Bach Commission Final Report on Access to Justice
Rights of Women has continually highlighted the many problems that have weakened access to justice since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), citing evidence and examples of the difficult and often dangerous position it has created for survivors of violence against women and girls (VAWG). Our work with our women beneficiaries has repeatedly demonstrated the problems they face when they seek the support from the law that they deserve – in particular when they apply for legal aid. We submitted our concerns to the Bach Commission inquiry panel in April 2016 alongside more than 100 other organisations and individuals and have been keen to hear the Commission’s views and recommendations on all the evidence they received.
We welcome the Bach Commission’s final report ‘The Right to Justice’ (published on 22nd September 2017) on access to justice and are hopeful that the recommendations will inform and influence thinking around this important issue, particularly during the upcoming review of the key piece of legislation that has impacted on this area, LASPO. In our view, the report offers a thorough analysis on current provisions and provides carefully considered suggestions on ways forward. We welcome the effort that has been made to embed recommendations within an approach that robustly addresses financial implications. It is crucial that law and policy makers understand that one of the many benefits of widening access to justice is that it is ultimately more cost-effective than an unfair or unequal system that shifts the financial burden to elsewhere in the system.
We are heartened to see the report has recognised and addressed the issues we raised in our detailed submission to the Bach Commission. Our response to the report’s recommendations are as follows:
Widening the scope of funded legal representation
The report has made detailed recommendations about bringing back into scope all law involving children, certain cases under family law and suggests a review to determine which cases should be brought back in under immigration law. It argues that the determination of its choices is based on firmly upholding the principle of the right to justice in consideration of the nature of the issue and the parties involved.
We fully support the thinking that is behind this as it echoes the need we see as a frontline organisation. Furthermore we recognise that a fundamental tenet of access to justice is to enable a level playing field where an individual’s income should not preclude them from justice or disadvantage them in comparison to any other party.
In relation to the question of which immigration cases should be brought back into scope, we favour reinstatement of legal representation in all immigration cases. This is because these cases will almost exclusively relate to fundamental rights – either protected by human rights law or the European Treaties. Further, appellants in the immigration tribunal are not engaged in litigation against a private party but rather challenging a decision taken by the state regarding their fundamental rights in a context where the state will be legally represented. Ensuring the ability of individuals to question decision making and hold the state to account is an essential check and balance that ultimately creates a stronger and fairer legal system for all.
Means test for civil legal aid
The report recognises that the current system has numerous inconsistencies and excludes many who ‘are not in a position to pay significant legal expenses’. Our submission provided case studies that demonstrate how problematic the rationale underpinning income assessment, capital assessments and contributions are and the repercussions this has for ‘low-income’ women who are not eligible for full financial support for legal costs. The report has addressed each of these in detail and makes sensible recommendations for a simpler and more generous system based on calculations that are fair and realistic.
If these changes were enacted it would go a long way towards addressing the justice gap that has opened under the current provisions. Frequently women survivors we support are effectively put at further risk due to high costs with possible outcomes for them including: having to face a violent ex-partner in court alone without representation; being left with no disposable income on which to survive day to day; needing to sell their house and effectively making themselves (and potentially their children) homeless in order to pay for help; being deterred from applying for a non-molestation order due to unreasonable contributions. It is unacceptable that any woman in an abusive relationship should find it impossible to prioritise her safety when faced with these choices.
Exceptional Case Funding System
The report calls for an urgent review and reform of the Exceptional Case Funding (ECF) system because it has manifestly failed to deliver the safety net it promised to those who are ineligible for legal aid but at risk of human rights violations.
This is an area of high concern to Rights of Women and we fully support this proposal. Calls to our advice lines have demonstrated the unnecessary barriers women are facing when seeking to obtain ECF. As a result, we are now providing direct support to a limited number of women to make applications in immigration and family law cases so we can monitor how the system is working. We will be making further policy recommendations in the future about the ECF system from the evidence base of this work that can contribute to the vision of a better system.
Domestic Violence Legal Aid Gateway (Family Law) – Evidence requirements
Our submission drew attention to the difficulties women face when evidencing domestic violence in order to obtain legal aid in family law cases. Survivors of domestic violence are entitled to legal aid under LASPO’s regulations. However, in practice our research showed around 40% of women survivors could not access this support either due to being unable to satisfy the narrow list of acceptable forms of evidence or as a result of the arbitrary time-limit placed on that evidence.
At the point of our submission last April we had just been successful in a legal challenge against the Government relating to the domestic violence gateway, which resulted in the time-limit being deemed as unlawful and a requirement being placed on the Government to add a form of evidence to the list that would enable survivors of financial abuse to evidence their situation. The Ministry of Justice had announced they would be undertaking a review to inform changing the regulations and introduced some minor changes in the interim. This review has now taken place, however at the time of writing, any longer-term changes resulting from this review are yet to come into force.
We note the Bach Report highlights the restrictive nature of the gateway as a key issue that still needs to be resolved urgently. We welcome the prioritisation of this issue and urge Government to address the matter swiftly and thoroughly.
Early legal help
The report makes a pressing case for the return of early legal help (i.e. legal aid for initial advice prior to legal representation) which LASPO removed across a number of legal areas by taking them out of scope. We have always argued that this was likely to be counter-productive in terms of cost saving as inevitably investing in the early resolution of cases, particularly in family law, avoids lengthy, costly disputes. By avoiding such disputes and the potentially damaging impact on the parties involved, further costs to the public purse in other areas of state provision (health, employment etc.) can also be averted alongside the wider cost borne by society.
Education, information and advice
Rights of Women commends the weight the report places on the need to recognise the value of independent advice organisations and to ring-fence central funds to ensure their longevity. The important role of organisations like ours is frequently side-lined despite the vital role we play in ensuring women are aware of their rights in the law and how to access them. As a result of the loss of investment in our sector, more than half of these organisations in the UK have been lost over the past decade. We hope the recommendations on how to support the voluntary and community sector spark a meaningful debate and spur action on this front.