Legal aid - Wikipedia, the free encyclopedia. Legal aid is the provision of assistance to people otherwise 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 the United States. 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. Legal aid is essential to guaranteeing equal access to justice for all, as provided for by Article 6.
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European Convention on Human Rights regarding criminal law cases. Especially for citizens who do not have sufficient financial means, the provision of legal aid to clients by governments will increase the likelihood, within court proceedings, of being assisted by legal professionals for free (or at a lower cost) or of receiving financial aid.
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History. 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. Historically legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti- discrimination legislation. Jurists such as Mauro Cappelletti argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights. His views developed in the second half of the 2.
States acted as contractors and service providers within a market- based philosophy that emphasised the citizen as consumer. This led to an emphasis on individual enforcement to achieve the realisation of rights for all. As classic welfare states were built in the 1.
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. 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 1. 96. 0s and 1. 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.
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 polices, 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. Initially the expectation was that duty solicitors would act on a pro bono basis. In the early 2. 0th 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 law 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 law proceedings. 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 2. Legal aid is driven by what lawyers can offer to meet the . According to Francis Regan, 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. The Australian (Commonwealth) and state and territory governments are each responsible for the provision of legal aid for matters arising under their laws. In addition there is a network of approximately 2.
Community Legal Centres. Legal aid for both Commonwealth and state matters is primarily delivered through state and territory legal aid commissions (LACs), which are independent statutory agencies established under state and territory legislation. The Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with state and territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction. Legal aid commissions use a mixed model to deliver legal representation services.
A grant of assistance legal representation may be assigned to either a salaried in- house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties. The Australian Government and most state and territory governments also fund community legal centres, which are independent, non- profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians. By way of history, the Australian Government established the Legal Services Bureaux in 1. In the late 1. 97.
In 1. 97. 7, the Australian Government enacted the Commonwealth Legal Aid Commission Act 1. LAC Act), which established cooperative arrangements between the Australian Government and state and territory governments, under which legal aid would be provided by independent legal aid commissions to be established under state and territory legislation. The process of establishing the LACs took more than a decade. It commenced in 1. Legal Aid Commission of Western Australia, followed in 1. Legal Aid Commission of Victoria (LACV), and ended in 1. Legal Aid Commission of Tasmania.
The cooperative arrangements that were established by the LAC Act provided for Commonwealth and state and territory legal aid funding agreements, which began in 1. In July 1. 99. 7, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement, the states and territories fund assistance in respect of their own laws.
In 2. 01. 3, a murder trial in the Supreme Court of Victoria was delayed because legal aid was unavailable. Legal aid is available for almost all court actions across all levels of the court system. This includes criminal charges, civil issues, family disputes, appeals and Waitangi Tribunal claims. The federal financial contribution was originally set at 5. While many critical justice sector reforms have been undertaken throughout the region, the mechanisms to ensure individuals' access to legal information and assistance often remain inadequate and ineffective. Consequently, many people. In respect to criminal cases, the convicted will only have to cover the costs if he or she has a considerable fixed income - this is to prevent recidivism.
Exception include libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingent fee), and cases associated with the running of a business. Family cases are also sometimes covered. Depending on the type of case, legal aid may or may not be means tested and in some cases legal aid can be free to those on benefits, out of work and have no savings or assets. In July 2. 00. 4 the European Court of Human Rights ruled that the lack of legal aid in defamation cases, which was the position under the Legal Aid Act 1.