Vol 2 1998 - ArticleFrancis Regan
Paper to the 'International Conference on Legal Aid'
Sponsored by the Dutch Ministry of Justice, Den Haag, The Netherlands, 13-15
April 1994
The existing approach used to compare and analyse legal aid in different countries tells us little about the choices made in developing that policy. As a result it is difficult to identify the strengths and weaknesses of different schemes. This paper proposes an alternative approach based upon an analysis of the development of the welfare state in the society. We apply the approach to legal aid in Australia and Sweden, where we would expect to find in the former a mean scheme and the latter generous. We conclude that, overall, the development of the welfare state is a good predictor of the type of scheme present in a society but that some aspects of legal aid are not adequately addressed by the approach.
The title of this paper alludes to a frustration - it asks in essence whether we can identify groups of legal aid schemes: on the one hand schemes that are mean and restricted in terms of who is eligible and what legal aid is available for, and on the other hand, schemes that are generous and comprehensive in terms of who is eligible and the range of matters that it is available for? The paper is premised upon a belief that the tools available for analysing legal aid in different societies are inadequate to develop such a classification. The research reported here aims to analyse legal aid in the rich industrialised societies by classifying schemes using different criteria to those commonly used, in particular whether the schemes are generous and comprehensive. In other words, we are inquiring into the effectiveness of different schemes in providing legal services to the communities they serve. Legal aid has usually been discussed in policy and academic literature within what we call the 'Funding/Personnel' framework,<2> which focuses in particular on questions of cost, and the associated question of whether private or salaried lawyers should do the legal aid work. We argue that this is not a very helpful approach, and that the effectiveness of different types of legal aid schemes needs to be considered for their own sake, so that we can have a better understanding of how they vary across societies. A more detailed analysis may also contribute to reform processes over time.
In the paper we propose and test an alternative approach for a comprehensive, comparative analysis of legal aid. The innovation adopted is to view legal aid within the context of the development of the welfare state in the relevant society. As we explain below, viewing legal aid through the 'lens' of the welfare state provides a wealth of detail which can be systematically organised into a comprehensive comparative analysis.<3> It is then possible to judge whether one scheme is mean and another generous, and exactly what this means. We first outline the weaknesses of the dominant 'Funding/Personnel' approach and then outline the alternative which we then apply to Sweden and Australia's legal aid. We conclude by making some observations about the alternative approach used in the paper.
The expansion of publicly funded, organised and national legal aid schemes, in the rich countries from the mid 1960s resulted in a large body of literature. The analysis of legal aid has however been highly descriptive, characterised by an emphasis on first describing the legal framework of legal aid, which consisted of descriptions and commentaries on the statutes and cases in relation to the relevant provisions.<4> The second emphasis reflects less concern with narrow legal material, rather the focus shifted to descriptions of the 'models' of legal aid operating in different societies. The models originated in the historical and analytical research of Cappelletti, Gordley and Johnson (1975) and they have been adopted by analysts since. We have referred to the models as constituting the 'Funding/ Personnel' framework as it emphasises twin reference points: first, the source of funds paid to lawyers providing legal aid services, and second, whether the lawyers providing the services are members of the private profession or state employees.<5>
Four main models of legal aid are identified. The first, the Charitable model refers to the range of practices throughout history where private lawyers undertook free legal work for the poor, out of a sense of duty, or because they were ordered to by the court (Cappelletti et al., 1975). Three 'modern' models of legal aid are also proposed: the 'Judicare' where private lawyers are paid by the state to undertake legal aid work as part of their normal legal work; the 'Salaried' model where the state employs lawyers to work as public sector, legal aid lawyers, for low income clients; and finally, the 'Mixed' model where the state funds both the private profession and state employed lawyers, that is, the judicare and salaried models co-exist within a society. The debate in the literature has tended to be dominated by issues that are central to the framework, such as whether salaried or private lawyers are more cost effective.<6>
So it is not a particularly illuminating approach - it does not tell us very much about this policy. It does not, for example, view legal aid in its historical and political context, or as part of the overall provision of legal services in a society,<7> and it does not ask about the use of legal aid resources by gender and minority groups.<8> The other major limitation for the purposes of the present paper is that the approach does not consider legal aid as a part of the social policy of welfare states.<9> Viewing legal aid from the perspective of public action to improve well-being of the citizens highlights many of the above issues. Viewing legal aid through the 'lens' of the welfare state also provides insights into problems that the funding/personnel approach creates. For example, it helps to explain why legal aid schemes are so different across societies, when the model of legal aid present is the same. The schemes in Australia and Sweden are an example of the problems involved. The funding/personnel approach classifies the two countries as having the same model; that is, both have a Mixed model, where the state funds both private and salaried public sector lawyers to do legal aid work. But while the schemes are similar in terms of these characteristics, there are likely to be major differences due to the different development of the welfare state in the two societies, and the differences may be as important as the common features. For example, Sweden is regarded as a highly developed welfare state (Esping-Andersen, 1991; Heidenheimer et al., 1990) which would probably result in generous legal aid provisions for the citizens. Australia on the other hand is regarded as a less developed welfare state implying more restricted legal aid. The proportion of the population eligible for aid is an illustration of the differences at stake. In Sweden 90 per cent of the population are eligible, while in Australia it is more like 20 per cent. It is hard to accept that the schemes are very similar based on this criteria. In summary the funding/personnel approach does not identify a broad range of descriptive details, with the result that there is little understanding of the differences between schemes.
Below we propose an alternative lens to analyse legal aid drawing upon recent developments in welfare state analysis. In the next part of the paper we outline a typology developed by Esping-Andersen(1990) that groups societies according to the development of the welfare state. We then propose a group of indicators that we use to identify whether Australia and Sweden 'fit' the typology in relation to legal aid policy.
Esping-Andersen proposes a typology of three models of welfare states: the Social Democratic, the Corporatist, and the Liberal.<10> The models group different societies according to the degree of the development of the welfare state in the society. In summary the Liberal welfare states are the meanest with programmes and benefits usually targeting the deserving poor, and the Social Democratic states typically the most generous, adopting universal and comprehensive programmes.<11> However the models were developed on the basis of income support policies (pensions, sickness and unemployment) and labour market policies, and have not been applied to legal aid policy.<12> The present paper applies the typology to legal aid policy in two welfare states that represent the Social Democratic and Liberal models in Esping-Andersen's typology, namely Sweden and Australia respectively. In summary the typology suggests that in a Social Democratic welfare state legal aid will be significantly more generous and comprehensive than in a Liberal welfare state, where we can expect it to be targeted to the deserving poor and narrower in the matters covered.<13>
Esping-Anderson identifies three models of 'welfare capitalism' based upon an analysis where the '...essential criteria for defining welfare states have to do with the quality of social rights, social stratification, and the relationship between the state, market, and family...' (1990, p 29). The first criteria, social rights, refers to rights that have developed as a part of citizenship of different welfare states and asks whether limits have been set to these rights, and if so where the limits have been set.<14> For example, a right to legal aid may be part of the development of social rights, either on a constitutional basis, or enshrined in legislation, or it may be a right restricted to a small proportion of the population as a welfare right, namely the deserving poor. The social stratification criteria is related in that the welfare state can act to reinforce or ameliorate class differences through income transfers and the provision of services. So legal aid policy can reinforce or ameliorate inequalities between those who are eligible and those who are not, particularly if only a small proportion of the population are eligible, the deserving poor, who may then be resented by the other citizens who receive no assistance from the state for legal aid.
The role of the state, the market and family in providing welfare for the members of the society is also a key determinant of types of welfare state, according to Esping-Andersen. Do the citizens have to rely on purchase of services on the market especially in times of need, or are they expected to rely on their family's resources, or can they can rely upon public provision? We refer to this last criteria as 'dominance of the market', that is, whether citizens have to work in the market place and purchase the services they require, such as legal services, on the market.<15> For Esping-Andersen, the dominance of the market is a key test of the development of welfare states, that is, whether citizens have a right to services and whether they can maintain their livelihood without participating on the market. For our purpose the question will be whether citizens are forced to purchase their legal services on the market or whether there is public provision through a generous legal aid scheme.
On the basis of the criteria, Esping-Andersen (1990, p 27) proposes three 'clusters' of welfare states. In the first, the 'liberal' welfare state the work ethic is strong and as a result social rights are restricted. Eligibility for welfare is typically linked to need, and means tests are applied to the state provided benefits, which are typically low level and not universal. 'Benefits cater mainly to a clientele of low-income, usually working class, state dependents.' The effect is that the market is dominant, and the state strengthens the market by forcing the majority of the population to purchase most services on the market, thus reinforcing class inequalities. According to Esping-Anderson the liberal welfare states are largely Anglo-Saxon, that is, the USA, UK, Canada and Australia.<16>
In the third model, the 'Social Democratic', there has been, according to Esping-Andersen, a significant extension of welfare to include with the poor the 'new middle classes' as the beneficiaries of welfare. The result has been extensive social rights and universal eligibility for a comprehensive range of welfare programmes and a weakening of market provision of services. The Scandinavian societies are examples of the third model.
The typology provides an alternative to the funding/personnel approach for comparing legal aid schemes. It has a number of strengths. First, it shifts attention away from a two dimensional analysis of funding and personnel. Second it provides a lens which links legal aid to the context of social provision by the welfare state. Third, it focuses attention on the role and interaction of particularly the market and public provision. Finally, it provides a framework for developing a range of indicators to compare and evaluate the development of policies (such as legal aid) in different models of welfare states.
The remainder of the paper analyses whether legal aid policy 'fits' the Esping-Andersen models. Does legal aid policy fit the characteristics of the 'mean' Liberal model for Australia and the 'generous' Social Democratic for Sweden? We use the following criteria:
If Australia has a mean, and Sweden a generous scheme corresponding to the 'Liberal' and 'Social Democratic' models respectively, we could expect to find, evidence of the following:<17>
1. Legal aid as a social right: In the Liberal model we expect to find that legal aid, along with many other services, is not a right of citizenship but that it is targeted to a small proportion of the population, the deserving poor, and that eligibility will be restricted in terms of the range of matters for which aid is available. In the Social Democratic model we would expect to find that legal aid is a right of citizenship, available for all, or at least a higher proportion than in the Liberal state, and that it would be comprehensive in terms of what aid was available for.
2. Legal aid and stratification: In the Liberal model we expect to find that eligibility for legal aid is, along with other social provision, restricted to a small proportion of the population, and that this creates and reinforces the existence of two groups in the society, the deserving poor and the rest. We might also find evidence of antagonism towards those eligible for legal aid by those ineligible. In the Social Democratic model we do not expect to find evidence of a clear distinction between those who are eligible and those who are not, nor do we expect to find evidence of antagonism between those who are, and are not eligible.
3. Market dominance of legal services: A range of indicators will be used to identify and assess different aspects of the level of market provision of legal services.
(i) Market provision - In the Liberal state we expect to find a high proportion of legal services provided by the private profession reflecting the fact that all but the poor have to purchase services on the market. In the Social Democratic we expect a lower proportion of services provided by the private profession reflecting a smaller role for the market. We may also find different legal aid lawyer per head of population ratios reflecting different emphases on the role of public provision in each society - higher in Sweden.
(ii) Private lawyers in legal aid - We expect to find in the Liberal state a high level of involvement of the private profession in legal aid, as measured by the proportion of legal services undertaken by private lawyers, in order that the market is reinforced, not bypassed. In the Social Democratic state there may be less involvement by the profession in legal aid work reflecting the larger role for public provision.
(iii) Legal aid - We expect to find a small, struggling, and vulnerable public legal aid in the Liberal state, reflecting its role of providing services to the 'deserving' poor , and in the Social Democratic a large, strong and relatively stable public scheme providing services to the citizens. This could be measured, for example, in terms of declining legal aid budgets in the former and rising budget in the latter, during the last 15 years.
(iv) Expenditure - The expenditure on legal aid may be lower per head of population in the Liberal compared to the Social Democratic state, due to a smaller role for public provision and greater emphasis on market provision.
(v) Take up of legal aid - In line with the Liberal work ethic there may be evidence of the poor and non-poor alike purchasing legal services upon the market in the Liberal state, even when they are eligible for legal aid. This would be an indicator of the pervasive nature of the work ethic and would demonstrate that people choose to buy their legal services on the market rather than accept public assistance with its connotations of charity. In the Social Democratic state there would be little evidence of citizens purchasing legal services on the market if they qualify for legal aid, in view of its status as a social right.
(vi) Legal insurance - There may be evidence of legal protection insurance in the Liberal state for those who are not poor/'deserving' enough to qualify for legal aid, but not rich enough to be able to easily pay for services on the market. In the Social Democratic state there should be little need for legal protection insurance given a high level of public provision.
(vii) Charitable legal aid - There may be evidence of private lawyers providing charitable legal services to the deserving poor in the Liberal state in line with the practice of the profession serving the community, especially the poor. Such charity represents a rejection of the idea of the state having responsibility for guaranteeing provision for all to a reasonable standard of living. Charity may be on the increase due to decline of public provision in the rich societies. In the Social Democratic there may be no charitable provision by the private profession, reflecting the state's central role in provision of legal services.
In the next part of the paper we provide an outline of legal aid in the two countries, followed by a discussion of the evidence in relation to the indicators above. The discussion will go beyond providing a static 'snapshot' by also highlighting at relevant points, the direction of change in policy.
Origins: The origins of legal aid in Australia lie in a combination of charitable and public legal aid services. From early this century the private profession provided a small service to the deserving poor in different states in the form of legal advice and casework particularly in criminal and matrimonial matters (Sackville, 1975). But there was also an early recognition by the federal and state governments that they could and should play a role in legal aid by employing salaried legal staff to provide legal advice and undertake legal casework. The earliest national publicly funded scheme, the Legal Service Bureau, was for servicemen and returned servicemen and their families after the Second World War. In recognition of the service undertaken for the society the scheme was designed for all defence personnel and their families, not just the deserving poor (Harkins, 1976; NLAAC, 1990). Some states also established Public Solicitor and/or Defender Offices after World War I, that undertook legal casework for needy citizens (Sackville, 1975). The range of schemes at the end of the 1960s was extensive but the services remained patchy in terms of the type of aid available, restricted to particular groups of citizens such as defence force and only a small proportion of the deserving poor who required legal assistance received it (Sackville, 1975).
In 1973 the Federal government established the Australian Legal Aid Office (ALAO), a national salaried service to provide legal aid to the low income citizens (Harkins, 1976; NLAAC, 1990). Under the new scheme half the casework was to be undertaken by the private profession with compensation provided by the government. New administrative arrangements were entered into in the late 1970s wheredby administrative responsibility for legal aid was passed to the states, but the Federal government retained a high level of financial responsibility. There are currently three sub programmes of legal aid in Australia: Legal Aid Commissions; Community Legal Centres; and Aboriginal Legal Services. The overall administration and funding of legal aid is undertaken at both the State and Federal levels (NLAAC, 1990; SSCLCA, 1992).
1. Legal Aid Commissions: The largest programme is provided by the public Legal Aid Commissions (LACs) which were established under state legislation in each state over the last 15 years, replacing the previous national ALAO. LACs are funded by federal and state governments, interest from solicitors trust funds, and increasingly from client charges and contributions. The membership of the management body of the LACs is often dominated by private profession lawyers.
Services - include legal casework (legal representation and duty lawyer services), legal advice, legal education and a small role in law reform. Legal casework services are provided by both salaried legal and paralegal staff in the LACs and by the private profession lawyers who are paid by the LACs. In 1991/2 the breakdown of legal casework was 40 per cent by LAC lawyers and 60 per cent by the private profession. Legal aid (casework) can be applied for at the LAC offices or through a private lawyer. The legal advice and other services are provided by staff at LAC offices only. Courts play no role in receiving or processing applications.
Law types - Legal advice is available in all legal matters. Legal casework is available for most law types, but with major exceptions - divorce, probate, first traffic offences,etc.
Eligibility - Legal advice is provided on a universal basis as a right of citizenship. It is free and not means tested in most states. <18> Legal casework is targeted to the deserving poor by means and assets tests and increasingly contributions are required from clients. The available evidence suggests that the vast majority of casework clients are income poor.<19>
Other services - Public education about the law and legal aid is provide through publications, videos, and legal training for social and community workers. There has been a consistent profile in independent law reform in relation to the legal matters experienced by clients.
Funding - grew steadily through the 1980s, after adjusting for inflation but has been effectively capped in the 1990s despite strong new growth in demand due to the recession. Expenditure by legal aid commissions was Aus$244 million in 1992/3 but is clearly not adequate as is demonstrated by the LACs in most states reducing the level of the means test, resulting in a smaller pool of notionally eligible poor people.
2. Community Legal Centres: Community Legal Centres (CLCs) emerged in the early 1970s as a community-based response to the perceived legal needs of particular (usually low income) communities. Some serve geographic communities, others serve special groups such as young people, women, tenants, or welfare beneficiaries. The 1980s saw a rapid growth of CLCs, partly stimulated by several major increases in funding. Currently there are over 100 CLCs around the country. They are mainly located in the capital cities, as the LACs are. The services complement the LACs and include a major emphasis on legal advice, a minor role for representation, and an emphasis on legal education to the relevant community. Services are targeted to the poor and disadvantaged in the relevant communities. But services are in a formal sense universal in that they are free and not means tested. CLCs cannot refuse to assist a wealthy client, however this is not a problem as the non-poor rarely seek help at such centres.
There is little research data available that quantifies exactly how many people are assisted and how many services of different types are provided by CLCs. But it was estimated in a recent report that 150,000 people nationally were provided with services from CLCs per year. There is also little research assessing their effectiveness and efficiency in terms of involvement in law reform and project work in local communities.<20> But there is little doubt that they play a valuable role in the provision of legal aid in the society.
3. Aboriginal Legal Services (ALSs): The 1970s also saw a rapid growth of legal aid agencies for Australian Aboriginal people. The ALSs are funded by the federal government but are community controlled and administered by councils of Aboriginal people. The ALS provides legal advice, representation and duty solicitor services exclusively to the Aboriginal population. Services are on a universal basis for all the citizens of the Aboriginal community - the are not provided on the basis of individual need to the deserving poor. They are also free and non-means tested for all Aboriginal people. There is little recent data or evaluative research available about ALSs.
Private legal profession: The vast majority of legal services in Australia are provided on the market by the private legal profession working in legal firms. In 1987/88 it was estimated that the private legal profession undertook 95 per cent of the legal work in the society, measured in terms of total expenditure on legal services (ABS, p 1990) The private legal profession also provides 60 per cent of the legal casework services provided by legal aid as part of the 'mixed salaried/judicare' model of provision. There is little data available about this industry in terms of the services that it provides and who receives them. There is also little recent and evaluative data in relation to the quality of those services (Weisbrot, 1990; Regan, 1990).
Legal insurance and charitable legal work: The profession has been subject to intense scrutiny in relation to its lack of responsiveness to market forces. It has been forced to discuss change to its organisation and practices, and has proposed mechanisms for providing legal services such as the idea of mandatory 'charitable' work provide by all practitioners in the form of 'pro-bono' work for low income people.<21> The pattern of private legal services provision is becoming more diverse and complex as the profession attempts to modify its relationship to the market. For example, there has been a slow growth in legal protection insurance schemes offered by private insurance companies, after some initial resistance from both insurers and the public. There is evidence of some success in two particular markets: demographic groups such as the elderly where legal insurance is offered as a part of existing policies; and second, as part of occupational benefits where members of a union are provided with legal insurance as part of the union membership. The policies tend to emphasise legal advice and referral to private lawyers on panels who may provide legal services at a discount. This form of insurance has not taken off in Australia and is unlikely to in the near future despite support given by governments in response to complaints from the non-poor about being ineligible for legal aid and yet not rich enough to pay their own legal costs.<22>
A small number of low cost 'legal clinics' have also been established by entrepreneurial members of the private profession, and Contingency Legal Aid Funds, based on a Hong Kong model, have been established by the private profession in some states to provide legal assistance in civil matters where the applicant is not eligible for legal aid due to income and assets. Such developments are not likely to have a big impact in the foreseeable future upon the provision of legal services to the community generally, or to the poor. But taken together these developments demonstrate that legal aid is not serving all who need legal assistance; that the market is responding with new 'products' in light of this need; and that the private profession is trying to ensure that it expands it role and remains as the provider of legal services rather than see an extension of publicly funded legal aid.
Legal aid in Sweden is a single, national, public programme which is nonetheless complicated to understand due to its comprehensiveness.<23> It is classified in the literature as a mixed model, the same as Australia's, where both private profession, and public salaried lawyers provide services to the citizens. Such a classification belies the existence and importance of fundamental differences between the two countries schemes.
Origins: The origins lie in relatively highly developed public and private arrangements at the turn of this century. Aid was available through the courts for civil and criminal matters on a means tested basis, but only for the deserving poor. In addition some local and county councils employed solicitors to provide legal aid and contracted private lawyers to undertake legal aid work which was reimbursed from state funds. 'Only the worst off in society could get such legal aid' (Riksrevisionsverket, 1992, p 13). But according to Bruzelius and Bolding (1975) the scheme as it had evolved prior to 1973 was extensive. More than 40 per cent of all completed civil cases in the lower courts during 1968 involved the plaintiff and/or the defendant receiving free legal proceedings - including court costs and lawyers fees. The network of offices, number of staff and the number of cases dealt with was extensive:
In 1971 the legal aid offices were staffed by 80 lawyers and the number of clients was 51,499. The number of matters files with the offices was 61,499, of which 11,840 resulted in actions, 2,094 were settled by conciliation, and the rest concerned all kinds of legal matters. The legal advice supported by the State was given by private lawyers in 8,938 matters, of which about 50 per cent concerned matrimonial and other family disputes. (Bruzelius and Bolding, p 564, Fn 16)The pre 1973 scheme was seen as inadequate for a range of reasons: it only assisted very poor people; it was seen as unfair that better-off citizens could not qualify for legal aid and so the system was according to Bruzelius and Bolding (1975, p 567) 'widely criticised'; also 'Citizens who were neither indigent nor well-off were at a disadvantage according to public opinion'; and it was noted by critics that a legally aided citizen was in an advantageous position in a court case compared to one who was not poor enough to qualify but who could not afford the costs of a lawyer; and in addition under the 'loser pays costs' rule they would have to pay the costs of the case if they lost but would stand little chance of recovering costs if the legally aided client lost; finally, the scheme was fragmented 'in the hands of a large number of authorities without any central co-ordination' (Hellners, 1976, p 85).
The present scheme came into existence in 1973 under major reforms in the Public Legal Aid Law of May 1972. The new scheme was designed to assist citizens in any legal matter where there was need for help regardless of whether it was in court or tribunal, only required advice, or required negotiations out of court. The other aim of the reform asserted that payment for legal aid was to be a partnership between the citizens and the state. The presenting minister proposed that:
The other basic demand is that legal aid ought to be granted to such an extent that no one on economic grounds is prevented from looking after his/her legal interests, but that each and all must contribute to the costs for legal aid according to capacity. (Riksrevisionsverket, 1992, p 13)The reform established a scheme where most citizens were eligible for aid and where services were provided by a combination of private lawyers, and salaried lawyers employed by a national network of Allmänna Advokatbyraerna, or Public Law Offices (PLO).
Types of aid<24> Sweden's aid is available in a number forms:
Legal advice - is available on almost any matter, including rules on divorce, tenancy matters, criminal matters, and wills and estates. Exceptions include income tax returns, and property registration. Any person or group, including companies can receive legal advice. Advice is available from the Public Law Offices, or from private lawyers if they agree to provide it as legal aid. Advice is available for up to one hour but if more is required the lawyer advises the client to apply for one of the other forms of aid. The charge for advice is a flat rate regardless of the applicant's income, though reductions in the form of subsidies are available for low income people. If the applicant then needs to apply for another form of aid, the cost of advice is usually deducted from the cost. Legal advice use appears to have declined over time as citizens apparently use other forms of aid due to costs, particularly General Legal Aid.
General Legal Aid (GLA) - is for legal work undertaken either in the formal court system or for legal work that is not litigation oriented. It can include writing letters, drawing up contracts, making telephone calls, and filing papers with courts, but also includes legal representation in civil and family law matters. For example, if a person decides to get divorced they can go to a lawyer and apply for general legal aid to have the divorce papers prepared and lodged in the courts. GLA is available only to private persons, and not to organisation and companies. Citizens can apply through a lawyer, any Court or Tribunals, or the Rättshjälpsmyndigheten (National Legal Aid Authority).
GLA is available after an assessment of the costs of the matter, and the clients income, assets and liabilities, and the number of dependents. Charges are levied as a flat 'base' charge that is adjusted for income and dependents, and is supplemented by a 'variable' charge that is linked to the amount of the legal costs involved. The total charge can therefore exceed the total cost of the matter in which case the client would not apply for legal aid but would pursue their action through a private lawyer or abandon it altogether.
Public defence counsel - Legal aid in criminal matters is, under Swedish law, available as a right to all citizens. All persons accused of criminal matters have an automatic right to a 'public defender' appointed by the court (in consultation with the defendant). The counsel is not appointed in minor criminal matters (such as traffic offences) except in exceptional cases. There is no cost to the client for this form of aid - the state pays all costs, and there is no means or asset tests. If the defendant is acquitted they are not required to pay anything, but if the person is found guilty of the criminal offence, they are required to pay the costs of the legal assistance as calculated under the GLA eligibility tests (see above).<25> The type of criminal cases that aid is available for has been progressively restricted by the government so that minor matters are not included (Riksrevisionsverket, 1992).
Public counsel - is available for people involved in disputes with the state in administrative matters such as taxation matters, or driving license matters. These are dealt with by a range of special 'Administrative Courts', a separate branch of the courts system where citizens have the opportunity to challenge the decisions of the state. Legal representation is covered as is preparation of documents by a lawyer to present to the courts. Aid is normally awarded by the court or authority dealing with the matter. It is free of charge and not subject to means tests.
Legal aid for complainant's counsel - is designed to assist people in having their interests represented as victims of crimes in criminal proceedings where this may not otherwise be done. For example, in cases where a victim of a crime wants evidence of the effect of the crime put to the court. Complainant's counsel is appointed by the court after the investigation has commenced. It is free to the applicant with all costs paid by the state though if the accused person is convicted they may be required to reimburse the state for the costs of the complainant's counsel.
Applications - Applications for legal aid can be made when a person appears in any court or tribunal, in which case the judge processes and decides on the grant of aid. Applications can also be made through the PLO, private lawyers offices, or through the National Legal Aid Authority. Legal advice is available from private lawyers or from the 26 PLOs around Sweden.
Other services - Other services are not major priorities. Education services are provided in a small programme of legal education publications produced by the National Courts Administration. There is no equivalent of the Australian programmes of educating local communities about the law and legal system. Law reform is not a priority given the highly centralised law reform process in Sweden.<26> Law reform initiatives are responded to by the National Courts Administration in light of the interests of legal aid.
Administration - The administration of legal aid is undertaken at two levels. The National Courts Administration (Domstolsverket) has overall responsibility for administration of budgets for courts and legal aid. The National Legal Aid Authority (Rättshjälpsmyndigheten) administers the more day to day functions such as paying lawyers for legal aid work, and processing some of the applications for aid. The 109 advocats employed by the PLO do not administer the scheme but provide services.
Private legal profession - There is a relatively small private legal profession in Sweden numbering some 3,489 Advocats. The private profession undertook 72 per cent of the legally aided work in 1991/2 and the Public Law Offices the remaining 28 per cent. The importance of the private profession in the overall provision of legal services in the society is very high, perhaps 95 per cent. But it was calculated in 1985 that only 5 per cent of defendants in criminal matters in the District Courts in Sweden employed private counsel, while more than 50 per cent were represented by advocats through legal aid (Public Defence Counsel). The distinction between private profession and the advocats in the PLO is also blurred due to the fact that the PLO are expected to perform in most respects as though they are private law firms, including making a 'profit' by undertaking legal work for non-legal aid clients to supplement public grants of aid.
Eligibility - Theoretically approximately 90 per cent of the population are eligible for general legal aid, but the affect of the charges involved and the means tests is that the low income group are the predominant users. It was estimated in 1992 that 80 per cent of the recipients of GLA had low incomes (Riksrevisionsverket, 1992). But GLA is available on a tapered means test to high income earners in high cost matters. Aid in other forms is, as we have seen, universally available, free and non means tested. However in practice it is not always a universal right. For example, aid in criminal matters (Public Defending Counsel) was restricted in 1984 so that it was no longer available in minor matters or for drink driving offences. As a result 44 per cent of 'the charged who were given a suspended sentence in 1985 had no public defence counsel'. And 35 per cent of those who were sentenced to prison did not have public defence counsel (Riksrevisionsverket, 1992, p 24). Nevertheless it is significant in terms of the importance of legal aid in the overall provision of legal services that only '5% of the charged in district courts in 1985 engaged private defence' (Riksrevisionsverket, 1992, p 24).
Legal expense insurance - This form of insurance is very common in Sweden. It has been estimated that 85 per cent of households have it as an add-on to general household insurance. The insurance typically covers areas of the law that legal aid does not, such as payment of costs if a party loses a case, or repayment to the state of costs of aid in criminal matters if one loses.
Charitable legal work - There is no evidence of charitable work undertaken by the profession for the poor.
Are there mean (Liberal) and generous (Social Democratic) models of legal aid as Esping-Andersen would predict? Below we discuss the evidence in terms of Esping-Andersen's criteria and the indicators discussed above. (The evidence is summarised in Table 2.)
1. Legal aid as a social right - The Swedish legal aid scheme is theoretically a social right for most citizens and in Australia it is primarily for the deserving poor. In Sweden 90 per cent of the population are eligible and Australia 20 per cent. This is as the models would have predicted. But in practice the citizens who use legal aid in both countries are mainly low income. In relation to legal representation , in Sweden under GLA clients are means tested and as a result are mainly low income, though a small proportion (20 per cent) are assisted who are not low income due to the high cost of their case. But aid for representation is also not necessarily a right in practice for the forms of legal aid where there is no means test, such as criminal matters, because other tests are imposed. For example, a high proportion of citizens are not legally represented in criminal matters in court by legal aid.
Legal
aid for representation in Sweden is therefore designed primarily
to assist the low income, but does not exclude the non-low
income if the case is high cost. As such it is a more generous
scheme than Australia's where the means tests exclude all
but the deserving poor. Legal aid for representation is therefore
a social right for a higher proportion of the population in
Sweden than in Australia. The contrast between the two countries
in relation to legal representation is presented in Table
1.
|
|
||
| Client income and matter cost | Sweden | Australia |
| 1. low income person, low cost matter | Yes | Yes |
| 2. low income person, high cost matter | Yes | Yes |
| 3. middle income person, low cost matter | Yes | No |
| 4. middle income person, high cost matter | Yes | No |
| 5. high income person, low cost matter | No | No |
| 6. high income person, high cost matter | Yes | No |
In Sweden legal advice is universal, available for all as a social right. But unlike Australia it is not free. All citizens pay a charge for advice, though the low income are compensated by the state. These differences are not what we expected but it is difficult to draw conclusions here due to problems in Swedish data. We do not know for example, who uses the service in Sweden. In Australia legal advice is universally available through legal aid, and is usually free and not means tested. But there is evidence that some low income people do not seek advice from legal aid, and further, that very few of the non-poor seek advice from legal aid (ABS, 1990) That is, despite the fact that advice is universal, free and non-means tested, Australians prefer to purchase legal advice on the market from a private lawyer. Legal advice users tend to support the liberal work ethic of fending for oneself rather than rely on the state.
Finally, we turn to the range of mattersthat aid is available for. In Sweden, legal aid for representation is more comprehensive than in Australia, with the qualification that there are restrictions upon legal representation in minor criminal maters in Sweden. There are more exclusions in Australia including divorce which aid is available for in Sweden. But there are signs of both societies excluding more matters for representation.
Legal advice is available in all legal matters through legal aid in both countries.
In
summary, and as predicted, legal aid is more of a social right
in Sweden than Australia in relation to the proportion of
citizens eligible and the comprehensiveness of matters covered.
But it is not as different as we expected. (The discussion
of legal aid as a social right in the two countries is summarised
in Table 2.)
| Country | ||
|---|---|---|
| Indicators | Sweden | Australia |
| 1. Citizens eligible | ||
| (i) representation | Most of population i.e. 90% | Deserving poor i.e.bottom 20% |
| (ii) legal advice | All citizens | All citizens |
| 2. Actual clients | ||
| (i) representation | Mostly low income (80%) | Deserving poor (80% state clients) |
| (ii) legal advice | Unclear | Mainly low income |
| 3. Matters covered | ||
| (i) representation | Most legal problems | Most legal problems but excludes divorce, traffic, probate, etc. |
| (ii) legal advice | All matters | All matters. |
| Country | ||
|---|---|---|
| Indicators | Sweden | Australia |
| Stratification between groups | Little evidence of antagonism due to blurring of eligibility divide, and role of legal insurance | Evidence of stratification and antagonism due to sharp divide between needy and rest |
Market provision of legal services is less dominant in Sweden than in Australia as demonstrated by the combination of generous eligibility provisions, the availability of GLA on a sliding scale, and the various types of free legal aid. There is also evidence that legal aid services are provided in something like 50 per cent of criminal cases in the District (lower) courts, and that in the 1980s at least, very few people (5 per cent) paid private lawyers to represent them in the District courts in criminal cases (Riksrevisionsverket, 1992). It is estimated that 4-4.5 per cent of all legal services in society are funded by legal aid. The situation is broadly what the Social Democratic model predicted - a lower level of market provision of legal services than in Australia where the market dominates to a higher degree as measured by the proportion of all legal services in the society provided by legal aid (approximately 5 per cent), the eligibility restrictions for legal aid, and the small proportion of cases in the courts undertaken by legal aid - 25 per cent of criminal cases in the lower (Magistrates) courts. There is also evidence that the poor and non-poor alike continue to pay for some legal services on the market. (This is true for advice, but it is not known how often it is the case for legal representation.) The situation is as the Liberal model predicted - a high level of purchase of legal services on the market.
Other indicators are more difficult to interpret. For example, the private legal profession in Sweden undertakes 72 per cent of legal representation funded by legal aid<28>, while in Australia it undertakes 60 per cent. The private profession is also more prominent in Australia in administration of legal aid through its members sitting on the Legal Aid Commission boards. The former is not very significant for our purposes unless there is evidence of a clear trend away from legal aid provided by the public lawyers in Sweden, which may represent a decline in public provision, but even this is not necessarily true if the state still pays the bills.
The
lawyer per head of population ratios are also very different.
For Sweden in 1993 we estimate it to be 1:2,450, and the legal
aid lawyer per head of population ratio as 1:79,357. For Australia
the same ratios are 1:600 and 1:19,585 respectively. Again
the implications are not very significant for our purposes,
rather the data may tell us more about the importance of the
lawyer in the legal system in society, namely that lawyers
are more necessary for legal work in Australia. Nevertheless
it is a surprise that the ratios are so low for Sweden.
| Country | ||
|---|---|---|
| Indicators | Sweden | Australia |
| 1. Private market for legal services | Market purchase of majority of legal services in society (95 per cent) | Market purchase for vast majority of legal services in society (95 per cent) |
| 2. Private lawyers role in legal aid | 72 per cent of representation work done by private lawyers | 60 per cent of representation work done by private lawyers; dominate administration boards |
| 3. Legal aid as per cent of court work | Key provider of representation (40 per cent of minor criminal matters) | Minor provider of representation (25 per cent of minor criminal matters) |
| 4. Lawyers per head per head of population | 1:2,450 (estimate 1993) | 1:600 (estimate 1993) |
| 5. Legal aid lawyers per head of population | 1:79,357 (estimate 1993) | 1:19,585 (estimate 1993) |
| 6. Stability of legal aid | Slow growth in funding;high levels of public support | Slow growth in funding; public support for assisting deserving poor |
| 7. Expenditure<a> per capita(US$) | 16.55 (1991) | 10.58 (1992) |
| 8.Services<b> | ||
| (i) legal advice | (data not reliable)<c> | 10.8 |
| (ii) legal representation | 8.97 | 7.1 |
| (iii) duty solicitor | Not applicable | 11.9 |
| 9. Take-up rate | High in all services | High but evidence that eligible citizens also purchase on market |
| 10. Legal insurance | Widespread,complements legal aid | Very little market penetration |
| 11. Legal charity | No evidence of renewed interest | Evidence of renewed interest |
a. The expenditure is based on the following data: The expenditure
is taken from Riksrevisionsverket (1992) for Sweden, and OLAFS
(1994) for Australia. The amount was converted using an average
for that year taken from IMF (1993). The expenditure on legal
aid in Sweden in was 1991 SK719.6 (million), and population
of 8.6 million, and the exchange rate used was US$1:6.0445 SKR.
The Australian expenditure in 1991/2 was $Aus253.6 (million)
and population of 17.6. The amount was converted using a rate
of US$1:0.7353 Aus$.
b. Per 1,000 population, for 1991/2.
c. Data not available for legal advice provided by private law
firms.
The legal aid scheme in Sweden is large and prominent in the society and the legal system, and has proved to be relatively strong and stable. The funding has outstripped inflation over the last fifteen years. But Sweden's scheme is also facing the pressures common to other countries to cut costs, restrict eligibility, increase efficiency, and the government is investigating ways to reduce the demand for services (Riksrevisionsverket,1992). Legal aid in Australia is by comparison small, less prominent in the society and legal system, but it has also proved to be resilient over time. The funding has also outstripped inflation over the last 15 years. But it has also had to face the pressures to contain cost, increase efficiency, etc. Many LACs have resorted to cutting the means test in order to restrict the growth in the numbers of people eligible for legal representation. One measure of political support and hence stability, is that the funding has continued to grow in both countries, which is not what we would have expected. The explanation may lie in the fact that the Labor (Social Democratic) party governing nationally for the last 11 years, has aimed at budget restraint while attempting to protect the poor and disadvantaged.
The public expenditure on legal aid in the two countries reminds us of the dangers of simple comparisons of expenditure. Swedish expenditure on legal aid in 1991 was $US16.55 per head of population and for Australia in 1991/2 was $US10.58 per head. On the basis of this data the Sweden spends 56 per cent more on legal aid per head of population than Australia. Such a difference is not unexpected given the generosity of the welfare system in Sweden but we might expect that the different expenditure levels would translate into higher levels of services per head of population in Sweden. However this is not the case. The legal representation services funded by legal aid in Sweden in 1991 were 8.97 per 1,000 head of population, while in Australia in 1991/2 they were 7.82 per 1,000 head of population. In addition if we include in the Australian data the figures for the Duty Solicitor Service, (of which there is no equivalent in Sweden) the total legal casework services are 19.0 per 1,000 population, a figure which is double Sweden's. The difference in the two countries ratios are so dramatic that it suggests that differences within the legal systems themselves may be decisive here. It is an area for further research rather than drawing conclusions at this point. (Unfortunately we can not draw conclusions about Swedish legal advice because the data does not include advice provided by private lawyers.)
Legal protection insurance is prominent and widespread in Sweden but rather than it filling a large void left by a small legal aid scheme (as we expected for Australia), it complements legal aid by covering gaps in the public provision. But there is also evidence that this role may be changing as the Swedish government is investigating the capacity of insurance to cover more of the work that legal aid currently provides. The government is keen to reduce public spending on legal assistance and encourage households to provide for more of their own cover by insurance, a sign of a desire to rely more heavily on the market for legal services. There is no evidence available to the author in relation to an emerging pattern of charitable legal work being undertaken by the Swedish private profession. In Australia by contrast legal insurance has had little impact to date but governments continue to look to it as part of the response to the inadequacies of legal aid. There is also evidence of responses by the legal profession that aim to maintain the dominance of market provision of legal services, including Contingency Legal Aid Funds. There is also evidence of renewed interest in the legal profession undertaking charitable legal work an organised basis especially in view of the inability of legal aid to meet all the needs for legal work by low income people.
The direction of change in Sweden is to rely more on the market. The result may be that legal aid in Sweden becomes the preserve of the deserving poor as the non-poor are excluded and forced to purchase private insurance to cover what legal aid covered previously. The direction of change in Australia is similar but from a meaner starting point.
We can conclude that legal aid in Sweden and Australia is broadly in line with the welfare state models proposed by Esping-Andersen. It is in many respects more generous and comprehensive in Sweden than in Australia. In some ways this is not a surprise - it would be peculiar if legal aid policy was markedly different to the overall pattern of development of welfare in the two countries. But there were also some surprises in the analysis.
One way to compare the two schemes and to highlight their relative merits is to consider hypothetical citizens with different incomes. If you are poor in either country you will be pretty well served by legal aid, regardless of the type of legal problem that you have and whether you need legal advice or the services of a lawyer to represent you in court. But you will be more likely to have your legal problem dealt with in Sweden due to the comprehensive coverage. If you are not poor and you need to go to court, or get divorced you are better off in Sweden than in Australia. If you are only in need of legal advice, you are better off in Australia regardless of your income, where advice is comprehensive, universally available and free. Finally, if you need to find out if your problem is one with legal content, and you want to find out your options, (that is, if knowledge about the law and legal processes is required), you are better off in Australia where legal aid places a priority on educating the community about the law. The two schemes viewed in this light have some similar and some different priorities. In particular both place a high priority upon legal advice and representation. Such a priority also reflects the priorities of the legal system in each country - that legal solutions are available to many problems, and that the citizens expect legal aid to assist with the solutions. The emphasis on formal legal solutions is demonstrated in Table 5 where the priorities of the two countries schemes are classified.
The table also highlights that the schemes differ in the priority that they give to education and law reform.<29> From this perspective, Australia has developed some different strengths to Sweden, such as the higher emphasis upon legal education and independent law reform proposals. However, these are at least partly a result of Australia's insistence upon keeping disputes within the legal system rather than no-fault insurance which lead to court proceedings characterised by expense and long delays. The point is not to argue here that one scheme is better, but rather to note that the approach used here helps to identify differences (strengths and weaknesses) of apparently similar schemes. Seen in this light it is clear that there can be no simple statement made about which country's legal aid scheme is better. It depends at least partly upon how the legal system works, what matters are processed as legal and what are labelled something else.
|
|
||
|
|
|
|
| (i) Legal advice |
|
|
| (ii) Legal casework |
|
|
| (iii) Legal education |
|
|
| (iv) Independent law reform |
|
|
Are there mean and generous legal aid schemes? We conclude that Sweden's legal aid is more generous and comprehensive than Australia's, but not by as much as we might have expected. In particular, legal aid is a more extensive social right in Sweden, the dividing line between those eligible and ineligible is more blurred, and in many respects the market is less dominant in the provision of legal services. Given the relatively more developed welfare state in Sweden the surprise is that the two schemes are as similar as they have been shown to be. We expected greater differences. The question arises then of whether legal aid is a special case of social welfare provision, so that it is for some reason, less generous and comprehensive than other programmes in Sweden, and more generous in Australia than we expected. Alternatively it is possible that Esping-Andersen's typology itself may be flawed in its capacity to analyse legal aid, or that it is flawed in its conceptualisation at a deeper level. At this point it is fair to conclude that legal aid may be the special case, but further research is needed to clarify this issue.
There are some other strengths of Australia's scheme compared to Sweden. First, Australia offers a choice of providers to the citizens - public, private, and community based; second it places more emphasis on preventing legal problems by way of legal education and law reform; and third it appears to do more with less money in terms of the range of services provided and the number of per capita services provided. So while we can conclude that overall Sweden is more generous and comprehensive, the analysis also suggests that we need to highlight 'How' a scheme is generous and comprehensive. If it is in some areas is it also in others? The answer to the 'how' question is not a simple matter of comparing social rights and the role of the market. A more sophisticated analysis from a number of vantage points is required.
The direction of change in the two schemes is also similar - they are both becoming less generous and comprehensive as governments in both societies restrict funding, shift costs to the clients when they are eligible, and investigate how to encourage citizens to use the market rather than public provision. But the emphasis on the common direction of change must also not disguise the fact that the restrictions are from a more generous starting point in Sweden.
Can we conclude that one scheme is better than the other? No, at this point it does not follow that we can draw such a conclusion. It depends. It depends upon the reasons for policy choices made in relation to legal aid, which will be at least partly shaped by the structure of the legal system. At this point it is not possible to make a judgement as to which is better because of the difficulty of determining what this means.
We now turn to make some observations about the approach used in the paper. Does the adaptation of Esping-Andersen's typology tell us more than the funding/personnel approach? On the basis of the discussion here, viewing legal aid through the lens of the welfare state is a major advance in the level of detail that it provides, and the way that strengths and weaknesses of legal aid can be identified in different societies. The approach should therefore be developed and applied to other societies.
There are also some weaknesses to note. First, the approach may lead to problems of interpretation if differences between schemes are taken out of context of the legal system that shapes the particular legal aid scheme. This is a major, but not insurmountable, problem for future development of this approach. Second, the approach downplays issues such as the question of choice by emphasising the role of the market. While we concluded that Sweden's aid is more generous and comprehensive, we can also note that there is no choice - consumers cannot choose, for example, to go to community based legal aid because it does not exist. In Australia by contrast the consumer has a choice of private lawyer, public lawyer, or community based lawyer for at least some legal aid services. While choice should not be the only criteria used for evaluation it also should not be excluded. There is something valuable about enhancing choice of who you see for your problem.<31> It is a good thing for legal aid to encourage 'multiple entry points' for the citizens to be able to choose how they get legal help, provided of course that there is not extensive duplication.
The approach also misses other features that may be critical to a comprehensive analysis. For example, the sources of change and innovation in legal aid policy are not highlighted, but this is important if we want to understand how changes occur. In the case of Sweden the lack of community based aid may have limited the possibilities of legal aid doing more than provide advice and representation, because the community sector may be an important source of reform and renewal within legal aid. In Australia, for example, impetus for innovation in legal aid has often come (partly at least) from the community sector. Examples include: 24 hour telephone advice for young people; legal practice manuals for legal aid lawyers; innovative publications such as legal 'comics'; computer programmes for calculating social security eligibility. In Sweden, if private law firms do not press for innovation in legal aid and do not offer other services, the PLO can not reasonably be expected to be any different. The absence of community based legal aid may therefore partly explain why Sweden's priorities are primarily legal advice and representation. It also does not look promising for the future. If public provision is wound back in Sweden, ironically, given Sweden's record of generous public provision, there may be little alternative for citizens but to rely more heavily on the market, as there is nowhere else to go. There is no community sector for them to turn to. In this way the case of legal aid has not only exposed weaknesses in Esping-Andersen's approach, but it has also raised the issue of whether a social policy that does not promote community based service provision results in a lopsided welfare state that may in the long run carry within it the seeds of its own destruction.
Finally, Esping-Andersen's approach highlights again the weaknesses of the funding/ personnel framework. It leads us to consider anew the way that legal aid is shaped by its context, particularly the legal and social welfare systems of the society that it is within, and that it cannot be understood or accurately compared outside of that context. Future research will need to grapple with how to better integrate these systems into an analysis of legal aid in different societies. The result will be a major advance upon the funding/personnel approach.
Abel, R., (1985), 'Law Without Politics: Legal Aid Under Advanced
Capitalism', UCLA Law Review, Vol 32, p 474.
Abel, R. and Lewis, P. (eds)(1988/9), Lawyers in Society,
3 volumes, UC Press, Berkely.
Australian Bureau of Statistics (1991), 'Usage of Legal Services,
New South Wales, October 1990', ABS, Canberra, Cat. No. 4510.1.
Australian Bureau of Statistics (1990), 'Legal Services Industry,
Australia, 1987-88', ABS, Canberra, Cat.No.8667.0.
Blankenburg, E. (1992), 'Comparing Legal Aid Schemes in Europe',
Civil Justice Quarterly, Vol 11, p 106-114.
Bjurulf, B. and Swahn, U.(1980), 'Health Policy Proposals
and What Happened to Them: Sampling the Twentieth Century
Record', in Heidenheimer, A. and Elvander, N. (1980), The
Shaping of the Swedish Health System, London: Croom Helm.
Bruzelius, A. and Bolding, P.O. (1975), 'An Introduction to
the Swedish Public Legal Aid Reform', in Cappelletti
et al. (1975).
Butterworth, A. (1992), 'Alternative Funding Schemes', Paper
to Legal Aid: Legal Access Conference, Sydney, February.
Cappelletti, M. et al. (eds) (1975), Towards Equal
Justice, Oceania Publications, New York.
Cappelletti, M. and Garth, B. (eds) (1978/9), Access to
Justice, 4 Volumes, Alphen aan den Rijn, Sijthoff and
Guiffre.
Cochrane, A. and Doogan, K.(1993), 'Welfare Policy: The Dynamics
of European Integration', Policy and Politics, Vol
21, No 2, p 85-95.
Cousins, M. (1993), 'Legal Aid in France, Ireland, The Netherlands
and the United Kingdom - A Comparative Study', Civil Justice
Quarterly, Vol 12, p 154-166.
Esping-Andersen, G. (1990), The Three Worlds of Welfare
Capitalism, Polity, Cambridge.
Foster-Bunch, P. (1992), 'Problems and Solutions', Paper to
the Legal Aid: Legal Access Conference, Sydney, February.
Goriely, T. (1992), 'Legal Aid in the Netherlands: A View
From England', Modern Law Review, Vol 55, No 6, p 803-821.
Harkins, J. (1976), 'Federal Legal Aid in Australia', Paper
to the International Colloqium on Legal Aid and the Delivery
of Legal Services, London.
Hellners, T. (1976), 'Legal Services in Sweden for Deprived
Persons', Paper to the Sixth Colloquy on European Law, University
of Leyden, May 1976.
International Monetary Fund (1993), International Financial
Statistics Yearbook, IMF, Washington.
Lindblom, P. (1988), 'Procedure', in Strömholm, S. (1988),
An Introduction to Swedish Law.
Miles, D. (1992), 'Address to Conference', Paper to
Legal Aid Legal Access Conference, Sydney, February.
Mossman, M.J. (1993a), 'Toward a Comprehensive Legal Aid Programme
in Canada: Exploring the Issues', Windsor Review of Legal
and Social Issues, Vol 4, p 1-90.
Mossman, M.J. (1993b), 'Gender Equality and legal Aid Services:
A Research Agenda for Institutional Change', Sydney Law
Review, Vol 30, p 30-58.
NLAAC (1990), Legal Aid For the Australian Community,
AGPS, Canberra.
Office of Legal Aid and Family Services (1991a), Community
Legal Centres: A Study of Four Centres in New South Wales
and Victoria, OLAFS, Canberra.
Office of Legal Aid and Family Services (1991b), Profiles
of Applicants for Legal Aid 1990, OLAFS, Canberra.
Paterson, A. (1991), 'Legal Aid at the Crossroads', Civil
Justice Quarterly, April 10, p 124.
Regan, F. (1993a), 'Legal Aid Without the State: The Case
of Uganda', Unpublished paper.
Regan, F. (1993b), 'Is it Time to Rethink Legal Aid? Beyond
Lawyers and Money', Paper to the Socio-Legal Studies Conference,
Exeter, England, April.
Regan, F. (1991a), 'Lawyers, Legal Advice and Social Policy',
Legal Service Bulletin, Vol 16, No 5, p 227.
Regan, F. (1991b), 'Legal Aid for the Poor or the Community?',
Flinders University Studies in Policy and Administration No.7,
Flinders University of South Australia, Adelaide.
Regan, F. (1990), 'Some Revelations About the Legal Industry',
Legal Service Bulletin, Vol 15, No 5, p 204.
Riksrevisionsverket (1992) Rättshjälpens Effektivitet
- Regeringsuppdrag (National Audit BureauThe Efficiency
of Legal Aid - Government Commission) Stockholm.
Sackville, R. (1975), Legal Aid in Australia, AGPS,
Canberra.
Senate Standing Committee on Legal and Constitutional Affairs
(SSCLCA) (1992), 'Legal Aid: For Richer and For Poorer', Inquiry
into Cost of Legal Services and Litigation, Discussion Paper
No.7, AGPS, Canberra.
Strömholm, S. (ed) (1988a), An Introduction to Swedish
Law, Stockholm: Norstedts.
Strömholm, S. (1988b), 'Introduction', in Strömholm(1988a).
Vernon, J. and Regan, F. (1991), Improving Access to Justice:
The Future of Paralegal Professionals, (Conference Proceedings
No.3) Australian Institute of Criminology, Canberra.
Victorian Legal Aid Commission (1991), Client Survey,
VLAC, Melbourne.
Weisbrot, D. (1990), Australian Lawyers, Longman Cheshire,Melbourne.
Wennemo, I. (1992), 'The Development of Family Policy: A Comparison
of Family Benefits and Tax Reduction for Families in 18 OECD
Countries', ACTA Sociologica, Vol 35, No 3, p 201-217.
Young, M.W. (1991), 'The Need for Legal Aid Reform: A Comparison
of English and American Legal Aid', Cornell International
Law Journal, Vol 24, p 379-405.
Zemans, F. (1985), 'Recent Trends in the Organisation of Legal
Services', Anglo-American Law Review, Vol 14, p 283.
<1> The author gratefully acknowledges
the discussions with, and practical assistance from, a diverse
group of analysts and policy makers in the preparation of
this paper, especially: Tamara Goriely and Alan Paterson in
the UK; Don Fleming, Jenny Burley, Peter Travers, and Annelies
Groothedde in Australia; and Hans-Erik Jonasson and Ola Ling
in Sweden. Students in my 'Access to Justice' course at Flinders
University over the last three years have also had to bear
with many of the ideas being tested out in classes.
<2> The term 'Funding/Personnel' framework
is outlined below.
<3> The present paper is an attempt to
build upon recent comparative analysis of legal aid by scholars
which can all be seen as attempting to go beyond the funding/personnel
framework. See, for example, Paterson (1991), Blankenburg
(1992), Cousins (1993), Goriely (1992), and Regan (1993a;1993b)
<4> For example, see the discussion of
the provisions of the different legal aid schemes in Cappelletti,
Gordley and Johnson (1975), especially the second part of
the book. More recent discussions adopt the same aproach.
See Paterson (1991) and Young (1991).
<5> The discussion of the Funding/Personnel
framework draws heavily upon Regan (1993b).
<6> For recent examples see Paterson (1991),
Mossman (1993) and Young (1991).
<7> These criticisms are further developed
in: Regan (1993b).
<8> See the recent discussion in Mossman
(1993)
<9> Some writers have seen the link with
the welfare state in terms of the social control functions
of the welfare state and the way that profesions such as lawyers,
participate in this. See Abel (1985)
<10> See discussion in Esping-Andersen
(1990) especially Chapter 1. Also see the discussion below
in this paper.
<11> The typology has been positively
received in the literature given its capacity to group societies
according to a range of criteria other than expenditure. It
has also been criticised for weaknesses including: that it
fails to take account of gender and that it implies continuity
of a society within a model. See Cochrane and Doogan (1993).
<12> The approach has been used to analyse
other areas of policy. For 'Family Policy' see Wennemo (1992).
<13>The paper is an initial application
of the typology to legal aid and includes only the two countries
mentioned, so there is no discussion of the third model, the
Corporatist welfare state.
<14> See the detailed discussion in Esping-Andersen
(1990) especially Ch.1.
<15> Esping-Andersen refers to this latter
criteria as 'de-commodification'. He argues that variations
between welfare states '..reflects competing responses to
pressures for de-commodification.' De-commodification is defined
as 'the degree to which individuals, or families, can uphold
a socially acceptable standard of living independently of
market participation' (1990, p 37). We will use the more readable
term 'market dominance'.
<16> The second cluster, the 'Corporatist'
includes many of the European societies. Esping-Andersen (1990).
<17> The indicators used here should be
seen as a provisional. They will be refined in future research.
<18> The Queensland LAC charges for legal
advice on a means tested basis.
<19> The Victorian Legal Aid Commission's
1991 Client Survey reported that '70.19 per cent of all applications
(for aid) and 75.16 per cent of all assisted applicants had
household incomes which were below the poverty line.' The
Office of Legal Aid and Family Services (OLAFS) reported that
62.1 per cent of applicant s for legal aid nationally in 1990,
were in receipt of a Commonwealth (Australian) pension or
benefit and that 52 per cent of those applying for aid in
February 1991 'had no weekly disposable income left after
allowances for such expenses as rent or mortgage and childcare
fees' (OLAFS, 1991b).
<20> For a detailed but descriptive study
of four CLCs see Office of Legal Aid and Family Services (1991a).
<21> See recent discussion in Miles (1992).
The legal profession in the USA also promotes pro bono work,
as Esping-Andersen would predict.
<22> Discussion of recent developments
is in Butterworth (1992), Foster-Bunch (1992) and SSCLCA (1992).
<23> For a recent introduction to Swedish
law (in English) see Strömholm (1988). For description
of legal aid in Sweden see Lindblom (1988).
<24> Source for this discussion: Domstolsverket
(The National Swedish Courts Administration) (1991) Legal
Aid, Domstolsverket, Jönköping. (12 page booklet
on legal aid, in English).
<25> The provision of criminal legal aid
is unusual in comparison to schemes in other societies, not
in the way that it provides a right to criminal legal aid
for all, but in the way that it treats those who are found
guilty. The English scheme is similar in its generous treatment
of defendants, but it does not have the 'clawback' mechanism
that the Swedes have developed.
<26> The Swedish approach to law reform
is centralised in the Riksdag (parliament). See the overview
in Stromholm (1988). For an account of the process in relation
to health reform see Bjurulf and Swah (1980).
<27> The last five years have been marked
by a large number of inuiries into the costs of the justice
system at the national and state levels. See for example:
The Australian Senate's 'Inquiry into the High Cost of Justice'
(1989); the South Australian Parliament Legislative Review
Committee's 'Court Systems Inquiry' (1993).
<28> However the 'Allmäna Advokatbyraerna'
or Public Law Offices (PLO) in Sweden are an example of where
the private/public distinction is not very useful. It can
even be said to break down under scrutiny. The PLOs are difficult
to categorise as they were estabished as 'public' offices
but have always been (and are currently) expected to operate
as much as possible as private law firms. Indeed to all intents
and purposes they are some form of quasi private offices,
given that they look and act like private law firms and they
are expected to make a 'profit', that is, the 'income' of
each of the 26 PLO which includes public money, is expected
to exceed the costs of running the office. The income is partly
derived by the PLOs undertaking legal work for non-legally
aided clients.
<29> The table also suggests that the
priorities in legal aid reflect the priorities of the legal
system generally. For example, in Sweden there is less need
for legal assistance for accidents due to the range of no-fault
insurance schemes available. In addition the Sweden has made
use of Ombudsmen in different areas of disputes which divert
matters out of the courts. As a result there may be less need
for legal education in Sweden if some problems are labelled
'administrative' rather than 'legal'. The legal system differences
may also be one of the reasons why the legal aid services
per head of population are different to those in Australia
- the Swedish society has removed some disputes from the legal
system. The different lables given to problems may also part
of the reason why there has been little role for mediation
and other 'Alternative Dispute Resolution' in Sweden compared
to Australia (Riksrevisionsverket, 1992).
<30> The classification of priorities
needs be complemented by an analysis of priorities in terms
of the law types that aid is granted for. A preliminary comparison
indicates that Australia gives a high priority to representation
in criminal matters, whereas Sweden places relatively more
emphasis on family matters.
<31> Indeed it can be argued that Sweden
provides no effective choice to consumers as the PLOs are
a weak public sector alternative to private law firms in view
of the fact that they were established to be as similar as
possible to the private firms (Hellners, 1976).