Legal Aid Ils 210

Robert Egerton

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136267796
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This is Volume XII of fifteen in a series on the Sociology of Law and Criminology. First published in 1945, based on the authors experience and produced just before the Lord Chancellor appointed a committee led by Lord Rushcliffe, to enquire into the present facilities for giving legal advice and assistance to poor persons and for making recommendations for ensuring that these persons are able to access legal advice and aid.

Part I
Historical and Descriptive

LEGAL AID

Chapter I
Introduction

At a very early stage in the life of a community it becomes necessary to put a limit on the individual's freedom to do exactly as he likes, and to institute a system of law. The members of a community are encouraged to accept this system and to submit their disputes to an impartial tribunal, instead of" taking the law into their own hands" and endeavouring to gain what they consider their rights by force or subterfuge. Civilized men will voluntarily accept this restraint providing that they can be sure of getting fair and reasonable decisions from the tribunal.

This involves three things: the tribunal must be impartial, it must be accessible, and the laws which it administers must be fair and reasonable. As regards the first of these there is no doubt that a very high standard of impartiality has been attained in the English courts. As regards the last it can be said that there are no laws which directly discriminate between one individual or class and another, and that those which indirectly produce this effect are gradually disappearing as the shape of society alters. It is the second requirement, the one we have labelled " accessibility " which requires further examination.

The laws may be good, the courts may be impartial, but if for any reason the law cańnot be invoked, the machinery of justice is of no practical use. Let us consider how this machinery works in the normal case of a man who feels himself injured and entitled to legal redress under English law.

His first step is to consult his solicitor. The solicitor considers the facts of the case, the legal principles and practical considerations involved. He advises his client and, if there appears to be a case, takes the matter up with the opposing party and endeavours to obtain an advantageous settlement. If agreement cannot be reached a Writ or Summons is issued. Faced with the trouble and expense of an action the parties may reconsider their attitudes. If they do not, all the necessary evidence and arguments are collected, a professional advocate on each side tries to show the justice of his case and the fallacies of his opponent's, and the court, having had the benefit of hearing all that has been said for and against each party, decides the matter according to law.

The operation of this machinery is expensive. In addition to the salaries of judges and court officials there are on each side solicitors and barristers, experts and other witnesses, and possibly prolonged investigations and preliminary proceedings, for all of which the litigants have to pay. Obviously there are many people who cannot afford the cost and who, therefore, are not protected by the law unless they are granted special consideration, that is to say, legal aid.

There is no other way in which justice for the poor can be achieved. It is, of course, to be hoped that reforms of, for example, the Workmen's Compensation Acts and Rent Restriction Acts, will reduce the necessity for litigation; and there are ways, good and bad, in which the expense of legal proceedings can be cut down. The laws can be made simpler, but our complicated economic and social system puts a limit on what can be done in this direction; the judges and practising lawyers can be less highly trained, but the present tendency in Russia, where this has been tried, is to go in for more legal training; the procedure of the courts can be of a more summary nature, but it cannot be denied that this involves a lowering of the standard of thoroughness. Everything points to the fact that for many years to come there will continue to be literally millions of citizens who cannot afford to pay for the legal proceedings which are necessary to redress their wrongs and, in so far as the legal aid provided is inadequate, justice is denied to those millions because they are poor.

It is a well-established principle of democracy that all citizens shall enjoy equality before the law, but the practice is more important than the principle. The point has been admirably expressed in a publication of the United States Department of Labor ¹:

. . . the problem of making justice readily accessible to all, including the great army of wage-earners, is far more than an abstract legalistic controversy. It is a matter of life and death for a democracy because, in the words of Harlan F. Stone, formerly Attorney-General of the United States and now a Justice of the Supreme Court, a democracy " cannot survive if it cannot find a way to make its administration of justice competent In similar vein Mr. Chief Justice Hughes says: " It is idle to speak of the blessings of liberty unless the poor enjoy the equal protection of the laws."

Lord Shaw, in his address to the American Bar Association in 1922, stated the point without quibble or evasion when he said: " That society is rotten where one citizen as against another can overpower him or undermine him by law wielded with an uneven hand. Only the blind, cruel, or the unjust in heart can wink the eye at this unnameable curse."

In this, as in practically every other civilized country, the most obvious hardships have been mitigated by the introduction of legal aid, but the provisions have been introduced piecemeal, so that there is one system for poor prisoners and a different one for poor litigants in the High Court; legal advice, as distinct from assistance with litigation, has been left entirely to charitable effort; some aspects of the problem have not been dealt with at all and many reforms are long overdue.

The problem is not small, or unimportant. In 1941-2 only about 9,000,000 people in England and Wales were paying any income tax; in 1938-9, just over 3,500,000, The remainder of the forty-one and a half million do not all require legal aid, because some of them are wives with husbands, or children with parents, who can afford to pay for legal services for their dependants, but the numbers involved are very substantial and there are many people who are at present unable to enforce their rights by legal process.

The public has become resigned to this state of aft airs, partly because the law tends to be something of a mystery to the layman and partly because each individual only comes into contact with it on rare occasions. The need for legal services has, however, grown enormously during this century and is still growing. More social legislation has been passed affecting the poorer classes and practically every activity is governed by laws and regulations. At the same time our conception of the rights of the ordinary man has been enlarged.

The administration of justice has not kept pace with the growing enthusiasm for making democracy a reality.

Roscoe Pound, Dean of the Harvard Law School ¹ says:

It is so obvious that we have almost ceased to remark it, that in petty causes—that is, with respect to the everyday rights and wrongs of the great majority of the urban community—the machinery whereby rights are secured practically defeats rights by making it impracticable to assert them when they are infringed. Moreover, there is danger that in discouraging litigation we encourage wrongdoing, and it requires very little experience in the legal aid societies in any of our cities to teach us that we have been doing that very thing.

Experience in this country leads to the same conclusion: the impossibility of paying for a divorce leads to unmarried couples, illegitimate children and bigamy, the difficulty of obtaining redress is responsible for many cases of assault, wrongful seizure of goods and many forms of anti-social behaviour. It has been found in the United States ² that the absence of legal aid is one of the principal causes of industrial unrest and in this connection it is interesting to note that Sir William Beveridgei puts first amongst the disadvantages of the Workmen's Compensation Acts ³ the fact that they rest in the last resort upon the threat or the practice of litigation and that no machinery exists for assisting the employee in presenting his claim, with the result that he often suspects injustice.

Even more serious consequences are hinted at in the book English Justice by " Solicitor ", where it is said that " It should be unnecessary to emphasize the importance of confidence in the administration of justice. This confidence has made our revolutions comparatively bloodless." ⁴ . . . While it would be absurd to fear bloody revolution in the cause of legal aid there is reason for serious discontent. It is a fact that a lawyer often has to say to a poor client, "You have a legal right, but in practice you can do nothing about it because you have not the money." That position inevitably causes suffering and hardship to the poor and, accompanied by a sense of injustice, it breeds bitterness and contempt for democratic institutions and for the.law.

No doubt absolute equality in the administration of justice is a dream. Even leaving aside superiority of brains and education, the man who can afford to pay for the very best counsel and to provide against every possible contingency, without counting the cost, will have the advantage. Litigation is still " trial by battle under another form; counsel being the champions and purses the weapons ". Yet it is surely not putting the case too high to say that every citizen of a democracy should be in a position to take all reasonable and prudent steps which may be necessary to safeguard his legal rights.

In this sense equality before the law can easily be attained. The problem arises from the poverty (compared with legal costs) of a large section of the population, and it can be solved by money. There is sufficient truth in this statement by the most outspoken of the critics of our legal aid system to make it sting: " One of the unacknowledged reasons," says " Barrister," " for restricting the facilities for poor men's litigation is that, if they were really given adequate means for enforcing their rights or defending themselves against injustice, the courts would be choked with a huge volume of additional work, at an expense which the governing class is unwilling to face." ¹ Actually there is no reason why the amount of litigation should be enormously increased or why the cost of adequate measures should be more than a minute fraction of the national expenditure on social services. The real enemies of reform are apathy and the conservatism of the legal profession.

In the following chapters the English provisions relating to legal aid, past and present, are described, particulars are given of the arrangements in other countries, and subsequently the matters which require reform are pointed out and various proposals for reform are discussed. Although there may be differences of opinion as to the best organisation to secure the desired end, it is thought that there will be little disagreement, except in detail, with the nature of the reforms that are advocated.

It was said long ago that " the amendment of the law has suffered greatly from the circumstance of its being generally supposed that the subject belongs to lawyers exclusively." ² Legal aid in particular is a matter to which social workers and others can make a great contribution. The interests of lawyers are too closely involved for them to take an entirely unprejudiced view of the situation and it is difficult to convince them that the extension of legal services to the whole population is not only their duty but is also to their advantage. It cannot be expected that the law will escape the searching scrutiny to which all the other aspects of our social system are being submitted. The process has in fact already begun. Legal aid reform will come; it is only a question of how soon, and how thorough it will be.

¹ Reginald Heber Smith and Bradway: Growth of Legal Aid Work in the U.S.A. Dept. of Labor Bulletin, No. 607 (1936), Chap. I. This book is invaluable for a thorough study of legal aid.

¹ The Spirit of the Common Law; quoted by Smith and Bradway, op. cit.

² Manley Report of the U.S. Commission on Industrial Relations.

³ Social Insurance and Allied Services, Cmd. 6404, para. 79.

⁴ Preface.

¹ "Barrister": Justice in England (1938).

² Lord Westbury, 1863.

Chapter II
The Poor in the Courts before 1914 ¹

In the earliest days of legal procedure we find small concessions being made to overcome the disadvantages of the poor. In the reign of Henry Ist the requirement that security must be given by a suitor was qualified by a provision " that those who had not sufficient present security should pledge their faith to make satisfaction to the utmost of their powers ". Another ear...

Table of contents

• Cover
• Title
• Copyright
• Contents
• PREFACE
• ACKNOWLEDGMENTS
• SHORT BIBLIOGRAPHY
• PART I. HISTORICAL AND DESCRIPTIVE
• PART II. CRITICISM AND PROPOSALS
• APPENDIX A: Particulars of legal aid in towns with over 100,000 population
• APPENDIX B: Comparative Summary of Legal Aid Provisions
• APPENDIX C: Figures relating to Poor Persons' Procedure