The Bach Report

https://www.youtube.com/watch?v=Z3uMgcRUYBs

An Introductory Tour Around The Bach Report

The Bach Report (2015-2017)

"We will all lean on the law at some point in our lives. But its visibility in public life is different to that of the National Health Service or the education system. We often quite wrongly think of the legal system as only of relevance to criminals and lawyers. As such it has been hard to make the case to the public and to policy makers alike, for properly supporting it. And when spending cuts have been made, the legal system has had to shoulder a disproportionate share of the burden."

"An effective legal system in which all can access justice fairly is the cornerstone of a free society. The law is not something that lawyers and judges impose on criminals but a common inheritance to which everybody in society has an equal right. The law guarantees our rights, underlines our duties, and provides an equitable and orderly means of resolving disputes."

"A properly functioning legal system that maintains the rule of law is, along with democracy, the basis of our political settlement. While big picture political issues like the jurisdiction of the European court of justice dominate discussion, the granular, everyday workings of our justice system are less explored, but at least as important."

"The Commission heard over the course of nearly two years, striking testimony from many sources about the multiple failures of the justice system. This led the Commission to conclude that the problems are so deep-rooted, commonplace and various that piecemeal reforms alone would simply be papering over the cracks."

"We have therefore concluded that what is needed is a new Right to Justice Act which codifies and extends our right to justice. A new, independent commission should monitor and enforce this act."

The Bach Commission's final report says:

The purpose of the Right to Justice Act is to create a new legal

framework that will, over time, transform access to justice.

We believe that a single, clear, statute-based right to justice will

bring the clarity necessary to reset our legal system and

ensure that everyone can access justice.

A new independent commission should monitor and enforce this act.

[And so], we propose that a Justice Commission is established

to scrutinise and develop the right to justice

The new right to justice [will; be] designed to cover the

spectrum of legal help and advice, from public legal education

through to representation in court.

Not just 'a service for the poor'.

Fewer and fewer people are able to access legal aid, with help restricted to the very few most in need in a few areas of law. This is a significant departure from the origins of our legal aid system, which lie in the Legal Aid and Assistance Act 1949. The act understood that in order for the service to maintain high standards it could not only be a service for the poorest.

While reverting to a near-universal system may not be achievable

In the medium term, a more widely accessible system of legal aid

would ensure that many more of those currently slipping through the

gaps can access justice.

The commission studied a number of independent inspectorates and

non-departmental public bodies in considering the best form of

organisation to monitor the Right to Justice Act.

There are hundreds of regulatory bodies in the United Kingdom at present. These follow a wide range of different models and come with different powers, ranging from the purely advisory to implementation and enforcement. In all of them, there is a trade-off between total independence and the power to enforce. In considering this trade-off, the commission concluded that the first priority of the regulatory body must be to ensure that the right to justice is enforceable. As former lord chancellor Lord Falconer put it in his evidence to the commission: “What is the good, ultimately, of rights that are not enforceable?”

Enforcement.

A new, independent commission should monitor and enforce this act."

The Justice Commission should also have the power to intervene in, or assist with, any individual cases that have been brought before the court touching on the right to justice, and should be notified of any relevant applications for judicial review.

The Contributions System.

This operates in a way that is completely unaffordable for many people.

Contributions are calculated based on the Legal Aid Agency's assessment of the applicant’s disposable income and also their disposable capital, with payment required At present, some households are deemed to automatically meet the income requirements for legal aid on the basis of their receipt of specified means tested benefits. This system of automatic qualification, or ‘passporting’, reduces unnecessary duplication and bureaucracy, easing the burden on applicants for legal aid and the LAA alike. However recipients of the key in-work means tested benefits are currently excluded from these arrangements (ie housing benefit and tax credits).

Universal credit is a benefit combining all existing working-age means tested payments. The full roll-out of universal credit, which is available to people with low earnings as well as to households without work, has caused a steep increase in the number of households deemed to automatically meet the income assessment for legal aid. But the government is planning on limiting these passporting provisions only to those recipients of universal credit with zero income from employment.

The Contribution System raises very little money for the Legal Aid Agency: instead it simply deters people with good cases from pursuing justice.

The contribution system is particularly punitive with respect to capital. Applicants for legal aid, including people who lack mental capacity, are often required to make contributions from their capital which leave them with few funds: in non-family civil legal aid cases people can be asked to contribute until they are down to £3,000 of capital. The more generous capital thresholds and exemptions used for means tested benefits should be applied to ensure consistency (for universal credit the threshold is currently £6,000); and people should only have to pay a percentage of capital over these limits, rather than having to contribute 100 per cent of their savings. Surprisingly, even legal aid for obtaining domestic abuse injunctions is subject to a harsh contributions regime, even though legal aid in these cases is not supposed to be means tested. The high contributions which kick in at a very low disposable income often act as a complete bar to a person being able to access the courts to protect themselves and their children from harm.

In their written evidence to us, Rights of Women cited data from the National Centre for Domestic Violence. It showed that between October and November 2014: “One in five of the 2,026 callers to the NCDV (Domestic Abuse and Violence) helpline who wished to apply for a non-molestation order, were unable to proceed with their application because they could not afford the legal aid contributions.”

The commission recommends that the contributions system

should be adjusted to reflect our proposals for a more generous

calculation of disposable income and capital.

The Legal Aid Practitioners’ Group explained in its written evidence,

“Even if a case is covered by the legal aid scheme it can be difficult for people to produce evidence of their financial position so that work can be started on the case.”

This is especially true for those who most need urgent help. Individuals in such situations should not be penalised for circumstances which are no fault of their own.

n civil legal aid the evidence requirements are frequently

prohibitive, especially for those most in need, and lead to

people abandoning their claims.

Housing Law

The consequences of LASPO ( Legal Aid, Sentencing and Punishment of offenders Act 2012) have been stark. As the Housing Law Practitioners’ Association wrote in its statement to the commission, it has led to a: “substantial reduction in the number of housing [law] providers and the number of legal aid housing cases being undertaken. Figures produced by the LAA have shown a reduction in housing cases of over 50 per cent since LASPO came into force, in a period in which rough sleeping, statutory homelessness and evictions from rented accommodation are all on the rise.”

The costs are not only felt in the justice system; the effects

of avoidable evictions of families, homelessness and so on

are felt by individuals, local councils, and the NHS.

When family law disputes reach the courts,

people who cannot afford private legal support are either

giving up on justice altogether or are forced to become

litigants in person, representing themselves in court.

As the Consortium of Expert Witnesses in Family Courts wrote to the commission, this means that people have “no access to representation or to expert reports, so that they and their children are denied justice in serious matters concerning sexual, physical, and emotional abuse, and neglect.”

The commission therefore recommends that family law cases with the following characteristics are brought back into the scope of civil legal aid:

a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute)

b) cases involving an application to remove a child from the jurisdiction

c) cases where there is local authority involvement in private law children proceedings

d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it

e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute

f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.

The ECF scheme needs urgent review and reform,

but it is also a clear manifestation of a broken system.

The commission heard extensive evidence about the failings of the exceptional case funding scheme. It has proven practically impossible for litigants to take advantage of this supposed safety net for cases where a denial of legal aid would result in a breach of a person’s rights under either the European Convention on Human Rights or EU law. Shockingly, in its first year of operation, only 1% of non-inquest applications for ECF were granted. Indeed, the number of ECF applications themselves were worryingly low, only a fraction of those predicted by the Ministry of Justice.

In 2014 the high court found that the restrictive guidance published by the then lord chancellor on the exceptional case funding scheme was incorrect and unlawful !

The legal aid audit regime is also overly complex and

burdensome. The number of audits has proliferated over

recent years. Providers feel like they are constantly under

audit – and sometimes they are.

One small West Midlands legal aid firm, for example, in a period of just nine months from 30 June 2016 to 27 April 2017 was subject to two on-site audits; a peer review; a contract manager visit; and a quality of advice check by the Solicitors’ Regulations Authority.

The consequences of this overbearing approach are not simply a bit of bother for providers. It is diverting practitioners from the provision of services to their clients and contributing to the demoralisation of a profession already stretched to the limit.

The firm in question is considering withdrawing from its legal aid contract altogether.

Some audits have a unique and valuable purpose and should be remain unchanged - for example, the quality assurance audits and peer reviews which have helped ensure a quality service for clients. However, others should be merged to reduce the burden on both the Legal Aid Authority and providers. These should be combined to create a new composite audit, in place of today’s numerous, overlapping and burdensome assessments, which should be conducted with a short notice period.

The UK justice system is commonly praised as being

one of the best in the world, with London praised as

the “world’s legal centre and a destination for dispute resolution”

Legal services contributed £25.7bn to the UK economy in 2015.

However, that statistic masks the huge pressures on the publicly funded arm of the legal profession that were accelerated by the enactment of LASPO.

Law firms working for clients in sectors which rely heavily on public funding – health, housing, local government, education, family – have seen much of their work dry up. Many have had to cut the size of their workforce and reduce or halt trainee recruitment.

To survive, firms have shifted to non-contentious or private sector work, and have stopped taking on meritorious cases which now fall outside the scope of legal aid if the client cannot afford to pay.

The Law Society concluded that reform to legal aid, in combination with other factors, make it “extremely difficult” to estimate the future size of the solicitor profession, creating considerable uncertainty.

Barristers are also struggling, particularly at the junior end, with legal aid funded work paying so poorly that it is simply not a viable career option for many.

A government bursary scheme that had provided training to 750 legal aid lawyers since 2002 was scrapped by the coalition government in 2010.

Advice deserts are emerging where there are no advice centres, law centres or legal aid practices offering legally aided advice.

The Law Society has shown that housing law, in particular, has suffered: “Almost one third of legal aid areas have just one - and in some cases - zero firms who provide housing advice which is available through legal aid.”

Alongside the decreasing provision of legal aid by law firms, non-profit agencies have been hit hard too, with many closing their doors altogether. The original Birmingham Law Centre, the Immigration Advisory Service and Streetwise are just some examples of charities that have collapsed.

Charities are clear that pro bono cannot, and should not

be expected to replace publicly funded provision or the

state’s duty to ensure access to justice for all.

None of this would be so significant if the level of need for legal support had fallen. But there is no evidence that this has happened. While there is evidence of increased pro bono activity at all levels of the profession, the leading pro bono charities are clear that unfunded legal support cannot replace publicly funded provision. The state has a duty to ensure access to justice for all.

The reduction in the capacity of providers has meant that fewer people are able to resolve their problems. This state of affairs is unlikely to reverse quickly as it is affecting the career choices of young lawyers who can no longer risk dedicating their careers to areas of law heavily funded by legal aid.

About one million civil justice problems went unresolved

every year because people did not understand the legal

system or know how to use it for their benefit.

Public Legal Education.

This is not something discrete and separate to the justice system, to be delivered only in schools. It should be seen – along with information and advice – as an essential part of the provision of legal support in general. As the Low Commission put it, support for social welfare law is: “a spectrum or continuum including public legal education, informal and formal information, general advice, specialist advice, legal help and legal representation.

The more preventive work we can do at the beginning of this continuum, the less we should have to do at the end.” But the state of public legal education and advice has been poor for a long time.

In 2007 Professor Dame Hazel Genn’s Public Legal Education and Support Task Force concluded that about one million civil justice problems went unresolved every year because people did not understand the legal system or know how.

To help realise the right to justice, we support the recommendation of the Low Commission (http://www.lag.org.uk/about-us/policy/the-low-commission-200551) that a specific minister should create a national government strategy for legal advice and support, driven by these principles. This strategy should encompass everything from public legal education in schools through to online information and face-to-face advice.

We Recommend:

Better public legal education in schools. There should be a new demand on Ofsted to assess in greater depth how well schools prepare children for the opportunities, and responsibilities of later life. Government should also better facilitate the development of relationships between schools and organisations working to improve legal capability.

The government should support the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice.

The government should share the details of this central portal in communications with the public about other matters such as health and education.

The government should create a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities.

In 2007 Professor Dame Hazel Genn’s Public Legal Education and Support Task Force concluded that in the previous year, government economists had estimated that unresolved law-related problems cost individuals and the public purse the astonishing figure of £13bn, over a three-and-a half year period.

Public legal education, information and advice increase legal capability, equipping people with the knowledge and confidence to make the rights that they have meaningful.

Advice and education also act to prevent the unnecessary and costly escalation of disputes into the courts. As Professor Richard Susskind told the commission: “The ambulance should be at the top of the cliff. The state should play its part in promoting dispute avoidance. We need to reduce the need for dispute resolution by placing a fence at the top of the cliff. Legal education is [an] aspect of this.”

Over half of those who experienced a legal problem suffer

negative side effects including “stress-related ill-health,

loss of income or confidence, physical ill-health and

family breakdown”

People with low legal capability are twice as likely to experience these negative side effects. What is more, there is a large overlap between the demographics of those most likely to experience legal problems – manual and routine workers, those with few educational qualifications, migrants, the poor, the young and the old - and those who are least likely to possess legal capability.

Legal or Not Legal?

Most people who experience a legal problem are unlikely to recognise it as such. Advice centres, law centres and legal aid practices must take their expertise out to their communities rather than just waiting for people to come to them

But even those that do may not know where to turn to. Advice centres, law centres, legal aid practices, helplines and online portals are no use where people don’t know to visit them. Advice should therefore be easily accessible, clearly signposted, and situated in places where those most in need are likely to find it. It should also always be universally available.

No-one should have to face a financial assessment

in order to access basic advice about their legal rights,

or to discover whether or not the problem they face

is legal in character.

In communities which have little trust in authorities or the rule of law, there is a need for mediating figures who have the trust of both the legal profession and the community in question. In her evidence to the commission, Lisa Wintersteiger spoke of “trusted intermediaries”.

These could be teachers, faith leaders or leaders of migrant groups. Advice organisations regularly work with them to deliver advice to hard to reach communities, who may have a problem understanding or trusting authorities.

The first report of the Low Commission discusses the example of Advice Services Coventry, which was a partnership - supported by local government - between the independent advice agencies in Coventry to coordinate the delivery of advice services in the city.

The network shared a website and a referral system, so clients could be directed to the most appropriate resource. Additionally, Coventry Law Centre set up several partnerships with non-advice voluntary organisations, such as the city’s ‘Troubled Families’ scheme and local Community Based Champions, to deliver advice to people in the settings where they are likely to require it.

The Commission called for the creation of a £100m fund, with half the funding coming from government (to be administered by the Big Lottery Fund), and half from a combination of other local and national statutory, commercial, and voluntary providers.

The Bach Commission echoes this call, and support the introduction of a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities.