Legal Aid and Advice

Since 1950-s the services of solicitors and barristers were made available by the system called Legal Aid for those who could not afford them. The Legal Service Commission was set up under the Access to Justice Act 1999 and replaced the Legal Aid Board in 2000 for England and Wales. The Commission (LSC) runs two schemes: the Community Legal Service - the scheme for funding civil cases, and the Criminal Defence Service, a scheme for funding criminal cases.

Though many legal tasks can only be provided by professionally qualified solicitors and barristers, preliminary legal advice or information is available from a wide range of other sources. For example, the government gives some funding to the largest network of people's advice centres in the world, known as the Citizens Advice Bureau (CAB). This is a national organization which has hundreds of branches throughout the country. It provides impartial and free advice on all kinds of problems and issues, particularly issues related to welfare benefits and social security.

Law Centres are grant-funded institutions that provide free and independent legal advice and even represent people in legal proceedings. They specialize in certain areas of law such as immigration and nationality, housing and homelessness, employment rights, and sex and race discrimination.

There is now important trend towards the resolution of problems without resort to the legal system. The movement is referred to as Alternative Dispute Resolution (ADR) and deals with mainly with civil law issues.

The reasons why the formal system seems to be unsatisfactory are:

1. Delay (major delay still occurs when very formal court procedures take place);

2. Cost (the involvement of qualified lawyers inevitably results in high costs); Complexity (the complexity of procedure makes it difficult for people to make out their own case).

ADR involves the solution of a dispute by an independent arbitrator. That person may or may not be a lawyer. This system has certain advantages: it involves less formal procedures and is quicker and cheaper. It can also take place without publicity which may help to produce greater reconciliation at the end of the process.

Professional Judges in the Civil Law Tradition

Professional judges in civil-law countries are markedly different in background and outlook from professional judges in common-law countries. Both are law-trained and both perform substantially the same functions, but there the similarities cease. In a typical civil-law country, a person graduating from law school makes a choice between a judicial career and a career as a private lawyer. If he chooses the former and is able to pass an examination, he is appointed to the judiciary by the minister of justice (a political officer) and enters service in his early 20s. His first assignment is to a low-level court; thereafter, he works his way up the judicial ladder as far as he can until his retirement on a pension. His promotions and assignments depend upon the way his performance is regarded by a council of senior judges, or sometimes upon the judgement of the minister of justice, who may or may not exercise his powers disinterestedly and on the basis of merit. The civil-law judge, in short, is a civil servant.

Professional Judges in the Common-law Tradition

In common-law nations, the path to judicial office is quite different. Upon completion of his formal education, a person typically spends 15, 20, or 25 years in the private practice of law or, less commonly, in law teaching or governmental legal service and then, at about age 50, becomes a judge. He takes no competitive examinations but is appointed or elected to office. In England the appointive system prevails for all levels of judges, including even lay magistrates. Appointments are primarily under the control of the Lord Chancellor, who, although a cabinet officer is also the highest judge of the realm. They are kept surprisingly free from party politics. In the United States, the appointive method is used in federal courts and some state courts, but it tends to be highly political. Appointments are made by the chief executive of the nation or state and are frequently subject to legislative approval. In many states, judges are popularly elected, sometimes on nonpartisan ballots, sometimes on partisan ballots with all the trappings of traditional political contests. In an attempt to deemphasize political considerations and yet maintain some measure of popular control over the selection of judges, a third method of judicial selection has been devised and is slowly growing in popularity. Called the Missouri Plan, it involves creation of a

nominating commission that screens judicial candidates and submits to the appointing authority a limited number of names of persons considered qualified. The appointing authority must make this choice from the list submitted. The person chosen as judge then assumes office for a limited time, and, after the conclusion of this probationary period, he stands for "election" for a much longer term. He does not run against any other candidate but only "against his own record".

In common-law countries, a person does not necessarily enter the judiciary at a low level: he may be appointed or elected to his nation's highest court or to one of its intermediate courts. He does not look forward to any regular pattern of promotion, nor is he necessarily assured of long tenure with ultimate retirement of a pension. In some courts, life tenure is provided, usually subject to mandatory retirement at a fixed age. In others, tenure is limited to a stated term of years. At the conclusion of his term, if not mandatory retired earlier, the judge must be reelected or reappointed if he is to continue.

While in office, the common-law judge enjoys greater power and prestige and more independence than his civil-law counterpart. He occupies a position to which most members of his profession aspire. He is not subject to outside supervision and inspection by any council of judges or by a minister of justice; nor is he liable to be transferred by action of such an official from court to court or place to place. The only administrative control over him is that exercised by judicial colleagues, whose powers of management are generally slight, being limited to such matters as requiring periodical reports of pending cases and arranging for temporary (and usually consensual) transfers of judges between courts when factors such as illness or congested calendars require them. Only if judge misbehaves very badly is he in danger of disciplinary sanctions and then usually only by way of criminal prosecution for his misdeeds or legislative impeachment and trial, resulting in removal from office - a very cumbersome, slow, ill-defined, inflexible, ineffective, and seldom used procedure. In parts of the United States, newer and more expeditious methods of judicial discipline are developing in which senior judges are vested with power to impose sanctions ranging from reprimand to removal from office of erring colleagues. They are also vested with power to retire judges who have become physically or mentally unfit to discharge their duties.

Except at the very highest appellate level, common-law judges are no fewer subjects than their civil-law counterparts to appellate reversals of their judgements. But appellate review cannot fairly be regarded as discipline. It is designed to protect the rights of litigants; to clarify, expound, and develop the law; and to help and guide rather than reprimand lower court judges.

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