There is also the risk that where legal aid is refused, a subsequent trial may prove to be unfair if one party is unrepresented by a lawyer as a result, and the other party benefited from legal representation. This can amount to a breach of Art. 6 of the European Convention on Human Rights, which guarantees the right to a fair trial. This problem was highlighted by the case Steel v United Kingdom 2005. The defendants were two environmental campaigners who distributed leaflets outside McDonald’s restaurants. These leaflets criticised the nutritional content of the food sold in the restaurants. McDonald’s sued the two defendants for defamation. However, they were refused legal aid because it is not generally available for defamation cases. They therefore had to represent themselves, whereas McDonald’s were represented by a team of specialist lawyers. The defendants lost the case and were ordered to pay £40,000. Consequently they challenged the fairness of the UK proceedings in the European Court of Human Rights, which was successful, as the defendants had not been given a fair trial.
Overall, conditional fee arrangements have more disadvantages tied to them, however it has meant that there is a greater access to justice, even if lawyers were choosing the high-value winnable cases and leaving many low-value cases without remedy.
b) To what extent have the recent reforms in legal aid been motivated by financial concerns rather than a desire to ensure access to justice for all?
The system of state-funded help in this country goes back almost half a century. The legal aid scheme was designed to allow poorer people access to legal advice and representation in court. The system developed into six schemes, covering most types of case, and administered by the Legal Aid Board.
Each scheme within the legal aid scheme had its own rules on eligibility and some included means and/or merits tests. A means test assesses eligibility on the basis of the applicant’s disposable income, which is the money left each week after paying for certain essential living expenses; and sometimes savings. Only those with disposable incomes below the limit laid down for the type of legal aid required, were eligible for help. Merits tests assess whether the applicant’s case is likely to succeed, and whether it is sufficiently important to justify state funding. The specific details of the means and merits tests varied according to the type of legal aid, and some imposed neither test.
The system of legal aid was set up in 1949 to ensure access to justice for those on low incomes who would otherwise have been able to afford it. This does not mean, however, that they all received access. It still left a huge proportion of people denied access because they could not afford it, yet were not eligible for legal aid.
Lawyers constantly claimed that the system was underfunded and that lawyers working within it were badly paid. The underfunding risked creating a second-class service, not because of the lack of quality in the lawyers themselves, but because they simply could not afford to spend the same amount of time on a case as a privately funded lawyer.
It was also discovered in 1997 that over the previous year more than 25,000 individuals who were granted legal aid were later discovered not to have been entitled to it, costing the government up to £60 million a year.
The standard of legally aided criminal defence work was also very low. A vast quantity was carried out by unqualified staff; solicitors pushed clients towards pleading guilty rather than taking the time to prepare an effective defence. It was claimed that the heavy workloads and low pay of legal aid work forced solicitors to see their clients as ‘economic units’, to be processed as quickly as possible.
With the passing of the Access to Justice Act 1999 the Labour Government introduced some major reforms to the provision of state-funded legal services. Through these reforms the Government hoped to improve the quality and accessibility of the legal services on offer, while keeping a tighter control on their budget. The Legal Aid Board was abolished and replaced by the Legal Services Commission.
In order to develop the standard and accessibility of legal services the Legal Services Commission has established a quality mark, so people can make a more informed choice about the legal service providers they use.
Whereas previously legal aid in civil cases was available on a demand-led basis, meaning that all cases that met the merits and means tests would be funded, there is now a Community Legal Service Fund, containing a fixed amount of money, set each year as part of the normal Government spending plans.
Direct funding is provided for different categories of legal service such as Legal Help, which provides initial advice and assistance with and legal problem. This level of service covers work previously carried out under the ‘Green Form’ scheme. Funding is also available for a person to be represented in court proceedings, replacing civil legal aid. The third category, Help at Court, allows a solicitor or adviser to speak on another’s behalf at certain court hearings, without formally acting for them in the whole proceedings, replacing ‘assistance by way of representation’ (ABWOR).
Certain types of case have also been removed from the state funded system altogether. Personal injury cases are instead funded by conditional fee agreements; cases of defamation and malicious falsehood, where legal aid was never available for defamation; disputes arising in the course of a business as business traders can insure against the cost of having to bring or defend a legal action; and matters concerning the law relating to companies, partnerships, trusts or boundary disputes, trusts are a way of holding a property and tend to mainly affect wealthier people, boundary disputes include, for example, disputes between neighbours as to where each party’s garden begins and ends.
The Government considers that none of these types of case is sufficiently important to justify public funding, suggesting that reforms in legal aid have been motivated by financial concerns, rather than a desire to ensure justice.
Unlike legal aid in civil cases, state-funded criminal defence will continue to be given on a demand-led basis; there will be no set budget and all cases that fit the merits criteria will be funded. As part of this service the Commission directly funds the provision of criminal legal services, employs public defenders and pays for duty solicitor schemes. Thus under the Criminal Defence Service, legal services are provided by both lawyers in private practice and employed lawyers.
Only solicitor firms having a contract with the Legal Services Commission are able to offer state-funded criminal defence work.
Direct funding is provided for different categories of legal service such as Advice and Assistance, which has replaced the ‘Green Form’ scheme. Funding is available for the provision of advice and assistance from a solicitor, including general advice, writing letters, negotiating, getting a barrister’s opinion and preparing a written case. Funding is also available for advocacy assistance, which covers the costs of a solicitor preparing a client’s case and their initial representation in certain proceedings in both the magistrates’ court and Crown Court, and in certain other circumstances. When a person has been charged with a criminal offence, the third category, representation, covers the cost of a solicitor o prepare their defence and to represent them in court. It may also be available for a bail application. It will sometimes pay for a barrister, particularly for the Crown Court and for the cost of an appeal.
State funding for criminal cases, because of The Criminal Defence Act 2006, is now subject to means testing in the magistrates’ court; and means testing in the Crown Court will be piloted from the end of 2007. This would suggest that the government are finding the cost of the criminal legal aid too high and are seeking to reduce the cost for the state, stating that the government are more interested in trying to save money, rather than ensuring everyone has access to justice; in effect, by introducing the means testing for criminal cases the government are limiting people’s access to justice.
