Administration of Justice and Human Rights - Assignment Example

The recent changes to the funding of legal services will advance the cause of justice and so there should be no room for complaint". Do you agree Introduction One of the most common reasons for the development of legal aid in Britain – as in all countries around the world - has been the improvement of the justice provided to people of lower income. Regarding specifically the UK it has been found that the particular country ‘spends more per capita on legal aid than any other country in the world, yet appears to reap little benefit from the expenditure in terms of reduction of criminality or disputes’ (Flood et al., 2006, 80). The above problem needs to be investigated as of its causes. At a first level, it should be noticed that in England the legal aid is provided through a specific organization, the Legal Services Commission. The relevant procedure is developed through several stages. Regarding the specific issue, it is noticed by BMJ (2001, 322) that ‘legal aid is granted by the Legal Services Commission on the basis of advice from the applicants lawyer; such advice is not independent as the lawyer has a direct financial interest in advancing the case’. Because of the above, the commission supports the lawyer throughout the specific case (in which the involvement of the Commission has been asked by the applicant’s lawyer) offering to him the chance ‘to provide what euphemistically can be called overoptimistic assessments of the merits of cases’ (BMJ, 2001, 322). Through the years the financial support of legal aid provided to people of lower income has been a significant challenge for all country’s governors. Recently the problem has been increased; mostly because of the turbulences occurring in the international market; in this way the payment of the lawyers participated in the scheme can delay. However, if the appropriate plan of legal aid is applied it would be sure that the relevant scheme would be accepted positively by the country’s legal authorities. Current paper examines the development of legal aid in England especially under the influence of recent changes proposed by Lord Carter in his report of July 2006. Many organizations have criticized the above report in terms of its applicability across UK especially taking into account the fact that a significant percentage of population in Britain is of low income. 2. Funding of legal services in UK, current framework In accordance with the existed legal aid scheme as developed through the Justice Act of 1999, the responsibility for the formulation and the supervision on the legal aid system applied in UK belongs to the Legal Services Commission. Under the current legal aid system ‘firms access work through the police station when clients either choose their own solicitor or request a duty solicitor. Clients currently choose their own solicitor in approximately half of all cases’ (Lord Carter’s proposal, pg. 24). On the other hand, ‘there are a number of different payment schemes depending on the type of work being undertaken’ (Lord Carter’s proposal, pg. 24). It should be noticed that the proposals of Lord Carter regarding the legal aid system in UK could help towards the achievement of the following benefits (which could be also used in order to identify the weaknesses of existing legal aid system in UK): ‘a) access of clients to good quality legal advice and representation, b) the taxpayer and the government would receive value for money and c) market would be driven by best value competition based on quality, capacity and price and d) the justice system would be more efficient, effective and simple’ (Lord Carter’s proposal, pg. 3). However, the reforms suggested (as described analytically in the Lord Carter’s report which is accessible through the URL provided in the References section) should be appropriately monitored in order to ensure the application of their terms as provided in the Lord Carter’s proposal; any negative outcome possibly resulted for the participants in this area (judges, police, lawyers and the people that have the right to such a benefit) could be re-examined as of its extension and its duration. As already noticed there could be no legal system that would be perfectly adapted at a particular social and political framework. On the other hand, resistance could be normally expected since it will be difficult for existing practices to change. However, the results of any proposed scheme should be examined as of their future form; the reference only to current consequences of the proposed reforms would be both inappropriate and unfair. 3. Funding of legal services and cause of justice – relationship and interaction The relationship of legal aid with justice has been extensively examined in the literature. In accordance with Fenn et al. (2007) the responses of lawyers towards specific financial incentives could be explained using the following theoretical schemes: ‘(i) high-powered incentives for cost-reduction lowered inputs that may have been difficult to monitor, and (ii) substitution across inputs took place in line with multitask agency’ (Fenn et al., 2007, 662). The above findings could be used in the control of expenses in legal aid through the appropriate monitoring of remuneration contracts in all areas of legal disputes. From a different point of view, the study of Robinson (2007, 356) led to the conclusion that ‘civil remedies, such as protection orders designed to keep domestic-violence perpetrators away from their victims, did help victims to feel safer and deter revictimization; however, without the power and response of arrest for violations of these civil orders, they were viewed as ineffective’. In other words, legal aid could be considered as an effective tool for the promotion of justice provided to people with lower income when the appropriate support is provided to the victim of a particular crime in order to continue his/ her life safely; measures of temporary duration cannot be regarded as effective and they should be reviewed in order to provide a more complete protection to the victims of a particular crime. The above problem could be possibly avoided if ‘all civil injunctions related to domestic-violence allegations were cost-free; access to civil justice should depend on a persons need for protection rather than their income level’ (Robinson, 2007, 356). However, because of the cost involved in such an initiative, its applicability could be regarded as limited; the active financial support of this effort from capitals of the private sector (specific benefits should be granted in order for the government to promote appropriately such a scheme) would be a viable solution regarding the provision of full protection in victims of specific crimes. Another issue referring to the relationship of legal aid with justice is the fact that the power of judges under the intervention of a legal aid scheme would be equal to that of a normal legal dispute; in fact such a relationship between the judicial power and the enforcement of legal rules through the intervention of legal aid has been achieved at a high level. Indeed, the study of Garupa (2004, 493) showed that ‘with legal aid, in a system with legal or judicial error both guilty and innocent individuals are better off, because the marginal cost of defence expenditure is reduced; if, on average, legal aid helps the innocent more than the guilty, a government seeking to maximize social welfare will want to use it in order to increase deterrence’. In other words, legal aid is considered to improve the effectiveness of legal principles within a specific country. The reduction of cost involved in the relevant procedure is expected to lead more people in the Courts regarding the protection of their rights; in this way, the judicial authorities are informed on the crimes that took place in their region and the application of the appropriate legal rules – which follows – further promote the development of justice within a specific society. It should be noticed that the development of legal aid in specific areas would help the parties involved to be better protected from a potential violation of their rights. The above issue is mentioned because legal aid is not equally developed among all judicial areas. In this context, Chester (1972) after examining the conditions and the frequency of divorce petitioning specifically in England found that ‘divorce petitioning in the particular area does not fluctuate in accordance with the changing real value of legal aid and that increased divorce petitioning reflects more fundamental social changes than amendments to legal aid provision’ (Chester, 1972, 205). In other areas, legal aid could be possibly considered as having higher influence on the provision of legal support to people of lower income. Generally, it could be stated that legal aid is more related with specific legal areas (like the criminal law) however all social activities should be equally protected through appropriate legal aid schemes. On the other hand, the extensive planning regarding a specific initiative related with legal aid cannot be considered as the quite appropriate solution for the promotion of legal aid within a particular society. Regarding this issue, it is noticed by Moorhead (1998, 365) that ‘bureaucratic rules mix with professional and economic incentives to articulate entitlement to public money in a predominantly private forum while conceptual, policy, and research tools need to play closer attention to this competition of values’. In other words, the effectiveness of legal aid in the promotion of justice should not be considered as absolutely related with specific social and legal principles. In fact, it is more an issue of appropriate governmental planning that will promote legal aid among population continuously monitoring the use of funds released towards the realization of the relevant legal aid schemes. 4. Issues for consideration In the case of reforms in British legal aid system as proposed by Lord Carter the following comments could be made: ‘if implemented, the governments plans to reform legal aid could lead to hundreds of legal aid practitioners giving up legal aid work; this will leave many vulnerable clients unrepresented’ (The Law Society, 2007). In order to protect a high percentage of the population from a possible loss of their chances to address the Courts requesting the protection of their rights (a consequence that is closely related with the reforms proposed by the Carter’s plans as described briefly above) the Law Society has arranged a particular campaign named ‘What Price Justice’ aiming ‘to persuade the government to guarantee an adequately funded legal aid system ensuring quality representation and access to justice for all’ (The Law Society, 2007). The above campaign which is extensively supported by many public and private organizations in UK can be considered as a significant initiative towards the improvement of the terms and conditions of the government’s suggested plan for the development of legal aid across the country. On the other hand, the schemes applied in other countries related with the conditions under which legal aid is provided, could help the British government to formulate a more ‘flexible’ legal aid scheme – meaning that the terms enclosed could be equally applied to all people across the country in accordance with their needs and the financial strength of the local and the governmental authorities to support the development of the specific scheme. In this context, we could refer to the study of Hackler (1992, 58) which focuses on the legal aid system applied in Australia. The structure of legal aid system in the particular country proves that ‘young, poorly paid lawyers can become skilled and effective in juvenile matters; the young Melbourne lawyers take part in a training process that quickly familiarizes them with the subtleties of the system, gives them access to communication networks, and makes them part of a subculture that generates both competence and high morale’ (Hackler, 1992, 58). By avoiding the long training period applied in other countries (such as USA and Canada) young lawyers in Melbourne support effectively their clients through appropriate legal aid schemes. The specific issue was also examined by Hattie (1986, 238) who found that Legal Aid could be characterized as ‘an institution whose purpose is betrayed by deficiency in attitude as distinct from competence of personnel; the criticism of Legal Aid extended by the respondent population is merely an extension of the assessment they extend to the legal profession generally’. In fact, the effectiveness of any Legal Aid scheme can be proved only through its application in practice. At this stage, it would be expected that many problems could exist in the legal aid scheme which is proposed to be applied in a particular region; there could be no legal aid scheme that could be totally perfect in terms of each content and its applicability; however the government should intervene in any case in order to limit the possible negative outcomes related with the application of this scheme. The development of the appropriate research in advance could increase the effectiveness of any legal aid scheme; however even in this case problems could still appear when this scheme would be applied in practice. As stated above, the main reason for the development of legal aid has been the need for the provision of an advanced protection to people of lower income. The particular issue has been extensively examined by Sommerlad (2004) who referred especially to the development of legal aid systems in the post war area and came to the conclusion that ‘the establishment of legal aid, however limited in practice, was fundamental to the expanded citizenship which the post-war settlement sought to achieve; yet at the same time, the concepts of citizenship and social exclusion have become key discursive mechanisms in this reconstruction, including in the New Labour reform of the legal aid sector’ (Sommerlad, 2004, 345). The above assumption promotes the idea that legal aid systems are particularly supported by specific political parties; however such an assumption could not be regarded as totally justified because in this case justice would be considered as related with the political power which is not true. 5. Conclusion The efforts made in UK regarding the development of legal aid system should be considered as justified if taking into account the changes in the social and political framework of the country the last decades. In this context, the country’s legal system should be also updated in order to meet the needs of the public in modern Britain. However, it has been found that ‘legal aid expenditure has risen dramatically in recent years, prompting attention from successive governments; a prominent theme of past and present government reform proposals has been the shifting of risk away from the taxpayer towards lawyers, clients and insurers by altering the means by which legal aid lawyers are paid’ (Rickman et al., 1999, 261). In other words, the involvement of the government in the development of existed legal aid system should be considered as necessary taking into account the social and political changes in Britain (and globally) the last decades; however this involvement should be appropriate prepared in order to avoid the promotion of inequalities in the provision of legal support to the country’s population. The existence of the appropriate funds would be an issue that should be handled carefully having in mind that legal support can be extremely crucial under specific circumstances and for this reason the government should continue to provide to the people of lower income the chance to be effectively protected in case of any violation of their rights. The criteria for such a policy should be carefully examined while a possible limitation of the funds released in other sectors of public life would be preferred if the existed legal aid system was to be adequately funded by such a decision. References BMJ (2001) Medical Litigation: Who benefits? [online]. Available at http://www.bmj.com/cgi/content/full/322/7295/1189 Chester, R. (1972) Divorce and Legal Aid: A False Hypothesis. Sociology, 6(2): 205-216 Department for Constitutional Affairs (2007), Legal Aid, [online], available at http://www.dca.gov.uk/laid/laidfr.htm Fenn, P., Gray, A., Richman, N. (2007) Standard Fees for legal aid: an empirical analysis of incentives and contracts. Oxford Economic Papers, 59(4): 662-681 Flood, J., Whyte, A. (2006) Whats Wrong with Legal Aid? Lessons from Outside the UK. Civil Justice Quarterly, 25: 80-98 Garupa, Stephen, F. (2004) Optimal Law Enforcement with Legal Aid. Economica, 71(283): 493-500 Hackler, J. (1992) The Manifest and Latent Functions of Legal Aid. International Criminal Justice Review, 2(1): 58-75 Hattie, J., McGrath, G. (1986) Prisoners’ Perceptions of Legal Aid. Journal of Sociology, 22(2): 238-253 Lord Carter’s Review of Legal Aid Procurement (July 2006), available at http://www.legalaidprocurementreview.gov.uk/docs/carter-review-p1.pdf Moorhead, R. (1998) Legal Aid in the Eye of a Storm: Rationing, Contracting, and a New Institutionalism. Journal of Law and Society, 25(3): 365-387 Rickman, N., Fenn, P., Gray, A. (1999) The reform of Legal Aid in England and Wales. Fiscal Studies, 20(3): 261-286 Robinson, A. (2007) Improving the Civil-Criminal Interface for Victims of Domestic Violence. The Howard Journal of Criminal Justice, 46(4): 356-371 Sommerlad, H. (2004) Some Reflections on the Relationship between Citizenship, Access to Justice, and the Reform of Legal Aid. Journal of Law and Society 31 (3): 345-368 The Law Society (2007), [online], available at http://www.lawsociety.org.uk/newsandevents/news/majorcampaigns/view=newsarticle.law?CAMPAIGNSID=247074 Statutes Legal SERVICES COMMISSION, England and Wales The Community Legal Service (Funding) Order 2007, No 2441 http://www.opsi.gov.uk/si/si2007/uksi_20072441_en_1 Read More