Tobias Schrank^*

(2011) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

1. Introduction

For the past decades, the welfare state systems of most developed countries, including Britain and Germany, have been grappling with the task to combine the need for governments to constrain growth in costs with their responsibility to effectively cater for the needs of the less affluent members of society in order to safeguard set minimum social standards. Forming one component of these arrangements, the provision of legal aid services for the impecunious is widely implemented today as a means to ensure equal access to justice. The latter is deemed to constitute a necessary condition for democratic societies,¹ and both countries under consideration for this article²have established state-run and publicly funded legal aid systems in order to meet this requirement. However, rising levels of expenditure, especially in England,³ have repeatedly sparked critical discussions concerning sustainability and effectiveness of the systems, most notably in the wake of the recent global economic downturn. In this light, the following chapters seek to examine the legal aid schemes of England and Germany in an attempt to identify and juxtapose current and future challenges as well as potential solutions to pressing issues.
Since 2008, the aftershocks of the most recent global financial crisis have deeply affected the economic situation of Britain and Germany. Unprecedented and often interdependent losses and failures of banks, major companies as well as small and mid-sized businesses led to a sharp downturn of the economies. The implications were serious and felt throughout all layers of both societies. Enormous financial strains were placed not only on the budgets of the respective states which had to step in with rescue measures and stimulus packages worth hundreds of billions of Euros, but also on private households. The direct effects for the latter, such as immediate losses in capital assets, were exacerbated by knock-on effects registered in, for example, rising unemployment rates and ‘negative wage growth’.⁴ Overall, personal wealth and spending power of British and German private individuals and families were reduced significantly. Numbers initially quoted as direct losses to the respective countries’ economies were staggering: 20 per cent of GDP in Germany and, depending on who calculated the actual figure, 60 to 94 per cent of UK GDP were estimated.⁵ The discrepancy between the two countries’ losses can mostly be attributed to the relatively large financial sector of the UK economy which has suffered to a greater extent and continues to be problem-ridden.⁶ As these figures mainly refer to guarantees the two governments pledged to the financial sector they do not necessarily reflect the actual direct costs. Nevertheless, the latter are still supposed to amount to as much as eight per cent of GDP in the UK and three to five per cent in Germany.⁷ Moreover, this does not include the indirect costs of the crisis which are difficult to quantify but considered to be enormous.⁸
In both societies, the most vulnerable have been hit worst. People on low as well as medium income are struggling with higher living costs and increasing difficulties in securing loans and mortgages,⁹ older and disabled people are reportedly being put at greater risk of abuse¹⁰ and recipients of state benefits are often facing long term unemployment.’¹¹ These developments, complemented by a record high of personal insolvencies in both countries,¹² have triggered an ever growing demand for consumer advice on various subject matters ranging from the most obvious such as money/debt to related areas of employment, housing, welfare benefits and family.¹³ Very frequently, a multitude of questions of law are involved. It seems fair to say that in this economic climate, legal issues play an even greater role in people’s everyday life than they would normally. This concerns not only advice, but also legal disputes and proceedings arising from, for example, work related matters such as redundancies, discrimination, or pay. As in most instances legal services are connected with considerable costs, it is especially the less affluent members of society who in these times need to be supported and encouraged in exercising their legal remedies and thus their right to equal access to justice.
As outlined above, the financial crisis has put tremendous restraints on the budgets of the UK and of Germany, and it thus comes as no surprise that in proclaimed times of austerity all areas of public spending are under close scrutiny. Contrary to the situation in Germany where legal aid is more of a political backwater topic, the English system has become one of the many ‘victims’ in the incumbent coalition government’s budget cuts announced after the last Comprehensive Spending Review.¹⁴The adequacy of reductions in state funding for legal services, originally intended to help those who are now bearing the brunt of the economic downturn, has caused heated debates among British politicians and various stakeholders.¹⁵ It is not the first time that the English legal aid scheme has come under attack.¹⁶ In Germany, although on a less prominent scale, expenditure, efficiency and effectiveness of the legal aid system have emerged.¹⁷ However, the current attention drawn towards legal aid is mainly triggered by the economic downturn and is closely linked with the different ways the financial crisis affected the states under review.
Against this backdrop, the following chapters seek to shed some light on the different backgrounds of and approaches to legal aid in both countries. More precisely, the issues to be examined concern differences and similarities of the systems in connection with their suitability to provide adequate as well as cost-effective services for people in need of legal help who would otherwise be unable to afford the cost involved. For this purpose, after outlining the historical development of legal aid in England and Germany, the current legal frameworks, practical approaches, expenditure details as well as the most recent government reform proposals will be analysed. Following this, a summary of selected alternative suggestions for the future development of both systems will be given in order to allow for a conclusive outlook including answers to the question whether there is the potential for mutual learning and best practice sharing concerning legal aid in England and Germany. While based on such a legal comparison, this article will, due the topic’s multifaceted nature, draw on sources from a wide variety of backgrounds including legal sociology as well as historical, political and cultural studies. Where available, empirical evidence will form the basis of arguments brought forward, particularly relating to the chapters on the delivery and funding of legal aid.

2. Historical Background

2.1 England

From medieval times until the early 20th century, legal aid in England was delivered to the impecunious pro bono publico (literally, ‘in the public good’) under a so-called ‘charitable model’. This approach to legal aid, characterized by gratuitous services voluntarily provided by members of the legal profession, overwhelmingly suffered from poor funding and inadequate coverage.¹⁸ Even though a basic notion of free and universal access to justice was spelt out in the Magna Carta as early as 1215,¹⁹ it was not until 1495 that the in forma pauperis statute was passed which contained provisions for self-declared paupers to be exempt from court fees and given free legal representation. Despite this, access to legal help for the poor remained heavily restricted with means and merits tests introduced at the same time in order to curb to growing demand and alleged misuse.²⁰
Nevertheless, during the 17th century the idea of equality before the law was tentatively set forth. In 1648, John Cooke “argued that barristers should be required to give 10% of their time free to help the poor with their legal cases”.²¹ Cooke pleaded for an organised legal aid scheme based on pro bono services as part of lawyers’ professional duties rather than being dependent on their variable public-spiritedness. According to Hynes & Robins, the main driving forces behind most of these early endeavours were nonetheless “Christian charity together with secular notions of nobility and chivalry”.²² Cooke’s proposals were not taken much heed of by parliament of this time but can be regarded as the conceptual basis for the development of legal aid in the late 19th and early 20th centuries.
The firsts step towards a prototypical criminal legal aid scheme administered by the government was the Poor Prisoners Defence Act 1903 which enabled courts to grant legal aid for defendants in the higher courts if it was deemed “desirable in the interest of justice”²³ and the Criminal Appeal Act 1907 which extended legal aid to all murder appeals and, in exceptional cases, to some other criminal appeals. As a pro bono service persisting until after the end of WWII, it was highly unpopular with most members of the Bar since it empowered the judiciary to appoint any barrister currently present at court as defence counsel for an unrepresented prisoner with limited means. Thus, responsibility was often delegated to young, inexperienced junior counsel. As a defendant, to be eligible for this service was thus a rather dubious privilege.²⁴
It took until the Poor Prisoner’s Defence Act 1930 that legal aid was available at police and magistrates’ courts as well as for summary trials.²⁵ In reality, coverage was far less comprehensive than the legislative framework might suggest.²⁶This held particularly true for the lower courts. In 1938 only 327 out of 19,079 police court convicts were granted legal aid.²⁷ Obviously, criminal legal aid was given a rather low priority and did not present a major impetus to the development of a comprehensive system. The notion of a basic ‘right to counsel’ as it had emerged in Germany in the late 19th century did not figure prominently in English deliberations on legal aid.²⁸ It was the growing demand for civil legal aid, especially in divorce proceedings, both triggered by and in conjunction with social changes of the early 20th century, that virtually forced the government to extend and modernise the system.²⁹ As a result, a rather narrow focus on divorce characterised the subsequent English civil legal aid schemes even after WWII.
The replacement of the in forma pauperis statute with the Poor Persons Rules in 1914 was a response to the problematic issue of divorce and constituted another step towards a more modern legal aid scheme administered by the state.³⁰ A precursor and at the same time a parallel scheme, in turn, was the Poor Man’s Lawyer service. Established in the late 19th century, this voluntary service was mostly restricted to the provision of legal advice due to insufficient funding and thus only of symbolic importance.³¹ The Poor Persons Department created within the Royal Courts of Justice was instructed to administer the new scheme by sifting claims and allocating cases to volunteer barristers and solicitors.³²The latter, however, were soon overwhelmed by an incoming flood of divorce petitions.³³ Despite this, the important legal rules governing divorce remained unchanged until the social pressure became almost unbearable.
The Matrimonial Causes Act 1937 widened the grounds on which divorce could be granted and, in combination with the outbreak of WWII, led to yet another rise in petitions, especially within the armed forces. Therefore, legal advice sessions were introduced leading to the establishment of a state funded legal aid scheme for armed services personnel in 1942.³⁴ Responding to the growing needs of the civilian population for legal help in times of war, Citizen Advice Bureaux (CABx) had been launched in 1939 and soon expanded rapidly.³⁵ Initially, a great deal of CAB work was war related. However, services offered soon covered a wide variety of legal advice which, regardless of a petitioner’s financial situation, was given out for free by (mostly non-lawyer) volunteers.³⁶ With their expenses funded by the Ministry of Health, CABx were also a response to a shortage of qualified lawyers since more and more solicitors were called up for military service.³⁷ CABx are still in existence today and continue to play a vital role in England’s voluntary legal aid sector.
Over the course of the war, the British government set up an inter-departmental committee which aimed at rebuilding the country in peace times. Their 1942 Report to the Parliament on Social Insurance and Allied Services (also called Beveridge Report) contained recommendations for the government to tackle the five ‘Giant Evils’ of Want: Poverty, Disease, Ignorance, Squalor and Idleness (unemployment).³⁸According to John Flood, the Beveridge Report “fathered the modern welfare state as we know it”.³⁹ Legal Aid only played a minor role within these considerations. A separate committee was set up for this purpose in 1944, chaired by Lord Rushcliffe. The Rushcliffe Report 1945 proved to be crucial for the shaping of the post-war legal aid scheme financed by the state, administered by the Law Society and delivered by private practice solicitors as well as, where appropriate, barristers.⁴⁰ Rushcliffe’s proposals for the new system encompassed the following key points:

legal aid should be available to those types of case in which lawyers normally represented private individual clients;
legal aid should not be limited to those people ‘normally classed as poor’ but should include those of ‘small or moderate means’;
there should be an increasing scale of contributions payable by those with income or capital above minimum levels, below which legal aid would be free;
in addition to the means test, cases should be subject to a merit test, designed to be judged by legal practitioners independent of government, on a similar basis to those applied to private clients;
legal aid should be funded by the state but administered by the Law Society. The Lord Chancellor should be the minister responsible, assisted by an advisory committee; and
‘adequate’ remuneration should be paid to barristers and solicitors working under the scheme.⁴¹

With this report at the latest the underlying philosophy of legal aid in England had clearly shifted from a charitable service performed by more or less willing lawyers to a social service “to which people had a right of access as part of the Welfare State”.⁴² Rushcliffe envisaged a comprehensive scheme covering 80 per cent of the population and including all courts, tribunals and coroners’ proceedings. Deposit payments introduced under the Poor Persons Rules were to be abolished, the means test was relaxed considerably and even out-of-pocket expenses should be covered by the fund provided to the Law Society by the Treasury.⁴³ Moreover, the scheme was also supposed to include free legal advice.
However, it took another five years until the incumbent Labour Government enacted Rushcliffe’s proposals into the Legal Aid and Advice Act 1949 which in turn did not reflect the commission’s recommendations in their entirety. In a climate of post-war austerity exacerbated by the sterling crisis of 1949-1950, legal aid did not figure very prominently compared to, for example, healthcare. This led to its postponement and several cuts.⁴⁴ The scope of proceedings eligible for legal aid was reduced and the capital limits for petitioners were raised. In 1950 the Law Society finally started to run the new system via a network of local committees. Nevertheless, due to a Treasury veto, Part I of the Act was not implemented with the effect of additional constraints, particularly concerning the extension of legal aid to other courts. Following this, it took until 1956 for legal aid to be available at county courts.⁴⁵Rushcliffe’s comprehensive vision of the scheme failed to materialise in the immediate post-war years mainly because, unlike for health or education, a “natural political constituency” was missing which would have lent more substance to it in the process of competing for finances.⁴⁶
The 1960s brought about changes in attitudes of British citizens towards the welfare state as a whole as well as legal aid in particular. Overall, legal aid was criticised for focussing too much on divorce and neglecting social welfare problems of the poor.⁴⁷ In its 20th annual report on legal aid, the Law Society acknowledged the shortcomings of the system, especially regarding a lack of advisory services for impoverished communities.⁴⁸Apart from the existing voluntary CAB scheme, the US ‘neighbourhood law offices’ proved to play an influential role for further changes of legal aid in England.⁴⁹In 1970 the first ‘Law Centre’ was opened in London with 13 more emerging between 1973 and 1974. The centres mainly provided services in the areas of welfare rights, immigration, employment, housing, discrimination and public law. This reflected some of the original proposals of the Poor Man’s Lawyer movement had brought forward to the Rushcliffe Committee which were then omitted. The crucial advantage of Law Centres was that, unlike CABx at that time, they employed solicitors who were able to bring a client’s case to court and who were thus not confined to (initial) legal advice.⁵⁰ Despite this, Goriely states that “Law Centres remained a marginal service, outside the mainstream of legal aid”.⁵¹
The Legal Advice and Assistance Act 1972 introduced the same-named scheme commonly referred to as the ‘Green Form scheme’. Called for by the Law Society, it was a response to the expansion of CABx and other generalist advice agencies perceived to be a threat to private practice solicitors. With the aim of encouraging people to consult solicitors regarding their legal problems before they become too complex, the scheme attempted to manage the growing demand for legal advice. Subject to a rather simple means test, applicants could obtain advice and assistance on any matter of English law. The scheme was demand-led and not subject to cash limits. That in turn made it vulnerable to abuse by a number of solicitors. It was labelled a ‘blank cheque’ for the legal profession and contributed to a substantial rise of costs over the years.⁵²
Following an overall growth of legal aid activity during the 1980s, the budget soared considerably putting more and more pressure on the system.⁵³At the same time, criticism related to the system’s narrow focus on crime and family matters persisted. Unsurprisingly, the Thatcher Government sought to reduce expenditure and tackle the shortcomings which were mainly believed to lay with administrative failures. Reductions in scope and eligibility over the next decade were confined to civil legal aid with the percentage of households eligible reduced to 53 per cent in 1992/93. Although some areas of advice were taken out of the Green Form scheme, increasing demand triggered another 50 per cent growth in cases which contributed heavily to the legal aid budget reaching £1.5 billion in 1997. Reasons can be attributed to the effects of economic decline during the 1980s resulting in higher unemployment rates and thus creating various problems both relating to criminal and civil matters.⁵⁴ The dilemma of ensuring access to legal advice on the one hand and effectively controlling costs on the other prompted the introduction of voluntary franchising for legal aid firms in 1994. The aim was to develop “a credible framework for assessing the quality of firms’ advice”.⁵⁵ Management audits against a set of standard criteria were part of the franchising process, and until 1997, 1,740 out of 12,000 legal aid firms had signed up. However, spiralling costs of the scheme continued to worry politicians across all parties and emphasized the need for reform.⁵⁶
Accordingly, far from reversing the above-noted policies of their predecessors, the New Labour government coming to power in 1997 continued and extended many of them. In its 1998 White Paper ‘Modernising Justice’, New Labour identified the main weaknesses of the existing legal aid scheme as, inter alia, the absence of effective spending controls, a lack of co-ordination between different providers, the failure to target priority needs areas effectively as well as insufficient quality controls and no scope for competition diminishing value for money of legal aid. The subsequent Access to Justice Act 1999 (AJA) “abolished the LAB and established the Legal Services Commission (LSC) and redrew the whole system of funding and regulating legal aid”.⁵⁷What followed was a predominantly market-led approach to legal aid services with a strong emphasis on centralisation and value for money but also on service quality assurance.⁵⁸

2.2 Germany

Similar to early developments in England, prior to the 19th century legal aid in German states was solely available out of charity. In Roman times, this was perceived as an act of imperial mercy whereas in medieval times it was regarded as a benificium (favour, benefit) provided to the indigent by lawyers under the munus honorificum convention.⁵⁹ During the 19th century, a gradual transition took place to the notion of legal aid as a formal right granted to the poor because it was believed to be a duty of the state to provide these services. This set the emerging German system apart from its English counterpart which at that time was still strictly operating on a charitable basis.⁶⁰ Influenced by Enlightenment theories, the idea of providing access to justice for the poor was seen as an imperative of humanitarianism. Many German states set up different codes of procedures for civil and criminal cases which included provisions for legal aid. While means tests were applied universally, merits tests in relation to the prospective success of cases were not without controversy, with some states arguing that these additional tests would put a poor person at disadvantage compared to more affluent citizens. However, others supported the idea of merits tests referring to the dangers of system abuse in the form of ‘unnecessary’ or ‘malicious’ litigation.⁶¹
The latter perception prevailed in the German code of civil procedure (Zivilprozessordnung) of 1877. After Prussia and the other German states had merged into the Deutsches Reich in 1871, several laws of justice, the so-called Reichsjustizgesetze were passed. including new rules for criminal and civil court procedures. For the first time, all respective regulations of the states constituting the former Reich were incorporated into uniform laws.⁶² The German Armenrecht (literally, law for the impoverished) formed the statutory basis for legal aid until 1980. Despite the scheme’s partial ‘judicare approach’, critics referred to numerous shortcomings of the system. The ‘right to counsel’ derived from these provisions initially “did not entail more than court fee waivers and the appointment of duty solicitors for the very poor people”.⁶³ It remained for the courts to decide whether a case fulfilled the requirements in terms of merits before legal aid was granted. Furthermore, as successful applicants for legal aid only had their costs deferred, they could be asked to repay the money if their economic situation improved. Most notably, in line with previous legislation of the German states, lawyers were not remunerated for their services, no legal advice was available and there was no free choice of counsel for the poor due to an inflexible rota system at court.⁶⁴ Overall, in contrast to England, the late 19th and early 20th century German approach to legal aid was characterised by the underlying principle of a citizen’s statutory right to some form of legal aid. Furthermore, the development of the state-run scheme was mainly centred around social welfare issues as opposed to the matrimonial struggles challenging the English legal system at that time.
The emergence of legal advice centres, particularly promoted by trade unions at the turn of the century, sought to tackle some of the statutory regulations’ deficiencies and was a response to the effects of industrialisation. Facing a powerful alliance of landowners, industry and the state, the majority of workers suffered under fierce repression. These developments culminated in Bismarck’s 1878 move to outlaw “all associations which aimed at overturning the order of the state and society by social democratic, socialist or communist means”.⁶⁵ The introduction of ground-breaking social insurance legislation⁶⁶ at the same time was not only targeted at improving the conditions for the working class but also an attempt to push back the growth of socialist parties and unions. However, the electoral success of the Social Democratic Party in 1890 forced Bismarck to drop the Anti-Socialist Laws. Around this time, trade unions started to provide legal advice for their members on workers’ rights under the aforementioned social security laws and other relevant legislation, for example the Labour Protection Acts 1891.⁶⁷ The conservative part of the German political spectrum but also the churches quickly realized that unions were utilizing this platform for their political endeavours and, in a swift response, similar institutions were set up “with the support of the Government, local communities and religious non-profit organisations”.⁶⁸ By 1912, there was an extensive network of 916 legal advice offices in Germany dealing with more than 1.8 million issues. In the aftermath of the First World War, however, these organisations experienced rapid decline in a climate of economic and political crisis symptomatic of the Weimar Republic era.⁶⁹
Although there had been several calls for changes to the statutory legal aid system, the early code of civil procedure reforms did not reconsider the relevant provisions. It was not until 1919 that the state began to reimburse lawyers for client’s expenses, and only in 1923 legal aid advocates started to be remunerated for their work, although at a lower rate.⁷⁰Concerning eligibility, the narrow interpretation of the definition as to when a petitioner was actually ‘poor’ severely restricted the availability of the scheme. In this light, alternatives aimed at improving access to the courts for the impecunious were mooted, particularly some form of legal expenses insurance (LEI). Suggestions of introducing a compulsory universal insurance scheme were met with opposition whereas otherwise LEI proved to be successful from an early stage.⁷¹
Concerning criminal legal aid, the 1877 Reichsstrafprozessordnung (code of criminal procedure) provided regulations for cases in which legal representation was deemed to be mandatory (Notwendige Verteidigung) regardless of the defendant’s wishes. Restricted to the appointment of a defence counsel, thus explicitly excluding any form of legal advice, criminal legal aid was available for cases brought to the Imperial Court of the German Reich (Reichsgericht), for jury trials as well as at regional courts (Landgerichte) if the accused was deaf, mute and/or under age.⁷²Furthermore, counsel was available for district court trials at first instance on request if the defendant was “accused of a Verbrechen – an offense carrying a minimum sentence of one year imprisonment”.⁷³ Whether these petitions received approval or not was entirely within the discretion of the courts. The financial situation of a defendant did in no case prove to be of any relevance for the grant of criminal legal aid.⁷⁴ Subsequent amendments of the Reichsprozessordnung widened the grounds on which criminal legal aid was available, for example in cases where the defendant was likely to face a preventive detention sentence.⁷⁵
Soon after the Nazis seized power, legal aid was monopolized for the legal profession. Under the 1935 legal advice act (Rechtsberatungsgesetz) only members of the Bar were authorized to give out legal advice; a move systematically preventing Jewish lawyers who had been stripped of their professional licenses from offering ‘laymen’ legal advice.⁷⁶ The remaining advice centres were quickly integrated “into the corporative institutions of the Fascist state”⁷⁷ with the effect of Nazi party members being eligible for advice regardless of their financial situation. Furthermore, the regime re-introduced unpaid legal aid work which, in line with the mantra of ‘serving one’s country’, was again treated as a professional duty for all German lawyers.⁷⁸ Criminal defence and thus also criminal legal aid were about to “experience a relapse reminiscent of the darkest ages of Inquisition”.⁷⁹ Even though the respective provisions were not abolished, in reality the vast majority of defendants in criminal proceedings did not receive a fair trial. Torture was illegally re-introduced for interrogations and, according to the principle of ‘what benefits the state is law’, defence advocates were largely seen as just a cog in a machine of injustice. Only few lawyers dared to take on criminal legal aid cases and even if they did, the overwhelming fear of reprisals dominated their actions at court resulting in a cynically watered down legal aid system which basically existed in name only.⁸⁰
After the end of the Second World War, the pre-1933 rule of law was re-established with due regard to the Grundgesetz (the ‘basic law’ forming the German constitution) under the 1950 Vereinheitlichungsgesetz.⁸¹ Following this, under the principle of the German Rechtsstaat in connection with the principle of equality before the law, a universal right to legal aid emerged.⁸² However, due to the urgency of the matter, the respective ‘new’ provisions were by and large identical with the relevant sections in the Zivilprozessordnung and the Reichsprozessordnung of 1877 which continue to form the historical basis for legal aid for court proceedings today.⁸³ Post-1950 attempts of reforming the criminal code were restricted to a number of individual amendments, and until the mid-1960s, this mostly resulted in an extended scope of criminal cases for which mandatory legal representation was available.⁸⁴Nevertheless, following the terroristic acts of the Red Army Fraction during the 1970s, subsequent amendments brought more restrictive changes, for example the possibility for the courts to exclude a defence lawyer from trials.⁸⁵ On the other hand, strengthening the position of victims in criminal procedures, their legal representation could be declared mandatory in certain cases which again widened the grounds on which criminal legal aid was available.⁸⁶
As concerns civil legal aid, Bar associations began with the re-establishment of a legal advice bureaux system after the Second World War. While the ban on Jewish lawyers was removed, the Rechtsberatungsgesetz and thus the legal profession’s legal aid monopoly, most importantly in the field of legal advice, remained.⁸⁷ In the absence of relevant statutory regulations there was no comprehensive network of advice centres with only few state-run institutions emerging. As German private practice lawyers were and, apart from very restricted exceptions such as representation of spouses, still are not allowed to provide services free of charge, ⁸⁸ pro bono services have proven to be virtually insignificant for Germany’s system. A similar picture emerges regarding conditional fee agreements which until 2008 had been prohibited and even today are limited to cases where no alternative ways of funding are available.⁸⁹
In the 1960s, the West-German economy experienced a period of post-war boom. Just as in England, during this time repeated discussions emerged concerning the welfare state’s responsibility in ensuring universal access to justice. Boosted by the 1968 student protest movement and the first post-war Social Democrat Government in 1969, the topic finally reached the 1976 Deutsche Juristentag.⁹⁰ Consequently, in December 1976 the then German chancellor Helmut Schmidt announced sweeping reforms to legal aid intended to put every citizen seeking legal remedies on an equal footing. Apart from modernising the existent provisions, the introduction of legislation for out of court legal advice and representation were at the top of the agenda. This was eventually catered for by the Beratungshilfegesetz⁹¹ whereas the Gesetz über Prozesskostenhilfe⁹² constituted a revised form of the previous Armenrecht provisions bringing in several significant changes. With both laws coming into effect in January 1981, one of the most striking differences was a change in terminology. Leaving behind the rather stigmatizing title ‘poor person’, the term Prozesskostenhilfe (PKH),which refers to ‘aid for costs in court proceedings’, was introduced. Matthias Kilian aptly sums up the most important changes to civil legal aid:

Material changes resulted in much more citizens now qualifying for Prozeßkostenhilfe than before and a scale was introduced which allowed assessment of means and contributions on a formalised basis. Furthermore, for the first time proceedings before the Sozialgerichte (“Social Security Courts”) and in matters involving IP-disputes were assisted. From a procedural point of view, the procedure for obtaining a PKH grant was streamlined. For example, the requirement to produce a “proof of poverty” issued by the welfare authorities was disposed of. For the first time, a person qualifying for “legal aid” had a right of free choice of counsel. For proceedings before the county courts (Amtsgerichte) where there is no statutory requirement for representation by counsel, the right of the indigent party to be represented was introduced, provided that the opponent was represented as well.⁹³

The Beratungshilfegesetz not only strengthened the position of the indigent in need of out of court legal advice and representation but also the legal profession’s de facto monopoly in this field. It considerably restricted the areas of law on which advice could be given out by non-lawyers. Consequently, the number of licensed non-lawyer legal advisers who, until 1980, were allowed to provide general legal advice dropped down in 2003 to a mere 382, compared to roughly 132,000 legal practitioners.⁹⁴ The advice scheme proved to be successful and its budget has continued to grow at a faster pace than its civil counterpart, PKH. Despite this, it still accounts for only an estimated ten per cent of the overall civil legal aid budget. The latter has risen considerably over the past two decades but is still nowhere near English levels.⁹⁵This is one of the reasons why the topic of legal aid in connection with public expenditure has rarely attracted as much national and political attention as its English counterpart. Nevertheless, certain deficiencies of criminal proceedings, namely the absence of a statutory right to free legal assistance during the first three months of provisional detention, were argued to be incompatible with Article 6 of the ECHR.⁹⁶ Despite the existing criticism, it took until 2009 (!) for the German legislators to change the rules by passing the Gesetz zur Änderung des Untersuchungshaftrechts.⁹⁷

3. Legal Aid Legislation

3.1 England

The Access to Justice Act (AJA) 1999⁹⁸ constitutes the relevant body of law for legal aid in England. It is complemented by an abundance of secondary legislation (regulations, orders, directions) and guidance documents issued under the Act, for example concerning scope, eligibility and funding.⁹⁹ Part I of the 1999 Act established the Legal Services Commission (LSC) administrating the Community Legal Service (CLS) and the Criminal Defence Service (CDS). The LSC is mainly responsible for securing the provision of legal services by allocating resources provided by the Lord Chancellor who is vested with powers to give orders, guidance and/or directions to the Commission.¹⁰⁰
The provisions governing civil legal aid spell out the following services to be made available by the CLS:

Legal Help (the provision of initial advice and assistance);
Help at Court (e.g. a solicitor speaking on behalf of a person at certain court hearings without formally acting for that person in the whole proceedings);
Legal Representation (representation in court is available in the two forms of Investigative Help relating to the potential strength of a claim, and Full Representation);
Family Mediation (covers mediation for family disputes);
Family Help (covers initial advice and assistance, the issuing of proceedings and representation where necessary) and
Support Funding (partial funding for very expensive cases which are otherwise funded privately).¹⁰¹

Section 4(1) of the AJA specifies that CLS services are only available for individuals thus excluding companies or other legal persons. In order to determine whether a client is eligible for civil legal aid the aspects of scope, merits and means are considered. Managed by the LSC and capped at a sum to be fixed annually by the Lord Chancellor, a CLS fund set up under section 5 of the Act “is used to secure the provision of appropriate legal services within the resources made available to it, and according to the priorities set by the Lord Chancellor and by regional and local assessments of need”.¹⁰² Restricted to matters of English law, the scheme makes further exceptions in scope relating some excluded areas of work. Hence, any forms of legal help and representation in proceedings are explicitly not available for

Negligent damage to property or the person (personal injury) except clinical negligence cases.
Defamation or malicious falsehood;
The making of wills;
Conveyancing;
Boundary disputes;
Matters of trust law;
Matters of company or partnership law;
Disputes arising in the course of business.¹⁰³

The scope of legal aid advocacy is restricted to proceedings at courts listed in paragraph 2 of Schedule 2.¹⁰⁴ However, section 6(7) of the Act states that, in specified circumstances, it is within the discretion of the Secretary of State for Constitutional Affairs to amend the lists in Schedule 2.
Criteria and procedures outlined in a funding code are used as guidance for the application process and serve as the basis for a merits test. ¹⁰⁵ Compared to German regulations, the merits test seems to be rather restrictive. In determining which cases should be funded and, if so, what services would be most appropriate to provide, three general key criteria are considered, namely “whether there is alternative funding available; whether there are alternatives to litigation; or whether the case should be allocated to the small claims track”.¹⁰⁶ No legal aid support is available for so-called small claims which have a financial value of up to £5,000 or, for disputes relating to repairs that arise between landlord and tenant, no more than £1,000.¹⁰⁷ This seems to be particularly disadvantageous for people on lower income as many money-related claims brought by members of this social class tend to be of low value.¹⁰⁸
Separate criteria are taken into account for exceptional categories including very expensive cases, judicial review, claims against public authorities, clinical negligence, housing, family, mental health and immigration.¹⁰⁹ Nevertheless, in most categories cases have to be checked on their potential benefits to the client as well as their prospect of success. Therefore, six categories for the chances of success have been established: very good (80 per cent or better); good (60-80 per cent); moderate (50-60 per cent) borderline (50 per cent); poor (less than 50 per cent) or unclear.¹¹⁰ Funding for full representation, for instance, will be refused if the case falls into the categories ‘unclear’, ‘poor’ and ‘borderline’.¹¹¹Furthermore, if the cost-benefit ratio is deemed to be inadequate and thus unsatisfactory, the respective case will not be financially supported.¹¹² It should be noted, though, that this does not apply to all services or types of cases. Consequently, family law cases centred around the well-being of a child are not subject to the examination of success prospects.¹¹³
As concerns financial eligibility of applicants, section 7 of the AJA determines that services are only to be provided to individuals who meet certain criteria as set out in the CLS (Financial) Regulations 2000 (as amended).¹¹⁴ Following reg. 3, for some cases services are available without reference to means, for example representation before the Mental Health Review Tribunal.¹¹⁵ The means test otherwise applied focuses on the two categories of ‘disposable income’ (income available to a person after deducting essential living expenses including rent, national insurance, child support and tax) and ‘disposable capital’ (assets owned by a person after essential items like a home).¹¹⁶ For all levels of service, there are income and capital limits above which a person is ineligible for legal aid.¹¹⁷ Recipients of some form of income support automatically qualify for legal aid. Further distinctions are made between non-contributory and contributory services. Concerning the former, an applicant is either eligible for legal aid or not.¹¹⁸ The latter requires every applicant whose income or capital exceeds a certain threshold to pay either a monthly contribution or a lump sum, both calculated on the basis of a sliding scale.¹¹⁹ A so-called Statutory Charge may apply for clients who had received legal aid and as a result of their case gained or kept property or money. Legal aid in these circumstances takes the form of a loan which the client has to repay.¹²⁰ Funding can be withdrawn and the client may become liable for all costs incurred if the financial or the merits criteria are no longer satisfied.¹²¹
Apart from advice, assistance and representation available from private practice solicitors, non-lawyer services such as CABx are also encompassed in the scheme. All suppliers (including criminal legal aid)¹²² are required to enter contracts with the LSC and have to meet certain quality standards reflected in the CLS Quality Mark. Unified contracts for all civil legal aid providers were introduced in April 2007. Beside quality control, the main reason for requiring suppliers to enter into such contracts is to secure cost effective legal aid work. However, Breyer has argued that in restricting the suppliers of legal aid to LSC contract holders, choice for the client becomes limited.¹²³
The CDS is governed by sections 12 – 18 of the 1999 Act. Criminal legal aid is available for applicants involved in criminal investigations or criminal proceedings specified under section 12(2).¹²⁴ This does not always have to be the accused, as in some instances witnesses in criminal proceedings might also qualify for advice and assistance, provided they are at risk of self-incrimination.¹²⁵ Criminal legal aid offered under the scheme encompasses the following services:

Advice and assistance from a solicitor on criminal matters;
Free legal advice from a solicitor at police stations during questioning;
The cost of a solicitor preparing a case and initial representation for certain proceedings at a magistrates’ or Crown court;
Full legal representation for defence in criminal cases at all court levels;
A duty solicitor to provide free legal advice and representation at magistrates’ court.¹²⁶

Only contracted private practice solicitors and barristers holding a quality mark or public defence lawyers¹²⁷ employed by the Commission can take up work funded under the CDS.¹²⁸
Part II of the Criminal Defence Service Regulations 2001 complementing the Act governs, inter alia, eligibility criteria for criminal legal aid.¹²⁹ For advice and assistance the following services are available without scrutiny of the financial resources of applicants:
(a) all advice and assistance provided to an individual who is arrested and held in custody at a police station or other premises;
(b) all advocacy assistance before a magistrates’ court or the Crown Court;
(c) all advice and assistance provided by a court duty solicitor in accordance with his contract with the Commission;
(d) all advice and assistance provided to a volunteer during his period of voluntary attendance; and
(e) all advice and assistance provided to an individual being interviewed in connection with a serious service offence.¹³⁰
For advice and assistance services relating to prison hearings an applicant’s disposable income must be £99 per week or less and his disposable capital £1,000 or less.¹³¹ A person charged with an offence before a criminal court can obtain legal aid by means of a ‘Representation Order’ if he is unable to afford his own representation.¹³² Under Schedule 3 of the AJA, all applicants are required to pass a so-called ‘interests of justice’ test determining the merits of a given case before granted the right to representation.¹³³
The subsequent Criminal Defence Service Act 2006 transferred the power to grant public funding for representation orders from the courts to the LSC and re-introduced means testing for representation at magistrates’ courts.¹³⁴ Here, capital is not taken into account, thus only an individual’s gross income and deductible expenses are considered. Applicants with a gross annual income of more than £22,325 will not qualify for criminal legal aid whereas

defendants in receipt of income support, income-based jobseeker’s allowance, or the guaranteed state pension credit are [automatically] deemed financially eligible, as are defendants under the age of 16, or under the age of 18 and in full-time education.¹³⁵

Since 2010 means testing also applies to Crown Court proceedings.¹³⁶ At this level of court and above, even if financial eligibility has been established, the courts can order the applicant to pay the full costs of representation or a contribution based on means.¹³⁷ However, it should be noted that for defendants in proceedings at the Crown Court or higher criminal courts it will automatically be in the interest of justice to be represented. This is also connected to the fact that the British government has an obligation under the ECHR to ensure that every citizen who is accused of a crime has access to a fair trial¹³⁸ which is reflected in section 6 of the Human Rights Act 1998 (HRA).¹³⁹ As stated above, the question is whether, dependent on their respective level of income, recipients of criminal legal aid services will be ordered to make a full or partial contribution to the costs.¹⁴⁰While the HRA certainly has an immediate impact on criminal legal aid cases, this does not apply in the same manner for civil legal aid. Article 6 of the ECHR does not constitute an absolute right to legal aid in all civil cases where applicants are unable to pay for proceedings on their own. Nevertheless, legal aid may be required by Article 6 if the case or proceedings are too complex for individuals to represent themselves or in circumstances where legal representation is compulsory.¹⁴¹
Since the introduction of unified contracts, fixed and graduated fee schemes have been established for a number of civil legal aid cases¹⁴² as well two CDS services¹⁴³ , but the traditional hourly remuneration still applies to most forms of criminal legal aid work including representation orders.¹⁴⁴ Part II of the AJA 1999 makes provision for conditional fee arrangements used in many types of civil action (excluding family proceedings), most notably in personal injury cases which had been excluded from the legal aid scheme. Sections 27 – 31 of the Act together with the parts of the Civil Procedure Rules and the Access to Justice (Membership Organisation) Regulations 2005 set the legal framework for these so-called ‘no win, no fee’ agreements.¹⁴⁵ According to section 27(1) of the AJA 1999, such arrangements entail that a litigant’s solicitor will only receive payment if the claim is successful, in which case also an extra/success top-up fee can be charged. All fees and other incurred costs (‘disbursements’), for example court fees, must be paid by the losing party. Consequently, if a litigant’s claim fails there is no obligation to pay his solicitor under a CFA but they will most likely have to bear the costs of the other side. Insurance available for these situations (‘after the event’ insurance) will protect a losing party against this risk. The insurance premium payable may be recovered by the successful party from the losing side.¹⁴⁶

3.2 Germany

Legal aid in Germany is neither governed by a single act as it is the case for England, nor is there a central body equivalent to the LSC administering the German legal aid scheme. Instead, the provisions for the German ‘tripartite’ system of Prozesskostenhilfe – PKH (civil legal aid for court proceedings), Beratungshilfe – BerH (civil and criminal legal aid for out-of-court advice and representation)¹⁴⁷ as well as Notwendige Verteidigung (criminal legal aid for mandatory representation) are contained in either individual statutes (e.g. the Beratungshilfegesetz) or in the different codes of procedures of the relevant courts, most notably paragraphs 114 – 127 of the Zivilprozessordnung (ZPO). As the courts receive and decide on applications for legal aid, some essential information about the structure of the German court system is required for a proper understanding of the legal aid schemes.
German courts of ‘general’ or ‘ordinary’ jurisdiction are divided into a criminal and a civil branch – both of which account for the bulk of legal aid funded cases. Additionally, four specialised court systems deal with issues of administrative, labour, social, and tax law.¹⁴⁸ Consequently, six different codes of procedures are in operation.¹⁴⁹ However, all of the specialised courts codes of procedures include a blanket clause referring to the Zivilprozessordnung (ZPO) for provisions on legal aid in court proceedings.¹⁵⁰ In terms of the latter, unlike England, civil legal aid in Germany explicitly excludes coverage for alternative dispute resolutions such as mediation or arbitration.¹⁵¹ Although the codes of procedures provide a legal framework on a federal level, “the sixteen federal states (Bundesländer) are exclusively responsible for […] the way they fund and organize the system. In practice, the courts are accountable for the organization, execution and administration of the legal aid scheme”.¹⁵² One striking characteristic of the German legal aid system is the quasi-monopoly of the legal profession. While English legal aid recipients can resort to an extensive network of (non-lawyer) legal advice and information services, state funded legal aid work in Germany – from the simplest form of information to advice and assistance in complex matters – is exclusively reserved for the legal profession. Legal advice services offered by, for example, trade unions or various consumer associations are not a part of the German legal aid scheme and by and large restricted to a rather narrow scope.¹⁵³
Paragraphs 114 – 127 of the ZPO constitute the provisions for legal aid in proceedings at the civil branch of the ordentlichen Gerichte, the courts of general jurisdiction. Encompassing the Amtsgerichte, the Landgerichte, the Oberlandesgerichte and the Bundesgerichtshof these courts “have sectoral jurisdiction over such matters as contract law, tort law, property law, insolvency law, family law, inheritance law etc”.¹⁵⁴ Thus, in terms of scope, PKH is available for all proceedings at the civil branch of the courts of general jurisdiction.¹⁵⁵ Applicants can be natural persons and, according to ZPO paragraph 116, under certain conditions also legal persons and persons ex officio can be granted PKH.¹⁵⁶ Hence, contrary to the English system, also businesses can apply for legal aid.
Concerning eligibility, means as well as merits tests have to be passed by petitioners.¹⁵⁷ Paragraph 115 of the ZPO governs the means test which requires a would-be recipient to show his inability to pay for a lawyer due to his economic situation. Both assets and income of the applicant are reviewed before legal aid is granted whereas, similar to the respective English rules, according to paragraph 115 (1) several income deductions can be made.¹⁵⁸The actual disposable income is then used to calculate potential monthly contributions which the petitioner may have to make according to a sliding scale. Up to a monthly disposable income of 15€, PKH is provided entirely free of charge whereas, for example, a monthly rate of 30€ has to be paid from 100€ disposable income.¹⁵⁹ Accordingly, only people on the lowest income scale qualify for legal aid without having to contribute. Contributions are capped at a maximum number of 48 monthly rates. Referring to paragraph 115 (4) an applicant does not qualify for legal aid if the costs for litigation will most likely remain below the amount of four monthly contribution rates.¹⁶⁰ Apart from that, both PKH and BerH are not available to persons whose expenditure is covered by a legal expenses insurance.¹⁶¹ A merits test governed by paragraph 114 is a further requirement for an applicant to qualify for PKH. Essentially, would-be recipients have to show that their case has a sufficient prospect of success and is not frivolous or reckless.¹⁶² Breyer states that in contrast to the relevant English regulations, sufficient success chances are rather easily established under German law as the applicant’s position and argument only have to appear reasonable.¹⁶³
The legal aid grant is specified under ZPO paragraphs 122-123. According to paragraph 122 (1), PKH entails a waiver of court fees for the proceedings and a guarantee that the assigned lawyer is paid from federal or state funds. Nevertheless, the cost-shifting principle¹⁶⁴ still applies which means that “[…] a party supported by legal aid who loses her claim is liable for her opponents’ costs. In the event of a loss, only the court fees and the fees of the assisted party’s lawyer are covered by the legal aid grant.”¹⁶⁵ Legal aid grants can be withdrawn if applicants make false statements as to their personal or economic situations or if they are in arrears in terms of their contributions for more than three months.¹⁶⁶ Cost rules for assisted parties successful in court proceedings are outlined in Paragraphs 125-126.
The legal framework for Beratungshilfe is not included in the codes of procedures but outlined in a separate act, the Beratungshilfegesetz (BerHG). Following paragraph 3 of the BerHG, legal advice and representation for out-of-court work¹⁶⁷ is exclusively provided by the legal profession whereas county courts (Amtsgerichte) may give out advice relating to simple matters.¹⁶⁸ Subject to the same means test as outlined above for a PKH grant,¹⁶⁹ applications for BerH do not involve merits tests. As advice is often sought in order to determine the chances of success for a prospective legal action, merits test would entirely defeat this purpose.¹⁷⁰ Nevertheless, applicants have to show that their motives relating to the consultation of a lawyer are not reckless.¹⁷¹ According to paragraph 1 of the BerHG the overall aim for this form of civil legal aid is to support applicants in the process of exercising their rights. Consequently, the emphasis is explicitly on legal advice. This, however, requires a clear demarcation from general advice as is available for employers, tenants, motorists etc. Following paragraph 1 (2) of the BerHG, in order for BerH to be granted it must be obvious that these other forms of advice would not satisfy the applicant’s need for legal advice. Applications have to be filed with the local county court. The federal states of Berlin, Bremen and Hamburg run public legal advice institutions which provide services in lieu of traditional private practice work. Only in Berlin applicants are free to choose between the two options.¹⁷²
In criminal matters, legal aid under the BerHG is restricted to legal advice which is available for the accused as well as victims and witnesses.¹⁷³ Subject to the same eligibility criteria as outlined above for its civil counterpart, it is only granted as long as proceedings have not yet been initiated. Given out by advocates and – in certain uncomplicated cases – by the Amtsgerichte, advice may be available on matters that are currently the subject of criminal procedures as long as lawyers “do not take any actions that have procedural significance, say, filing an application on a client’s behalf to inspect the prosecution files”.¹⁷⁴
Actions of the latter kind can only be carried out by a lawyer under the legal aid scheme for cases where legal representation is mandatory (Notwendige Verteidigung). This second pillar of German criminal legal aid is governed by the code of procedure for the criminal branch of the courts of general jurisdiction, the so-called Strafprozessordnung (StPO).¹⁷⁵ The criteria determining whether an official defence counsel must be assigned to person accused in a criminal proceeding are set out under paragraph 140 I & II. Accordingly, representation will be mandatory if

The trial is to take place before the Landgericht or the Oberlandesgericht at first instance;
The defendant is accused of a Verbrechen – an offence carrying a minimum sentence of one year’s imprisonment;
The trial may lead to the defendant being forbidden to exercise his profession;
The defendant has been remanded in custody;
The defendant has been detained in an institution for a minimum of three months prior to trial by an order of court;
The defendant has been detained in a psychiatric facility for the purpose of psychological observation and examination;
The trial involves a so-called Sicherungsverfahren, a procedure adopted if the prosecution service cannot or will not carry out a full prosecution either because the defence of insanity is raised or because the defendant suffers from mental disability at the time of the trial;
The advocate of the accused has been excluded from the trial for reasons set out in sections 138a-138d of the code of criminal procedure.¹⁷⁶

Furthermore, the courts can order representation to be mandatory for cases involving highly complex questions of law, for very grave offences or in cases where the accused appears to be unable to defend himself.¹⁷⁷ The defendant has the right to a lawyer of his own choosing whereas, should he not wish to exercise this right, the court will assign an advocate of its choice.¹⁷⁸
The concept of notwendige Verteidigung is based on the German constitutional theory that by ensuring that every individual gets a fair trial this serves the interests of the Rechtsstaat (state under the rule of law). While it has been established¹⁷⁹ that notwendige Verteidigung satisfies the requirements of Article 6 of the ECHR in terms of criminal legal aid,¹⁸⁰ critics tend to point out that the assignment of a lawyer against a defendant’s wishes seems to run contrary to the Convention.¹⁸¹ This becomes more evident when examining the costs structures of legal aid in Germany. Should the defendant in criminal proceedings lose the case, he is generally liable to bear all the costs of the trial which includes the fees for an appointed criminal legal aid lawyer.¹⁸² Accordingly, if acquitted, the state will pay for all expenses reasonably incurred. Thus, it can be argued that a defendant who is given no choice as to decline the assignment of counsel is unreasonably burdened with costs in the case of a loss.
Legal aid in Germany does not make use of concepts such as franchising or contracting which means that every registered lawyer can take on legal aid cases. As Kilian informs us:
The Legal Profession Act (Bundesrechtsanwaltsordnung), § 48 I (for Prozesskostenhilfe), [§ 49 (for Notwendige Verteidigung)] and § 49a (for Beratungshilfe), requires the lawyer to accept any assignment to a client supported by legal aid. Thus, the provision limits the lawyer’s freedom to contract. However, in almost all cases the lawyer will apply for legal aid on behalf of the client and ask the court explicitly to be assigned to the client and will not be forced into a contractual relationship.¹⁸³
Remuneration of lawyers in Germany is regulated in the Rechtsanwaltsvergütungsgesetz (RVG)¹⁸⁴ complemented by a tariff of fees (Vergütungsverzeichnis). While in principle lawyers are free to negotiate their fees with their clients,¹⁸⁵ the existing scales of fees for lawyers provide a statutory minimum for remuneration.¹⁸⁶ These fees are thus not a binding maximum except for party-party costs when it comes to cost shifting. Hourly fees are not uncommon but in the majority of civil cases lawyers receive payments set out in the fee scale according to the value of the matter disputed. The calculation of a lawyer’s actual remuneration for a case can be rather complicated whereas for the purpose of this thesis it shall suffice to state that for legal aid work there are a number of fixed fees for certain services while others are calculated dependent on the value of a claim.¹⁸⁷
For legal advice services fixed fees are set out under no. 2500 – 2508 of the Vergütungsverzeichnis. Thus, for example, a ‘simple’ advice service is charged for at €30.¹⁸⁸ A basic fee of €10 is always payable as long as some form of advice has been provided which was an attempt to discourage time-wasters.¹⁸⁹ For the remuneration of PKH services the monetary value of a claim is taken into account. Fees will be refunded in their entirety in cases with a dispute value of up to € 3,000. In cases with a higher value in dispute, only a discounted rate will be paid. From a value of around €30,000 upwards the fee does not increase anymore beyond a maximum currently fixed at €391.¹⁹⁰ Concerning criminal legal aid, fees for notwendige Verteidigung are fixed at a discount rate of 80 per cent of the average ‘normal’ fees for chosen lawyers in criminal proceedings.¹⁹¹ For very complex criminal legal aid cases, a flat fee exceeding the fixed rates is available upon application.¹⁹²
Overall, the German fee system allows for a high predictability of costs which is partly reflected in the widespread coverage of LEI. As mentioned above, conditional fee agreements have been the exception in the German legal market so far. Unlike in England where these arrangements are used as a substitute to publicly funded legal aid and where their availability explicitly excludes legal aid services for certain civil cases, German legislation intends for CFA to be a mere emergency solution for exceptional cases. They were permitted following a decision of the Bundesverfassungsgericht in 2006 with the original intention to improve access to justice for persons who neither qualify for PKH nor can afford to finance their claim privately.¹⁹³

4. Legal Aid in Practice

4.1 Legal Aid in Practice: Delivery

The legal aid sector accounts for roughly ten per cent of the legal market in England and the LSC increasingly envisions itself as the ‘demanding consumer’ shaping the market by acting on behalf of the client rather than a mere administrator of existing legal aid services.¹⁹⁴ This has been labelled a “‘purchaser-supplier’ approach, where a funding agency purchases a set of services”.¹⁹⁵ With currently 1,700 staff working in 13 offices across the country, at first glance the LSC is somewhat of an institutional heavyweight which costs the taxpayers £120 million annually.¹⁹⁶ The simple fact that the LSC exists in this form is in itself proof for the (political) importance of legal aid in England. In this sense, England’s legal aid system centred around the LSC and based on so-called ‘market-led approaches’ to efficiency in the delivery of legal aid allows for a sound basis of resources, in part due to the high level of documentation. The German model, not least because of its administrative organisation, is far less generous in this respect.¹⁹⁷ Consequently, a significantly smaller part of the data described below will be available for comparison in the case of Germany.

4.1.1 England

The LSC’s aim to ensure the delivery of quality and cost effective legal aid is to be realized through a total of 4,087 contracts (2,390 civil and 1,697 crime) held with legal service providers as of 2010.¹⁹⁸ Overall, more than 400 different organisations are contracting with the Commission including solicitors, not-for-profit organisations, barristers and HMCS. The majority of civil contracts exist with private practice solicitors amounting to 2,058 in 2010 compared to 332 contracts with not-for-profit organisations. The number of law firms undertaking legal aid dwindled considerably over the past years and was down 50 per cent compared to 1991/92. This is mainly attributed to the LSC’s policies of contracting and kite marking, the introduction of a compulsory service quality certification mark for legal aid firms. For many smaller firms the bureaucratic hurdles simply became too high and they found themselves unable to make legal aid work pay, not least because of the introduction of fixed fees for the majority of civil cases resulting in profit cuts of more than 40 per cent.¹⁹⁹ While the decrease in suppliers was achieved intentionally by the Commission in order to promote fewer, larger firms offering a broader range of quality legal aid services, there have also been negative side effects. Most obviously, geographical coverage suffered with the result of many clients from rural areas having to travel for hours to see a legal specialist who offers legal aid services.²⁰⁰ The situation is exacerbated by a recruitment crisis, the continuous trend of less and less trainee solicitors opting for a career in the field of legal aid because of the poor pay.²⁰¹
In 2009/10, 1.43 million CLS acts of assistance were funded, a 9 per cent increase compared to 2008.²⁰² The majority of cases involved family disputes followed by housing and debt problems. Although mediation for family matters is covered by the legal aid scheme, it only accounts for roughly five per cent in this field.²⁰³ In a 2009 study commissioned by the Ministry of Justice the overall figure of CLS acts was found to be particularly high in comparison to other countries, including Germany where only half as many civil cases were legal aid supported. This was explained in part with the strong focus on family issues combined with England’s relatively high divorce rate driving up demand in this field.²⁰⁴ As the proportion of the population eligible for legal aid dropped down from 46 per cent in 2001 to 29 per cent in 2008 due to changes to eligibility rules and the exclusion of many areas of law, there was nevertheless a constant rise in funded acts of assistance during the same period of time.²⁰⁵ The latter runs contrary to the aforementioned decrease in private practice legal aid suppliers.²⁰⁶ Not-for-profit organisations play a major role in counteracting these developments, especially in the area of legal advice where they account for 32 per cent of the work. Forming the bulk of civil acts of assistance, legal advice services with 1.17 million acts funded in 2009/10 rely heavily on CABx, Law Centres and Community Legal Advice Centres (CLAC).²⁰⁷ These organisations are only part-funded by the LSC with other income sources being local authorities or charities. Currently, there are 394 CABx handling more than seven million enquiries annually of which one-third to one-half are legal problems.²⁰⁸ With only few solicitors employed it is mainly the 20,000 trained volunteer helpers who keep the business up and running. However, CABx find themselves increasingly overwhelmed with applications for legal help, particularly concerning recession-related problems such as debt, housing, welfare benefits and employment. Their experiences show caseload growth of up to 50 per cent in some areas combined with 75 per cent of the bureaux reporting difficulties in finding CLS lawyers dealing with urgent housing or employment cases.²⁰⁹ The rising unemployment rate has prompted an 18 per cent increase in enquiries concerning dismissals in 2008/09.²¹⁰ The LSC is aware of these problems and, in cooperation with local authorities, has expanded its own advice scheme CLAC. Modelled on CABx, the main focus is on (initial) telephone, online and even digital TV legal advice and assistance. Additionally, face-to-face consultations are available in five centres. Further ad-hoc measures taken by the LSC in 2008 included the provision of additional funding for the Housing Possession Court Duty Scheme as well as the allocation of an extra £13 million for debt, housing, employment and family cases.²¹¹ Nevertheless, these endeavours are little more than the proverbial drop in the bucket and the difficulty lies in the fact that more and more people will be eligible for legal aid as unemployment in England continues to rise, while at the same time the budget for legal aid is capped. Thus, with growing demand the legal aid budget will come under enormous pressure which is also the main reason for the recently announced cuts.²¹² The pro bono work undertaken by barristers and solicitors should be mentioned here for the sake of completeness although the impact of their activities on legal aid is marginal and thus by no means a sufficient alternative resource: “Essentially, pro bono will always be a gap filler”.²¹³

The CDS dealt with a total of 1.5 million acts of assistance in 2009/10, most of which related to services at lower court levels (80 per cent). Compared to 2000/01 this is an increase of 200,000 cases.²¹⁴ Police station and magistrates’ court legal aid work accounts for 55 per cent of all LSC funded acts (including civil) compared to only five per cent for Crown courts and higher courts. Despite the introduction of means testing at magistrates’ court level “[…] over 91 per cent of defendants applying for legal aid were granted it”.²¹⁵ Apart from duty solicitors providing face-to-face advice at police stations the LSC also established CDS Direct, a telephone advice service for people detained by the police and suspected of less serious offences. The Defence Solicitor Call Centre (DSCC) administers all incoming request from police stations and allocates solicitors to give advice either in person or via telephone depending on the individual circumstances of the respective case. This service is available 24 hours per day providing more than 850,000 acts of assistance in 2009/10.²¹⁶ Studies by the European Commission for the Efficiency of Justice (CEPEJ) on European judicial systems reveal an important indicator in terms of expenditure: the total number of 297 criminal legal aid cases per 10,000 inhabitants in England is by far the highest of all 45 participating countries.²¹⁷

4.1.2 Germany

Due to Germany’s administrative structure (see 3.1.2) and in the absence of a central body such as the LSC, the implementation of the legal aid schemes is entirely within the discretion of the 16 federal states. Even though the Bundesministerium der Justiz does collect some data on legal aid for court proceedings on a federal level, this is limited to the number of civil legal aid cases before the Amts-, Landes- and Oberlandesgerichte. According to these, a total of roughly 95,000 civil legal aid cases were granted in 2009.²¹⁸ It is worth noting again that this only includes civil legal aid for court proceedings (PKH). Interestingly, the CEPEJ study 2008 (2006 data) indicates an average number of 72 civil legal aid cases granted per 10,000 inhabitants (England: 198) – which equates to almost 595,000 cases.²¹⁹ As the relevant source for the study is the German Ministry of Justice, the enormous difference in figures seems to be astonishing and difficult to explain.²²⁰ This goes to show that the information available from the different Länder which the Bundesministerium der Justiz relies on for its statistics can apparently be quite erratic and is thus to be taken with a pinch of salt.²²¹ For out-of-court advice and assistance (BerH) basic statistics compiled by the Federal Ministry of Justice including data of 14 states²²² are also available. Accordingly, the total acts of assistance for BerH amounted to roughly 880,000 in 2006 and 900,000 in 2010 respectively.²²³ Between 2000 and 2006 this number has more than doubled while applications for PKH have ‘only’ risen by roughly 20 per cent during the same time.²²⁴ Hence, a strong demand for legal aid services can also be observed in Germany. For criminal legal aid almost no data is available except for some expenditure details of individual states (see ch.4.2.2). Civil legal aid for court proceedings is granted in roughly 80 per cent of cases of which the majority are family disputes (80 per cent).²²⁵
Only licensed lawyers’ work is publicly funded and, due to the fact that there is no equivalent to the contracting procedure of England’s LSC, theoretically every member of the Bar can offer legal aid services. However, there are few legal professionals specialising in legal aid services, mostly due to the low pay rates: “Lawyers who rely on legal aid cases for an income tend to work under dire conditions”.²²⁶ Since 2008 the legal profession’s monopoly in legal aid services has been slightly weakened as it is now possible for non-lawyers to give out restricted (non-forensic) legal advice in the form of ancillary services if it is directly related to their profession. For example, asset management consultants can advise clients on aspects of inheritance law. Furthermore, it is possible for not-for-profit organisations to provide gratuitous advice services under the guidance of a qualified lawyer, and societies, clubs as well as various (consumer) associations can advise their members on legal issues as long as this does not constitute the main service offered by the respective organisation.²²⁷ These service providers are not covered by the legal aid scheme and are thus of little direct importance to the public purse, whereas their work seems to have great potential for widening access to justice, for example in the case of debt advice services.²²⁸
Legal expenses insurance (LEI) is one of the reasons for legal aid’s almost ‘second rank status’ in Germany which, as a country, has by far the largest market in Europe with an estimated coverage of 42 per cent of all households.²²⁹ Insurance companies fund approximately 3.6 million cases annually and account for roughly 25 per cent of German lawyers’ fee incomes. Although in its development and administration completely independent from legal aid, LEI nevertheless plays a vital role in shaping the German legal aid system for which less public money has to be allocated as a consequence of LEI’s widespread availability. The success of LEI is not linked to any budget cuts for legal aid, as no serious efforts to this effect have been made by the state. The reasons lie elsewhere:

The attractiveness of litigation insurance is twofold: For the insured, a litigation insurance, unlike legal aid, covers the opponent’s costs in the event of a negative outcome of the court proceedings. The insurer, on the other hand, can offer insurance premiums at relatively low cost as her risk is easily calculatable [sic]: The insurer pays the lawyer’s fees according to the scale of fees.²³⁰

In addition to the favourable conditions for LEI in Germany concerning risk calculation, it should also be noted that the longstanding non-existence of alternative funding mechanisms contributed to its successful development. Apart from criminal and family law cases where legal aid proves to be of vital importance, insurance policies are available for all other areas of civil law, most notably traffic, tort, contract/property, employment and landlord & tenant law. However, LEI is restricted to legal representation in specifically insured events (provided they have not been triggered by a wilful act of the insured) and does not cover general legal advice. Further limitations become apparent from empirical data on the distribution of LEI among households with limited financial resources. People on low income who would be most likely to qualify for legal aid give LEI a much lower priority resulting in a significantly reduced coverage of households in lower income brackets. Consequently, any government attempts to cut back legal aid budgets in the hope that “those excluded by legal aid in the future will take out insurance cover would be a rather optimistic approach”.²³¹ The danger of a significant proportion of those excluded from legal aid being left completely unprotected would simply be too high and is therefore one important factor when considering the introduction of an insurance scheme based on the German model in another country.

4.2. Legal Aid in Practice: Expenditure

It has been widely acknowledged that the direct comparison of national legal aid expenditure figures should be treated with care due to differences in the legal systems, legal aid terminology and data collection procedures.²³² All data presented below are thus intended to be more of a reference point from which to determine general trends. In order to establish some degree of comparability between spending levels of the two countries under consideration, the following remarks on England’s legal aid budget will, where necessary, also refer to the Euro currency stated in brackets. A significant amount of data used for this section is derived from the 2008 edition of the aforementioned CEPEJ study as Germany was unable to submit data for the latest 2010 report.²³³

4.2.1 England

In 2009/10, net legal aid expenditure in England was £2.23 (2.5) billion, up £150 (168) million from the year before and almost three times higher than in 1988 when, at today’s prices, it was £835 (935) million. A total of £1.12 (1.26) billion was allocated to the CDS which left £1.11 (1.24) billion for the CLS. ²³⁴ While this sounds alarming and is certainly presented in such manner on the political stage, critics argue that this amount would not be enough to keep the NHS afloat for more than two weeks. Furthermore, it is claimed that in real terms funding for civil legal aid has actually decreased by 24 per cent over the past ten years.²³⁵ Nevertheless, by international standards England’s per capita spending on legal aid of €56 (France: €4.8) is very high. As hinted at above, one of the main reasons for this is the great volume of cases supported: 495 compared to 254 legal aid cases per 10,000 inhabitants in the Netherlands, the second highest number in Europe. It has not been possible yet to clearly identify the exact drivers for these high numbers but, according to Bowles and Perry as well as Richard Moorhead, the generally greater proportion of cases brought to court could be one explanation.²³⁶
At first glance, with 1,112 crimes per 10,000 inhabitants England once again takes a dubious top position among western European countries. It remains debatable, however, whether this number is actually due to a relatively high number of crimes or simply the result of a greater amount of crimes being reported. The fact that a large proportion of criminal cases actually reach the courts (381 per 10,000 inhabitants) is yet another element to be considered when examining expenditure. Here, research has revealed that the origin of a country’s legal system is of importance as it could be shown that continental systems tend to resolve a higher proportion of cases without resort to a court hearing.²³⁷ This is complemented by a high spending per legal aid case amounting to €1,136.²³⁸ Looking at some expenditure details, it is striking that acts of civil representation account for 28 per cent of the whole legal aid budget while constituting a mere five per cent of the total number of assisted acts. Similarly, criminal legal aid for Crown courts and higher courts make up as little as four per cent of all supported cases but account for 30 per cent of total expenditure.²³⁹ While it seems obvious that an act of representation is more costly than a ‘simple’ advice service, the same as cases at higher courts are more likely to entail a greater deal of complexity and thus more (payable) work than county court trials, there is nevertheless the assumption that so-called supplier induced demand is at least co-responsible for the high cost per case ratio. This refers to the idea that lawyers do more work than is actually necessary when paid by the hour as it is the case for most criminal legal aid matters. Although evidence for this assertion seems to be contestable, it has nevertheless been acknowledged that different remuneration rules (e.g. fixed vs. hourly fees) have an impact on the average cost per case. A move to abolish hourly fees would significantly lower the costs for the English legal aid system but is not without controversies. Fears prevail that fixed fees could be detrimental to the handling of legal aid matters due to lawyers ‘cherry-picking’ easier cases or an increase in guilty pleadings.²⁴⁰
Another hypothesis for England’s high level of expenditure on criminal legal aid refers to other court-related spending, namely court budgets and public prosecution costs, which at €43 per capita is significantly lower than in other European countries including Germany. The fact that duty solicitors’ work counts as legal aid in England but could be filed under ‘court spending’ in other systems where they are directly employed by the courts is one striking example for classification issues when it comes to international comparisons of different legal systems. In the case of the above-quoted study undertaken by the Ministry of Justice, the question whether these findings were related to actual structural differences or merely “artefacts of technical issues related to data collection”²⁴¹ could not be answered. What is certain is the fact that criminal legal aid enjoys a privileged position in terms of expenditure because “Government takes the view that [it] is a compulsory spend to meet the right to a fair trial required by article 6 of the ECHR”.²⁴² As the total budget is supposed to be capped this implies that civil legal aid is somehow at the mercy of criminal legal aid spending: the more allocated to the latter, the less will be available for the former. While non-family matters experienced a sharp fall of 60 per cent in gross spending over the past decade, family cases are now taking up two thirds of the CLS budget.²⁴³ Thus, it seems evident where there is potential for future cuts.

4.2.2 Germany

As noted above, there is no national legal aid budget in Germany but “all 16 federal states fund legal aid through the budgets of the departments in charge of their court systems”.²⁴⁴ Bearing in mind that there are five different court systems in every Land, this leaves Germany with at least 80 legal aid budgets making up the total national expenditure.²⁴⁵ It seems almost impossible to gather all relevant data as the matter is further complicated by the fact that the states do not employ uniform auditing strategies. Some Länder do not list legal aid expenditure separately but file it under their overall court budgets, whereas others do not distinguish between criminal and civil legal aid expenditure. Last, but not least, it is difficult to calculate the net spending of the states as contributions made by some of the recipients of legal aid are mostly collected by the respective courts themselves resulting in this revenue simply flowing back into the general courts budget.²⁴⁶ Under these circumstances, determining Germany’s overall national legal aid expenditure can only be an educated guess.²⁴⁷ The 2006 figure of €557 million provided in the 2008 CEPEJ report on European judicial systems is of limited validity, not least because it could be shown that the corresponding number of civil legal aid cases is somehow questionable. Furthermore, it only refers to costs for PKH at the courts of general jurisdiction thus excluding PKH for specialised courts, out-of-court legal advice and assistance (BerH) as well as criminal legal aid.²⁴⁸ Based on the information available from both literature and official statistics and subject to several assumptions, the total legal aid expenditure will be estimated as follows.
Civil legal aid for court proceedings (PKH) takes up approximately 80 per cent of the states’ legal aid budgets excluding BerH. Distributed across the different court systems, the courts of general jurisdiction account for roughly 90 per cent of PKH spending according to statements from some of the Länder.²⁴⁹ Based on the 2006 CEPEJ figure this would equate to an additional gross expenditure of €62 million for PKH at the specialised court systems whereas some states report trends suggesting that this could be even higher because of growing caseloads in the areas of employment and social security law. Therefore the sum of €619 million for PKH in 2006 is possibly an understatement. The budget for PKH at the courts of general jurisdiction has increased significantly over the past decade at a rate of 20 to 30 per cent (2000: €358 million; 2004: €425 million). According to Kilian, until 2004 this growth had been entirely demand driven as there had been no policy changes to legal aid during this time.²⁵⁰ Only from 2005 onward, when a cost rules reform resulting in a 15 – 30 per cent increase for lawyer fees started to bite, this put additional financial pressure on the legal aid budgets which is reflected in the 2006 data. It is further estimated by the states that a total of 15 – 20 per cent of the expenditure is re-paid through contributions resulting in an overall net expenditure for PKH of €496 – 529 million in 2006. Of this sum, family disputes accounted for roughly €400 – 424 million (80 per cent). In the 2006 version (2004 data) of the CEPEJ report the average costs per civil legal aid case was indicated at €657, less than half of England’s costs per case ratio of €1,500 at that time. Unfortunately, no such information was available for Germany in the 2008 study.²⁵¹
In contrast to PKH, there is only one budget for BerH per state as all relevant court systems are covered by a single advice scheme. This renders it easier to keep track of expenditure on a national level whereas even here there are a few exceptions. Hamburg and Bremen do not submit information on their BerH spending due to their systems of public legal advice centres employing salaried lawyers which, apparently, are incomparable with the other states’ public funding of private practice advocates. Furthermore, the state of Hessen has only irregularly provided data on BerH over the past 15 years. The total expenditure on BerH for 2006 based on 13 state budgets amounted to €80 million. BerH takes up a rather small portion of the total legal aid budget but has nevertheless seen a steep rise in expenditure since its introduction in 1981 (1990: €10 million; 2000: €19 million). Growing demand for legal advice is the main reason for the BerH budgets sky-rocketing during the past decade and peaking at more than €85 million in 2007. Since then, expenditure has slightly declined reaching ‘only’ €83 million in 2009.²⁵² Whether this is only a brief lapse in demand remains to be seen but, as there had been no changes to eligibility rules, it is nonetheless an indicator for BerH not being as much affected by the aftershocks of the financial crisis as one could have expected it.
Criminal legal aid expenditure proves to be the ‘problem child’ when it comes to the task of determining Germany’s total legal aid budget as only few states keep separate statistics. Those who do so spend between 16 and 22 per cent of their PKH budget on criminal legal aid. This only covers mandatory representation (notwendige Verteidigung), with criminal legal advice being included in the respective BerH budgets. In the years between 1996 and 2000, expenditure for criminal legal aid appears to have grown slightly faster than for PKH according to statistics of Berlin, Baden-Württemberg, Rhineland-Palatinate and Saxony. Again, no recent data is available to consolidate these observations. Kilian, in his research into legal aid expenditure based on the information provided by the Länder, assumes a ratio of 20:100 between criminal and non-criminal legal aid for court proceedings in order to calculate the national legal aid budget.²⁵³ Following this, national expenditure on notwendige Verteidigung in 2006 was approximately €112 million. If added to €496 – 529 million for PKH as well as €80 million for BerH, this amounts to a national legal aid budget of approximately €688 – 721 million for 2006 – compared to €3 billion for England.²⁵⁴ Per capita spending would be around €9 and thus considerably below England’s €56 per head. Despite the restrictions in comparability, which once again must be emphasized, the difference in expenditure is striking. Lower crime rates (789 per 10,000 inhabitants) – whether induced by fewer crimes being reported or actual lower crime numbers – as well as a lower divorce rate (26 per 10,000 inhabitants) certainly form a part of the explanation for this. However, the widespread existence of LEI might be the most influential factor here.²⁵⁵ It has been argued that the sum of €3 billion Germans spent on LEI in 2009 (2004: 2.8 billion) is by far offsetting savings in legal aid expenditure. LEI companies pay between €2 and €2.5 billion annually for lawyer’s fees (75 per cent) and court fees (25 per cent).²⁵⁶ Hence, statistically every licensed lawyer in Germany receives more than €13,000 in fees per year from LEI companies.²⁵⁷ However comforting these figures may appear to be in relation to public expenditure, recent trends have nevertheless shown a decrease in LEI household coverage from more than 50 per cent in the 1990s down to 42 per cent in 2007.²⁵⁸ This is in part attributed to the aforementioned reform of cost rules. With increasing fees for lawyers, most naturally LEI companies face higher costs which are passed on to customers in the form of higher premiums. Thus, especially people on a lower income find it harder if not impossible to afford an LEI policy. The situation is exacerbated by rising costs for (private) health insurance and pension plans as these social security elements continue to be less and less covered by public funds and force many Germans “[…] to prioritise when it comes to allocating funds to their insurance portfolio”.²⁵⁹
Further possible explanations for Germany’s lower legal aid expenditure when compared to England are harsher eligibility rules, the predominant usage of (overall lower) fixed fees for legal aid work as well as the assumption that higher spending on courts and public prosecution are to be factored in instead of looking at legal aid in isolation.²⁶⁰ In the latter case, Germany’s 2006 total budget allocated to all courts, public prosecution and legal aid was €8.8 billion as against €5.4 billion for England.²⁶¹ Arguments brought forward in this context tend to point out that in Continental legal systems more financial resources are “allocated to judges who have an inquisitorial role”,²⁶² although the inquisitorial role of judges in the German system (as opposed to French law) is rather limited. Nevertheless, costs for legal aid could be looked at from a different perspective which, in relation to the topic of this article, would present England’s high cost legal aid system in a more favourable light. This perception, however, is predominantly shared by English stakeholders whereas continental scholars consider it to be painting the situation with too broad a brush. Be that as it may, Germany’s relatively ‘low’ spending level combined with its non-transparent funding structure contributes to legal aid’s second-tier policy status resulting in the German government’s rather limited attempts to curb expenditure on a national level.

4.3 Recent Government Proposals

4.3.1 England

Throughout its history legal aid in England has been subject to a vast number of amendments and reforms. The budget has always figured very prominently in reform discussions and proposals, most notably since the sharp rise in expenditure during the 1980s, and the most recent announcements of the British government are no exception here. In November 2010, as a part of the Ministry of Justice’s contribution to the Comprehensive Spending Review (CSR) aimed at tackling the public deficit, Justice Secretary Kenneth Clarke presented plans for reform of the civil legal aid system allegedly leading to “a more targeted civil and family scheme which will discourage people from resorting to lawyers whenever they face a problem, and instead encourage them to consider more suitable methods of dispute resolution”.²⁶³ In their consultation paper Government emphasize their ambition to make the justice system simpler and more responsive to people’s needs while at the same time aiming to provide legal aid services only “for the most serious cases in which legal advice or representation is justified”.²⁶⁴ The bottom-line of the announcements is an envisaged budget reduction of £350 million over the next four years which is to be achieved through cuts in scope and eligibility as well as a ten per cent reduction in fees for civil and family cases. The latter could result in legal aid firms losing more than £150 million annually putting pressure especially on smaller firms. In terms of scope

[t]he categories proposed to be cut from the legal aid scheme are: private law children and family cases where domestic violence is not present; education; immigration where the individual is not detained; clinical negligence; ancillary relief cases where domestic violence is not present; employment; welfare benefits; debt matters where the client’s home is not at immediate risk; consumer and general contract; Upper Tribunal appeals; tort claims; legal help for Criminal Injuries Compensation Authority applications; and some housing matters. ²⁶⁵

If implemented the cuts would result in nearly 550,000 cases per year being no longer funded by legal aid, including 265,000 family cases whereas for the latter mediation services would still be available. This is likely to be accompanied by tighter eligibility criteria meaning that only those with up to £1,000 disposable capital (until now: £3,000) would receive full legal assistance. Above this threshold a minimum contribution of £100 would become payable. The disposable income margin would remain the same whereas beyond that contributions could rise. Changes for criminal legal aid would only entail a switch to stricter graduated fee schemes in very high cost criminal cases in order to curb expenditure.²⁶⁶
The proposals were heavily criticised for disproportionately affecting the most vulnerable of society with women, ethnic minorities and disabled people being hit the hardest. An equality impact assessment conducted by the Ministry of Justice revealed that more women would suffer from family law cuts as they were usually more likely to apply for legal aid.²⁶⁷ It was further argued that at a time when unemployment is on the rise and people are suffering from sweeping budget cuts in other areas, the measures taken by the government would prevent the most marginalised in society from defending their civil rights. The Law Society warned that in the event of a full implementation of the proposals “only the poorest of the poor will be eligible for legal aid”.²⁶⁸ It is especially the legal advice sector which will see the biggest cuts which seems to run contrary to the fact that out-of-court advice and assistance accounts for a mere 13 per cent of total legal aid expenditure.²⁶⁹ Moreover, as Britain’s economy indeed still suffers from the global financial crisis²⁷⁰ and more and more people would be in need of advice on debt, employment and social welfare issues, the government plans beg the question whether this decision was without any alternative. Mr Clarke stated that these choices were tough but necessary and that “[l]egal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home.”²⁷¹ The exclusion of psychological abuse as a serious threat which entitles victims for state-funded legal services attracted yet another round of harsh criticism. For those who would miss out on legal aid in the future, alternative sources of funding were suggested to be an option. ²⁷²
Along this line, the Ministry of Justice plans to implement many of the key proposals made by Lord Justice Jackson on the reform of funding civil litigation which also seek to reduce costs and make the court system ‘more effective’.²⁷³ These encompass, for example, the introduction of ‘damages-based agreements’ under which a lawyer can claim a part (max. 25 per cent) of a claimant’s damages as success fee and, in connection with this, a ten per cent increase in general damages for personal injury cases and other civil wrongs intended to offset the effects for the claimant.²⁷⁴ Further moves could include abolishing the recoverability of success fees and related costs in ‘no win, no fee’ arrangements. This would fundamentally change cost shifting rules and is intended to serve as an incentive for claimants to control legal costs and “stopping the losing parties from having to cover the other sides’ success fees and related insurance policies”.²⁷⁵ The promotion of LEI among English households as an add-on to household insurance policies is also part of Lord Jackson’s recommendations. It is argued that LEI is an inexpensive way of ensuring greater access to justice, “[…] a beneficial product at an affordable price, established on the basis that the many pay for the few”.²⁷⁶
The consultation period for the government’s proposals ended on 14 February 2011 and the Minister of Justice received more than 5,000 responses.²⁷⁷ The Government responded to the proposals in March 2011taking into account 625 formal responses as well as roughly 250 identical campaign letters. In the report it was re-emphasized that the core principles of Jackson’s recommendations will be implemented as planned despite numerous respondents pointing out that this move would curb access to justice, particularly for claimants.²⁷⁸ The proposal to abolish the recoverability of CFA success fees and ATE insurance premiums was considered to be the most critical issue:

Views were clearly split amongst respondents. Most claimant representatives and ATE insurers argued strongly that recoverability should remain, in full or in part in order to maintain access to justice and preserve damages for claimants. On the other hand, defendant representatives and general liability insurers were more united in their views in support of Sir Rupert’s primary recommendations: that recoverability of success fees (and ATE insurance premiums) should be abolished. They pointed to the disproportionate costs caused by the current regime, and did not believe that genuine claims would be disadvantaged.²⁷⁹

The latter view is shared by the British government even though it was also acknowledged in the report that the related costs form but one part of the cause for overall high expenditure levels.²⁸⁰ In a nutshell, none of the responses received had a profound impact on Jackson’s original reform proposals. Government believes those to be unavoidable in order to bring down costs and tackle the development of a so-called compensation culture.²⁸¹

4.3.2 Germany

Apart from the German government’s reforms described above on cost rules (2004), conditional fee agreements (2008) and criminal legal aid for suspects in pre-trial detention (2009), for many years no substantial legislative changes directly affecting legal aid in terms of scope or eligibility have been made. In March 2010, triggered by rising expenditure levels the Bundesrat presented a bill on (cost-)containment for PKH (Prozesskostenhilfebegrenzungsgesetz) to the Bundestag.²⁸² Based on a 2006 draft by the Ministry of Justice of the state of Baden-Württemberg, the proposed measures include an increase of contributions on the part of the legal aid recipient, tighter eligibility rules, the closer scrutiny of applicants’ personal and financial circumstances and the possibility for judges to delegate the task of checking PKH applications to a Rechtspfleger, a senior court officer. Besides the aim of curbing expenditure the bill is also supposed to tackle the issue of spurious claims for PKH. The total savings, if implemented, are expected to amount to roughly €95 million.²⁸³ In line with the established principle of PKH being available for all areas of civil law, no reductions in scope are envisaged.
The main proposals concerning financial contributions encompass, inter alia, the abolition of the sliding scale used to calculate contributions in favour of a general rule obligating recipients to use two-thirds of their disposable income. Additionally, people who are granted PKH should pay back higher monthly rates which would not be confined to 48 months any more. Further measures include the introduction of a general processing fee of €50 (€40 at employment tribunals) for the grant of PKH in cases where contributions will become payable, an obligation to use the whole sum of proceeds potentially awarded from a case to pay back a PKH grant and the possibility for courts to refer applicants to a bank loan should their disposable income be above €450. This would be complemented by a reduction in deductible expenses for the calculation of financial eligibility.²⁸⁴ In order to determine the latter it should also be rendered possible for courts to interrogate witnesses on the financial situation of the applicant. The number of malicious PKH applications is intended to be reduced by a change in definition of what the reasonable litigant not supported by PKH would do in a given situation. Interestingly, this proposal, which basically equates to an alteration of the merits tests, entails the introduction of a cost-benefit analysis similar to the respective rules in English legislation.²⁸⁵ Following this, PKH could be refused if a case appears to be economically unreasonable even though sufficient prospects of success have been established.
Various associations of the legal profession such as the German association of judges (Deutscher Richterbund) expressed their general approval of the intended saving effects but criticised the reforms for being too harsh in many points such as, for example, the changes to the merits test which in their view would simply reduce the law to its economic dimension.²⁸⁶ Furthermore, constitutional concerns were raised by the German government in an official statement.²⁸⁷ The suggested changes to the contribution rules forcing legal aid recipients to make use of all their capital for the repayment of a PKH grant were particularly criticised for being an assault on people’s minimum subsistence level. At the same time, Government called on the states to provide more detailed information on their PKH spending levels as otherwise it would not be possible to evaluate the real saving potential, particularly since the latest data on PKH expenditure included in the bill was from 2005 and only based on Baden-Württemberg’s budget.²⁸⁸ Consequently, the bill has not been passed yet and it remains to be seen in how far the proposals will be implemented.
In a similar form, a bill on the reform of BerH was presented in May 2010, again with the intention to cut back rising expenditure and to prevent fraudulent claims of legal advice and representation services. The proposed legislation changes mainly concern the BerH application procedure as well as the rules on contributions. It was argued that in the case of the former the current lack of a uniform application of the law at state level would render it necessary to specify existing legislation. This should be complemented by a refinement of referral procedures with a clear emphasis on the promotion of alternative help services such as debtors’ advisory centres. It was acknowledged that the cost explosion of the scheme was entirely demand-led²⁸⁹ with the main reasons being increasing financial problems of German households but also the growing (mis)perception of BerH as a source of general advice. In order to counteract this development, recipients should be required by law to pay higher fees in the future as this would have the effect of demonstrating that the services offered involve a certain amount of money. This is intended to make applicants re-consider whether their decision to consult a lawyer is actually reasonable.²⁹⁰ A decision on the outcome of the legislation procedure is yet to be made.
What becomes apparent form these proposals is, first and foremost, that the political topic of legal aid seems to grow in significance as expenditure continues to rise at a high rate. The intended reforms seek to cut back eligibility and increase client contributions in order to save money. As obvious as this may be it is important to emphasize here that the proposed measures are based on the assessment of data provided by some of the states only with no precise numbers for national expenditure available. Additionally, presenting a bill in 2010 which was drafted in 2006 without updating any of the information on which the entire argumentation is based could be taken as a sign for either disinterest or, most likely, a lack of communication and cooperation as well as coherence between the states on the topic of legal aid.²⁹¹ Against this backdrop, some of the proposed measures concerning financial eligibility and the introduction of a ‘value-for-money’ approach to PKH rightly seem to be questionable. It is thus no wonder that the German government, though certainly not disinclined to achieve savings, has expressly disagreed with many of the recommendations. Last but not least, it should be noted that German media attention regarding legal aid reform proposals still continues to be on a much lower level than it is the case for England and is overwhelmingly – though not exclusively – confined to specialised press publications.

5. ‘The Way Ahead?’ – Alternatives

As could be shown in the previous two sub-chapters there is great disagreement over how to tackle the (financial) challenges for both legal aid systems whereas everybody involved seems to see the necessity of reform. The most important question remains unsolved, namely which of the alternative solutions would be appropriate to create a fairer and even more comprehensive scheme which is more user-friendly and at the same time more cost effective. While there is consensus on there being no panacea to cure all shortcomings of the two systems, ideas on how to approach the problems are multifaceted and not infrequently related to the respective (professional) position of the person expressing this view. The following examples offer no more than a short overview of mooted possible solutions whereas their potential suitability as a replacement of the state-run schemes will be evaluated. Once again, the priority status of legal aid in England is responsible for a broader range of publicly discussed proposals than it is the case in Germany.

5.1 Alternative Dispute Resolution

One of the UK government’s favoured solutions to the cost problem of legal aid seems to be alternative dispute resolution (ADR), and mediation in particular, as this is featured in both current legislation as well as the most recent reform proposals. Essentially, ADR refers to making use of a third person such as a mediator or an ombudsman for resolving legal conflicts between parties without resorting to a court procedure. The main reason for choosing such arrangements is to avoid the costs of a solicitor and of using the courts. ADR takes various forms, the most important of which are negotiation, mediation, conciliation and arbitration.²⁹² As concerns legal aid, mediation in family disputes is currently of paramount interest not least because of the substantial saving potentials, with an average cost of £1,000 for ADR resolved divorce issues as compared to £4,000 if litigated at court. Apart from that, it is considered to be a quicker and more harmonious way of settling disputes which, if successful, can result in a legally binding agreement, usually in the form of a consent order.²⁹³ Total savings of approximately £90 million in 2009 encouraged English legislators to introduce new rules for divorcing couples which “make it obligatory to consider mediation by attending a Mediation Information and Assessment Meeting but [it is not] compulsory to actually commit to the process thereafter”.²⁹⁴ However, mediation is not universally applicable to all cases and it has been argued that especially more complicated matters tend to be either as costly as court proceedings or even entirely unsuitable for this form of ADR.²⁹⁵ Furthermore, Lord Neuberger warned that the fundamental right of effective access to courts could not be substituted by an increased use of mediation.²⁹⁶The evident advantages of mediation are thus confined to a selection of civil cases and the financial gains for the English legal aid system are moderate when compared to the total spending on legal aid. The fact that, despite the announced cuts to legal aid, the procedure will still be available in family law disputes is nevertheless some light at the end of the tunnel for English legal aid applicants.
By contrast, German would-be recipients of PKH or BerH will, as pointed out in the bills described above, only be referred to out-of-court advice and ADR procedures by the courts – usually without being covered by legal aid. The mediation profession in Germany has yet not been regulated on a statutory basis and the services provided by lawyers continue to be the dominant form of publicly funded legal aid work which may only include mediation at court.²⁹⁷ The possibility for clients to use BerH or PKH for out-of-court mediation services is rather remote and even if, for example, BerH would be available, the sums provided by the scheme would not suffice to cover a mediator’s hourly fees starting at roughly €100.²⁹⁸ Similarly, PKH expenses calculated on the basis of a fee scale would be difficult to match with the costs for private practice mediators which generally seem to be less predictable for more complex cases. Hence, without substantial reform of the legal framework for mediation including professional standards for non-lawyer mediators, it seems to be unlikely that this form of ADR will play a major role in the German legal aid system.

5.2 Legal Expenses Insurance

In 2010, the former shadow justice minister Henry Bellingham called for the promotion of LEI in England where only one per cent of the population is covered by stand-alone general LEI compared to more than 40 per cent in Germany.²⁹⁹ The idea of introducing a similar scheme was already floated in the early 1990s by the then Lord Chancellor’s Department.³⁰⁰ In order to determine whether it could be possible to establish a similar LEI market in Britain which could take the pressure off the public purse concerning legal aid, various factors have to be considered. Most importantly for LEI to be successful the costs should be calculable to a relatively great extent as otherwise the high economic risk resting with the insurer would result in very high policy premiums. The latter, in turn, would render LEI very unattractive to the majority of the population. Despite the increasing usage of fixed fees, England’s remuneration structures for lawyers still remain less predictable than the German fee scales. This lack of predictability constitutes one major obstacle for the expansion of LEI in England.³⁰¹ Secondly, there is an issue of culture differences, combined with the fact that LEI in England is mostly sold as a cheap add-on or even given away for free with motor and household insurance policies. Many English people are often not aware that they have some form of add-on LEI (59 per cent of the population!) according to a 2007 report of the MoJ. Furthermore, those who do know about their policies tend to be not sure how to use it.³⁰² When asked in a survey on consumer expectations towards the legal services market, 64 per cent of 2,000 people said they would not be willing to pay £75 annually for a stand-alone LEI policy which covered all their unforeseen legal needs (i.e. excluding will writing and conveyancing). With only 14 per cent of the respondents recognising the potential value of this insurance product it seems obvious that a lot of hard work would be necessary to convince a majority of the English people to take out this form of LEI. The reason for this attitude can be found in their opinion on the state’s role concerning legal aid services as 68 per cent agree with the following statement:

If someone was too poor to afford a lawyer and they had a need for serious legal advice (e.g. they believe they have been sacked unfairly, fear they might lose their home following an argument with a landlord etc) the state should pay for their legal advice through the legal aid system.³⁰³

In times when eligibility for legal aid is actually decreasing it is rather surprising that the majority of people “still have that expectation of the state safety net” while at the same time there is “a strong culture of not trusting insurers”.³⁰⁴ On top of that, the inherent limitations of LEI as regards criminal and family law cases as well as its distribution among lower income groups has to be borne in mind. Hence, LEI is certainly not an easy fix for England’s legal aid woes but would require profound structural changes not only in terms of legislation.

5.3 Conditional Fee Agreements

The much-touted ‘legalisation’ of CFA in Germany has been labelled an imposed reform which did not equate to a full repeal of the former prohibition.³⁰⁵ As discussed above (towards the end of ch. 3.2), the scope of CFA in Germany is rather restricted and, at least in theory, only intended to encompass those in need of help to gain access to the courts. As opposed to England where it had been obvious from the outset that CFA would also serve as a means to support, if not even partly replace legal aid, no similar discussions emerged in Germany.³⁰⁶ The main advantages of CFA are thought to be for claimants “unable to qualify for legal aid after the threshold for entitlement had been lowered”.³⁰⁷ Theoretically a win-win situation, the legal aid budget could be cut back with taxpayers being less burdened while at the same time access to justice for the less affluent would be preserved or even widened and lawyers could expect higher incomes as CFA open up new business opportunities. CFA may relieve a claimant’s worries about losing a claim, while potential defendants can benefit from a reduced number of spurious claims brought as “losing parties will still be liable to pay the other side’s costs”.³⁰⁸ However, as lawyers will carefully weigh the chances of success before entering into a CFA, this might result in cases of limited success prospects being turned down which may be reasonable in the light of current legislation but does not necessarily equate to ‘justice’ for the indigent. It was even argued that these arrangements could tempt lawyers to act unethically in order to win a case. Moreover, bearing in mind that hourly remuneration is still the norm for advocates in England, a lawyer “[…] may have a financial interest in encouraging his client to go on with an open-and-shut case, increasing his own fees”.³⁰⁹ The most crucial finding, however, is the fact that it is debatable whether CFA will actually benefit those in need of support. English studies could show that CFA play a vital role in ensuring access to justice for people ineligible for legal aid “but may constrain the types of claims that are brought by those clients. In particular, both higher risk, more expensive and low value claims may all be affected by this”.³¹⁰ In a German survey on CFA in practice it was revealed that only medium-sized or bigger law firms with a clear focus on commercial clients tend to make use of the new fee. Lawyers mostly dealing with private clients are rarely even asked about the possibility of entering into a CFA. Hommerich thus concludes that in Germany it remains highly questionable whether access to justice will be (positively) affected at all. After all, CFA are still only a form of fee arrangement rather than a funding mechanism allowing for a shift of financial responsibility from the state to the private sector.³¹¹

6. Conclusion

England and Germany are both confronted with ever increasing costs for their legal aid systems which have been established to support the less affluent members of society facing legal struggles. At face value, Germany appears to be in a superior position to tackle the problem as their system is less prone to cutbacks due to its lower expenditure in connection with a highly developed LEI market supporting the public purse by shifting the financial burden to the private individual. England, to a comparatively greater extent, is still struggling with the repercussions of the global financial crisis resulting in higher unemployment and even greater demand for state-funded legal services. This is exacerbated by overall high costs for a legal aid system which was created with high ambitions after the Second World War, but which soon had to face the harsh reality of financial impracticalities. In this context, England’s (hourly) remuneration system for lawyers, resulting in relatively high costs for going to court, should be seen as one of the most decisive factors hampering the development of the legal aid system. From a historical point of view, England had long been reluctant to engage in a comprehensive scheme equating to a basic right to legal aid as it had emerged in Germany and was basically forced to adopt a different stance mostly because of the pressing need to finance the growing number of divorce proceedings for the less affluent.³¹²
In contrast, although in reality far from being a comprehensive scheme or predominantly driven by altruism, Germany’s early legal aid system aimed at providing a basic right to some form of legal support for the poor with a strong reference to social welfare issues. From the outset, rather strict financial eligibility rules put the German system in a position of being a basic, last resort for the impecunious in need of legal help. Complemented by a highly regulated framework for the legal profession, most notably in relation to remuneration, Germany’s scheme has neither been subject to abuse by ‘greedy lawyers’ nor has it received a great deal of political attention when compared to England. The non-transparent funding structure of the federal states certainly contributes to the fact that for a long time there has been little unanimous political demand to curtail expenses.
England’s centralised legal aid structure, its vast amount of complicated legislation and in part highly unpredictable costs for going to court, puts the scheme in a more difficult position and makes it an easy target for financially motivated cuts. Despite more generous eligibility rules and a more liberal approach to the legal advice market, which provides better opportunities for people to obtain basic legal information, many areas of law have already been excluded from the civil scheme. A strong focus on criminal legal aid, not least caused by a relatively high crime rate, means great trouble for the capped civil legal aid fund. The establishment of a LEI market similar to Germany in order to counteract this development seems to be rather unlikely due to structural as well as cultural difficulties with a majority of England’s population still expecting the state to provide legal aid services. Unless costs become more predictable, insurance companies will not be willing to offer stand-alone policies at an affordable price for people on lower income. Despite the doubts about the effectiveness of alternative funding mechanisms such as CFA when it comes to safeguarding access to justice for the poor, it is nevertheless an important step in the right direction in times of great uncertainty for the English legal aid system.
The coverage of mediation by the English scheme appears to be another positive and progressive example of a changing approach to legal disputes in a move away from litigation. Due to the fact that most civil legal aid cases in both countries relate to family matters, England’s experience with mediation could offer valuable inspiration for Germany’s system, which only very recently became more open to new ideas in the area of legal aid.
As German legal aid recipients have to make contributions starting from a very low level of disposable income, and as it was shown above that LEI is not overwhelmingly prevalent among people on low income, there seems to emerge a lower middleclass social group for whom it will be increasingly difficult to avail themselves of legal help without facing serious financial risks. At the same time, there is growing awareness of the overall expenditure level among German politicians which may soon result in a round of sweeping reforms provided that the different states for once manage to coordinate their strategies. Thus, despite Germany’s initial advantage, it remains to be seen how effectively legal aid can defend itself in the present economic climate. What seems certain is that there is no panacea and no quick fix for both systems, whereas England will probably have to put in more effort to sustain a sufficiently secure level of access to justice for the poor.

Endnotes

* Master of British Studies, Humboldt-Universität zu Berlin.

1 Acknowledged in the European Convention of Human Rights, Article 6, as well as in the German Grundgesetz and the British Human Rights Act 1998.

2 The following remarks will focus on the legal aid systems of Germany as well as England and Wales, rather than the whole of the UK. Separate schemes exist in Scotland and Northern Ireland. For the sake of readability England and Wales will hereinafter be referred to as England.

3 In 2006 England spent an internationally unrivalled record sum of three billion Euros annually. See European Commission for the Efficiency of Justice (CEPEJ), ‘European Judicial Systems – Edition 2008 (data 2006): efficiency and quality of justice’ (Council of Europe 2008) <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694089&SecMode=1&DocId=1314568&Usage=2 > accessed 25 February 2011.

4 See Julia Kollewe and Ashley Seager, ‘Sharp rise in unemployment as financial crisis hits jobs market’ The Guardian (Guardian.co.uk 15 October 2008) <http://www.guardian.co.uk/business/2008/oct/15/unemploymentdata-recession> accessed 25 February 2011; International Labour Office, ‘Global Wage Report: 2009 Update’ <http://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_116500.pdf> accessed 25 February 2011.

5 Steve Schifferes, ‘Crisis ‘cost us $10,000 each’ ‘ (BBC News, 10 September 2009)
<http://news.bbc.co.uk/2/hi/business/8248434.stm> accessed 20 February 2011; Jan Schildbach, ‘Direkte Fiskalische Kosten der Finanzkrise’ (Deutsche Bank Research, 1 July 2010) <http://www.dbresearch.de/PROD/DBR_INTERNET_DE-PROD/PROD0000000000259498.PDF> accessed 6 November 2011.

6 T.C., ‘The British economy: That shrinking feeling’ (The Economist, 25 January 2011) <http://www.economist.com/blogs/blighty/2011/01/british_economy_0> accessed 20 February 2011.

7 Schildbach (n 5); Deutscher Bundestag, ‘Kosten der Finanz- und Wirtschaftskrise und Beteiligung des Finanzsektors’ Drucksache 17/2294 Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Dr. Carsten Sieling, Nicolette Kressl, Joachim Poß, weiterer Abgeordneter und der Fraktion der SPD – Drucksache 17/2054 (2010) <dip.bundestag.de/btd/17/022/1702294.pdf> accessed 6 November 2011.

8 dpa (Deutsche Presseagentur), ‘Preisschild für Finanzkrise: 10,5 Billionen Dollar’ (Wirtschaftswoche Online 28 September 2009) < http://www.wiwo.de/unternehmen/finanzkrise-preisschild-fuer-finanzkrise-10-5-billionen-dollar/5572076.html> accessed 6November 2011.

9 Suffolk County Council, ‘The Effects of Recession & Those Most at risk’ (October 2008) <http://www.suffolk.gov.uk/NR/rdonlyres/320E5D8B-E2DE-49E8-976A-95C87541D97F/0/EffectsoftheRecessionandThosemostatRisk.pdf> accessed 20 February 2011.

10 David Brindle ‘Recession’s threat to vulnerable people’ (The Guardian, 22 April 2009) <http://www.guardian.co.uk/society/2009/apr/22/social-care-older-people> accessed 20 February 2011.

11 Suffolk County Council (n 9). The German labour market has since witnessed a remarkable recovery, but the medium term prospects remain uncertain. See Bundesagentur für Arbeit, ‘Der Ausbildungs- und Arbeitsmarkt in Deutschland, November 2011‘ < statistik.arbeitsagentur.de/Statischer-Content/Arbeitsmarktberichte/Monatsbericht-Arbeits-Ausbildungsmarkt-Deutschland/Monatsberichte/Generische-Publikationen/Monatsbericht-201111.pdf> accessed 1 December 2011.

12 See Martin Hickman‚ ‘Broke Britain: millions face struggle to stay afloat as financial crisis hits home’ (The Independent, 2 January 2008) <http://www.independent.co.uk/news/uk/home-news/broke-britain-millions-face-struggle-to-stay-afloat-as-financial-crisis-hits-home-767584.html> accessed 20 February 2011; Antje Schüddemage ‘Finanzkrise kommt in deutschen Haushalten an’ (Frankfurter Rundschau, 30 September 2009) <http://www.fr-online.de/wirtschaft/finanzkrise-kommt-in-deutschen-haushalten-an/-/1472780/4692090/-/view/asFirstTeaser/-/index.html> accessed 20 February 2011.

13 John Flood, ‘The Transformation of Access to Justice in England and Wales 60 Years on’ (Colóquio Internacional O Acesso ao Direito e à Justica da Familia em Transformacao, Universidade de Coimbra, 2009).

14 Toby Helm, et al, (The Guardian, 16 October 2010) ‘George Osborne takes spending axe to prisons and legal aid’ <http://www.guardian.co.uk/society/2010/oct/16/george-osborne-prisons-legal-aid> accessed 20 February 2011.

15 Eduardo Reyes, ‘The campaign against proposed legal aid cuts gains public’ (Law Society Gazette, 10 February 2011) <http://www.lawgazette.co.uk/features/the-campaign-against-proposed-legal-aid-cuts-gains-public-support> accessed 20 February 2011.

16 See Roger Smith, ‘Legal aid: models of organization’ (JUSTICE 2002) 10.

17 Matthias Kilian, ‘Zugang zum Recht – Wege zur Gerechtigkeit. Entwicklungslinien und Erkenntnisgrundlagen’ (2008) 4 Österreichisches Anwaltsblatt 156.

18 Alan Paterson, ‘Financing Legal Services: A Comparative Perspective’ in Carey Miller and Paul R. Beaumont (eds), The Option of Litigating in Europe (UKNCCL 1993) 150.

19 ‘To none will we sell, to none deny or delay, right or justice’, see Magna Carta 1215 s 40.

20 Tamara Goriely, ‘Gratuitous assistance to the “ill-dressed”: debating civil legal aid in England and Wales from 1914 to 1939’ (2006) 13: 1 International Journal of the Legal Profession, 42-43.

21 Steve Hynes and Jon Robins, Legal Aid at 60 – bridging the Justice Gap (LAG 2009) 1-2.

22 Hynes and Robins (n 21) 8.

23 Howard Levenson, ‘Legal Aid for Mitigation’ (1977) 40: 5 MLR 523.

24 Hynes and Robins (n 21) 8.

25 Marie-Thérèse Groarke, ‘Means Testing in Crown Court Trials’ (2010) Criminal Law and Justice Weekly <http://www.criminallawandjustice.co.uk/index.php?/Analysis/means-testing-in-crown-court-trials.html> accessed 15 January 2011.

26 Department for Constitutional Affairs, A Fairer Deal for Legal Aid (Cm. 6591, 2005) para 53.

27 Hynes and Robins (n 21) 9.

28 Erhard Blankenburg, ‘The Lawyers’ Lobby and the Welfare State: The Political Economy of Legal Aid’ in Francis Regan et al.(eds.), The Transformation of Legal Aid: Comparative and Historical Studies (OUP 1999) 114.

29 This has to be seen in the context of social legislation passed by the liberal government between 1906 and 1914, for example health insurance, unemployment benefit and pensions. See Richard I. Morgan, ‘The Introduction of Civil Legal Aid in England and Wales, 1914-1949’ (1994) 5: 1 Twentieth Century British History 38, 40.

30 Paterson (n 18) 151.

31 Hynes and Robins (n 21) 9.

32 Supreme Court of Judicature, ‘Records of the Poor Persons Department 1913-1926, <http://www.nationalarchives.gov.uk/catalogue/displaycataloguedetails.asp?CATLN=3&CATID=8453> accessed 21 January 2011.

33 Goriely, ‘Gratuitous assistance to the “ill-dressed”’ (n 20) 46.

34 Divorce cases where both parties were members of the armed forces were eligible for legal aid under this scheme. See ibid.

35 In 1945 there were over 1,000 CABx. See Citizen Advice, ‘CAB History’ <http://www.citizensadvice.org.uk/index/aboutus/factsheets/ourhistory.htm> accessed 18 January 2011.

36 One of the reasons that voluntary advice services have grown in the UK (as opposed to Germany) is that the provision of legal advice to the public is not restricted to lawyers (apart from advice on immigration law). See Hynes and Robins (n 21) 23.

37 Morgan, ‘The Introduction of Civil Legal Aid in England and Wales’ (n 29) 61.

38 Beveridge, Sir William, Social Insurance and Allied Services (Cmd. 64041 1942).

39 John Flood, (n 13) number missing.

40 Hynes and Robbins (n 21) 20.

41 See Rushcliffe Committee, Report of the Committee on Legal Aid and Legal Advice in England and Wales (CMD 6641, 1945) in Hynes and Robbins (n 21) 20.

42 Levenson (n 23) 524.

43 “The maximum income figure for entitlement was set at £420 p.a. so as to include the overwhelming mass of skilled and nearly all unskilled workers as well as substantial sections of the lower middle class.“ See Morgan, ‘The Introduction of Civil Legal Aid in England and Wales’ (n 29) 67.

44 Tamara Goriely, ‘Making the Welfare State Work: Changing Conceptions of Legal Remedies Within the British Welfare State’ in Francis Regan et al.(eds.), The Transformation of Legal Aid: Comparative and Historical Studies (OUP 1999) 93.

45 Legal Services Commission, ‘Legal Aid through the Decades’ (2009) 60 Focus Magazine <http://www.legalservices.gov.uk/docs/news/Focus_60_June_09.pdf> accessed 21 January 2011.

46 Morgan, ‘The Introduction of Civil Legal Aid in England and Wales’ (n 29) 74.

47 In 1969, 86 per cent of civil legal aid services in Birmingham were divorce-related. See Lee Bridges, ‘Legal Services in Birmingham’ (University of Birmingham, Institute of Judicial Administration 1975).

48 Hynes and Robins (n 21) 2.

49 As a part of President Johnson’s ‘war against poverty’, these new institutions set up by salaried lawyers were considered a viable alternative to the current services provided by the state. See Peter Edelman, ‘The War on Poverty and Subsequent Federal Programs: What Worked, What Didn’t Work, and Why? Lessons for Future Programs’ (2006) 3 Georgetown Journal of Poverty Law and Policy.

50 Hynes and Robins (n 21) 22-26.

51 Goriely, ‘Making the Welfare State Work’ (n 44) 101. As of 2009, there were 50 law centres compared to 394 CABx in England. See: Hynes and Robins (n 21) 26.

52 Hynes and Robins (n 21) 27.

53 “The number of ‘Green Form’ bills for advice on housing, welfare benefits, debt, employment and immigration rose from around 63,000 bills in 1980/81 to 220,000 bills in 1990/91“ Goriely, ‘Making the Welfare State Work’ (n 44) 103. By 1986 the budget had induced a 50 per cent increase in costs over the past two years only. See Hynes and Robins (n 21) 27.

54 Phil Harris, An Introduction to Law (7th edn, CUP 2007) 437.

55 Hynes and Robins (n 21) 31.

56 Gary Slapper and David Kelly The English Legal System (9th edn, Routledge-Cavendish 2009) 565.

57 Harris (n 54) 438.

58 Slapper and Kelly (n 56) 572.

59 The provision of gratuitous assistance to the impecunious in need of legal help was regarded as a professional and honourable duty of lawyers. See Nicolo Trocker, ‘Gutachten B’ (DJT 51 1976) B7-B13.

60 For example, the 1817 code of procedure for the Hessian Rhine Province included the right for poor people to have access to proceedings under a poor man’s law if they did not have sufficient means to pay for legal expenses. See ibid.

61 Trocker (n 59) B8-9.

62 Matthias Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (International Legal Aid Group Conference, Melbourne, 2001) <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Melbourne_2001/National_Reports/Legal_Aid_and_Access_to_Justice_in_Germany.pdf> accessed 1 February 2011.

63 Blankenburg (n 28) 114.

64 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

65 Blankenburg (n 28) 116.

66 For example the illness insurance law 1883, the accident insurance law 1884 as well as insurance for handicapped and retired people. See Henry E. Sigerist, ‘From Bismarck to Beveridge: Developments and Trends in Social Security Legislation’ (1999) 20:4 Journal of Public Health Policy, 474.

67 Blankenburg (n 28) 116.

68 ibid.

69 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

70 Up until today, in cases other than criminal German lawyers are mostly remunerated according to fee scales set by statute and based on the value of the claim. Usually only reduced fees are available for legal aid work which have been specified in a separate scale since 1925. See Trocker (n 59) B21.

71 ibid. B17-B18. Today, the LEI market is a major factor in financing legal proceedings and thus one of the mainstays of access to justice in Germany. See ch. 4.1.2.

72 § 140 RStPO 1877.

73 Michael Bohlander, ‘Legal advice in criminal proceedings in the Federal Republic of Germany’ (1992) 3 Criminal Law Forum 401.

74 Norman Inoue, Die Pflichtverteidigung im Ermittlungsverfahren (Kovač 2004) 25.

75 Marius Hahn, Die Verdachtskündigung unter Berücksichtigung einer gesetzlichen Regelung (Kovač 2004) 62.

76 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

77 Blankenburg (n 28) 118.

78 A contemporary report on civil legal aid in Germany sums up: “The most noticeable innovations of the Nazi regime have been: (a) the exclusion of the Jews; (b) the thoroughgoing organization of the work; (c) making lawyers serve without pay; (d) self advertisement” See Robert E. Stone, ‘Certain European Legal Aid Offices’ (1936) 25:1 California Law Review 52.

79 Hahn (n 75) 63.

80 Benedikt Kortz, Die Notwendigkeit der Verteidigung im Strafverfahren (Kovač 2009) 28-29.

81 BGB1 I, 455.

82 Art. 20 § 1 GG; Art. 3 § 1 GG; BVerfG, BVerfGE 9, 256, 258, 14 April 1959; BVerfG, BVerfGE 35, 348, 355, 3 July 1973.

83 Inoue (n 74) 28.

84 For example under the Strafprozessänderungsgesetz, see BGBl I 1964, 1067.

85 Erstes Gesetz zur Ergänzung des Strafverfahrensreformgesetzes, see BGBl I 1974, 3686.

86 Opferschutzgesetz 1986, see BGBl I, 2496.

87 In 2008 the Rechtsdienstleistungsgesetz replaced the Rechtsberatungsgesetz which brought about changes to the provision of out-of-court legal advice services by non-lawyers. See ch. 3.2.

88 See § 6 Rechtsdienstleistungsgesetz (RDG).

89 § 4a. Rechtsanwaltsvergütungsgesetz (RVG). See ch. 4.1.2

90 „The Deutsche Juristentag is the traditional annual legal conference of German academics and legal professionals which has a considerable influence on policy issues in Germany“ Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

91 Literally, Legal Advice Act. See Gesetz über die Rechtsberatung und Vertretung für Bürger mit geringem Einkommen (BGBl I 1980, 689).

92 The rules governing legal aid for court proceedings. See BGBI I 1980, 677.

93 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

94 Matthias Kilian, ‘Improving access to justice in Germany through the use of new providers – The 2005 white paper of a law on the provision of legal services (Rechtsdienstleistungsgesetz – RDG-E)’ (ILAG Conference, Killarney, 2005) <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Killarney_2005/Conference_Papers/Matthias_Kilian_-_Improving_access_to_justice_in_Germany_through_the_use_of_new_providers.pdf> accessed 15 February 2011. However, since the enactment of the Rechtsdienstleistungsgesetz in July 2008, the scope of people entitled to provide some form of legal advice services not relating to proceedings has been widened. See ch. 3.2.

95 Matthias Kilian, ‘German Legal Aid by the Scruff of its neck – or just in a bad quarter of an hour?’ (ILAG Conference, Killarney, 2005) <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Killarney_2005/National_Report/4.6_Germany-Kilian.pdf> accessed 15 February 2011.

96 Council of Europe, ‘European Convention on Human Rights’ (Council of Europe Treaty Series No. 5, 2010) < http://book.coe.int/sysmodules/RBS_fichier/admin/download.php?fileid=3502> accessed 6 November 2011.

97 BGBI 2009 I ,2274. See also ch. 4.1.2.

98 Access to Justice Act 1999 (AJA 1999).

99 For example, Community Legal Service (Financial) Regulations 2000; Community Legal Service Funding Order 2007; The Funding Code.

100 AJA 1999,s 3.

101 The Funding Code, s 1(1). See also Slapper and Kelly (n 55) 569-570.

102 Slapper and Kelly (n 56) 572.

103 See AJA 1999 sch 2.

104 Supreme Court, Court of Appeal and High Court; County court; Employment Appeal Tribunal; Mental Health Review Tribunal; Asylum and Immigration Tribunal; before an Immigration Adjudicator and in certain specified proceedings in the Crown Court or magistrates’ court.

105 AJA 1999, s 8.

106 Slapper and Kelly (n 56) 576 See also The Funding Code , s5.

107 Civil Procedure Rules (CPR) 27.1.

108 Matthias Kilian, ‘To pay or not to pay – is that the question? The impact of funding on the perception of legal services’ (ILAG Conference, Wellington, 2009) 5 <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Wellington_2009/Conference_Papers/To_pay_or_not_to_pay_-_is_that_the_question_MK.pdf> accessed 20 February 2011.

109 The Funding Code, ss 6—13.

110 ibid. s 2(3).

111 ibid. s 5(7)(2).

112 ibid. s 5(7)(3).

113 ibid. s 11.

114 The Community Legal Service (Financial) Regulations 2000 as amended, SI 2000/516.

115 ibid. reg 3.

116 Slapper and Kelly (n 56) 573.

117 As of 2010, the gross monthly income cap was at £2,657 and the capital limit was at £8,000. See LSC, ‘A Step-By-Step Guide to Legal Aid’ (2010) 5 <http://www.legalservices.gov.uk/LSC_StepByStep_leaflet_2010.pdf> accessed 20 February 2011.

118 This applies to the following services: Legal Help; Help at Court, Legal Representation in immigration and asylum matters; Family Help (Lower) and Family Mediation. See CLS Financial Regulations 2000 (n 113) reg 38.

119 For Legal Representation and Family Help (Higher) clients with disposable capital over £3,000 must pay a lump sum while clients with disposable income above £315 have to pay a monthly contribution. See

120 CLS Financial Regulations 2000 (n 113) regs 42-53.

121 ibid. reg 4.

122 See AJA 1999, ss 13(2) and 14(2).

123 Michael Breyer, Kostenorientierte Steuerung des Zivilprozesses ( Mohr Siebeck 2006) 199.

124 AJA 1999, s 12(2).

125 ibid. 13(1).

126 Slapper and Kelly (n 56) 582. See AJA 1999 ss 13 and 14.

127 The Public Defender Service (PDS) is a pilot project of the LSC and constitutes the first salaried criminal lawyer service in England. Section 13(2)(f) of the AJA 1999 governs the respective powers of the LSC to run this scheme. Currently there are four PDS offices in England & Wales all staffed with solicitors who are available 24 hours every day.

128 Further details are outlined in Part B of the General Criminal Contract 2008.

129 The Criminal Defence Service (General) (No. 2) Regulations 2001, SI 2001/1437.

130 ibid. reg 5.

131 The Criminal Defence Service Act 2006 s 5(5).

132 AJA 1999, s 14.

133 “In deciding what the interests of justice consist of in relation to any individual, the
following factors must be taken into account—
(a) whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation,
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c) whether the individual may be unable to understand the proceedings or to state his own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
(e) whether it is in the interests of another person that the individual be represented”. See AJA 1999 sch 3 s 5.

134 Ibid. ss 1 and 2

135 Ministry of Justice (MOJ) ‘Post Implementation Review: Means testing in the magistrates’ court’ (2007) 5-6 < http://www.legalservices.gov.uk/docs/cds_main/PIR_151007.pdf> accessed 1 March 2011.

136 See The Criminal Defence Service (Contribution Orders) Regulations, SI 2009/3328.

137 See ibid. reg 9. “Defendants who […] have a household annual disposable income of more than £3,398 will have to pay up to six, monthly contributions equal to 90 per cent of their disposable income while the case is under way. Defendants receive their money back with two per cent interest if found not guilty. However, if convicted with outstanding defence costs and they have more than £30,000 of capital assets (namely savings, equity in property, shares or premium bonds), defendants will face further payment for the remaining defence costs. This includes all fees to litigators, advocates and expert witnesses. Total contributions are subject to a cap based upon the class of offence and the defendant’s level of income but could be as much as £185,806.” Marie-Therese Groarke, (n 25).

138 See Article 6 ECHR. The specific provision on legal aid can be found in Article 6(3)(c) ECHR. Council of Europe, ‘European Convention on Human Rights’ (n 96).

139 This includes the right to a fair hearing , the right to a public hearing , the right to a hearing before an independent and impartial tribunal, and the right to a hearing within a reasonable time. Furthermore it gives the right to everyone charged with a criminal offence “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require” See Human Rights Act 1998, s 6.

140 “The overriding purpose of the new means test is to identify if a defendant can genuinely afford to pay defence costs, and to grant legal aid only to those who cannot. This is achieved by weighting a defendant’s gross annual income to reflect their family and household circumstances.” See MOJ ‘Post Implementation Review: Means testing in the magistrates’ n(135) 6.

141 P, C and S v UK [2002] 32 EHRR 3

142 For example, standard fees apply to actions against the police, clinical negligence, community care, consumer, debt, education, employment, housing, personal injury, public law, welfare benefits. See http://www.legalservices.gov.uk/docs/civil_contracting/Standard_Fixed_Fees.pdf

143 For example Police Station Fixed Fees. See http://www.legalservices.gov.uk/docs/criminal_contracting/PaymentAnnexfinal.pdf

144 Payment rates are included in annexes to the Unified Contract (Civil) as well as the General Criminal Contract. See LSC ‘Unified Contract Part B: Payment Annex 2008’ <http://www.legalservices.gov.uk/docs/forms/080701PaymentAnnex2008.pdf> accessed 25 February 2011; and LSC ‘General Criminal Contract 2008 Revised Annex’ <http://www.legalservices.gov.uk/docs/criminal_contracting/RevisedAnnextotheGCC(Jan08)Specification_(176kb).pdf> accessed 25 February 2011.

145 See AJA 1999, ss 27-31; CPR 43-48; Access to Justice (Membership Organisation) Regulations 2005, SI 2005/2306.

146 AJA 1999, s 29.

147 In criminal cases only legal advice is available for out-of-court legal aid. See §2(2) BerHG.

148 Howard D. Fisher, The German Legal System and Legal Language (4th ed. Routledge-Cavendish 2009) 305-308.

149 The Zivilprozessordnung (ZPO) and the Strafprozessordnung (StPO) for the civil and the criminal branch of the courts of general jurisdiction; the Verwaltungsgerichtsordnung (VwGO) for administrative courts; the Arbeitsgerichtsgesetz (ArbGG) for the labour courts; the Sozialgerichtsgesetz (SGG) for the social security courts and the Finanzgerichtsordnung (FGO) for the tax courts.

150 § 166 VwGO; § 11a III ArbGG; § 73a SGG; § 142 I FGO.

151 Armin Schoreit and Ingo Michael Groß, Beratungshilfe, Prozesskostenhilfe – BerH / PKH Kommentar (9th edn. C.F. Müller 2009) 286.

152 C.M.C. van Zeeland and J.M. Barendrecht, Legal Aid Systems Compared (Tilburg University 2003) 2.

153 The advice given out by these institutions is usually considered to be of general nature but can, with regard to their respective remit, involve some form of legal advice. A classic example would be trade unions providing advice on labour law issues. See Schoreit and Groß (n 151) 42 and 79-89.

154 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

155 See Schoreit and Groß (n 151) 284.

156 §§ 114 and 116 ZPO.

157 § 114 ZPO.

158 For example taxes, social security contributions, housing costs etc. For further details, §115 (1 ) ZPO refers to §§28 and 82 of the German Social Security Code (Sozialgesetzbuch) as well as § 1610a of the German Civil Code (Bürgerliches Gesetzbuch).

159 §115 (2) ZPO.

160 „The rationale of this exemption is that the costs for administration are much higher than the likely benefit for the indigent. Consequently, an exclusion of very small claims (which under the German cost regime result in low litigation costs) from legal aid is justified.” See Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

161 § 140 ZPO; § 1 BerHG.

162 In order to determine whether an action was brought frivolously the courts consider if the reasonable person ineligible for legal aid would have pursued the respective action in a similar fashion. See Josef Dörndorfer, ‘Prozesskosten- und Beratungshilfe für Anfänger’ (5th ed. München C.H. Beck 2009) 5.

163 Breyer (n 123) 196.

164 §91 ZPO

165 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

166 §124 ZPO.

167 Services available cover matters of civil law (excluding labour law), administrative law constitutional law and social law. For criminal law cases only legal advice is funded. See § 2 (2) BerHG.

168 ibid. § 3 (2).

169 ibid. § 1 (2).

170 Schoreit and Groß (n 151) 40.

171 § 1 (3) BerHG.

172 § 12 BerHG

173 § 2 (2) BerHG

174 Bohlander (n 73) 407.

175 For the relevant provisions see §§ 140 – 145a, 364a and 364b StPO.

176 Bohlander (n 73) 409-410. See § 140 StPO.

177 § 140 (2) StPO.

178 § 142 StPO.

179 X v Federal Republic of Germany, App. No. 9365/81, 28 Eur. Comm’n H.R. Dec & Rep. 229 (1982).

180 For the domestic law in Germany see BGBl II 2010, 1198.

181 Bohlander (n 73) 412.

182 §§ 464-473 StPO.

183 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

184 Concerning legal aid, the relevant provisions are § 44 for Beratungshilfe and § 45 for Prozesskostenhilfe as well as Notwendige Verteidigung.

185 Since 2008 even conditional fees are permitted if it can be shown that a potential client would otherwise be prevented from exercising his rights because of his economic situation. See § 4a RVG.

186 § 49b (1) Bundesrechtsanwaltsordnung (BRAO).

187 For an overview see Bundesrechtsanwaltskammer (BRAK), ‘Grundlagen Anwaltsgebühren’ <http://www.brak.de/seiten/pdf/RVG/GrundlagenAnwGeb.kurz.pdf> accessed 22 February 2011.

188 No. 2501 VV RVG.

189 § 8 BerHG.

190 § 49 RVG.

191 See pt. 4 VV RVG.

192 § 51 RVG.

193 BVerfG, 1 BvR 2576/04 vom 12.12.2006, Absatz-Nr. (1 – 115), http://www.bverfg.de/entscheidungen/rs20061212_1bvr257604.html

194 Carolyn Regan, ‘National Report: England and Wales’ (International Legal Aid Group Conference 2009 Wellington, NZ) 10 <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Wellington_2009/National_Reports/England_-_CR_.pdf> accessed 20 February 2011.

195 John Flood and Avis Whyte, ‘What’s wrong with legal aid? Lessons from outside the UK’ (2006) 25 Civil Justice Quarterly 86.

196 LSC, ‘Annual Report and Accounts 2009/10’ (2010) 74 <http://www.legalservices.gov.uk/docs/about_us_main/LSC_AnnualReport_2009-10(final_web).pdf> accessed 1 March 2011.

197 See ch. 4.1.2 for the problematic issue of obtaining data on legal aid in Germany.

198 LSC ‘Annual Report 2009/2010’ (n 196) 6.

199 John Flood, (n 13).

200 Steve Hynes, ‘Legal Aid in the Recession’ (Legal Action Group 2009) 7 <http://www.lag.org.uk/files/92916/FileName/AprilLA_06_07.pdf> accessed 17 February 2011.

201 See Clare Dyer, ‘Legal aid ‘crisis’ as poor pay deters trainees’ The Guardian (London, 22 March 2004) <http://www.guardian.co.uk/uk/2004/mar/22/ukcrime.prisonsandprobation> and Hugh Levinson, ‘Legal aid crisis “in some areas”’(BBC News, 24 November 2005) <http://news.bbc.co.uk/2/hi/uk_news/4468440.stm> accessed 3 March 2011.

202 LSC ‘Annual Report 2009/2010’ (n 196) 6-7.

203 LSC, ‘Understanding publicly funded Family Mediation’ (2009) 3. <http://www.legalservices.gov.uk/docs/fains_and_mediation/MediationbriefingforjudicaryJun09.pdf > accessed 28 February 2011.

204 Roger Bowles and Amanda Perry, ‘International Comparison of publicly funded legal services and justice systems’ (Ministry of Justice Research Series 14/09, 2009) 30.

205 Hynes and Robins (n 21) 147.

206 Bowles and Perry (n 203) 10.

207 LSC ‘Annual Report 2009/2010’ (n 196) 7.

208 Slapper and Kelly (n 56) 586. See also Citizen Advice, ‘About Us’ (2011) <http://www.citizensadvice.org.uk/index/aboutus.htm > accessed 5 March 2011.

209 Citizen Advice, ‘Need for civil legal aid has soared during the recession’ (Press Release 10 July 2009) <http://www.citizensadvice.org.uk/press_20090710?utm_medium=RSS-pressoffice> accessed 5 March 2011.

210 See Peter Walker, ‘Recession hit firms ‘use dodges to shed staff without redundancy pay’ The Guardian, (London 16 February 2009) <http://www.guardian.co.uk/money/2009/feb/16/recession-unemployment-redundancy-pay> accessed 05 March 2011.

211 LSC, ‘Annual Report and Accounts 2008/2009’(2009) 8-9 <http://www.legalservices.gov.uk/docs/archive/LSC_AnnualReport_2008-09.pdf> last accessed 6 March 2011.

212 See ch. 4.3.1

213 Flood and Whyte (n 195) 95.

214 Hynes and Robins (n 21) 147.

215 LSC, ‘Annual Report 2008/2009’ (n 210) 5.

216 LSC, ‘Annual Report 2009/2010’ (n 196) 9-10.

217 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 51.

218 Statistisches Bundesamt, ‘Fachserie 10, Reihe 2.1, 2009’ (2010) <http://www.destatis.de/jetspeed/portal/cms/Sites/destatis/Internet/DE/Content/Publikationen/Fachveroeffentlichungen/Rechtspflege/GerichtePersonal/Zivilgerichte2100210097004,property=file.pdf> accessed 20 October 2011.

219 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 50.

220 The main reasons for this being that, according to the study, the number is restricted to cases at the courts of general jurisdiction and explicitly excludes criminal legal aid and out-of-court advice and assistance.

221 Van Zeeland and Barendrecht (n 152) 21.

222 Bremen and Hamburg are not included here as the two states run public advice institutions for which expenditure is different and thus not directly comparable to the other Länder.

223 Bundesamt für Justiz, ‘Beratungshilfestatistik 1981 bis 2010’ (2011) 1 <http://www.bundesjustizamt.de/DE/Themen/Buergerdienste/Justizstatistik/Beratungshilfe/Beratungshilfestatistik,templateId=raw,property=publicationFile.pdf/Beratungshilfestatistik.pdf > accessed 4 October 2011.

224 CEPEJ, ‘European Judicial Systems 2002’ (Council of Europe 2004) 24 <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1150243&SecMode=1&DocId=1009444&Usage=2> accessed 1 March 2011. CEPEJ, ‘European Judicial Systems 2008’ (n 3).

225 Van Zeeland and Barendrecht (n 152) 33.

226 Gerhard Dannemann, ‘Access to Justice: an Anglo-German Comparison’ (1996) 2 European Public Law 276 <http://www.iuscomp.org/gla/literature/access.htm> accessed 5 December 2011

227 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62.

228 “Underprivileged clients often are reluctant to consult a lawyer. Experience shows that they are much more at ease when they contact a familiar organisation already well-known to them or others” Kilian, ‘Improving Access to Justice’ (n 94) 8-9. This corresponds with the exemplary observation of rising client numbers in Berlin’s debt advice centres (Schuldnerberatungsstelle) See Schuldnerberatung Berlin, ‘Armut und Überschuldung’ (2008) <http://www.schuldnerberatung-berlin.de/presse08.pdf> accessed 1 March 2011.

229 Kilian, ‘To pay or not to pay’ (n 108) 6.

230 Kilian ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

231 Matthias Kilian and Francis Regan, ‘Legal expenses insurance and legal aid – two sides of the same coin? The experience from Germany and Sweden’ (2004) 11 International Journal of the Legal Profession 238-241.

232 See Kilian ‘Civil Legal Aid and Access to Justice in Germany’ (n 62); Bowles and Perry (n 203).

233 CEPEJ, ‘European judicial systems Edition 2010 (data 2008): Efficiency and quality of justice’ 7 (Council of Europe 2010) <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694098&SecMode=1&DocId=1653000&Usage=2> accessed 3 March 2011.

234 LSC ´Annual Report 2009/2010‘ (n 195) 5; John Flood (n 13).

235 Justice For All, ‘Legal Aid Reform – Justice For All Briefing’ (2010) <http://www.justice-for-all.org.uk/dyn/1291996252143/j4a_Legal-Aid-reform.pdf> accessed 10 February 2011.

236 Bowles and Perry (n 202); Richard Moorhead, ‘Legal Aid – System Failure or Broken Law?’ (2010) 3 New Law Journal <http://www.newlawjournal.co.uk/nlj/content/system-failure-or-broken-law> accessed 20 February 2011.

237 Bowles and Perry (n 203) 32.

238 CEPEJ, ‘European Judicial Systems2008’ (n 3) 51.

239 LSC, ‘Annual Report 2009/2010’ (n 196) 5.

240 Moorhead (n 235); Bowles and Perry (n 203) 23, 34.

241 Bowles and Perry (n 203) 36.

242 John Flood, (n 13).

243 Bowles and Perry (n 203) 30.

244 Matthias Kilian, ‘German legal aid by the scruff of its neck – or just in a bad quarter of an hour? – The development of German legal aid since the turn of the century’ (ILAG Conference , Killarney, 2005) 3 <http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Killarney_2005/National_Report/4.6_Germany-Kilian.pdf> accessed 15 February 2011.

245 Van Zeeland and Barendrecht (n 152) 29.

246 ibid.

247 Kilian, ‘German legal aid by the scruff of its neck’ (n 243) 6.

248 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 20.

249 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

250 Kilian, ‘German legal aid by the scruff of its neck’ (n 243) 6.

251 CEPEJ, ‘European Judicial Systems: Edition 2006 (2004 data)’ (Council of Europe 2006) 46 <http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2006/CEPEJ_2006_eng.pdf> accessed 10 March 2011; CEPEJ, ‘European Judicial Systems 2008’ (n 3) 50.

252 Bundesamt für Justiz (n 222) 1.

253 Kilian, ‘Civil Legal Aid and Access to Justice in Germany’ (n 62).

254 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 21. The average GBP to EUR exchange rate of 2006 was approximately 1.47€ compared to 1.12€ in 2009 which explains the differences in denomination between the respective years.

255 Bowles and Perry (n 203) 23, 54.

256 Kilian and Regan (n 230) 238; Statista, ‘Daten & Fakten zur Rechtsschutzversicherung’ (2010) <http://de.statista.com/statistik/faktenbuch/4/a/versicherungen/rechtsschutzversicherung/> accessed 15 March 2011.

257 Based on the number of 153,251 registered lawyers in 2009. See BRAK, ‘Entwicklung der Zahl zugelassener Rechtsanwälte von 1950 bis 2010’ (2010) <http://www.brak.de/seiten/pdf/Statistiken/2010/EntwicklungRAe.pdf> accessed 15 March 2011.

258 Christoph Hommerich , Matthias Kilian and René Dreske (eds.), Statistisches Jahrbuch der Anwaltschaft 2007 / 2008 (Deutscher Anwaltverlag Gm 2007) 144-146.

259 Kilian, ‘German legal aid by the scruff of its neck’ (n 243) 2.

260 Bowles and Perry (n 203) 36.

261 CEPEJ, ‘European Judicial Systems 2008’ (n 3) 20-21.

262 Rachel Rothwell, ‘Neuberger warns against mediation and defends legal aid and Jackson’ (Law Society Gazette online, 4 March 2011) <http://www.lawgazette.co.uk/news/neuberger-warns-against-mediation-and-defends-legal-aid-and-jackson> accessed 10 March 2011.

263 Clive Coleman, ‘Legal aid reforms are unveiled by Kenneth Clarke’(BBC News, 15 November 2010) <http://www.bbc.co.uk/news/uk-11741289> accessed 25 February 2011.

264 MoJ, Proposals for the Reform of Legal Aid in England and Wales (CP No 12, 2010) 5 <http://www.justice.gov.uk/consultations/docs/legal-aid-reform-consultation.pdf> accessed 25 February 2011.

265 James Dean, ‘Civil legal aid facing ‘devastation’ after £154m cut’ (Law Society Gazette online, 18 November 2010) <http://www.lawgazette.co.uk/news/civil-legal-aid-facing-devastation-after-154m-cut> accessed 25 February 2011.

266 Legal Week, ‘MoJ details legal aid cuts and plans for Jackson reforms: market reaction‘ (Legal Week online,15 November 2010) <http://www.legalweek.com/legal-week/news/1898071/moj-details-legal-aid-cuts-jackson-reforms-win-ministerial-backing> accessed 26 February 2011.

267 Polly Curtis, ‘Legal aid cuts will hit women the hardest, says justice department’ (The Guardian online, 26 December 2010) <http://www.guardian.co.uk/law/2010/dec/26/legal-aid-cuts-hit-women-justice> accessed 26 February 2011.

268 Dean (n 264).

269 See LSC, ‘Annual Report 2008/2009’ (n 210) 9.

270 BBC News, ‘Economy tracker’ (25 February 2011) <http://www.bbc.co.uk/news/10613201> accessed 2 March 2011.

271 Afua Hirsch, ‘Legal aid cuts would remove free advice for thousands of people’ (The Guardian online, 15 November 2010) <http://www.guardian.co.uk/law/2010/nov/15/legal-aid-cuts-free-advice> accessed 2 March 2011.

272 Coleman (n 262).

273 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report (Norwich: TSO Blackwell 2010) <http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/jackson-final-report-140110.pdf> accessed 2 March 2011.

274 Judiciary of England and Wales, ‘Jackson Review calls for a package of reforms to rein in the costs of civil justice’ (Judicial Communications Office news release 14 January 2010) <http://www.judiciary.gov.uk/media/media-releases/2010/media-release0210 > accessed 2 March 2011.

275 Legal Week (n 265).

276 Lord Justice Jackson (n 272)77.

277 Legal Action Group, ‘Legal aid cuts: misleading statistics from the MoJ’ (The Guardian online, 18 March 2011) < http://www.guardian.co.uk/law/2011/mar/18/legal-aid-cuts-impact-moj> accessed 19 March 2011.

278 Ministry of Justice, ‘Reforming Civil Litigation Funding and Costs in England and Wales – Implementation of Lord Justice Jackson’s Recommendations. The Government Response’ (2011) 20 <http://www.justice.gov.uk/downloads/consultations/jackson-report-government-response.pdf> accessed 8 December 2011.

279 Ibid. 17

280 Ibid. 15

281 Ibid. 3

282 Deutscher Bundesrat, ‘Entwurf eines Gesetzes zur Begrenzung der Aufwendungen für die Prozesskostenhilfe (Prozesskostenhilfebegrenzungsgesetz – PKHBegrenzG)’ Drucksache 17/1216 2010 <http://dipbt.bundestag.de/dip21/btd/16/019/1601994.pdf> accessed 16 March 2011.

283 ibid. 1, 18-19.

284 ibid. 15.

285 See ch. 3.1.

286 Jens Gnisa, ‘Stellungnahme des Deutschen Richterbundes zum Entwurf eines Gesetzes zur Begrenzung der Aufwendungen für die Prozesskostenhilfe (Prozesskostenhilfebegrenzungsgesetz – PKHBegrenzG ) – BT-Drs. 17/1216 ‘ (Deutscher Richterbund 2010) <http://www.drb.de/cms/index.php?id=645> accessed 12 March 2011.

287 Deutscher Budesrat, ‘Entwurf eines Gesetzes zur Begrenzung der Aufwendungen für die Prozesskostenhilfe (Prozesskostenhilfebegrenzungsgesetz – PKHBegrenzG)’ Drucksache 17/1216 Stellungnahme der Bundesregierung <http://dip21.bundestag.de/dip21/btd/17/012/1701216.pdf> accessed 12 March 2011.

288 ibid.

289 This assumption was based on BerH data from the period between 2000 and 2007 whereas only ten Länder provided expenditure information for 2007. See Deutscher Bundesrat, ‘Entwurf eines Gesetzes zur Änderung des Beratungshilferechts’ Drucksache 648/08 9-10 <http://www.bundesrat.de/cln_099/SharedDocs/Drucksachen/2008/0601-700/648-08,templateId=raw,property=publicationFile.pdf/648-08.pdf> accessed 13 March 2011.

290 ibid.

291 Van Zeeland and Barendrecht (n 152) 21.

292Citizen Advice Bureau, ‘Alternative dispute resolution (ADR)’ (Fact Sheet April 2010) <http://www.adviceguide.org.uk/index/c_alternative_dispute_resolution.pdf> accessed 13 March 2011.

293 MoJ, ‘Family mediation – an alternative to courts’ (2011) <http://www.justice.gov.uk/news/announcement040111a.htm> > accessed 13 March 2011..

294 Katie O’Callaghan, ‘Divorce: Mediation should help married couples split up’ (BBC News Business, 2 March 2011) <http://www.bbc.co.uk/news/business-12596460> accessed 14 March 2011.

295 Neil Rose, ‘Jaw-jaw not war-war: why more may try to settle disputes outside court’ (The Guardian online , 11 January 2011) <http://www.guardian.co.uk/law/2011/jan/11/alternative-dispute-resolution-new-potential> accessed 14 March 2011.

296 Rothwell (n 261).

297 Schoreit and Groß (n 151) 55. For a judgement on the refusal of PKH for out-of-court mediation see Oberlandesgericht Dresden, 20. Zivilsenat – Familiensenat – Beschl. v. 09.10.2006, 20 WF 739/06 <http://www.justiz.sachsen.de/elvis/documents/20WF739.06.pdf> accessed 14 March 2011.

298 See Grit Andersch, ‘Häufig gestellte Fragen von Usern’ (Rechtsanwaltsgebühren.de ) <http://www.rechtsanwaltsgebuehren.de/Infos/Lesermeinung.html#Medi> accessed 14 March 2011.

299 Henry Bellingham, ‘Worth fighting for‘ in: Closing the Justice Gap – new thinking on an old problem’ (2010) Solicitors Journal 11.

300 Hynes and Robins (n 21) 103.

301 Jon Robins, ‘Legal insurance: will Britain buy it?’ (The Guardian online, 28 May 2010) <http://www.guardian.co.uk/law/2010/may/28/legal-insurance-uk-germany> accessed 10 March 2011.

302 Ministry of Justice, ‘The Market for ‘BTE’ legal expenses insurance’, July 2007.

303 YouGov Survey in Jon Robins, ‘Shopping around: What consumers want from the new legal services market’ (2010) 16< http://www.jures.co.uk/whitepapers/5Poe5DkN_jures-final-wholereportforsite.pdf > accessed 10 March 2011.

304 Jon Robins (n 301).

305 Christoph Hommerich, ‘Ein Jahr Erfolgshonorare – Empirische Ergebnisse zu einer erzwungenen Reform’ (AnwBl 7 / 2009) 541-543.

306 Matthias Kilian, ‘Zugang zum Recht’ (n 17).

307 The Judge, ‘Conditional fee agreements after Jackson: consultation and next steps’ (2010) <http://www.thejudge.co.uk/index.php/press/article/conditional-fee-agreements-after-jackson-consultation-and-next-steps> accessed 14 March 2011.

308 Slapper and Kelly (n 56) 591.

309 Ibid. 592

310 Richard Moorhead, Paul Fenn and Neil Rickman, ‘Scoping project on no win no fee agreements in England and Wales’ (Ministry of Justice Research Series 2009) 12 <http://www.justice.gov.uk/research-report-no-win-no-fee.pdf> accessed 14 March 2011.

311 Hommerich (n 305) 543.

© 2011 Tobias Schrank. This HTML edition © 2011 University of Oxford.
The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

Oxford University Comparative Law Forum

Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany

Tobias Schrank^*

Table of contents

1. Introduction

2. Historical Background

2.1 England

2.2 Germany

3. Legal Aid Legislation

3.1 England

3.2 Germany

4. Legal Aid in Practice

4.1 Legal Aid in Practice: Delivery

4.1.1 England

4.1.2 Germany

4.2. Legal Aid in Practice: Expenditure

4.2.1 England

4.2.2 Germany

4.3 Recent Government Proposals

4.3.1 England

4.3.2 Germany

5. ‘The Way Ahead?’ – Alternatives

5.1 Alternative Dispute Resolution

5.2 Legal Expenses Insurance

5.3 Conditional Fee Agreements

6. Conclusion

Endnotes

1 thought on “Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany”

Tobias Schrank*

Table of contents

1. Introduction

2. Historical Background

2.1 England

2.2 Germany

3. Legal Aid Legislation

3.1 England

3.2 Germany

4. Legal Aid in Practice

4.1 Legal Aid in Practice: Delivery

4.1.1 England

4.1.2 Germany

4.2. Legal Aid in Practice: Expenditure

4.2.1 England

4.2.2 Germany

4.3 Recent Government Proposals

4.3.1 England

4.3.2 Germany

5. ‘The Way Ahead?’ – Alternatives

5.1 Alternative Dispute Resolution

5.2 Legal Expenses Insurance

5.3 Conditional Fee Agreements

6. Conclusion

Endnotes

1 thought on “Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany”

Tobias Schrank^*