Jenny BeckDiscussion on the influence and future of the UK legal system
Until the Legal Aid Act 1949 there was no legal aid available in civil cases, the majority of the population had no option but to rely on pro bono services for advice and representation.
The pro bono movement is important in the story of the development of legal aid as it demonstrated the need for legal advice services in civil law. When it became clear that demand was out-stripping the supply of pro bono services it acted as a catalyst for building political pressure for state funded civil legal services.
In the first half of the 20th century pro bono legal services were non-lawyer advice services, the most significant of which was the Citizens Advice Bureau service developed largely through voluntary and charitable effort. This type of ‘big society’ response was typical of how public services were being provided in the 19th and early 20th centuries.
Services most notable, education and health, have similar origins with churches and mutual help societies, for example, providing the funds and other resources to establish them. What they have in common is that they could not meet demand for assistance from a population who increasingly expected the state to assist them when they needed help. The ‘poor man’s lawyer’ became a generic name used to describe free legal services for people who couldn’t afford to pay for them. For over 50 years, despite inadequate geographical coverage and limited resources, the poor man’s lawyer services remained the only source of legal advice for many people. The inadequacy of these services was doubtless a big influence on the eventual establishment of the legal aid system.
A criminal legal aid system was established prior to the introduction of civil legal aid under the 1949 Legal Aid Act and whilst it funded very few cases in the pre-war period it established the principle that the state should pay for the defence of people accused of serious crimes. In 1930 a new criminal legal aid act extended the scheme to Police Courts (or Magistrate’s Courts as they’re now known). Legal aid was paid from local funds and any person who was committed to trial for an indictable offence would apply for a defence certificate if they did not have the means to pay for their representation. Expenditure on criminal legal aid began to grow as it became the norm to have representation in cases before the Magistrates on the Higher Court cases. The introduction of the Police and Criminal Evidence Act 1984 led to representation being available in the police station and this was another factor leading to the increased expenditure in criminal cases.
Throughout the last 50 years the criminal legal aid budget has expanded on a demand led basis
In relation to civil legal aid it is a misconception in the story of the founding of the legal aid system that it was planned as part of the Welfare State a sort of ‘National Health Service’ for law. William Beverage had talked of 4 pillars but none of them included law. They were want, disease, ignorance, squalor and idleness. Access to justice or the lack of it didn’t get a mention however, the 4 pillars of
- The National Health Service
- Universal Housing
- State Security (benefits)
- Universal Education
Led to a flurry of legislation in the post-war period and provided a framework of laws providing for citizens from cradle to grave. This provided a system of state services and whilst the legal aid system was established in 1949 it did not, at the outset, assist the public in enforcing the rights granted to them by the Welfare State. This was a role that it evolved to fill over the next 30 years. At the outset the civil legal aid system mainly met the demand for help with divorce cases as the pro bono system of advice previously described had done.
Lord Rushcliffe, a barrister and former Conservative MP, had been given the task of forming a committee to look at establishing a legal aid system in 1944. He largely accepted what The Law Society had proposed to the committee which was for a legal aid system provided by solicitors in private practice and where appropriate, barristers. His findings were the following:
- Legal aid should be made available in cases where lawyers normally represented private individuals.
- Legal aid shouldn’t be limited to people normally classed as poor but should include those of moderate means.
- There should be an increase in scale of contributions payable by those with an income or capital above minimum levels.
- In addition to the means test, cases would be subjected to a merits test.
- Legal aid should be funded by the state but administered by The Law Society.
- The Lord Chancellor should be the minister responsible assisted by an advisory committee.
- ‘Adequate’ remuneration should be paid to barristers and solicitors working under this scheme.
At first 80% of the population were entitled to civil legal aid on the means test but successive governments tended to adjust eligibility downwards and over the subsequent years measures were taken to restrict both eligibility on means and eligibility by scope to take control of the spend on civil legal aid. The scheme we have today allows for representation of only the very poorest and only for restrictive categories of cases. This has created a number of significant challenges and threatens access to justice and the rule of law
In March of 1986 the figures showed there had been a 50% increase in legal aid expenditure in the last 2 years in spite of attempts to curb this spend and that the rises were greater than the number of clients served. Cost increases in this period led to the Legal Aid Act 1988. The centre piece of that legislation was the replacement of The Law Society with The Legal Aid Board as the administrators of the scheme.
The Legal Aid Board ran for over 10 years until 2000 when The Legal Services Commission was formed. Control of expenditure was mainly achieved by changing eligibility and scope in civil legal aid. In 1992-3 the percentage of households eligible for civil legal aid was drastically reduced from 77% to 53% and in the subsequent years nibbled away to levels that make civil legal aid largely a sink service for people on means tested benefits.