Peter Levenkamp

The Wrb (Wet op de Rechtsbijstand or Legal Aid Act) entered into force on 1 January 1994. The act replaced the WROM (Wet Rechtsbijstand aan On- en Minvermogenden or Legal Aid for Indigent Persons Act). The main goals of the Wrb are expressed in the clarification: to offer applicants access to the law, to provide a sufficient number of legal aid professionals, a better management of expenses and to modernise the organisation. An important new element of the act is the transfer of responsibility for the implementation of the act from the legal aid centres and registrars of the district courts to the newly founded legal aid councils organised according to area of jurisdiction. The legal aid itself will be provided to applicants by lawyers (advocaten) and by the staff of the legal aid societies (stichtingen rechtsbijstand) just like before. The participating lawyers must for the first time meet certain registration conditions; the legal aid societies have acquired legal status.

The Wrb prescribes that this should be evaluated before 1 January 1999. The legislative evaluation rests on various external and internal academic surveys, analyses of operating processes and operating data. The report was discussed during a round table evaluation at which the participants were representatives of the actors involved. They were satisfied with the developments in the system over recent years with the observation that responsibility for the choices taken in the period under review concerning the provision were made by the legislator and that these were not entirely in line with the wishes of those involved and that the policy plans contained in this report are not supported by all parties.

In this evaluation, the remark must be made that with amendments to important components, the legally prescribed evaluation could not be awaited. Problems that emerged in practice were tackled directly wherever possible. However, not everything could be dealt with. For the coming period, the price/quality ratio in the legal profession, the positioning of the legal aid societies and the decisiveness of the councils concerning policy topics will require attention. Difficulties already dealt with and yet to be dealt with are discussed in this report.

The Wrb sets down those cases for which legal aid can be applied for. Applicants of less financial means (indigent litigants) can make use of a consultation hours provision, the first thirty minutes of which is free of charge. For the (maximum) consecutive two hours—extended consultation provision—NLG 30 is charged. Should more far-reaching legal aid be required, a legal aid case is provided and the applicant pays a tariff based on his or her income. The applicant can also turn to a lawyer (advocate) for legal aid. This is then provided on the basis of a legal aid case. The applicant pays an income-based tariff.

The structure of the provision deviates from the WROM on a number of points. By tightening up income limits and applicants' tariffs, the Wrb attempts to realise better cost management. The applicant is necessitated to make a weightier evaluation of costs and benefits and, with his or her financial contribution, contributes to the costs of the provision. The tariffs set by the Wrb are considerably higher than in the past; the free legal aid provided by the legal aid societies is subject to a maximum (half an hour) and the income limits for single people have been tightened up by bringing them in line with the differences upheld for single people by the Abw (Algemene Bijstandswet or National Social Security Assistance Act) respectively.

The deductible items were also restricted, a number of legal problems were excluded from legal aid cases and the scope of a legal aid case was expanded with which fewer legal aid cases were granted for a similar number of cases. According to the clarification, despite the steps taken to tighten up the Wrb, the act must not result in applicants with actual legal problems being excluded from legal aid for financial reasons. After all, the Wrb is intended to elaborate the law established according to constitutional and treaty law to assist those instigating legal proceedings and administrative appeals.

With the estimation of the effects of introducing the Wrb, account was taken with a drop in the use of the provision. In the course of 1994, it appeared that the provision was far less used than was originally anticipated when measured in the number of legal aid cases granted.

The development gave rise to the suspicion that the reduction in demand had been underestimated and that applicants with serious legal problems were also possibly being left high and dry. The first research findings of the WODC confirmed the scale of the drop in demand. The scale of the group of applicants entitled to legal aid also seemed to have dropped to a much lower level than had been supposed, even before the Wrb was introduced. Research showed that the income limits had been set too low, largely due to an inaccurate application of the index regulation under the WROM and only a relatively small percentage (5%) was caused by the Wrb.

Because the findings offered no insight into the underlying causes of the reduced demand, and particularly the question of how serious the underlying problems were, further research was instigated. This led to important nuances being made to the original assumptions. As far as the reduced demand was concerned, a significant element seemed to be ascribable to improved control. Clearly, the effects of the improved control on access to the provision were underestimated. The reduced demand as a result of the higher applicants' tariffs occurred particularly and disproportionately among applicants in the top end of the system. For these reasons, the higher applicants' tariffs were lowered with relatively few consequences as was later shown by the WODC. Later, more detailed surveys could be interpreted to show that applicants experiencing what they saw as serious problems, were not put off from calling in legal aid by the relatively high fees they had to pay. However, the amount of applicants' tariffs was considered problematic. The researchers linked their findings to the conclusion that applicants do not always have a realistic choice of whether or not to call in legal aid; there is often a case of "legal necessity". With this position, the researchers explicitly dealt with the question of the justification of applicants' tariffs as a factor in weighing up the pros and cons of government-funded legal aid: people with serious problems who are not able to weigh up the balance would unnecessarily have to face high costs. However, this is countered by the fact that own contributions for less serious cases do lead to weighing up the balance and the contribution also has a co-financing function.

Partly at the insistence of the House, a commission was then set up to conduct a re-evaluation of the function and structure of applicants' fees in legal aid. This commission—the Franken Commission—published its recommendations in October 1998. The Commission sees no reason for proposing measures concerning fees; it recommends first gaining experience with the current regulation . But the commission does conclude that the consultation provision can filter out unnecessary use being made of the provision with which it serves as a tool to allow applicants to make a well-considered choice. Reinforcing the consultation hours provision was recommended by opening the option for cases the consultant lawyer considered serious enough to be referred to a lawyer and applying a lower fee than for cases directly presented to lawyers.

With regard to the accumulation of tariffs in the event of repeated recourse to legal aid, the working group shares the opinion that the applicant should be catered for. They propose setting a fee for follow-up cases that amount to a decreasing percentage of the first fee paid.

In the meantime, a number of changes to the system were made before the setting up of the Franken Commission, aimed at eliminating the most evident problems concerning access (increasing upper income limit, extending consultation hour from two to three hours, better indication). Further, the councils have been asked to develop additional proposals to reinforce access to the system, particularly in relation to the consultation hour provision. The councils have stated that consultation is currently underway with local actors. Things are currently in an explorative phase.

It can be concluded that the Wrb has led to a more selective use of the provision without applicants with serious problems having no recourse to the legal aid they need. In this regard, the tools designed for this achieved the desired effect. The financial consequences of legal aid have become considerably easier to manage. In a number of ways, the Wrb went too far and has had a number of unintended effects. These effects have in the meantime been tackled with additional measures with which the position of the applicant has been strengthened.

Using continuous monitoring and, where necessary, further research, access to the system will need to remain a permanent point of attention for which a tailored set of tools will be developed.

The applicant can turn to the legal aid societies or stichtingen rechtsbijstand and to lawyers registered with the legal aid councils with their questions requiring legal advice. The councils can also enter into an agreement with others suppliers of legal aid. Only sporadic use is made of this option. Traditionally, the majority of legal aid societies concentrate on holding consultation hours while the legal profession focuses on more far-reaching legal aid in and out of court.

The Wrb established an accessible consultation hours provision as the main goal of the legal aid societies. Likewise, the old regime that originally contested continued legal aid after consultation hours was recognised by inclusion in the act. The legal aid societies can also request legal aid cases whereby the same own contribution regulation applies as in the legal cases of a lawyer. They are obligated to request a legal aid case if the legal aid cannot be concluded within the extended consultation hour provision. WODC research shows that the associations exceed the maximum time limit in a considerable number of cases without requesting a legal aid case. The councils were asked to take measures to safeguard the maximum time limit of the extended consultation.

There are no fixed standards for the distribution and opening of the legal aid societies' consultation hours. In general, the distribution and opening are such that every applicant within a reasonable travelling distance can make use of this provision. The recent expansion of the extended consultation hour time to a maximum of three hours has reinforced the consultation provision.

The legal aid societies offer different packages of services. All legal aid societies have a desk manned by a non-jurist where applicants can go for information. If the applicant needs legal aid, the majority of problems are referred to the legal aid association's consultation hour. The legal aid societies are increasingly working towards fully supporting all applicants with less financial means even if legal proceedings must be instigated. For a number of legal areas, specifically the law of persons, family law and penal law, most legal aid societies refer directly to a lawyer. Because of the trial monopoly of lawyers, the legal aid societies in these cases were not capable of offering an integrated package of legal aid. The recently opened possibility of registering jurists employed by the legal aid societies as lawyers has been unable to alter this situation partly because the conditions stipulated by the Netherlands Bar for registration as a lawyer forbid them from dealing with cases in which both parties could belong to the target group.

During the round table consultation relating to the current evaluation, various involved parties stated that the offer of a package that excludes certain legal areas can lead to problems in practice. For the legal problems for which, pursuant to the Wrb, no legal aid can be acquired, the consultation hour provision is the only aid. Applicants who can turn to the legal profession are immediately charged an income-based fee while this is only the case once they have spent three and a half hours at the legal aid association. A third objection is that it can be confusing for the applicant; for him it is probably preferable to have a single contact point to which he can turn for all simple cases. For the time being, the objections are not of such a nature that measures need to be taken.

The legal aid societies are gradually developing another way of dealing with cases. The majority of legal aid societies are striving to offer integral legal aid - in other words, not to refer the problems of applicants visiting the consultation hour to a lawyer but to deal with them fully themselves, including aid in possible lawsuits. Offering integral legal aid is attractive because the client does not have to be referred on, the legal aid societies can develop expertise to weigh up a case on its procedural chances and, if the number of clients lags behind capacity, the provision is used more effectively. One risk is that the orientation on the access function by shifting the way in which they deal with legal problems could be given a less central role at the legal aid societies. The specific characteristics of the legal aid societies could become watered down by this with which their services would move in the direction of law firms while the space for the freely based legal profession to deal with cases diminishes. This would ultimately lead to the more limited involvement of the legal profession in providing legal aid to those with less financial capacity.

Another phenomenon that occurred in the three districts is the paying practice. The legal aid association in those districts feel that, as private organisations, they can determine who to provide legal aid to providing paying and funded practice are strictly separated. They believe that a paying practice entails qualitative advantages and increases the financial basis for the legal aid societies. Other legal aid societies also showed sympathy for the concept of the paying practice.

A paying practice has advantages for the legal aid association such as reinforcement of the organisation and possibly improving their image. However, a paying practice also has disadvantages including the chance that less financially capable clients receive less attention. An insurmountable problem is the competition advantage that the legal aid societies derive from their subsidised consultation hour function compared to lawyers. The subsidised provision refers paying clients on to the commercial legal aid association. A strict separation of finances is insufficient to support this.

The paying practice is in conflict with the Wrb. An extensive debate has been conducted to assess whether the Wrb should be altered to enable the paying practice. In so doing, a solution would have to be found for improper competition. The proposal of using the consultation hour provision for this found insufficient support among the councils, the legal aid societies and the legal profession. For these reasons, once the Lower House had discussed this topic, the councils meanwhile informed the legal aid societies that they should wind down or unravel their paying practice.

In the new financing system for the legal aid societies, that will be more output-related, a separate place is created for the so-called public access function. This is understood to mean the initial reception of applicants prior to the consultation hour. This function meets the desire in all areas to organise a contact point and to be able to offer expert advice on the most appropriate follow-up step which could include non-legal solutions like mediation. This function would be made available to a broader public and be manned by para-legals. Accommodating this provision with the legal aid societies would further strengthen the central function of the legal aid societies within the system. This could have the unintended effect that other providers of legal aid would receive fewer clients while they are excellently placed to advise the applicant. For this reason it is important that the councils ensure that the legal aid societies make good agreements on client referral and search for co-operation in this with other legal aid professionals.

One alternative could be to give each of the association's public access function its own priority interpretation. One evident disadvantage of this option is the further fragmenting of the access function. In that case, the associations could possibly have more freedom in the further implementation of legal aid. Over the time to come, consultation on these radical developments will be carried out with the organisations involved.

The cost price of the associations varies but - exclusive of a number of overheads and inclusive of the desk function - is an average of NLG 180 per legal hour. In the context of the new costing system, improvements in productivity will be made where necessary.

The legal aid societies give sufficient attention to training and quality care. A conclusive quality monitoring system, linked to the new costing system, in still under development. A client satisfaction survey carried out by the associations in the jurisdiction of ‘s-Hertogenbosch showed that all associations could boast a high degree of client satisfaction.

The number of lawyers registered with the legal aid councils is rising in an absolute sense. Relatively, the participation of lawyers is diminishing. This reduction does not lead - at least at this point - to a lack of available lawyers. A national survey is currently underway that should offer insight into the quantitative and qualitative aspects of the possible diminishing willingness of lawyers to take part in the system.

Two factors seem to account for why many lawyers are less interested in subsidised practice: the administrative procedures and the financial reimbursement. Within the bounds of the current legislation and regulations, the councils are already trying to cut back the administrative burden. Where possible, regulations will be amended. Future developments such as a possible transition from net to taxable income in determining the capacity of applicants to pay and the introduction of a new Remuneration Decree are attempts to limit the administrative burden more radically. The average hourly fee received by lawyers for legal aid cases is low compared with the associations, amounting to NLG 125 per hour (exclusive of VAT inclusive of the applicant's tariff). The Maan Commission has established that there is a substantial price difference between the legal areas. For these reasons, a revised Remuneration Decree has been drawn up that should come into effect in the short term and bring the remuneration on an equal footing with the time spent. The decree has not yet resulted in increasing the remuneration. An hourly fee of NLG 125 lags behind the market price. The cost price of the legal aid societies is at a considerably higher level.

The Netherlands Bar (NOvA) has taken various measures, particularly with regard to training, to promote the quality of the legal profession. However, the legal profession has no integrated quality care system. As far as we know, no client satisfaction surveys specifically concerning government-funded legal aid have been carried out. At the same time, other research highlights concern regarding the quality of legal aid. The councils and the Ministry are currently jointly researching (with the NOvA and other bodies) the option of developing tools to increase the quality care of lawyers registered and to make investment budgets free for this.

The introduction of the Wrb originally went hand in hand with major logistical problems for a number of councils. The processing time (the time between application and decision) were assuming alarming forms. The problems were only partly eradicated in the course of 1996. Currently, implementation has generally speaking been righted. This does not mean there are no more complaints about the councils. Some councils still quite regularly have lengthy processing times.

The efforts to safeguard the legitimacy of the expenses has been fruitful. Checks show that the percentage of errors and uncertainties remains within the usual margins in almost all cases. Client satisfaction research conducted by a number of councils shows that the legal profession on average assesses the individual performance of these councils as adequate. But scope for improvements are signalled. The councils concerned have taken steps in the meantime.

The councils are trying to improve communication with the legal profession in a number of ways. In Arnhem, for instance, successful experiments have been carried out with the "on-line legal aid council". Various Internet applications have also been developed. These efforts of the councils are positively received.

The regulations on which implementation and control are based are, in general, complex. This applies to both regulations relating to financial capacity and to the reimbursements. This complexity is partly unavoidable because on the one hand justice must be done to the diversity of situations and on the other, control is a prerequisite. The control has undoubtedly led to legal aid no longer being seen as a field in which there is frequent improper use.

It is also vital to assure this for the future. In their research into a management model Professor Leeuw et al concluded that the great attention for the legitimacy aspects could further diminish attention for other goals of the Wrb, namely assuring accessible and qualitatively good legal aid. Searching for a good balance between the various goals thus remains essential.

Council clients consider the requirements that subject the process of dealing with cases to the complexity of the regulations and the necessity of control as bureaucratic. The councils themselves attempt to reduce the burdens for the client, for instance by improving communication. In addition, where possible, regulation is adapted. For these reasons, the proposed new Remuneration Decree contains various simplifications. For determining financial capacity, the VIValt project is crucial; this assesses whether and if so, how a responsible shift can be made from net to taxable income.

Within a system based on fiscal income, from the perspective of verification and control there is no longer any need of the Verklaring omtrent Inkomen en Vermogen or VIV (Certificate of Indigence) issued by the municipality. Which is why the VIValt report concluded that in the long term the municipality no longer needs to play a role within the system of government-funded legal aid. The report concludes that in making the transition to taxable income the councils can perform the duties of the municipalities themselves. But then on condition that the councils are linked up to the basic municipal administration system (Gemeentelijke Basisadministratie or GBA) and that they will receive fiscal data on-line from the tax authorities. This demands that legislation be amended.

Around NLG 21.5 million is involved in the costs of implementation (the council budget). This is 6% of the total costs of the system. Given the complexity of the regulations to be applied, this is not an unreasonable percentage. Efforts are directed at a continued reduction in the share of implementation costs that comprise the total costs. Because of the measures outlined earlier, simplifying and investing in new techniques should be able to realise this in the medium term.

The most important innovation in the Wrb is the management structure. The legal aid councils are set up as independent management bodies. They take over assessing applications for legal aid from the legal aid societies, the assessment of declarations from the court registries and the funding of the legal aid societies from the Ministry. They are also assigned powers relating to admitting lawyers to the system and to entering into agreements with third parties. The councils have similarly assumed the implementation of the emergency defender service regulation of the legal aid centres. Finally, the councils are directly involved in the Stichting IRIS (responsible for computerising councils and legal aid societies) and they have played an important role in setting up the legal associations for asylum.

The councils' scope for their own policy is strongly delineated with respect to regulating admission to legal aid. This task must be structured with sufficient attention for equality of rights and legal certainty. The Wrb and the executive regulations thus contain elaborated criteria for answering the question of who can acquire legal aid for which type of problem. In this field, the policy freedom of the councils is of necessity restricted to structuring stipulations based on an open criterion. The Legal Aid Case Handbook established by the councils, mutual co-ordination and intercollegiate testing of the application of the law safeguard uniformity of policy in practice. In general, the application of the law does not lead to major problems, apart from the earlier conclusion that this is complex, with the exception of applying conditional legal aid. Further regulations are in preparation.

The freedom of the councils is relatively large when it comes to forming the legal aid organisation including the setting up of an own organisation, registration of lawyers and funding of the legal aid societies. The regulations have a more general, framework-setting character when it comes to these aspects. Here, too, alignment and co-ordination at national level is important. In general, the councils make limited use of the policy scope they have been assigned. More attention will need to be given to policy development as regards the quality of providing legal aid, the accessibility of the legal aid societies and the legal aid organisation.

Because there are five councils, one in each jurisdiction, the lines in the region are short and decisive action is possible. However, this scale has disadvantages. National alignment and co-ordination lines are difficult to realise and the lack of division of duties among councils makes it hard to address them on national priorities. Not only the ministry but also the national organisations of legal aid providers lack a clear contact point while on the other hand the national organisations, including the Ministry, still have insufficient attention for implementation aspects of new policy.

It can be concluded that the advantages of the current structure with five councils structured according to areas of jurisdiction for now outweigh the disadvantages identified. The combination of the councils to form a single legal aid council would probably benefit decisiveness and uniform policy but would impair the advantages gained with alignment at the level of jurisdiction. This means that the objections against the structure will have to be eliminated along other lines in the coming period, namely by better equipment of the management and the councils for policy development, a clear distribution of the portfolios - both at council and management level - most relevant for the national co-ordination with establishment of the contact persons, and the assessment of certain specialist activities could be concentrated at one council where, if desired, each council could assume a specific specialist task. The councils acknowledge the necessity of more decisive co-operation. It has been agreed with the councils that they will take the initiative to improve national co-ordination.

There is no reason to propose far-reaching changes relating to the composition of the councils except if in practice it has proven that the councils do not all need to be the same size. Co-ordinating the number of council members and scale and burden of the activities is desirable. A council should comprise at least five and a maximum of 9 members.

A management vision underpins the relation between the various actors in which the diverse responsibilities and the means of association are elaborated. The core of this vision is that the implementation of the policy takes place as far as possible from the Ministry within cadres to be set by the Minister. It has taken some time before the new relations actually gained substance in practice. At the outset the Ministry was very involved with implementing the Act because of the problems involved in its introduction. Gradually, more distance has been achieved. In their research into the functioning of the management perspective in practice (1996) undertaken by Professor Lewis et al, they find that - certainly in comparison with other organisations placed at a distance - the management model is operating reasonably well. However, an over-emphasis on the management aspects of the Act threaten to dominate. Now that the management side is in order, more attention should be given to the quality and accessibility of the system. Further, Lewis et al state that the councils perceive a lack of policy freedom while the Ministry experiences reticence on the part of the councils in elaborating that freedom.

The Wrb lent the existence of the legal aid societies a legal basis. The Act regulates the duties and district organisation of the associations. The powers possessed by the councils - and in one component the minister - are also described. The core of the relation between councils and legal aid societies is formed by the working plan and the budget that the associations should present to the councils for approval. The legislative regulation offers the associations guaranteed continuation and both councils and associations a context for the mutual distribution of responsibilities. The regulation is detailed. A more limited regulation offers those involved more options for the optimal structure of the consultation hours provision and, in the future, the public access function.

The district structure does not appear to be convincing in all cases. An increasing number of associations are entering into co-operations or even merging due to efficiency and quality considerations. However, the availability of the provision within the districts is always guaranteed. The legislative regulation of the associations can be simplified.

The regulation of appeal and objection as regulated in the Wrb obligates the councils themselves, not the legal aid centre of the council, to decide on objections. The regulation deviates from the system for which the Awb (Algemene Wet Bestuursrecht or General Administrative Law Act) opts. The regulation creates an unequal burden on the councils. It has been proposed to follow the Awb still and to allow objections to be dealt with by the legal aid centres.

The legislative regulation for a conditional legal aid case in divorce cases permits various interpretations. Altering the act to eliminate this scope has been proposed.

Legal aid to asylum seekers is implemented by the legal aid societies for asylum seekers (stichtingen rechtsbijstand asielzoekers). Under the direction of the councils the associations were set up after it had been established that the original working method led to an ineffective approach. Over recent years, relatively large changes in the number of asylum seekers have occurred. In 1997 and 1998, there was a sharp rise in the inflow of asylum seekers with which the space available for this unusual form of legal aid came under great pressure. As yet, there has been no evaluation of the legal aid societies for asylum seekers.

If improper use is made of the provision, the councils can withdraw the legal aid case. As yet the system has no far-reaching sanctions nor does it have an adequate provision for reclaiming an illegally gained advantage. The Awb provision is insufficiently in line with the specific problems of the system. The councils must be able to respond well to improper use and to be able to claim any undue payments made. Steps have yet to be taken in this respect.

The computerisation of the councils is on a reasonable level. However, because of the development of ever improved techniques, the system is in danger of becoming rapidly out-dated. The legal aid societies and relevant legal professions have significant disadvantages when it comes to the field of computerisation. Significant investments are provided to keep the system up to date.

The general conclusion must be that the Wrb meets the goals set at the time, that existing problems can be eradicated in practice by amending regulations but at the same time, amendments are still desirable and are possible in the future in order that the system will retain the required dynamism to be able to continue to work towards objectives also in the future.

In Article 65, the Wrb determines that within five years after coming into force it will forward a report to the States General on the efficacy and effects of the act in practice. With this report, which contains the findings for just over five years of the Wrb, this stipulation is met.

The introduction of the Wrb in 1994 marked the end of 15 years of discussion on its contents. During those 15 years, developments took place and insights were gained that influenced the substance of the Act. Once the Wrb was introduced, this process did not of course grind to a halt. In society and within the legal system, developments continue to occur to which the system of government-funded legal aid must respond. Sometimes this is a direct response such as accompanied the increased inflow of asylum seekers that necessitated the Central Asylum Seekers Reception Centre (Centraal Orgaan Opvang Asielzoekers or COA) and the Immigration and Naturalisation Service (IND) to re-structure the initial reception and assessment. This partly led to the setting up of three stichtingen rechtsbijstand asielzoekers or SRAs (legal aid societies for asylum seekers). But there are also developments that, in time, will need to be amended. The increased use of information and communication technology for instance leads to councils for legal aid and legal aid applicants searching for ways of reaching a more efficient exchange of information and services. In the future this could lead to applicants no longer wishing to attend the consultation hours offered by the associations but turning to other sources for answers to their questions and that the primary process at the legal aid councils will be geared to the exchange of digital information. The individualisation of society, the growth of privatised relations due to retiring state intervention, the increase of the claim culture and decrease of social cohesion could result in an increasing need of legal advice and legal aid. Alternative forms of settling disputes seem to be able to play a role here, which can contribute to the desired de-juridification of society and possibly to limiting recourse to the courts. The unification of Europe is having an increasingly striking resonance within national judicial matters. Increasing crime, the intensification of the prosecution policy, the arrival of mega penal cases and media attention for these phenomena lead not only to an autonomous rise in the number of penal legal aid cases but also to on average heavier cases and higher expenses with matching heavier management burdens and possibly a reduced offer of specialised lawyers (and thus possible loss of quality) in government-funded legal aid.

The system of government-funded legal aid must have the vitality to respond to such developments promptly and adequately. The Wrb can only offer frameworks for this; the involved parties will have to ensure that citizens with less financial capacity can always, if necessary, call on the services of a legal aid professional who does no more or less that resolve the problem. Ultimately, the Wrb serves no other goal than making this possible. The most important question the evaluation must answer should thus be: what did the Wrb give the applicant? A simple and clear answer to the question is difficult. Whoever puts the question to random citizens won't receive a uniform answer. The citizen has different interests. For himself, he will want the cheapest and best legal aid and for his opposite party, the most expensive and worst. As a taxpayer he wants an efficient and slim-line system and as a (potential) user, he wants an accessible and generous system.

Thus this evaluation will take place based on the more rationally formulated objectives on which the Wrb is based. If the Wrb meets the goals formulated at that time, it can be assumed that the act serves the citizen. The parliamentary history is thus an important underlying feature.

The evaluation is a snapshot, looking back at 5 years of Wrb. However, developments continue, both within and outside the system of subsidised legal aid. Within the system, such developments include the familiarisation from management to policy of the councils for legal aid, the signalled possibly diminished interest of lawyers in the system, the registration of jurists employed by the legal aid societies as lawyers and the development of the public access function. Outside the system, developments include innovations within the judicial organisation, new legislation in the field of aliens law (higher appeal, adaptation of the first assessment and the rejection of the appeal in the event of a negative decision.) and the debt rescheduling of natural persons (with a need of administrators), the rise of mediation, the introduction of Justice in the Community and social developments mentioned earlier. As will be apparent from the discussion below, the evaluation prompts amendments to the Wrb. In future, new changes will also be essential. This evaluation will also give indications in this regard for certain elements.

This report is structured as follows.

First, attention will be given to the circumstances necessitating the introduction of a new legislative regulation (para. 3). After which, para. 4 will deal with the measures laid down in the Wrb and the amendments regarding the previous Legal Aid for Indigent Persons Act (Wet Rechtsbijstand aan On- en Minvermogenden or WROM). The effects of the Wrb, the efficacy of the intended measures and interim repairs in the period of 1 January 1994 to the present will be considered in para. 5, based on the initial situation on 1 January 1994, the date on which the Wrb entered into force. Finally, the action points are recapitulated (para. 6).

This report will draw on the various surveys carried out over recent years into the effect of the Wrb. Apart from the already published research, we could also use the draft version of the concluding report of the WODC in which the findings of earlier research are integrated. This report is expected to be published at the start of 1999. To prepare the evaluation, a number of parties directly involved were asked to give their experiences with the Wrb in practice. The text takes their contributions into account.

The report was also discussed during a round table evaluation in which the participants were representatives of the actors involved. The participants of this evaluation interview were largely in agreement with the outlined reflection of developments regarding the Wrb with the observations that the responsibility for the choices made lies with the legislator and did not always tally with the desires of their respective backing and that the policy plans included in this report cannot count on the advance agreement of all involved.

The period from 1957 to 1994, before the Wrb entered into force, was characterised by a sharply increasing 'juridification' of society. The need to gain legal advice and support in legal cases increased correspondingly. This also led to a sharp growth in demand for government-funded legal aid.

The number of paid legal aid cases grew from 46,940 in 1968 to 338,600 in 1993. A rise with a factor of seven. A constant price level (1993) saw civil expenses rise from NLG 24.3 million in 1968 to NLG 200 million in 1993 while expenses involved in penal law cases rose from NLG 5.7 million to NLG 89.3 million in the same period.

The substantial rise in expenditure and correlating exceeding of the Ministry of Justice budget were sufficient reason for measures to be taken.

However, there was not only a sharp rise in expenditure for the provision; there were also increasing noises that the regulation was extremely sensitive to improper use. The system of government-funded legal aid under the WROM was so open that it was vulnerable to claims that applicants and legal aid providers alike could make improper use of it.

The realisation of the Wrb took roughly 15 years. Two factors made significant contributions to this lengthy process of becoming. The first is that, since the start of the eighties, the government was faced with ever more stringent budgetary limits. The then system of government-funded legal aid was an entirely open system and was thus in conflict with the need to make budgetary limitations. To manage this tension sufficiently, a new system had to contain adequate steering and management instruments.

The second factor which slowed down the legislation is closely related: interventions in the existing system, directed at more steering and manageability, unavoidably meant limiting the freedom that legal aid providers had enjoyed up to then. Every proposal for another system was rejected. To break out of the impasse that had arisen, at the end of 1988, the Commission for the Future Structure of Government-funded Legal Aid, the Polak Commission, was set up with the request to investigate the ways in which government-funded legal aid could be made more manageable so that the jerky effects felt by the budget of the Ministry of Justice could be avoided.

In its report, the commission concluded that the provision could not in principle be made fully manageable, referring to the constitutional and state under rule of law nature of the provision. The commission felt that a certain degree of manageability, at least for a current budget year, was possible. Partly because the recommendations of this commission were followed to increase the legal aid remuneration by an average of 25% with the introduction of the new act, a bill could be presented to parliament. The Act entered into effect on 1 January 1994. In brief, compared to the old system, the new system is as follows:

From 1974, legal aid centres were set up in all districts in the form of private law government-funded legal aid societies (in this case, the Ministry of Justice). The centres had a two-fold task: to provide legal aid and to decide on applications for legal aid cases. In the WROM, providing counsel to those with less financial capacity was a task assigned to the so-called consultation bureaux (bureaus van consultatie). The counterpart for penal cases was the legal aid council based on the Counsel Act (Advocatenwet) - not to be confused with the new legal aid councils under the Wrb. On the basis of delegation, this task was undertaken by the legal aid centres. They decided on the allocation or rejection of legal aid cases and, in the case of allocation, on the amount the applicant had to pay which was claimed by the lawyer as an advance on his fee. The payment of the expenses of legal aid lawyers was made by the registrars of the district courts. Here, the remuneration - on the basis of the statement submitted by the lawyer on the nature and scale of the activities carried out - was determined by the court registry. The contribution paid by the applicant was cleared with the lawyer's fee.

This outmoded and distributed regulation was replaced by a single new Act. In the new organisation, a central place has been assigned to the legal aid councils which are accommodated in each of the five court areas of jurisdiction. To each council - that has the status of an independent executive body - a centre is linked, referred to as the legal aid centre. The council is not only responsible for submission of and control of legal aid cases but also for controlling and paying the expenses of the lawyer providing legal aid and for financing the legal aid centres. More than was the case, the general responsibility for the organisation of government-funded legal aid has been placed with a single body. The councils must ensure the most effective use of the resources assigned to them by the Ministry of Justice, using a statement of intended payments. The legal aid centre, under the direct responsibility of the council, is responsible for implementing the afore-mentioned tasks.

The activities of the former legal aid centres in the districts were thus split in two: the task of providing legal aid remains with the legal aid societies in the districts while all remaining tasks were lodged with the legal aid centre. A clear distinction between both activities has now been made.

The Wrb is based on four objectives:

Firstly, the Wrb offers those who themselves have insufficient financial capacity, to call on government-funded legal aid (access).

Secondly, the Wrb provides a sufficient provision of legal aid funded by the government.

The third objective focuses on the (budgetary) management of the system.

The fourth objective of the Wrb is directed at modernising the administrative organisation.

The first objective is the most essential. This must guarantee the right to legal aid anchored in the constitution. The other three main objectives should be seen as derivative instrumental goals directed at realising the first objective.

To regulate access to the system, measures have been taken in three areas. These were focused at:

• restricting the claims on the provision
• tightening up the control of applications for use (see para. 4.2.3.)
• increasing the tariff for using the provision.

With this, the new system considerably deviates from the WROM on a number of points.

1. The income limit whereby applicants are still eligible for government-funded legal aid has been dropped. Compared to the WROM, this reduction is a considerable change for single people. The WROM determined the income limits of single people by reducing the income limits for married people and for cohabitees, each by NLG 175. In the Wrb, alignment was sought with the other - lower - standards used for legal regulations from the Abw or National Social Security Assistance Act where for single people a net income of 70% of the cohabitee income, applies.
1. In article 4 of the Besluit Rechtsbijstand- en Toevoegingcriteria or BRT (Decree Concerning Legal Aid and Legal Aid Case Criteria) a minimum limit was set for the financial weight a case should have if applicants wish to be eligible for legal aid. This minimum limit is set at NLG 400. To be considered for the extended consultation hour provision offered by the legal aid societies a minimum amount of NLG 200 is set and NLG 800 for legal aid in cases for the Supreme Court. The ratio of this stipulation is that, from the view of cost-benefit analysis the allocation of government resources does not - or only insufficiently - counterbalance the interest of the applicant.
2. A number of types of cases have been determined as not meriting legal aid. This concerns cases which, because of their nature, are considered to have so little legal complexity that the applicant could resolve it himself or with the help of a counsel from a legal aid association in the context of the consultation hour provision but in any case without being able to make a more far-reaching call on the provision.
3. If at the time at which the legal aid case commences it is unclear whether the involved parties will have sufficient financial capacity to pay for the legal aid themselves because of the procedure, greater use is made of the power to grant a conditional legal aid case. If it is possible to claim the costs for legal aid from a third party or if a considerable financial interest is at issue, once the procedure is over it is possible to determine whether on this ground legal aid will still be refused. The situation is comparable in the case of divorces. After all, only when clarity has been achieved concerning the division of the estate and a possible maintenance obligation can financial capacity definitely be established. For these reasons, conditional legal aid is also granted in these cases.
4. Legal persons are considered for the provision to a much more limited extent than under the WROM regime. If a legal aid case is granted the highest tariff to be paid by the applicant must always be paid. Although this does not formally exclude legal persons, the material obstacle is increased.

Measures relating to the price of the case can make a contribution to managing access to the system. This has led to two concrete measures.

1. The calculation of the financial capacity has altered. Because living expenses are no longer claimed as a deductible item, the income on which the own contribution is based is increased.
1. Applicants' tariffs were increased and more differentiated. Where the WROM had an own tariff scheme ranging from NLG 25 to NLG 645 distributed over seven income categories, the tariffs charged by the Wrb vary from NLG 110 to NLG 1,305 distributed over 12 income categories. The goal of this measure was to give a stronger impetus to making a responsible choice, in other words, to improve selectivity. It was also an attempt to be better aligned with differences in financial capacity with greater differentiation.

The range of measures was intended to provide an accessible system that at the same time does justice to the responsible use of collective resources.

On the one hand, measures are taken that, more than before, encourage applicants to make a well-considered choice whereby financial stimuli can be useful and on the other, a better and tighter control of legal aid applications and the expense statements of legal aid providers enables combating improper use and with this more adequately accounting for the spending of government resources.

These tightening up steps should not lead to people with serious legal problems being prevented from using legal aid.

The Wrb mainly works from the position of two providers of legal aid - the legal aid societies and the lawyers registered with the legal aid councils. However, the councils can also enter into an agreement with other legal aid providers.

Traditionally, the associations concentrated on providing consultations, lawyers on far-reaching legal aid in and out of court. During the WROM, a practice gradually developed with which personnel of the then legal aid centres provided follow-up aid to a limited extent in cases in which representation in legal cases did not apply. Their registration as lawyer was, after all, impossible.

In the Wrb, the provision of legal aid that goes further than the consultation hour, both in the context of the extended consultation hours provision (for a non-income related amount) as legal aid that falls under the scope of a legal aid case (against an income-related tariff) has legal status. The maximum time to be spent on the consultation has been set at 2 hours

If the personnel of legal aid societies provide far-reaching legal aid once the consultation time is over, they are bound to request a legal aid case. The necessity of a legal aid case can sometimes be established beforehand.

The Wrb does not object to the fact that jurists employed by the associations can register as lawyers. It enables the applicant freedom to ask advice on whether a case could be dealt with within the extended consultation or whether he should turn immediately to a lawyer. The lawyer will then request for a legal aid case, a process which will demand the applicant to pay an income-related fee. The legal aid council determines whether legal aid is indicated by a (independently based) lawyer. If the council does not reach this conclusion, the legal aid can be rejected on the grounds of Article 28 Wrb.

The legal aid societies are the legal successors to the legal aid centres. Every district had its own legal aid centre often with more branches or so-called external consultation hours in more places.

When the Wrb entered into effect, the legal aid centres had 48 (subsidiary) branches. In addition, external consultation hours were held in a number of smaller places.

In the decades prior to the Wrb, the number of lawyers grew considerably: by around 1970, the bar had around 2,000 members while in December 1993 this number had grown to 7,579.

In 1993, 80% of the legal profession took part in government-funded legal aid which amounts to around 6000 lawyers. Immediately before the Wrb entered into force there were no signs that there was an insufficient quantitative offer.

Not only can applicants expect adequate and efficient support and thus receive a good product; the government is also responsible for ensuring this as subsidiser. Applicants who use subsidised legal aid must in principle gain the legal aid that meets the same quality norms as the norms that apply to the free market. Finally, the legal profession has an equal interest in quality care. After all, the functioning and status of the professional group can only be improved by developing and maintaining an integral quality standard.

Based on the thought that it is essential to assure a minimum quality standard, a number of registration conditions have been laid down in Article 15, Wrb. The registration conditions are aimed at safeguarding greater efficacy and better quality of the provision. A lawyer can only take part in the system if he is registered. Consequently, he will have to satisfy the registration conditions.

With these registration conditions, (minimal) requirements can be set relating to the expertise of the provider of legal aid, the minimum and maximum number of legal aid cases to be acquired, the office organisation and reporting. Maximising the number of legal aid cases to be acquired is particularly important. With the registration conditions, the legal aid councils have gained tools to guarantee a certain degree of quality. The statutory assignment as regards providing sufficient provision also implies that the councils, from their own responsibility for the organisation and structure of the system, in addition to the minimal registration conditions in the Wrb, request more far-reaching quality safeguards of the legal aid providers participating in the system and with this further elaborate how the qualitative aspect will be dealt with.

The legal personnel of the associations must also meet quality criteria. In article 22, para 1 Wrb, it states that lawyers employed by the associations must meet the training requirements demanded of counsel in the Counsel Act.

Through assessing the work plans of the associations, the councils can also influence the quality safeguarding of the products that the associations supply. On the ground of article 22, para 2, Wrb, the council sets down a complaints regulation. The background to this stipulation is that, with a good complaints regulation, a contribution can be made to the quality of the services to be provided.

Until 1994, because of out-dated regulations from 1971, there was no optimal set of tools for the budgetary management of expenditure. The problems included the separate accountabilities of the legal aid centres (assessment of legal aid applications) and the registries (fixing of remuneration), the lack of an intrinsic interest among the organisations for budget management and an inadequate estimation technique at departmental level.

The latter problem was eradicated at the start of the nineties by measures in the context of the state-wide policy for improving the quality of the budgets and multi annual estimates. For the legal aid system, the "operation accountancy system" resulted in an improved provision of financial information and the development of an estimation technique where relevant factors for expenditure (including the demand for legal aid, average cost price, duration of deciding on legal aid/cash rhythm, legal aid that does not end in payment) are up-dated each year. This estimation technique meant that the cash expenditure of the nineteen court registries, the total of which was decisive for the burden on the budget of the Ministry of Justice, was more in line with the financial obligations entered into by the legal aid centres. The predictability of the expenditure considerably increased herewith but had not yet led to adequate budgetary management.

Instruments are included in the Wrb for the eradication of the remaining, more intrinsic problems. In the goals of the Wrb, two elements must be separated, namely the management of expenditure and with this the budget on the one hand and on the other the assurance of the lawfulness of the expenditure.

The councils for legal aid are responsible for the organisation of the provision. Part of this responsibility is the financial management. The budgetary means made available by the legislator are almost fully transferred to the councils in the Wrb in the form of "task-setting" budgets. These cannot be fully "task-setting" because the regulation has an open-ended character.

Article 42, para 2, Wrb distinguishes the equipment costs (costs for the organisation of the council itself) from the programme costs (the costs for funding the associations and the costs of the legal aid providers). In establishing the distribution formula, this two-fold distinction has been adhered to. The possibility is created of, in later years, only placing one integral budget at the disposal of each council. The responsibility of the councils will then increase further.

To reach better budget control, it was decided to give the councils responsibility for managing a certain operating capital. Because this is linked to a cost-benefit system, the councils can add a possible credit balance to an equalisation reserve. This system means that budget deficits and excesses can compensate each other over time. Incidentally but also more structurally, budgetary setbacks do not have to result immediately in budget depletions. Better budgetary management should be possible with this.

The attribution of responsibility for legal aid demands clarity on the way in which accountability is rendered, for which a planning and control system (P&C) has been developed. P&C means making a plan for planned activities, budgeting the costs linked to them, authorising planning and budgets and rendering accountability afterwards. The activities linked to the P&C system are carried out at set times with which there is a possibility to make (operational) comparisons and steering. The Wrb has three steering levels. What is essential for the efficacy of the P&C activities is that the three levels steer each other on the same variables so that comparison of the variables is possible.

Along the main lines, the P&C tools used between the Ministry and the councils comprise the following elements. Before 1 July of each financial year, the councils receive a management letter from the Ministry of Justice. Based on this letter, the councils must submit an annual plan (activities plan and budget) by 15 October at the latest. The work plans of the legal aid societies (submitted in the context of the P&C cycle between councils and associations) are a part of this. The Ministry will approve the annual plan by 15 January of the financial year at the latest and thereby allocates a budget.

Prior to 1 June, once the financial year has ended, the councils show their accountability with an annual report (including annual financial statement and auditor's statement) By 1 October after the close of the financial year, the Ministry of Justice adopts the budget by means of a subsidy decision.

The councils follow a similar system with the associations. The delivery periods for reports from the legal aid societies to the legal aid councils and then to the Ministry of Justice are very precise. Joint objectives of the three levels must be to distribute the means available evenly and to put them to optimal use.

As earlier stated in this report, doubts formed as to the legitimacy of the expenditure in the system were partly the reason why a new legislative regulation was introduced To improve the manageability of the system and with this render the provision less vulnerable for improper use (M&O) a number of tools have been included in the executive regulations which will be further elaborated below. These tools relate to checking applications for subsidised legal aid and the assessment of the statement of expenses of legal aid providers. The strict distinction drawn in the Wrb between granting legal aid and the legal aid provision increases the option to control with which a better assurance of the legitimacy of the expenditure for the system is also in place. Further, legal aid and remuneration criteria are laid down in an Order in Council with which a better safeguard of the legitimacy of the expenditure of the system is also present. Finally, the establishment of standard forms for legal aid and expense statements contribute to a more manageable processing.

The measures included in the Wrb which are intended to hinder M&O cover three areas. The first step in the control is directed at the financial capacity of applicants. Once the means testing has been carried out - and with it the question of whether the applicant will be admitted to the system - the content of the legal aid application will be checked. Finally the accuracy of the expense statement submitted by the legal aid provider will be checked.

In the assessment by the legal aid centre whether an applicant is eligible for the provision, the individual's means capacity must be established. Here, the municipalities play an important role as they provide a Verklaring Omtrent Inkomen en Vermogen or VIV (Certificate of Indigence). In close consultation with the Vereniging van Nederlandse Gemeenten or VNG (Association of Netherlands Municipalities), prior to the introduction of the Wrb, the VIV form and the procedure for submitting the declaration by the municipalities was so improved that an adequate control of the data supplied by the applicants at the application stage was facilitated. The new working method was then evaluated by the Centrale Recherche Informatiedienst or CRI (Central Criminal Intelligence Agency) as a accountability fraud-resistant.

The municipality should check the personal data submitted by the applicant against its own records, particularly those of the Gemeentelijke Basisadministratie or GBA (Municipal Basic Administration). Further, the municipality verifies the applicant's financial data on the basis of evidence he or she provides.

The legislator wondered whether these tasks should be assigned to the municipalities or to the legal aid centres. After brief consideration and in consultation with the VNG, it was decided to leave this task with the municipalities. A decisive factor here was the better accessibility of municipalities for the citizen, the already-existing link with the GBAs and the fact that a link-up with the data of the social services departments is sometimes possible. Here, the condition is that the municipalities will not be faced with unreasonably weighty control tasks. For these reasons, the municipalities do not need to carry out active research as regards the financial data: this task has been assigned to the legal aid centres. The Wrb gave the legal aid centres the authority to request data from the tax authorities, industrial association for social insurance and a number of other bodies.

If the limited financial capacity of the applicant is evident, it is sufficient to have a more simple statement from the applicant himself. In particular, this concerns the situation that an applicant receives social benefits in the context of the Abw (National Social Security Assistance Act). An investigation into the income and capital has thus taken place and need not be conducted again.

With an eye to the efficacy and legitimacy of the legal aid submission, the legal aid centre must also carry out a substantial test. This test also relates to the question of whether the application relates to a case that is already within the scope of a legal aid case already provided and or whether another form of legal aid is indicated. Should the centre reach such a conclusion it should refuse the legal aid requested.

It is the express intention that the centre will be given no direct part in the way in which a case is dealt with by the legal aid provider. If it later appears that an incorrect picture of matters has been given, the council can still withdraw the legal aid. If repeated improper use transpires, the council can decide to strike off the counsel.

Under the WROM the legal aid centres organised in districts were responsible for submitting the legal aid cases to the registries of the district courts so that expenses could be paid. Despite the guidelines agreed in the Leidraad voor het Toevoegen door de gezamenlijke bureaus voor rechtshulp (Guideline for Legal Aid Appointed Jointly by the Legal Aid Centres), this sometimes led to widely diverging policy. Insight into the legitimacy of expenditure was limited to minimal. With the arrival of the councils, at least at area of jurisdiction level, uniform policy is carried out which reinforces control of legitimacy.

For the good and effective control on expenditure of the monies available for legal aid considered essential, a Legal Aid Inspection was originally projected. This Inspection would have an advisory, informative and controlling task. A wide majority in the House could not be convinced of the value of such an Inspection, so the idea was abandoned.

Because the notion of the Inspection was dropped, a number of other aspects gained importance. On the basis of Article 43, para 3, Wrb, the annual accounts of the council must be accompanied with an auditor's declaration concerning the reliability of the annual accounts together with a statement by the auditor that the council has complied with the prescriptions bound to the subsidy. The Minister issues prescriptions on the scope and intensity of the auditor's control. The so-called review-right of the Departmental Accountancy Service must be safeguarded. Finally, on the basis of Article 43, para 4, the Minister of Justice can set further rules on the budget and annual accounts of the council.

To achieve the objectives of the act, more is required than the range of tools offered by and pursuant to the Wrb. The way in which the ministry envisaged realising this is described in the "Besturingsvisie rechtsbijstand" of February 1993.

The modernisation of the system is based on the principle that the central government should steer from as great a distance as possible. In concrete terms, this means steering aspects that must be considered essential to a state under rule of law namely equality before the law and legal certainty. For which the minister has, after all, political responsibility.

On the basis of the underlying management perspective, the councils have been set up as independent administrative bodies (ZBOs). Characteristic of a ZBO is the tension between independent management and the political responsibility of the minister. This tension is expressed mainly in the (degree of) policy freedom a ZBO possesses. The scale of the policy freedom is not equal for all aspects of the Wrb and varies in the extent to which equality before the law and legal certainty must be assured. In other words, the more firmly the claim of the citizen on the state is established, the more limited the councils' policy freedom.

This means that, as regards the legal aid process - aspects of access to and management of the system - and the establishing process - the legislator has primacy. These aspects are generally regulated by Order in Council. As regards the structure and organisation of the system, the legislator steps back and the councils have greater policy freedom.

The relation between minister and councils are determined for these topics in the annual plan cycle. The annual plan of the council requires the approval of the minister because, if required, this could give substance to his ministerial responsibility. The tool of the annual plan offers on the one hand the advantage that, where possible and necessary, account can be taken of the exceptional circumstances in the region to which a uniform statutory regulation would not do justice. On the other hand, this is a means of avoiding random differences and inequality before the law.

The decision to organise the tasks of legal aid provision in terms of areas of jurisdiction is particularly due to scale through which the activities can be structured more effectively. This decision was also based on the necessity that the council, given the gravity and scale of its tasks, should have sufficient administrative weight. Alignment with the district structure of the WROM was thus not indicated. Setting up a single national council was considered but at the time not seen as opportune. A regionally structured organisation can, as mentioned earlier, be better in line with local circumstances.

Due to the scale and importance of the council's duty, nine board members, appointed by the Minister, were decided upon to guarantee sufficient representation and expertise of the required disciplines.

In terms of the Act, the councils in every district must subsidise a legal aid association. During the parliamentary treatment of the Wrb, the legal profession observed that the (possible) growth of the associations formed a threat. However, the undesirability of this segment of the government-funded sector assuming an increasing place compared to the market sector, played a more principal role in considerations.

Seen from this viewpoint and to meet the feelings of the legal profession, the Wrb sets the number of counsel employed by the associations at 10% of the total number of lawyers registered with the councils.

The duties of the associations are independent of the councils and carried out with an independent management responsibility.

The associations must draw up a work plan. This work plan needs to be approved by the council and is included in its annual plan.

The reassessment of access to the system is central to the Wrb. This reassessment and the measures taken in this context are outlined in more detail in paragraph 4.2.1. On the one hand, tighter financial access requirements are set regarding the applicant while on the other, requests for legal aid are subject to more control.

In the paragraphs that follow, not only the conclusions of the Scientific Research and Documentation Centre (WODC) are dealt with but also analyses carried out by ourselves, relating to access. This is particularly the case when considering the actual volume developments of the use of legal aid (para. 5.1.3). This is followed by a thematically structured treatment of the modifications to the system made since the Act entered into force (para. 5.1.4). Para 5.1.2 is thus limited to a brief description of the main points and the results of the WODC research.

Rapidly after the Wrb entered into force, a considerable reduction in the number of legal aid cases submitted was signalled. This drop was much greater than anticipated beforehand and raised the question whether the introduction of the Wrb hadn't led to access to the law becoming severely restricted. For the legal aid councils, these signals prompted them to initiate research into the effects of the Wrb from their prime responsibility for the functioning of the system. In August 1994, some nine months after the introduction of the new Act, the directors of the councils contacted the WODC to conduct further investigation into what they saw as the alarming reduction in appeals to the subsidy scheme. Although a reduction in the number of appeals was a foreseeable result of the Wrb (also predicted by researchers), the scale of the development at that time seemed in conflict with the actual aims. At the end of September of that year, this resulted in setting up the subsidised legal aid working group which, in 1995, published the report "Met recht bijstand". This report presents an initial estimate of the reduction in appeals for subsidised legal aid both in the field of penal law and as regards civil and administrative law. Attention was also given to the variation in the decrease, both in terms of legal fields and area of jurisdiction. Tentative explanations for the differences observed were sought not only in the nature of the problems but in the degree of severity with which the various regions (at that time 20 legal aid centres) implemented the WROM. In this regard, the WODC refers to "precise" and "moderate" districts. 10% points of the reduction in 1994 with 32% (later this figure was up-dated to 38%) can be attributed - according to the WODC - to the restrictive measures in the Wrb, 6% points are a result of the increase in price of subsidised legal aid and 16% points can be ascribed to tighter control. We can therefore conclude that a significant share in the drop in the number of legal aid cases submitted in 1994 was not due to the stipulations of the Wrb but to tighter controls of the applications, particularly in formerly "moderate" districts.

The report "Met recht bijstand" also signals that the indexing regulation relating to the income limits and own contribution contained in the WROM were not applied in conformity with this act. As a result, the legal upper limit of NLG 325 established in 1994 was too low. In October 1996, this led to the submission of a proposal to amend the Wrb to correct the income limit and the indexing mechanism.

Given the limited nature of "Met recht bijstand", the working group advised conducting a follow-up survey. This advice was taken. The follow-up survey, carried out by the WODC, had a far broader structure and covered a longer period.

In a first interim report ("Rechtsbijstand: krimpende markten" of September 1996), a further quantitative analysis was made of the effects of introducing the Wrb for developments relating to the 1994 period up to and including the first quarter of 1996. Again, the key question was the development of the reduced use of the facility in this period and the possible changes in appealing to the legal aid provision. The reduced use of legal aid cases is here distinguished from the non-use of legal assistance.

The researchers reveal their findings concerning appeals to the legal profession in the interim report. The reporters also pronounce on the substitution at which the act is aimed. Based on limiting claims on the provision and the increase in price, the applicant could be expected to drop the more expensive legal aid in favour of appealing more frequently to what for the applicant would be cheaper legal aid during the consultation hours of the legal aid provision of associations.

In this case, the researchers refer to internal substitution: the applicant continues to search for a solution to his/her problem within the system. It is then also conceivable that the applicant solves his problem outside the provision, which is indicated by external substitution. The report shows that the reduced demand particularly occurs among applicants confronted by the Wrb with a substantial increase in price; the lower income brackets are not hindered by the Wrb in their recourse to a lawyer. The number of consultation hours among the legal aid societies shows an increase in 1994 followed by a decrease in 1995. There seem to be no internal substitutions.

When she presented the first interim report, the former State Secretary asked the WODC to give her further information in the near future on the effects of the decision taken in November 1995 prompted by the report "Met recht bijstand" to reduce the higher tariffs payable by applicants. The WODC answered this question in February 1997 with the second interim report ("De rechtsbijstand afgeprijsd"). This demonstrated that applying higher own costs has cut down on the inequality within the tariffs system to a limited extent.

In May 1997 the WODC presented a third interim report: "Rechtsbijstand, kiezen of moeten". Where in earlier reports the permitted use of the provision (the legal aid case and the visitors registered by the legal aid societies) the number of individuals calling on a certain facility (lawyers, legal aid centres, semi-private organisations) and the effects of reducing the tariffs payable by the applicant comprise the basic principle of the analyses, this interim report focuses on the problems requiring solution and research is undertaken into whether the applicant opts for other solution strategies. Applicants do not appear to be influenced by the Wrb in the degree to which they themselves consider the problems to be serious and present them to a lawyer but the amount they have to pay themselves is often seen as problematic. Problems which are proportionately perceived to be less serious are often less frequently presented to a lawyer if these concern questions of rent and obligations but the same does not apply to employment disputes and problems with social benefits.

As mentioned in the introduction, at the start of 1999, the WODC will publish a conclusive study into access regulations in the Wrb which will integrate "Met recht bijstand" and the three interim reports. This evaluation draws on the draft version of the conclusive report.

Per balance, the Wrb has resulted in a reduction of 39% of the number of legal aid cases in civil cases (number of legal aid cases submitted in 1997 compared to 1992). This amounts to a reduction of approximately 100,000 legal cases per year. After the drop in 1994 and 1995 (after-time-lag) as a result of the introduction of the Wrb, in the years thereafter, a degree of stabilisation was reached. The number of legal aid cases submitted in civil and administrative law cases hovered at around the 1995 level.

According to data shown in the table below, subsidised legal aid provided by lawyers is less used particularly in the case of problems concerning housing, employment and commercial transactions (consumer cases, contracts and so forth).

The WODC reports show that the reduced call on lawyers was limited to higher self-paying categories. In the two lowest self-paying categories, resorting to lawyers remained undiminished. Further, it seems that the decreased use of legal assistance provisions by lawyers is connected to the severity with which the applicant perceives the problem. Whoever has a problem that he himself considers serious will nonetheless call in a lawyer. In the case of problems considered less serious, a lawyer will be called on less frequently.

Appendix 2 contains a table in which the developments in absolute figures per legal area are given in more detail.

Within the penal sector, two contrasting developments can be seen: the number of legal aid cases officially submitted (submitted by order of the court) has shown a sharp rise since 1994 while the number of non-official legal aid cases is dropping.

The number of official legal aid cases is unrelated to the Wrb. In this regard, the Wet bijzondere opnemingen in psychiatrische ziekenhuizen (Wet BOPZ) or Psychiatric Hospitals (Compulsory Admission) Act, introduced on 1 January 1994 caused a considerable rise in the number of cases. This same effect was caused by the intensified policy concerning the expulsion of aliens, resulting in an increase in the number of aliens detained. The rise in the category "other" is due to the rise in cell capacity. This category particularly includes legal aid cases in the field of detainee law and the enforcement of probation orders.

The working group, whose recommendations are expected at the start of 1999, will reach the conclusion that the rise is due to causes which lie entirely outside the system of subsidised legal assistance which can thus not be solved from within the system. Possible solutions, rooted in the prosecution and dispensation of justice spheres are beyond the scope of the working group. Given the obligations arising from constitutional and treaty law, relatively little can be expected from the government in terms of possible solutions to brake the growth.

In contrast, the developments relating to non-official penal legal aid cases are a logical consequence of the Wrb. The drop, visible in table 4, is specifically due to, on the one hand, restricting the possibility of obtaining a legal aid case for matters coming up before the district court (with the exception of the cases in which extraordinary actual or juridical circumstances occur) and on the other by the fee to be paid by applicants introduced for penal cases.

In principle, the statistics show the same development as the use in civil cases. However, the scale of the decrease is lower. Important explanations for the scale of the reduction include the urgency of the case, the moderate own-contribution regime compared to civil cases and the (often limited) degree to which applicants can settle a case without calling upon a lawyer. Based on these factors, a relatively lower decrease than in civil cases can be expected.

For the fluctuations in the legal aid cases submitted, two factors can be given, partly in relation to inflow data on asylum seekers. Firstly, legal assistance on the basis of a legal aid case only occurs in a later phase of the procedure, not during the first reception of the asylum seeker, namely after the first refusal and in appeal. Secondly, the statistics for legal aid cases submitted are greatly influenced by backlogs among the chain partners (Immigratie en Naturalisatie Dienst or Immigration and Naturalisation Service and the judiciary) in processing the requests and in catching up with the backlog that has occurred.

The Vreemdelingenwet or Aliens Act, the means of reception, the reception locations and the inflow of asylum seekers have been subjected to many changes. This necessitated acting more flexibly. In 1993, the Instituut voor Onderzoek van Overheidsuitgave (Institute for Investigating Government Expenditure) published a report recommending a more efficient and more flexible assistance model. Partly on the basis of this report, the councils decided to undertake a thorough reorganisation of legal aid for asylum seekers in 1995.

Providing legal aid has now been placed with three new associations for providing legal assistance to asylum seekers or stichtingen rechtsbijstand asiel (SRAs) - subsidised by the councils - that provide and co-ordinate legal assistance. Because only three SRAs have been set up, increase in scale has been achieved and has also dovetailed with the model of the reporting and reception centres for asylum seekers. The SRAs have access to a permanent basic staff for providing legal assistance in the reporting centres (ACs) and in the investigative and reception centres (OCs) and can hire in the additional services of the legal profession.

This structure means that co-ordination takes place independent of the interests of those providing legal assistance which promotes flexibility, efficacy and quality.

The SRAs have proven capable of responding with the necessary flexibility to changing circumstances. A full overview of the way in which the SRAs operate is still lacking. A separate evaluation is recommended.

The table below shows that, in 1994, attendance at the consultation hours of legal aid societies increased by 6% compared to 1992. This increase, apart from a slight rise in 1996, remained stable throughout subsequent years. The total aid provided by the legal aid societies over a number of years shows the following picture:

In addition to an increase in the number of clients (dealt with), a shift seems to have taken place within the settlement profile. Of the number of cases taken on, a larger number is currently being ultimately settled on the basis of a legal aid case. This development is partly the result of the amendment of the legal aid societies' take-in policy stimulated by the councils whereby the more serious cases are considered for far-reaching legal assistance. The shift is also the result of an amendment in the referral policy of the legal aid societies. The number of referrals in the consultation hours cases dropped from 8.8 in 1993 to 4.0 in 1997.

The final report of the WODC will show that, to a great degree, the legal aid societies do not process cases dealt with in extended consultation hours within the maximum time frame established while they nonetheless do not request for legal assistance for these cases. In 1994, some 20% of the extended surgeries exceeded the maximum time limit by 2.5 hours; in 1995 and 1996, this was 30 and 31 % respectively. If account is taken of the expansion of the extended consultation hours provision to 3.5 hours as of 1 July 1998 these percentages are 6.5%, 10% and 11% respectively. In all these cases legal assistance should be requested on the grounds of the stipulations of the Wrb. If the legal assistance in the above figures should be processed, it would be apparent that the settlement profile of the legal aid societies is considerably altered. With regard to 1994, the legal aid societies did not settle more cases but on average provided more extensive legal assistance in the cases presented to them. These developments diminish the differences between the legal profession and the legal aid societies. The councils are asked to take measures to safeguard the restricted time span of the extended consultation hours provision.

The size of the group of people able to make use of subsidised legal assistance is mainly determined by the income limit given by the Wrb. This is amended using an indexation regulation. The affluence of Dutch society, which on average contributes to capacity, has direct bearing on the size of those entitled.

In February 1995, the WODC reached the conclusion that the indexation regulation valid under the WROM was not being properly exercised. If the indexation mechanism was correctly applied, this would have led to the highest income limit giving entitlement to subsidised legal assistance would have been NLG 325 higher when the Wrb was introduced. In order to nullify this unintended effect, as of 1 July 1998, the upper limit was increased by NLG 365, taking inflation into account. This legal stipulation currently means that around 47% of the Dutch population is entitled to the provision. If, because of continued increasing prosperity, a much smaller section of the Dutch population will be able to have recourse to the provision in the future, this could endanger capacity for the provision to such an extent because a minimal size is needed for maintaining and effectively structuring the provision at a sufficiently qualitative level. Keeping the level of those entitled constant (or even increasing it) is not a goal in itself but could be significant for maintaining the provision.

Against this background, the renewal and reinforcement of the consultation hours provision announced by the previous state secretary could play an equally key role. After all, because the consultation hours provision is open to a larger section of the population, this can contribute to keeping up the minimally required size for maintaining the provision.

However the system will develop, on the basis of requirements pertaining to the constitution and the state under rule of law. In certain cases, of course, subsidised legal assistance must remain assured for those with priority needs.

From the WODC research it can be concluded that tightening up the range of the provision has had the desired results. The actual threshold for single people and those cohabiting has now been equalised. Where the choice of solutions is concerned, the price/income consideration for single people is currently the same as for cohabitees.

Access to the system is partly regulated by capital capacity. During the evaluation period, various sides put forward the point that this means test is problematic for those with additional old age pensions in the form of capital.

These problems prompted the relaxation of the hardship clause. The councils for legal assistance amended the hardship clause as regards capital exemption as of 1 July 1998. Assets reserved for old age pensions are currently exempted from means testing to a large extent. The Wrb does not contain an indexation for capital exemptions. This leads to an undesired creeping undermining of the scope of the provision. In Appendix 4 this amendment is included in the list of planned alterations to the Wrb.

Capacity in terms of income and capital is one of the central criteria for access. The Wrb contains a specific criteria of its own on the basis of which the entitlement of applicants can be determined. This criteria demands its own specific way of providing data, of establishing means to pay and of verification and controlling techniques. In almost every phase of this process, problems arise to a lesser or greater extent. This difficulty prompted setting up a working group to research possible alternatives - the working group VIValt.

Reducing bureaucratic impediments to access to the provision is important as long as this does not impair the M&O policy. The findings of the survey will be further detailed in the discussion of the management and legal aspects (para. 5.3).

The fees payable by the applicant in the Wrb are intended to afford applicants the opportunity of choosing between the costs and benefits involved in legal assistance. Furthermore, they also serve to co-finance the costs for the system.

When the Wrb was introduced, the system had a tariffs payable scheme comprising 12 income categories where the tariffs to be paid by the individual varied from NLG 110 for the lowest income bracket to NLG 1,305 for the highest. The reduced demand that has occurred can partly be ascribed (around one fifth) to the (amount of) the tariffs payable by the applicant.

In the spring of 1995, the WODC reported ("Met recht bijstand") that the effects of the amount of the tariffs payable by the individual are particularly felt by the income bracket that falls just inside eligibility for the provision which is why this group relinquished calling on (non-procedural) legal assistance. The WODC also concluded that the system of tariffs payable by the applicant contains substantial inequalities as regards the extent to which citizens in the various income brackets have equal access to subsidised legal assistance (capacity according to financial capacity).

Based on the conclusions of this research, in May 1995, it was announced that the scheme of tariffs payable by the applicant would be reduced, particularly for the higher income brackets. This measure aimed to reach a regulation with which the tariffs payable by the individual would be more in line with financial capacity. At the end of 1995, a number of applicants' tariffs laid down in article 35, third paragraph of the Wrb, were actually amended. This amended individual contribution regulation had a band width of NLG 110 for the lowest income brackets to NLG 935 for the highest. The effects of this reduction were further researched by the WODC.

The researchers concluded that the importance of the weighing up function of the tariffs payable by the individual can be greatly put into perspective - on the one hand because the demand for legal assistance is almost non-elastic in terms of price, on the other because a reliable controlling tool (the councils) is available because of which the price mechanism has been robbed of importance. They also point out that, despite alterations to the tariffs payable by the applicant at the end of 1995, the regulation still has an unequal contributions system now.

By mid 1997, the former state secretary reported to the Lower House the conclusions she linked to the research. This standpoint can be summarised as followed. People with serious problems seem not to be put off calling on legal assistance by the amount of the tariffs they have to pay. In cases considered less weighty, the individuals' own contributions have led to a more selective use of the provision; in such cases, the price results in fewer applications for legal assistance. The controls carried out by the councils are an important tool in terms of maintaining accessibility to the system. Maintaining the tariffs payable by applicants is therefore essential from the perspective of cost control.

Despite the fact that citizens continue to apply for legal assistance for problems they consider serious, to a great extent, they tend to typify the tariffs they have to pay as (very) problematic. A re-evaluation of this aspect of individuals' own contribution seemed essential according to the state secretary.

With this in mind, a Commissie Herbeziening Eigen Bijdragen or Franken Commission (Individual Tariffs Re-evaluation Commission) was set up in the summer of 1998 with the brief of making recommendations regarding the weighing up function of the individual contribution and a possible alternative system of tariffs.

The commission recently made its recommendations. First and foremost, the commission finds that on the basis of the research findings available to it, there are no pressing reasons for taking measures in the short term. The commission recommends first gaining experience with the current individual tariff system and the recent alterations to it. To establish whether, even after the most recent measures, the regulations present insuperable obstacles for citizens in genuine need of legal assistance, the commission believes that more in-depth research is required.

In the opinion of the commission, the system contains instruments that facilitate applicants to make well-considered choices. The consultation hours provision in particular was seen by the commission as a potentially important tool. It feels that the consultation hours provision could act as a filter against the needless use of the provision. However, in the present system, the applicant can also have direct recourse to a lawyer which is less of a stimulus to selectivity. The commission came to the conclusion that, with specific regard to cases in the fields of social insurance, tenancy law, employment law and aliens legislation these can be settled within the consultation hours provision. In these areas - without a single exception - no trial representation is prescribed. Consequently, the commission is considering opening the option that, in these areas, cases can be dealt with by a lawyer at a lower fee if the consultation hours lawyer has stamped the case as "serious" and referred it to him.

This proposal has its attractions and disadvantages. One disadvantage named by the commission itself are the logistical aspects if applicants visit the consulting hours of the legal aid societies en masse. It has not been laid down from beforehand that such a measure will stimulate the efficacy of the entire provision.

Another aspect is how to deal with the basic premise upheld by the legal aid societies that all those cases presented during consultation hours have to be settled by the legal aid societies. Another point concerns which cases are referred by the consultation hours lawyer because they are considered "serious". Another question is whether the discount should not equally apply if the case is not referred to a lawyer but if the lawyer employed by the legal aid association decides to request a legal aid case. Further research, together with consultation with the parties involved is indicated before reaching possible measures.

In practice, in a fairly large number of cases, applicants appear to make more frequent use of the services of a lawyer within a relatively short space of time. The applicants concerned should then continuously have to pay a contribution which can at the same time form a high barrier. To soften the most painful cases, an anti-accumulation stipulation is included in the Besluit Draagkrachtcriteria Rechtsbijstand or Decision concerning financial capacity criteria in legal assistance. Based on this, waiving the tariff payable by applicants is only possible if the applicant must again instigate a new case for the same legal interest. At the time, this formulation was chosen so that less serious cases could be brought solely because individuals' own contribution were set at nil.

Half way through 1997, the former state secretary informed the Lower House that the anti-accumulation regulation would be expanded which would also involve the recommendations of the councils and the WODC. At the insistence of the House, a measure was designed. However, the entering into force of this measure is dependent on the results of the research of the WODC. When the results of that research pointed in another direction, the measure was not introduced. The afore-mentioned Commissie Herbezinning Eigen Bijdrage was also requested to include the working of the anti-accumulation problem in its recommendations. The commission advised meeting the anti-accumulation problem by placing more cases and acts of procedure that share coherence within the scope of one legal aid case. In this way, the applicant only need pay one complete own contribution within a limited period. The Besluit Vergoedingen Rechtsbijstand or Decision concerning Legal Assistance Reimbursement should then be amended so that the reimbursement remains balanced for the lawyer. In expectation of the realisation of such a regulation, the commission recommended modifying the anti-accumulation in the sense that if a second (or further) legal aid case is provided within six months, a tariff would be set for the subsequent legal aid case whereby a degressive percentage regulation would apply: the amount of the contribution payable of a subsequent case should be a degressive percentage of the first tariff payable. A separate decision will be taken concerning the modifications to which these recommendations will lead.

Since the Wrb entered into force, refinements and clarifications have been carried through by the councils with regard to the policy regarding the provision of legal assistance or establishing a case for legal assistance especially on the grounds of jurisprudence. No substantial policy changes have been made.

With regard to the accessibility of the system, after the Wrb entered into force, there were many changes. After the initial sharp drop in the number of legal aid cases, the situation has stabilised over the space of a few years. This effect does not occur with regard to the autonomous developments of asylum and official legal aid cases. From the viewpoint of operation, the system has been structured as a growth model. Such a dynamic also seems to apply to accessibility. After all, where problems were indicated during the evaluation period, these were examined and, where necessary, this led to legislation and regulations being amended. A positive aspect is that all actors within the system made a contribution here so that there is also sufficient dynamic, even on this point. The accessibility of the system will need to remain a continued point of attention. A suitable tool will have to be developed to monitor the system. Where necessary, supplementary research will have to take place.

The Wrb has resulted in more selective use of the provision but the current system seems to provide adequate access to the law for citizens who have serious problems and for whom legal assistance is thus essential. Nonetheless, a number of unintended effects did occur although these can be combated by focused additional measures.

In the final report, the WODC will indicate that the effects of the amendments will only be noticeable in the long term, that it is advisable to give the Wrb the opportunity of 'setting' in its current form in practice and of closely following the scope of the process. Here, the importance of institutionally anchoring this observation is underlined. This anchoring, plus instruments, will need to be developed.

The second goal of the Wrb concerns providing sufficient provision - both in terms of quantity as quality - of government-funded legal assistance. As noted in para. 4, the Wrb is in line with the practice under the WROM regime that providing legal assistance takes place through the legal profession and legal assistance associations.

The duties attributed to the legal aid societies in article 19 of the Wrb imply that all eligible for Wrb within a reasonable (geographic) catchment area should be able to use the services offered by the legal aid societies. Thus, the associations must ensure there is sufficient provision nation-wide.

There are in general 4 criteria on which evaluation of the founding policy of the legal aid societies is based:

1. population density and the number of people eligible for legal aid;
1. the distances to be travelled;
2. the degree of availability of lawyers enrolled with the legal aid council and
3. the (actual) number of cases.

The legal aid societies have central offices in all main locations of the 19 districts and independent sub-offices in 28 larger municipalities outside these areas and sometimes more than one office in a single city. Furthermore, the legal aid societies hold separate general (external) consulting hours in 39 smaller municipalities. In total, there are consultation hours at 86 locations distributed over 47 branches and 39 (external) consultation hours. Appendix 3 contains a map of the Netherlands showing the offices of the legal aid societies.

Although the above criteria are not elaborated in exact standards, the current offer of the legal aid societies leads for now to the conclusion that each citizen of less financial means within a reasonable distance does have access to these provisions.

Nevertheless, regular noises are heard concerning the 'blank spaces' in the distribution of the legal aid societies and the legal profession whereby a referral is also made to qualitative shortfalls in the provision or, in other words, the poor quality of the legal advisor.

These signals are taken seriously. At the moment, the councils are currently undertaking a nation-wide survey into the extent to which the present distribution of the total offer - of both legal practitioners taking part in the system and the legal aid societies - is sufficient. Possible standardisation of the distribution and openings - upon which the VRI insisted - will be involved here. The qualitative aspect is expressly involved in the (follow-up) research brief. This survey is expected to be rounded off in the summer of 1999.

The package of services offered by the legal aid societies differs. All the legal aid societies have an information desk staffed by non-jurists to which the applicant can turn for information. If the applicant needs legal assistance - in so far as the legal aid association operates in the legal area required - he or she is referred to the consultation hour. If the legal aid association does not include the required legal field in its package, the applicant will be referred to a lawyer to whom the applicant will directly owe the income-related tariff. A referral will also be made if the applicant's financial means exceed the Wrb limits.

In general, the legal aid societies are limited to housing (rent), employment, social insurance, aliens law and sometimes consumer law. This limitation is not only determined historically but is also more calculated as regards content. Until recently, jurists in the salaried employment of the legal aid societies could not be registered as lawyers. Because of the case monopoly of the legal profession, jurists working at legal centres and legal associations were not authorised to act during legal suits. The recently opened option that jurists employed by legal aid societies can register as lawyers has not yet led to expanding the package of services. The bye-law relating to lawyers employed by the NOvA or Netherlands Bar obligates the lawyer employed by a legal aid association not to act in cases in which the other party could similarly have recourse to the legal aid association. Based on this stipulation, the possible offer of legal areas is also restricted.

Another reason for the limitation is partly due to the limitation itself. The jurists at the legal aid centres consider themselves insufficiently expert in the legal areas they do not offer, precisely because of the lack of experience with these kinds of cases.

In addition to these arguments, the legal aid societies also point out the limited capacity that makes choices essential. The (by definition) scarce resources obviously necessitate making choices but these do not have to lead to rejecting certain legal areas. Other choices are possible, such as a limitation of far-reaching legal assistance. Whether the input of resources will give priority to a broad consultation hours provision, integrated assistance or other activities cannot be generically determined. Councils and legal aid societies must align choices to the local situation. Of course, it is conceivable that the legal aid societies will be allowed not only to offer consultation hours in more legal areas if moreover they integrally resolve all requests for legal aid in all areas including possible assistance in legal proceedings. However, there are two objections to such a development model. Firstly, the (legal aid) lawyers would be pushed far too far out of the market. Secondly - and this is of a more principle nature - the market sector would lose considerable significance compared to the public sector, a development which is undesirable.

A perspective for expanding the number of legal areas could be to interest lawyers in holding consultation hours in those legal areas not covered by the legal aid societies. In the letter of June 1997 of the former state secretary of the Lower House, this option was expressly indicated to reinforce the consultation hours provision. If the consultation hours were held at the offices of the legal aid societies, applicants would not necessarily receive a diffuse image of the provision. When asked, however, the legal profession seemed to show little interest in such arrangements to date.

During the round table conversation held for this evaluation, various sides, particularly the Vereniging voor Rechtshulp or Legal Aid and Advice Association the legal profession and the councils, stated that the offer of a limited number of legal areas by the legal aid societies could lead to problems in practice. For the legal problems for which no provision can be provided pursuant to the Wrb, the consultation hours provision is the only possibility of gaining funded legal assistance. Another problem is that applicants who can turn to the legal profession for a legal aid case will directly have to pay an income-linked tariff and will not be able to have the first 3.5 hours for 30 guilders. A third objection is that it is confusing for applicants that they can turn to the legal aid societies for one type of problem and not another. Applicants will probably benefit from one point of contact where they can turn to with all problems (at least relatively simple ones) for which they need legal aid. For the time being, the nature of these problems is not such that measures have to be taken. The applicants concerned will in principle have to present such problems in the context of the consultation hours provisions. Should the research show that the offer of legal aid provisions presents significant difficulties for certain legal areas, specific measures will be taken.

The legal aid societies are increasingly striving to deal fully with the cases submitted to them, even if proceedings must be taken. The number of legal aid cases (and cases meriting legal aid) settled by the legal aid societies has gradually been increasing since the Wrb entered into force. Although the number of legal cases at the legal aid societies is still relatively low, the data concerning the inflow and settlement of clients (see para. 5.1.3.4) shows a trend towards another settlement profile (with more extended consultation hours and legal aid cases).

The increase in the number of legal aid cases could show that the staff of the legal aid societies have in the meantime become entirely used to collecting tariffs from applicants. The survey referred to in para. 5.1.3.4. carried out by the WODC will, however, demonstrate that a great deal of legal aid amounting to more than 3.5 hours is provided within the context of the consultation hour provision while previously a legal aid case had to be requested. From 1994 to 1996, this percentage even rose from 20 to 31% of the extended consultation hours. This can indicate that staff of the legal aid societies still have major problems with asking applicants to pay tariffs.

The change in the settlement profile contains both pros and cons. For applicants, the advantage is that they are no longer referred to someone else or to another association. For the system, this can promote efficacy. For individual staff, providing far-reaching legal assistance means more in-depth work that can stimulate the quality of the legal aid. For the legal aid association it can be an instrument in the context of personnel policy and quality promotion. Here, the legal aid societies add that the input of jurists only during consultation hours could pose a too great and one-sided burden which could endanger the quality of the legal aid and the motivation of the staff.

One disadvantage could be that applicants perhaps fail to receive help from the legal advisor best placed to assist them, instead being assisted by someone they encounter more coincidentally (a disadvantage that can also be attached to the way in which applicants come into contact with lawyers). Another disadvantage could be that the position of the legal profession could be weakened because fewer cases are referred on. If only relatively time-consuming cases are referred, the fixed refund for them could be out of balance for the lawyer; after all he will be given fewer relatively simple cases for which the fixed refund would be favourable. Such disadvantages can, given the relatively limited number of cases dealt with by the legal aid societies as legal aid cases, only present themselves to a limited degree. However, a more significant disadvantage could be that, because of increasing attention for far-reaching legal assistance, the legal aid societies would give less weight to the access function with which it would no longer occupy a central place in the orientation of the legal aid societies. The VRI does not share this concern. The legal aid societies refer in this context to the limited number of cases, in terms of percentage, for which legal aid is requested. Of itself, this percentage is indeed low. The afore-mentioned WODC research shows, however, that the percentage due to exceeding maximum consultation hours time is far higher in reality (5% in 1996). Finally, consideration should be taken of the fact that cases taken on cost far more time than cases dealt with during consultation hours. Measured in time, 34% of the available capacity is spent on legal aid cases. This picture justifies a degree of anxiety on the continued attention of the legal aid societies on the access function.

This concern is further fuelled by the concept of betalende praktijk’ introduced by a number of legal aid societies (in Assen, Dordrecht and Leeuwarden) with which the councils were confronted almost immediately when the Wrb entered into force. The discussion on whether or not to allow legal aid to be rendered against payment of a fee has considerably determined the agenda as far as strategic policy in the period under review is concerned. The legal aid societies involved argued for paying fees based on, among other things, a referral to applicants not covered by the system until 1 July 1998. Furthermore, these legal aid societies believe that maintaining the practice entails qualitative advantages for their legal assistance services and that the required increase of financial support of the legal aid societies can be realised in this fashion.

The objections against the practice of legal aid fee paying are three-fold. In the first place, the practice of fee paying leads to a fusion of the public duty with commercial business operations which hinders the public access function in the sense that the legal aid societies no longer focus exclusively and disinterestedly on legal duties. Secondly, it cannot be satisfactorily established whether the government funds available for this purpose are solely used to this end. Thirdly, there is an insuperable objection to the payment of fees in the sense that the legal aid societies have a competition advantage over the legal profession because of their fully subsidised consultation hours service. With this provision, the legal aid societies drain clients from the paying market. The stringent separation of finances proposed by the legal aid societies is insufficient to render this competition advantage null and void. Based on the report "Markt en Overheid" or "Market and Government", published in the context of the operation Marktwerking, Deregulering en Wetgevingskwaliteit or Market functioning, Deregulation and Legislative Quality adopted by the government, a government-funded organisation can only operate on the commercial market under certain circumstances, namely if and in so far as the market activity is inextricably linked to the public tasks, which is necessary to assure minimum capacity or if the public access function is under competition. These circumstances are not encountered by the legal aid societies.

It is also conceivable that the practice of paying fees could be practised in an admissible fashion by the legal aid societies when the system is structured around an entirely different model. Such a system would not need to be based on safeguarding the public access function of the legal aid societies and the exclusivity of their attention for this, but should be based on placing the public access function itself in the market. Then the legal aid societies could be one of the bodies upon whom the councils could call for providing the consultation hours service. With this the management of the legal aid societies, that in the context of the research by Leeuw et al stated experiencing too few challenges, would have more scope for exercising its entrepreneurship. In the discussion that the Ministry of Justice carried out with the involved parties on this subject, this possibility was introduced as an option. However, organisations involved, both the legal aid councils and the legal profession together with the legal aid societies, have dismissed such a revision of the system out of hand. For these reasons, the ultimate decision was not to place the public access function on the market but strictly to separate the public access function and the commercial activities.

After having discussed this issue with the parties involved and the Lower House, the former state secretary notified the legal aid councils that this practice of fee paying should be considered in conflict with the Wrb and asked the councils to take measures to lead to winding down the practice of charging fees or to disassociation from the activities of the legal aid societies.

To safeguard access to the law, and particularly to offer an appropriate provision for problems that applicants themselves perceive as less serious and, because of these reasons - as is shown by WODC research - are less frequently presented to lawyers than previously, measures were announced in June 1997 intended to lead to renewing and reinforcing the (consultation hours) provision.

There are a number of reasons for including that policy plan in dealing with the supply side. Firstly, renewal can contribute, as discussed above, to further professionalisation of the legal aid societies.

Secondly, involving the legal profession in this provision can make participation in funded legal assistance more attractive to it. The councils could offer lawyers (law firms) a consultation hours contract. In this way, the bond of the lawyers (law firms) with the system would be reinforced, both financially and qualitatively.

The second reason gives rise to the third. Should the afore-mentioned survey into the supply of legal assistance show that, despite the current distribution of the consultation hours of the legal aid societies, 'blank spaces' exist, entering into consultation hours agreements with lawyers offers a possible, relatively simple and efficient solution. Regional consultations are still being held on the plans for renewing the consultation hour provision between the legal aid councils, the legal aid societies and the legal profession. As outlined above, lawyers appear to show little interest in participating in the consultation hour provision. The fact that lawyers do hold consultation hours in their own offices, outside the scope of the consultation hour provision, can be interpreted to mean that consultation is clearly only attractive when it ensures legal aid cases.

The costs charged by the legal aid societies vary but cost on average up to NLG 180 per hour. This includes the desk charges (around NLG 35 per hour) and excludes a number of overheads (around NLG 20 per hour). The variety in cost level shows that improving average productivity is possible. Less productive legal aid societies can emulate the productivity of others. During the last year, the legal aid councils consulted with the legal aid societies to reach another funding system based on productivity and quality. This more output-related financing will offer the legal aid societies more policy freedom while this simultaneously stimulates more efficient operations.

Part of the agreement is the funding of a public access function to be brought under the legal aid societies. This is taken to mean the first reception of applicants, prior to an eventual consultation hour. If possible, the demand is met by the public access function in the form of a simple recommendation or reference to another service provider, including lawyers.

Offering initial reception to applicants by legal aid societies does have its attractions. The task can be embedded in a broader organisation. This improves quality, for instance with the presence jurists whose services can be called upon, and reduces vulnerability. Moreover, it promotes a prima vista clarity for applicants if the public access function is offered as unfragmented as possible.

In future, it will be possible to develop the public access function to a provision open not only to those eligible on the grounds of the Wrb but to all applicants. An indisputable advantage of this is that it promotes the transparency of the market of legal services for applicants, the efficiency of dealing with individual problems and, ultimately, improves the access of citizens to the law. Such an expansion would, above all, offer the legal aid societies greater support should there be a reduction in the scale of the (consultation hours) provision due to improved societal affluence. The opportunities to achieve this should be further explored where, of course, the costs of such expansion must be reviewed.

The public access function of the legal aid societies obligates them exclusively to permit those entitled to Wrb to the consultation hours and to refer paying clients in an objective and controllable way to lawyers. In other words, placing the public access function with the legal aid societies demands an honest and transparent referral policy. But the question here is whether such a development of the public access function is in proportion to the tendency earlier identified by the associations to be more involved with more far-reaching legal aid. A combination of both developments could in the long term lead the associations creaming off a large sector of the subsidised market from the legal profession.

The structure of the public access function could offer new challenges and perspectives that offer this sufficient counterweight against the risks of an orientation of the associations that departs too much from the access function. But the shifting orientation of the legal aid societies could also be a reason for considering structuring the public access function separately from the associations. In that case, the associations could develop in the direction of law firms that simultaneously serve the social practice. Such a development could fragment the public access function and put the diversity of the services on offer under pressure but would permit the associations more freedom regarding the service they provide. At present, the choice has been to place the public access function with the associations and thus to strengthen the central position of the associations in the public system. The way in which this choice is put into practice will be followed. Over the coming year there will have to be more clarity on the further development of the associations and consultation on this aspect will be held with the organisations involved. The extremely diverse standpoints taken by those involved on this issue will also be dealt with in that discussion.

Practice has shown that as a rule applicants make no objection to paying a fee of NLG 30 for the extended consultation provision. Further, the tariff can have a positive influence on the image of the associations. Because the service is not free of charge, the applicant can experience this as a confirmation of the fact that he is being assisted by a legal aid professional.

The legal aid provided by the associations must be of good quality. Article 22 of the Wrb determines that lawyers employed by associations must meet the requirements laid down in article 2 of the Counsel Act. The associations give the necessary attention to training and quality assurance. A conclusive quality assurance system linked to the funding system mentioned above is still in development. A client satisfaction survey conducted among the associations in the jurisdiction of 's-Hertogenbosch revealed a high level of client satisfaction.

The results of the complaints regulation set down by the councils for the associations seems to give just as little reason for alarm in practice given the negligible number of grounded complaints.

The number of counsel registered with the legal aid councils is rising in an absolute sense. In 1994, 6,130 lawyers were registered with the councils, in 1997 7,161 - an almost 17% rise. When we examine the number of legal aid professionals that actually request a legal aid case, this picture becomes more detailed. In 1995, 6,712 legal aid professionals requested a legal aid case compared with 6,629 in 1998. In this regard, there was a slight drop of 1.24%.

The law firms are investigating other segments of the market partly because the remuneration is generally considered too low, in as much as the market allows. In itself this need not be a negative development. It assures the continued existence of these firms. However, it is uncertain whether their qualities for funded legal aid will remain intact.

The WODC has carried out an ex ante survey into the effect of the registration conditions in the Wrb. This survey also gives attention to the participation of lawyers in the system of government-funded legal aid. The researchers have set out their findings in the report published in 1996: 'De toegevoegde kwaliteit'. They compared the situation in 1979 with that of 1993. The number of lawyers that took part in the system in this period dropped from 95% to 80%. Further, a concentration of cases also occurred in this period: more lawyers are only working on a few legal aid cases per year while a diminishing group works on many legal aid cases annually. Finally, the WODC similarly concludes a reduced concentration of attention: a growing number of lawyers gives little work-time to the legal aid practice while the number of lawyers that spends more than 80% of its time on legal aid is dropping. Here, the WODC points out that the reduced willingness of lawyers to take part in the provision is a tendency that was already underway before the Wrb.

The relative reduction of the participation of lawyers - at least at present - does not lead to a lack of available lawyers. Seen in the long term, there are reasons for concern. Some participants in the round table evaluation underlined the phenomenon that applicants must sometimes look for some time for a legal aid professional to handle their case. In addition, various sides have put forward the standpoint that experienced and specialised lawyers in particular are terminating their participation in the system. The afore-mentioned survey will deliver more precise insight into the quantitative and qualitative aspects of the reducing willingness of lawyers to take part in the government-funded system.

Lawyers find the legal aid practice less attractive for two reasons. The first is due to the administrative procedures linked to gaining a legal aid case and the expenses declared once the legal aid is terminated. The councils have taken initiatives in the period covered to reduce the burden to legal aid professions, for example by developing disks to be used for making legal aid submissions and expenses statements. The council in Arnhem has set up an experiment whereby an employee of the council can submit a legal aid application on-line at the office of the legal aid professional.

If the recommendations of the VIValt working group (see para. 5.3.3.1.) are followed and implemented they could also contribute to reducing the burdens for legal aid professionals and applicants.

The current Remuneration Decree leads to a relatively complex implementation practice. In addition, the system contains remarkable imbalances regarding remuneration for the various legal areas. With these objections in mind, the Maan Commission or Commission for the Re-evaluation of Legal Aid Remuneration was set up on 9 May 1995. This commission was requested to make proposals for a more balanced system of remuneration’s for government-funded legal aid. Further, the proposals should where possible stimulate a simple implementation practice and efficient administration of justice. Above all, the commission must structure its proposals so that the alterations to the system will not result in increased expenditure.

In October 1997, the Maan Commission reported its findings. The commission has established that there are considerable differences in remuneration between the legal areas and has made a number of concrete proposals to arrive at a more simple and balanced remuneration system. For these reasons, a revised Remuneration Decree was drawn up that was offered to the Lower House in the context of the 'proposal procedure'.

The new Remuneration Decree will not only be more balanced but simpler to apply and will thus lead to less implementation burdens. In addition, in consultation between the councils and the legal aid professions, new administrative procedures have currently been introduced which will further decrease the burden for both parties. The measures of the new Remuneration Decree and the simplified procedures make participation in the system less problematic. A speedy entering into effect is also being effected.

To safeguard the legitimacy of the expenditures, control and administrative procedures will have to continue to be part of the system despite all attempts to reduce the administrative burden.

The second reason why lawyers find government-funded practice less attractive is rooted in the remuneration. Once the new Remuneration Decree has come into force, existing imbalances will be eradicated and the average remuneration in all cases will be NLG 125 per hour. This remuneration is low compared with the legal aid societies (where the cost price is currently NLG 180 per direct legal hour).

In the spring of 1998, the Lower House accepted a motion which established that this remuneration is too low and the government is invited to make proposals for placing the remuneration on a more realistic level.

Major amounts are involved in increasing the remuneration. An increase of the remuneration with NLG 25 per hour costs around NLG 75 million. The costs of the increase up to NLG 180 desired by the legal profession is around NLG 140 million. The budget of the Ministry of Justice contains no resources for placing the remuneration level at a higher level. The Netherlands Bar has started resisting the introduction of the Remuneration Decree if the average remuneration is not increased.

The introduction of the Wrb has given the legal aid councils the opportunity of only allowing lawyers who meet the registration conditions into the government-funded legal aid system. These conditions can relate to the minimum and maximum number of legal aid cases, the expertise of the legal aid professional, his office organisation and reporting. All councils have set conditions for a limited number of specific legal areas. The registration conditions offer the councils an instrument with which a foundation for the quality of legal aid professionals can be laid. This does not assure the quality of the product to be delivered in individual cases.

The professional group is very well aware of the necessity of offering a qualitatively good product and has various measures and options for stimulating this. For example, the Netherlands Bar has made important contributions to improving quality with the Verordening Permanent Opleiding (Permanent Training Regulation) and the Quality Handbook. The legal profession, however, has no integrated quality assurance system. Client satisfaction surveys have only been carried out on a very limited scale that moreover is not specifically tailored to government-funded legal aid. The client satisfaction surveys can be interpreted to show that private individuals are significantly less satisfied with the legal profession than businesses. For the time being, there is no reason to assume that this image will differ from that of government-funded legal aid. The survey also highlighted signals for concern as regards quality.

The development of quality care is not just the responsibility of the professional group. On the grounds of the statutory task and the management perspective, quality care in government-funded legal aid must be seen as the primary responsibility of the councils. The "Evaluatie besturings-model rechtsbijstand" report of Leeuw et al published in 1997 shows that the councils had to place too much emphasis on acting as system manager and with this gave too little attention to, among other things, the quality of legal aid.

That the councils must play a role as regards quality does nothing to diminish that a quality assurance system that works well can only be substantiated and carried out by the professional group itself (legal profession and legal aid societies). Joint initiatives seem to have the most chance of success for these reasons. In September 1998, a conference was held of representatives of the Ministry of Justice, the legal aid councils, the legal aid societies, the legal profession and others to discuss whether, and if so, how such a joint initiative could be developed. This led to the setting up of a joint working group under the management of an independent chairman that, within six months, will reach a national agreements context within which regional and local initiatives will be able to be taken. This requires tools to improve quality and the investments involved for this.

In line with the recommendations of the Maan Commission, the new Remuneration Decree will open the opportunity that the councils will agree on exceptional remuneration arrangements with (groups) of legal aid professionals. Such exceptional arrangements are specifically possible with specialised legal aid providers. The councils were asked to arrive at policy plans in this field.

Improving quality is a continuous process that demands the continuous effort of all involved, the legal aid councils, the legal professionals and the legal aid societies. It is a dynamic process in which it is not so important for rapid steps to be made as for everyone to give systematic attention for the demands placed by the environment and, in particular, the applicant. Structuring this process is one of the major challenges facing the participants in the system for the coming years.

Paragraph 4.2.3. indicates the elements of the budgetary control of the system: budget control (by means of a planning and control system) and assuring the legitimacy of expenditure (M&O policy). In that paragraph discussion is made of the tools that are contained in the Wrb to realise both elements. Here, we will detail the developments made from 1994 up to and including 1998.

Research has been conducted into the way in which the P&C tools functioned in practice from 1994 up to this first six months of 1996. The researchers establish that using such a range of tools does not itself necessarily lead to successful implementation.

After all, the underlying idea is that all actors must act in conformity with the established cycle

In 1994, the first year of the Wrb, all the steering levels identified were in default to a greater or lesser extent and for various reasons. The management letter of the Ministry was sent late and in phases which had direct consequences for the P&C activities on the other levels.

In 1994, the councils did not submit quarterly reports; the model prescribed for this by the department appeared to fall short. In 1995, the system of quarterly reports went into operation. The councils' annual reports exceeded the prescribed submittal date.

In 1995, considerable progress was made. The researchers thus conclude that, with regard to P&C activities at the level of the department and the councils, the prescribed planning could be improved even better in 1995 and the first half of 1996. After this point, progress continued and it can be concluded that P&C activities at all levels are running pretty much as desired at all levels.

Partly because of this, it is possible to consider whether, in consultation with the councils if, in the spirit of the management vision and distributive model, the step could be made to a multi annual system. The Ministry of Justice can then take more distance than is currently the case in contrast to which the responsibilities of the councils will increase. The 1999 management letter opens options for experiments.

Given the management ("growth") model researched contains more than planning and control in a narrow sense, paragraph 5.4.3. goes into the findings of the researchers in a broader context. As an advance to this, it is here appropriate to mention the conclusion of the researchers that, in their eyes, the legitimacy and management of expenditure have been properly organised.

The graph below shows that budget control in the field of government-funded legal aid has considerably improved in the nineties. Paragraph 4.2.3. indicates the developments prior to 1994.

Concluding legal mutation for the benefit of realisation (%)

After 1994, the budget problems (deficits or surpluses) could be completely eradicated. Partly because the measures taken in preceding years to improve the estimates (in this case the prompt anticipation of autonomous developments) have improved. Partly because of the tools the Wrb offers: firstly the budget and responsibility of the councils on the basis of the income and expenditure system (instead of the cash system), secondly the permissibility of an equalisation reserve with which budgetary setbacks resulting from, for instance, autonomous growth, can in the first instance be taken care of by the councils and, thirdly, the introduction of an improved advance regulation for registered lawyers. Mention should also be given here to a referral to the interest that the councils have in managing expenditure.

In contrast to the legal aid centres and the court registries (until 1994), the councils are directly confronted with the financial consequences for the shortcomings in estimates and of legislation and regulation with which too little account is taken in executive aspects including the management of expenditure. In the period that was researched, the involvement of the councils referred to here is expressed in the requested and unrequested signalling on their part of developments in the field of demand for government-funded legal aid through which measures can be taken on time to balance the legal aid budget.

An income-related regulation with the expenditure involved will never be entirely free of improper use. Over recent years, the M&O policy has continually been assessed for efficacy. This systematic assessment has led to measures which give a great degree of attention to the correct balance between efficacy and legitimacy. After all, measures that strongly burden the executive body without yielding substantial results are counterproductive.

In the course of 1994 it transpired that not all municipalities were able properly to implement their verification and control task. The problem was that the issuing of the VIV was not perceived as a core task while no compensation for the work involved was offered. Consultation with the VNG (Association of Netherlands Municipalities) did not lead to concrete satisfactory results. Which is why the councils intensified information to those municipalities in default.

The qualitative shortfalls identified with regard to the VIV resulted in the legitimacy of expenditure again being placed under a degree of pressure. In 1996, the Algemene Rekenkamer or Netherlands Court of Audit conducted a periodical progress survey into the measures for the prevention of improper use. The Netherlands Court of Audit concluded that, despite the required efforts, there was still uncertainty regarding expenditure but the Court still considered 75% of the expenditure as misuse-sensitive and uncertain. Based on the results of the random testing carried out in co-operation with the Tax Authorities, it can be established afterwards that 2.1% of the income-related legal aid can be considered erroneous while 3.5% must be considered uncertain.

The "VIV problem" meant that, at the end of 1996 the VIValt project group was set up, commissioned to conduct research into alternative financial capacity criteria, an alternative system of data provision and a system of checking personal data together with a system of controlling the financial data using the records of the Tax Authorities. While the VIValt project was running, prompted by the 'harmonisation income-related regulations', the Cabinet decided to start using the notion of taxable income in all income-related regulations. The advantages of such a transition are founded in better manageability of the regulations involved and better insight for citizens and government. The VIValt working group was requested to involve the Cabinet decision in the proposals it intends to make.

In May 1998 the working group published its recommendations ("In the web van de draagkracht"). This report reaches the conclusion that the transition from net to taxable income offers advantages for the system. The advantages lie specifically in the areas of:

• manageability; the income data can be integrally checked using the administration system of the Tax Authorities with which the legitimacy of expenditure is improved;
• client-orientation; the provision of data by the applicant can be organised in a much simpler and less bureaucratic fashion. In due course, it will be possible to submit applications electronically.
• Implementation costs; certainly in the case that computerised data exchange can be realised with the Tax Authorities, the implementation burden for all involved (lawyer, applicant, municipality and councils) will be reduced on balance.

If, according to the working group, the transition is made to a fiscal notion of income, there will no longer be a need for a VIV issued by the municipality. The municipality plays a role in principle relating to checking personal data and the composition of the household or composition of the family. If a direct link is made legally possible between the councils and the basic municipal administration, the councils themselves can carry out the checks required. This will lead to the municipalities no longer having to play a role within the system of subsidised legal aid in due course. Given the complexity of the problem (for other facilities like care and help with domestic tasks, negative experiences with the financial capacity problem have been experienced) the working group finds that a cautious transition process is required. The Cabinet decision on the proposals of the Derksen Commission provides scope for this: implementation is left to the sectors involved.

The VIValt report was presented to the most prepared organisations for consultation. In good consultation with the legal aid councils it was decided to set up a pilot in line with the recommendations. From the outset, the pilot will be set a time limit of one year for the time being. In correspondence with the House, referrals have been made to the recommendations of the report with relation to the complexity of the problem, the multiplicity of the policy and executive aspects to be researched and the need for a cautious transition process. In this regard, the parties consulted also underlined the importance of a phased approach.

The House will be informed separately on the feasibility of the transition to taxable income and the consideration of an implementation process

The legitimate implementation of the primary processes demands that the quality of the internal decision-making process is safeguarded by a sound administrative organisation. In the course of 1994, an inter-collegial testing was introduced on the initiative of the councils. Here the primary process of decisions of a council using a panel comprising personnel from other councils, is periodically assessed using file research. This inter-collegial testing also contributes to the uniform national implementation of the legislation and regulation.

An external audit office has developed a control plan by order of the councils where it also gave attention to the efficacy aspects and aspects involved in controlling the regulations. The implementation of this plan took place in phases and has been fully operational since 1996.

To stimulate the ability of policy management and the department auditing service to depend on the auditor's statement concerning compliance with the subsidy-linked prescriptions given by the public accountants, a control protocol is set up annually. Following the control protocol set down for the councils in 1996 relating to the legitimacy of granting legal aid cases and the establishment of expense statements, limits have been set for erroneous (1%) and uncertain (6%). The latter percentage was set at 5% for 1997 and at 3% for 1998. In 1996, a number of councils exceeded the then valid tolerance limit. On the basis of a considered average it was calculated jointly for the five councils that the total scale of errors and uncertainties amounted to 1.2% and 3.9% of the programme costs respectively.

Shortly after the control results became known, measures were taken that led to the goals being reached with 0.9% and 1.8% respectively in 1997. In the period described here, the annual accounts of all councils are provided with a statement of approval concerning their fidelity. In addition to this, reviews are similarly carried out each year by the departmental accounts service. Based on the control file, the check is tested to assess whether it was carried out in such a way that the accountant's statement offers sufficient basis for establishing the budget. With a view to the latter, no complications have arisen.

Since 1996, the councils have been conducting random tests in collaboration with the Tax Authorities whereby the financial capacity data of a representative number of income-related legal aid files was tested against the data of the Tax Authorities. An information protocol was drawn up for this research together with the Tax Authorities, whereby applicants can be further questioned to gain a more in-depth analysis of income-deviations. The goal of these random tests is primarily to quantify the M&O sensitivity of the regulation and to trace developments. It is noted that these results relate to that element of the legal aid applications that is income-related and whereby the applicant is not in receipt of any social benefits within the context of the Abw (National Social Security Assistance Act) or as asylum seeker.

Based on the findings of the random tests the way in which sanctions could be imposed was investigated. There are plans to intensify information (aimed at both applicants and legal aid professionals) on possible sanctions that can be imposed in the context of preventing the submission of incomplete income statements by applicants.

On the basis of the current legislation it is not sufficiently possible to reclaim any undue payments by the councils or to instigate settlements or redress. The new Remuneration Decree already contains the first measures. Additional legislation should result in a conclusive system of reclamation options. Such regulations will, wherever possible, be in line with the provisions of Chapter 4, Awb or General Administrative Law Act.

The VIValt project is important for the long term, which was already outlined above. In the transition to taxable income to be controlled by the Tax Authorities, there will of course no longer be any deviation regarding the data in the hands of the Inland Revenue.

The control burden the councils place on the legal profession makes it essential to improve communication between both parties so that the demands placed by legislation and regulation can be better highlighted and both the legal profession and the councils can respond more effectively to these requirements. The councils have taken various initiatives to this end. Various councils organise information meetings with law firms. In addition, Internet applications are put to use. The efforts of the councils generally receive a positive response from users.

Complex legislation and regulation makes insight into improper use less clear than is desirable. Partly with this in mind in 1994 it was already decided that this aspect should be involved in the planned re-evaluation of the Remuneration Decree. In so far as the setting of the data decisive for the remuneration cannot be fixed objectively, improper use is a risk. Aspects such as simplicity, transparency and manageability of the system are then of crucial importance.

As stated in 5.2.2., in October 1997, the Maan Commission reported its findings and made proposals for revising the remuneration system. The decision surrounding the progress of the associated activities are dealt with there. With regard to the further reduction of improper use it is relevant that the proposed system contains considerably less specific grounds and open norms than the current one. With this, the declaration and treatment of this by the legal aid council will become less laborious, which benefits both the council and lawyer. With this, the sensitivity of the regulation for improper use diminishes because the number of decisive factors for the remuneration that cannot be objectively established is reduced.

Apart from the above, the so-called signature requirement (co-signing of legal aid applications by the applicant) has been nullified in the Act. This requirement was generally experienced as a bureaucratic hindrance in the adviser-client relation and created practical problems for certain categories of applicants such as detainees and asylum seekers.

The lack of the co-signature requirement presented the councils with problems in the context of the legitimacy control conducted by the accountant. Other avenues have been sought and found to meet both aspects.

The applicant can be informed on and be given insight into the activities of the legal aid profession by being forwarded a copy of evidence of the legal aid application. The annual random test at the Tax Authorities provides the information necessary for carrying out the M&O (improper use) sanction policy.

In the light of the above it can be concluded that the measures on the basis of the Wrb can largely be considered effective in terms of legitimacy and managing the system but that improvements are certainly possible. The efforts related to this will require permanent attention.

The Wrb has radically renewed the administrative organisation of the system. The administrative approach puts forward that the intervention of central government should decrease once it determines the content of the way in which individual cases are treated after which the underlying points and mutual responsibilities are dealt with. This particularly concerns:

1. the grounds on which effective and efficient policy implementation can be organised;
1. how the quality of services can be guarded;
2. how the expenditure for legal aid can be made more manageable without impinging on constitutional rights, and
3. the way in which improper use can be prevented.

To establish the steering of the processes within the system, a tool of planning and control is then structured as described in para. 4.2.3.

The core function of councils, the organisation and regulation of access to legal aid must be formed with sufficient attention for equality before the law and legal certainty. The Wrb and the implementation regulations thus contain elaborated criteria for determining who and for which problems legal aid can be offered. The policy freedom of the councils is necessarily limited in these areas to the detailing of stipulations with an open norm. However, unity of policy is also important in these cases. The Legal Aid Case Handbook composed by the councils, the joint co-ordination and inter-collegial testing of legislative applications safeguard this in practice.

The policy scope of the councils is further co-determined because, as established in articles 45 and 46 of the Wrb, objections and appeals are provided for. The administrative objection and appeal procedure laid down in the act gives rise to a considerable executive burden for the councils in practice given the large number of objections and appeals. After all, the Act obliges the councils to decide on administrative appeals and does not permit the legal aid centre to take this decision.

A proposal will be made to the effect that the executive burden for councils will be reduced by amending the Act (see appendix 4). Legal protection will not materially alter because of this.

The pronouncements of the Council of State contribute to reinforcing policy unity. In so far as these reach different judgements per area of jurisdiction, pronouncements of law courts can, however, give rise to divergence of policy application among councils. At the moment, jurisprudence research is being conducted to establish whether there are divergences necessitating amending legislation and regulations. If necessary, these amendments will be involved in the amendments to which this evaluation will give rise. In general, application of the law does not result in major problems. Only conditional legal aid in divorce cases could give rise, to date, to lack of uniformity and enable substantial differences of interpretation. What is particularly at issue is the question of at which moment the amended financial capacity should be tested and the items of income to be considered with this. Jurisprudence offers no solution to this problem either. The legislator will have to take responsibility for this. Further legislation is under preparation to this end.

The freedom of the councils is relatively large when it comes to designing the organisation of legal aid including the structure of their own organisation, the registration of lawyers and the funding of the associations. As regards these topics, the legislation sets frameworks and the councils take the lead. They draw up the plans that they present to the minister for approval. The minister can approve or withhold approval of the annual plans - both as regards elements of them or in their entirety. In that case, the minister will have to take interim measures to assure the continuity of the activities pending consultation with the council concerned. In a number of areas there may be a combination of regulation-steered and annual plan-steered processes. In the field of remuneration’s application of the law is still fully regulation-steered but in the new Remuneration Decree scope will also be created for different arrangements if these can be used to achieve qualitative advantages. In this regard, ministerial responsibility shifts to approving the annual plan.

In practice the councils seems to form the policy scope they have been allowed to varying degrees. Initiatives often take shape hesitantly which largely seems due to slow mutual co-ordination. In addition, particularly in the first few years after the Wrb entered into force, the personnel capacity of the councils was almost entirely absorbed by problems related to introducing the act and to structuring its implementation. Because of this, the councils' orientation still lies on management issues for the time being. For the further development of the system, the councils should currently give more attention to developing policy contexts, particularly with regard to the quality of legal aid provision, and the accessibility and organisation of the legal aid provision. The councils have been advised to become better equipped to deal with policy development and are now expected to provide proposals in this regard.

It took some time before the new formal relations between the actors gained shape in practice after the Wrb was passed. Originally, partly due to introduction-related problems, the Ministry of Justice was involved in implementing the Act. The steering relation ministry-councils was then typified by improving management. The councils were also faced with teething problems. The issuing of legal aid decisions and the confirmation of expenses statements were difficulties which were encountered. The root of these problems was ascribed, in particular, to the poor functioning of the computer system and the varied origin of the personnel at legal aid centres. These problems were most visible at the major jurisdictions of Amsterdam and The Hague.

However, during recent years, all the councils have succeeded in structuring the primary process. Where major problems occurred between the councils and the legal aid professionals (who had little appreciation for the councils' way of working), mutual affairs have now been normalised. Client satisfaction surveys confirm that picture. Despite this, legal aid professionals still complain, often with good reason, about the length of time it takes to process a case and other organisational shortfalls at one or two councils. Work must be done on further improvements.

The functioning of management vision in practice is, as stated earlier, researched by Leeuw et al. They base their conclusions on research data for the period 1994 - mid 1996. In a comparison with the experiences gained with a number of other independent management and executive bodies, they state that government-funded legal aid does not emerge in a poor light if attention is given to the results of the according modernisation operations. A number of years were often needed elsewhere to put affairs in order. In the legal aid sector, great energy went into drawing up and implementing a P&C cycle that materialised within relatively few years. According to the researchers, this system is laid down in an accessible, reasoned document and the system does not only pay attention to bureaucratic variables.

Leeuw et al find that the management model functions reasonably as desired. However, an over-emphasis on the management aspects of the act does rear its head. Now that the management side has been structured, more attention will have to be generated for the quality and accessibility of the system. In the report, the researchers typify the state of affairs as follows: "The modernisation of the legal aid provision has succeeded in many important areas: there is better control, the legitimacy of expenditure is more demonstrable and expenditure is better managed. With which the legitimacy of the provision has significantly increased. The Act's more distant goals - improving accessibility and qualitatively good legal aid are on the agenda - but we feel that policy needs further structuring".

Further, Leeuw et al established that the councils feel that they lack policy freedom while the Ministry experiences reticence on the part of the councils in using this freedom.

The developments in the years following the period that was researched show that the actors in the system are aware of the shortfalls identified. The initiatives underway in the field of access to and quality of the provision testify to a certain dynamism. The most successful example is the reorganisation being carried out with regard to legal aid for asylum seekers by setting up three legal aid societies for asylum seekers which were and are not provided for in the Wrb (see para. 5.2.). For other areas of attention that are equally not provided for in the Wrb such as developments regarding alternative forms of settling disputes, the system will have to be further developed in future. The idea that the Wrb is a growth model has thus also been confirmed. With this marginal remark, the working of the management model as part of the modernisation of the organisation can be considered a success.

The chosen scale of the councils (five councils at court jurisdiction area level) is partly based on the fact that this can contribute to the organisation delivering tailor-made work in the legal aid provision at regional level. For the regulation-steered facets of council work (the assessment and issuing of legal aid cases as well as assessment of the expenses statements), regional distribution is not important. For those tasks, the desired scale can be the underlying principle and centralisation is indicated because it stimulates legal unity and offers better possibilities for specialisation. These regulation-steered tasks are also expected to be less work-intensive in the future. In the above, examples of developments have already been mentioned regarding the possible transition to taxable income and the control of this by the Tax Authorities, the application of remuneration arrangements on the basis of the new Remuneration Decree and the digitalisation of the legal aid applications and expenses statements. Such developments should make centralisation less problematic and more efficient. The councils are attempting to eradicate the disadvantages of decentralised implementation with forms of harmonisation and co-ordination.

Where the regional embedding of the provision is relevant (the organisation of the provision of legal aid) the councils, as said, have relatively great freedom. In these fields, the councils within the area of jurisdiction consult with the relevant actors (legal profession, legal aid societies) and establish contexts as regards content and finance. Good co-ordination is essential here primarily because there must be co-ordination with the political management process in The Hague and secondarily because agreements for one area of jurisdiction unavoidably have a knock-on effect beyond the bounds of that area of jurisdiction.

Stakeholders will after all call upon the arrangements in the area jurisdiction as opposed to their "own" council where these compare favourably to the regulations in this field in their own area of jurisdiction. Such differences will only be justified by the council if they can be explained regionally - or on the ground of other objective arguments.

Co-ordination assumes that the councils set joint frameworks and, in so far as these touch on ministerial accountability, harmonise these with the Ministry. This process currently takes place at management level. The directors of the councils meet together every two months and every two months with the department at executive level. The consultation not only aims at harmonisation but at exchanging information, too. The councils themselves are indirectly involved with the consultation because the directors feed back the results and present important topics to them first for discussion. In their turn, the chairmen consult twice a year directly with the Ministry, once with the political management and once with the administrative top executives. The formal decision making, in so far as this touches on national frameworks, takes place per area of jurisdiction based on the annual plan, as does co-ordination with the Ministry. Each council has integral responsibility for the policy in the region. In addition, they are also accountable for the national frameworks in so far as these relate to implementation in that area of jurisdiction.

The current co-ordination and harmonisation process has pros and cons. The lines in the region are short and make decisive action there possible. The council plays an active role in the organisation of legal aid within the area of jurisdiction. The local consultative partners experience this to be the case and appreciate the accountability of the councils. The legal aid societies also align their infrastructure with that of the regional structure.

However, national lines of co-ordination are long and lack of distribution of duties among the councils makes addressing the councils on national priorities quite laborious. Not only the ministry but also the national organisations of legal aid professionals lack a clear contact point. On the other hand, the national organisations, including the Ministry, still have insufficient perspective on the executive aspects of new policy for the councils because of this.

Although in recent years agreements have been made more often between the directors of the councils - although randomly - these offer insufficient consolation because of the lack of commitment of the individual councils.

However, the national consultative partners have great need of such a portfolio distribution.

It can be concluded that the advantages of the current decentralised structure can, for the time being, outweigh any disadvantages signalled. The combination of the councils to form a single legal aid council could benefit decisiveness at national level and uniform management but impinge on the advantages achieved by co-ordination and decisiveness at regional level. This means that the objections against the current structure will have to be eradicated over the coming time by different means.

The councils have been offered a better equipped legal aid centre and more tools for the councils themselves for the benefit of policy development. The councils are currently expected to present proposals in this regard. The councils will also have to consider whether a clear distribution of the most relevant portfolios for the national co-ordination, both at council and management level, with establishment of the individuals to contact, can be realised. Finally, the councils will have to examine the options of concentrating certain specialised activities at one council. The councils will be addressed regarding improvements in this context. Over the coming period, it will be clear whether such measures can safeguard sufficient decisiveness.

The legal aid councils have a relatively large management board in terms of size and composition. Given the tasks the councils have been ascribed by the Wrb, this seemed essential in the start-up phase. In practice, the prescribed scale does not always meet the needs. The councils do not all have to be equally large. The number of council members must be able to vary in accordance with the scale and gravity of activities. A degree of flexibility in the scale of the councils is thus desired.

It is desirable to include a specification in the Wrb that the councils should comprise a minimum of 5 and a maximum of 9 members. In appendix 4, this amendment is included in the list of desired modifications of legislation and regulations.

Part of the modernisation of the system was the positioning of the legal aid societies. In contrast to the legal aid centres under the WROM, these were given a legal status. The Act regulates the tasks of the legal aid societies and also stipulates that these should be organised in districts. The authorities of the councils as regards the legal aid societies are also described.

The statutory regulation guarantees the existence of the legal aid societies and gives the legal aid societies and the councils a context for joint responsibilities. This detailed legislation and regulations limit the practical options for a flexible structure of the consultation hour and public service provision. In the current system, the council has few opportunities, should the legal aid association unexpectedly ascribe too little priority to the consultation hour provision, to structure the consultation differently, possibly even independently of the legal aid association. The legal positioning of the legal aid societies in the districts seems to hinder this which argues for amending the legislation so that more flexibility can be achieved.

In practice, the district structure of the legal aid societies seems to have become outmoded. Because of efficiency and quality considerations, an increasing number of legal aid societies are entering into more intensive co-operation at the level of court area of jurisdiction. In the jurisdiction of Den Bosch, this co-operation has resulted in three legal aid societies merging (Eindhoven, Maastricht, Roermond) while merger plans are being developed in other areas of jurisdiction. The availability and provision at district level here remains guaranteed. Modifying the Wrb is recommended, for which proposals are being drawn up. These proposals are also intended to provide a legal basis for the legal aid societies for asylum seekers.

If the councils want to continue to improve the primary process, including the administrative treatment of the applicant, the legal aid professional and themselves, new information and communications technology will have to be deployed. At present, the ICT level of the councils is reasonable but developments mean that the systems rapidly become outdated.

The legal aid societies and relevant sections of the legal profession generally have quite a disadvantage when it comes to computerisation. Significant investments will be essential in the near future to keep ICT within the system up to date.

The research into the way in which the replacement and innovation of the systems can be efficiently and effectively undertaken, based on a blueprint for the future undertaken by the councils, will be rounded off this year.

This evaluation of the Wrb is a picture of current status after almost 5 years experience with the Act. In those years, various amendments to the system have been realised, particularly in the field of accessibility. In addition, the need for further modification of legislation and regulation has been identified with regard to various topics such as the limitation of the regulations with regard to the legal aid societies, clarification regarding provisional legal aid, a provision for claiming advantages wrongfully enjoyed, the amendment of the number of members of the legal aid councils and the amendment of the administrative appeal. All these points will be included in a bill to be sent at the start of 1999 to the Council of State for advice.

With this, the development of the system for government-funded legal aid will not have been completed. Many topics are in a state of flux and shall - in the near or distant future - require further modification. This report states the following topics in this context:

1. research

• further research into the discount of applicants' tariffs for lawyers if jurists working for the legal aid societies consider the case serious and refer it further;
• current national research into the offer provided by subsidised legal aid, both quantitatively and qualitatively.
• the pilot will kick off in which the transition to taxable income will be investigated and prepared (VIValt);
• the current case law survey into difference in the practice of assignments and determination of legal aid entitlement
• a survey into the way in which automated systems can be replaced and renewed;
• continuous monitoring and, where necessary, further research regarding access to the system;

• rounding off the discussions conducted regionally on renewing the consultation hour provision;
• further investigation of the desirability of expanding the public access function to those not eligible for Wrb and of the positioning of the public access function;

3. regulations

• further proposals relating to the accumulation of applicants' tariffs;
• proposals for amending regulations as contained in Appendix 4;

• the development and institutional anchoring of a range of tools for the continuous monitoring of the accessibility of the system;
• making objective referral agreements and co-operation agreements for clients who make use of the public access function (see Consultation, point 2 above)
• the setting up of a working group responsible for tools for quality care and the required investments.
• policy plans asked of the councils relating to the remuneration arrangements to stimulate quality; the responsibility of the councils to provide better harmonisation and co-ordination and to distribute portfolios;

5. other

• attention for cases that the legal aid societies exclude from the consultation hour provision, particularly those cases for which legal aid cannot be acquired;
• the desirability of reducing the administrative burden in applying for and determining legal aid and in reducing the control burden.

The general conclusion is that the Wrb meets the targets determined at the time, that existing problems can be eradicated in practice and by adapting regulations but that, at the same time, amendments are desirable and in the future are possible with which the system retains the required dynamism to continue to meet its goals in the future.

• Met Recht Bijstan Legal Aid Boards, Febr. 1995

Eerste verkenningen van de gevolgen van Use of Financed Legal Aid working party

• Rechtsbijstand: krimpende materies WODC, Sept. 96, Ministerie van Justitie

Een tussenbalans inzake de gevolgen van de Albert Klijn, Jacqueline van der Schaaf,

Wet op de rechtsbijstand voor de toegankelijk- Gerard Paulides

• De toegevoegde kwaliteit WODC, March. 96, Ministerie van Justitie

Een ex ante evaluatie van de werking van Albert Klijn, S. van Leeuwen, Gerard Paulides

inschrijfvoorwaarden in de Wet op de rechtsbijstand

• De rechtsbijstand afgeprijsd WODC, Febr. 96, Ministerie van Justitie

De effecten van de verlaging van de eigen Albert Klijn, Jacqueline van der Schaaf,

bijdrage onder de Wrb Gerard Paulides

• Rechtsbijstand: kiezen of moeten WODC, May 96, Ministerie van Justitie

Gevolgen van de Wet op de rechtsbijstand Albert Klijn, Jacqueline van der Schaaf,

voor het oplossen van problemen Gerard Paulides

• Evaluatie Besturingsmodel Rechtsbijstand Universiteit van Utrecht, 1997

A. Bulder, A, van der Wal, F.L. Leeuw, H.D. Flap

• De rechtsbijstandsubsidie herzien WODC, (expected in Febr. ‘99),

Een evaluatie van de toegangsregulering Ministerie van Justitie, Albert Klijn,

in de Wet op de rechtsbijstand Jacqueline van der Schaaf, Gerard Paulides