Will the legal aid review compromise the right to counsel?

David Harvey

If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell …to write a letter to the Supreme Court…the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter, the Court did look into his case…and the whole course of American legal history has been changed. (Robert F Kennedy)

I have a well-thumbed, often-read book on my shelves called Gideon’s Trumpet by Anthony Lewis. It came my way in 1964 when I was on a scholarship to the US.

It tells the story of Clarence Earl Gideon, a poor and uneducated man whose handwritten appeal led to the landmark Supreme Court case Gideon v Wainwright (1963), which established the constitutional right to legal counsel for criminal defendants in state courts who cannot afford an attorney.

Lewis narrates how Gideon, accused of a minor crime in Florida, was denied a court-appointed lawyer due to prevailing state practices, forcing him to defend himself at trial, which resulted in his conviction.

From prison, Gideon wrote a petition to the Supreme Court, arguing that the denial of counsel violated his constitutional rights.

Abe Fortas argued Gideon’s case pro bono which seemed apt. The Supreme Court held that Gideon had a constitutional right to a lawyer, funded by the State. Fortas later went on to become a Supreme Court Justice.

The Supreme Court issued a unanimous decision that transformed the American justice system by requiring states to provide attorneys to all indigent defendants in criminal cases.

The book and the case are important in that they illustrate how Gideon’s determination ensured that the right to a fair trial by legal representation is afforded to every person, regardless of wealth or status – a pivotal expansion of due process in the United States. The case overruled the former principle where only “special cases” received counsel and made rights more uniform nationwide.

Lewis’ book highlighted how the (then) US Supreme Court under Chief Justice Earl Warren heard the voices of the overlooked and marginalised and demonstrated how an ordinary person could profoundly influence American law and society.

The review

I often reflected on Gideon’s case when I sat in court in my early days in practice, when defendant after defendant, unrepresented, pleaded and was dealt with. It just seemed wrong. The complexities of the law were beyond most of these people who just wanted to get the case out of the way. Legal aid was available but not as extensively as it is now.

In the early 1970s, committed lawyers made their time available, pro bono, to establish a duty lawyer scheme to advise people about their options when facing a criminal charge.

That was a start. The duty lawyer scheme was taken up by the government and is now an established part of the criminal justice system. Duty lawyers can now make initial appearances for a defendant pending a legal aid grant.

The New Zealand Bill of Rights Act 1990 enshrines the right to counsel. Everyone who is charged with an offence shall have the right to consult and instruct a lawyer and shall have the right to receive legal assistance without cost if they have insufficient means and the interests of justice require it.

The government is undertaking a wide-ranging review of the legal aid scheme. Public consultation has been taking place.

The decision to review arises from surging costs, ongoing concerns about access to justice and complaints from legal professionals about provider shortages and rising workloads. The review focuses on keeping the scheme efficient, sustainable and fair, with the Ministry of Justice tasked with consulting the public and legal sector as part of the process.

The government aims to ensure the legal aid system remains beneficial for people who cannot afford legal services, while controlling costs amid expanding demand and growing case complexity.

Key areas under review include eligibility rules and repayment settings (such as income/asset tests and loan repayments); provider remuneration and incentives to address concerns about falling participation by lawyers; regional disparities and procurement models, seeking to improve coverage in underserved areas and strengthening quality assurance mechanisms and performance oversight

The reasons for the review arise, not unsurprisingly, from costs.

The issues

Legal aid is under pressure but that cannot mean that those who need representation should be denied it. Government spending on legal aid has greatly increased – exceeding $270 million last year and projected to keep rising – prompting concerns about long-term viability.

Furthermore there are concerns about access to legal aid providers. Lawyers and judges cite inadequate provider incentives and low remuneration, leading to difficulties in finding legal aid lawyers, especially outside urban centres.

Social and economic change has had an impact. Stakeholders argue the eligibility thresholds are outdated, excluding many in need and that high repayment obligations deter some from seeking necessary legal help.

Finally there is a desire on the part of some for more rigorous oversight. Policymakers and some in the legal sector want clearer performance expectations and more rigorous oversight to ensure quality, prevent waste and promote consistency.

There has been opposition and criticism.

Critics, including some legal advocacy groups, fear the review could become a vehicle for cost-cutting that would harm access for vulnerable populations, arguing that increased expenditure alone should not justify reductions or rationing.

Some in the legal profession worry that further administrative requirements or insufficient remuneration reforms could worsen current provider shortages.

There is opposition to any reform that would further tighten eligibility or repayment, as this could push more people out of reach for legal representation, especially in family, civil and Waitangi Tribunal matters.

There has been concern expressed at a suggestion that some providers should be bulk funded and opposition to such proposals has been widespread attracting minimal support.

There is fear that funding cuts will reduce access to justice and will increase self-represented defendants to the detriment of the court system.

Finally, some stakeholders are sceptical about whether the government will genuinely address underlying funding or structural issues, rather than just tinker with minor settings or add oversight without real reform.

Public submissions on the review closed in August 2025. Decisions are expected to be announced in late 2025 or early 2026. The review’s outcomes are anticipated to have long-term impacts on who can access legal aid, under what conditions, and the sustainability of the scheme for providers and recipients alike.

Right to counsel

Although legal aid may be under pressure we must not forget the Clarence Gideons of this world – those who need representation should not be denied it.

In a criminal justice system where there is a presumption of innocence on the part of the person charged and a burden of proof beyond a reasonable doubt on the prosecution, the right to counsel is critical.

Although the prosecuting State has access to significant resources not enjoyed by the defence, the right to counsel, although not introducing equality of arms, provides a bulwark against the power of the State.

There can be no higher calling for a lawyer than the defence of the liberty of the subject.

In 2004 a new plan was devised to provide representation for legally aided defendants and a pilot for a Public Defence Service (PDS) was set up servicing the Auckland and Manukau Courts.

I was a strong supporter of the PDS. I had felt there was a need for such a service that went all the way back to my early days as a lawyer.

Initially there was push-back from the criminal bar. It was felt that the PDS would reduce the number of legal aid cases available to lawyers. But over time the PDS established its credentials, both with the legal profession and with the courts and judges. Four senior PDS lawyers have been elevated to the District Court Bench.

Today the PDS is located in 10 cities across New Zealand and operates in District Courts in Auckland, North Shore, Waitakere, Manukau, Tauranga, Napier, Hastings, Hamilton, Wellington, Porirua, Hutt Valley, Christchurch and Dunedin, their related High Courts, the Court of Appeal and the Supreme Court and oversees the duty lawyer scheme

Committed criminal defence lawyers, most of them remunerated by legal aid, work alongside PDS lawyers – often earning less than they would in private practice – daily to ensure that the criminal process is carried out properly and with integrity in the interests of their clients. It is, without doubt, a front-line service.

In this regard criminal defence lawyers and legal aid funding are critical cogs in the criminal justice system and ensure an effective right to counsel, so important in Gideon’s case and enshrined in the New Zealand Bill of Rights Act.

David Harvey

David Harvey is a retired District Court Judge, a member of The Law Association’s Public Law Committee and a member of Sangro Chambers

A shorter version of this article appeared in The Listener for 23 August 2025.