The tenth annual conference of the International Legal Aid Group (see www.ilag-net.org) was held in The Hague in June. I read all the papers; reviewed all the presentations; and attended all the sessions (except the criminal one which shared time with quality). I required nudging to keep awake only once (the consequence of chronic insomnia, no fault in the presentation). The conference’s title, ‘Legal Aid in Difficult Times’, provides a pretty fair summary of the major theme, though here and there were rays of sunlight.
The core of this group of legal aid administrators, academics and the occasional activist have been meeting since the tireless – if sometimes harassed – Professor Alan Paterson pulled them together for the initial event in the same place back in 1992. Thus, there is a degree of shared experience and history which provides a solid common core for experience. A tribute to the breadth of support was indicated by the fact that sponsorship came from governments or legal aid institutions in no less than seven jurisdictions. Asia was well represented – with reports from the People’s Republic of China, Hong Kong, (which has a separate scheme), Japan and Taiwan. The countries that you would expect were present: Australia, Canada, USA, Scotland and England and Wales.
Over the years, attendance has grown and reached over 100 at this event. Even so, in terms of using the conference to gauge the temperature of legal aid round the world, there is an unavoidable element of serendipity, depending on the chance of invitations and availability. And, indeed, the ILAG conference was never conceived as a world congress on legal aid: it was supposed to be of use to those running established schemes. Nevertheless, there were no less than 23 national reports and various thematic ones.
There are some caveats to be made about taking lessons from the papers to the conference apart from the chance of those jurisdictions in attendance. The breadth of countries was mirrored by a similarly varied cast of participants – with academics, activists, civil servants and administrators all manifesting their institutional prejudices to a greater or lesser extent. Government officials have little room but for coded messages to imply that their government’s policy is little less holy than the tablets brought down by Moses from the mountain. By contrast, someone like Alan Houseman of the US’s Centre for Legal Aid and Social Policy or Steve Hynes of England’s Legal Action Group has a support base up for a bit of informed criticism. Academics, of course, have such freedom as may be accorded by the funders of their research.
Countries can be classed in different ways. All the countries in Europe, for example, are bound by the European Convention on Human Rights. A number (including Scotland and the Netherlands) have had to scramble to comply with decisions of the associated European Court of Human Rights that requires duty lawyers during police interviews (Salduz v Turkey). Few emphasised the role of the European Convention as a standard setter – though its protection of legal aid has been evident in the shape of cuts in England and Wales and elsewhere. Another way of grouping states would be in relation to their history. Countries like those in eastern Europe or China share a struggle to re-orientate their legal systems away from the legacy of communist government. As one contributor put it, the emphasis of the criminal justice system in these countries is changing from the primacy of finding facts and punishing guilt to a greater respect for the procedural rights of the suspect. Reform in this area is variable: some states are surging ahead. China, creditably, is committed to a reform process: so too is Moldova – a country with much less resources. In other states, progress can be somewhat glacial. Poland has teetered on the edge of legal aid reform for some years but not actually done much.
Anglophone countries tend to have much in common. This results, no doubt, from a common language, an easily shareable history and a shared adversarial legal system. The USA led developments in the 1960s and 70s – putting an emphasis on civil rights as well as criminal ones. That was followed by the countries of the UK, the provinces of Canada and the states and territories of Australia. All of these are now feeling a financial squeeze which puts pressure on the level of services once provided. However, they all still recognise, albeit in varying and residual degrees, the value of civil coverage and, as part of that, what the Brits would call ‘social welfare’ law and the North Americans ‘poverty’ law. Australia and Canada have been particularly attracted to the need to meet public legal education and still fund elements of it. South Africa’s community justice centres are a base for both criminal and civil services. The US still hankers after impact litigation. Earl Johnson gave the conference a rousing justification for such engagement – returning like a prodigal grandfather to the legal services movement of his youth when he led the Legal Services Corporation at the height of its powers. Indeed, even when funding is low and times are hard, the Americans can talk a good game. The US Congress is holding down the corporation’s current budget but senior officials in the Obama administration from the President down have been willing to attend legal aid events and associate themselves with the cause.
Cuts and economic uncertainties have called a halt to planned reforms in a number of countries. This has been a worldwide effect, particularly in countries badly hit by the recession. Japan’s expansion of legal aid has come to an abrupt halt. Ireland’s funding for civil cases through its Legal Aid Board had dropped sharply since 2008 and it has lost 16 per cent of its staff. Jurisdictions like British Columbia and those in Australia are living with the impact of even earlier major reductions in expenditure and progammes.
The vulnerability of the UK jurisdictions to comparative study was demonstrated in figures of spending per head of population. England and Wales topped the table at 44 euros with Scotland just behind at 31. The justifications for this are well rehearsed, particularly in England, Wales and Scotland. The examples of China’s 0.11 euro per head or Moldova’s 0.44 are probably not much of a political threat. But, Canada gets it down to just under 17 and the Netherlands to just under 30. These understandably tempt politicians. In any event, the underlying concern can be seen from the titles of some of the sessions: ‘Cuts and what else?’, ‘Safeguarding quality in difficult times’ and ‘Coping with the consequences of financial retrenchment’.
There were three positive themes which emerged. The first involved much talk of ‘unbundling’ services. This is the idea that a case may be broken down into its component parts and assistance given only to some, leaving the person to undertake the rest. Some jurisdictions have been forced to make the best of this form of provision because there has been nothing else. In the US, the courts of California have become a leader in assisting unrepresented litigants through the court process, keeping just shy of acting for them. This has apparently been very successful. Research on the work of the court-based Citizens Advice Bureau in London proved a bit equivocal about how effective this form of help seemed to be, at least in a British context – though California and Scotland appeared to have a happier story to tell.
The second theme was the ‘hit’ of the conference – the potential use of new technology. Again, some of the researchers wanted to be a bit cautious about this. Studies from the now defunct Legal Services Research Centre in England and Wales suggested that use of the internet, even among the young, was pretty hit and miss. Nevertheless, the Dutch had the most upbeat message with their promotion of their ‘rechtwijzer’ website – for which they even had a snazzy video. Personally, I am an unashamedly big fan. I think it is a game changer in terms of using the potential of the internet not just to provide information on their legal position but to take people through the process of resolving their dispute. There were also presentations on the use of new technology in the States; how best to use telephone hotlines; and how facilities like document assembly programmes might be used both in a legal aid and a private practitioner context.
Finally, there was a potentially really interesting – though somewhat muted – debate about outcomes. This emerged here and there in papers – most directly in response to the influence of a forthcoming Australian ‘Productivity’ review. The question is this: what are the outcomes against which we can measure the success (or failure) of legal aid? Adherence to the European Convention can provide one benchmark. Recently developed guidelines and principles from the UN provide others in relation to crime. More broadly, work in the Australian Capital Territory had had a go at developing a wider range of outputs. One difficulty is that the answer really ought to focus on the ultimate result: for example, if there was a dispute, was it settled fairly? Put in that way, the provision of legal services becomes only part of the outcome to be measured. A full answer would require an integrated assessment both of the assistance given by legal aid and the ultimate resolution, whether by way of court, tribunal or otherwise. That requires a degree of joined up thinking for which many, particularly the Dutch, explicitly hankered but which was hard to attain.
There was enough in this conference to justify the astonishingly reasonable cost of attendance to the most cavilling of treasurers and finance officers. Enough too to justify its next meeting its hosting by Scotland in two years’ time. By then, we will be in a better position to appraise what new technology can deliver. We will also see whether the Scots can meet the quality of Dutch hospitality. Bring it on.
