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The Alliance For Legal Aid

History

The History of Legal Aid

The modern system of legal aid[1] was created by the Legal Advice and Assistance Act 1949. The Act was a part of the sweeping reforms to the welfare state introduced by Attlee’s post-war Labour government. It represented the first coherent attempt to provide a comprehensive system of state funded legal aid. Prior to this, legal advice for poorer litigants relied heavily on the good will of lawyers. The idea behind the 1949 scheme was to allow for litigants of modest means, to be assigned a lawyer to advise them and, if necessary, to represent them in court.

 

The Rushcliffe Proposals

The scheme was a direct result of the recommendations of the Rushcliffe committee, who reported to Parliament in May 1945. Rather than adopting a similar model to the newly formed National Health Service, or capitalising on the developing network of Citizen’s Advice Bureaux, Rushcliffe envisioned a scheme whereby barristers and solicitors in private practice would be paid by the state to provide legal advice. His report made a number of very simple yet highly principled recommendations which went on to underpin the new scheme. These included that:
  • Legal aid should be available in all courts and in such manner as will enable persons in need to have access to the professional help they require.
  • This provision should not be limited to those who are normally classed as poor but should include a wider income group.
  • Those who cannot afford to pay anything for legal aid should receive this free of cost.
  • There should be a scale of contributions for those who can pay something toward costs.
  • The cost of the scheme should be borne by the state, but the scheme should not be administered either as a department of state or by local authorities.
  • The legal profession should be responsible for the administration of the scheme
  • Barristers and solicitors should receive adequate remuneration for their services.

 

1950 – 2000 The development of the modern legal aid system

The civil legal aid scheme began to operate in 1950 at which time it provided 80% of the population with a means-tested entitlement to legal aid. By 1973 this had dropped to 40% and by 2008 it only covered 29% of the population.[2] This rose to 36% in 2009 as a result of the economic climate.[3]
 
At first legal aid was predominantly used in criminal cases and for divorces. This gradually changed in the decades following the inception of the scheme and cultural change coupled with the establishment of Law Centres in the 1970’s resulted in an increased emphasis on areas such as housing and employment. 
 
Until 1988 the legal aid scheme was administered by the Law Society. This created at least a perception of conflict as the body administering legal aid funds was also the body which represented the lawyers who were paid out of the fund. To remedy this the administration of the scheme was transferred to the newly created Legal Aid Board.
 
By the mid-1990s there was a degree of dissatisfaction that the scheme was not being directed at the right cases. A large proportion of the non-family certificates issued at this time were for personal injury cases with little emphasis on social welfare.
 
Simultaneously, throughout the period 1988-1996/7, the legal aid budget was growing significantly quicker then inflation and was the fastest rising item of government expenditure overall. It was in order to remedy such problems that the Access to Justice Act 1999 was enacted, creating the Legal Services Commission and fundamentally changing the way legal aid is administered.
 



[1] See generally A. Elson “The Rushcliffe Report” (1946) The University of Chicago Law Review Vol. 13(2) 131-144; S. Hynes & J. Robins The Justice Gap (2009, LAG); Report of the Committee on Legal Aid and Legal Advice in England and Wales (Cmd. 6641); T. Bingham The Rule of Law (2010, Penguin) pp 86-89l; Lord Justice Jackson “Review of Civil Litigation Costs: Preliminary Report Volume One” May 2009 http://www.judiciary.gov.uk/Resources/JCO/Documents/jackson-vol1-low.pdf pp143-144; The Access to Justice Bill: Legal Aid Research Paper 99/03 http://www.parliament.uk/documents/commons/lib/research/rp99/rp99-033.pdf; S. Hynes' speech at 'Legal aid at 60: Bridging the justice gap' conference
[2] S. Hynes & J. Robin p21
[3] Lord Justice Jackson “Review of Civil Litigation Costs: Final Report” December 2009 http://www.judiciary.gov.uk/NR/rdonlyres/8EB9F3F3-9C4A-4139-8A93-56F09672EB6A/0/jacksonfinalreport140110.pdf pp 68-69 paragraph 3.2