81 / 270
GAZETTE
JULY-AUGUST
1
Legal Services for the Community
A Paper read to the Law Society Annual Conference
by
Dr. Michael Zander, Professor of Law,
London School of Economics
Mr. President, Ladies and Gentlemen,
It is a great honour to be invited to address the
Conference. I am delighted to be here to take part in this
session and to have the opportunity of meeting many of
you.
My theme is Legal Services for the Community — a
title which covers every aspect of the services provided by
lawyers and non-lawyers in dealing with the legal
problems of citizens. Obviously it is impossible to deal
with the whole subject. I shall therefore limit myself to a
few central issues. My purpose is to suggest that in recent
years a consensus has started to emerge in many
countries as to the way to deal with legal problems. There
are of course significant differences of approach between
countries and some counties are able to devote
considerably greater resources to the subject than others.
But the conceptual and policy problems are beginning to
be resolved as, increasingly countries agree on the best
way to proceed.
Legal Aid
First, it has now been almost universally accepted that
any country which has a serious concern for equality of
justice must establish a legal aid system based on
government funding. The old notion that the legal
profession could be relied on to provide such services as
were needed by the poor by way of charitable
contribution is today wholly discredited. Much very
valuable work has of course been done by private
practitioners without fee but the reality is that few can
make a significant proportion of their time available to
provide services without charge. Some do little or nothing
and even those who do a good deal cannot be expected to
provide unremunerated services on any considerable
scale. A private practitioner has to charge for most of the
work he does in order to remain in practice. Unless the
state is willing to provide legal aid at its expense the legal
system will in practice be inaccessible to the poor.
The Airey Case
This proposition was recognised not merely as a
political axiom but as a legally enforceable principle by
the European Court of Human Rights in the recent
decisions in the
Airey
case. Mrs. Johanna Airey
complained that she was denied her rights under the
European Convention through the non-existence in
Ireland of any system of legal aid to enable her to bring
proceedings for judicial separation. The Irish Government
resisted her claim but in October last the Court by a
majority found that there was a denial of access to the
High Court for the purpose of obtaining a determination
of Mrs. Aircy's civil rights contrary to Article 6 of the
Convention. Not all civil cases required the provision of
legal aid. In some types of cases it might be possible for
the applicant to handle the case on his or her own but if
the. citizen could not in practice manage without a lawyer
it was the duty of the state to provide one. Although
therefore the state did not have to provide free legal aid
for every dispute relating to a civil right, Article 6
compelled the state to provide for the assistance of a
lawyer "when such assistance proves indispensable for an
effective access to court either because legal
representation is compulsory . . . or by reason of the
complexity of the procedure or of the case".
The
Airey
case is a welcome affirmation of the
principle of equal access to justice. So far as Ireland is
concerned it came only a few weeks before the Minister
for Justice laid the Government's proposals for a civil
legal aid scheme before the legislature. Presumably the
Government's plans had in fact been agreed before the
European Court gave its decision. At all events, when
implemented it will give tangible expression to the Irish
Government's commitment to the principle of state aid
for legal services in civil as well as in criminal matters.
Two Approaches to Legal Services
The second main principle that is increasingly accepted
in country after country is that a variety of methods are
needed to put legal services on the ground. The two chief
approaches to this problem have been that of the English
system based on legal aid provided by private
practitioners and the American model which has relied
rather
on state salaried
lawyers
working in
neighbourhood law firms or law centres rather than
private firms.
Each of these two great systems has its strengths. The
chief advantage of providing legal aid through private
practitioners is that they are already there and are
scattered widely throughout the community. Law centres
by contrast have to be set up, at considerable cost. It may
or may not be true that law centres are cheaper per unit of
work done but a very substantial capital sum has to be
expended to establish a national newwork of law centres
to duplicate the geographical spread of private offices. Of
course if legal aid were to be made available only to the
very poorest and if they all obligingly lived in a small
number of areas law centres on their own might be the
answer — but the objective of most properly constituted
legal aid schemes is to reach more than the very poorest
and in any event the poor tend to be found in many areas.
Clients do not want to travel great distances to get a
lawyer and if those eligible for the scheme are to be
served, access to private practitioners is likely to be easier
to achieve than building up a national network of law
centres.
The difficulties for potential clients to reach the small
number of proposed law centres were vividly illustrated in
the powerful Presidential address of Mr. Walter Beatty,
and I wholeheartedly endorse his view that half a dozen
or so centres for the whole of the Republic of Ireland is
bound to be completely inadequate.
Skills already there in Private Practice
The second great advantage of using private
75