A global guide for legal aid
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Marc Bloomfield
Lucy Scott-Moncrieff discusses a new publication that sets out recommended principles for legal aid systems around the world.
In October this year, a Guide on legal aid principles in civil, administrative and family justice systems was launched at the International Bar Association’s (IBA’s) annual conference in Rome. The guide was two years in development, and involved the input of legal aid experts at a round table followed by a consultation that received responses from national law societies and bar associations from every inhabited continent, from common law and civil law jurisdictions, and from developed as well as developing countries. We also had help from the London-based Bingham Centre for the Rule of Law.
The guide sets out 27 principles under the headings of:
funding, scope and eligibility;
the administration of legal aid;
avoiding corruption and favouritism in the legal aid system; and
the provision of legal aid.
Specific principles deal with such topics as:
the matters to be considered when setting a legal aid budget;
the relationship between those administering legal aid and their government;
how to avoid corruption and favouritism;
how decisions should be made on who should be allowed to do legal aid work and how cases should be allocated to them; and
how to calculate how much legal aid providers should be paid.
All of the 27 principles put forward in the guide were agreed by the majority of those who responded to the consultation, and many were agreed by all, or nearly all, of the respondents.
How does the UK’s system measure up?
Our legal aid system complies well with some of the principles, for instance:
Principle 4
There should be clear, transparent and published criteria on scope and eligibility for legal aid in civil, administrative and family law matters. These criteria should be drawn up by government in consultation with other stakeholders.
Principle 16
Principles 9 and 12 of the UN Principles and Guidelines on Criminal Legal Aid should apply to all legal aid areas, including civil, administrative and family legal aid.
UN Principle 9 provides:
States should establish effective remedies and safeguards that apply if access to legal aid is undermined, delayed or denied or if persons have not been adequately informed of their right to legal aid.
UN Principle 12 provides:
States should ensure that legal aid providers are able to carry out their work effectively, freely and independently. In particular, states should ensure that legal aid providers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; are able to travel, to consult and meet with their clients freely and in full confidentiality both within their own country and abroad, and to freely access prosecution and other relevant files; and do not suffer, and are not threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
However, compliance with some other principles is more problematic:
Principle 1
Legal aid service delivery generates significant social and economic benefits. In the budget formulation process governments should estimate the social and economic costs and benefits of legal aid service delivery, including by taking into account the social and economic costs of failure to deliver services.
Principle 2
(a)Setting the legal aid budget is a political decision. However, it needs to be adequate to support the services the executive and legislature have agreed should be funded and needs to provide fair remuneration for those who do the work.
(b)It also needs to be informed by evidence from the academic, professional and policy communities. The body administering legal aid should be responsible for gathering this information.
Principle 3
Professional bodies of lawyers should seek to maximise the ways in which their members can provide pro bono legal services in accordance with their culture and traditions, but governments cannot rely on this to cover services, which should properly be funded by legal aid.
Principle 8
Financial means is a relevant criterion when assessing eligibility for legal aid. Vulnerability, including lack of knowledge or ability to enforce legal rights without expert help, is also a relevant factor.
Principle 11
General eligibility for initial advice should be available when there are no other satisfactory sources for this advice.
Principle 15
The body administering legal aid – as with other groups and bodies involved in the justice system – has an important role to play in providing information to government, parliament and the public that will assist in ensuring the efficiency of the justice system as a whole. This includes information on where the system is failing to provide access to justice.
Principle 19
The body administering legal aid must be independent and must be protected from interference (or attempted interference) in its decisions on the grant of legal aid and the allocation of work by government, the media, the profession and others.
Principle 27
Those providing exclusively or mainly legal aid services should be paid according to industry norms so as to attract high quality providers and to allow for the development of expertise in the sector and therefore create value for money, whether in a salaried service or through private practice.
Differences of opinion
The guide reveals considerable divergences of opinion on some matters, which reflect different cultural and practical ways in which countries have developed their justice and legal aid systems. It sets out the views of those who disagree with particular principles as fully as those of the people who agree with them, in acknowledgement that there are many legitimate ways to achieve the objective of providing universal access to justice.
The principles and examples in the guide are not prescriptive, but are intended as starting points for debate and consideration.
The principles and examples in the guide are not prescriptive, but are intended as starting points for debate and consideration. It recognises that some of the principles will not suit the circumstances of some jurisdictions, for reasons that they find compelling.
However, it suggests that all of the principles should be looked at when setting up or reforming legal aid systems, so that proposals can be tested against them. The outcome of such comparisons may be: a rejection of the principle (in which case a reason can be articulated); a recognition that the principle can be worked towards but not implemented immediately (in which case a plan towards implementation can be expressed); the principle may be seen to have merit that had previously not been obvious (in which case it can be adopted); or it may be familiar and accepted (in which case any proposal can be measured against it for validity).
The guide contains the comments of respondents to the consultation on the principles, which provide rich information on how lawyers seek to achieve access to justice in their jurisdictions. Two appendices are currently being prepared that will provide responses to supplementary questions asked in the consultation and links to documents provided by respondents. They will be available on the guide’s web page before Christmas.
Economic benefits: further research
Arising directly from discussions on Principle 1, a new project is underway to identify the economic benefits of legal aid. Some of the experts who contributed to the guide told us that, in their jurisdictions, the economic benefits of legal aid for the public purse as well as for the person receiving it were well understood. However, others, including those of us from England and Wales, shared our despondency that our governments continue to assert that legal aid is a drain on public funds that therefore needs cutting to the bone, and to dismiss any evidence to the contrary as unreliable special pleading.
The IBA and the World Bank are funding this project, which has two aims:
to identify the economic benefits of legal aid; and
to produce a tool that will allow people in any jurisdiction to identify the economic benefits to public funds of legal aid services.
An initial discussion document has been produced, which explains that, to help weigh their options, legal aid policymakers are increasingly turning to cost-benefit analysis (CBA), an analytical exercise conducted to determine the net benefits of a project, programme or policy, and that carefully documented CBA is expected to demonstrate that legal aid services, when delivered effectively, are both budget-neutral and create net benefits to the economy.
... CBA can be a powerful tool for those seeking expanded funding of legal aid services ... as much of the benefits brought by the provision of legal aid programs go far beyond the clients served, bringing tangible results for the justice system, the economy and the society. As a means to an end, therefore, well-conducted CBAs may help to gain a broader consensus in favour of increasing funding for legal aid programs, as well as to better inform the design, evaluation and monitoring of such programs in the future (para 5).
Quantifying the full net economic impact of the provision of legal aid assistance is not straightforward, but there is at least some consensus on the direction of the impact and the main channels of transmission. Assessing the impact of some direct and predominately indirect economic benefits proves to be a more challenging exercise as there are many areas of influence that are not easily disentangled and monetised. Yet momentum is building and decision-making throughout the international justice community has started to acknowledge the importance of strengthening this line of research (para 7).
I am leading on this project for the IBA, and my task is to raise awareness of it, so that papers and views are sent to the World Bank to help the economists and other experts conducting the analysis and writing the report.1Visit: www.ibanet.org/PPID/Constituent/AccesstoJustice_LegalAid/Default.aspx ('News, Projects & Publications') for the CBA discussion paper and request for help information. People are asked to:
provide any existing research, policy, thought-piece or other document relevant to identifying the economic benefits of legal aid, or the economic costs of not providing it;
identify potential economic benefits from legal aid that are not mentioned in the discussion document; and
make any other comments with a view to ensuring the final report is comprehensive, relevant for jurisdictions of all types and traditions, and of use to all governments and policymakers in developing or reforming their legal aid systems.
Relevant information can range from nationwide surveys of whole legal aid systems carried out by academics and professional researchers to small-scale studies carried out by practitioners looking at the effects of legal aid, or a lack thereof, in the communities they serve.
The economic benefits report, including the tool for carrying out CBAs, will be launched at the next IBA annual conference in Seoul in October 2019. Relevant information is needed over the next few months, to enable this timetable to work. I hope very much that you will help us in this project, and will pass this request on to other practitioners, policymakers and academics here or elsewhere who you think would like to contribute.
 
1     Visit: www.ibanet.org/PPID/Constituent/AccesstoJustice_LegalAid/Default.aspx ('News, Projects & Publications') for the CBA discussion paper and request for help information. »

About the author(s)

Lucy Scott-Moncrieff
Lucy Scott-Moncrieff is managing director of Scott-Moncrieff & Associates Ltd. She is a former president of the Law Society.