LASPO 10 Years On: A Critical Analysis of Its Impact on Access to Justice and the Legal System

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was introduced in 2012 in the United Kingdom, with the intention of saving money on legal aid and reforming the criminal justice system. As it turns ten years old, it has proved itself to be damaging to the fabric of justice, across the board. In this article, Benjamin Knight considers a decade of consequences.

Political Origins of LASPO

Benjamin Knight on LASPO

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced by the Conservative-Liberal Democrat coalition government, which was in power in  the United Kingdom from 2010 to 2015. The coalition was formed by the Conservative Party, led by David Cameron, and the Liberal Democrat Party, led by Nick Clegg.

LASPO was developed as part of the government’s broader austerity measures aimed at reducing public spending and addressing the budget deficit.

The LASPO reforms were primarily driven by the Conservative Party, with the then-Secretary of State for Justice, Kenneth Clarke, playing a key role in shaping the legislation. The Liberal Democrats, while part of the coalition government, were generally less supportive of the changes to legal aid and expressed concerns about the potential impact on access to justice. Some Liberal Democrat MPs, along with MPs from the Labour Party and other opposition parties, raised concerns about the bill during its passage through Parliament. However, the coalition government had a majority in Parliament at the time, which allowed the LASPO Bill to become law.

The Labour Party, which was the main opposition party during the passage of LASPO, criticised the proposed reforms and argued that they would disproportionately affect the most vulnerable in society by limiting their access to legal aid and other forms of legal assistance. Labour MPs, along with some Liberal Democrat MPs, attempted to introduce amendments to the bill to mitigate its effects, but these efforts were largely unsuccessful due to the coalition government’s majority in Parliament. Since that time though, no iteration of the Labour Party or Liberal Democrat Party has made a particularly strong issue of LASPO’s trail of destruction. Let’s face it: few people really care about the law until they need it. Most people seem to imagine that non-commercial lawyers will work for free in the UK. Votes are not won by “chucking away taxpayers’ cash to crims and illegals” – this is what the population has been told for at least a decade-and-a-half. 

This article is not consciously party political. It does not represent the position of all of my learned friends at the Bar. There are plenty of (equally learned) solicitors who are happily working in private law and don’t especially care about legal aid. What follows is a summary of just a handful of the effects of LASPO and an explanation of why I will not be watching it blow out the candles on its unpalatable birthday cake.

LASPO Birthday Cake - Disappointing

Access to Justice

One of the most significant criticisms of LASPO, particularly in light of these amendments, is that it has reduced access to justice

for many individuals. The introduction of a new test for civil legal aid eligibility has made it more difficult for people to obtain funding for legal assistance. Additionally, the introduction of new fees for certain types of legal services has made accessing justice more expensive for many individuals. The closure of a number of legal aid providers has further reduced the availability of legal services in some areas, making it even more challenging for those in need of legal help to find representation. The introduction of new restrictions on the types of cases that can be funded by legal aid has also limited the options available to people who need legal help.

These changes have disproportionately impacted people from low-income backgrounds, who are already more likely to experience legal problems. The decline in the number of lawyers working in the civil and criminal legal aid sectors has further exacerbated the issue, making it more difficult for people to find representation and potentially leading to a decline in the quality of legal representation. 

The amendments to the Act have only exacerbated these issues, as the introduction of stricter eligibility criteria and increased fees further limits access to justice for vulnerable groups, such as asylum seekers, those with sketchy private landlords, and those with mental health issues.

The changes due to LASPO have resulted in a legal system that disproportionately disadvantages those who are most in need of support.

Legal Aid Deserts

A legal aid desert is an area where there is a shortage of legal aid providers. This can make it difficult for people in these areas to access the legal assistance they need. LASPO has been linked to the creation of legal aid deserts, as it led to a reduction in the number of legal aid providers and a decline in the quality of legal representation.

  • Removing legal aid for certain types of cases, such as housing and welfare benefits
  • Introducing new eligibility criteria for legal aid
  • Reducing the amount of funding available for legal aid

These reforms have had a significant impact on the availability of legal aid in England and Wales. The number of legal aid providers has declined by around 40% since the introduction of LASPO, and the quality of legal representation has also declined. This has led to the creation of legal aid deserts, where people in need of legal assistance are unable to find a provider.

Legal aid deserts are a particular problem for people on low incomes, who are already more likely to experience legal problems. The lack of legal aid providers in these areas means that people are often unable to access the legal assistance they need, which can have a significant impact on their lives.

The government has acknowledged the problem of legal aid deserts, and has taken some steps to address it. However, these steps have been largely ineffective, and the problem of legal aid deserts remains a significant one. 

It’s not just criminal and family law that are struggling. According to the Law Society, who, in March 2023, updated their five “heat maps” showing the shortage of providers across the country, they found:

  • community care – 11.6% drop in providers since April 2022
  • education – 10% drop in providers since April 2022
  • housing – 25.3m people (42%) do not have access to a local provider
  • immigration and asylum – 39m people (66%) do not have access to a local provider
  • welfare – 21% drop in providers since April 2022

A shocking example is in the field of Housing Law where the Law Society’s provider map speaks volumes. It speaks for itself but the red areas are where there is not one single legal aid housing law provider left.:

March 2023 Housing Heat Map - Law Society

Roughly 53 million people – or 90% of the population – do not have access to a local legal aid provider for education, and 84% of the population do not have access to one for welfare and benefits issues.

I live in Salford and found that it was an area without a legal aid provider for education law and only one small provider offering welfare and benefits services.

Across England and Wales there were 21 local areas with no legal aid providers whatsoever.

Impact on the Justice System

The wider justice system, including courts and tribunals, has also been affected by LASPO and its subsequent amendments. The reduction in legal aid funding and the closure of legal aid providers have led to an increase in the number of unrepresented litigants in courts and tribunals, which has, in turn, led to inefficiencies and delays in the system.

Judges have reported having to spend more time explaining court procedures to unrepresented litigants, which slows down the progress of cases. In addition, the increase in unrepresented litigants has raised concerns about the fairness and quality of decision-making in courts and tribunals. Without legal representation, individuals may struggle to effectively present their case, which will likely result in unjust outcomes.

Stressed District Judge

 

When LASPO first came into effect, I remember a conversation with a friend who was a recent-intake District Judge. They were to be sitting in family courts and were

anticipating a drop in private family proceedings (i.e. child arrangements – what we used to call contact and residence). They were pretty robust about how they imagined they would plough through the increased number of unrepresented mums and dads – it may even be easier without the lawyers upping the ante! Well, we caught-up a few years later, and there had been a drop in those applications before the family court. However, cases seemed always to have hit a crisis-point by the time there was a hearing. The allegations seemed to involve more grotesque domestic abuse (physically from men and manipulative from women, generally). The scope for sensible discussions and agreed directions had reduced as only one parent usually had a lawyer with them. The lawyers were uncomfortable with the position they were now in and all knew that the pitch was far from level. In short, the time-constraints imposed on top of an already creaking family justice system had met with the lack of representation and the result was s.8 Orders not worth the email they were sent in.

This demoralising position for the lawyers and judiciary – where no party has the money to pay privately (such as 95% of criminal law) – simply hastens the exodus from that field. In family, there are public law proceedings which pay reasonably well, and there are private law proceedings for which the market price has been driven-up by the lack of available lawyers committed to that area. The district judges dealing with these cases are at their wits’ end because many recognise that the outcomes of those cases are unsustainable for those who need to live by them and sub-optimal for the children whose welfare is supposed to be paramount.  When last I checked, my friend was stressed and fed-up.

Prison Overcrowding

The changes to sentencing and release brought about by LASPO, including the introduction of mandatory life sentences for certain repeat offenders and extended determinate sentences for certain violent and sexual offences, have contributed to the problem of prison overcrowding in the UK. Overcrowded prisons are associated with increased levels of violence, self-harm, and suicide, as well as reduced opportunities for rehabilitation and reintegration into society.

See my previous article on the second (at time of writing) activation of the poorly-named “Operation Safeguard” for details of the mess that the prison system now faces. The solution mooted? Discussion on tame TV programmes about fictitious prison barges.

Impact on Youths in Custody

The number of children on remand in England and Wales has increased significantly in recent years, with black children disproportionately affected. This is despite the fact that most children on remand are acquitted or receive a non-custodial sentence.

Remand is supposed to be used as a last resort, but in England and Wales it is now used in over half of all cases involving children. This is a worrying trend, as remand can have a number of negative consequences for children.

First, it can disrupt their education. Children on remand are often held in secure units far away from their homes, which means they may have to miss school. This can have a long-term impact on their educational attainment.

Second, remand can isolate children from their families and friends. Children on remand are not allowed to have contact with their families during the day, and they may only be able to see them for a few hours each week. This can be very difficult for children, especially those who are already feeling vulnerable.

Third, remand can damage children’s mental health. Children on remand are at an increased risk of developing mental health problems, such as anxiety and depression. This is because they are often held in stressful and uncertain environments.

Fourth, remand can lead to reoffending. Children who are remanded are more likely to reoffend than those who are not remanded. This is because remand can disrupt their education, isolate them from their families and friends, and damage their mental health.

The high number of children on remand in England and Wales is a cause for concern. The delays in securing trials, and the increasing problems finding solicitors and junior counsel to undertake the specialist work that is required in youth cases are both consequences of LASPO. Accordingly, LASPO is a cause of the damage done to these children.

Reform

In 2017, the government announced a review of the LASPO reforms, conducted by Sir Christopher Bellamy QC. The Bellamy Review published its report in 2018, making a number of recommendations for changes to the LASPO reforms, including reintroducing legal aid for some types of cases, increasing funding for legal aid, and making it easier for people to obtain legal aid (source: Bellamy Review, 2018). The government gave its response to the review in December 2022. It was little more than an acknowledgement of some of the content and various mentions of further reviews and “discussions”. The setting-up of the review body has occurred but that took the Bar’s strike action to get that far. The Panel still has not elected a Chair. It is a fig leaf, many believe. 

The government’s failure to fully implement the Bellamy review’s recommendations on criminal legal aid and to uphold its agreement with the Bar Council has intensified concerns about access to justice in England and Wales, particularly in light of the ongoing effects of the LASPO Act.

The LASPO Act has faced legal challenges, including R (UNISON) v Lord Chancellor and R (Rights of Women) v Lord Chancellor. In both cases, the courts found that the government had failed to consider the impact of LASPO on vulnerable groups, such as the poor, those with mental health problems, and victims of domestic violence.

Against this backdrop, the Ministry of Justice’s decision to provide only an 11% fee increase for solicitor firms, instead of the recommended 15% by the Bellamy review, has led the Law Society to send a pre-action letter to the government, arguing that the decision is unlawful.

The Bar Council has expressed deep disappointment at the government’s lack of commitment to the agreement reached in 2022, aimed at ending the industrial action. As a consequence, the Bar is considering resuming its “No returns” policy, potentially exacerbating the shortage of barristers and further limiting access to justice, particularly for vulnerable individuals.

This situation highlights the government’s disregard for the rule of law and its responsibility to ensure a fair and accessible justice system. The Bellamy review, published in 2021, provided comprehensive and well-considered proposals to improve criminal legal aid in England and Wales. However, the government’s reluctance to implement these recommendations, combined with the ongoing impact of the LASPO Act, has resulted in a missed opportunity for meaningful change.

The government’s actions also undermine the rule of law, as the justice system should be fair and accessible to all, regardless of income or social status. It is crucial for the government to demonstrate its commitment to the rule of law and access to justice, as the justice system should not be subject to political gamesmanship.

In light of the government’s failure to act on the Bellamy review’s proposals, its unfulfilled commitments to the Bar, and the ongoing consequences of the LASPO Act, it is essential for the government to reconsider its position. By implementing the review’s recommendations, fulfilling its obligations to legal professionals, and addressing the shortcomings of the LASPO Act, the government can work towards restoring the justice system’s fairness and accessibility for all citizens in England and Wales.

As we arrive at the tenth anniversary of this divisive legislation, it is obvious to most that reforms and rebalancing are needed. Most agree that the following are needed without delay: 

  • Restore funding for legal aid for certain types of cases that were removed under LASPO. This would include cases involving domestic violence, housing, and welfare benefits.
  • Increase the income threshold for eligibility for legal aid. The current income threshold is too low, and many people who are eligible for legal aid are not able to access it because they do not meet the income requirements.
  • Provide more funding for legal aid providers. The current level of funding for legal aid providers is inadequate, and this has led to a reduction in the number of providers and a decline in the quality of legal representation.
  • Make it easier for people to apply for legal aid. The current application process is complex and time-consuming, and this can make it difficult for people to access legal aid when they need it.
  • Provide more support for people who are self-representing in court. Self-representation is often a daunting prospect for people, and they may need more support to navigate the legal system effectively.

These are just a few of the reforms that could be made to LASPO to make it fairer on the most vulnerable. It is important to have a robust legal aid system in place so that everyone has access to justice, regardless of their income or social status.

I suppose I said that I wasn’t going to be party political, so I will not. However, the economic doctrine of austerity is (in theory) not attached to the left or right by definition. [Discuss?] But the damage its ten-year-old child has done to justice in England and Wales is gross.

I looked-up “austerity” to see if I could find something to say pithy about it. It turns out that several people got there before me. I shall leave you with their words:

  • Austerity is a choice, not a necessity.” – Joseph Stiglitz
  • Austerity is a crime against humanity.” – Archbishop Desmond Tutu
  • Austerity is a form of violence.” – Noam Chomsky
  • Austerity is a policy for the rich, not the poor.” – Oxfam
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