legal aid

History

Legal aid has a close relationship with the welfare state, and the provision of legal aid by a state is influenced by attitudes toward welfare. Legal aid is a welfare provision by the state for people who would otherwise be unable to afford legal counsel. It also helps to ensure that welfare provisions are enforced by providing people entitled to such benefits, including social housing, with access to legal advice and the courts.

Historically, legal aid has played a significant role in ensuring respect for economic, social and cultural rights, particularly in relation to social security, housing, social care, health, and education services, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti have argued that legal aid is essential to access to justice, as it enables individuals to enforce economic, social and cultural rights through legal mechanisms. His views developed during the second half of the 20th century, when democracies with capitalist economies established liberal welfare states that focused on the individual. States increasingly acted as contractors and service providers within a market-based philosophy that emphasised the citizen as a consumer. This shift led to a greater emphasis on individual enforcement as a means of achieving the realisation of rights for all.

Prior to the mid-20th century, literature on legal aid emphasised the collective enforcement of economic, social and cultural rights. As classic welfare states were established during the 1940s and following World War II, a central principle was that citizens shared collective responsibility for economic, social, and cultural rights, and that the state assumed responsibility for those unable to provide for themselves due to illness or unemployment. The enforcement of these rights was primarily collective, achieved through public policies rather than individual legal action. Laws were enacted to support welfare provisions, but these were generally regarded as instruments for planners rather than lawyers. Legal aid schemes were introduced on the assumption that the state had a responsibility to assist those involved in legal disputes; however, these schemes initially focused mainly on family law and divorce.

During the 1950s and 1960s, the role of the welfare state evolved, and social goals were no longer assumed to be universally shared. Individuals were increasingly free to pursue their own objectives. During this period, the welfare state expanded, along with legal aid provisions, as concerns arose regarding the power of welfare providers and professionals. In the 1960s and 1970s, demand grew for individuals to have the right to legally enforce economic, social and cultural rights and the welfare benefits to which they were entitled. Mechanisms emerged that enabled citizens to enforce their economic, social, and cultural rights through legal processes, and welfare lawyers used legal aid to advise individuals on low incomes when dealing with state officials. As a result, legal aid was extended beyond family law to cover a broad range of economic, social, and cultural rights.

Legal aid movements

Historically legal aid has its roots in the right to counsel and right to a fair trial movement of the 19th-century continental European countries. "Poor man's laws" waived court fees for the poor and provided for the appointment of duty solicitors for those who could not afford to pay for a solicitor. Initially the expectation was that duty solicitors would act on a pro bono basis. In the early 20th century, many European countries had no formal approach to legal aid, and the poor relied on the charity of lawyers. Most countries went on to establish laws that provided for the payment of a moderate fee to duty solicitors. To curb demand, legal aid was restricted to lawyer costs in judicial proceedings requiring a lawyer. Countries with a civil law legal system and common law legal systems take different approaches to the right to counsel in civil and criminal proceedings. Civil law countries are more likely to emphasise the right to counsel in civil proceedings, and therefore provide legal aid where a lawyer is required. Common law countries emphasise the right to counsel and provide legal aid primarily in relation to criminal proceedings.

In response to rapid industrialisation in the late 19th-century Europe, trade union and workers' parties emerged that challenged the social policies of governments. They gained passage of laws to provide workers with legal rights in the event of illness or accidents, in an attempt to prevent industrial action by industrial workers. Workers unions in turn started to provide workers with legal advice on their new economic, social and cultural rights. Demand for these services was high and in an attempt to provide workers with non-partisan advice, many governments started to provide legal aid by the early 20th century.

Recent times

In the 20th century, legal aid developed together with progressive principles; it has often been supported by those members of the legal profession who felt that it was their responsibility to care for those on low income. Legal aid became driven by what lawyers could offer to meet the "legal needs" of those they have identified as poor, marginalised or discriminated against. According to Francis Regan in 1999, legal aid provision is supply driven, not demand driven, leading to wide gaps between provisions that meet perceived needs and actual demand. Legal service initiatives, such as neighbourhood mediation and legal services, frequently have to close due to lack of demand, while others are overwhelmed with clients.

Though legal aid aims to create more equity in the sphere of legal practices, according to a 1985 article, aid offered is often limited in its quality or its social impact by economic constraints that dictate who can access these services and where the aforementioned services are geographically located.

Pro bono legal aid has been criticized for being politicized, and for being mandatory volunteering in some cases.

By country

Asia

Most developmental legal aid services are provided by grassroots organizations, human rights-based non-governmental organizations (NGOs), or are stipulated by constitutional laws by some Asian governments.

A unitary jurisdiction, Hong Kong provides legal aid solely provided through the Legal Aid Department, which is in turn overseen by the Legal Aid Services Council.

Administratively the Legal Aid Department was under the Administration Wing of the Chief Secretary's Office. In 2007, it was moved to the Home Affairs Bureau, which chiefly oversees cultural matters and local administration. This was heavily criticized by the opposition pro-democracy camp for jeopardising neutrality of the provision of legal aid. They voted en bloc against the whole package of reorganisation of policy bureaus, of which the transfer of the Legal Aid Department was part.

Article 39A of the Constitution of India, provides for equal justice and free legal aid:

The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

This Article emphasises that free legal service is an inalienable element of 'reasonable, fair and just' procedure, for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.

In the civil side, Order XXXIII. R.18 of the Code of Civil Procedure 1908 provided that the state and central governments may make supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as an indigent person. The Legal Services Authorities Act, 1987 made drastic changes in the field of legal services. It is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Europe

Article 47 of the Charter of Fundamental Rights of the European Union provides that legal aid will be made available to those who lack sufficient resources, in so far as such aid is necessary to ensure effective access to justice.

According to PILnet: the Global Network for Public Interest Law,

for over a decade, the countries of Central and Eastern Europe and Russia have been in the process of reforming and restructuring their legal systems. While many critical justice sector reforms have been undertaken throughout the region, the mechanisms to ensure individuals' access to legal information and assistance often remain inadequate and ineffective. Consequently, many people—especially those who are poor or otherwise disadvantaged—are left without any real access to legal counsel in both criminal and non-criminal matters.

In the Czech Republic, qualifying persons (usually those who evidence inadequacy of funds) can apply to the courts or the Czech Bar Association to have an attorney appointed to them.

In Denmark, applicants must satisfy the following criteria to receive legal aid for civil cases: The applicant must not earn more than kr. 289,000 ($50,000) a year and the claims of the party must seem reasonable. In respect to criminal cases, the convicted will only have to cover the costs if he or she has a considerable fixed income – this is to prevent recidivism.

In civil cases including employment, administrative, constitutional, and social cases, assistance under the Legal Advice Scheme Act (in the form of advice and, where necessary, representation) is given. In criminal cases, the defendant has a right to counsel, and in certain cases when the penalty is at least one year of confinement, the defendant can be given counsel even against his or her wishes.

Known as Patrocinio a spese dello Stato, legal aid is provided by the Italian Law DPR n. 115/2002 – Articles. 74–141. It is intended to implement Article 24 of the Italian Constitution and ensure access to the right of defense (in civil, administrative and criminal cases) to persons not able to independently obtain the services of a lawyer due to the inability to pay for them from their income (less than €10,776.33 per capita).

Africa

South Africa is a country that has reconstructed its legal systems in an attempt to mimic Western democratic countries, creating an arguably more just and fair justice system.

South Africa has a national judiciary as well as, in some areas, a tribal form of administration of justice. This is described as "legal pluralism". The informal "indigenous laws" are substantially different from the rest of the nation's laws and customs, hindering the provision of legal advice. However, the indigenous justice system in South Africa does not require representation, thus essentially eliminating the need for accessible legal aid.

Mimicking the British legal system, South Africa has barristers, which work in the senior courts, and solicitors, which provide out-of-court advice and work in the lower courts.

In 1969 the government of South Africa recognized a need for legal aid, and responded by creating the South African Legal Aid Board which began its work in 1971 and now provides the majority of legal aid throughout the country. The Board has autonomy and is independent from government in its decision-making, and has sole jurisdiction over determining the provision of legal aid. The Board provides legal aid to all "qualifying indigent individuals" with an income of R600.00 or less. If individuals do not meet this qualification they are provided other methods of obtaining a lawyer, such as hiring one or, if this is not within their means, finding one who will work pro bono.

In a reflection of the history of apartheid in South Africa, nearly 85% of all lawyers in South Africa are white. The government has determined greater racial diversity in the field of law is a priority and there are travelling "clinics" to help provide education on South African law throughout the country, with the aim of spreading knowledge as wide as possible, though especially in poorer areas.

More than 80% of the Legal Aid Board's funding is directed towards provision of defence advocates in criminal cases. This is generally explained in South Africa as being the result of two causes: the majority of crimes being committed by those who are poor, and the provision of defence in criminal cases being a priority compared to civil suits. Prior to the enactment of the 1994 Constitution, 80% of all people tried as criminals went unrepresented, as there was no right to a defence and no obligation on the government to provide that defence. Upon adoption of the 1994 Constitution the South African government was obliged to create organizations such as the Legal Aid Board to help facilitate access to legal aid.

North America

In Canada, the modern system of legal aid developed after the federal government instituted a system of cost-sharing between the federal and provincial governments in the early 1970s. The federal financial contribution was originally set at 50% of the cost of the legal aid system, but that level of funding has fluctuated over the years.

The actual delivery of legal aid is by the provincial governments, as part of provincial jurisdiction over the administration of justice. For example, Legal Aid Ontario provides legal services for residents of Ontario, the Legal Services Society provides it to residents of British Columbia, and Commission des Services Juridiques does the same in the province of Quebec.

Legal aid in criminal cases is a universal right guaranteed by the Sixth Amendment to the United States Constitution. A number of delivery models for legal aid have emerged in the United States. The Legal Services Corporation was authorized at the federal level to oversee these programs. In a "staff attorney" model, lawyers are employed by levels of government on salary solely to provide legal assistance to qualifying low-income clients, similar to staff doctors in a public hospital. In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare patients in the U.S. The "community legal clinic" model comprises non-profit clinics serving a particular community through a broad range of legal services (e.g. representation, education, law reform) and provided by both lawyers and non-lawyers, similar to community health clinics.

Defendants under criminal prosecution who cannot afford to hire an attorney are not only guaranteed legal aid related to the charges, but they are guaranteed legal representation, either in the form of public defenders, or in absence of provisions for such or due to case overloads, a court-appointed attorney.

The discussion surrounding legal aid and who is privileged to such a service has been criticized by law academics who assert that those who dominate and write the narratives of people who seek legal aid are individuals who benefit from the client narrative being one of inescapable poverty and desperation of an individual. Critiques assert that these asymmetrical, schematically constructed client profiles are required of civic legal aid programs in the capitalist framework of the United States as a tool to appeal to donors and other sources of funding. These representations and assessments of who seeks and deserves legal aid are argued to contribute to a culture of blaming the victims of poverty, as the narratives exclude the role the state and other civic stakeholders play in the creation of these client circumstances.

Oceania

Australia has a federal system of government comprising federal, state and territory jurisdictions. The Australian (Commonwealth) and state and territory governments are each responsible for the provision of legal aid for matters arising under their laws. In addition there is a network of approximately 200 independent, not for profit, community legal centres.

Legal aid for both Commonwealth and state matters is primarily delivered through state and territory legal aid commissions (LACs), which are independent statutory agencies established under state and territory legislation. The Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with state and territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction.

Legal aid commissions use a mixed model to deliver legal representation services. A grant of assistance legal representation may be assigned to either a salaried in-house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties.

The Australian Government and most state and territory governments also fund community legal centres, which are independent, non-profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians.

By way of history, the Australian Government established the Legal Services Bureaux in 1942 to develop a national system. In 1973 the Attorney-General in the Whitlam Labor government, Lionel Murphy, established the Australian Legal Aid Office. Murphy recognised the urgent need for legal aid in order for justice to be equally available for all. Murphy recognised that: "one of the basic causes of the inequality of citizens before the laws is the absence of adequate and comprehensive legal aid arrangements throughout Australia ... The ultimate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts." (Senator the Hon Lionel Murphy AO QC, Attorney General) The establishment of the Australian Legal Aid Office in 1973 was followed by the establishment of state-based Legal Aid Commissions. These offices now provide the majority of free or lowcost legal assistance to those in need. In 1977, the Australian Government enacted the Commonwealth Legal Aid Commission Act 1977 (LAC Act), which established cooperative arrangements between the Australian Government and state and territory governments, under which legal aid would be provided by independent legal aid commissions to be established under state and territory legislation. The process of establishing the LACs took more than a decade. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia, followed in 1978 the Legal Aid Commission of Victoria (LACV), and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania. The cooperative arrangements that were established by the LAC Act provided for Commonwealth and state and territory legal aid funding agreements, which began in 1987.