Legal Aid in the Netherlands: A View from England

AuthorTamara Goriely
Publication Date01 Nov 1992
DOIhttp://doi.org/10.1111/j.1468-2230.1992.tb00942.x
Legal Aid in the Netherlands: A View
from
England
Tamara
Goriely
*
England has a long established legal aid scheme and spends more money on it than
any other European country. Yet it is widely seen as failing, by government, lawyers
and clients. The government complains of a rising budget and appears to have lost
control of expenditure. The profession complains of falling remuneration and
threatens to withdraw from the scheme. Meanwhile, the consumer lobby complains
that the number of people eligible for help has fallen.
How far are these problems unique to Britain? The Netherlands has the second
most developed legal aid scheme in Europe in terms of money spent per head
of
population. Like Britain, it relies on private practitioners to provide the majority
of the service. Unlike Britain, however, the Dutch scheme is not purely ‘judicare,”
but has a well-established and securely funded salaried sector. The Ministry of Justice
spends some 15 per cent of its legal aid budget on twenty
‘buros
voor
rechtshulp,’
which in English
terms
combine the hnctions of law centres and legal aid
area
offices.
The Legal Action Group (LAG) decided to find out more about how the Dutch
scheme works in practice, to see if it holds any lessons for England and Wales.
In March 1991, Roger Smith and I visited Amsterdam and The Hague as part of
LAG’S Legal Services Project, funded by the Nuffield Foundation. We visited two
buros and interviewed representatives from the Ministry of Justice, the Bar and
the bur0 movement. In order to make direct comparisons between buros and English
law centres, I also visited three London and three provincial law centres, and spoke
to 14 staff.*
We found that the English and Dutch schemes share similar problems. Both face
an escalating legal aid budget, a fierce pay dispute between the government and
legal profession and the threat that consumers may have to meet a greater share
of the costs. In both jurisdictions, rights of audience, specialisation, quality control
and legal aid ‘contracts’ are under discussion. On the other hand, the Dutch scheme
is less dominated by crime work.
A
greater proportion of the budget is spent on
social welfare issues such as employment, housing, immigration and social security.
The Dutch government also appears to have been more successful in its negotiations
with the private profession. Although the number of cases has increased, it has kept
a firm hold on the amount it pays per case. It seems that salaried services alter the
political landscape. A strong salaried sector offers a counterweight to the power
*Senior Lecturer in Law, University of East London.
1
Cappelletti and Garth define judicare as ‘a system whereby legal aid is established
as a matter
of
right
for all persons eligible for legal aid, with
the
state paying
the
private lawyer
who provides the
service:
Access to Justice,
vol
1
(Milan: Sitjthoff Giuffre, 1978). For a summary of academic opinion
in favour of mixed delivery systems using both judicare and salaried services, see Paterson, ‘Legal
Aid at the Crossroads’ (1991)
10
Civil Justice Quarterly
124.
I
would like
to
thank the Nuffeld Foundation, the
Legal
Action Group, the law centres involved and
the following people for the help and information they provided: Mrs Lineke Minkjan, Netherlands
Order of Advocates; Wouter Meurs, Peter Levenkamp and Albert Klijn, Ministry of Justice; Frits
Huls,
Centraal Bureau voor de Statistiek; Mrs Berthe de Boeurs, advocate; Bernard de kst,
Buro
voor Rechtshulp, Amsterdam; Mrs Ella Boere-Bossinga, FIRA; Mrs Rita Braspenning, LOB; and
Nik
Huls,
University of Leiden who arranged many of the contacts. The views expressed are entirely
my own.
2
77te
Modern Law Review
55:6 November 1992 0026-7961
803
The Modern Law Review
[Vol.
55
of the bar and significantly strengthens the government’s hand
in
negotiations with
the private profession over remuneration.
Dutch buros offer a possible model of what British law centres could become
if
government were ever to take them seriously as an established, securely funded
part of the legal aid scheme. Buros appear to offer an efficient and pleasant service
to their customers and have done much to make the law accessible to employees,
refugees and recipients of welfare services. As they have become more established,
they have abandoned their former radical rhetoric. For many buros, the notion of
social change through ‘structural’ or ‘strategic’ legal aid has a quaint
1970s
ring.
The emphasis is now on a well-managed, consumer-oriented service.
This article begins with an overview of Dutch legal aid, describing the legal
profession, the history of the scheme, the main salaried providers and the areas
of work covered. Section I1 compares the political debates surrounding legal aid
in Britain and the Netherlands, while section I11 considers the bur0 movement in
more detail.
I
Dutch
Legal Aid: An Overview
The
Legal
Profession
Most consumers define legal services in terms
of
what lawyers do. Thus,
in
order
to discuss legal services, it is necessary to begin by discussing lawyers. In the
Netherlands, the profession is divided between notaries, who handle wills, convey-
ancing and other paper transactions, and advocates who have exclusive rights of
audience
in
district and higher courts.3 For the purposes of legal aid, notaries are
not considered to
be
‘real’ lawyers, and no state funding is available for their services.
All
advocates must be members of the Order of Advocates (Nederlandse Orde
van Advocaten), which sets their professional rules. The Order sets tight controls
on those entitled to advocate status, requiring all advocates to be self-employed or
to work for other advocates. It considers that the independence of the profession
would be jeopardised if law graduates working for business or the government were
to be given advocate status. Thus, law graduates working in buros are not allowed
to be advocates. One of the results of this policy is that the ratio of qualified lawyers
to population in the Netherlands is exceptionally low (only
37
advocates per
100,000
population, compared with
150
lawyers
in
England and
wale^).^
The profession
is thus small, closed and dominated by small businesses.
In
1990,
there were
6,381
advocates organised
in
2,028
firms, of which only five firms employed more
than
60
advocate^.^
This compares with over
30,000
law graduates working
in
government and business.6
In
order to qualify as advocates, law graduates spend three years as an apprentice
with
an advocates’ firm. Traditionally, post-university professional education was
minimal, but the Order has recently introduced
90
days’ compulsory courses and
examinations. Discipline is enforced by
19
regional Courts of Discipline, one for
3
In
the lower district courts, bailiffs and unqualified advisers are allowed
to
represent clients: Schuyt,
‘The Rise of Lawyers in the Dutch Welfare State’ in Abel and Lewis
(eds),
Lawyers
in
Society:
fie
Civil
World
(Berkeley: University of California Press,
1988).
Blankenburg, ‘Comparing Legal Aid Schemes in Europe’
(1992)
Civil Justice Quarterly
106.
See
also Schuyt,
op
cir
n
3.
table
5.5,
p
216.
Netherlands Order
of
Advocates,
Identity and Continuity: Annual Report
1990
(The Hague,
1991).
Schuyt.
op
cir
n
3.
4
5
6
804

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