After the Second World War in 1949 the legal aid system was made by the welfare state. Aneurin Bevan - to provide a safety net for people as it was just after the war they made things like free education, NHS, unemployment benefit and job seekers allowance possible. Paid for by the tax payer to cover cost of starting a case, representation in court and also legal advice and assistance.
Although in civil legal aid there are exceptions in which may or may not be available to you, only the very poor get civil legal aid.
B) In the legal aid system before the Access to Justice Act 1999 there was another legal aid system from 1949 and for 50 years since, provided the main source of publicly funded help although services in practice were (and still are) provided by private, public and voluntary agencies and not just solicitors and barristers in private practice. The system did cover both civil and criminal cases and were made up of six schemes which are:
The green form scheme – This scheme covers anything that is normally regarded as within a solicitor's practice except for steps in court proceedings and conveyance and the making of a will.
Solicitors may advise anywhere - in their office, in hospital, at a police station or in a prison. They can write letters; negotiate; draw up documents; take statements from witnesses; get opinions from counsel; prepare a written case to help someone who has to appear before an administrative tribunal; or anything else that is needed. But they cannot take any actual step in proceedings or represent anyone in a tribunal. However, they can in particular prepare an application for legal aid in civil or criminal proceedings.
Assistance by way of representation (ABWOR) – This covered representation at mental health review tribunals (insanity), applications of warrant or further detention and representation at parole board hearings. The scheme was means tested (they looked at income).
Civil legal aid – Covered all the work involved in bringing and defending a case including legal representation in court. Not many people were eligible.
Criminal legal aid – Covered all criminal work including cost of a barrister in crown court (people going to jail). Everyone was eligible for this.
Police station duty solicitors – All suspects detained at police station entitled to free advice 24 hours a day 7 days a week under the Police and Criminal Evidence Act 1984. this isn’t tested and is available to everyone.
Magistrates’ court duty solicitors – Under the same scheme, duty solicitors available to those making their first appearance at the magistrates court and were unrepresented. This hasn’t changed and is run by the Legal Services Commission.
They needed a new system because there were lots of problems with the old system some of these are:
- The system as it existed before the reforms act 1999 was based on expensive solutions to legal problems.
- There wasn’t enough money being funded so not many lawyers wanted to work on it
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Professor Michael Zander said it wasn’t access to justice if people were turned down because they didn’t have enough money for litigation.
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Ole Hanson The cost kept rising because of lawyers wanted more income and people weren’t earning enough to pay for it.
- There were Government cut backs.
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Mc Conville (1993) Because there wasn’t or very little funding, lawyers weren’t giving up the time for the case and so the cases were half looked.
Overall the system was failing to deliver the goals stated at the start of the system ‘ensuring access to justice for everyone in society’. The Legal Aid Board runs the fund trough which lawyers were paid to take on cases. Any lawyer could register to do legal aid work in the system. This was known as franchising because the Government was making contracts with the bigger law firms.
The Government then highlighted what was wrong with the current system and put what they could right. The solution came as the Access to Justice 1999 (built from the courts and legal services 1990) which aimed to improve the quality as well as accessibility of legal services Tony Blair stated,
“Labor’s goal of improving access to justice is an essential part of our commitment to social justice. “
C) On April 1st 2000, the old Legal aid Board was replaced with the Legal Services Commission which is a public body controlled directly by the Minister for Constitutional Affairs. This body is responsible for overseeing the provision of state funded legal services as well as liaising with other service providers such as local councils to develop a network for local needs. It is the body in charge of all legal Aid including Community Legal Service [CLS] and the Criminal Defense Service [C.D.S]
All legal aid is run through legal services commission which is currently Lord Falconer.
In most cases there is something called a conditional fee which states ‘no win , no fee’ this is a scheme because only cases that can be won will be taken on by the lawyer , if cases is risky it wont be taken on. Lawyers get cost back and extra charge if win, because you don’t pay extra at the start of the case. If you loose the case your lawyer doesn’t get paid.
Community Legal Service [CLS]
This body replaced the old civil legal aid system bringing together networks of funders and suppliers. It has a set budget to make sure that “people’s needs are properly assessed and that public money is targeted on the cases that need help most” only priority cases qualify for help and then only about 15%of the population. Cases such as welfare, children, Human rights and domestic violence get priority under S.6 of the Act. Personal injury has been removed from the fund system as they use to make up about 60% of old civil legal aid system. And week cases don’t get conditional fee.
The franchise system means that there is a drive down on prices making it better for tax payers.
Criminal Defence Service [CDS]
This is replaced the old system of criminal legal aid but unlike civil cases it is funded as much as it is needed. This prioritization was justified by the Government as a requirement of the Human Rights Act 1998 which states right to a fair trial. For Crown Court cases, at the end of the trial, orders can be issued to recover defence costs against wealthy people who have been convicted ( very few wealthy people are asked to contribute). “Public defenders” is part of a four year pilot established in 2001. Eight public defender offices have been established (one in Swansea) comprising of staff employed directly by the commission. This plot will form the basis of research into the merits of mixed (private oractice and employed) Criminal Defence Service. This idea has already had criticism on the grounds that salaried lawyers (ie dependant on the government for their salary) are not sufficiently independent enough from the state to provide a fair defence. (pilot scheme). Pilot scheme is against the test scheme.
