Legal aid

Legal aid is the provision of assistance to people otherwise 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.

History

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.[1]

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.[1]

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.[2]

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 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.[3]

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 law 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 law proceedings.[4]

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.[4]

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.[5]

By country

Australia

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.[6] 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.[7] 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[8] and LawAnswers.[9][10]

Legal aid in Australia was discussed in the case of Dietrich v The Queen (1992).[11] 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.

New Zealand

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.[12]

Canada

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.[13]

The actual delivery of legal aid is by the provincial level of government, as part of provincial jurisdiction over the administration of justice.[14] 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.

Europe

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.

Denmark

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.[15]

England and Wales

Legal aid was originally established by the Legal Aid and Advice Act 1949.[16] 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.[16]

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.

Germany

In civil cases including employment, administrative, constitutional and social cases, assistance under the Legal Advice Scheme Act (advice and, where necessary, representation) is given.[17] 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.[18]

Italy

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).[19]

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.

Scotland

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.

Hong Kong

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.

India

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.[20]

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.[21]

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.[22]

United States

A number of delivery models for legal aid have emerged. 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.[23] 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.

See also

References

  1. 1 2 Regan, Francis (1999). The Transformation of Legal Aid: Comparative and Historical Studies. Oxford University Press. pp. 89–90. ISBN 978-0-19-826589-4.
  2. ↑ Regan (1999), The Transformation of Legal Aid, pp. 90-91
  3. ↑ Regan (1999), The Transformation of Legal Aid, p. 91
  4. 1 2 Regan (1999), The Transformation of Legal Aid, p. 114
  5. ↑ Regan (1999), The Transformation of Legal Aid, pp. 113-114
  6. ↑ Legal Aid Matters http://www.legalaidmatters.org.au/facts
  7. ↑ "Trial on hold over Legal Aid row". Abc.net.au. 15 February 2013. Retrieved 16 July 2016.
  8. ↑ "The Victorian Law Handbook - Fitzroy Legal Service". Lawhandbook.com.au. Retrieved 16 July 2016.
  9. ↑ "Australia's #1 Legal Aid & Legal Questions Forum". LawAnswers.com.au. Retrieved 16 July 2016.
  10. ↑ "Legal aid cuts begin to bite". Abc.net.au. 7 April 2013. Retrieved 16 July 2016.
  11. ↑ Dietrich v The Queen [1992] HCA 57.
  12. ↑ "Archived copy". Archived from the original on 2012-10-10. Retrieved 2012-10-06.
  13. ↑ "Archived copy". Archived from the original on 2015-06-24. Retrieved 2015-09-07.
  14. ↑ Currie, A. "LEGAL AID DELIVERY MODELS IN CANADA: PAST EXPERIENCE AND FUTURE DEVELOPMENTS". Faculty of Law, University of British Columbia. Retrieved 12 March 2014.
  15. ↑ "domstol.dk - Sagsomkostninger". Domstol.dk. Retrieved 16 July 2016.
  16. 1 2 "Legal aid in 21st-century Britain", The Guardian, 12 March 2009
  17. ↑ "Legal aid – Germany". European Commission. 22 March 2005.
  18. ↑ "How To Germany - German Law and the German Legal System". Howtogermany.com. Retrieved 16 July 2016.
  19. ↑ "Legal aid – Italy". Associazione Art. 24 Cost. 8 December 2012.
  20. ↑ "Archived copy". Archived from the original on 2003-09-10. Retrieved 2012-02-09.
  21. ↑ "Hussainara Khatoon & Ors vs Home Secretary, State of Bihar (1979 AIR 1369, 1979 SCR (3) 532)". Indiankanoon.org. Retrieved 2016-07-17.
  22. ↑ "NALSA". Nalsa.gov.in. Retrieved 16 July 2016.
  23. ↑ Alan W. Houseman & Linda E. Perle, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States Archived 2007-07-10 at the Wayback Machine., pp. 10 and 29. Center for Law and Social Policy, November 2003
  24. ↑ CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario). "Resources and Publications | CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)". CLEO. Retrieved 2016-07-17.
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