Sources of Funding Unit 1 AS

1. Access to Justice Sources of Funding Unit 1 AS LA1: Understanding Legal Structures and Processes

2. Objectives • Explain what is meant by the unmet need for legal services • Explain the history of state-funded legal services & the reforms of 1999 • Explain the role of the Legal Services Commission • Explain the workings of the Community Legal Service & the Criminal Defence Service • Identify other providers of advice / alternative sources of help • Critically evaluate the Access to Justice Act 1999 • Explain & evaluate conditional fee agreements • Identify & discuss further proposals/ areas for reform LA1: Understanding Legal Structures and Processes

3. Discussion Questions Q. What is legal aid ? • State- funded legal help Q. What is meant by the unmet need for legal services? • A person has a problem which could possibly be solved by going to law, but that person is not able to get the help he / she needs from the system. Q. For what reasons do you think someone would fail to get the legal help they need? LA1: Understanding Legal Structures and Processes

4. Equity Q. For what reasons do you think someone would fail to get the legal help they need? • Person fails to see that their problem has legal implications • Chooses not to pursue the case because of implications like cost, sees solicitors as unapproachable • Person does not know of the existence of a legal service or cannot find one who could help LA1: Understanding Legal Structures and Processes

5. History of Legal Aid • 1949 – 1st state-funded legal aid scheme • 1980’s – system had developed into 6 different schemes • Legal Aid Board – administered the schemes • Cost of the system escalating • 1999 – Access to Justice Act 1999 – major changes to the system LA1: Understanding Legal Structures and Processes

6. Group Exercise • In small groups carry out the following exercise, you will be required to feedback your proposals to the class You are the Government you are required to draw up a new legal aid scheme, you need to consider the types of cases you will fund, eligibility rules etc. LA1: Understanding Legal Structures and Processes

7. Legal Aid before 1999 6 schemes • Legal advice & assistance scheme( the ‘green form’ scheme) • Assistance by way of representation (ABWOR) • Civil legal aid • Criminal legal aid • Duty solicitor- police stations • Duty solicitor – magistrates’ courts LA1: Understanding Legal Structures and Processes

8. Legal Aid before 1999 Problems with the 6 schemes • Eligibility levels dropped • Under funding of system • Fraud ad misuse f the system • Poor standards of work • Patchy coverage LA1: Understanding Legal Structures and Processes

9. Access to Justice Act 1999 Key changes • Legal Aid Board replaced with Legal Services Commission • Community Legal Services Partnerships developed • Introduction of a quality mark • 6 schemes replaced with 2 new schemes: • Community Legal Service • Criminal Defence Service LA1: Understanding Legal Structures and Processes

10. Access to Justice Act 1999 The Community Legal Service • Civil Cases • Funding no longer demand led – Funding Code • Means & Merits tests • Contract required from LSC to provide advice & representation • Certain cases removed from legal aid – personal injury, defamation & malicious falsehood, business disputes & cases relating to companies, partnerships, trusts, boundary disputes • Community legal advice - 2004 LA1: Understanding Legal Structures and Processes

11. Access to Justice Act 1999 The Criminal Defence Service • Criminal Cases • Funding is still demand led • Public defenders - 2001 • Duty solicitors • Contract required from LSC to provide state-funded criminal defence work • Means test abolished by AJA 199 • Criminal Defence Service Act 2006 – reintroduced means test • Criminal Defence Service Direct LA1: Understanding Legal Structures and Processes

12. Other Legal Service Providers Other than solicitors and barristers what other agencies / persons offer legal advice? • Law centres • Community Legal Advice Centres • Citizens’ Advice Bureaux • LA’s • Trade Unions • Motoring organisations • Pro Bono clinics • Insurance LA1: Understanding Legal Structures and Processes

13. Advantages of AJA Reforms • Better control over costs – civil cases now fixed budget • Higher standards of work – only those firms with a contract can provide legal services • Quality mark – reinforces high standards • Resources better allocated – the Funding Code channels money into those areas where it is needed LA1: Understanding Legal Structures and Processes

14. Disadvantages of AJA Reforms • Limited access to justice • Cost cutting - concerns that civil cases will suffer because priority given to criminal cases • No legal aid for defamation cases – McLibel Two (Steel v UK (2005) ) • Other cases removed from legal aid – business disputes and PI cases • Problems with conditional fee agreements • Public defenders – are they truly independent? ( See research by Cyrus Tata & Others (2004) on success of public defenders in Scotland • Poorer standards of work • Huge costs of criminal cases LA1: Understanding Legal Structures and Processes

15. Conditional Fee Agreements Courts & Legal Services Act 1990 & Access to Justice Act 1999 How do they work? • Solicitor can agree to take no fee, or a reduced fee if they lose, and raise their fee by a agreed percentage if they win ( maximum of double usual fee) • Extra fee is called the ‘uplift’ or ‘success fee’ • Loser pays winner’s costs and the uplift and if the court orders the insurance premium also if insurance has been taken out • Access to Justice Act 1999 – conditional fee available for all cases except medical negligence LA1: Understanding Legal Structures and Processes

16. Advantages of Conditional Fee Agreements Widen access to justice • Cost to the state – they cost the state nothing • They encourage solicitors to perform better • Widen coverage – defamation & tribunal cases allowed to use a conditional fee agreement • Requirement for insurance • Very popular with the public LA1: Understanding Legal Structures and Processes

17. Reforms and Proposals • LSC piloting community legal and advice centres • One-stop shops in doctors’ surgeries, community centres • Expansion of Community Legal Advice – telephone & website service providing advice on civil matters • A National legal service – similar to the NHS • Encourage use of ADR • Introduction of no-fault compensation & class actions LA1: Understanding Legal Structures and Processes

18. Reforms and Proposals • Lord Carter's review, Legal aid: a market-based approach to reform (2006) • Government paper, Legal Aid: a sustainable future(2006) Recommendations include: • Procurement contracts & Competitive tendering • Introduction of fixed fees for cases • Granting fewer & larger contracts • Aim of reforms to control costs & quality LA1: Understanding Legal Structures and Processes

19. Research Exercise Research Lord Carter's proposals and discuss whether they will have a positive or negative effect on the future of legal services. LA1: Understanding Legal Structures and Processes

20. Useful Websites www.legalservices.gov.uk www.clsdirect.org.uk www.dca.gov.uk www.communitylegaladvice.org.uk www.publications.parliament.uk – Carter’s review 2007 LA1: Understanding Legal Structures and Processes

21. Test Yourself • What is the name of the Act that introduced the 2 new legal aid schemes? • What are the names of those 2 schemes? • How is each scheme funded / who is eligible? • When & by what Act were conditional fee agreements introduced? • What is the ‘uplift’? • What other providers are there of legal advice? • What are Lord Carter’s main proposals for reform? LA1: Understanding Legal Structures and Processes