Legal aid is the provision of assistance to people otherwise unable to afford legal representation. To fail to do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law.
A number of delivery models for legal aid have emerged. In a "staff attorney" model, lawyers are employed 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.[1] 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.
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 peopel who could otherwise not afford access to the legal system. Legal aid also helps to ensures 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 o the 20th Century, when democracies with capitalist economies established liberal welfare states that focused on the individual. States established themselves 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.[2]
Prior to the mid 20th Century literature of legal aid emphasised collective enforcement of economic, social and cultural rights. As classic welfare states were built in the 1940s it was assumed 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 responsible to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce.[3] 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. This led to increasing calls in the 1960s and 1970s 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 advice 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.[4]
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. This led to legal aid being increasingly provided through private providers, but 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 emerged as states which emphasised individual enforcement of economic, social and cultural rights, rather than collective enforcement through polices, 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.[5]
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Main article: Legal aid in the United States |
According to the Public Interest Law Institute (www.pili.org), '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 Scotland, legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court 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, and in practice only available 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.
Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949.[6] Today legal aid in England and Wales costs the taxpayer £2bn a year - higher per capita spend than anywhere else in the world - and is available to around 29% of adults.[6]
Today, legal aid in England and Wales is administered by the Legal Services Commission, and is available for most criminal cases, and many types of civil cases with exceptions including libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingency fee) and cases associated with the running of a business. Family cases are also often covered. Depending on the type of case, legal aid may or may not be means tested.
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, which was the applicable Act at the time of the McLibel case, could violate a defendant's right. The Access to Justice Act 1999 has a provision which allows the Lord Chancellor to authorize legal aid funding in cases which are otherwise out of scope of the legal aid scheme under the exceptional funding provisions. A defendant in a position similar to the McLibel defendants could potentially have legal aid assistance if their application passed the exceptional funding criteria.
Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil legal aid is provided through solicitors and barristers in private practice but also non-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.
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.
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 took its first major step towards a national system of legal aid when it established the Legal Services Bureaux in 1942. However, there was a move in the late 1970s to service delivery by the States and Territories (not the federal arm of government). 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 a number of years. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia 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.
Legal aid in Hong Kong, which is a unitary jurisdiction, is 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 further jeopardising neutrality of the provision of legal aid. They voted en bloc against the whole package of reorganisation of policy bureaux, of which the transfer of the Legal Aid Department was part of.
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Main article: Legal Aid Ontario |