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The crisis in the justice system in England & Wales
New interim report from the Bach Commission on access to justice been published.
The crisis in the justice system in England & Wales
Nothing especially surprising insofar as what’s going wrong since LASPO imo, but this section on technology and the possible “solutions” offered will hopefully filter through to the MoJ as they take forward their proposals to digitise the appeals system:
As many witnesses have pointed out to the Commission, face-to-face contact is irreplaceable. While Professor Susskind suggests as little as 3 per cent of the population are without internet access, research from the Legal Education Foundation found only 50 per cent of those entitled to civil legal aid pre-2013 would be willing and able to operate online. People facing the type of legal problems for which legal aid is needed are much less likely to be able to utilise the internet to resolve their problems. As the Legal Education Foundation note, it “certainly cannot be assumed that effective access simply equates with access to the internet.”
Report from the guardian includes -
The number of not-for-profit legal advice centres has fallen from 3,226 in 2005 to 1,462 over the past decade ....
Anyone for polluter pays?
In 2013/2014, 42 per cent of tribunal appeals against DWP decisions were successful, and between October 2013 and December 2015 for appeals against DWP Employment Support Allowance determinations (following mandatory reconsideration) that number increased to 56 per cent.
If the DWP had to pay a levy if more than (say) 10 per cent of these decisions were found against them, it might incentivise them to get decisions right first time round. This levy would raise money for legal services, which could then be hypothecated to reducing court and tribunal fees.
Witnesses have called for further work into the possibility of a polluter pays scheme, incorporating government departments beyond just the DWP, which would shift costs to those who cause them.
Page 19: http://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf
Here’s Tom Royston in 2012:
https://www.newlawjournal.co.uk/content/making-polluter-pay
24. While costs provisions are very limited in proceedings before tribunals, it is already the case that the courts can award costs against losing defendants in civil (non-family) cases in which the opponent is legally aided, where they consider this appropriate, and last year, the legal aid fund recovered £170 million in costs and damages in civil proceedings awarded against non-legally aided parties. However, strict application of the “polluter pays” principle might call into question the effective cost protection that the legal aid fund currently receives when funding litigation. A significant proportion of cases funded by the LSC are not successful, and any requirement for the LSC to routinely meet the costs of other parties in unsuccessful cases would be a significant drain on the fund.
25. As the Committee has recognised, there would be bureaucratic hurdles to such a system. It is difficult to see how it could be applied to Legal Help (legal advice and assistance), where it would be difficult to determine whether the original decision on which the advice is sought was wrong, and who was at fault. We also believe that it might have unintended consequences in some cases, for example in criminal prosecutions, or in care proceedings. We do not wish to discourage prosecutions or interventions in cases of suspected child abuse, because of concerns about costs.
26. The Government does not therefore believe that there is scope to extend the “polluter pays” principle further. Instead our focus is to work with officials on other departments and public bodies to ensure better decision making about at the outset, and throughout the conduct of the case. (page 14)
Didn’t have a great deal of enthusiasm for this principle when they slashed legal aid to bits a few year’s back. We now have SoS who sat on the Justice Committee at that time. So I won’t be holding my breath here….