The Bach Report: Let’s be more radical and realistic

Lord Bach is an English lawyer who was minister for legal aid in the last Labour government. Toward the end of his office, he took to drinking the Kool Aid proffered by practitioners, particularly in the not for profit sector. This assisted his exceptional commitment to a well-informed, if ultimately ineffective, Parliamentary campaign to save legal aid in its historic form. Alas, this might have somewhat affected the Labour commission that he has just chaired. Its report is, at times, thoughtful but begins at the wrong point and, in consequence, underestimates the extent to which any government will have to rely on technology in any renewed commitment to justice.

The problem is illustrated by the Bach commission’s big idea: new legislation conferring a right to access ‘reasonable’ legal assistance (even in Utopia, the lawyers are cautious) at a proportionate cost. It is not that there is anything wrong with this as such. It is just not where any government should begin. And the argument goes way back to the 70s when the phrase ‘access to justice’ took off. As an underwhelmed Canadian professor (McGill’s Rod MacDonald) once wrote ‘before access to justice there was just justice’. In other words, the drafters of Magna Carta to whom the Bach Report gives a nod, got it right. They were clear that no one should deny or delay justice, not access to it.

The primary obligations of the state, from its inception are to provide security (Aristotle) and justice (Magna Carta). And even if you are seduced by the language of access to justice then that is a phrase that was originally devised specifically not to be equated with lawyers or legal assistance – it was always intended to be wider in meaning. The most modern formulation of an appropriate right is in the EU’s Charter of Fundamental Rights to which the Labour government, albeit through gritted teeth, signed us up. And it calls for ‘effective access to justice’, a wider concept than a right to reasonable legal assistance. That involves using all the available levers to deliver justice.

The requirement on a state to provide justice is logically prior to its obligation to fund lawyers. That core duty has three distinct but inter-related elements. The state must provide means to resolve and adjudicate conflicts, both civil and criminal, in ways which are – and this comes from the current HMCTS – accessible, proportionate and fair. To these qualities might, it is true, be added – for the avoidance of doubt – timely, effective and affordable. The state should also ensure that citizens have sufficient information about their rights and responsibilities to comply with and enforce them (something on which the Bach Commission is strong). And, finally, the state should ensure that those in its jurisdiction should have such legal and other assistance as they need to enforce those rights and uphold those responsibilities. Legal assistance is a sub-right rather than a substantive one; access is a qualifier rather than a magnifier; and justice a more embracing concept than access to it.

This area of high theory has then to hit low economic reality. The austerity cuts imposed by the Coalition and Conservative governments have been so deep that, in many areas, there is no going back. They were designed fundamentally to slash the Welfare State. And that is what they have done – particularly when combined with Brexit. That, after all, is why former Conservative Prime Minister John Major has always been clear on the agenda of the Tory Brexiteers – their target is not only the European Union, it is to transform the United Kingdom into a low tax, low regulation state. The next government – whether headed by May, Johnson or Corbyn – will not have the money to roll back much apart from the essential core.

So, there is little to be gained by pining for a reinstatement of what has gone. Many public services, in practice, are going to have to live with resources similar to what they have now – maybe with a small percentage increase but not much. And two things follow from that. First, we will need, as much as we can, to retro-fit policies that make sense of the reduced monies. For example, you cannot sustain current imprisonment policies on the current prison expenditure:  legislation will need to reduce the use of custodial sentences to meet the resources allocated. Reinstatement may be required for some such major social justice policies that are major political priorities – such as benefits, social housing or student loans. But nothing should be re-installed until all options are examined and, in legal aid, that means consideration of a more comprehensive approach to, and new methods of, delivery. We should face it: most of the lost legal aid jobs are not coming back. And, if they do, they should not necessarily be in the private sector. Private provision should be the last resort, not the first – in law, as in the health. Second, we have no option but to use technology to the maximum to cut cost. It is the one bright spot on a pretty grey horizon.

The Bach report mentions technology but almost as an afterthought. It should, however, run as a constant stream through each of the three responsibilities listed above. On adjudication, a Labour (or any other) government should commit itself to effective digitalisation provided fees are significantly reduced for low value claims; the quality is acceptable; and effective assistance provided for those digitally excluded. Each individual jurisdiction should be examined so that its substantive provisions manifest exemplary standards of clarity, fairness and accessibility. That means a major revamp, for example, of social security and employment law – both of which are a mess. And there should be an express commitment to benchmark our justice system against others with the intent that we really are, as politicians used to trot out (it is true that they have lately been quieter), the best in the world.

We also need to use digital delivery as much as we can for information, advice and assistance. Of course, there will be users who are potentially unable to use the net. We need to retain ways of reaching them while also committing ourselves to minimise their numbers. But, the notion that there will be money for a return to a national ‘green form’ type of privately delivered, publicly funded, national legal advice system seems unlikely. Much more realistic would be a national network of technology-assisted law or legal advice centres – built as much as possible on what already exists – that could cover the country with a combination of national digital resources supported by personal assistance where needed.

So, Lord Bach has taken up some good ideas – notably that there needs to be an independent legal aid administrator (such a pity that Labour took such care to prepare for the eradication of the last one) and reinstatement of eligibility cuts. But, an effective policy of a new government needs to be both more radical and more realistic.

Leave a Reply