The machinery of Legal Aid

Consider a situation in which a person, living in one of the wealthy, developed nations of North-West Europe, has limited personal financial resources. In among the many daily dealings with other individuals and with the authorities, a serious problem arises which cannot be ignored. Maybe a relationship breaks down and it is impossible to amicably agree arrangements for the home and children. Possibly a sole trader faces the risk of bankruptcy because of difficulties with customers not paying bills, or a pregnant woman is dismissed by an unsympathetic employer. An asylumseeker might need to appeal to court against a refusal of refugee status, or a mental health patient may object to compulsory treatment. Serious disrepair of a rented home may mean a family has to live with damp and mould, causing health problems for them all, or there may be problems arranging the appropriate education for a child with a learning disability. Maybe there has even been an allegation of the commission of a crime. All these potential issues are acknowledged by the State, and mechanisms for the fair resolution of the ensuing conflicts are in place. Sometimes the mechanism involves the formal legal process, sometimes not, but there is always ultimately a structure available either for the negotiation of a solution or for a decision to be imposed by a third party.

The processes alone, though, are not enough. The person experiencing the difficulty may not know about the existence of the relevant mechanism, and even if she or he does, may need help in using it. The circumstances giving rise to the problem will cause stress and anxiety and make it even more difficult to navigate an unfamiliar system, particularly if the mode of resolution is formal and legal, peopled by experts who can easily seem intimidating. What the individual really needs is help from one of those experts, a lawyer, but lawyers are expensive and there is no possibility of affording one without assistance. The person concerned has no savings, no-one else who will pay and no relevant insurance. Legal aid addresses this problem by providing legal advice and representation, paid for by the State, to a person who needs help in engaging with the legal system.

It can be argued that efforts should be made to reduce the frequency of this situation arising, because judicial dispute resolution routes are expensive and potentially unsuitable. Even defining a problem as ‘legal’ implies a judgment, usually by lawyers (with their vested interests in play), that the law is the best way to deal with the problem, and some commentators argue that this categorisation must be resisted in order for more appropriate and effective dispute resolution methods to be developed. Whatever the truth of this assertion, the present reality is that there are circumstances which force people into the judicial resolution of disputes, either because another party has chosen that route or because no other options are available. As legal proceedings are sometimes inevitable, legal aid must be available for the protection of indigent parties.

This thesis seeks to add to the understanding of how legal aid works, how well it works and how it could be improved. As will be seen in the literature review below, legal aid scholarship has until now generally focused on the need for and political commitment to legal aid, or the contribution made by legal aid to access to justice. This study extends the range of legal aid research by applying a public law perspective in considering the legal basis for legal aid schemes and the internal mechanisms according to which they operate. It aims to discover who makes the decisions allocating limited legal aid resources to certain individuals and certain cases, and the parameters within which these decisions are made. The geographical scope of the investigation will be a group of jurisdictions in North-West Europe: the UK, the Republic of Ireland and the Nordic countries.

The research takes as its definition of legal aid the provision by the state of legal help and representation by lawyers, either through the provision of state employed lawyers or by paying for private lawyers. This is a relatively narrow definition of legal aid; other studies have included the assistance provided through insurance and by volunteer advice services,2 whereas here attention is focused on instances where three criteria are met: assistance is provided by lawyers; those lawyers are paid for their work; and payment is by the state (albeit potentially with client contributions). Legal aid relating to civil, administrative and criminal law will be considered, thus whilst in the Nordic countries publicly funded legal assistance for criminal defendants is not called ‘legal aid’, their public defence schemes are within the remit of this research. The intention is to examine the procedural choices which have been made by a selection of jurisdictions in creating legal aid schemes, through a public and administrative law lens, and thereby answer a number of questions.