If the Legal Services Board (LSB) is serious about promoting access to justice it must end its silence on the legal aid cuts, lawyers’ organisations have said.
The Bar Council accused the oversight regulator of acting like “another department of government” by refusing to comment, while the Law Society called on the oversight regulator to support its legal aid campaigns.
In its response to the LSB’s consultation on its strategy and business plan for 2018-21, the Chartered Institute of Legal Executives (CILEx) said legal aid was “conspicuous” by its absence from the plan, especially in the context of the government’s LASPO review.
The Bar Council called on the LSB to consider “head-on” the impact of the cuts.
“It is right that policies on legal aid are not made by the LSB; however it should not shy away from criticising them, or from carrying out research into their implications.
“If the LSB is truly independent of government, we suggest that it should form its own views about the impact of reductions in legal aid funding on those providing legal services.
“By saying that legal aid cuts are a policy matter for the Ministry of Justice (MoJ) and not wanting to encroach on that or contradict it, the LSB risks being seen as acting as though it is another department of government.
“One of the regulatory objectives is improving access to justice – something which the Supreme Court recently reaffirmed is a constitutional right – and while the LSB must respect the limits of its competence, it should not censor itself.”
The Law Society said that, as far as access to justice was concerned, the LSB promoted “innovation, technology and more flexible regulation” to solve the problem of unmet legal demand.
“However, there are clearly parts of legal work which will always require a safety net of government funding to help people who cannot obtain legal advice at any cost point.
“Therefore, any consideration of helping consumers to access legal services must consider the negative impact that legal aid cuts have had on access to justice. The Law Society continues to campaign on this vital issue, and we call on the LSB to support this.”
CILEx was pleased that the LSB recognised the financial pressures faced by legal aid providers. “However, we would like to see greater focus given to the public who either rely on legal aid, or who are particularly vulnerable and are unable to acquire it to resolve their legal problem.
“Their absence from the strategy and business plan is conspicuous, especially in light of the post-legislative review of [LASPO].”
CILEx also noted that civil costs reforms – such as increasing the small claims limit for personal injury and introducing fixed costs in clinical negligence – would raise “significant barriers to access to justice”.
The Bar Council’s response also said it was not aware of “any justification” for the LSB expending resources in lobbying or advocating for ‘reform’ of the Legal Services Act, arguing that the MoJ was clear that regulatory independence should be approached “within the existing legal framework”.
The Law Society warned the oversight regulator against setting objectives which “appear to strive for even more change which risks exacerbating uncertainty for the entire legal sector” and now was not the time to advocate further reforms of the system.
“Stability of the legal framework is key to ensuring public confidence in the rule of law, to providing certainty for the profession, and to helping to maintain the international competitiveness of the legal sector.”
Meanwhile, the Legal Services Consumer Panel’s response called on the LSB to give greater priority to concerns about the “increasing fragmentation of professional indemnity insurance and compensation arrangements across the sector”.
“We remain concerned that the gaps in consumer protection, the confusion around levels of protection, and the sheer complexity of multiple regulators, and providers ability to now change regulators means that clear guidance on minimum standards and good consumer outcomes is now a necessity.”
The panel said some of the LSB’s indicators of success for the legal services market were “not challenging enough”, such as maintaining client satisfaction rates at 80%. The panel said satisfaction rates should go up, “instead of simply being stagnant”.