The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
Legal aid in many countries means the provision of legal assistance through a variety of means (voluntary work, grant-aided or charitable legal-service bodies, pro bone) to the poor. In Brita in the term legal add is used more specifically to mean the provision of legal advice, assistance and representation through the legal aid scheme, which was first established by Parliament in 1949 and is now governed by the Legal Aid Act 1988.
Under the scheme those who fall within the prescribed limits of income and capital obtain the services of solicitors and barristers in private practice. The legal aid committees, which administer the scheme, also have to be satisfied that the applicant has a reasonable case on its merits. The services to the client are either free or relatively cheap, the state paying the fees to the lawyers. Over the years the financial eligibility limits have become so low that many people are excluded from the scheme even though they clearly cannot afford to pay lawyers' fees. As a result, many people are effectively excluded from the courts.
the history of legal aid has been that of a public service development
in the interests of the community and, in particular, those of the poor
and disadvantaged. It is, however, more accurately seen as a historical
struggle between the professional concerns of private legal practice and
the government, and between public service and the private market. In
1949, when the scheme was founded, the Law Society battled with the government
to keep legal aid in the hands of private practice and out of the hands
of salaried lawyers. The Law Society won, using arguments about the need
for lawyers to be independent. Paradoxically, the fact that legal aid
The legal aid scheme was limited from the outset. It was developed under a Labour government which was clearly hostile to the intervention of lawyers in the new welfare state. Legal aid was, therefore, generally made available only In those areas in which lawyers had always functioned and not in the area of so-called welfare law. The areas in which private lawyers operated were extended only as a by-product of the development of law centres and of welfare law (for instance, on issues of state support for women and children after divorce).
These limitations of the scheme meant that, as well as being under-funded, It was and still is inherently defective. Although in the criminal courts, in personal injury and in family matters, a large number of people have obtained the services of lawyers through the scheme, legal aid has nevertheless failed to provide the services that are most suited to the needs of vast numbers of people, especially the needs of the working-class, poor or disadvantaged sections of society. These are some of the main problems with our legal aid scheme :
These flaws in the legal aid scheme were becoming apparent within 20 years of its inception. At the same time, in the late 1960s and early 1970s, political activity and awareness were burgeoning after the long and relatively passive period since the end of the war. The decline in industrial relations led to an upsurge in trade-union activity and new repressive industrial-relations legislation generated yet more militancy. Black consciousness was also rising. The massive growth of immigration into Britain meant that there was a new political and economic concern about its impact on the country and a concern among many to ensure proper protection of the rights of these new minorities.
The growth in the social and political movements stimulated by these concerns was particularly obvious in the Inner cities, where living conditions for the poor, black and working-class residents deteriorated. These movements challenged the very legitimacy of authoritarian power. The challenge they made was not lust to the rights over which courts had jurisdiction but also to decisions of government, authorities and large corporations which remained relatively unaccountable and un-challengeable within the legal system. There was a demand for services that could operate in a non-litigation-orientated and socially responsive manner.
In the last 20 years and more, a wide variety of methods of work has been developed by law centres. Since the first law centre in 1970, they have sprung up in many, mainly inner-city, areas of the country, initiated by local community activists and lawyers as a result of perceived local needs for adequate legal services which private practice was failing to meet. Law centres have become popular and much in demand.
Despite the diverse nature of their services, there are common threads running through all law centres:
The Legal Aid Board, which was invested with duties under the Legal Aid Act 1988 to run the legal aid scheme and ensure other forms of legal advice, assistance and representation, is currently engaged in two major exercises in the reform of the policy and practice of legal services.
First, in the name of efficiency, it is experimenting with a reform of the green form scheme (by which eligible individuals obtain a limited amount of legal advice and assistance). Solicitors' firms and law and advice centres which participate will obtain a franchise to deliver these services. They will have to conform to a range of criteria imposed by the Board, and will be subject to close review and monitoring. In return, there will be some small improvements in the system of payment for these services. It remains to be seen whether this scheme will have any significant impact on services or practice.
Secondly, the Board is considering its future role in relation to the funding of law centres. These areas of activity are closely linked. Each arises from the endeavours of the Board to find a cheaper means of being seen to meet the ever-increasing demands for effective legal services.
The issues involved in many respects mirror transactions between local authorities and their grantees, all of which are part of the deepening contract culture. Contracts are seen by many as attractive because they can provide a degree of financial security. However, they also carry the grave dangers of increased control by the funder, and loss of flexibility and responsiveness.
contract approach is not surprising. Major industries are being privatised,
local authorities are required to tender competitively, public services
generally are obliged to compete with the private sector in cost-efficiency
and profit-making, and representatives of financial and
Starting with the Lord Chancellor's Department's Legal Aid Efficiency Scrutiny report of 1986, the proposals to cash-limit legal aid and to drive law and advice centres into competitive bidding provoked widespread opposition. Despite superficially abandoning those proposals in the subsequent Legal Aid Act, the government and the Board have so far failed to produce any satisfactory proposals as to the development of non-profit legal services and have, instead, set an agenda which has focused attention increasingly on contracts and the supervision or control which accompanies them.
Most recently the Lord Chancellor's Department has published its 'Review of Eligibility for Legal Aid ' in which the main proposal is that litigants only become eligible for legal aid once the costs of a case exceed a level determined according to the litigant's means. This will mean that all but the very poorest will have to pay substantial sums, possibly thousands of pounds, towards the costs of litigation before they receive any legal aid at all. The effect will be to deter litigants through cost. The proposals have attracted widespread opposition. Nevertheless, the review does provide considerable opportunities for the reform of legal services. it represents an acknowledgement of the deep problems within the legal aid scheme and the need for reform of legal services, including the development of alternatives to legal aid.
Containment of costs will always be a requirement of central government. However, the starting point for determining provision should not be primarily a financial exercise. The fundamental issues of the different roles of the law in society - as the arbiter of business disputes on the one hand, and as a framework for securing democratic rights on the other - must underpin any programme for meeting unmet legal need. The financial questions can be answered by ensuring that legal services are deployed as effectively as possible to relieve the greatest needs.
is a great deal of discussion to be had on how to resolve this in practice.
There are already models on which to base legal services reform and development.
Law centres and advice agencies could be developed to carry out casework
and provide advice and information in the context of an overall strategic
plan for the delivery of legal services. In this way they would
tackle underlying problems in a manner that Is responsive to the particular
concerns of the poor and working class. With adequate resources, they
could handle the majority of non-commercial cases. They could also, with
far greater expertise and authority than the Legal Aid Board could ever
have as a central government body, monitor those that participate in any
legal services scheme and make sure that their work is of the highest