Bach to the future?

legal aid

“If you put your mind to it, you can accomplish anything.” – Marty McFly

I’ve written here often about the abolition of legal aid for most private law family matters back in 2013, under the dreaded Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). That, of course, was a crucial moment in the demise of legal aid, but in reality the system that had once served so many so well had been under attack from successive governments for at least the previous two decades. The attacks came from both directions: on one hand changes to financial eligibility limits meant that fewer people were able to get legal aid, and on the other hand stagnant rates of pay and increasing bureaucracy discouraged more and more law firms from offering a legal aid service.

It is therefore quite wrong to blame the last government entirely for the present situation regarding legal aid, and the fact that a Labour Party-backed report makes recommendations that aim to turn back the legal aid clock does not exonerate the Labour government. I say this not to do-down the Labour Party, but just to be even-handed given its support for the publication.

The report is, as my feeble pun in the title to this post suggests, the final look at access to justice by the Bach Commission, which was led by Labour peer and former Justice Minister Lord Willy Bach. It is entitled The Right to Justice.

The central recommendation is that there should be a new Right to Justice Act which would, amongst other things, “codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford”. The most significant recommendations are, however, to widen the scope of legal aid, bringing it back to areas of law that were removed from eligibility back in 2013. From a family law point of view this would mean:

1/ Restoring legal aid for early legal help for family matters.

2/ Bringing all matters concerning legal support for children back into the scope of civil legal aid.

3/ Bringing family law cases with the following characteristics back into the scope of civil legal aid, with respect to representation in court:

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 proceedings concerning children;

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; and

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.

Responding to the report, Justice Minister Dominic Raab played the part of bully Biff Tannen in Back To The Future. He said: “We spent £1.6bn in legal aid last year, a quarter of the Ministry of Justice’s budget, to maintain access to justice. We will continue to focus legal aid on those who most need help, recognising the cost of this support is met by the taxpayer, even as Labour produce yet more unfunded proposals.” So not exactly a glowing endorsement there…

For myself, I would love to see legal aid restored for the purposes mentioned above. The matters referred to in paragraph 3 above would mean that a large number of cases would come back into the scope of legal aid, repairing a great deal of the damage inflicted by LASPO.

But will any of this happen? In a word, no. Obviously, as Dominic Raab indicated, the government is under no obligation to accept the recommendations of the report, and even if it was, the money required to implement the recommendations is simply not there. Without a DeLorean and a mad professor, there will be no return to the good old days of legal aid, even in the limited form envisaged by the Bach Commission.

I’m sorry, but it’s just not going to happen. The whole thing is pie in the sky, a wasted effort. I don’t want be pessimistic, and I wish I was wrong (I’ll be the first to cheer if I am), but litigants who can’t afford a lawyer are on their own now, and that’s how it’s going to be. Like it or not, we have a two-tier legal system, one tier for the rich and one tier for the poor. The whole idea of equal justice for all (or, as the Bach Commission puts it, the right to justice) has been consigned to history.

In short, Marty McFly was sadly wrong: it doesn’t matter how much you put your mind to it, you can’t accomplish the impossible.

The full report can be read here.

Postscript: After I came up with my hugely witty idea for the title and theme for this post I, unsurprisingly, found that others had also had the same, or similar, ideas. Just goes to show that bad punning is universal. Apologies for the lack of originality!

Image by MsSaraKelly via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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4 comments

spinner - September 25, 2017 at 9:46pm

You need to decide what your goal is and then figure out some other way to achieve that same goal. I’m assuming here maybe naively that your goal is not to get more money for yourself and your colleagues. So given the money was taken out of the system in 2013 and it’s now 2017 what are your alternative suggestions to improve public access to the legal system, you have had four years to think about it and surely you haven’t just been sitting there doing nothing except complain about the removal of legal aid?

Sam - September 27, 2017 at 2:42pm

I couldn’t agree more. One

S - September 27, 2017 at 11:10am

It won’t happen as that means the government will loose out on taking children from families,possible that fathers can finally be heard in cases too. Most solicitors can’t be bothered telling parents when a placement order is done after a twin track to give up as you have no chance of winning. Not saying 1 company either. But the uk government knows how much there million pound industry would hit rocking point. And it’s been said by one it could be ‘devastating effects ‘ so we then have the Cinderella law that was looked at with regards to parents being charged or others when abuse has taken place. And rightfully so.. but it was never approved, how ever after the hard Brexit were all in trouble with a new bill coming into force. The MOJ had concerns regarding 11,444,000 in only care procedures and care orders being done in England and Wales!! In 3 months that was supposed to go to the Queen and parliament.. that was April. It’s now coming under criminal law of 1950, what’s being allowed to happen in the secret family courts. FPR,CPR,adoption act 2002, and children’s legislation. So my question is we know this is happening legal aid is needed but a investigation is needed by LA/CAFCASS and certain judges refuse to revoke orders.. a change in circumstances ‘but says on paper significant ‘ the law states only a change and not being told about hearings not meeting sw1/2 who are not qualified for 3 years or more are allowed to submit false reports and allegations on ppl partied in at eg 22 weeks. It doesn’t help where children and other parents are put into other pls procedures an hearings but that’s not evidence trying to show errors by trainee and suspended sw2?? And trainee relying on that evidence. No disclosure of reports well the positive ones and concerns saying about how sw was stopping contact and a child suffering 3 separate injuries in foster care but taken on a risk a probability that could never happen. As ppl there refers to are the looked after children disclosed in papers and newborn babies x 7 removed from another family from 2007. Very professional. 8 revoke orders and same court turned appeal covering for the judge who stamped a baby to a life sentence. We’re not the only ones and certainly don’t believe in only in exceptional circumstances bs… family gets no justice the adopters are told endless lies and the LA/cafcass an courts carry on as if nothing has happened. It’s child abduction,it’s forced adoption especially when parents are not told of hearings, then you have cafcass breaking own guild lines Annexs where a section 20 can be withdrawn but are not telling the parents!! the la are adding section 20s when the parents haven’t signed them allowing perjury to take place and judgements are not being done we can confirm 6 are missing in a case,that’s where trainee placed child 230 miles away,stopped contact and not telling the court how the FC went for dad and was physically escorted from contact centre.. he only asked the dates he took baby to hospital with injuries and we know and recorded it him saying “all babies gets bumps and bruises ” no they don’t at 18 weeks, 5 months an 7 months. We saved the LA thousands and didn’t have to buy nothing, we bought it. All of that wasn’t produced in court saying dad never turned up.. taxi drivers were horrified each time. Judge said he needed time 2/3/17 (protest outside court) and blamed all parents an nobody knew them at the time,adjourned 43 cases of LA ,told to go bk on the 6th and said adoption. Was then given a order he actually stamped it on the 3rd having no jurisdiction,appeal judge refused and admitted inconsistencies in case?? Evidence was dismissed as would have proved everything and 2 witnesses including a police officer and FC of 40 years calling them unreliable!! And they wonder why they can’t get proper foster Carers?
LEGAL AID IS DESPERATELY NEEDED For FAMILIES to fight for there children.

Sam - September 27, 2017 at 4:19pm

I appreciate that your saying 2013, 4 years on and it’s worse than ever. With the above mentioned but please don’t forget 1 solicitors company last year made that figure in legal aid alone in the family court and people were still being accused there is hardly any experts brought in and if you read a part on the government they stated how much there paying out for experts 19,000 pound,26,000, etc an all to often these experts don’t actually exist or do false reports if you do get one . It’s was confirmed it 5-7k for a physical report so whose pocketing the rest then . A good question I would think..

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