- 'The law courts of England are open to all men, like the door of the ritz hotel'
- Most people would need expert help from lawyers when dealing with a legal problem.
- This could be in the form of initial advice or a representative in court.
- The three main reasons people find it difficult seeking legal asistance is: a lack of knowledge of law and their legal rights, a fear of dealing with lawyers, the financial costs of going to court.
- The rule of law provide that everyone in society is equal in the eyes of the law.
- Everyone should be able to gain access to legal services in a fair and
- democratic legal system and no person should be denied access to courts simply because they cannot afford it.
- In WW2 the legal aid system was established as part of the welfare state.
- This was to ensure access to justice through public funding it cover the cost of litigation and representation in court, as well a preliminary and non-contentious issues (legal advice & assistance)
- You would qualify for legal aid if you couldnt afford to pay for aid yourself and if the case merited public funding.
- The legal aid Board administrated the fund through which lawyers were paid to undertake cases.
- Under this sytem, any lawyer could register to do legal aid work.
Legal service providers
- These services are mainly provided by barristers and solicitors, although a range of voluntary sector agencies such as the citizens advice bureau are increasingly making contributions.
- The Citizens Advice Bereau offer free, confidential, impartial and independent advice.
- It was established in 1939.
- Each Bereau is registered a as charity and relies on volunteers.
- The work they offer refers to social welfare issues, such as debt, welfare benefits and emplyment.
- Law centres provide a free professional legal service to people in their catchment area.
- Law centres were set up in disadvantaged areas to provide the type of services which suit that area.
- Law centres are granted aid and emply solicitors, barristers, legal advisors and community workers.
Legal aid before the access to justice act 1999
- The legal aid system provided the main source of publically funded legal help.
- It covers civil and criminal cases.
- The demand of this system saw costs escalate which led to 'the unmet need for legal service'.
- During the 1980's and 1990's there were serious problems in terms of limited access to legal aid because the government was cutting back to keep costs low.
- By 1997 the legal aid system was costing the taxpayer around 1.6 billion.
- The enourmous rise in the demand for legal aid was because - there was a recession, increased employment, increased marital breakdowns and soaring crime rates.
- By 1995 people with a modest income were denied access to justice in what professor Michael Zander reffered to as 'a middle income trap'.
- The system was no constantly criticised and many layers didn't want to work within it.
- The original goal of legal aid was to provide equal access to justice for everyone in society, regardless of social class, status or income. This means that the system was failing.
In 1998 Lord Irvine announced significant and radical changes for the reform of the legal aid system.
It was thought that the primary defects of the existing system were:
- Inadequate access to good quality and advice.
- Inability to control legal spending.
- Poor co-ordination of services.
- Lack of prioritisation.
The Government thus felt that the taxpayers' money should be targeted on real needs within a set, affordable budget. The government passed the Access to justice Act 1999, which aimed to improve the quality as well as accessibility of legal services.
April 1st 2000, the legal aid board wa replaced by the legal service commission. This is a public body that is directly controlled by the Lord Chancellor, which is responsible for overseeing the provisions of state-funding legal services.
The legal service Commission
The legal service commission administers two new schemes: The community legal service and The criminal defence service.
The community legal service deals with civil matters. It has a set budgetto ensure that only priority cases will recieve civil legal aid. Under s.6 Acess to Justice Act 1999, they are highlighted as specifically including cases involiving:
- Social welfare
- Domestic violence
- Human rights.
Certain types of cases have been removed from the state funding system completely such as personal injury. Under the reforms, value for money is provided by contracting out all legal services called the franchise sytem. This means that only solicitors or advice agencies which hold a contract with the LSC are able to provide advice or representation under the legal aid scheme. It is clearly aimed at reducing costs and improving the quality of service.
The legal services commisions
The Criminal Defence Service deals with criminal matters. State funding criminal defences continues to be delivered on demand-led basis. This prioritisation was justified by the government as a requirement of the Human Rights Act 1998, which incorporates the European convention on Human Rights, Article 6 - this provides the right to a fair trial.
- There is no set budget and case which satusfies the mean test will be funded.
- Solicitors that have a 'general criminal contract' with the legal services commission can conduct criminal legal aid only.
- But in May 2001, the commission has directly employed a number of public defenders.
- The public defenders service has been said to be overcharging on caes and it is still expensive after it was improved.
- In 2003-2004 the cost to open a new file was more than £800 compared with private practice.
Advantages to the Acess of Justice Act 1999
- By replacing the majority of civil legal aid with a system of conditional fee agreements, it is argued that the middle income trap has been removed. But people are still concerned that an unmet need still exists. From research done the results showed that 40% of respondents from disadvantaged groups didnt ask for legal aid but turned to social workers, health professionals and religious organisations.
- Budgetary Control - it is claimed that the franchise system ensures the best value for money and it means that funds are targeted on priority cases.
- Quality Assurance - The franchise system is designed to encourage comepetition between firms to improve standards, as well as lower costs.
Disadvantages to the Access to Justice Act 1999
- Cost cutting - Many lawyers have criticised the prioritisation given to criminal cases and concerns over the posibility that civil justice will suffer as a result.
- Restrictions on the choice of lawyers - By contracting out the legal aid work, it could be argued that it restricts clients choice. There are only 6,000 firms in the UK which offer state funded legal services, compared with 11,000 under the old system. This could have serious implications for potential clients who live in rural areas and may have to travel to find help.
- Small businesses - Research has found that the withdrawal of state funded assistance for business disputes is leaving low-paid, self-employed individuals with no means of redress if their business runs into legal difficulties.
No win, No fee.
- These are known as conditional Fee Agreements and they are another method of providing access to justice, they also remove the burden of cost from the taxpayer.
- The court and legal services Act 1990 - made a provision for the introduction of CFA's in limited cases.
- Under the access to justice Act 1999 the CFA's are vital methods of funding civil cases, which no longer qualify for state funding.
- In the CFA the lawyer recieves no fee from their client if they lose the case, but recieve an 'uplift' or a success fee if they win.
- The rule that the losing party must pay the winners costs still stands, so a person using a CFA must take out insurance to cover this if he loses.
- If a person has made a CFA wins their case, it is possible for the court to order the losing party to pay the success fee, as well as the normal costs.
Advantages of CFA's
- Cost to the state - the risk of litigation is placed with the layer rather than the tax payer. The government claims that it can devote more resource to priority cases and towards bodies such as the Citizen's Advice Bereau.
- Wider Acess to Justice - since the widespread use of CFA's has been introduced, they have been used in over 50,000 cases. Therefore, CFA's have undoubtedly provided an important new source of funding and have allowed citizens who could not otherwise have been able to afford to do so gain access to the courts.
- Inproved performances - the lawyer is 100% on the clients side as there is major financial incentive to win. This mean that arguably, the lawyer works harder and delivers a better service to their client.
- Reduction in the number of spurious claims - the client can only bring a case of they can persuade the lawyer that the case is worth the risk. This reduces the number of unworthy cases which would otherwise clog up the courts.
- Uncertain cases - concern i expressed that CFA's are not adequate substitutes for the withdrawal civil legal aid, because solicitors will only take on those cases with an obvious chance of winning. Many cases in practice would be 'borderline', but under this system, unless the client can fund the case out of their own pocket, then they are denied access to justice.
- Prohibitive cost of insurance - insurance premium can be very expensive, especially since the success fee is also recovered by the winning party.
- Financial involvement of lawyers - the bar has criticised this as it can result in a conflict of interest. Since most clients lack the knowledge to assess their case, there is an obvious temptation for lawyers to exaggerate the risks and thereby increase the success fee.