evaluation of legal funding Flashcards
Advantage of legal aid - current system
- Current system is more cost-efficient for the tax-payer with firms bidding for work then completing – if completed work then billed the government there would be a risk of “over-egging” work and higher bills.
- Legal aid is still available across the country
Disadvantage of legal aid - advice deserts
• Evidence that not enough legal service providers have contracts to provide legal aid
• Many law firms are finding the rates of pay too low – not economically viable for them to continue. This has been called ‘advice deserts’
• Constitutional Affairs Select Committee considered this problem way back in 2004 – “it is clear that there are parts of England and Wales in which the need for publicly funded legal services is not currently being met”
• In their report – e.g. Northumberland – no housing law advisers/or advisers on immigration law. Only two contracts for employment law in the area.
• Difficult and expensive for people to travel to seek advice
• In 2000, there were 5000 law firms doing legal aid work, by 2012 there were only 1,780 firms.
Advantages of legal aid - limits overuse
- The interests of justice test ensures representation goes to the appropriate defendants
- By limiting it to where there is a “real” risk of imprisonment – it helps ensure people who are at risk of losing their liberty have a fair trial.
- This is just in a democracy and civilised society
Disadvantage of legal aid - interests of justice test
- The test is applied very strictly even where a defendant is charged with an offence for which a prison sentence can be given, it does not necessarily mean he will pass this test. The rule is that there must be a real risk of imprisonment
• This means a defendant with more convictions is more likely to be imprisoned; therefore, they are more likely to receive help. Defendant who is less likely to go to prison is less likely to receive legal aid
Advantage of legal aid - fairness
- Legal aid allows equality and access to justice for people on low or no income – this should be a fundamental right of any democratic state – similar to tax system.
• Protects the poorest in society by allowing them to enforce their civil rights and sue
• Stops richer people from claiming legal aid when they do not need it
• Assistance available to almost everyone in the Crown Court which is fair as this is where liberty is most at risk.
Disadvantage of legal aid - means test
- In the Magistrates’ Court there is a very strict means test. The levels of income allowed are very low.
- About 3⁄4’s of adults do not qualify for legal aid in criminal cases
- The limits are less severe in the Crown Court but even here, some defendants do not qualify for legal aid. As the cases are more serious, they are more expensive and there is a real risk of injustice due to lack of availability of legal help.
- In Civil cases - Only people with very low levels of income and capital can qualify for help - huge numbers of adults do not qualify.
- Select Committee on Constitutional Affairs 2004 – “the legal aid system is increasingly being restricted to those with no means at all. There is a substantial risk that many people of modest means but who are home owners will fall out of the ambit of legal aid”.
Advantage of legal aid - not an unlimited amount of cash
- Money for legal aid comes from the taxpayer – so not unlimited cash
• Better to spend on NHS, Defence, Education etc
• Right that criminal cases get priority – otherwise there is a risk of miscarriages of justice/liberty is at stake
• Reality of state-funded schemes
Disadvantage of legal aid - lack of funds
- Limited budget as drawn from taxes
• Budget for legal funding has not risen in line with inflation
• Criminal cases take priority, so little left for civil cases
• Cases can simply be refused because the money has run out
Advantage of legal funding - sensible caps/limits
Right to cap some cases
• Other options e.g. conditional fee agreements for some cases
• Risk of vicious cycle of giving people tax-payers money to sue the tax-payer e.g. cannot get legal aid to sue NHS. 2020 - Current bill to the NHS of over 4 billion pounds in legal costs with an estimated £80 billion plus in pay-outs to be made.
Disadvantage - non-availability of legal aid in civil cases
- Funding not available for all civil claims
• Claims for damages for personal injury are excluded.
These cases must be paid for privately or through a conditional fee agreement (no win no fee). This is problematic for people left with serious injuries or disability.
• People bringing employment claims against large companies are also disadvantaged by being unable to receive legal aid. The company will be able to afford a lawyer putting you at a substantial disadvantage.
• Cannot get legal aid for medical negligence cases now
Advantage of legal aid - help people bring cases
- Have helped thousands of people bring cases to
court and obtain justice.
• Particularly useful in defamation cases (used to be
only the rich that sued for this).
• Useful where claimants do not have the initial funds
or don’t want to take a risk.
Disadvantage of legal aid - problems with conditional fees
• Low value cases are not attractive to lawyers to who
need to make a profit, and are also more likely to take on cases where there is a very high chance of success.
• Legal Aid, Sentencing and Punishment of Offenders Act (2012) has made CFA’s less attractive
• Means a large amount of the won damages can be lost.
