Does State funding of legal services ensure equal access to justice for all?
The law in the UK applies to everyone and it seems that everyone should have access to advice and assistance from the lawyers. It is important in civil and criminal cases when the reputation and the liberty of the accused is often in danger. However, there is always a danger that some people, particularly poorer and less well-educated members of society, will find it difficult or impossible to receive this advice and assistance. There are a number of reasons why, in practice, access may be limited.
The Access to Justice Act 1999, which came into force in 2000, introduced a new system of legal aid. In relation to those sections of the Access to Justice Act that deal with legal aid, the unspoken aim of legislation was to replace it with the concept of controlled and planned government spending. The total amount of money available is now limited and the funding body seek to regulate the way that solicitors carry out legal aid work.
Under these arrangements, legal aid funds can only be made available to firms that satisfy the quality control requirements of the Community Legal Service or the Criminal Defence Service. A contract between the CLS and the firm regulates aspects of how the partnership is run and exactly what service is provided to the client. Lawyers should be paid based on the quality of their work which will ensure that the taxpayer’s money is used effectively.
The purpose of the Criminal Defence Service is to ensure that, in the interests of justice, people suspected or accessed of a crime have access to advice, assistance and representation. People who are arrested are entitled to contact their own solicitor or alternatively obtain the free legal advice and assistance from a solicitor with a form taking part in the Duty Solicitor scheme. A Duty Solicitor can give advice on police powers of detention, the nature of any charges that have been brought and what rights the suspect has during detention. In addition, the Duty Solicitor scheme is available to unrepresented defendants who need basic advice and assistance when they appear as defendants in the Magistrate’s Courts. The Duty Solicitor is entirely free to the all users.
The Community Legal Service provides funding for the legal advice and representation in civil cases by solicitors operating under a legal Services Commission contract. The figures used for the maximum and minimum limits vary from one type of legal aid to another, but in general, anybody who earns over £25,000 per year in unlikely to receive funding. This is good solution because only people with poor earnings should be entitled to obtain legal help; other with higher income can pay for the legal service.
Most cases can only be funded if the chances are seems a 50% or greater. The Legal Service Commission will also look at whether the amount of money that could be received from winning the case justifies the likely cost. Under the old Legal Aid Act 1988, applicants had to show the Legal Aid Board that they had reasonable grounds for being party to an action. The old merits test was easier to meet. The new test extent to which case is likely to be won is not the only way of deciding whether it deserves to be funded.
The Woolf reforms introduced the idea of conditional fee arrangements which had the purpose of funding a large part of the civil litigation by private means instead of Legal Aid. The system works by allowing solicitors to charge their clients only upon successful resolution of the case (this is the so-called ‘no win, no fee’ arrangement). CFAs have shifted a lot of the financial burden from the government to the insurance industry. This system is more efficient and competitive. It makes the solicitor more interested in succeeding for the client especially in low-value cases. Recently, it has been noted that 5000 out of 11000 solicitor’s firms offering legal aid services would no longer do so in future. The reason for this is that because the new Act the solicitors have complained the contracting had a poor start when solicitors threatened court actions over criminal payments offered. There have been also complaints about bureaucracy and the very tough standards demanded by CLS. This could reduce offer from the law firms to be a part of the government legal funding. The Lord Chancellor in past few years stated that it will be fewer providers but they will provide a better service. However, the Law Society has expressed that soon there may not be enough legal aid solicitors to meet the public’s needs. The current funding system may also lead to more dependence on Government funding which may in turn lead to a poorer standard of work.
In conclusion, the current system, while better than the old system, has still some problems. The more strict criteria mean that only cases which have good prospects will be funded. Furthermore, funding may not be available to people with moderate earnings who are nevertheless deserving of such help. Equal access to all is more of an ideal and it is unlikely that the current system will provide a truly equal access to justice for all people.