Peter van den Biggelaar

Dramatic changes were implemented in the system of subsidised legal aid in The Netherlands in 1994. The substantial rise in costs and the corresponding exceed of the budget of the Ministry of Justice were sufficient reasons for the government to take measures.

Before 1994 there was no budget control on legal aid, no adequate supervision; therefore the impression of abuse and improper use persisted.

These subjects were in fact the main issues dealt with by the Parliament.

The new legal aid act that came into force in January 1994 had four main objectives:

• Firstly, the Dutch Legal Aid Act (LAA) enables those who themselves have insufficient financial capacity, to call on government-funded legal aid.
• Secondly, the LAA provides a sufficient source of legal aid funded by the government.
• The third objective focuses on the (financial) management of the system.
• The fourth objective of the LAA is directed at modernising the administrative organisation in order to be able to implement a control and supervision of the system.

The first objective is the most essential one. Implementation of the LAA secures the right of Dutch citizens to legal aid as this is anchored in the Dutch constitution. The other three main objectives should be seen as derivative instrumental goals that are directed at realising the first objective.

The final responsibility is with the Minister of Justice who delegates his responsibility to the Head of the Legal Aid Department of the Ministry of Justice

The Dutch Legal Aid Act creates a scheme or programme for providing legal aid, which includes both legal representation and legal advice, to people that are entitled to it. The expense is partly paid out of the Legal Aid Fund, financed both by the State and partly by a means-tested contribution of the individual client. This latter contribution might be zero.

The legal aid and advice itself is provided by 19 Legal Aid and Advice Centres staffed by 200 people and by 6,600 lawyers in the private practice who fall under the scheme; this on a total Dutch population of 15 million people.

The administration and expenditure of the Legal Aid Fund as well as the policy-related issues are entrusted to 5 Legal Aid Boards. These Legal Aid Boards were introduced in 1994. This management structure is the most important innovation in the LAA. The Legal Aid Boards are set up as independent management bodies. They took over the assessment of applications for legal aid from the Legal Aid and Advice Centres, the assessment of declarations from the court registries and the funding of the Legal Aid and Advice Centres from the Ministry. The Boards were also assigned the power for admitting lawyers to the system and to entering into agreements with third parties. The Boards have simultaneously taken over the responsibility for the emergency defender service.

Finally, the Boards are directly involved in IRIS (which is a foundation responsible for IT, soft- and hardware for Legal Aid Boards, Legal Aid and Advice Centres) and they have played an important role in setting up the Legal Associations for Asylum.

An evaluation report was prepared and sent to Parliament for approval by the end of 1988 which was according to schedule

The introduction of the Legal Aid Act had an enormous effect. The eligibility was 68% in 1993.This number reduced to 42% in 1994 (the year that the new Legal Aid Act came into force). The Legal Aid Boards investigated together with the Research and Documentation Centre of the Ministry of Justice the reasons for this dramatic change.

After a lengthy discussion about the accessibility of the system we are now in the situation that everybody is satisfied about how things are going. The height of the individual contribution is the only remaining issue. The Minister of Justice has already made some adjustments in the past years. Contributions have specifically been reduced for people with the highest income.

Part of the problem is that in practice the same customer makes successive use of the services of a lawyer within a relatively short period of time for the follow-up of the same case. This leads in practice to an unnecessary extra contribution by the same customer. To relieve the most painful cases a system has been introduced to prevent a customer is paying double contributions in a single case. This system has to be broadened.

The accessibility of the system is reasonably ensured. The results of the investigations confirmed that people with serious legal problems can get the advice they want at the right time.

The Dutch Bar Organisation and the Legal Aid and Advice Centres are considering the possibilities to inform the public on the use of the system. The sooner a consumer takes advice the lower the cost.

Today almost 50 % of the Dutch population is entitled to legal aid

The applicant can turn to the Legal Aid and Advice Centres and to lawyers registered with the Legal Aid Boards with their questions requiring legal advice.

In The Netherlands the private lawyers and the Legal Aid and Advice Centres each dealt with 50% of the total demand for legal aid. The Legal Aid and Advice Centres are specialised in consultations. They can give consultation for 30 minutes per legal problem. These consultations are completely free of charge for the client. They can solve in this way about 80 per cent of all the legal questions that are put forward to them.

About 15 to 20 per cent of the cases cannot be dealt with completely during the half-hour consultation. The lawyers of the Centres then take in these cases for further treatment.

The law allows them to spend another two hours on these cases, for which the client has to pay a small contribution of about US $15,00 (30 Dutch guilders).

The aid given in these three hours is often limited to short correspondences, brief negotiations with the opposite party or a thorough legal advice to help the client well on his way. In 13 to 15 per cent of the cases they can be concluded within the three hours.

Nevertheless, in a relatively small number of cases three hours are insufficient to solve the legal matter adequately. In those cases the lawyer of the Centres must apply for a so-called application or assignment, which means that he asks for permission from the Legal Aid Board to go on handling the case. This is done in the same way as by private lawyers.

There is a tendency of reduced participation of lawyers. This reduction – at least at present – does not lead to a lack of available lawyers. Regarding the long term, there are reasons for concern. Some of the customers underlined the phenomenon that applicants must sometimes approach several legal aid professionals before one of them is prepared to treat their case. In addition, it is observed that experienced and specialised lawyers in particular are terminating their participation in the system.

The Bar gives signals that the remuneration is far too low. An hourly fee of US$ 60,00 (125 Dutch guilders) is well below the market price.

The introduction of the LAA originally went hand in hand with complaints about the large number of checks. Many measures have been introduced. The attempt of Legal Aid Boards to reduce the burdens for the clients and the lawyers, for instance by improving the communication, were possible by adapting the regulation.

In co-operation with the Ministry of Justice, Boards are searching for simplifications. Also the use of new technology has to give more and better opportunities.

It became very clear that the checks are successful. The expenditures are in control. The performance is good and the confidence of the politicians has strongly improved. The control has undoubtedly led to the situation that legal aid is no longer regarded as a subject in which there is frequent abuse or improper use. Therefore, many improvements have been realised and others are still possible.

What now follows is a quotation taken from the evaluation report about LAA that has been presented to the parliament at the end of 1998: ‘The general conclusion must be that the LAA meets the goals set at the time that existing problems can be solved in practice by amending regulations but, at the same time, amendments are still desirable and are possible in the future with which the system will maintain the required dynamism to be able to continue to work towards the set objectives now and in the future’

Insurance companies are looking into possibilities to expand their role in the system of legal aid. The Minister of Justice has to take care that these companies do not only take over the most interesting parts. If not, the remaining system gives less opportunity and can lead to withdrawal of the private lawyers.

New kinds of resolutions for legal problems such as mediation become more and more popular in The Netherlands at this very moment. In co-operation with the Ministry of Justice the Legal Aid Boards experiment with this kind of opportunities. Most experiments concern family and employment law.

The new act for reconstruction of debts. From the first of December 1998 this Act is valid in The Netherlands. Although this Act came into force very recently, it is interesting to note the first experiences.

I am aware of the fact that some people think that the reconstruction of personal debts has nothing to do with legal aid and indeed I think that people are right at the first sight, but this act gives people the possibility of a fresh start and prevents them from falling into an awkward situation. This is much better than starting several civil processes.

Co-operation between private lawyers and the Legal Aid and Advice Centres. This process is starting at the moment. Instead of arguing with each other there are signs that co-operation is taking off.

Additional research is necessary, especially to examine whether customers do not prematurely give up their search for legal aid. A lot is still to be done.

The involvement of the private lawyers in the legal aid system has to be examined. It is very important to know that sufficient lawyers are available. Decisive will be the price that the Minister of Justice is willing to pay. At this moment the fee paid is too low.

The Netherlands Bar (NOvA) has taken various measures, particularly with regard to improving the quality of the legal professional. However, the group of legal professionals has no integrated quality care system. The Legal Aid Boards and the Ministry are currently jointly researching (with the Bar and other bodies) the option of developing tools to increase the quality care of lawyers registered and to make investment budgets free for this.

Improving quality is a continuous process that demands the continuous effort of all involved, the Legal Aid Boards, the legal professionals and the Legal Aid and Advice Centres. It is a dynamic process in which it is not so important that rapid steps are made, but that everyone gives systematic attention to the wants and needs of the society and, in particular, the applicant. Structuring this process is one of the major challenges facing the participants in the system for the coming years.

Total Dutch population 15,300,000 15,600,000

Population > 16 year 12,100,000 12,300,000

Eligible for lgl aid >16 years 5,100,000 5,800,000

Private lawyers 6,550 6,600

Staff Lgl Aid and Advice Ctrs 200 210

‘Lawyers density’: one lawyer per 1800 habitants

(1 Dutch guilder=0,5 US$) 1994 1998

Civil legal aid 203,700,000 190,000,000

Criminal legal aid 74,000,000 108,000,000

Emergency defender service 15,700,000 18,600,000

Lgl Aid and Advice Centres 38,000,000 42,200,000

Lgl Associations for Asylum 16,900,000 26,500,000

Lgl Aid Boards 20,400,000 21,900,000

Others 36,200.000 20,700,000

Dutch gldrs/capita >16 years fl 33.5 fl 34.8

Civil legal aid 233,000 200,000

Criminal legal aid 73,000 87,000

Cases per lawyer 46,7 43,5

Avg time required (hours/case) 9 hours 9 hours

Avg cost, incl. pers. Contribution,

(dfl/case) fl 926 fl 1,205

Avg personal contribution per case,

(dfl/case) fl 73 fl 120

Time consult < 0,5 hour 225,000 200,000

0,5 hour < time consult <3 hours 32,000 28,500

Time consult > 3 hours 374 6,700