21st century justice: look abroad for new ideas

The Law Society recently launched its 21^st century justice project. There was a Gazette news piece at the time and an article by the deputy vice president of the Law Society. Whizz, and another item of news flew by. But this is an important project, and needs our continuing focus.

The project arises out of what the Law Society calls the unravelling of the justice system in England and Wales. The evidence of unravelling is around us every day. The project wants to develop new ideas for how topics like access to justice (principally legal aid), the digitalisation of justice and ADR can be revitalised and improved. The Law Society calls for interested solicitors to become involved by writing to campaigns@lawsociety.org.uk.

Legal aid and access to justice are probably the project’s key area. If we want to find other solutions, I recommend the following motto: look abroad to stimulate the mind.

The Council of Bars and Law Societies of Europe (CCBE) has just published its revised recommendations on legal aid. They are at a high level because the legal aid systems in Europe vary so widely. However, variety is just what the 21^st century project needs at this stage.

Austria, for instance, has a unique system. The federal government pays close to 50% of the regular tariff for legal aid work, which is paid directly into the pension scheme i.e. only around 50% of the fees for legal services that would have been charged to the clients are re-imbursed, and then not to the lawyers who have provided the service, but to the bar’s pension fund. The individual fees cannot be precisely assessed, as the Austrian Bar receives only a lump sum, which has to be negotiated on a legal basis for the services rendered.

To understand this further, you need to understand some large differences of systems. First, some continental countries have fixed tariffs for lawyers’ services. To simplify a very complex subject, these tariffs escape EU competition rules because the tariffs are set independently by the government and not by the bar. So in Austria half of the regular tariffs (not a low tariff specially reserved for legal aid work) is paid by the government.

Second, some continental countries have sectoral pension systems, whereby different trades and professions each have their own pension system. For lawyers, this pension system is, at any rate usually, run by a bar body. (It was this sectoral pension system in France which President Macron tried to change some years ago, to huge uproar, leading to the reforms being abandoned.)

In other words, in Austria lawyers carry out legal aid work pro bono, and half the sum that they could have charged private clients is paid directly into their pension system.

You may not like it, and it may not fit into the way that we do things here, but it is refreshing to think there are differences. One of Austria’s advantages is that the granting of legal aid to an individual is not dependent on the availability of a budget, meaning legal aid will always be provided to those entitled to receive it.

Next, it is a mistake to think that welfare systems, and in particular legal aid, are being run down everywhere in Europe because of the cost of living crisis, coming on top of the disruption caused by the pandemic. It is the case with us here, and in several other European countries.

But the European Lawyers Foundation has recently carried out work in consultation with the CCBE on the impact of the cost of living crisis on access to justice in Europe. So, whereas several EU member states reported similar severe pressure on legal aid payments to lawyers, with rates sometimes not being raised for many years, Belgium and Slovenia (and Norway outside the EU) reported significant recent increases in either legal aid fees payable or eligibility levels, and Denmark said that the levels of payment to lawyers have been raised in accordance with levels in society in general.

In other words, legal aid rates, as we know, are a political decision, and not an irresistible inevitability arising out of global economic circumstances.

Interestingly, no other country reported problems with finding a legal aid lawyer to help a citizen, and so legal aid deserts may be our problem alone (though not all member states provided data to the survey). Deterioration in court buildings was not widespread, either, although three member states reported problems. Backlogs in courts were much more widespread, with seven member states reporting longstanding delays.

We need to think ‘big and new’ for the 21^st century justice project, since what we have is clearly not working. Looking at how other countries achieve the same goals – beyond Europe, too - clears the mind of ingrained assumptions and may lead to new solutions.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society