Legal Aid - Access to Justice in the UK

This essay will discuss legal aid in the United Kingdom. It will explain what it is, why it exists and who has access to it.  It will also outline the history of legal aid from its beginnings to the present day; over 60 years later. Finally it will critically comment on the current legal aid system concluding that for all its progress the current system no longer necessarily upholds the ‘rule of law’.

Legal aid can help meet the costs of legal advice, family mediation and representation in a court or tribunal.[1] It was designed to make the justice process available to anyone in the country, regardless of how much they earn.[2] The system ensures key principles of a democratic society; that all are equal before the law and have the right to a fair trial. Further, since the Human Rights Act 1998[3] if a person cannot afford legal representation, this can undermine their right to a fair trial, a right which is protected under Article 6[4] of the Act. [5] Today legal aid is available for both criminal and civil cases. However the scope of which areas of law are funded by legal aid and who is entitled to it has continued to change over the decades. All people, if arrested and taken to a police station are entitled to free legal advice. However, if they are taken to court or the case is civil it must be determined whether the individual is entitled to receive legal aid. For this an individual must meet certain financial criteria. Both a person’s disposable income and disposable capital will be assessed, if married their spouses income is also included. If an individual falls under the financial threshold they will be entitled to legal aid. The threshold of entitlement has changed over time and is also dependant on the level of court. Currently, if an individual’s income (income before tax) was more than £2,435 in the last month; or you have more than £8,000 disposable capital they will not be eligible. Though the threshold for legal aid has changed most statutes reform which types of cases entitle one to legal aid. The subsequent paragraph follows the evolution of legal aid and what it currently provides for.

Before 1900 legal aid to those who could not afford a lawyer only came in the form of charitable donations which were unpredictable and inconsistent rendering many people without legal defence. In 1926 one of the founders of such charities said such a system made the rule of law “an anaemic attenuated make-believe which we flash in the eyes of the poor as justice.”[6] However during and post World War II thought was given to forming a fairer society. A welfare system was created and introduced social security, the NHS and under the Legal Advice and Assistance Act of 1949 that the modern unified system of legal aid was first established. [7] The new system acknowledged that equality of access and the right to representation before the law was fundamental to a just society. Divorce in the high court was the first target of the scheme and by 1950 it provided 80% of the population with a means-tested entitlement to legal aid. In the decades to come legal aid developed significantly.[8] Criminal legal aid expanded in the 1960s and in 1984 the Police and Criminal Evidence Act provided  duty schemes for advice in police stations. Law Centers were also opened and gradually legal aid also increased for housing and employment cases.[9]  However as the Legal aid system grew exponentially the  debate surrounding it was increasingly dominated by its cost. Legal aid became increasingly available only to those whose income was at the lowest levels.[10]

The next big reform to the legal aid system came in 1999 when the Access to Justice Act was passed. [11] The act was designed to redraw the whole system of funding and regulating legal aid to support a system which had evolved significantly since its conception. The Act created the Legal Services Commission and gave it the power to reshape legal services. This power was reinforced in 2006 when a new ministerial post was made for the purpose of reforming legal aid. The Act allowed for Legal Aid, where one was financially eligible, in all criminal cases and all civil cases, except those specifically excluded.[12] Despite its efforts the reform was not enough to control the expenditure of Legal Aid. ‘Cuts’ to Legal Aid continued to be a problem and a matter of political debate and reform.

2009 marked 60 years of legal aid in the United Kingdom since the Legal Advice and Assistance Act 1949. Although notably; ‘Sixty years after the birth of legal aid, 83% of the general public say they have little or no knowledge of the scheme, according to new research.’[13] None the less the change in access to justice since 1949 was undeniable.  However 2013 saw yet another act which made further cuts to legal aid. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 sought to cut the two billion pound annual legal aid bill in England and Wales by £350m a year. It reverses the position where legal aid has been available for all civil cases except those specifically excluded by the Access to Justice Act 1999. [14] The act has completely removed funding for certain areas of civil law. This includes; private and family law and personal injury. An obvious comparison for access to justice can be seen in divorce. Once one of the highest used areas of law for legal aid after 1949 is now an area entirely excluded under the 2012 act . Others, such as debt, housing and benefit issues and immigration now only qualify if they meet certain criteria. As such celebrations of the 65 anniversary of legal aid were limited:

Today the United Kingdom’s Legal Aid system in the wake of continuous budget cuts is highly scrutinised. The Law society (who represent, promote and support solicitors, publicising their unique role in providing legal advice, ensuring justice for all and upholding the rule of law) [16] relayed their concerns in their general election briefing this year;

The president of the Law Society, Robert Bourns has suggested that the tragedy of Grenfell Tower was to a certain extent due to the cuts of legal aid  which ‘may have stopped tenants in Grenfell Tower from pursuing safety concerns that could have prevented the fire’.[18]

When one outlines the history of legal aid and its development to the present day it is hard to ignore that progress appears to be circular and reverting back to 1949. As the legal team at Bott and CO. Solicitors comment: ‘It is the poorest in society that are going to struggle to get legal aid as people won’t be able to afford legal representation’.[19] This is concerning when a system designed to protect those who need it most is the very same system which may now prevent those people from having access to legal protection. Individuals now often and once again may have to recourse to charities and NGO funding to receive the legal aid they need.

Bibliography

Books

• FCG Gurney Chapman, Justice and the Poor in England (1926) p 21
• S. Hynes & J. Robins The Justice Gap (2009, LAG) p21.

Statues

• Human Rights Act 1998
• Access to Justice Act 1999

Briefings

• The Law Society  Access to Justice – Making the legal system accessible to all General Election 2017 briefing (2017)

Websites and Articles

• Bott and Co. Solicitors LASPO – An End Of Access To Justice? Thursday 16th May 2013 by Legal Team. Accessed via: http://www.bottonline.co.uk/blog/laspo-end-to-access-to-justice
• http://www.bbc.co.uk/newsbeat/article/33712373/legal-aid-what-is-it-and-why-all-the-fuss-about-it
• http://www.bbc.co.uk/news/uk-21668005
• https://www.gov.uk/legal-aid
• https://www.lawgazette.co.uk/news/exhibition-celebrates-60-years-of-legal-aid/50464.article
• https://www.liberty-human-rights.org.uk/human-rights/justice-and-fair-trials/legal-aid
• https://sirhenrybrooke.me/2016/06/16/the-history-of-legal-aid-1945-to-1997/
• https://www.theguardian.com/uk-news/2017/jun/29/legal-aid-cuts-may-have-stopped-grenfell-tenants-pursing-safety-concerns
• http://www.younglegalaidlawyers.org/sites/default/files/An%20introduction%20to%20legal%20aid_history%20and%20the%20current%20system.pdf

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Footnotes