Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. This article describes the development of legal aid and its principles, primarily as known in Europe, the Commonwealth of Nations and the United States.
A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.
Legal aid is essential to guaranteeing equal access to justice for all, as provided for by Article 6.3 of the European Convention on Human Rights regarding criminal law cases. Especially for citizens who do not have sufficient financial means, the provision of legal aid to clients by governments will increase the likelihood, within court proceedings, of being assisted by legal professionals for free (or at a lower cost) or of receiving financial aid. Though legal aid aims to create more equity in the sphere of legal practices, aid offered is often limited in its quality or its social impact by economic constraints that dictate who can access these services and where the aforementioned services are geographically located.
Legal aid has a close relationship with the welfare state, and the provision of legal aid by a state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people who could otherwise not afford counsel from the legal system. Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as social housing, with access to legal advice and the courts.
Historically, legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights. His views developed in the second half of the 20th century, when democracies with capitalist economies established liberal welfare states that focused on the individual. States acted as contractors and service providers within a market-based philosophy that emphasised the citizen as consumer. This led to an emphasis on individual enforcement to achieve the realisation of rights for all.
Prior to the mid-20th century, literature on legal aid emphasised collective enforcement of economic, social and cultural rights. As classic welfare states were built in the 1940s and following World War II, an underlying principle was that citizens had collective responsibility for economic, social and cultural rights; and the state assumed responsibility for those unable to provide for themselves through illness and unemployment. The enforcement of economic, social and cultural rights was to be collective, through policies rather than individual legal action. Laws were enacted to support welfare provisions, though these were regarded as laws for planners, not lawyers. Legal aid schemes were established, as it was assumed that the state had a responsibility to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce.
In the 1950s and 1960s, the role of the welfare state changed, and social goals were no longer assumed to be common goals. Individuals were free to pursue their own goals. The welfare state in this time expanded, along with legal aid provisions, as concerns emerged over the power of welfare providers and professionals. In the 1960s and 1970s, demand rose for the right of individuals to legally enforce economic, social and cultural rights and the welfare provisions they as individuals were entitled to. Mechanisms emerged through which citizens could legally enforce their economic, social and cultural rights, and welfare lawyers used legal aid to advise those on low income when dealing with state officials. Legal aid was extended from family law to a wide range of economic, social and cultural rights.
In the 1980s, the role of the classic welfare state was no longer regarded as necessarily positive, and welfare was increasingly provided by private entities. Legal aid was increasingly provided through private providers, but they remained focused on providing assistance in court cases. Citizens were increasingly regarded as consumers, who should be able to choose among services. Where it was not possible to provide such a choice, citizens were given the right to voice their dissatisfaction through administrative complaints processes. This resulted in tension, as legal aid was not designed to offer advice to those seeking redress through administrative complaints processes. Tensions also began to emerge as states which emphasised individual enforcement of economic, social and cultural rights, rather than collective enforcement through policies, reduced funding for legal aid as a welfare state provision. Individual enforcement of welfare entitlement requires the kind of legal aid funding states emphasising collective enforcement were more likely to provide.
Legal aid movements
Historically legal aid has its roots in the right to counsel and right to a fair trial movement of the 19th-century continental European countries. "Poor man's laws" waived court fees for the poor and provided for the appointment of duty solicitors for those who could not afford to pay for a solicitor. Initially the expectation was that duty solicitors would act on a pro bono basis. In the early 20th century, many European countries had no formal approach to legal aid, and the poor relied on the charity of lawyers. Most countries went on to establish laws that provided for the payment of a moderate fee to duty solicitors. To curb demand, legal aid was restricted to lawyer costs in judicial proceedings requiring a lawyer. Countries with a civil law legal system and common law legal systems take different approaches to the right to counsel in civil and criminal proceedings. Civil law countries are more likely to emphasise the right to counsel in civil proceedings, and therefore provide legal aid where a lawyer is required. Common law countries emphasise the right to counsel and provide legal aid primarily in relation to criminal proceedings.
In response to rapid industrialisation in the late 19th-century Europe, trade union and workers' parties emerged that challenged the social policies of governments. They gained passage of laws to provide workers with legal rights in the event of illness or accidents, in an attempt to prevent industrial action by industrial workers. Workers unions in turn started to provide workers with legal advice on their new economic, social and cultural rights. Demand for these services was high and in an attempt to provide workers with non-partisan advice, many governments started to provide legal aid by the early 20th century.
In the 20th century, legal aid has developed together with progressive principles; it has often been supported by those members of the legal profession who felt that it was their responsibility to care for those on low income. Legal aid is driven by what lawyers can offer to meet the "legal needs" of those they have identified as poor, marginalised or discriminated against. According to Francis Regan, legal aid provision is supply driven, not demand driven, leading to wide gaps between provisions that meet perceived needs and actual demand. Legal service initiatives, such as neighbourhood mediation and legal services, frequently have to close due to lack of demand, while others are overwhelmed with clients.
Australia has a federal system of government comprising federal, state and territory jurisdictions. The Australian (Commonwealth) and state and territory governments are each responsible for the provision of legal aid for matters arising under their laws. In addition there is a network of approximately 200 independent, not for profit, community legal centres.
Legal aid for both Commonwealth and state matters is primarily delivered through state and territory legal aid commissions (LACs), which are independent statutory agencies established under state and territory legislation. The Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with state and territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction.
Legal aid commissions use a mixed model to deliver legal representation services. A grant of assistance legal representation may be assigned to either a salaried in-house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties.
The Australian Government and most state and territory governments also fund community legal centres, which are independent, non-profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians.
By way of history, the Australian Government established the Legal Services Bureaux in 1942 to develop a national system. In 1973 the Attorney-General in the Whitlam Labor government, Lionel Murphy, established the Australian Legal Aid Office. Murphy recognised the urgent need for legal aid in order for justice to be equally available for all. Murphy recognised that: "one of the basic causes of the inequality of citizens before the laws is the absence of adequate and comprehensive legal aid arrangements throughout Australia ... The ultimate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts." (Senator the Hon Lionel Murphy AO QC, Attorney General) The establishment of the Australian Legal Aid Office in 1973 was followed by the establishment of state-based Legal Aid Commissions. These offices now provide the majority of free or lowcost legal assistance to those in need. In 1977, the Australian Government enacted the Commonwealth Legal Aid Commission Act 1977 (LAC Act), which established cooperative arrangements between the Australian Government and state and territory governments, under which legal aid would be provided by independent legal aid commissions to be established under state and territory legislation. The process of establishing the LACs took more than a decade. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia, followed in 1978 the Legal Aid Commission of Victoria (LACV), and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania. The cooperative arrangements that were established by the LAC Act provided for Commonwealth and state and territory legal aid funding agreements, which began in 1987.
In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement, the states and territories fund assistance in respect of their own laws. In 2013, a murder trial in the Supreme Court of Victoria was delayed because legal aid was unavailable. This has been cited as the effect of a reduction in government-funding for legal aid agencies in Australia and led to an increase in popularity for online legal aid resources such as the Law Handbook and LawAnswers.
Legal aid in Australia was discussed in the case of Dietrich v The Queen (1992). It was found that although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented.
The legal aid system in New Zealand provides Government-funded legal assistance to those who are unable to afford a lawyer. Legal aid is available for almost all court actions across all levels of the court system. This includes criminal charges, civil issues, family disputes, appeals and Waitangi Tribunal claims.
In Canada, the modern system of legal aid developed after the federal government instituted a system of cost-sharing between the federal and provincial governments in the early 1970s. The federal financial contribution was originally set at 50% of the cost of the legal aid system, but that level of funding has fluctuated over the years.
The actual delivery of legal aid is by the provincial level of government, as part of provincial jurisdiction over the administration of justice. For example, Legal Aid Ontario provides legal services for residents of Ontario, the Legal Services Society provides it to residents of British Columbia, and Commission des Services Juridiques does the same in the province of Quebec.
Article 47 of the Charter of Fundamental Rights of the European Union provides that legal aid will be made available to those who lack sufficient resources, in so far as such aid is necessary to ensure effective access to justice.
Central and Eastern Europe, and Russia
According to PILnet: the Global Network for Public Interest Law,
for over a decade, the countries of Central and Eastern Europe and Russia have been in the process of reforming and restructuring their legal systems. While many critical justice sector reforms have been undertaken throughout the region, the mechanisms to ensure individuals' access to legal information and assistance often remain inadequate and ineffective. Consequently, many people—especially those who are poor or otherwise disadvantaged—are left without any real access to legal counsel in both criminal and non-criminal matters.
In the Czech Republic, qualifying persons (usually those who evidence inadequacy of funds) can apply to the courts or the Czech Bar Association to have an attorney appointed to them.
In Denmark, applicants must satisfy the following criteria to receive legal aid for civil cases: The applicant must not earn more than kr. 289,000 ($50,000) a year and the claims of the party must seem reasonable. In respect to criminal cases, the convicted will only have to cover the costs if he or she has a considerable fixed income – this is to prevent recidivism.
England and Wales
Legal aid was originally established by the Legal Aid and Advice Act 1949. In 2009, legal aid in England and Wales cost the taxpayer £2bn a year – a higher per capita spend than anywhere else in the world – and was available to around 29% of adults.
Legal aid in England and Wales is administered by the Legal Aid Agency (until 31 March 2013 by the Legal Services Commission), and is available for most criminal cases, and many types of civil cases. Exception include libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingent fee), and cases associated with the running of a business. Family cases are also sometimes covered. Depending on the type of case, legal aid may or may not be means tested and in some cases legal aid can be free to those on benefits, out of work and have no savings or assets.
In July 2004 the European Court of Human Rights ruled that the lack of legal aid in defamation cases, which was the position under the Legal Aid Act 1988, applicable at the time of the McLibel case, could violate a defendant's right. The Access to Justice Act 1999 has exceptional funding provisions, which allow the Lord Chancellor to authorise legal aid funding in cases which are otherwise out of scope of the legal aid scheme. A defendant in a position similar to the McLibel defendants could potentially have legal aid assistance if the application met the exceptional funding criteria.
Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. A limited number of public defenders are directly employed by the Legal Aid Agency in Public Defender Service offices; they provide advice in police stations and advocacy in magistrates and crown courts. Civil legal aid is provided through solicitors and barristers in private practice but also by lawyers working in Law Centres and not-for-profit advice agencies.
The provision of legal aid is governed by the Access to Justice Act 1999 and supplementary legislation, most recently the Legal Aid, Sentencing and Punishment of Offenders Act 2012. There are complaints cuts to legal aid have prevented the poorest people getting justice.
Disabled people disputing benefit claims are usually denied legal aid forcing them to deal with complex and distressing cases without help. The numbers disputing when benefits are denied have fallen drastically and it is feared the most vulnerable are losing out.
Supreme Court justice, Lord Wilson of Culworth fears the effectiveness of legal aid is being reduced. Wilson said, “The disadvantaged who needed to be acquainted with their human rights and helped to enforce them were unlikely to be able to do so without free legal advice and representation. Even where it is required to continue to provide free legal aid, for example to defendants to criminal charges and to parents threatened with the removal of their children, the UK is dismantling it indirectly by setting rates of remuneration for the lawyers at levels so uncommercial that, reluctantly, most of them feel unable to do that work. Access to justice is under threat in the UK.” The Law Society maintains restrictions to legal aid are preventing defendants getting a fair trial.
BBC analysis found up to a million people are in areas without legal aid for housing, and 15 million are in areas with one provider. Liberty maintained ability to get justice had been "significantly undermined". Roughly a million fewer legal aid claims are dealt with each year, over 1,000 fewer legal aid providers received pay for civil legal aid work by 2018 than in 2011–12, four legal aid providers dealing with welfare cover Wales and the South West while 41 cover London and the South East, nearly half of all community care legal aid providers are London based. Richard Miller of the Law Society said those providing legal advice across England and Wales were ending their service, causing "legal aid deserts". Miller added, "Even for those cases where legal aid is still supposed to be available, it can be very difficult for a client to find a lawyer willing to take on the case." More litigants represent themselves, there were 65,000 representing themselves in 2017 and under 10,000 six years previously. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) stopped aid for areas of law that include family, welfare, housing and debt The LASPO also reduced the means test and ended automatic eligibility for people getting means-tested benefits. Solicitors dealing with legal aid contracts say they must turn people away "every single day", but they can no longer send them anywhere. Steve Hynes of Legal Action group said people solicitors must turn away will turn up in other public services, but by then their problems have increased out of control. Hynes added, "For many people across the country, getting help from a legal aid lawyer comes down to a postcode lottery which they are destined to lose." Experts maintain the burden of cost has just been transferred to the courts, NHS and social care, which in the end costs the state more. Law centres have also closed due to funding cuts adding to the problems of people needing legal aid. Nimrod Ben-Cnaan of the Law Centres Network, maintained the legal aid market was, "failing" since cuts, "shattered local ecologies of advice". He added, "Legal aid deserts appear when there are not enough local providers of legal assistance, normally because of the Legal Aid Agency's preference of fewer, larger agencies, meaning that if those pull out of a local area there is little provision left. ... The lost goodwill, subject expertise and local knowledge would take time to be rebuilt – but it is vital for communities that they are rebuilt." Malcolm Richardson, retired magistrate said legal advisers must increasingly guide litigant in person through court proceedings. He said, "It puts all the judiciary in a difficult position but also burdens the whole court system."
People getting legal aid fell by 82% over eight years, this causes unnecessary conflict and stress, also prevents satisfactory justice. Austerity from 2012 onwards reduced legal aid funding by roughly £950m annually in real terms, leading to a considerable rise in people who have to represent themselves. Parents give up trying to stay in touch with their children. Tom McNally said, “If we really wanted to make substantial reforms to the criminal justice system, it was almost impossible with the continuation of austerity.” Litigants in person do not know what evidence to bring or what questions to ask. During divorce and separation cases far fewer couples take up mediation. Without lawyers no one is around to point out less confrontational ways of settling matters. Philip Alston said that legal aid had become considerably less available in England and Wales from 2012, which had, 'overwhelmingly affected the poor and people with disabilities, many of whom cannot otherwise afford to challenge benefit denials or reductions and are thus effectively deprived of their human rights to a remedy'.
The number of defendants appearing in court without legal representation has increased drastically since legal aid became harder to get leading to greater risks of miscarriage of justice. Legal aid for defendants in criminal cases is means tested and the financial eligibility thresholds have not been raised to take account of inflation for years. Many defendants must pay towards their defence, which is sometimes nearly as expensive as paying privately for a solicitor or barrister.
In civil cases including employment, administrative, constitutional and social cases, assistance under the Legal Advice Scheme Act (in the form of advice and, where necessary, representation) is given. In criminal cases, the defendant has a right to counsel, and in certain cases when the penalty is at least one year of confinement, the defendant can be given counsel even against his or her wishes.
Known as Patrocinio a spese dello Stato, legal aid is provided by the Italian Law DPR n. 115/2002 – Articles. 74–141. It is intended to implement Article 24 of the Italian Constitution and ensure access to the right of defense (in civil, administrative and criminal cases) to persons not able to independently obtain the services of a lawyer due to the inability to pay for them from their income (less than €10.776,33 per capita).
The Constitution of the Italian Republic, Clause 24 states:
Everyone is allowed to take legal action for the protection of her/his rights and legitimate interests. Defence is an inviolable right at any grade of the proceedings. The means of action and defence before all Courts are guaranteed to the indigent by public institutions. The law determines the conditions and legal means to remedy miscarriages of justice.
Legal aid in Italy is a service to allow everyone to be assisted by a lawyer or by an expert witness free of any legal fees or costs in all criminal, civil, administrative, accounting or fiscal proceeding and "voluntary jurisdiction" and whenever the presence of a lawyer or expert witness is required by law. Legal aid is granted for all grades or stages of the trial, including all further connected incidental and contingent proceedings. It is granted before Tribunals, Courts of Appeal, the Supreme Court, surveillance courts and judges, Regional Administrative Tribunals, Judicial Review Committees, Provincial and Regional Fiscal Commissions and the State Auditors' Court.
Legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court in Scotland, with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners. There is a separate system of criminal legal aid, and legal aid is also available for legal advice.
Legal aid is means-tested. In practice it is available only to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board. Legal Aid in Scotland is also available in Criminal Cases, where more than 90% of Summary applications are granted. An Interests of Justice test is applied, as well as a means test. In Solemn case (Jury Trials) the Court assesses Legal Aid.
A unitary jurisdiction, Hong Kong provides legal aid solely provided through the Legal Aid Department, which is in turn overseen by the Legal Aid Services Council.
Administratively the Legal Aid Department was under the Administration Wing of the Chief Secretary's Office. In 2007 it was moved to the Home Affairs Bureau, which chiefly oversees cultural matters and local administration. This was heavily criticised by the opposition pro-democracy camp for jeopardising neutrality of the provision of legal aid. They voted en bloc against the whole package of reorganisation of policy bureaus, of which the transfer of the Legal Aid Department was part.
South Africa has a national judiciary as well as, in some areas, a tribal form of administration of justice. This is described as "legal pluralism". The informal "indigenous laws" are substantially different from the rest of the nation's laws and customs, hindering the provision of legal advice. However, the indigenous justice system in South Africa does not require representation, thus essentially eliminating the need for accessible legal aid.
In 1969 the government of South Africa recognized a need for legal aid, and responded by creating the South African Legal Aid Board which began its work in 1971 and now provides the majority of legal aid throughout the country. The Board has autonomy and is independent from government in its decision-making, and has sole jurisdiction over determining the provision of legal aid. The Board provides legal aid to all "qualifying indigent individuals" with an income of R600.00 or less. If individuals do not meet this qualification they are provided other methods of obtaining a lawyer, such as hiring one or, if this is not within their means, finding one who will work pro bono.
In a reflection of the history of apartheid in South Africa, nearly 85% of all lawyers in South Africa are white. The government has determined greater racial diversity in the field of law is a priority and there are travelling "clinics" to help provide education on South African law throughout the country, with the aim of spreading knowledge as wide as possible, though especially in poorer areas.
More than 80% of the Legal Aid Board's funding is directed towards provision of defence advocates in criminal cases. This is generally explained in South Africa as being the result of two causes: the majority of crimes being committed by those who are poor, and the provision of defence in criminal cases being a priority compared to civil suits. Prior to the enactment of the 1994 Constitution, 80% of all people tried as criminals went unrepresented, as there was no right to a defence and no obligation on the government to provide that defence. Upon adoption of the 1994 Constitution the South African government was obliged to create organizations such as the Legal Aid Board to help facilitate access to legal aid.
For those who seek assistance and are aware of their own role in the justice system, legal aid in South Africa is available through:
- Uncompensated private counsel (pro bono work)
- Candidate attorneys in rural law firms funded by the state
- Private counsel funded by the state (judiciary)
- Independent university law clinics
- State funded law clinics
- State funded justice centers (one stop legal aid centers)
- Private specialist law firms
- Paralegal advice offices
- Legal insurance schemes
All of these services exist and are protected by subsidies and incentives. However, these services have been open to criticism, with some saying that these extensive services that are unique to South Africa do not matter if there is no adequate education that these options are available to people. In response, the South African government has encouraged South African law schools to expand their reach and establish travelling "legal clinics" and encouraging schools to add a "legal literacy curriculum" to spread knowledge of this area.
Article 39A of the Constitution of India, provides for equal justice and free legal aid:
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
This Article emphasises that free legal service is an inalienable element of 'reasonable, fair and just' procedure, for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
In the civil side, Order XXXIII. R.18 of the Code of Civil Procedure 1908 provided that the state and central governments may make supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as an indigent person. The Legal Services Authorities Act, 1987 made drastic changes in the field of legal services. It is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.
Legal aid in criminal cases is a universal right guaranteed by the Fifth Amendment of the Constitution. A number of delivery models for legal aid have emerged in the United States. The Legal Services Corporation was authorized at the federal level to oversee these programs. In a "staff attorney" model, lawyers are employed by levels of government on salary solely to provide legal assistance to qualifying low-income clients, similar to staff doctors in a public hospital. In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare patients in the U.S. The "community legal clinic" model comprises non-profit clinics serving a particular community through a broad range of legal services (e.g. representation, education, law reform) and provided by both lawyers and non-lawyers, similar to community health clinics.
Defendants under criminal prosecution who cannot afford to hire an attorney are not only guaranteed legal aid related to the charges, but they are guaranteed legal representation, either in the form of public defenders, or in absence of provisions for such or due to case overloads, a court-appointed attorney.
The discussion surrounding legal aid and who is privileged to such a service has been criticized by law academics who assert that those who dominate and write the narratives of people who seek legal aid are individuals who benefit from the client narrative being one of inescapable poverty and desperation of an individual. Critiques assert that these asymmetrical, schematically constructed client profiles are required of civic legal aid programs in the capitalist framework of the United States as a tool to appeal to donors and other sources of funding. These representations and assessments of who seeks and deserves legal aid are argued to contribute to a culture of blaming the victims of poverty, as the narratives exclude the role the state and other civic stakeholders play in the creation of these client circumstances.
Legal aid is not provided in civil suits, nor deportation procedures, as these are not criminal proceedings.
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