Legal aid was conceived as a cornerstone of the welfare state. The current system was created by the Legal Aid etc Act 1949 as part of the welfare state at a time when free access to justice was regarded as a fundamental right in the same way as education and healthcare. At its inception, the scheme covered 80 per cent of the population. The principle was that legal aid should be available in those types of case where lawyers normally represented private individual clients. Public funding should not be limited to people normally classified as poor, but should include those of small or moderate means. Legal aid was introduced against a background of a Britain which was exhausted and bankrupt after World War II and deeply indebted to the United States.
The gradual dismantling of the welfare state and its replacement with profit-making institutions has not been limited to medicine, education and social services. It has had dramatic effects on the availability of legal remedies for the poor.
It is well known, if not often acknowledged, within the profession, that one reason why legal aid was reformed and restricted – a reason against which it was difficult to argue – was that the greed of lawyers in exploiting the legal aid system had led to runaway costs. This greed gave significant ammunition to those whose aim was the removal of welfare state principles from the legal system. Lawyers’ devotion to money resulted in a drying up of money from the state. It must be recognised and accepted that the reality was that the legal aid system was abused by lawyers. This is known to those of us who practised under the old legal aid system. High fees were demanded and paid. The cost of the system ran out of control. The result of this has been its Americanisation by the introduction of conditional fee agreements.
Legal aid is increasingly an irrelevance. Eligibility levels are now down to 29 per cent and personal injury cases are not covered at all. The reality is that legal aid is now known as a sink service for those on means-tested benefits.
This has been described as the justice gap, which is the legal aid vacuum, occupied by an increasing section of society which is neither sufficiently impoverished to qualify for legal aid nor able to afford a lawyer.
An example of the practical effects of the withering away of legal aid is given by the Legal Action Group (LAG) in its study of Dover magistrates’ court on a repossessions day. There were 35 listed repossession cases. The debt adviser from the local CAB was reported to have commented that many of the defendants were traumatised, unsure of what was going on, totally ill-informed and prepared to lose their homes because they thought that there was no alternative.
A LAG spokesperson made the point that in Britain today people can lose their homes through a legal process, often unnecessarily, in ignorance of the law and after being misled about their rights, without access to legal advice.
The English legal system now has disturbing similarities with the unreformed American healthcare system. It is mainly available only to the very rich or the adequately insured, and it bankrupts victims.