5 Observations about the future of legal aid
in the Netherlands and elsewhere
Prof. Maurits Barendrecht
HiiL/Tilburg University
Observation 1: Right now, traditional services
eat up most of the budgets:
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Lower courts with sometimes inefficient procedures
Legal aid by lawyers
Supreme courts and appellate courts
Agencies and committees
Observation 2: Is this maximizing effectiveness?
• These services provide good jobs, have a magnificent past and
thus form a powerful constituency that has little interest in
real change
• At the same time, these services are challenged, because they
are not as effective for access to justice anymore
• So budget cut after budget cut takes place
• Present positions are defended, presenting research that
shows how indispensable these services are and by mobilizing
the professions
Observation 3: A rapidly expanding variety of
newly developed services
• Legal information websites, platforms for dialogue and
dispute resolution on line, rules in the form of guidelines for
fair solutions; protocols and standards for solving recurring
problems; with helpdesk type of services as back up.
• Assistance by fixed fee paralegal and lawyer/mediator hybrids
with a problem solving approach. This is offered through
many different models (insurance, fixed fee lawyers,
government subsidies)
• Third party dispute resolution mechanisms and courts that
are specialized for specific justiciable problems (employment,
consumer, disability, social security etc.)
Observation 4: New opportunities require
different strategies
• Information and websites are public goods (private providers
can hardly make money from them) but there is very little
investment by governments yet. Quality is still an issue.
• Personalized assistance is mostly a private good. Most people
can pay themselves or fund these services through insurance
mechanisms; subsidies can be focused on specific
disadvantaged groups.
• Third party adjudication is mostly a private good. Many
plaintiffs and/or defendants can pay for the resolution if
procedures are simple. Subsidies can be focused on specific
disadvantaged groups and cases with important external
effects.
Observation 5: Becoming part of the future is
difficult for strategic decision makers
Some reasons:
• This requires a shifting of resources
• There is a danger of alienating the coalition of lawyers, judges
and politicians that guaranteed jobs, budgets and power until
now.
• Many of the new developments take place in the private
sector or deep in the court organisations. The role of
government is much less clear.
Possible ways out of this dilemma to explore
may include:
• Radically reshuffling of subsidies to more promising
innovative services
• Defending the present services much more rigorously with
research and lobbying
• Becoming more like a market supervisor: leveling the playing
field for new and old approaches, providing research about
interventions that work, helping to certify services so as to the
increase transparency and to guarantee minimum of quality
• Building platforms that connect new and old services