Stefanie Lemke examines the Guidelines and how they can help member States improve the functioning of their national legal aid systems in the areas of civil and administrative law.
The Council of Europe published a set of guidelines adopted by the Committee of Ministers on 31 March 2021 to help the 47 member States improve the functioning of national systems of legal aid in the fields of civil and administrative law.
Legal aid is critical in protecting the right to a fair trial. It creates equality of arms. It also creates empowerment, giving ordinary people access to specialised information on the law and on how they can best defend their interests. It ensures that the rule of law is human rights based, laying the foundation for the equal exercise of the right to justice of every woman, man, and child. It supports the idea of an individual's ability to protect his or her rights in conformity with human right standards – especially in situations of vulnerability. At its simplest, it helps ensure that no economic obstacle alone can prevent fair justice for the disadvantaged. More broadly it promotes citizens' awareness, understanding and better assertion of their rights. Legal aid is also essential to the notions of justice and fair trial. Article 6 of the European Convention on Human Rights refers specifically to the need for legal aid in the case of a criminal charge and criminal proceedings. The case law of the Court also shows that in certain circumstances the lack of an appropriate legal aid scheme can lead to a finding of violation of Article 6 in civil and administrative proceedings.
Countries which are still reforming their justice system look to the European Court of Human Rights for guidance on the fundamental issues, including the access to justice and legal aid, its overall scope and eligibility for legal aid, legal aid in civil and criminal matters, or at various stages of proceedings. The ECtHR case law (Golder v. United Kingdom, Airey v. Ireland, or Artico v. Italy, to mention but a few), and the Committee of Ministers recommendations provide ample guidance for ensuring that persons in an economically weak position are able to obtain necessary legal assistance on criminal, civil, commercial, administrative, social or fiscal matters and be informed about availability of such services. While the system and schemes of the legal aid differ among member states, there are also some notable examples of reforming and putting at the centre the interests of beneficiaries of legal aid and vulnerable groups.
31 March 2021 the Committee of Ministers of the Council of Europe adopted the guidelines on efficiency and effectiveness of legal aid schemes in the areas of civil and administrative law, prepared by the European Committee on Legal Co-operation (CDCJ). The aim of the guidelines is to provide to the member States generic solutions for increasing the efficiency and effectiveness of their national legal aid schemes in the areas of civil and administrative law. Although the guidelines are drafted with the civil and administrative laws in mind, they tackle the issues that are equally relevant to the development of the legal aid system in general and can be used by any member State considering to reform and improve their legal aid services.
Legal aid is important to those who do not have sufficient financial means to defend their rights in the court, and safeguard access to justice. Thus, it is important to have a viable, well-funded legal aid scheme that provides such opportunities to those who are in need of legal assistance. Legal aid has been in the focus of on-going justice reforms and a number of member States have strived to perfect their systems: they included the provision of preliminary legal aid services, enlarged scope of legal aid, improved timeframes for processing the application for legal aid, or putting in place quality assurance mechanisms for the delivery of legal aid. The guidelines reflect the diversity of legal traditions among member States: their different approaches to legal aid and its provision, due to diversity of the legal traditions among the member States. The guidelines cover a variety of pertinent issues, however, your attention is drawn to the most recent trends and developments in the legal aid service provision, and particularly its organisation and set-up of the legal aid schemes.
A number of Council of Europe member states have recently implemented legal aid reforms or are currently planning to undertake them. Governments review eligibility criteria, legal aid delivery and management schemes, and introduce other changes. Scale and directions of reforms vary, although it is possible to identify three major reform trends. First trend is the development of legal aid programs, for instance, in Albania, Moldova, Russia and Ukraine. Recent reforms resulted in the creation of civil legal aid systems. Lithuania broadened the scope of legal aid and increased remuneration for legal aid lawyers. Reforms expanding provision of legal aid is more typical for countries where no legal aid system previously existed or where it was recently introduced. At the same time, France, which has a long-standing tradition of civil legal aid, also expanded the provision of state-funded legal services by raising the financial eligibility threshold.
Improving of legal aid organisation is another focus of recent legal aid reforms. Such reforms are primarily aimed at changing the legal aid management bodies. For instance, England and Wales have abolished the Legal Services Commission (LSC), which was an executive non-departmental public body governing legal aid. Functions of the LSC were transferred to the Legal Aid Agency, an executive body of the Ministry of Justice. Finland has introduced six Legal Aid Bureaux led by district directors, each of them headed by a director of the legal aid and public guardianship district, while the legal aid offices operate under the legal aid and public guardianship districts. There are 23 public legal aid offices, which are located mainly in the vicinity of the district courts. The legal aid offices have around 160 locations covering the whole country, of which roughly half are service points and legal aid applicants may choose which legal aid office they wish to use. Some reforms are aimed at improving legal aid delivery schemes. For instance, in Belgium, reforms provided for better co-ordination between legal advice providers of the so called “first line legal aid” and social welfare bodies and organisations.
A number of countries also have introduced digital document-flow to simplify processing of legal aid applications, to allocate the cases more efficiently and to speed up payments to legal aid lawyers for work done. In England and Wales, providers submit monthly electronically completed Controlled Work “claims” for payment to the Legal Aid Agency (LAA). These claims only contain general information on a case which is accepted without further initial verification at that stage. “Licensed Work” generally covers representation in court. Providers must generally apply to the LAA to be granted legal aid in a case. They are permitted to make the application if they have a contract in the relevant category of law. The LAA has more direct control over costs in these matters and will restrict the amount of money that a provider can spend on a case to a certain limit before they must revert back to the LAA for authorisation to continue. All Licensed Work is subject to assessment by the LAA or a court at the end of the case before payment can be made. It is, however, possible for providers to claim “Payments on Account” for work in progress. All cases are processed and paid through the LAA’s electronic case management system.
The reforms also include measures to optimise and reduce public expenditure, that could include approaches such as strictly defining categories of beneficiaries and eligibility criteria; or introducing online technologies and tools to reduce the involvement of lawyers at certain stages of the legal aid process, or using the complementary sources of funding of legal aid systems, contributions paid by legal aid beneficiaries. From this point, particularly interesting is the development of a variety of on-line tools and other IT solutions for early intervention mechanisms and providing access to preliminary legal aid. The guidelines advocate having a holistic approach, such as “one-stop shops”, where in a single location different governmental bodies provide different legal services. IT solutions may include creating a website, ideally a single website, informing the users about the kinds of support available to them and how they can apply for legal aid. This website can also help users to identify and resolve their legal issues through user-friendly, on-line interactive assistance (for example chatbots), and integrated with individualised assistance, including face-to-face legal aid services. Legal information can also be disseminated by means of combining the traditional ways of informing the potential users of the legal aid services such as printed materials, call services, mobile teams, and online technology such as Skype, chatbots, online chat services, etc. One of the best examples of provision of legal information via a website is the Rechtwijzer (“conflict resolution guide” or “interactive platform to justice”), a legal advice website developed by the Dutch Legal Aid Board of the Netherlands. It is run by a joint committee with the support of a number of stakeholders, including the bar association. This website provides legal assistance by means of a “decision tree”, helping individuals to find solutions to their legal problems in an interactive manner. The website also refers users to an appropriate expert or organisation if necessary. An additional important feature of this website is an online platform which allows people to settle legal conflicts (for example divorce cases) through negotiations with the other party to the conflict and the involvement of an impartial third party in an online “trialogue”. In Croatia and Norway, state authorities co-operate with NGOs in providing primary legal advice, while in Latvia, bodies of local self-government provide individuals with various types of assistance, including legal aid services. In France, the website www.service-public.fr and the portal www.justice.fr include information on the organisation of justice, legal proceedings, offences and criminal sanctions which is thus available to everyone. In particular, people can find all the useful information on legal aid and simulator of eligibility for legal aid based on the calculation of the applicant's resources.
The guidelines pay particular attention to improving the quality of the legal aid provision, and for this purpose, they suggest putting in place mechanisms and measures to ensure the quality of legal aid schemes, both in terms of their general functioning and, more importantly, in terms of the legal services delivered by legal aid providers. These mechanisms should respect the principles of professional independence (of all legal aid providers) and legal advice privilege. It is specifically important that legal aid clients are assured that they receive a high standard of service from their lawyer and at the same time, the bodies responsible for the provision of the legal aid services know that the service provided is consistent across the country and there is a strong confidence in the quality of services provided by legal aid lawyers.
Member States have introduced a variety of quality control mechanisms. For example, in Lithuania, different stakeholders and actors co-operate for this purpose through the state-guaranteed Legal Aid Co-ordination Council, which analyses the policy in the field of legal aid and develops proposals on possible improvements. The Council consists of representatives of the Parliament, the Lithuanian Bar, the Lithuanian Lawyers’ Society, the Lithuanian Association of Judges, the Ministry of Justice, the Ministry of Finances, the State Guaranteed Legal Aid Service, the Association of Municipalities and NGOs. It is of equal importance to hear the feedback from the direct beneficiaries – users and clients of the legal aid services. In Finland, Ireland, Latvia, Lithuania, Ukraine or the United Kingdom (England and Wales) this is done through permanent or periodic surveys or user satisfaction surveys for beneficiaries and/or legal aid providers. Other member states, such as Belgium or the Netherlands, use peer-review as a mechanism of the quality control. In Belgium, legal aid office/fellow lawyers, check each legal aid provider’s work by assessing whether the legal aid assignment has been carried out properly (quality control) or has not been carried out at all (effectiveness), or a group of auditors consisting of Flemish and French barristers ‘cross check’ by review a certain number of completed assignments, depending on their field of specialisation. In Portugal, the Ministry of Justice carries out a comprehensive impact assessment in the framework of which a questionnaire is sent to legal aid beneficiaries to measure the quality of the legal aid services’ delivery.
These are just a few examples on how the guidelines can be of aid to the policy makers and practitioners in helping them to further develop their legal aid mechanisms. As a recent legal instrument and an important milestone of creating European guidelines on efficiency and effectiveness of legal aid schemes in the areas of civil and administrative law, it is important that the Committee and the member States strengthen efforts to promote them and raise awareness among policy makers and the practitioners in Europe and beyond.
For more information see the Guidelines of the Committee of Ministers of the Council of Europe on the efficiency and the effectiveness of legal aid schemes in the areas of civil and administrative law and also the publication: The efficiency and the effectiveness of legal aid schemes in the areas of civil and administrative law - Guidelines and Explanatory memorandum (August 2021)
Disclaimer: the opinions expressed in this article are the responsibility of the author and do not necessarily reflect the official policy of the Council of Europe.