MAIN FEATURES OF WORLD LEGAL AID SYSTEMS

PROFESSOR DAVID McQUOID-MASON

UNIVERSITY OF KWAZULU-NATAL

SOUTH AFRICA

1. INTRODUCTION

• SPECIALIST LEGAL AID BODIES

• LEGAL AID IN THE MINISTRY OF JUSTICE

• SEPARATION OF FUNCTIONS OF ADMINISTRATION AND DELIVERY OF LEGAL AID

• LEGAL AID AND THE LEGAL PROFESSION

• SEPARATE LEGAL AID BUDGET

• DIVERSITY OF LEGAL AID PROVIDERS

2. ESTABLISHMENT OF SPECIALIST LEGAL AID BODIES: INTERNATIONAL EXPERIENCE

• INTERNATIONAL BEST PRACTICE SHOWS THAT MOST COUNTRIES WITH SOPHISTICATED LEGAL AID SYSTEMS HAVE ESTABLISHED INDEPENDENT SPECIALIST BODIES

• EXAMPLES OF DEVELOPED COUNTRIES WITH SPECIALIST LEGAL AID BODIES ARE ENGLAND, THE NETHERLANDS AND NEW ZEALAND

• EXAMPLES OF DEVELOPING COUNTRIES WITH SPECIALIST LEGAL AID BODIES ARE SOUTH AFRICA, NAMIBIA AND JAMAICA

• LITHUANIA IS ESTABLISHING A NATIONAL LEGAL AID COUNCIL

3. MANAGEMENT OF SPECIALIST LEGAL AID BODIES: INTERNATIONAL EXPERIENCE

• MANAGED BY AN INDEPENDENT COUNCIL OR BOARD OF NON-EXECUTIVE DIRECTORS AND A CHIEF EXECUTIVE OFFICER

• CASES DISTRIBUTED BY ADMINISTRATIVE OFFICIALS IN TERMS OF LEGISLATION AND COUNCIL’S OR BOARD’S GUIDELINES

• INTAKE OF CASES REGULATED BY THE CATEGORIES OF CASES PRESCRIBED BY LEGISLATION AND THE COUNCIL OR BOARD

• ELIGIBILITY DETERMINED IN TERMS OF MERITS AND MEANS GUIDELINES BY COUNCIL OR BOARD OFFICIALS

• STANDARDS OF QUALITY AND METHODS OF MONITORING QUALITY SET BY THE COUNCIL OR BOARD

• PAYMENT STANDARDS SET BY THE COUNCIL OR BOARD AFTER CONSULTATION WITH THE PROFESSION

• COUNCIL OR BOARD REPORTS DIRECTLY TO PARLIAMENT VIA MINISTRY OF JUSTICE (IE INDEPENDENTLY OF EXECUTIVE)

4. REASONS FOR ESTABLISHING SPECIALIST LEGAL AID BODIES:

INTERNATIONAL EXPERIENCE• SALARIED AND EX OFFICIO LAWYERS ARE SECURE FROM STATE

INTERFERENCE BECAUSE GOVERNANCE OF SPECIALIST LEGAL AID BODIES IS INDEPENDENT OF THE STATE

• SPECIALIST BODIES CAN SET THEIR OWN POLICY TO SECURE THE MOST COST EFFICIENT FORM OF DELIVERY WITHIN THE BUDGET

• SPECIALIST BODIES CAN SET ATTAINABLE TARGETS TO ENSURE COST EFFECTIVE VOLUMES OF CASES ARE DEALT WITH WITHOUT COMPROMISING STANDARDS OF SERVICE

• SPECIALIST BODIES CAN SET IN PLACE CREDIBLE MECHANISMS TO MONITOR THE QUALITY OF THE DEFENSES BEING PROVIDED

• SPECIALIST BODIES CAN SET UP PROFESSIONAL LEARNING AND TRAINING PROGRAMMES

• SPECIALIST BODIES CAN USE DESIRABLE METHODS OF DELIVERY (EG PUBLIC DEFENDER, EX OFFICIO LAWYER, LAW CLINIC OR PARALEGAL NETWORKS) TO COVER URBAN AND RURAL AREAS

5. LOCATING LEGAL AID IN THE MINISTRY OF JUSTICE

• MANAGED BY A DIRECTOR IN DEPARTMENT OF JUSTICE

• CASES DISTRIBUTED IN TERMS OF LEGISLATION AND MINISTRY OF JUSTICE GUIDELINES

• INTAKE OF CASES REGULATED BY LEGISLATION AND MINISTRY OF JUSTICE GUIDELINES

• ELIGIBILITY DETERMINED IN TERMS OF MERITS AND MEANS BY MINISTRY OF JUSTICE OFFICIALS

• STANDARDS OF QUALITY AND METHODS OF MONITORING QUALITY SET BY MINISTRY OF JUSTICE

• PAYMENT STANDARDS SET BY MINISTRY OF JUSTICE

• DIRECTOR ACCOUNTABLE TO MINISTRY OF JUSTICE – NOT PARLIAMENT

• BUDGET SET BY MINISTRY OF JUSTICE

6. LOCATING LEGAL AID IN THE MINISTRY

OF JUSTICE: INTERNATIONAL EXPERIENCE

• INDEPENDENCE OF SALARIED AND EX OFFICIO LAWYERS IS COMPROMISED AS PERCEIVED AS PART OF EXECUTIVE

• DEPARTMENT OF JUSTICE HAS NUMEROUS OTHER DEMANDS ON ITS BUDGET WHICH CAN IMPACT ON LEGAL AID

• DEPARTMENT OF JUSTICE UNABLE TO FOCUS EXCLUSIVELY ON LEGAL AID TO ENSURE COST EFFECTIVE DELIVERY WITHOUT COMPROMISING STANDARDS OF SERVICE

• DEPARTMENT OF JUSTICE USUALLY LACKS CAPACITY TO MONITOR THE QUALITY OF CRIMINAL DEFENSES (MAYBE CONFLICT OF INTEREST REGARDING NUMBER OF CONVICITIONS)

• DEPARTMENT OF JUSTICE OFTEN LACKS CAPACITY TO SET UP TRAINING PROGRAMMES FOR DEFENCE LAWYERS

• DEPARTMENT OF JUSTICE CAN MAKE OFFICES AVAILABLE TO ASSIST INDEPENDENT PUBLIC DEFENDER OR EX OFFICIO LAWYER NETWORKS TO COVER URBAN AND RURAL AREAS

7. ADMINISTRATION AND DELIVERY OF LEGAL AID SERVICES

• BEST INTERNATIONAL PRACTICE IS THAT LEGAL AID SCHEMES SHOULD BE ADMINISTERED BY SPECIALIST LEGAL AID BODIES AND NOT THE LEGAL PROFESSION OR THE COURTS:

– IN PUBLIC DEFENDER SYSTEMS BOTH ADMINISTRATION AND DELIVERY IS DONE BY SPECIALIST LEGAL AID BODIES

– UNDER THE JUDICARE (EX OFFICIO) SYSTEM ADMINISTRATION IS DONE BY SPECIALIST LEGAL AID BODIES WHILE DELIVERY IS DONE BY THE PROFESSION

8. ADMINISTRATION AND DELIVERY BY THE PROFESSION

• MANAGED BY DELEGATED MEMBERS OF BAR ASSOCIATION

• CASES DISTRIBUTED BY MEMBERS OF BAR ASSOCIATION IN TERMS OF LEGISLATION AND MINISTRY OF JUSTICE GUIDELINES

• INTAKE OF CASES REGULATED BY THE CATEGORIES OF CASES PRESCRIBED BY LEGISLATION AND THE MINISTRY OF JUSTICE

• ELIGIBILITY DETERMINED IN TERMS OF MERITS AND MEANS BY DELEGATED MEMBERS OF BAR ASSOCIATION

• STANDARDS OF QUALITY AND METHODS OF MONITORING QUALITY SET BY BAR ASSOCIATION

• PAYMENT STANDARDS SET BY BAR ASSOCIATION AFTER CONSULTATION WITH MINISTRY OF JUSTICE

• BAR ASSOCIATION REPORTS TO MINISTRY OF JUSTICE

• BUDGET REQUIREMENTS ARE DIFFICULT TO PREDICT

9. ADMINISTRATION AND DELIVERY BY THE PROFESSION: INTERNATIONAL EXPERIENCE

• BAR ASSOCIATIONS USUALLY LACK CAPACITY TO ENSURE THE MOST COST EFFICIENT FORM OF DELIVERY WITHIN THE GIVEN BUDGET (LEGAL AID BUDGETS ARE OFTEN EXCEEDED)

• BAR ASSOCIATIONS ARE NOT USUALLY ABLE TO PROPERLY ADMINISTER LEGAL AID SCHEMES WITHOUT COMPROMISING STANDARDS OF SERVICE (ESPECIALLY IF DONE GRATIS)

• BAR ASSOCIATIONS USUALLY LACK CREDIBLE MECHANISMS TO MONITOR THE QUALITY OF THE DEFENSES (THERE IS A RELUCTANCE TO CRITICIZE COLLEAGUES)

• BAR ASSOCIATIONS CAN ASSIST BY:– SETTING UP PROFESSIONAL LEARNING AND TRAINING PROGRAMMES

– USING THEIR LAWYER NETWORKS TO PROVIDE DELIVERY IN URBAN AND RURAL AREAS

10. SEPARATE LEGAL AID BUDGET: INTERNATIONAL EXPERIENCE

• INTERNATIONAL BEST PRACTICE IS THAT LEGAL AID BUDGETS SHOULD BE ALLOCATED DIRECTLY BY PARLIAMENT TO SPECIALIST LEGAL AID BODIES NOT AS PART OF THE BUDGET OF THE DEPARTMENT OF JUSTICE

• LEGAL AID FUNDING BY PARLIAMENT SHOULD BE ‘RING-FENCED’ FOR SPECIALIST LEGAL AID BODIES TO PREVENT IT BEING USED FOR OTHER PURPOSES.

• SPECIALIST LEGAL AID BODIES SHOULD PREPARE BUDGETS IN CONSULTATION WITH THE MINISTRIES OF FINANCE AND JUSTICE – BUT PARLIAMENT NOT THE MINISTRIES SHOULD MAKE THE FINAL DECISION ON ALLOCATION OF FUNDING

• SUBSEQUENT BUDGET CUTS SHOULD BE MADE BY PARLIAMENT NOT THE MINISTRIES OF FINANCE OR JUSTICE

11. DIVERSITY OF PROVIDERS: INTERNATIONAL EXPERIENCE

• INTERNATIONAL BEST PRACTICE INDICATES THAT A VARIETY OF LEGAL AID DELIVERY MODELS CAN BE USED TO ENSURE A COMPREHENSIVE SERVICE

• PROVIDERS MAY VARY FROM INDIVIDUAL PRIVATE LAWYERS AND PUBLIC DEFENDERS TO NGOS AND LAW FIRMS THAT ARE PREPARED TO ENTER INTO COOPERATION AGREEMENTS

• COOPERATION AGREEMENTS ARE USED IN DEVELOPED COUNTRIES SUCH AS THE UNITED STATES AND ENGLAND AND DEVELOPING COUNTRIES SUCH AS SOUTH AFRICA

• COOPERATION PARTNERS MAY INCLUDE PRIVATE LAW FIRMS, PUBLIC INTEREST LAW FIRMS, LAW CLINICS AND PARALEGAL ADVICE OFFICES

12. CONCLUSIONS

• BEST INTERNATIONAL PRACTICES FAVOUR ESTABLISHING SPECIALIST LEGAL AID BODIES INDEPENDENT OF THE STATE

• WHERE THERE ARE SALARIED LAWYERS ADMINISTRATION AND DELIVERY SHOULD BE DONE BY A SPECIALIST LEGAL AID BODY

• WHERE THERE ARE EX OFFICIO OR JUDICARE SYSTEMS THE ADMINISTRATION SHOULD BE DONE BY THE SPECIALIST LEGAL AID BODY AND DELIVERY BY THE PRIVATE LAWYERS OR OTHER COOPERATION PARTNERS

• LEGAL AID SHOULD RECEIVE A BUDGET FROM PARLIAMENT ‘RING FENCED’ FROM THAT OF THE MINISTRY OF JUSTICE

• BEST INTERNATIONAL PRACTICES SHOW THAT A VARIETY OF LEGAL AID MODELS SHOULD BE USED FOR DELIVERY – INCLUDE-ING COOPERATION AGREEMENTS WITH PRIVATE LAW FIRMS, PUBLIC INTEREST LAW FIRMS, LAW CLINICS AND PARALEGAL ADVICE OFFICES