The Legal Aid System was set in place by Clement Atlee in 1949 in order to provide those people who would otherwise not be able to afford legal representation with the chance to receive it. This means a fairer legal system for all people involved in it, in theory. However, in practice there are some hurdles which are still to be overcome in the legal aid system in order for the system to work in the way for which it was set up.
Over the past decade there has been great reform of civil procedure and now many more people are eligible to benefit from legal aid. The Government's aim was to "facilitate seamless access to justice,"1 and because of these reforms "Millions of people now have new rights in law, but limited means or ability to achieve rights in practice.
"2 This demonstrates an underlying theme that although people have gained more rights it is still hard to put them into practice as often the services are unavailable to those who need them the most. Throughout the duration of this essay I will be looking at suggested reforms which have been proposed for the legal aid system and the ways in which this may benefit the legal system as a whole, instilling more faith and trust in it from the public.
In his Article "Breaking the Deadlock," Arthur Marriot examines how the enforcement of the Legal Aid Act 1949 which was aimed at providing justice for the disadvantaged people in society who could not afford legal representation, has had "far reaching effects on the development, growth and financing of the English legal profession and the way in which lawyers conduct contentious business in the courts, before tribunals and in private arbitration.
"3 This view highlights the legal aid system working at its best, but fails to consider the aspects of the system which require change and which do not work to achieve such positive results as Arthur Marriot suggests in this article. Legal Aid has two main functions which are firstly "providing protection and representation to those accused of a criminal act, underpinning the guarantee of a fair trial," and secondly "actively contributing to the Government's social welfare agenda.
"4 These functions are key to a fair justice system and in theory legal aid does encompass them. However sometimes this is not the case for many different and complex reasons. Lord Falconer stated, in a speech to the Legal Aid Practitioners Group, that "The geography of legal aid is complex and constantly changing"5 thus demonstrating that meeting every person's needs for legal aid is highly difficult and to encompass everyone within the range of legal aid facilities is not always possible under the way in which the system is run at this time.
It is stated by The Citizens Advice Bureau that "access to legal aid solicitors in England and Wales is a postcode lottery, with one in four Citizens Advice Bureaus saying that they are in an 'advice desert'. "6 This reveals that many people miss out on the legal representation which they are entitled to receive as there are not enough solicitors in their area to help them. This is clearly a problem which must be targeted. Ensuring that every person is treated equally and has access to the legal means which he or she may require is a highly important state obligation under chapter 42, article 6 of the Human Rights Act 1998.
This states that everyone charged with a criminal offence has the right "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require, and to have free assistance of an interpreter if he cannot understand or speak the language used in court. "7 Surveys conducted by the Citizens Advice Bureau have pointed to a considerable lack of these legal services and this is something which needs alteration if the system is going to become fairer and more widely available.
The problem of geographical inconsistencies in the provision of legal aid is one which is highly concerning and I believe that this is an area which must be reformed so that the legal aid system can work to its full potential. Lord Carter's Independent Review of Legal Aid Procurement8 considered the ways in which the Government could bring their plans for a fairer legal aid system, outlined in "A Fairer Deal for Legal Aid,"9 into action.
Their aims were to secure improved publicly financed legal services, predominantly the criminal defence services. One major problem within the legal aid system is its rising costs and this is something that desperately requires reform. Lord Carter's approach to reform within the legal aid system suggests a move towards a scheme based around the idea of quality and value for money for the tax payer. There has been a steady increase in the spending of the legal aid system which is simply not sustainable.
The overall budget in the legal aid system has "increased by i?? 500 million since 1997 alone to i?? 2 billion last year,"10 and the steep increase in the money spent on criminal legal aid is putting still more pressure on what is available to support and fund civil legal aid and family legal aid. Lord Carter indicates that the main areas on which reform has been focused are in the system's efficiency, the aim is to create a more efficient system while also improving the quality of assistance provided by soliciters and barristers.
A reform which has been brought forward is the idea of rewarding efficient firms who provide high quality legal aid services at the least cost to the taxpayer, this will work both ways in that the firms will gain the legal aid contract with the taxpayer and thus draw in extra income, but as they are operating in an open and competitive market they will be forced to provide an efficient service in order to gain the contract and this ensures that the taxpayer gets value for money from the contract.
A further source of expense within the legal aid system are very high cost criminal cases. "These consist predominantly of fraud cases but also include drugs, murder, terrorism and money laundering. "11 These cases are generally more complex and last around 40 days and so amount to a vast amount of money. 50% of the legal aid budget in the higher criminal courts goes towards just 1% of cases, at the expense of civil cases and family cases.
The money used by the very high cost criminal trials drain the money from the legal aid budget and this money is taken away from civil and family cases which puts the people who are most vulnerable and at risk of social exclusion in a desparate position as they have nowhere to turn if legal aid is not available to them. Because of this, the report "Legal Aid: A Market-Based Approach to Reform,"12suggests reforms which could be made in order to minimise the costs of such cases. This paper sets out that all high cost cases must adhere to a "very high cost case best practice team protocol.
"13 This protocol encompasses ideas such as correct case planning, taking client's instructions, selection and instruction of experts and even the sharing of costs with the co-defendants legal team. I agree that this is an area of the legal aid system which does indeed need reform. The money which is sometimes wasted in these cases could instead be used for people who need legal aid but cannot receive it due to the system's inability to budget its money efficiently in these very high cost criminal cases.