The Lack of Consensus on Aims and Objectives of Legal Aid System Hinders Assessment of Reforms

“It is difficult to judge the success of reforms in legal aid provision as we lack agreement on the aims and objectives of a legal aid system”. Discuss. INTRODUCTION Legal aid helps with the costs of legal advice for people who can’t afford it. If anyone needs help with the costs of legal advice, he can apply for legal aid. Whether he  will receive it depends on: the type of legal problem he has; his income (how much he earn) and how much capital (money, property, belongings) he has; whether there is a reasonable chance of winning his case and whether it is worth the time and money needed to win.

The legal aid scheme was set up after World War 2 by the Legal Aid and Advice Act 1949[1] in UK. The Legal Aid system was mainly introduced to help people who otherwise would not be able to afford it, to gain access the courts. It therefore enabled them to get a fair hearing and resolve legal problems. Legal Aid is central to a society based on social justice. It is there to help everyone who really needs it. And by reducing discrimination based on a person’s financial standing, it enables fair access for all to the courts.

We have to remember that before Legal Aid was introduced, many people could not afford to get the protection of our legal system due to the high costs involved. Thus, the aim of the Legal Services Commission[2] is to make quality legal aid accessible to everyone thereby ensuring effective delivery of justice and legal advice. The aims and objectives of it are, * help people to resolve their legal problems as soon as possible * make it easier for people to get legal help especially if they belong to a disadvantaged group * help people find alternatives to going to court Provide a high quality legal service. HISTORY OF LEGAL AID SYSTEM Prior to Access to Justice Act (AJA) – 1999[3] in UK, legal aid service was based upon demand laid system. The system became increasingly expensive to run while catering for fewer and fewer people. In 1950, 80% of the community was covered by legal aid provision. In 1998, the provision of legal aid had fallen to less than 40%[4]. From the mid 1980s, various Lord Chancellor tried to reform the system. Their task was made acute by the fact that expenditure on legal aid doubled to ? 1. 4 billion over a four year period to 1995.

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A variety of reforms were attempted. Payment systems were changed, eligibility criteria revised and control shifted from the Law Society to the Legal Aid Board (Legal Aid Act 1998)[5]. In 1997, Labour government suggested that there might be a change in the direction of legal aid policy[6]. A number of the changes have been made by the Children Act – 1989[7] and the Courts and Legal Services Act – 1990[8]. In 1993, two significant changes were made. Standard fees for criminal legal aid in the Magistrates Courts were introduced and the practice of franchising was initiated.

However, over the past seven years, the cost of civil and family legal aid had tripled which meant; the taxpayers were paying more and getting less in return. The problem was not simply the rising costs. As fewer people were becoming eligible for legal aid, it would appear that expenditure was not accompanied by an increase in value for money. Therefore, in 1996, Lord Mackay capped the legal aid budget[9]. CHANGES AND ADVANTAGES IN LEGAL AID SYSTEM Following the Access to Justice (AJA) Act – 1999, there had been many changes in legal aid system in UK.

Access to Justice (AJA) Act – 1999 established a Legal Service Commission[10](LSC) to maintain and develop the Community Legal Service[11] (CLS), replaced of civil legal aid and Criminal Defense Service, replaced of criminal legal aid. Section 5 of Access to Justice Act (AJA) – 1999[12] provides the budget for the Legal Service Commission (LSC) to maintain the Community Legal Service (CLS) fund. The Legal service Commission (LSC) funds these services by entering into contracts with solicitors by way of a franchise. The main aim for introducing the franchise scheme was to secure value for money.

Therefore, if solicitors feel that there are few chances of success in a case, they are deterred from expending money given to them by the Legal Service Commission (LSC). Thus, this leads to effective fund management on the part of the solicitors. Those who are ineligible for public funding, have to pay privately for legal services and this can be expensive. For this reason, the Lord Chancellor has developed the Conditional Fee Arrangement (CFA), which is a no win, no fee basis[13]. It was introduced by the Courts and Legal Services Act 1990 and was extended recently by the Access to Justice Act (AJA) – 1999.

However, it does not apply in criminal case, family case etc. Under the Access to Justice Act (AJA) – 1999, not only the court can order a losing party to pay the costs and success fee to the winning party, but it is also possible, by virtue of Section 29, Access to Justice Act (AJA) – 1999[14], to ensure against losing a case, which if won, the court may order the losing party to pay the cost of the insurance premiums. The Criminal Defense Service[15] (CDS) was established under Section 12 Access to Justice Act (AJA) – 1999[16] for the purpose of securing those individuals who are involved in criminal investigations or criminal proceedings.

They have access to ‘such advice, assistance and representation as the interests of justice require’. It is funded in a similar way as Community Legal Service (CLS), by the issue of franchise contracts, grants or loans or through the establishing and maintaining of advice and assistance bodies. Moreover, a duty solicitor scheme, which is free, is available to those people who are arrested and held in custody at a police station. LIMITATIONS OF ACCESS TO JUSTICE ACT (AJA) – 1999 However, despite the above, the legal aid service is still not very effective. There are lack of commitment and poor communication from the lawyers.

Community centers and Law centers are more effective in providing help and assistance. There are lack of advisers in areas like social security, housing, disability discrimination, employment and immigration. There is a distinct problem of ‘Access to Justice’ in certain where there are no solicitors who do publicly-funded work. Even, those solicitors who do publicly-funded work cut back on the number of cases they take on due to low rates of pay. Beside, the statutory charge may mean that a claimant may have nothing left even though he/she has won the case. CARTER REVIEW

In 2006, Lord Carter, in his review, drew attention to the need to continue reforming legal aid[17]. The review was concerned with the design of an efficient procurement system that also contained quality guarantees. Thus, it was based on the notion of an open and responsive market. The review argued that cost increases because of systematic weakness in the way legal aid services are procured and therefore, inefficiencies increases in the way the services are delivered. The Carter review recommended that fees should be paid on a fixed or graduated scale. However, fixed fees will impact negatively on advice, particularly in more complex cases.

This will eventually result into work being done by para-legals and less qualified advice workers. Some research available to Carter Review suggested that whereas small firms could provide criminal legal aid in an efficient manner, larger firms were not able to do the same. This would suggest that further research would be required on the impact of reform as it might drive out of the market those very firms that were best suited to provide value for money in provision of legal service. CONCLUSION Implementation of legal aid act in both developed and underdeveloped countries indicates government’s willingness to serve the poor.

However, the government must also ensure that the act is regularly reviewed to address loopholes. The Government should follow a strategy of continuous improvement. In order to judge the success of reforms in legal aid provision, it is necessary to first establish a set of criteria against which it will be evaluated. These criteria should be set by the Government officials, Judges, and Legal Aid experts. Few criteria that could be used to evaluate the system are given below. * Administrative efficiency with focus on the procedural aspects of legal aid applications. Easy access to the courts irrespective of claimant’s or defendant’s financial means. * Initiative to create awareness in rural areas, especially in under-developed countries. * Effect of legal aid on tax payers. It is also essential to have accessible legal aid services beyond the government organizations. An active partnership between and NGO and a government agency can play a very significant role in social service delivery. They compensate for each other’s weaknesses and deficiencies. However, the government has to balance the needs for legal aid with the pressuring needs of other social services such as healthcare and education.

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