Legal aid is the provision of assistance to people who are 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. This article describes the development of legal aid and its principles, primarily as known in Europe, the Commonwealth of Nations and in the United States.
Legal aid is essential to guaranteeing equal access to justice for all, as provided for by Article 6.3 of the European Convention on Human Rights regarding criminal law cases and Article 6.1 of the same Convention both for civil and criminal cases. Especially for citizens who do not have sufficient financial means, the provision of legal aid to clients by governments increases the likelihood, within court proceedings, of being assisted by legal professionals for free or at a lower cost, or of receiving financial aid.
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. More informal or general legal advice and assistance may also be provided for free or at low cost through such means as law centres (UK), community legal centres (Australia) or a variety of other organisations which provide various forms of legal aid in and outside of court.
History Legal aid has a close relationship with the welfare state, and the provision of legal aid by a state is influenced by attitudes toward welfare. Legal aid is a welfare provision by the state for people who would otherwise be unable to afford legal counsel. It also helps to ensure that welfare provisions are enforced by providing people entitled to such benefits, including social housing, with access to legal advice and the courts.
Historically, legal aid has played a significant role in ensuring respect for economic, social and cultural rights, particularly in relation to social security, housing, social care, health, and education services, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti have argued that legal aid is essential to access to justice, as it enables individuals to enforce economic, social and cultural rights through legal mechanisms. His views developed during the second half of the 20th century, when democracies with capitalist economies established liberal welfare states that focused on the individual. States increasingly acted as contractors and service providers within a market-based philosophy that emphasised the citizen as a consumer. This shift led to a greater emphasis on individual enforcement as a means of achieving the realisation of rights for all.
Prior to the mid-20th century, literature on legal aid emphasised the collective enforcement of economic, social and cultural rights. As classic welfare states were established during the 1940s and following World War II, a central principle was that citizens shared collective responsibility for economic, social, and cultural rights, and that the state assumed responsibility for those unable to provide for themselves due to illness or unemployment. The enforcement of these rights was primarily collective, achieved through public policies rather than individual legal action. Laws were enacted to support welfare provisions, but these were generally regarded as instruments for planners rather than lawyers. Legal aid schemes were introduced on the assumption that the state had a responsibility to assist those involved in legal disputes; however, these schemes initially focused mainly on family law and divorce.
During the 1950s and 1960s, the role of the welfare state evolved, and social goals were no longer assumed to be universally shared. Individuals were increasingly free to pursue their own objectives. During this period, the welfare state expanded, along with legal aid provisions, as concerns arose regarding the power of welfare providers and professionals. In the 1960s and 1970s, demand grew for individuals to have the right to legally enforce economic, social and cultural rights and the welfare benefits to which they were entitled. Mechanisms emerged that enabled citizens to enforce their economic, social, and cultural rights through legal processes, and welfare lawyers used legal aid to advise individuals on low incomes when dealing with state officials. As a result, legal aid was extended beyond family law to cover a broad range of economic, social, and cultural rights.Regan (1999), The Transformation of Legal Aid, pp. 90–91
In the 1980s, the role of the traditional welfare state was increasingly questioned, and welfare services were more frequently provided by private entities. Legal aid was also increasingly delivered through private providers, though it remained focused primarily on assistance in court proceedings. Citizens came to be viewed more as consumers, expected to choose among available services. Where such choice was not possible, citizens were given the right to express dissatisfaction through administrative complaints processes. This development created tension, as legal aid systems were not designed to provide advice for those seeking redress through administrative complaint mechanisms. Further tensions emerged as states that prioritised individual enforcement of economic, social, and cultural rights, rather than collective enforcement through public policy, reduced funding for legal aid as a welfare provision. Individual enforcement of welfare entitlements requires levels of legal aid funding more commonly associated with systems that emphasise collective enforcement.Regan (1999), The Transformation of Legal Aid, p. 91]], 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 counsel from 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.
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 and following World War II, an underlying principle was 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 responsibility 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. In the 1960s and 1970s, demand rose 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 advise 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.Regan (1999), The Transformation of Legal Aid, pp. 90–91
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. Legal aid was increasingly provided through private providers, but they 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 emerge as states which emphasised individual enforcement of economic, social, and cultural rights, rather than collective enforcement through policies, 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.Regan (1999), The Transformation of Legal Aid, p. 91
Legal aid movements Historically legal aid has its roots in the right to counsel and right to a fair trial movement of the 19th-century continental European countries. "Poor man's laws" waived 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. Most countries went on to establish 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 requiring a lawyer. 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 proceedings, and therefore provide legal aid where a lawyer is required. Common law countries emphasise the right to counsel and provide legal aid primarily in relation to criminal proceedings.Regan (1999), The Transformation of Legal Aid, p. 114
In response to rapid industrialisation in the late 19th-century Europe, trade union and workers' parties emerged that challenged the social policies of governments. They gained passage of laws 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.
Recent times In the 20th century, legal aid developed together with progressive principles; it has often been supported by those members of the legal profession who felt that it was their responsibility to care for those on low income. Legal aid became driven by what lawyers could offer to meet the "legal needs" of those they have identified as poor, marginalised or discriminated against. According to Francis Regan in 1999, legal aid provision is supply driven, not demand driven, leading to wide gaps 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.