Legal aid is fundamental to social and legal justice!
In a democratic society all citizens have a right to access justice and get a fair trial. Many people struggle to understand their legal rights and obligations. They often feel helpless when faced with problems. Without help they are unable to resolve these issues.
Legal aid funds advice to help people understand their legal obligations and if necessary enforce their legal rights. It protects people’s rights, ensures they get a fair trial and helps people play a fuller role in society.
Until 1949, there was no unified ‘legal aid’ scheme. During and after the Second World War thought was given to creating a fairer society for the post-war age. As well as the NHS, education, social security and housing, it was recognised that equality of access and the right to representation before the law was fundamental to a just society. Hence, the Rushcliffe Committee in 1945 published the Rushcliffe Report 1945 which made a number of recommendations leading to the establishment of the first legal aid scheme in the Legal Aid and Legal Advice Act 1949. The Rushcliffe Committee rejected various alternatives which would have created a service delivered by salaried lawyers specifically orientated to the particular problems of the poor. The Committee was persuaded by the arguments put forward by the Law Society and up until 1970, legal aid work was confined to solicitors working in private practice with a focus on divorce and matrimonial problems.
In 1969/70 the Lord Chancellor’s Advisory Committee on Legal Aid argued for more attention to be given to the needs of the people appearing before tribunals and called for ‘some form of ancillary legal services’. As well as the failures of the scheme to cater for the needs of the poor, alternative models of publicly funded legal services was also emerging from the United States. There, legal challenge had played an important part in the civil rights movement in the 1950s and 1960s. Legal services were accepted as an integral part of President Johnson’s ‘war against poverty’. It was at this time, in the late 1960s that alternatives were explored. An advice project was expanded in the summer of 1967 in North Kensington. This became the first Law Centre, which was officially opened in July 1970.
Up until the passing of the Legal Aid Act in 1988, responsibility for legal aid lay with the Law Society. In 1988, a new system was formalised and was brought under the control of central government who established the Legal Aid Board. With some exceptions, the Legal Aid Board was given responsibility for the funding of all work paid for by the state.
In 1999, the Access to Justice Act was passed. It abolished the Legal Aid Board and established the Legal Services Commission and redrew the whole system of funding and regulating legal aid. The Act gave it the power to radically reshape legal services. Civil legal aid now formed part of the Community Legal Service (CLS), and criminal work became the Criminal Defence Service (CDS). Any firm or agency which wants to undertake legal aid work now has to have a contract with either the CLS or CDS. Significantly, the Act also put a cap on the amount of money that could be spent on civil legal aid.
The Legal Services Commission is an a non-departmental public body sponsored by the Ministry of Justice. Ultimate responsibility for legal aid was given to the Lord Chancellor in the 1999 Act and, in 2006, renewed emphasis was given to legal aid by creating a new Ministerial post dedicated to the reform of legal aid. Day to day running of the scheme is devolved to the LSC, which runs the budget, awards contracts, controls quality and assesses bills and acts as a link with providers. Broadly, policy is determined by the Ministry for Justice, and budgets are set by the Treasury.
To commemorate the 60th anniversary of the Legal Aid Scheme, the Ministry of Justice set up a new website: 60 years of Legal Aid in 2009.
What does Legal Aid fund ?
The Legal Services Commission funds a range of legal services. The different levels of service in civil matters are:
Legal Help provides initial advice and assistance with any legal problem.
Help at Court
Help at Court allows for somebody (a solicitor or adviser) to speak on behalf of a client at certain court hearings, without formally acting in the whole proceedings.
This level of service covers mediation for a family dispute, which means trying to reach an agreed settlement with the help of an independent mediator. For more information about mediation and Alternative Dispute Resolution, go to ADR Now.
The level of service provides legal representation in court if a client is taking or defending court proceedings. It is available in two forms:
Investigative Help: funding is limited to investigation of the strength of the claim.
Full Representation: funding is provided to represent a client in legal proceedings.
If a client is eligible for legal assistance and the application for legal aid has been approved, the cost of providing the service will be covered by the Legal Services Commission, although in certain cases clients may be asked to pay a contribution.
Who can get legal aid ?
The Funding Code
The 1999 Act introduced a Funding Code which is a set of rules used to decide which individual cases can be funded by the Legal Services Commission. The criteria define what services the Commission will fund, ranging from basic legal advice to representation in court proceedings. Different criteria are set for different types of case according to priorities set by the Lord Chancellor.
The criteria are complex, but solicitors have to consider each one. These include things like a ‘sufficient benefit test’, alternative funding and prospects of success. Some areas of law are also excluded, i.e. they are ‘out of scope’. These include areas such as the making of wills, defamation, conveyancing and boundary disputes. It also excludes representation before most tribunals, although again there are some exceptions, such as representation at a Mental Health Review Tribunal and Representation before the Asylum and Immigration Tribunal.
To receive legal aid, people must also be financially eligible. Clients have to provide evidence of their finances, such as bank statements, saving books and details of earnings. If people are in receipt of income support, income based jobseeker’s allowance or guarantee state pension credit they will quality for funding without having to pay a contribution. The Legal Services Commission has an on-line Legal Aid calculator which works out if people are financially eligible. It can be found at: Legal Aid
Who provides legal aid services ?
Providing they hold a contract with the Legal Services Commission, legally aided services for civil cases are available from firms of solicitors and legal advice centres, such as Law Centres. To be awarded a contract the firm or Law Centre will have been checked by the LSC to see if they meet certain standards and provide a quality service. In recent years, the Commission has also established five Community Legal Advice Centres (CLACs) and Community Legal Advice Networks (CLANs). Plans are in place to develop these in other areas. By April 2009, CLACs had been established in Derby, Gatehead, Hull, Leicester and Portsmouth.
The Legal Services Commission are developing new quality of advice tools to assess and assure the quality of advice of service providers. These include Peer Review where independent assessors look at files to assess the quality of the work and the outcomes\results achieved for clients. At the moment, firms and agencies are able to apply for a ‘quality mark’. To receive funding from the LSC they must have the specialist quality mark. All Law Centres have this status.
Currently there are other quality marks, such as ‘general help’ and ‘general help with casework’ in a subject category. However, agencies with these levels of quality marks are unable to access funding from the LSC.
Community Legal Advice enables people to search an on-line directory of organisations who do legal aid work. There is a help line on 0845 345 4 345. Community Legal Advice (previously known as CLS Direct) expanded in 2006 to provide a new services which will help to diagnose callers’ problems, offer general information about rights and give callers further options about where to get help. A means test will be completed over the phone. BSS won the contract in June 2006 and will provide the service from a multi-media contact centre in Manchester.
To find out if you are eligible for legal aid, visit: Legal Aid where you find a Legal Aid Calculator
In 2008-09 legal aid spending was £2.09 billion: £1.18 billion on criminal legal aid and £0.91 billion on civil legal aid, covering 1.6 million and 1.3 million acts of advice respectively.
Logo to commemorate Legal Aid’s 60th birthday
Access to Legal aid in Europe
The European Commission for the Efficiency of Justice (CEPEJ) published a report into the efficiency and quality of European judicial systems in September 2008. The report is based on figures from 2006 concerning 45 states. Chapter 3 covers access to justice and legal aid.
The report: CEPEJ European judicial systems 2008.pdf. An updated report is expected in 2010.
Link to country profiles including the UK National Profiles. UK Questionnaire Response 2006.pdf
The European Commission for the efficiency of justice (CEPEJ) - Access to Justice in Europe report looks at more detail at the responses to the national questionnaires and has detailed statistics on legal aid. It also refers to the role of voluntary organisations.
The report: CEPEJ Access to Justice in Europe.pdf
Extracts from the two reports above: Definitions of Legal Aid -CEPEJ.doc and resolutions and recommendations referred to:
Recommendation 93 (1): Recommendation R 93 1 access for very poor 1993.doc
Resolution 78 (8): Resolution 78 - 8 on legal aid and advice Council of Europe 1978.doc
Resolution 76 (5): Resolution 76 5 legal aid in civil comm and admin matters 1976.doc
Update on CEPEJ activities.
The European Commission for the Efficiency of Justice (CEPEJ) was established on 18th September 2002. The creation of the CEPEJ demonstrates the will of the Council of Europe to promote the Rule of Law and Fundamental Rights in Europe, on the basis of the European Convention on Human Rights, and especially its Articles 5 (Right to liberty and security), 6 (Right to a fair trial), 13 (Right to an effective remedy), 14 (Prohibition of discrimination).
The CEPEJ is composed of experts from all the 47 member States of the Council of Europe. The Vice President of the CEPEJ is John Stacey from the UK. Profile: John Stacey Vice President of the CEPEJ.doc
Additional Protocol to the European Agreement on the Transmission of Applications for Legal Aid 2001.doc
Convention on International Access to Justice 01.05.88_.doc
In the Law Centres section:
A Law Centre - What we do
About Law Centres
Find your local Law Centre
History and Funding of Law Centres
How are Law Centres different?
How do Law Centres operate?
Find your local Law Centre
Complete list of Law Centres
Community Legal Services
The CLS is a network of organisations which funds, provides and promotes civil legal advice and representation. The Legal Services Commission (LSC) is responsible under the Access to Justice Act 1999 for developing and maintaining the CLS. The LSC are concentrating on :
Providing specialist legal services
Identifying client need for services
Facilitating joint planning and funding
Legal Services Commission
The Legal Services Commission also funds Community Legal Advice
LSC Leaflet: Step by Step Guide to Legal Aid: Step by Step Guide 12.08.pdf
LSC Leaflet: Paying for your Legal Aid: LSC Paying for Legal Aid May 07.pdf
LSC Leaflet: How to complain to the Legal Services Commission: How to Complain 11.08.pdf
LSC Leaflet: Representations - What we do when you think Community Legal Service funding should not have been granted: Representations 05.07.pdf
LSC Leaflet: Access to Information - How to request information from the Legal Services Commission: Access to Information 05.07.pdf
Legal Services Commission Leaflets