Access to Justice and Funding

• A person has a problem which could possibly be solved by going to the law, but that person is not able to get the help they need from the system
• Reasons why someone would fail to get the legal help they need

  • Fails to see that their problem has legal implications
  • Chooses not to pursue the case because of implications like cost, sees solicitors as unapproachable
  • Does not know of the existence of a legal service or cannot find one who could help
• Legal Aid


  State-funded legal help
• First legal aid system established after WW2

  1949
• How the legal aid system worked

  1. Publicly funded to cover the cost of going to and being represented in court

  2. The Legal Aid Board issued legal aid and people were assessed based on their means
• Justice


  The idea of treating like cases in a like manner, showing impartiality and acting in good faith
• Different types of legal aid in the 1980s

  • Legal advice & assistance scheme
  • Assistance by way of representation (ABWOR)
  • Civil legal aid
  • Criminal legal aid
  • Duty solicitor – police station
  • Duty solicitor – Mags court
• Theories of Justice


  • Distributive Justice
  • Utilitarianism
  • Social Justice
• Distributive Justice


  • Concerned with the fair allocation of benefits (e.g. money, property) and responsibilities (e.g. taxes)
• Aristotle's view on Distributive Justice

  • Justice refers to individuals in their dealings with each other, and to the state in making and enforcing laws
  • Believed in proportionality - argued that a 'just state' will distribute its wealth on a basis of merit - who is worthy of the wealth based on their contribution rather than how much they need it
  • Argued that allocating resources on the basis of needs is unjust and rewards laziness
• Thomas Aquinas' view on Distributive Justice

  • Justice governs our relationships with other people. It is the willingness to deal with other people as they deserve
  • The end result of justice is common good for all
  • Distributive justice is governed by the principle of due proportion - meaning people receive what they need based on their merit, rank and need
  • Wrong to pay workers an equal amount for unequal work or vice versa
• Access to Justice Act 1999

  1. Introduced by Labour

  2. Aimed to improve quality, improve accessibility, tighter control of budget, promote competition between providers (law firms)

  3. The Legal Aid Agency replaced the legal services commission and brought in 2 schemes: Community Legal Service (Civil) and Criminal Defence Service (Criminal)
• Karl Marx's view on Distributive Justice

  • "From each according to his ability, to each according to his need"
  • Everyone will contribute to the combined wealth by using their full abilities
  • People will receive based on their need regardless of personal contribution
• Many of Lord Jackson's recommendations were included in the LASPO 2012
• Chaim Perelman's 6 models of Distributive Justice

  • To each according to his merits
  • To each according to his needs
  • To each according to his works
  • To each equally
  • To each according to his rank
  • To each according to his legal entitlement
• Chaim Perelman concluded that justice cannot be studied logically, as each attempt to define justice is based on a person's subjective views
• LASPO 2012 created the publicly funded legal aid system we use today
• Utilitarianism


  • Philosophy that the more an action increases overall happiness, the more valuable it is
  • Utilitarians are only interested in the outcome of an act, regardless of what the act itself is
• John Stuart Mill's view on Utilitarianism


  • Actions are right 'in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness'
  • Focused on the quality of happiness rather than merely upon its quantity
  • Justice includes respect for people, property and rights as well as the need for good faith and impartiality
  • Punishment is an evil as it involves inflicting pain and can only be justified where it brings a greater benefit - such as public order
• John Rawls' view on Social Justice

  • Justice as fairness
  • Hypothetic society where no-one knew their position and therefore would operate behind a 'veil of ignorance' - this would lead to benefits and burdens being distributed justly and fairly
  • Two basic principles: 1) Everyone would have equal access to their basic rights and freedoms, 2) Social and economic equalities would exist but only where they benefit the least advantaged and provided all offices and positions are open to everyone
• LASPO 2012 removed significant categories from the scope of legal aid and reduced the amount paid to legal professionals who provide legal aid
• Civil legal aid is no longer available for

  • Medical negligence
  • Welfare benefits
  • Employment, consumer disputes
  • Education (except special needs cases)
  • Immigration
  • Housing cases
  • Private family cases do not qualify for legal aid unless the case involves domestic violence, child abduction or a forced marriage
  • Personal Injury
• Robert Nozick's view on Social Justice

  • Entitlement theory of justice: 1) Principle of justice in acquisition, 2) Principle of justice in transfer, 3) Principle of rectification of injustice
  • No limits on private ownership as long as property was obtained through the right means
  • State interference should be kept to a minimum to achieve a just society and should only get involved when protecting basic needs
• Civil legal aid is retained for (schedule 1 of LASPO): Discrimination relating to the Equality Act 2010, Housing issues relating to homelessness or risk to health or life, Clinical negligence cases (where the negligence occurred during the first few weeks of life), Child protection and abduction, Immigration (limited cases)
• Procedural Justice


  Concerned with making and implementing decisions according to fair processes
• Means tests for civil legal aid

  Tightened under LASPO 2012
• Corrective Justice


  Also known as restorative justice, when the law restores the imbalance that has occurred between two individuals or an individual and the state
• Civil Legal Advice (CLA)

  A national telephone service and website that provides free legal advice on civil matters
• Substantive Justice


  The content of the law itself must be just
• S10 of LASPO 2012: 'exceptional funding'


  Can be granted in exceptional circumstances, where a failure to provide funding would result in a breach of the European Convention on Human Rights
• Only Solicitors firms with a contract with the Legal Aid Agency can offer civil legal aid services
• A telephone gateway service was set up for clients who need debt, special educational needs and discrimination advice
• To qualify for civil legal aid

  You must be means and merit tested as per s4 LASPO 2012 and under the Civil Legal Aid Regulations 2013

  
• Criteria for civil legal aid

  • Capital assessment, but some are automatically eligible through the passport system if they get jobseekers allowance, universal credit, pension credit or employment and support allowance
  • Income Limit: gross monthly income (before tax) must be less than £2,657 & disposable income of less than £733 pm
  • Capital Limit: no more than £8,000
  • Limits are ignored if the client is applying for legal aid for an order for protection from domestic violence or forced marriage (contribution may be required)
• Legal aid is an important part of social justice - everyone should have the right to access justice and receive a fair trial
• Changes to legal aid through the Legal Aid Sentencing and Punishment of Offenders Act 2012 have significantly reduced the availability of legal aid
• Factors considered in assessing legal aid

  • Prospects of success
  • Public Interest
  • Proportionality Test
  • Likely Damages
• Citizens Advice


  A national body and registered charity that provides free, easily accessed legal advice
• A person who cannot afford legal representation can be said to have no right to a fair trial (Article 6 ECHR)
• Citizens Advice is an alternative for legal aid