• Robert Spicer

THE DECLINE OF LEGAL AID

LEGAL AID

Legal aid was conceived as a cornerstone of the welfare state. The 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.

In April 2000 legal aid for routine personal injury cases was abolished and replaced by “no win no fee” agreements, involving the recovery of insurance premiums and success fees from the losing party. These schemes are borrowed from the United States.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made further reductions in the availability of legal aid. Practitioners have reported great difficulties in accessing funding. This may be because clients believe that all legal aid has been abolished and tighter bureaucratic rules. Further cuts have been proposed since LASPO was introduced.


The huge gaps left by the withdrawal of the state from legal help for the poor are, it appears, to be filled by the adoption of conditional fee agreements, private charity, the whim of the rich, benevolent lawyers and detailed regulations issued by insurance companies.


McLibel

The McLibel case is inspirational for critics of English law.

In Steel and Morris v United Kingdom (2005) the European Court of Human Rights (ECHR) ruled that the denial of legal aid to the McLibel Two (Dave Morris and Helen Steel) deprived them of the opportunity to present their case effectively before the court and contributed to the unacceptable inequality of arms in libel proceedings brought against them. The proceedings had been unfair, in breach of Article 6 of the European Convention on Human Rights.


Morris and Steel were refused legal aid and represented themselves throughout the trial and appeal, with some help from volunteer lawyers. They argued that they had been severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses.


The ECHR ruled that the question whether the provision of legal aid was necessary for a fair hearing had to be determined on the basis of the particular facts and circumstances of each case and depended upon, among other things, the importance of what was at stake for the applicant in the proceedings, the complexity of the relevant procedure and the applicant’s capacity to represent him or herself effectively.


The trial at first instance lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing lasted 23 days. The factual case which the applicants had had to prove had been highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses.


The background to the case is that, in 1990, Morris and Steel were served with a writ from McDonalds over a leaflet being handed out in the street by London Greenpeace. The leaflet listed “hidden facts” about McDonalds which they believed that the public should know. These “hidden facts” criticised the effects of the fast food chain on the human body, the environment, animal welfare and the company’s employees

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