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MAIN FEATURES OF WORLD LEGAL AID SYSTEMS
PROFESSOR DAVID McQUOID-MASON
UNIVERSITY OF KWAZULU-NATAL
SOUTH AFRICA
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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