60 YEARS OF LEGAL AID
In this edition we celebrate the 60th birthday of legal aid which came into existence on the 30 July 1949.
An important feature of any democracy is for the government to provide financial assistance to persons who are unable to afford legal representation. Otherwise these people would be at a disadvantage if either the government or a wealthy individual took them to Court or infringed one of their legal rights.
Legal aid helps over 2 million each year. It was originally established by the Legal Aid & Advice Act 1949. Today legal aid in England and Wales costs the taxpayer £2bn a year – higher per capita spend than anywhere else in the world – and is available to around 30% of adults.
It is administered by the Legal Services Commission and is available for most criminal cases and many types of civil cases excluding libel, most personal injury cases and cases associated with the running of a business. Family, housing and welfare disputes are also covered. Depending on the type of case, legal aid may or may not be means tested.
Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil Legal Aid is provided through solicitors and barristers in private practice but also non-lawyers working in law centres and not for profit advice agencies such as the Citizens Advice Bureau.
A BRIEF HISTORY OF LEGAL AID
1215 The Magna Carta
We can trace legal aid back to Magna Carta (the great charter) that states “To no-one will we sell, to no-one deny or delay right or justice”.
1939 First Citizens Advice Bureau open
Social work organisations got together to open the first Citizens Advice Bureau giving advice on a wide range of ‘war-time worries’.
1942 Beveridge Report – fighting five great evils
William Beveridge submitted a report to the government in 1942 recommending fighting five ‘giant evils’: want, disease, ignorance, squalor and idleness.
1949 Legal Aid and Advice Act
On 30 July 1949 at 11.47 am the Legal Aid and Advice Bill received Royal Assent.
The Legal Aid and Advice Bill passed through Parliament relatively unchanged, steered by the Lord Chancellor Lord Jowitt. The act was divided into three parts:
- Legal aid in civil courts
- Legal advice and preliminary legal aid
- Legal aid in criminal courts
1961 Legal Aid extended to magistrates’ courts
Legal Aid extended to Magistrates’ courts for domestic proceedings – the final step of the1949 Legal Aid and Advice Act.
1970 First law centre set up in London
The first law centre was set up in West London in a butcher’s shop at the north end of Portobello Road. The law centres did legal aid work but were mainly funded by local authorities and charities.
2000 Access to Justice Act
The 1999 Access to Justice Act came into force and the Legal Services Commission replaced the Legal Aid Board.
The Act set up legal aid under 2 schemes – the Community Legal Service and the Criminal Defence Service.
2001 Public Defender Service launched
The Legal Services Commission launched the Public Defender Service. The service offers advice, assistance and representation on criminal matters.
2004 Legal advice given by telephone
The Legal Services Commission launched Community Legal Services Direct. The service provided specialist legal advice over a telephone helpline and supplied information by website. This is now called Community Legal Advice.
2009 Legal aid helps over 2 million people a year
The current legal aid budget is just over £2bn a year. It funds over 2.5 million legal aid cases and helps over 2 million people a year get access to justice.
THE NEXT 60 YEARS?
For the ten year period upto 1985, nearly 80% of people were able to get advice on almost any civil problem as well as representation in the criminal courts.
Due to a number of financial crises arising since this time (including the current recession) the legal aid budget is often seen by the government as an easy target and has been subject to drastic cutbacks. The number of people who now qualify for assistance is nearer to 30%.
The bulk of the legal aid budget is spent quite rightly on criminal and family cases (including care proceedings) which has led to cuts in civil legal aid services. The majority of personal injury cases, for example, were removed from legal aid some 10 years ago and in its place lawyers are now expected to act for these clients under a no win no fee conditional fee agreement. These type of agreements have resulted in higher costs being incurred by solicitors which in turn have led to criticism especially from the government in recent months.
We should all be very proud of our legal aid system but we also need to recognise that the world has changed a great deal since 1949. Since 1949 successive governments have introduced many more civil rights – from access to children, to be treated fairly over debt and housing. Since the present government came into power back in 1997, some 3,600 new criminal offences have been created. In addition, the Human Rights Act has come into force which has had a huge impact on our society.
If anything, the case for legal aid is stronger than it was 60 years ago. It is important that we try to move back to the mid 1980s when most people qualified for free legal advice. Some ideas which have been put forward for the reform of legal aid to ensure it survives for another 60 years are as follows:-
- the introduction of a national telephone advice service available to everyone and supported by self help and legal education materials all of which could be downloaded on-line;
- more use of our existing resources especially in the not for profit sector particularly the Citizens Advice Service and Law Centres;
- where people who have had the benefit of legal aid and have been successful with a claim at Court, perhaps a small proportion of their damages should be paid back into the legal aid pot which would help fund similar cases in the future;
- only specialist solicitors should undertake legal aid work at Court which would ensure that costs are kept down, for example, only panel solicitors are able to undertake legal aid work in clinical negligence cases. As a consequence, the number of certificates issued by the Legal Services Commission have been reduced and in those cases which are taken to Court many more are successful than prior to the introduction of panels. There is no reason why there cannot even be panels within panels as some solicitors specialise, for example, in head injury cases or gynae cases.
Despite complaints from legal aid practitioners about its inadequacies or the government moaning about its cost, there can be no doubt that our legal aid system remains one of the best in the world providing access to justice for many people with civil disputes and ensuring a fair trial for those accused of a crime. Notwithstanding its success, improvements can be made to ensure that it continues to flourish in its 7th decade.