Excerpt
Inhalt
I. Introduction
II. Main Part
1. Legal Aid
2. LASPO
3. Legal Aid Changes
4. Evaluation
III. Final Thoughts
I. Introduction
Just imagine you become involved in a civil dispute and you need a lawyer’s advice or you have to defend your rights in front of a court, but you are lacking the means to afford it and you are not supported by the state. Should this fact be the reason for waiving your position, even when you are truly right? Such situations clearly raise the issue of injustice, especially against the backdrop of state funded legal aid being reduced since the enforcement of the Legal Aid Punishment of Offenders and Sentencing Act 2012 (LASPO).
The aim of this essay is to work out the legal aid changes brought about by the LASPO and to discuss if they restricted access to justice for the most needy and vulnerable. First, this essay will explain the term ‘legal aid’, then the situation and the problems before the LASPO was enforced will be outlined. In the next section, the changes introduced by the LASPO will be illustrated, followed by an evaluation of the question of whether these changes have restricted access to justice for the most needy, concluding that they have not been denied access to justice in the cases that most merit it. Finally, the issue of whether or not access to legal advice and representation should be freely available to everyone will be discussed, reaching the conclusion that not everyone should be freely entitled to legal aid.
II. Main Part
1. Legal Aid
Legal Aid, also called public funding, is intended to provide people who could otherwise not afford professional legal help and the services of lawyers with access to advice, assistance and representation[1]. The legal aid system was originally established by the Legal Aid and Advice Act 1949 as part of the development of the post-war welfare state[2]. Legal aid is regarded as a crucial means to guarantee equal access to justice for all[3] ; as a fundamental constitutional right, it is enshrined in Article 6(1) of the European Convention on Human Rights (ECHR) which entitles everyone to a fair trial. In particular, Article 6(3)(c) ECHR ensures that everyone charged with a criminal offence who does not possess the necessary financial means to pay for legal assistance shall be given it free of charge when the interests of justice require this[4]. According to Law Society president Andrew Caplen, ‘without access to justice the rule of law is nothing more than a concept’ and legal rights cannot be exercised if justice is missing[5].
2. LASPO
During the mid-1990s it was criticized that the legal aid scheme was not directed at the right cases as it was not exclusively used for social welfare issues[6]. Furthermore, the costs were growing enormously over the decades, resulting in the budget being out of control[7]. With annual costs of £2 billion, the legal aid system of England and Wales was regarded as one of the most expensive in the world[8]. Thus, due to the need for reform, on 1 April 2013 the LASPO came into effect, making both substantial changes to the provision and scope of legal aid and severe cuts to its budget[9].
3. Legal Aid Changes
Whereas the Access to Justice Act 1999 granted civil legal aid in any matter which was not especially excluded, there are now fewer types of civil proceedings for which people can get funding[10]. Part 1 of the LASPO deals with the limitation of the scope of matters covered by the scheme and the second part of the LASPO presents the changes to the civil costs regime[11]. Legal aid will no longer be provided in various key areas, including most private family cases – unless there is evidence of child abuse or domestic violence, debt cases, employment law cases, housing cases – unless the occupation of the home is at immediate risk – as well as immigration and clinical negligence cases[12]. In order to reduce the costs, a 10% cut in fees paid in family and civil cases is intended[13]. Plus, the aim is to minimise the annual legal costs of legal aid by £350 million and in general, the introduced changes to eligibility for legal aid seek to exclude all but the very poorest from being entitled to legal aid[14].
4. Evaluation
a.)
Tim Dutton, Queen’s Council as Chairman of the Bar Council in 2008, stated: ‘Our legal aid system has been considered one of the best at providing justice for the most vulnerable and needy in our society’[15]. In light of the changes introduced by the LASPO this statement is now questionable and the LASPO is indeed often criticized for harming the most disadvantaged and the very poorest[16]. Due to the LASPO reform, 600.000 people are no longer eligible for civil legal aid and several law centres which employ volunteers to provide legal advice have closed[17]. Thus, the fact that people generally have significantly less access to legal advice cannot be doubted. But, does this also affect the most needy and vulnerable?
To begin with, the question is how you define ‘most needy and vulnerable’. It could be argued that this definition includes everyone who cannot enforce their legal rights without public funding; however, the term implicitly suggests that those of small or moderate means are not intended to be understood under this term, and that it has to go beyond this state, addressing only the very extreme, exceptional and most serious cases.
The following arguments militate for the thesis that the LASPO resulted in a denial of access to justice in cases that most merit it: legal aid for clinical negligence cases has generally been removed, even though the victim is completely innocent in such cases, may possibly be suffering from severe harm and is therefore undoubtedly in need of help. As the expert reports in clinical negligence cases, which are often required to establish if there is a case for bringing a claim, can be extremely expensive[18], the victims should not be denied legal aid because otherwise they would suffer two disadvantages, first the harm caused by the doctor and secondly the payment for the expert. Hence, the Joint Committee on Human Rights is concerned that removing clinical negligence from the scope of public funding will undercut the right of effectively having access to justice[19].
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[1] Garry Slapper and David Kelly, The English Legal System (16th edn, Routledge 2015) 669–670.
[2] Legal Aid and Advice Act 1949; Richard Ward and Amanda Wragg, Walker & Walker’s English Legal System (9th edn, OUP 2005) 374.
[3] Lord Carter, ‘Legal Aid – A Market-based Approach to Reform’ (2006) Lord Carter’s Review of Legal Aid Procurement 17.
[4] European Convention on Human Rights, Art 6(3)(c).
[5] Andrew Caplen, ‘Access to Justice Day’ (The Law Society, 8 September 2014) <http://www.lawsociety.org.uk/news/speeches/access-to-justice-day/> accessed 4 December 2015.
[6] Jeremy Corbyn, ‘Legal Aid: 1949–2011’ [2011] Solicitors Journal (‘Unequal before the Law? The Future of Legal Aid’) 9, 10.
[7] Garry Slapper and David Kelly, The English Legal System (16th edn, Routledge 2015) 669.
[8] HL Deb 19 February 2008, vol 699, col 134.
[9] House of Commons Justice Committee, Impact of Changes to Civil Legal Aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (HC 311, 12 March 2015) 3.
[10] Parliament UK, ‘Summary of the Legal Aid, Sentencing and Punishment of Offenders Act 2012’
<http:// services.parliament.uk/bills/2010-11/legalaidsentencingandpunishmentofoffenders.html> accessed 4 December 2015.
[11] Legal Aid, Sentencing and Punishment of Offenders Act 2012.
[12] Catherine Baksi, ‘Civil Legal Aid: Access Denied’ (The Law Society Gazette, 7 April 2014) <http://www.lawgazette.co.uk/law/civil-legal-aid-access-denied/5040722.fullarticle> accessed 4 December 2015.
[13] Anon, ‘Q&A: Legal Aid Changes’ (BBC News, 20 March 2013) <http://www.bbc.co.uk/news/uk-21668005> accessed 4 December 2015.
[14] Ministry of Justice, Legal Aid Reform in England and Wales: The Government Response (Cm 8072, 2011) 4, 7.
[15] Tim Dutton, ‘A Public-private Partnership’ (2008) 158 NLJ 1013.
[16] Catherine Baksi, ‘Ludicrous, Immoral and Wicked’: Bach Bites Back at LASPO’ (The Law Society Gazette, 5 May 2012) <http://www.lawgazette.co.uk/analysis/ludicrous-immoral-and-wicked-bach-bites-back-at-laspo/65487.fullarticle> accessed 6 December 2015.
[17] Anon, ‘Affordable Legal Services’ (The Law Society, 21 May 2015) <http://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/affordable-legal-services/> accessed 6 December 2015.
[18] HM Government’s formal response, ‘Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill’ (HL Paper 237, HC 1717, 30 January 2012) 11.
[19] HM Government’s formal response, ‘Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill’ (HL Paper 237, HC 1717, 30 January 2012) 11.