Legal aid
Encyclopedia
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law
, the right to counsel
and the right to a fair trial
.
A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.
and the provision of legal aid by a state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people who could otherwise not afford access to the legal system. Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as social housing, with access to legal advice
and the courts. Historically legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti
argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights. His views developed in the second half of the 20th Century, when democracies with capitalist economies established liberal
welfare states that focused on the individual. States established themselves as contractors and service providers within a market based philosophy that emphasised the citizen as consumer
. This led to an emphasis on individual enforcement to achieve the realisation of rights for all.
Prior to the mid 20th Century literature on legal aid emphasised collective enforcement of economic, social and cultural rights. As classic welfare states were built in the 1940s it was assumed that citizens had collective responsibility for economic, social and cultural rights and the state assumed responsibility for those unable to provide for themselves through illness and unemployment. The enforcement of economic, social and cultural rights was to be collective, through policies rather than individual legal action. Laws were enacted to support welfare provisions, though these were regarded as laws for planners, not lawyers. Legal aid schemes were established as it was assumed that the state had a responsible to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce. In the 1950s and 1960s the role of the welfare state changed and social goals were no longer assumed to be common goals. Individuals were free to pursue their own goals. The welfare state in this time expanded along with legal aid provisions as concerns emerged over the power of welfare providers and professionals. This led to increasing calls in the 1960s and 1970s for the right of individuals to legally enforce economic, social and cultural rights and the welfare provisions they as individuals were entitled to. Mechanisms emerged through which citizens could legally enforce their economic, social and cultural rights and welfare lawyers used legal aid to advice those on low income when dealing with state officials. Legal aid was extended from family law to a wide range of economic, social and cultural rights.
In the 1980s the role of the classic welfare state was no longer regarded as necessarily positive and welfare was increasingly provided by private entities. This led to legal aid being increasingly provided through private providers, but remained focused on providing assistance in court cases. Citizens were increasingly regarded as consumers, who should be able to choose among services. Where it was not possible to provide such a choice citizens were given the right to voice their dissatisfaction through administrative complaints processes. This resulted in tension, as legal aid was not designed to offer advice to those seeking redress through administrative complaints processes. Tensions also began to emerged as states which emphasised individual enforcement of economic, social and cultural rights, rather than collective enforcement through polices, reduced funding for legal aid as a welfare state provision. Individual enforcement of welfare entitlement requires the kind of legal aid funding states emphasising collective enforcement were more likely to provide.
and right to a fair trial
movement of the 19th Century continental European countries. "Poor man's laws" waives 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 for legal aid. Most countries went on to established 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 where a lawyer is mandatory. 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 law proceedings, and therefore provide legal aid where a lawyer is required, while common law countries emphasises the right to counsel and provide legal aid primarily in relation to criminal law proceedings.
In response to rapid industrialisation
in the late 19th Century Europe trade union
and workers' parties emerged challenging the social policies of governments. Laws were enacted 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.
In the 20th Century the movement in favour of legal aid has been top-down, driven by those member's of the legal profession who felt that it was their responsibility to care for those on low income. Legal aid is driven by what lawyers can offer to meet the "legal needs" of those they have identified as poor, marginalised or discriminated against. Therefore legal aid provision is supply driven, not demand driven, leading to wide caps 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.
s are employed 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 firm
s 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 in the form of public defender
s as well.
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.
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'.
and Sheriff Court
with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners.There is a separate system of criminal legal aid, and legal aid is also available for legal advice.
Legal aid is means-tested, and in practice only available to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board
.
Legal Aid in Scotland is also available in Criminal Cases, where more than 90% of Summary applications are granted. An Interests of Justice test is applied, as well as a means test. In Solemn case (Jury Trials) The Court assesses Legal Aid.
. Today legal aid in England and Wales costs the taxpayer £2bn a year - a higher per capita spend than anywhere else in the world - and is available to around 29% of adults.
Today, legal aid in England and Wales is administered by the Legal Services Commission
, and is available for most criminal cases, and many types of civil cases with exceptions including libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingency fee) and cases associated with the running of a business. Family cases are also often covered. Depending on the type of case, legal aid may or may not be means tested.
In July 2004 the European Court of Human Rights
ruled that the lack of legal aid in defamation cases, which was the position under the Legal Aid Act 1988, which was the applicable Act at the time of the McLibel case, could violate a defendant's right. The Access to Justice Act 1999 has a provision which allows the Lord Chancellor
to authorise legal aid funding in cases which are otherwise out of scope of the legal aid scheme under the exceptional funding provisions. A defendant in a position similar to the McLibel defendants could potentially have legal aid assistance if their application passed the exceptional funding criteria.
Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil legal aid is provided through solicitors and barristers in private practice but also non-lawyers working in law centres and not-for-profit advice agencies.
The provision of legal aid is governed by the Access to Justice Act 1999 and supplementary legislation.
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.
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 took its first major step towards a national system of legal aid when it established the Legal Services Bureaux in 1942. However, there was a move in the late 1970s to service delivery by the States and Territories (not the federal arm of government). 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 a number of years. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia
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.
In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement the States and Territories fund assistance in respect of their own laws.
, 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 criticised by the opposition pro-democracy camp
for further jeopardising neutrality of the provision of legal aid. They voted en bloc against the whole package of reorganisation of policy bureaux
, of which the transfer of the Legal Aid Department was part of.
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
, the right to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
and the right to a fair trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
.
A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.
History
Legal aid has a close relationship with the welfare stateWelfare state
A welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
and the provision of legal aid by a state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people who could otherwise not afford access to the legal system. Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as social housing, with access to legal advice
Legal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
and the courts. Historically legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti
Mauro Cappelletti
Mauro Cappelletti was an Italian jurist. He received his Doctorate in Law from the University of Florence, Italy, and was a Professor of Law at that same institution as well as at Stanford University Law School...
argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights. His views developed in the second half of the 20th Century, when democracies with capitalist economies established liberal
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
welfare states that focused on the individual. States established themselves as contractors and service providers within a market based philosophy that emphasised the citizen as consumer
Consumer
Consumer is a broad label for any individuals or households that use goods generated within the economy. The concept of a consumer occurs in different contexts, so that the usage and significance of the term may vary.-Economics and marketing:...
. This led to an emphasis on individual enforcement to achieve the realisation of rights for all.
Prior to the mid 20th Century literature on legal aid emphasised collective enforcement of economic, social and cultural rights. As classic welfare states were built in the 1940s it was assumed that citizens had collective responsibility for economic, social and cultural rights and the state assumed responsibility for those unable to provide for themselves through illness and unemployment. The enforcement of economic, social and cultural rights was to be collective, through policies rather than individual legal action. Laws were enacted to support welfare provisions, though these were regarded as laws for planners, not lawyers. Legal aid schemes were established as it was assumed that the state had a responsible to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce. In the 1950s and 1960s the role of the welfare state changed and social goals were no longer assumed to be common goals. Individuals were free to pursue their own goals. The welfare state in this time expanded along with legal aid provisions as concerns emerged over the power of welfare providers and professionals. This led to increasing calls in the 1960s and 1970s for the right of individuals to legally enforce economic, social and cultural rights and the welfare provisions they as individuals were entitled to. Mechanisms emerged through which citizens could legally enforce their economic, social and cultural rights and welfare lawyers used legal aid to advice those on low income when dealing with state officials. Legal aid was extended from family law to a wide range of economic, social and cultural rights.
In the 1980s the role of the classic welfare state was no longer regarded as necessarily positive and welfare was increasingly provided by private entities. This led to legal aid being increasingly provided through private providers, but remained focused on providing assistance in court cases. Citizens were increasingly regarded as consumers, who should be able to choose among services. Where it was not possible to provide such a choice citizens were given the right to voice their dissatisfaction through administrative complaints processes. This resulted in tension, as legal aid was not designed to offer advice to those seeking redress through administrative complaints processes. Tensions also began to emerged as states which emphasised individual enforcement of economic, social and cultural rights, rather than collective enforcement through polices, reduced funding for legal aid as a welfare state provision. Individual enforcement of welfare entitlement requires the kind of legal aid funding states emphasising collective enforcement were more likely to provide.
Legal aid movements
Historically legal aid has its roots in the right to counselRight to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
and right to a fair trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
movement of the 19th Century continental European countries. "Poor man's laws" waives court fees for the poor and provided for the appointment of duty solicitors for those who could not afford to pay for a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
. Initially the expectation was that duty solicitors would act on a pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
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 for legal aid. Most countries went on to established 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 where a lawyer is mandatory. Countries with a civil law legal system
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and common law legal systems
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
take different approaches to the right to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
in civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
and criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
proceedings. Civil law countries are more likely to emphasise the right to counsel in civil law proceedings, and therefore provide legal aid where a lawyer is required, while common law countries emphasises the right to counsel and provide legal aid primarily in relation to criminal law proceedings.
In response to rapid industrialisation
Industrialisation
Industrialization is the process of social and economic change that transforms a human group from an agrarian society into an industrial one...
in the late 19th Century Europe trade union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
and workers' parties emerged challenging the social policies of governments. Laws were enacted 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.
In the 20th Century the movement in favour of legal aid has been top-down, driven by those member's of the legal profession who felt that it was their responsibility to care for those on low income. Legal aid is driven by what lawyers can offer to meet the "legal needs" of those they have identified as poor, marginalised or discriminated against. Therefore legal aid provision is supply driven, not demand driven, leading to wide caps 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.
United States
A number of delivery models for legal aid have emerged. In a "staff attorney" model, lawyerLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s are employed 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 firm
Law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...
s are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare
Medicare (United States)
Medicare is a social insurance program administered by the United States government, providing health insurance coverage to people who are aged 65 and over; to those who are under 65 and are permanently physically disabled or who have a congenital physical disability; or to those who meet other...
patients in the U.S. The "community legal clinic
Legal clinic
The phrase legal clinic may refer to any private, nonprofit law practice serving the public interest. In the academic context, these law school clinics provide hands-on experience to law school students and services to various clients. Academic Clinics are usually directed by clinical professors...
" 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 in the form of public defender
Public defender
The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
s as well.
Europe
Article 47 of the Charter of Fundamental RightsCharter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of...
of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
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.
Central and Eastern Europe and Russia
According to the Public Interest Law Institute (www.pili.org), 'for over a decade, the countries of Central and Eastern EuropeCentral and Eastern Europe
Central and Eastern Europe is a term describing former communist states in Europe, after the collapse of the Iron Curtain in 1989/90. In scholarly literature the abbreviations CEE or CEEC are often used for this concept...
and Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
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'.
Germany
In civil cases including employment, administrative, constitutional and social cases assistance under the Legal Advice Scheme Act (advice and, where necessary, representation) is given; in criminal cases and cases involving administrative offences, only advice but no representation is given.Scotland
In Scotland, legal aid is in principle available for all civil actions in the Court of SessionCourt of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
and Sheriff Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners.There is a separate system of criminal legal aid, and legal aid is also available for legal advice.
Legal aid is means-tested, and in practice only available to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board
Scottish Legal Aid Board
The Scottish Legal Aid Board is an executive non-departmental public body of the Scottish Government, responsible for managing legal aid in Scotland...
.
Legal Aid in Scotland is also available in Criminal Cases, where more than 90% of Summary applications are granted. An Interests of Justice test is applied, as well as a means test. In Solemn case (Jury Trials) The Court assesses Legal Aid.
England and Wales
Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949Legal Aid and Advice Act 1949
The Legal Aid and Advice Act 1949 was a British Act of Parliament which provided people unable to pay for a solicitor with free legal aid....
. Today legal aid in England and Wales costs the taxpayer £2bn a year - a higher per capita spend than anywhere else in the world - and is available to around 29% of adults.
Today, legal aid in England and Wales is administered by the Legal Services Commission
Legal Services Commission
The Legal Services Commission is an executive non-departmental public body of the Ministry of Justice that is responsible for the operational administration of legal aid in England and Wales.-Overview:...
, and is available for most criminal cases, and many types of civil cases with exceptions including libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingency fee) and cases associated with the running of a business. Family cases are also often covered. Depending on the type of case, legal aid may or may not be means tested.
In July 2004 the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
ruled that the lack of legal aid in defamation cases, which was the position under the Legal Aid Act 1988, which was the applicable Act at the time of the McLibel case, could violate a defendant's right. The Access to Justice Act 1999 has a provision which allows the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to authorise legal aid funding in cases which are otherwise out of scope of the legal aid scheme under the exceptional funding provisions. A defendant in a position similar to the McLibel defendants could potentially have legal aid assistance if their application passed the exceptional funding criteria.
Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil legal aid is provided through solicitors and barristers in private practice but also non-lawyers working in law centres and not-for-profit advice agencies.
The provision of legal aid is governed by the Access to Justice Act 1999 and supplementary legislation.
Australia
AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
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.
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
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
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
Conflict of interest
A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other....
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 took its first major step towards a national system of legal aid when it established the Legal Services Bureaux in 1942. However, there was a move in the late 1970s to service delivery by the States and Territories (not the federal arm of government). 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 a number of years. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
. 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.
In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement the States and Territories fund assistance in respect of their own laws.
Hong Kong
Legal aid in Hong Kong, which is a unitary jurisdiction, is solely provided through the Legal Aid DepartmentLegal Aid Department
The Legal Aid Department often abbreviated as LAD, is a department in the Government of Hong Kong. It provides legal aid in legal representation for civil proceedings and criminal proceedings in District Court and above.- External links :*...
, which is in turn overseen by the Legal Aid Services Council.
Administratively the Legal Aid Department
Legal Aid Department
The Legal Aid Department often abbreviated as LAD, is a department in the Government of Hong Kong. It provides legal aid in legal representation for civil proceedings and criminal proceedings in District Court and above.- External links :*...
was under the Administration Wing of the Chief Secretary's Office. In 2007 it was moved to the Home Affairs Bureau
Home Affairs Bureau
Home Affairs Bureau is one of the policy bureaux of the Hong Kong Government.One of the important roles of the Home Affairs Bureau is to enhance liaison and communication with all sectors of the community including the Legislative Council and the general public.Tsang Tak-sing has been the...
, which chiefly oversees cultural matters and local administration. This was heavily criticised by the opposition pro-democracy camp
Pro-democracy camp
Pro-democracy camp, pan-democracy camp or pan-democrats refer to the politicians and social activists in Hong Kong who support increased democracy and may work together in areas of common interest or by not fielding candidates against one another in elections.Democratic activists are usually...
for further jeopardising neutrality of the provision of legal aid. They voted en bloc against the whole package of reorganisation of policy bureaux
Ministry (government department)
A ministry is a specialised organisation responsible for a sector of government public administration, sometimes led by a minister or a senior public servant, that can have responsibility for one or more departments, agencies, bureaus, commissions or other smaller executive, advisory, managerial or...
, of which the transfer of the Legal Aid Department was part of.
See also
- West Coast Environmental LawWest Coast Environmental LawWest Coast Environmental Law is an environmental law and public advocacy organization based in Vancouver, British Columbia, Canada. It believes in a just and sustainable society where citizens are empowered to protect the environment and environmental protection is enshrined in law. It fulfills...
- Environmental Dispute Resolution FundEnvironmental Dispute Resolution FundThe Environmental Dispute Resolution Fund is a legal aid program based in British Columbia, Canada that provides grants to individuals, community groups and environmental organizations who need to hire legal representation to assist them in resolving an environmental problem or dispute...
- Contract attorneyContract attorneyA contract attorney works on legal cases on a contract basis. Such work is generally of a temporary nature, often with no guaranteed employment term.A contract attorney is-Civil litigation:...
- Legal clinicLegal clinicThe phrase legal clinic may refer to any private, nonprofit law practice serving the public interest. In the academic context, these law school clinics provide hands-on experience to law school students and services to various clients. Academic Clinics are usually directed by clinical professors...
- Pro Bono NetPro bono netPro Bono Net is a national nonprofit organization based in New York City and San Francisco. The organization works in close partnership with nonprofit legal aid organizations across the United States and Canada, to increase access to justice for the millions of poor people who face legal problems...
- Public defenderPublic defenderThe term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
- Universal legal care
- Avocats Sans FrontièresAvocats Sans FrontièresAvocats Sans Frontières , also known as Advocaten Zonder Grenzen is an international non-governmental organization contributing to the creation of fair and equitable societies, in which the law and its institutions serve the most vulnerable groups and individuals...
External links
- Scottish Legal Aid Board - Very full information site of the Scottish Legal Aid Board, addressed to lawyers and to members of the public, as to legal aid in Scotland
- Directgov - Legal aid in England and Wales
- Legal Aid Program in Canada - From the Department of Justice of Canada website -Canadian Federal Government site
- Legal Aid Program in Ontario,Canada - Legal Aid Ontario -provincial government site
- National Legal Aid (Australia) - National Legal Aid (NLA) is the Australian peak Legal Aid body.