Legal Aid

Recent reforms in legal aid does not provide the right to justice for all. - Justin Santiago

Legal aid allows those without means to have access to lawyers and legal advices and is a means of providing fairness and justice to all regardless of a person’s financial capability. Access to justice is one of the fundamental rights of individuals and it is important that access to justice is made available. This is guaranteed by the Legal Aid and Advice Act of 1949, which ensured "assistance and legal advice...so that no one will be financially unable to prosecute a just and reasonable claim or to defend a legal right".

However legal aid as been plagued with problems related to costs and limited access to the best lawyers.

With regard to costs a number of inherent problems were present in the system –
payment for services by the hour which led to overcharging and calculating the bill after the work is completed rendering a limited ability of the state to control eventual costs. The rise in spend on is partly due to the lack of robust mechanisms to control the amount of work undertaken and a system which rewards volume rather than efficiency.

A number of reforms were put in place namely the Access to Justice Act together with the Conditional Fee Arrangements Regulations 2000 and the Collective Conditional Fee Arrangements Regulations 2000 which improved on the earlier provision in the Courts and Legal Services Act. The courts now have the power to make the losing party pay the success fee of the winning parties’ solicitor on the winning parties’ behalf as well as the insurance fee. Insurance policies to cover costs of the other party and the client’s own costs were also made available.

In addition to the contraction of services of lawyers in private practice the Criminal Defence Service will employ lawyers directly as salaried defenders who will be able to offer the same service as solicitors in private practice at a lower cost.

Lord Carter in his report in 2006 has has additionally proposed moving a market based approach to legal aid and among the key recommendations are best value tendering for legal aid contracts based on quality, capacity and price and fixed fees for solicitors carrying out legal aid work in police stations including cutting costs related to waiting and traveling times.

However such schemes are not without its disadvantages. In many cases it was the lawyer who would really win a case since he or she would be able to claim a significant part of the damages. Defendants also stand to lose out as in most cases cost efficient services are not necessarily the best.

The main culprit is still the heavy bias towards court based solutions with inherently high fees especially so in areas of criminal defence. Attempts have been made to promote the earlier resolution of criminal cases. At the police station the Crown Prosecution Service is rolling out the provision of Duty Prosecutors in police stations to make the best possible decisions on charge as well as encouraging maximum sentence discounts for an early guilty plea.

With regard to limited access to the best lawyers,the scheme to hire salaried defenders would mean that the defendant’s choice of representative is limited to contracted or salaried defenders. Defendants also stand to lose out as in most cases cost efficient services are not necessarily the best.

In an article by a legal aid solicitor Matt Foot in the Guardian entitled “An attack of convenience” he argued that large firms which have economies of scale would get the majority of contracts leaving small firms, which traditionally have fought harder and paid closer attention to clients, on the line. Quality may be sacrificed at the expense of efficiency and it would be the litigant who will suffer.