Legal Aid UK: Milestones and Millstones

Thursday 7 August 2014 @ 11.34 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The UK Law Society Gazette reports in an article last week that it is the 65th anniversary of the enactment of the UK Legal Aid and Advice Act 1949 the legislation which brought into existence the modern legal aid system in the UK, and a precursor to Australia's legal aid system.

Anniversary a Milestone and a Millstone

As much as the article reports the significance of the milestone achieved by legal aid in the UK, it also points to an all too common millstone or burden facing legal aid schemes everywhere. From the report, it seems that concerns around legal aid, and in particular its funding, are certainly similar to Australia's, and internationally, if not globally, common. The report points to issues like misrepresentation of the value of services provided by legal aid being used by government to justify funding cuts; for example, where the article says:

"In contrast, this week, the Legal Aid Agency (LAA) and the Ministry of Justice have been silent on the milestone reached by the ‘vital’ grande dame of a service.  .  .  .  A poll, funded by the Law Society and carried out by Ipsos-Mori for [the] charity Legal Action Group to mark the anniversary, shows the extent of public support, despite the government’s efforts to malign it to the public as a resource exploited by immigrants and ne’er-do-wells that needs to scaled back".

The article goes on to point out that in the April 2014 poll, referred to in the quote above, 1000 people were surveyed,only 23 percent agreed with government funding cuts, a number reported to be substantially down from the previous years 33% who agreed with funding cuts.

The article takes the view that: "Far from criticising legal aid, the government should trumpet it  .  .  ."  - making the argument that legal aid in fact saves the government and the taxpayer "vast sums of money". Citing a report by the Low Commission on "The Future of Advice and Legal Support" (published January 2014), an inquiry into the impact of cuts in funding for social welfare law advice, the article asserts that legal aid actually pays for itself and makes significant contributions to local economies and households, reducing public expenditure.

The Low Commission

The Low Commission is an independent UK commission, led by cross-bencher Lord Low, which has called for urgent reforms to secure for ordinary people the help they need to deal with their employment, debt, housing and other social welfare law problems. The Low Commission is reported as the biggest inquiry of its kind to be held in the UK into the impact of cuts in funding for social welfare law advice.

In its final report in January 2014, the Low Commission called for a national strategy for advice and legal support in the UK, to replace the current piecemeal approach, which was failing to protect the poorest and most vulnerable.

Further, it called for a 100 million pound implementation fund, half of which would come from government with the rest to be raised from other sources such as levies. Its other recommendations included:

  • Creation of new, cross-departmental ministerial post, to oversee implementation of advice and legal support strategy;
  • Restoring legal aid for housing cases so people can get help before they face imminent eviction;
  • Urgent reform of the ‘safety net provisions’, introduced by the Legal Aid, Sentencing & Punishment of Offenders Act, which were proving unwieldy and unworkable.

In the Media Release announcing the report, Amanda Finlay, Commission Vice-chair and former legal services strategy director at the Ministry of Justice, is quoted as saying:

"In these days of austerity, we realise hard choices have to be made. But just cutting legal aid is not the answer. The problems still remain. We should follow the example of other countries who have reduced legal aid but recognised that help is still required, and invest in better information, advice and support."

Similarities to Australia

Like the UK, Australia's legal aid history goes back some 60 years to early attempts in 1942 to established a Legal Services Bureaux to develop a national system, through to the 1970s, where there was a shift to decentralisation and service delivery by the States and Territories rather than the Federal Government.

The enactment of the Legal Aid Commission Act 1977 (Cth) (LACA) saw the Federal Government establish cooperative arrangements between the Federal Government and State and Territory governments to provide legal aid under independent legal aid commissions to be established under State and Territory legislation. This process commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia, followed in 1978 by the Legal Aid Commission of Victoria, and ending in 1990 with the establishment of the Legal Aid Commission of Tasmania. Funding was provided by way of co-operative arrangements established by the LACA and provided for Federal and State and Territory legal aid funding agreements. These agreements began in 1987 and operated until they were changed in 1997 by the Federal Government, so that it directly funded legal aid services for Federal legal matters while the States and Territories funded assistance in respect of their own state laws.

Notably, legal aid was discussed by the High Court of Australia in a decision that held that, "although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented" (see Dietrich v The Queen [1992] HCA 57).

However, even with this long established period of existence, as in the UK the debates over the adequate funding of legal aid in Australia continue, even in the face of clear evidence that cutting funding is detrimental to individuals and in the long run more costly to the community, as the Law Society Gazette says:

"Early legal advice,  .  .  .  prevents problems and associated costs escalating."


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