The Swedish Legal Services Policy Remix: The Shift from Public Legal Aid to Private Legal Expense Insurance

AuthorFrancis Regan
Publication Date01 Mar 2003
DOIhttp://doi.org/10.1111/1467-6478.00245
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 1, MARCH 2003
ISSN: 0263-323X, pp. 49–65
The Swedish Legal Services Policy Remix: The Shift from
Public Legal Aid to Private Legal Expense Insurance
Francis Regan*
A number of governments in the 1960s and 1970s pursued the goal of
equal access to legal services by establishing publicly funded legal aid
schemes. Some societies also promoted Legal Expense Insurance (LEI)
to fill some of the gaps in legal aid. The recent trend to small
government means many societies are keen to experiment further with
legal services policy. This article examines one such experiment in
Sweden where reforms included major cuts to public legal aid and
requiring most people to rely on private LEI. But how well does this
policy mix promote equal access to legal services? And are there
lessons for other societies? In this article I describe and assess the
policy remix. I argue that the reforms are a bold policy experiment but
that they had mixed and some undesirable consequences, and that
there are few lessons for other societies.
INTRODUCTION
In 1997 the Swedish government introduced sweeping reforms to its legal
services policy. The reforms were designed to cut public expenditure on legal
aid and change the way Swedes responded to common legal problems. The
changes included cuts to legal aid and a new procedure to deal with many
family law disputes.
1
Perhaps the most important legal services policy reform,
49
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350 Main Street, Malden, MA 02148, USA
*Legal Studies, Flinders University, Adelaide 5001, Australia
This paper is in part based on interviews conducted with a number of Swedish colleagues
in justice and legal aid administration, the Swedish Bar Association, the private insurance
industry, and academics in November/December 2001. The research was made possible
due to a Visiting Fellowship awarded under the Exchange Agreement between the
Australian Academy of the Humanities and the Royal Swedish Academy of Letters,
Antiquities and History, and by a grant from the Flinders University Research Budget.
While I am grateful for the assistance to conduct the research the responsibility for the
content of the paper, however, remains mine alone.
1 It is important to note that the reforms did not involve all forms of Swedish legal aid.
For example, Sweden did not alter the Public Defence Counsel scheme (legal aid in
however, involved reversing the relationship between publicly funded legal
aid and private forms of assistance for legal problems. Previously most
Swedes could rely, at least to some extent, on publicly funded legal aid if they
experienced a legal problem and either needed legal advice or a lawyer to go
to court. From 1 December 1997, however, most Swedes have had to rely on
their Legal Expense Insurance (LEI) policy
2
which restricts assistance to a
relatively narrow range of court cases.
3
As I explain, while the government
achieved its aim of cutting public expenditure on legal aid, the consequences
for citizens’ access to legal services are far less satisfactory.
The Swedish reforms are significant, however, because they represent a
major new direction in legal services policy in that society and have potential
to be adopted or adapted elsewhere. That is to say, the reforms are a
substantial remix of the blend of public and private assistance that is offered
to citizens when they experience legal problems. The novelty of this change
means that it is important to understand the details and assess the
effectiveness of the Swedish reforms. It is also important to understand
the reforms from a comparative perspective, however, because while many
western governments are keen to reduce reliance upon publicly funded legal
aid, the development of LEI has been patchy at best. LEI is, for example,
widespread and institutionalized in Scandinavia and there has been steady
growth in the proportion of the population covered in the Netherlands and
Germany over the last two or three decades.
4
LEI has not flourished,
50
criminal cases), or the Victims of Crime legal aid scheme. See P.H. Lindblom, ‘Civil
and Criminal Procedure’ in Swedish Law in the New Millenium, ed. M. Bogdan
(2000) 232–3.
2 Strictly speaking, Swedes do not have ‘LEI policies’. Instead, they have insurance
cover for possible future legal expenses which is automatically included in their
household insurance policies. For the sake of convenience, I use the widely
recognized term ‘LEI’ to refer to the Swedish insurance. For a recent description of
Sweden’s approach see F. Regan, ‘Retreat from equal justice? Assessing Sweden’s
recent legal aid and family law reforms’ (2000) 19 Civil Justice Q. 168. For a
discussions of such insurance in European and American societies see T. Goriely,
Access to Legal Services: A European Comparison (2000); and W. Pfennigstorf and
A.M. Schwartz (eds.), Legal Protection Insurance: American and European
Approaches (1986).
3 The reforms did not, however, include pressure on the insurance industry to expand or
revise the insurance cover offered under the LEI policies but expected the industry to
continue to offer the existing policies to customers.
4
There are two basic form of LEI: ‘After-the-event’ where the insurance covers the
policy holder for legal expenses in relation to certain specified events after they have
occurred. ‘Before-the-event’ insurance includes cover for legal expense prior to certain
specified, usually serious events. This means, for example, that legal advice is rarely
included in ‘after-the-event’ policies but usually is included in ‘before-the-event’
policies. LEI in Sweden and many other European societies, including Germany, is
after the event while in the English speaking common law societies it is often before the
event. The differences between the two approaches are considered in M. Kilian, ‘Legal
aid and access to justice in Germany’ in ILAG Conference Papers, comp. D. Fleming
and A. Paterson (2002). See, also, Kilian’s article in this volume, p. 31.
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