In Today's Society Can The Ordinary Citizen In England and Wales Enforce Their Legal Rights Without Legal Aid?
ARTICLE BY MISS LUCY EL-AAWAR
An established part of the rule of law in the UK is that the law should be prospective, so as to enable accessibility. However, the simple (but not so easy) task of reading statutes will not equip a person without proper legal training with a proper understanding of the law. In the words of Lord Diplock "Elementary justice or, to use the concept often cited by the European Court, the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him)". Of course, not everybody can afford the high cost of a lawyer, but since 1949 Legal Aid has provided one of the ways in which this problem is overcome, and goes further in offering the support needed for full litigation: surely a route which should not only be open to the affluent. For many, legal aid is an important part of our modern welfare state. Modern Liberalism's 'freedom to', in this circumstance at least, certainly does not clash with classical liberalism's 'freedom from'. The freedom to access and utilise the law would enable one to truly have freedom from oppression by other individuals, corporations and the government - and in the sphere of criminal law - retain the ability to maintain their freedom where it is due.
However, today's society has seen a steep drop in legal aid practitioners: from 12,000 to just 5,000 during the lifetime of the current government. Criminal defence lawyers will soon face a 'Best Value Tendering' pilot scheme, which will choose solicitors mainly on the price they offer their services at, which has been said may bring down the quality of solicitors' work and put many firms out of business. If the quality of work will be bought down, surely so too will the efficacy of the law for many citizens, increasing the gap between the rich and poor of the ability to retain ones liberty and enforce ones rights; arguably not embracing equality and not totally complying with Lord Diplock's words above. It has also been argued that the CDS (Funding Order) (Amendment) Order 2009 has made changes to the profession already, as has general cuts in Legal Aid spending over the past few years which has resulted in a reduction in work at the bar of about a third in some areas. Richard Miller, the Law Society Legal Aid manager, speaking of firms involved in legal aid work has said "Solicitors firms cannot bill work until the end of the case, so they are required by the rules to carry tens of millions of pounds of work in progress, hardly any other government contractor works to such unfavourable terms". From this evidence, the provision for Legal Aid doesn't appear to be blossoming and arguably these issues do have an effect on the individual, society and equality which should be addressed.
Since the Access to Justice Act 1999 came into force, legal aid is no longer available to those wishing to seek personal injuries compensation. According to the Citizen's Advice Bureau, the' no-win no-fee' system which replaced it has seen claims decrease: only thirty one percent of accident victims claim compensation via a legal route. If a case has a high chance of winning if it went to trial, solicitors may be more inclined to take it on. This will clearly have an effect on individuals whose proposed cases are more precarious, and may see them go empty handed. In fact, it has been said that cases which are ripe for rejection are those with a less than sixty to sixty-five percent prospect of success. This would be arguably most unfair when one has encountered an event which has been deeply traumatic or caused a form of detriment on which the law is unclear, and has the potential to culminate in the type of court case which would challenge the law. Not only is this bad for the individual and for the amount of work there could be for lawyers, but also for society as a whole. Our tort system is heavily built on common law, and without these challenges existential precedents could become quite sedentary over time and may not face challenges where they would be most productive. Of course, we do have the Law Commission and Parliament to ensure the law is kept in touch with contemporary issues and reflects the needs of modern society, but if the law does fail to develop in certain areas because of a lack of challenge through litigation, the Law Commission may not perceive the need for change, or truly perceive what the change should be. This may ultimately have a knock on effect on the development of legislation which the common law often has an influence on (a good example of this are the various common law circumventions to privity seen in the case law and their culmination in the Rights of Third Parts Act 1999).
The Commonwealth Secretariat writes "There are limited funds available for the provision of legal aid and it therefore falls, in part, upon the legal profession to adopt ways of ensuring that persons in need of legal advice are able to obtain at least some basic form of advice no matter what their financial status". Although somewhat commendable, there is nothing offered by way of argument addressing why the funds should not be increased. Further, a 'basic form of advice' may not be sufficient to enable one to enforce their legal rights. Of the examples given, the support of a duty lawyer scheme in the Secretariat's article arguably appears as a sensible approach for those who find themselves in court on charges which do not require a solicitor's full services: for example, some strict liability driving offences. It is also a sensible way for lawyers to give up their time for no charge without major profit-loss because "With sufficiently large rosters it would probably only mean one day's work in every few months for a lawyer". However, the wider support of pro bono schemes is arguably more contentious. Although knowledge of the law should certainly be available to all, if this is a route more realistic when large numbers of people are affected , it is clearly not appropriate for individuals with individual cases. Embarking on a law degree and an LPC is a costly process, and many firms may not be able to offer much in the way of pro bono work. Speaking of free services, the Secretariat writes "Unfortunately not all lawyers are willing to take on this responsibility and some regard their profession more as a business". Given the lack of legal knowledge amongst the populace and the importance of the law, the legal profession perhaps should take some responsibility towards the public, but in an age of capitalism and university fees, it is perhaps unrealistic to assert that solicitors and barristers do not run profit-making businesses, particularly as other professions, such as doctors, are not subjected to such an expectation. Although the duty lawyer scheme, the CAB and other schemes advocated are certainly useful - even perhaps invaluable - they surely cannot be a replacement for Legal Aid, which is a tool for guiding the client from the advice stage through to full litigation, effectively allowing people to enforce their rights at every level.
We are all subject to the law from birth and the age for criminal responsibility is as low as eleven. Therefore the umbrella of the law is something which should be equally accessible to all, and not merely in part by certain sections of society. There are ways in which people can obtain free legal advice, but this may not always be adequate. It may only be a helping hand towards enabling people to enforce their rights, giving them a basic knowledge of what those rights are and when they are violated. Legal aid would still be invaluable to individuals who cannot afford a lawyer when it is a lawyer that is needed and not only advice. Without legal aid, not only would the poorest in society lose the ability to rely on their rights, but the state of the law could be affected to the detriment of us all.