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Anna Barlow: the Machinery of Legal Anna Barlow The Machinery of Legal Aid A critical comparison, from a public law perspective, of the United Kingdom, the Republic of Ireland and the Nordic countries Legal aid is one of the central mechanisms for achieving access to justice, but its internal workings are little understood. This study extends the range of legal aid research by applying a public law perspective in considering the legal basis for legal aid schemes and the internal mechanisms Anna Barlow according to which they operate. By using a comparative methodology, it highlights the variety and complexity of legal aid structures in North- MachineryThe Aid | 2019 of Legal Anna Barlow | West Europe: the UK, the Republic of Ireland and The Machinery of Legal Aid the Nordic countries. A critical comparison, from a public law perspective, Taking key aspects of legal aid systems in turn, the research examines decision-making structures, of the United Kingdom, the Republic of Ireland scope and merits criteria, both for civil legal aid and and the Nordic countries for criminal legal aid and public defender schemes, across nine jurisdictions. Detailed comparison is made between the different schemes, which are evaluated against each other and against the external benchmark of international human rights obligations. The study enhances an understanding of how legal aid works, how well it works and how it could be improved, and concludes with a suggested framework for further research. 9 789517 659192 Åbo Akademi University Press | ISBN 978-951-765-919-2 Anna Barlow (born1968) Bachelor of Laws, London School of Economics, 1989 Admitted as a solicitor in England & Wales 1993 Master of Social Sciences, Åbo Akademi University, 2014 Before turning to research, Anna worked for 20 years as a legal aid lawyer in London. She co-founded the not-for- profit solicitors’ firm Law For All, which developed innovative delivery methods to enable more clients to be helped under available legal aid funding. Anna led the legal team as well as working directly for clients, specialising in employment, social security and family law. Anna has taught undergraduate and post-graduate law students in a range of institutions and is the Nordic Regional Coordinator of the Global Access to Justice Project. Layout/makeup by Icca Krook (www.iccakrook.com) Åbo Akademi University Press Tavastgatan 13, FI-20500 Åbo, Finland Tel. +358 (0)2 215 4793 E-mail: [email protected] Sales and distribution: Åbo Akademi University Library Domkyrkogatan 2–4, FI-20500 Åbo, Finland Tel. +358 (0)2 -215 4190 E-mail: [email protected] THE MACHINERY OF LEGAL AID CIP Cataloguing in Publication Barlow, Anna. The machinery of legal aid : a critical comparison, from a public law perspective, of the United Kingdom, the Republic of Ireland and the Nordic countries / Anna Barlow. - Åbo : Åbo Akademi University Press, 2019. Diss.: Åbo Akademi University. The Machinery of Legal Aid ISBN 978-951-765-919-2 A critical comparison, from a public law perspective, of the United Kingdom, the Republic of Ireland and the Nordic countries Anna Barlow ISBN 978-951-765-919-2 Public Law ISBN 978-951-765-920-8 (digital) Faculty of Social Sciences, Business and Economics Painosalama Oy Åbo Akademi University Åbo 2019 Åbo, Finland, 2019 The Machinery of Legal Aid A critical comparison, from a public law perspective, of the United Kingdom, the Republic of Ireland and the Nordic countries Anna Barlow Public Law Faculty of Social Sciences, Business and Economics Åbo Akademi University Åbo, Finland, 2019 for Violet, Ernest, Hagar and Georg Injustice anywhere is a threat to justice everywhere Martin Luther King Jr. It is self-evident that where a state chooses a ‘legal aid’ system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be legally aided. European Commission on Human Rights X v. UK, 1980 Foreword and Acknowledgements Legal aid has been a part of my life for nearly 30 years; indeed, for many years, it paid my salary. I have seen first-hand how important legal aid can be to protect the rights of marginalised members of society and have shared their joy when the law turned out to be on their side, after all. During that time the legal aid powers in England kept a close eye on my work for clients and were not afraid to reprimand me if they thought I had wasted their money by writing two letters when one would do. This doctoral research has been my chance to turn the tables and conduct a critical examination of the administration of legal aid in the jurisdiction in which I worked, and also in neighbouring and nearby jurisdictions. Improving legal aid across North- West Europe is an urgent necessity and I hope that this study will encourage governments to take progressive steps, reassured by the finding that better is not necessarily more expensive. During the course of my research, over 70 busy professionals agreed to be interviewed and gave generously of their time and knowledge. Without the insight into the workings of the legal aid schemes which these interviews afforded, I would have missed much important material and misunderstood more. I thank them all and in particular would like to acknowledge the assistance of: Merja Muilu, Head of the Legal Aid and Enforcement Unit at the Finnish Ministry of Justice and Minna Melender, Secretary General of the Finnish Bar Association; Ylva Boström-Berglund, Chief Legal Officer at the Swedish National Legal Aid Authority; Colin Lancaster, Chief Executive of the Scottish Legal Aid Board; Matthew Thomson then of the Law Society of Scotland and Iain Smith of Keegan Smith Defence Lawyers; Merete Smith, Secretary General of the Norwegian Bar Association; Wenche Bjørland, Head of Department at the Norwegian Civil Affairs Authority and Hege Skaanes Nyhus, Acting Deputy Director of the Legal Department at the Oslo and Akershus County Governor’s Office; Olaf Halvorsen Rønning at Oslo University; Peter O’Brien at the Law Society of Northern Ireland and Paul Andrews and team at the Legal Services Agency Northern Ireland; John McDaid, Chief Executive of the Irish Legal Aid Board; Cormac O Culain at the Law Society of Ireland and Paul Joyce and colleagues at the wonderful FLAC; Astrid Mavrogenis, then Head of the Legal Aid Division of the Department of Civil Affairs in Denmark and Mads Krøger Pramming of Ehmer Pramming & Advokater; Richard Miller and team at the Law Society of England and Wales; Jake Kraft and colleagues at the English & Welsh Legal Aid Agency and last but by no means least Bryndís Helgadóttir, Director of the Department of Legal Affairs at the Icelandic Ministry of the Interior, who patiently answered my many questions by email. My gratitude and appreciation go to my supervisor, Markku Suksi, who has accompanied me on this journey into the minutiae of legal aid laws. We I both learned much along the way and surprised each other on several occasions with widely differing understandings of public law principles which we had previously each thought quite ordinary and obvious. It has been an illuminating and entertaining experience. Special thanks go to my friend and collaborator Michael Smyth CBE QC(Hon), for sensibly pointing out that it would be a good idea to choose a PhD research topic that I already knew something about, such as legal aid for example. The results you see before you. The Hon. Mr Justice Robin Knowles CBE, has, as always, been endlessly interested and encouraging, for which I am truly grateful. My thanks to Bryan Adams for his help with the statistics in Chapter 6; he helped me to make sense of the figures, and I hope I have managed to pass this understanding on to my readers. It is traditional to thank one’s family at this juncture, and I do so genuinely and enthusiastically. I realise that, objectively, legal aid rules might not be the most fascinating topic, but you have all listened without complaint and been supportive, encouraging and loving throughout. John, Jess and Fred, without you cheering me on from the sidelines this project would never have been completed. Thank you for keeping me sane and for all the cups of tea. My principal proof-reader has been my mother, Ulla, who has also offered fresh perspectives on my arguments. I hope you know how useful that has been, and how grateful I am. During the course of my research I have received financial support from the following: Gustaf Packaléns Mindefond, Kansler Lars Erik Taxells forskningsfond, Makarna Eks fond, Eugen Schaumans fond, Nordiska administrativa förbundet finska avdelningen and Åbo Akademi. I am grateful for their assistance. I hope that this dissertation proves interesting and useful to others who, like me, believe that the health of legal aid is a measure of the health of the rule of law in our precious democracies Ekenäs, January 2019 Anna Barlow II III IV Svensk sammanfattning (Summary in Swedish) Fastän rättshjälpen är en viktig del av rättsstatligheten, finns det relativt få studier om rättshjälp ur ett juridiskt perspektiv. Denna avhandling är ämnad att utöka kunskapen inom området genom att undersöka den offentligrättsliga grunden på vilken rättshjälp är byggd. Målet är att dokumentera beslutsfattandet om hur de begränsade medlen för rättshjälp styrs till vissa individer och vissa fall, vem som fattar besluten och hur besluten påverkas av relevant nationell lag. Forskningsmetoden är jämförande, och nio rättsordningar har undersökts: de fem Nordiska länderna (Danmark, Finland, Island, Norge och Sverige); Storbritannien (Skottland, Nordirland och England & Wales) och Irland. Avhandlingen börjar med en diskussion om varför rättshjälp är nödvändig och vad internationella mänskliga rättigheter kräver inom detta område.
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