I. Introduction
The right to justice is a universal right assured in the Magna Carta and the Human Rights Act. It is considered by many to be the cornerstone of a free society. This means that every person has an equal right to access the law if and when it is needed. However, legal services are renowned for two things, being time consuming and more importantly, very expensive. This is the reason why various forms of assistance have been put in place to help when necessary. These forms of help come from various sources like the government or unions for example. When legal aid is used however, some ethical complications may arise. The eligibility requirements for legal aid from the state were severely restricted with the introduction of “The Legal Aid, Sentencing and Punishment of Offenders Act 2012” (LASPO). This means that legal aid has become unavailable for certain categories of people as well as certain types of cases. This poses some ethical questions that need to be addressed. This is however only part of the problem. Unlike some other countries, the English and Welsh legal systems have not used technological development and innovations as much. This is something that can be used to help reduce the costs of legal services but, it is important to remember that not everything can be automated and that a certain standard of quality will always need to be maintained.
II. Forms of funding
a. Legal Aid
Legal aid was first introduced by the Legal Advice and Services Act of 1949 for England and Wales. The aim of legal aid is to provide persons in need with professional legal help. If they were too poor to afford it then it should be free and if they could afford to pay for part of it then they should contribute as well. Legal aid was administered by the Law Society until 1988, then it went to the Legal Aid Board until 2000, the legal services commission until 2013 and has been administered by the Legal Aid Agency since then. Legal aid is now administered by the Legal Aid, Sentencing and Punishment of Offenders Act of 2012.The change of legislation and direction for legal aid has brought with it many ethical dilemmas.
Firstly, to be eligible for legal aid one needs to fulfil two main requirements: it must be a type of case that is covered by the act of parliament and one must also pass a financial circumstances test. The eligibility section for legal aid poses an important ethical problem, especially for the financial circumstances test. The Bach Report found that there was a large gap between those that qualified for legal aid and those that could afford to privately fund their own legal representation. This means that many people who are in need of legal aid and do not qualify for it since 2012 often have to either represent themselves in certain legal proceedings and will more often than not, not have a fair access to justice for their case. The criterion for eligibility also has the effect of some people forgoing access to justice for their case altogether.
There has for example, been a 50% decrease in the numbers of housing cases brought forward. This decrease is not reflective of the actual situation as there has been a steady increase of statutory evictions and rough sleeping across the United Kingdom. In housing, only cases where there is serious risk of harm to the health and safety of the individual or a relevant member of the individual’s family are open to legal aid.
If we look at welfare benefits and the cases surrounding them, it has been taken out of the scope of legal aid altogether. Welfare law has been described as extremely complex and legal help is often required by those not eligible for certain allowances. This means that when a public authority makes a decision that goes against an individual and they want to appeal it, they cannot access legal aid to support their claim in court and will not have access to the proper channels to help themselves. With demand on a scale higher than ever before, individuals now have to turn to pro bono work offered by various legal agencies for legal support. It is unethical to have such an important and in demand section rely solely on what is unfunded and free support.
Another part of civil law that has been severely affected by LASPO 2012 is everything that has to do with immigration. The introduction of the act has removed cases that have to do with unaccompanied migrant children (non-asylum), cases relating to article 8 of the European Convention of Human Rights, all EU cases and deportation outside of the UK to name a few. This means that migrants who often are not allowed to work and rely solely on handouts and are not eligible for benefits now are not entitled to any kind of help when it comes to paying legal fees if they need to appeal any decision made on their case. They must rely on pro bono work as well but not all cases will be taken up. This means that a portion of people here in the UK do not have access to justice which is a fundamental right. This is an ethical issue that needs to be addressed. The Bach report has proposed short term fixes like bringing back cases involving stateless persons and cases involving family reunion in which vulnerability is involved back into the scope of legal aid however this has not been done as of yet.
The operation of legal aid itself brings up important ethical questions as well. Before LASPO, legal aid was operated by an independent body. With the creation of the Legal Aid Agency (LAA) which operates under the ministry of justice, the lines between the administration of the legal aid scheme and the executive have somewhat become blurred. There is also another issue that arises from this. If an individual needs to appeal a decision made by the agency, that same agency is the one to hear the appeal which means that there is a risk of an unfair decision being taken. Even if there is no interference done, the perception that there could be interference has an equally damaging effect as people may not trust in the decisions being made.
b. Conditional Fee Agreements and Damage Based Agreements
Conditional fee agreements (CFA) and damage based agreements (DBA) are the two types of ‘no win no fee’ agreements that an individual can sign with their solicitor. In both cases, your solicitor will only get paid if the case is won. The way CFAs work is if your claim is successful, the individual will receive 100% of the compensation. Your solicitor will then be able to claim their fee as well as a “success fee” in addition to that which is limited to 100% of their base fee or limited to 25% if it is a personal injury case. The losing side to the claim will have to pay your legal expenses. The success fee will however need to be paid by you and that is why it is important that they explain to you at the very beginning. DBAs differ in the sense that the claimant will not receive 100% of the compensation awarded but the solicitor will take the agreed percentage. This is limited to 25% in personal injury cases of 35% in employment claims. In the case of no win no fee agreements we can find ethical complications as well.
Firstly, solicitors will analyse your case in depth before deciding if they take it on and then will generally do so if there is a near 100% chance that the claim will be successful. This means that if your case is not a near perfect win you will most likely be turned away and you will not be able to access justice for it, even if there is a chance that it may be successful.
Another ethical issue we may find with these types of agreements is when the claimant abuses the use of CFAs to cover costs. To illustrate this we have the case of Campbell v MGN ltd and then in turn MGN v UK. Campbell sued MGN limited when they published a picture of her leaving an addiction clinic in London stating that she was
going through therapy. The claim was successful but MGN appealed and it was overturned. Campbell then appealed the decision again and the original ruling stood. MGN was ordered to pay the legal fees as well as the success fees which amounted to 95%. MGN then went to the European Court of Human Rights to try and overturn the ruling. The ECHR found that, since Campbell was a wealthy individual and was not at risk of being excluded from justice, it was too disproportionate to require MGN pay such a large success fee.
III. Technological innovations
The way the English and Welsh systems are setup, there has not been significant technological innovations like there have been in other countries like the United States or France for example. Artificial intelligence can be used to undertake due diligence or automate the drafting of certain types of contracts. This would free up solicitors to handle more significant legal work. This type of artificial intelligence is also very useful in the cost saving department as the hours that solicitor would have traditionally needed to draft such a lengthy document are no more. Another important part technology can be helpful is with signatures. Electronic signatures have been introduced already and are cited to be very time and cost efficient as you can access a document from anywhere in the world and sign it. The rate at which technology is developing nowadays we will most certainly see in the near future an automation of the more menial tasks solicitors have to do which take up valuable billable hours. If we look at document analysis, we have now come to a point where technology can sift through mountains of information in minutes whereas it would have taken a human being hours or days to do the same work. Lawyers will also have to adapt the way they work to integrate these advances into their workflow.
Technology can also be used in a broader scope. In France for example, they have a service called demanderjustice.com which translates roughly to gettingjustice.com. This service helps parties to resolve their disputes using alternative non-legal methods. If no agreement is reached at the end of the process, same website helps them to fill in the forms for court proceedings to commence. This is a very useful tool which could be used to save costs by eliminating the need of legal advice altogether.
IV. Conclusion
In conclusion, we can see that the political decisions taken in regards to how legal services are funded have a real and detrimental effect to the people most in need of assistance. The amount of funding available has been steadily decreasing and the scope of people eligible to access that badly needed funding to assure their rights has also fallen. Technology has been advancing steadily and is now at a point where it could almost replace human work, making it much more time efficient and in turn cost efficient to the legal service industry. There is also an argument that technological advances may replace the need for legal advice altogether when it comes to certain dispute resolutions.
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