The Gazette 1980

GAZETTE

JULY-AUGUST

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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

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

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

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