the review will argue for the restoration of cuts imposed 5 years ago.
My view is that a roll-back to the pre-LASPO position is extremely unlikely. More likely is a renewed emphasis on ways of improving the provision of front-line advice, to try to enable more people to undertake legal work for themselves. There will also be an emphasis on new processes for handling legal disputes which might be easier for people to operate themselves.
It would be nice to think that the innovative ideas of the Low Commission for a new National Strategy for Advice and Legal Support would be put in place, supported by its proposed National Advice and Legal Support Fund. But, in the absence of strong lobbying from the public in favour of these ideas, I have my doubts as to whether these will gain political traction.
For the terms of reference of the consultation, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/686576/pir-laspo-terms-of-reference.pdf
The Select Committee on Justice is at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/.
Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012
In 2008, the then Labour Government announced its support for the concept of post-legislative scrutiny of legislation. It stated that “the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the Act in question.”
The Ministry of Justice has just (October 30 2017) published a post-legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it has sent to the Justice Select Committee. While much of the document seeks to explore the extent to which Government objectives in introducing the legislation have or have not been met, it also draws together a number of important other reports which have commented more critically on the effect of LASPO. These include, for example, the reports of the Low Commission, and the Bach Commission’s report on a Right to Justice (both noted in this blog). It also refers to other reports, e.g. from the National Audit Office, and the Equality and Human Rights Commission, and reports from a number of other Parliamentary Committees. It also notes how the Government has responded to a number of legal challenges that were made to LASPO. The response of the Justice Committee is not yet known.
Whether or not the Committee pursues its own post-legislative scrutiny, it is important to note that, in the memorandum, the Government confirms that in the course of the coming months it will undertake two more analytical reviews of aspects of LASPO, relating to,
- the changes to the Legal Aid scheme, and
- the changes to rules on the funding of litigation.
This will provide an opportunity for critics of LASPO to make their arguments and might lead to further thought being given to the ideas set out in the Low and Bach Commissions’ reports.
It will also provide the opportunity to reflect on the changes resulting from Lord Justice Jackson’s review of Costs and his 2017 Supplementary Report (also noted in this blog).
The text of the memorandum is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 