THE LEGAL AID

THE LEGAL AID

“It is difficult to judge the success of the reforms in the legal aid provision as we lack agreement on the aims and objectives of a legal aid system.”

INTRODUCTION

I would agree with this statement. To judge the success of a public policy measure it is necessary to firstly establish a set of criteria against which the measure will be evaluated. What criteria will be preferred by an individual or a public body will however not depend on logical reasoning but very much on a political opinion held by the individual. With regard to the legal aid system, there will be a variety of such criteria that could be used to evaluate the system. One criterion could be administrative efficiency, which is setting legal aid applications quickly and looking principally at the procedural aspects of the system. Another criterion could be a notion of justice and wide access to the courts irrespective of the claimant’s or defendants financial means. The third criterion could be the effect of legal aid on the taxpayer. There are obvious contradictions in the criteria. Some might argue that the provision of legal aid is an important pillar of the welfare state seen as the second arm to NHS. Others might be in favour of a system that places as small burden as possible on the taxpayer and free the resources for other areas of social needs, housing, accommodation, social services. The argument could then be that in a market economy each individual has to be responsible for himself and that extends to access to legal services. The line of argument will depend on one’s political opinion. Furthermore, the current legal aid does not clearly represent one single criterion but is the result of an attempted compromise between many, contravening criteria.

In a time of limited public budgets the government has to balance the needs for legal aid with the pressuring needs of other social services such as healthcare and education. Ultimately, cuts have to be made somewhere. It is however, a failure of the system that while cost effectiveness is achieved many people have fallen out of the system. It is a pity that Lord Woolf’s proposal to introduced standardised fees has largely not materialised. Such step would have enabled the insurance industry to offer private legal expenses insurances, which is standard in other countries such as Germany at reasonable premiums. This could have mitigated government withdrawal from an important pillar of welfare state.


LEGAL AID AND LEGAL SERVICES: OVERVIEW AND HISTORY OF THE PROBLEM

The Legal Aid Scheme was set up after the World War II by the Legal Aid and Advice Act 1949. The administration of legal aid was in the hands of the law society from 1949-1989 unlike the NHS (a state body)

INHERENCT PROBLEMS OF THE SYSTEM

The recent history of legal aid in Britain is a story of failure as the system became increasingly expensive to run while catering for fewer and fewer people. In 1950 80% of the population were covered by the legal aid provision, but by 1998 the figure has fallen to less than 40%. In 1970s the scope of eligibility was expanded driven largely by the need to provide legal resources for divorce proceedings. Later economic recession meant less government funding and at the same time pressure on the system from social problems caused by unemployment. Critical period was the Thatcher and Major Conservative Administration with the policy of cutting public spending and looking towards ‘the market’ to provide solutions. The legal aid spending doubled to £1.4 billion over a four year period to 1995. Various Lord Chancellors embarked on reforms which included changing of the payment system, eligibility criteria revised and control moved from the Law Society to the Legal Aid Board (LAB) (Legal Aid Act 1988).

When Labour Party came to power in 1997 it continue with the endeavour to control legal aid expenditure. In 1993 standard fees (fixing tariff for certain kind of work) for criminal legal aid in the magistrate courts were introduced and practice of franchising (block contracting) initiated. In spite of the changes cost continued to rise and fewer people were becoming ineligible. Increase in expenditure was not accompanied by increase in value for money. In 1996 Lord Mackay ‘capped’ the legal aid budget. Regional authorities of the LAB were given a lump sum and once the money is spent no more were fund made available. Complex cases fell outside the scope of the standard fees and were still paid under the traditional system of calculating the bill after the event. It was thought that this offered lawyers inappropriate financial incentives which meant that funds were not being used effectively. In 1996-96, 42% of legal aid spending in the crown court was just of 1% of the cases. Some though lawyers were playing the system, seeking un-necessary adjournments, and delaying guilty pleas. Sir Peter Middleton’s Review of the Civil Justice was presented to the Lord Chancellor in September 1997 – over 7 years the cost of civil and family aid has tripled to £671 million, average cost has grown from £1,442 to £2,684 – 53% above inflation. The numbers of acts help funded in1996/97 fell by about 39,000 - he taxpayers and paying more and getting less. That cannot be right and it cannot continue.

The civil legal aid problems were not just rising costs, but decreasing group of people who were eligible. Many people of modest incomes fell outside these criteria. They were thus effectively prevented from using the courts because they were too expensive. There were also concerns at the inflexibility of the system. It was difficult to target resources on priority areas. There were areas of unmet need. Ideas for reform focused on the framework for determining lawyers’ rates of pay, which was seen to be inflexible. Standard fees were seen as an improvement, as they allow more government control over expenditure on legal services.

FEATURES OF THE LEGAL AID SCHEME

The key features of the legal aid scheme include:

i) Legal Advice and Assistance (Green Form Scheme) – Two hours of advise on any legal problem; this excluded court work. At the beginning of the 1990 there were a million cases a years.
ii) Assistance by way of representation (ABWOR) – ABWOR allowed representation in courts. It applied to domestic proceedings in magistrates’ court, representation in relation to mental health tribunal, representation under PACE and certain child care proceedings.
iii) Civil Legal Aid – This aid covered work involved in bringing or defending a civil case in court. Under Legal Aid Act of 1988 (s.5(2) a grant of legal aid depended on both a merit test and a means test.
iv) Merit Test – First part of the test is an assessment of the claimant’s chances of success while the second part is based on the criteria of a reasonable solicitor advising a reasonable client (spending his means on the case).
v) Mean Test – Those of very low income, or with no disposable capital who would be entitled to free legal aid; those who are eligible to legal aid bit had to pay a contribution and those wealthy enough to fall outside eligibility altogether

CRIMINAL LEGAL AID

In general, criminal legal aid applied to defendants after they had been charged; legal aid would be granted by a court after an application was made either to the magistrate court or the crown court. The Court has discretion, the test being whether it was desirable in the interest of justice that the aid should be given (LAA 21(2). Consideration includes avoiding denial of liberty and complexity of the case and whether the applicant is financially eligible. Legal aid is obligatory for an accused on trial for murder in the Crown Court 21(3)(a). A duty solicitor’s scheme was set up in Magistrates Courts and Police station was non-means tested and non-contributory. This is free and was set up to cover the requirements of PACE. The scheme is run by local solicitors on rota basis, the scheme is also free and provide legal assistance to those without representation

REFORM OF LEGAL AID: SOLUTIONS TO THE FUNDING PROBLEM

The AJA 1999 (ss.27-31) together with the Conditional Fee Arrangement Regulations (CFAR) 2000 and the Collective Fee Arrangement Regulations 2000 reformed the law relating to conditional fees to enable the court order a losing party to pay in addition to the other party’s normal legal cost, the uplift of the successful party lawyer’s fee and in any other case where he litigation has insured against facing an order for the other side’s cost, any premium paid by the successful party for that insurance. The intention was to:

a) Ensure that compensation awarded to successful party is not eroded by an uplift or premium
b) Make conditional fee more attractive in particular to claimants seeking non-monetary reduction (because they cannot rely on damages to meet the cost of uplift premium
c) Discourage week cases and encourage settlement
d) Provide a mechanism for regulating the uplifts that solicitors charged. In future unsuccessful litigants will be able to challenge high uplifts when the courts come to access costs.

i) Conditional fees in civil litigation – Conditions fees or ‘no-win-no-fee’ arranged is a form of risk sharing. If lawyer loses the case, the client does not pay. If the case is won, the lawyer can be re-compensated through success fees, which is work out as a percentage of his costs. The maximum fee was set at 100% of the lawyer’s normal fee for the work undertaken. A lawyer is unlikely to take on a case that only has a low chance of being successful. Weaker case would not be funded. Conditional fees encourage lawyers to manager their work efficiently. They were first introduced by s.58 of the Court and Legal Services Act 1990. The range of cases covered was extended in 1995. It can now apply to proceedings involving personal injury, insolvency and cases before the European Commission and European Court of Human Rights. In 1995 the Law Society issued a code of guidance which suggested voluntary limit of 25% of any damages that could be taken as success fee.

ii) Legal Expenses Insurance - The law society also arranged a scheme of insurance for their client against meeting their opponents’ costs in personal injury cases. The two types of insurance under the scheme are:

a) Before the event Insurance (BEI) – General form of insurance against legal cost that may occur, often part of broader insurance policy or as stand alone. Compared to AEI, BEI is cheap and flexible.
b) After the Event Insurance (AEI) - The insurance scheme covers the insured person against the risks of losing a court case. It works alongside conditional fee arrangement and provide cover if the insured person is unsuccessful in the litigation and has to pay the costs of the opposing party. The premium can be high and compared to BEI it is more complex to administer, there is also problem if the costs exceed the insured limit.

O’Hare and Hill (2001) predicted that there will be increasing demand for BEI in England and Wales. BEI funded around 337,000 cases in England and Wales with fee revenue of £105 million. In Germany where there are 20,000 more practicing lawyers than England and Wales, BEI three (3) million cases generating £800 million in fees. There was no equivalent of legal aid scheme then operating in Germany

Conditional Fee And The Development Of The Common Law

Since the introduction of conditional fees, the common law has been developed in two decisions by the courts. In Thai Trading Co (A fim) v Taylor 1998 the Court of Appeal held that there was no longer public policy grounds to prevent lawyers agreeing to work for less than their normal fees in the event that they were unsuccessful provided that they do no seek to recover more than their normal fees if they were successful. In Bevan v Ashford (1998) the Court of Appeal held that it was also lawful for a conditional fee agreement to apply in a case which was to be resolved by arbitration (under Arbitration Act 1996) even though these are not court proceedings provided that all the requirements specified by the Regulation as the form and content were complied with.

Following the decision in Thai Trading Company s.8 of the Solicitor’s Practice Rule was amended in January 1999 to allow any arrangement already permitted under state or common law. However, the case was not settled. The CA in Geraghty v Award (2002) the agreement was held unenforceable as being both contrary to legislation and common law by following the decision of the House of Lords in Swam v The Law Society (1983) which held that the Practice Rule had the effect of statute. In Gallery v Gray (2002) the House of Lords expressed concerned that the CFA are opened to with lawyers charging excess fees and using cases they won to offset the one’s lost and 20% was thought as permissible for such fee but in Halloran v Delaney (2006) 5% was thought appropriate figure. In English v Clipson (Peterborough County Court) unreported case (S&H p. …) the explanation by a non-solicitor was held as non-compliance with conditional fee rendered unenforceable. In Sharat v London Central Bus Co.) It was possible for a solicitor to delegate the explanation. In Worth v McKenna (Liverpool County Court) 2002 it was claimed that the CFA was a privileged document and the defendant was not entitled to see it.

CFA does not sit well with the indemnity principle of the English law and there is a strong view that the agreement should be disclosed during hearing and payment should be restricted to base fees by unsuccessful party and uplift and insurance premium from damages. Fixed fee is being considered with claim of £10,000 set as – fixed fee £800, 20% of damage for £0-5000; 15% for £5,000 upward; VAT and disbursable.


MIDDLETON REVIEW

Middleton review proposed a central body to become more active in the delivery of legal services. Lawyers and other providers will only be able to work under the scheme when they have a contract with or a grant from the Legal Services Commission (LSC) s.13.3.1. This was to eliminate the bureaucracy associated with case by case consideration. In addition, competition among legal firms for contract will engender better value and greater sensitivity to regional variations in price and demand. Contract could contain incentives to do certain kind of work, and to allow some of risk of litigation to be borne by the solicitor’s firms rather than their clients.

CRITICISMS OF CONDITIONAL FEES AND LEGAL EXPENSES INSURANCE

Legal Aid Group had pointed out problems with the lack of regulation of companies who manage the claims. Research suggests that the services of these intermediaries are relatively costly to clients and yet yield less in terms of settlement levels, even though they take on a relatively low-risk caseload. The main contribution of referral agent is one of which, they are able to advertise widely and encourage large number of claimants to enter Conditional Fee Arrangements (CFAs). LAG also argued that the insurance companies are driven by profit, rather than interest of their clients. The failure of two insurance companies (Claim Direct and The Accident Group) suggests there is need for government intervention.

Legal Expenses Insurance has been part of household insurance policy in Sweden since 1960s and the withdrawal of state funded aid was felt less acutely. Ninety seven percent of all household in Sweden have this form of insurance but disadvantaged groups do not. Opponents of legal insurance have been suggested that it encourages litigation rather than settlement. LSAG suggests that LEI might naturally overtake CFAs as the preferred means of funding for many civil claims in this jurisdiction,


ACCESS TO JUSTICE ACT 1999

As part of the process for continued reform of the funding of legal services the Access to Justice Act 1999 came into force. Some of the key features of the Acts include:

a) Community Legal Service – The Legal Service Commission (LSC) was created under Access to Justice Act 1999 to establish, maintain and develop a Community Legal Service (CLS launched 1 April, 2001) and Criminal Defence Service (CDS). The LSC replaced the Legal Aid Board (LAB). CLS fund is said to rest on certain key foundational ideas:

Ø A planning system - this will allocate resources by reference to national and regional priorities, ensuring that these resources are available in areas of greatest importance and need
Ø Contracting – Contracts will allow the system to be more sensitive to needs ‘on the ground’ – greater value for money and way of monitoring standard
Ø A new funding assessment – s.8 of the Act. The assessment of each application will determine which cases will be funded. It revises the merit test

b) Criminal Defence Service
The old criminal legal aid scheme is replaced by Criminal Defence System (CDS). CDS is separate from CLS because they are both located in different parts of the justice system. The CDS covers representation in court, advise and assistance for suspect being questioned by the Police. The administration of CDS will focus on quality and value for money

c) Contracting

Most publicly-funded CDSs will be by provided by lawyers in private practice under contracts. The contract will cover full range of CDS from advice at the police station, to representation in magistrate courts and if necessary crown court. One advantage of the system is that it would eliminate fragmentation that characterises the old legal aid scheme. If the case does require the services of a specialist advocate in the Crown Court, this would be provided under a separate contract.

d) Salary Defenders

CDS should be able to employ lawyers directly as salaried defenders. Evidence from other countries suggest that properly funded salaried defenders can be more cost-effective and provide a better service than lawyers in private practice. The government believes in the longer term, the best approach will prove to be a mixed system, combination of both private and staff lawyers. The cost of salaried services will provide a benchmark, which the CDS can use to assess whether the prices charged by private lawyers are reasonable



e) The Funding Code

The funding code is the set of rules used to decide which individual cases are to be funded by the Legal Services Commission as part of the Community Legal Services. It replaces the ‘merit test’ for civil legal aid. The criteria define what services the commission will fund, ranging from basis legal service advice to representation in court proceedings. Different criteria are set for different type of case according to the Lord Chancellor’s priorities

f) Funding Civil Litigation And Advice

The levels of services available for funding civil litigation and advise include legal help, help at court, approved family help, legal representation, support funding, family mediation. The effect of the funding codes on the levels of services is examined below:

Ø Help at court – authorises help and advocacy for a client in relation to a particular hearing, but does not cover a lawyer acting formally
Ø Legal representation – cover representation for a party extending to litigation and advocacy – investigative help and full representation which covers proceeding so far as disclosure and full representation, which means a grant of legal representation other than investigative help
Ø Support funding – grant which authorises the same level of legal representation, but which is limited to partial funding of proceedings which are otherwise being pursued privately, under or with a view to conditional fee agreement
Ø Investigative support – means support which is limited to investigation of the strength of the proposed claim with a view to a conditional fee agreement
Ø Litigation support – mean grant of support funding other than investigative support. It covers partial funding of high cost litigation proceedings under a conditional fee arrangement
Ø Approved Family Help – grant which authorises help in relation to a family dispute including assistance in resolving that dispute through negotiation or otherwise
Ø Help with Mediation – approve family help limited to advice to a client in support of family mediation, held in drawing up any agreement reach in mediation and where appropriate help in confirming such agreement in a court order and related conveyancing work.
Ø General Family Help – approved family held other than help with mediation
Ø Family Mediation – grant which authorising mediation of family disputes, including assessing whether mediation appears suitable to the dispute and the parties and all the circumstances
Ø Emergency representation – a special procedure by which legal representation may be provided prior to full assessment of means in cases of urgency. It does not have criteria. This work will be carried out under contract for which separate application to the commission is not required at the onset of each case. Majority of controlled work will be authorised under the Commission’s General Civil Contract, unlike legal aid no certificates are issued for controlled work
Ø Licensed Work, Individual case contracts, This level of fund covers other grants or contract work.

g) Merits, Cost And Damages

Decision on funding is determined by the following key consideration:

i) Prospects of success - The likelihood of the client obtaining a successful outcome in the proceedings, assuming they were determined at trial or other final hearing
ii) Categories - very good 80% and above, Good 60%-80%, Moderate 50%-60%; Borderline – difficult dispute of fact, law or expert evidence it is difficult to say prospect is better than 50%; Poor less than 50% likely to fail; unclear means cannot be placed into any of the categories further investigations required.
iii) Unclear – funding may only take the form of investigative help. This also apply to support funding

In general sense, the prospect of success could be said to be unclear in almost every case – only limited information. Cases should only be put in unclear categories only if there are specific steps which need to be taken. Clinical negligence cases are best example of an unclear situations

h) Cost-Benefit Criteria

Criteria for full representation include three separate cost benefit tests – Quantifiable claims (specific strict damages-to-costs rations); Unquantifiable (whether benefits justify the likely cost) Public interest (likely benefits of the proceedings must justify the likely cost)

i) Funding Criminal Litigation

The old system of criminal legal aid came to an end in April 2001 and was replaced by Criminal Defence Service (CDS) administered by the Legal Services Commission. In May 2001 the Commission began to employ defence lawyers called public defenders. The Public Defender Service runs parallel to solicitors in private practice. In Israel the office of the public defender contracts with private practitioners. In England and Scotland, Public defenders offices are small salaried experimental groups of lawyers employed by the Scottish Legal Aid Board and the Legal Services Commission. In San Francisco, the public defender is elected by the people. In New South Wales, the post is a prestigious one concerned only with higher level advocacy. In many US states and in the US federally, it generally means an independent organisation that employs salaried criminal practitioners.

According to Roger Smith there are three main ways in which criminal legal aid can be provided – private practitioners employed on cases-by-case basis often know by the US phrase ‘Judicare’; salaried practitioners employed by the legal aid authority/commission, often referred to as ‘in-house counsel’ and practitioners employed by an independent legal organisation, often called a Public Defender office, which may or may not double as funding agency, known as the staff model.

The three levels of advice under criminal legal aids are:

o Advice and assistance – intended to allow those with moderate means to obtain a solicitor’s help (general advice, letter writing, taking part in negotiations, obtaining an opinion of a barrister and preparing case in writing. It does not cover representation in court. To qualify income at £91 per week and disposable capital set at £1,000 or less
o Advocacy Assistance – covers both cost of solicitor, preparing case and initial representation in certain proceedings in the magistrate and the crown court. There is merit test for advocacy assistance. But there is no means test, except for prison work
o Representation – is available if a person has been charged with a criminal offence. This covers both cost of solicitor, preparing case and representation in court. Representation by a Barrister in a crown court would also be covered. Representation is applied for by the lawyer and application considered by the court. Details of income and savings may be relevant if it is in a crown court case. A person can qualify if he is represented by a Solicitor contracted with the commission or the court decides that representation is in the interest of justice
o Court duty Solicitor Scheme – relates to criminal case that are being heard in a magistrate court. Solicitor will give free advise and representation for a first appearance. There is no means test for the Court Duty Solicitor Scheme
o Police Station Advice and Assistance – A person qualifies if he or she is being questioned by the police for an offence irrespective of whether he has been arrested or not. There is no means test for the Police Station Advice and Assistance.

CRIMINAL CONTRACTS
There has been misgivings that the new contract will mean that there are simply not enough criminal defence lawyers, quality control and standards and adequate supervision by a new body. The predominant model remained that of lawyers in private practice and general reluctance to move towards the model of salary providers of legal services. Recruitment and training of new case workers is an expensive business and under-capitalised legal aid firms operating on small margins find it difficult to expand, even when they know the demand is there. Experiments such as law centres remained largely peripheral

In Canadian province of Nova Scotia, legal services are provided by staff lawyers working from legal aid offices

Mackay argues that present structure of legal services effectively limits the real possibilities of reform. The model of provision from private firms is likely to retain its hold and it is hard to see how this could be transformed. Salaried services can be deployed in ways that private practice cannot. It could have effect in social welfare and not-for-profit sectors. Charities and advice agencies can become providers of legal services

PLANNING

The issue of funding is one of the central planks of the reforms. LAG has argued that the old legal aid system did not allow the effective planning of legal services. Studies show that there has been a reduction in the legally aided civil litigation and it is difficult to determine reasons for this reduction. It may be partly due to the increased use of conditional fees, research also suggests that premium is set too high for those with low incomes.

Community Legal Services Partnerships (CLSP) begun in April 2000 aimed at allowing grassroots inputs into planning and provision of legal services. CLSP bring together local authorities, charities, local lawyers and advice groups, identify legal needs at local level and communicate this to the Regional Legal Services Committees. The commission activities are expensive. It is estimated that the planning initiatives cost £2.8 million. It is also problematic that there is no independent body to assess the activities of the commission.

STANDARDS

The whole trust of LSC’s approach to quality is based on management system. The franchise, and now contract standard, Legal Aid Franchise Quality Standard (LAFQAS) is based on the industry model of Total Quality Management. LAFQAS approach has brought some welcome improvements in the running of firms and a change in the management culture of legal practices, its shortcoming are becoming increasingly apparent (Mackay 2001).

CRITICISMS

LAFQAS are limited because they cannot be used to assess whether correct advice was given or the correct legal strategy pursued. This can be evidenced from the fact that certain immigration firm were awarded contract, but showed they are incapable of doing the work to the correct standard. LSC should not be in the position where it assess quality and award contracts. This is to avoid potential conflicts of interest between the two roles. There is a strong argument for the development of an independent legal aid inspectorate to oversee this area. The role of the inspectorate would include encourage the development of quality standards for legal work, oversee the administration of legal aid and monitor access to justice (Mackay)

LEGAL AID, COSTS AND ACCESS TO JUSTICE A HUMAN RIGHT

The enactment and operation of Human Rights Act 1999 has implications on the operation of the legal aid system. Articles 5 and 6(1) affirm a right of access to courts, but this right can be qualified by the state. Civil rights mean the private right of citizens. Some cases have been considered by the European Courts of Human Rights (ECtHR) which has effect on the provision of legal aid to citizens. Some of these cases are Airey v Ireland (1979) 2 ECtHR 305. The court distinguished between criminal and civil case. In civil case, there was not a full right to legal aid as there was in the criminal area. In Murno v UK No. 10594/83, 52 DR 158 (1987) the court qualified legal aid for civil cases, effective access to the courts, where defamation did not carry an entitlement to legal aid. In Winer v UK No, 11564/85 45DR 158 (1987) it was held legitimate to exclude certain categories of legal proceedings altogether from legal aid by reference to financial criteria and inherent riskiness. In Osman (1998) r, BHRRC 294 it was suggested that there would have been a breach of Article 6 had legal aid not be awarded. Fayed v UK (1994) 1 18EHRR 393 suggested that it would be legitimate to refuse legal aid where there are limited resources. Zamir v UK (1983) 40 DR 42 establishes right to legal assistance when the party has insufficient means. An illegal immigrant facing deportation

Broader Issues In The Provision Of Legal Aids

LAG is critical of LSC because it is not a transparent body and lack of scrutiny of its activities by an outside body. In raised the issue of conflict of interests – awarding contracts, fixing prices and monitoring performance and suggested the need of oversee body, Public Defender Service should be administers by a body at arm’s length from the commission while advice should be provided by an independent third party

The Co-Ordination Of Agencies

To improve the delivery of the legal aid there is need for to think creatively about a complex issue such as coordinated field of assistance and representation by participants in the scheme. Because of the decrease in provision of services some people do not have choice. The number of solicitors’ firm providing specialist services has dropped, but this is offset by a rise of service providers in the not-for-profit sector which now account for 80% of total supplier base. These bodies concentrate on providing services in certain areas to the detriment of other, where there is a shortfall in the provision of representation in court

Community Legal Service (CLS) Pioneer Partnership

There is a problem of uneven distribution of legal services. Moorehead report (Moorehead R. Pioneers In Practice: Community Legal Service Project 2002. Services have grown in an ad hoc, unplanned and uncoordinated manner, dependent on discretionary funding from local authorities, charities and central government

The Role Of Not-For-Profit Sector And Alternative Methods Of Funding

LAG raised the points that it is not necessary that the case that all legal service have to be funded by LSC. It also drew attention to local advice centres and bodies that have been drawing fund from local authorities and charitable trusts. The policy objectives of setting up a comprehensive network of Community Legal Service Partnership (CLSPs).

How to Achieve Savings In The Legal Aid Budget

One possibility is the creation of separate Criminal Defence Fund. This would involve compulsory contribution from the financial sector and utilised in cases where people from that sector come into contact with the criminal courts. It is the high cost criminal cases which are so demanding of financial resources. In addition, Not-for-profit sector can offer something to the provision of legal services. Law Centres could interface with Advice Centres to cover those areas of social welfare aw that are being excluded from the advise portfolios of solicitors firms.

Moving away from reliance on private practice should be accompanied by a programme for the expansion of law centres and not-for-profit services. Legal aid firms should make use of government proposal to set up community interest companies (CISs) – new companies designed for social enterprises that want to use their profit and assets for public good. LAG recommended replacement of the traditional ‘piece-rate system of payment by a mode of funded case workers. Quality control could be provided by peer review rather than intrusive and expensive bureaucracy

The Role Of Public Defenders - Comparative Perspectives Of Legal Aid

US has organised legal aid provision round salaried lawyers and public defenders, UK has tended to based it provision on the model of lawyers in private practice. While US and UK spent about $2.5 and £32 respective on legal aid, developing countries like South Africa and Nigeria spend about US$0.50 and 0.002 per person. Constitution in South Africa provides right to counsel. Policy makers moved from a system modelled on lawyers in private practice to a model of salaried lawyers.

In the 70s one of the most effective systems of funding legal aid existed on Quebec. However, restrictions of funding meant that by the 1990s it was longer such a beacon. In Australia states such as New South Wales and Victoria also had generously funded systems that are now much reduced. The Dutch created regional aid boards in 1994, while Quebec has the Commission des Services Juridiques. In Bangladesh lawyers provided low cost services as professional duty. Access to Justice Act 1999 specifies that the personnel of the commission must include those with knowledge of the work of the courts, consumer affairs and social conditions. Comparative study of legal aid system draws attention to generic political problems, it also confirms certain themes within our consideration of legal aid provision

There is widespread support for law centres and law clinics. These communities centre funded by grants and managed by boards can for the most part be managed efficiently and effectively and can respond to the needs of local communities.

REFORM OF THE LEGAL AID

In 2005, Lord Falconer asked Lord Carter of Coles to review the legal aid. Lord Carter recommended phased transition to a vibrant, good quality and effective market nationwide by 2009. Three phases of the reform are:

a) Fixing prices for all criminal legal aid work
b) A managed market, awarding contract to efficient and good quality supplier
c) Managed price competition between efficient and good quality suppliers with safeguard to protect standards of quality, coverage in rural areas and diversity.

CONCLUSION

Making legal education available to more people is another way providing access to a greater number. If more people are knowledgeable on law as its affect them, it would be easier for them to access justice whenever the need arises. This could be achieve by making legal education on the areas that affect lives of most individual available to students in school and at same time providing access to flexible legal education to adults through the traditional classroom method, part-time programme, seminars and online trainings. More people could be reached through a combination of these methods. The objective should be to create a situation where more people will be able to process simple legal issues on their own without, where complex issues arise; they will be in a better position to take a decision on how to obtain the best service at the least cost. It is high time we all combine effort to destroy ‘societal fear’ of law that is out there. This suggestion may sound outrageous to some lawyers, but I am of the opinion that to create such an environment will make the jobs of the lawyers easier, be of benefit to vast majority of people and the society will be better it.

Legal aid could be thought of right, the key will be how government will be able to accord legal aid and right access to courts, the policy importance that they demand, while maintaining control of public spending.

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