Legal Aid Act 1949: birth of a modern legal aid scheme
The Legal Aid and Advice Act 1949 (c 51) received Royal Assent seventy years ago (30 July 1949). Without any sense of irony the Ministry of Justice has announced:
“Today we are celebrating 70 years of Legal Aid. That’s 70 years of dedicated legal professionals helping those in need. We’re proud to be a part of it.”
Many practising lawyers will be proud of the help they have given to clients “in need”. Few will be “proud” of what the Ministry of Justice under Access to Justice Act 1999 and, more especially, under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) has done to undermine and totally to destroy much of what the 1949-1973 schemes set out to achieve, and which – for the first half of its life – the scheme did achieve.
This article traces, briefly, the history of legal aid up to the 1949 Act, through to its hey-day in the 1970s and 1980s; and then its decline to its emaciated version under LASPOA 2012. The introductory section owes much to Chapter 2 of Matthews and Oulton on Legal aid and Advice (Sweet & Maxwell, 1971) at one time the main reference book for legal aid office staff.
In forma pauperis: an Act of 1495
Matthews & Oulton describe (p 10) a statute of 1495 (11 Hen 7, c 12) as providing the “first English [legal aid] statute” (legislation in Scotland had existed seventy years earlier). It was intended as “An Act to admit such persons as are poor to sue in forma pauperis”. The main features of this procedure were that “poor persons” – as they were termed till 1950 (the coming into operation of the 1949 Act) – were not to be charged fees for issue of court proceedings. Lawyers were to be assigned by the Lord Chancellor for drafting without payment. At any hearing the court assigned counsel to act free. “Poor person” was not defined.
In a 1531 statute (23 Hen 8, c 15) poor persons were to be exempt, as loser, from their opponent’s costs but other punishment might be imposed on them. This might include corporal punishment: see note 7 to Drennan v Andrew (1866), 1 Ch App 300, 303:
“By 11 Hen 7 c 12, poor persons were allowed to sue in formâ pauperis. By 23 Hen 8 c 15, a pauper was not to pay costs, if he was unsuccessful, but was to suffer other punishment in the discretion of the judge. Accordingly the common form of the order allowing a poor person to sue in formâ pauperis contained this clause: ‘But if the matter shall fall out against the Plaintiff, he shall be punished with whipping and pillory.’”
The Rushcliffe Committee
The period 1883 to 1950 (when the 1949 Act came into force) saw the successive repeal of the Tudor legislation; and over that period, the poor person’s procedure was developed. In this period there was increasing pressure for law reform to enable poor people to assert or defend rights in proceedings. This concluded in the era of social and welfare reform best known from, for example, the Beveridge Report of 1942, with the setting up in 1944 of the Rushcliffe Committee (chaired by Lord Rushcliffe, barrister and Conservative politician Henry Betterton, who had served as Labour Minister in Ramsay MacDonald’s national government of 1931).
Demand for reform was impelled also by the substantially increased numbers of divorces arising from the Second World War; and the shortage of practising solicitors on war service. Divorce, especially, placed a severe burden on poor person’s procedures (by now lawyers on local panels were expected to give free help to clients who had less than £50 to their name).
Rushcliffe had been asked to report as follows:
“… To make such recommendations as appear to be desirable for the purpose of securing that poor persons in need of legal advice may have such facilities at their disposal, and for modifying and improving, so far as seems expedient, the existing system whereby legal aid is available to poor persons in the conduct of litigation in which they are concerned, whether in civil or criminal courts”.
The Report concluded that a service which was patchy – at its best – had become totally inadequate for modern purposes. This, thought the Committee, was likely to become worse. The Committee thought that if all members of the community deserving of assistance, were to secure help, they should be entitled to lawyers. And those lawyers, in their turn, could not be expected to provide such frequent assistance as an entirely voluntary service.
Amongst the Report’s recommendations were the following (the outline of which remained broadly in place till 2014, when LASPOA 2012 came into operation):
- A comprehensive scheme under which legal aid, administered by the legal profession (until 1988 the scheme was administered, nominally, by the Law Society) and funded by the state, would be available in all courts;
- Aid should be available to a wider income group than “those who are normally classed as poor” (who should be described as “assisted persons” (not “poor”). This was extended, and to more realistic levels, in 1973
- A basis for defining an applicant’s net income was proposed; and assisted persons would have to contribute “what (if anything) they could afford” (a “legal aid contribution”: always a prominent feature of the scheme);
- “Barristers and solicitors should receive adequate remuneration for their services” (a feature which receded from 1988 and has markedly worsened over the 30 years since then).
Legal Aid and Advice Acts
The Rushcliffe recommendations were implemented by the 1949 Act. The civil scheme began in 1950 with the criminal provisions introduced from 1952. The 1949 Act remains alongside the National Health Service and the extensive reforms of the late 1940s amongst the most prominent achievements of the Labour Government of 1945-50.
The scheme was later developed still further, notably by liberalisation under two Tory Lord Chancellors – Lord Hailsham LC and the ‘Green Form Scheme’ in 1973 (which enabled solicitors in administratively simple ways to provide a modest amount of legal advice to those on benefits or otherwise of limited means); and under Lord McKay LC with his Children Act 1989 which amended the then Legal Aid Act 1988 to provide for grant of non merits, non means testing legal aid (ie no restriction on grant of legal aid) for any parents and children involved in care proceedings.
The shrinking of the scheme began with the euphemistically named Access to Justice Act 1999 – an early exercise of the then Labour Lord Chancellor, Lord Irvine. This provided less access to justice. This erosion of access to legal aid – and, for many to access to justice – was massively intensified by the Coalition government’s LASPOA 2012, as part of their “austerity” project. This erosion lead to a drastic reduction of the availability legal aid, especially in family proceedings, where – save where there has been domestic abuse or for children as parties – legal aid provision has been largely obliterated. And this is so whatever a party’s means (save in the case – still – of local authority care proceedings).
A part of this contraction of legal aid has been that the common project in which the legal aid administrators and the practising legal profession had together been engaged – to serve those inescapably involved in litigation, or needing help to assert rights – has been completely lost. The legal aid profession – the “us” – and the Legal Aid Agency – “them” – are mostly working against each other: one to try to help, the other to try to prevent grant. The idea of the Legal Aid Agency being anything to do with “dedicated legal professionals helping those in need” would be regarded as a sick joke by legal aid practitioners and most judges.
31 July 2019