Rethinking the Welfare State: The prospects for ... - e-Library

Rethinking the selfare state 92
offence. Those who exercise the greatest political voice are likely to have a far lower
stake in the level of benefits provided to accused individuals because they will rarely, if
ever, be unable through their own “wit or wealth” to learn and know the law themselves
or acquire advice from someone who understands the relevant law. Moreover, most
politically influential individuals will rarely if ever confront directly the coercive power
of the state. Besides criminal law, other contexts in which legal aid benefits are important
include child custody disputes, refugee determinations, and the maintenance of social
assistance benefits. The limited import of these concerns to the politically influential also
mean that the case for extending benefits universally to co-opt the voices of the
politically influential is weaker here than it is in many other contexts.
It is necessary to consider, however, how stringent a means-test should be applied.
Some systems employ a very generous means-test, with the aim of ensuring that both the
poor and the middle-class can receive legal assistance. In other jurisdictions, legal aid is
limited to the extremely economically disadvantaged population. For example, the Dutch
system of legal aid is available to almost 45 percent of the population, whereas in
Germany, legal aid is available to only about 15 percent of people. 81 Similarly, income
limits in Canadian legal aid systems range from a low of $8,865 in Quebec, to a high of
$15,800 in Ontario. 82 The decision of whether to employ a stringent or generous meanstest
is often the result of a particular jurisdiction’s ideology regarding social welfare. As
well, this decision will be influenced by the budget constraints on the legal aid system.
For example, the per capita costs of legal aid in the Netherlands are more than three times
as high as those in Germany. 83
Qualified suppliers
No one arrangement of providing legal aid services, be it judicare, a community clinic, a
staff office or duty counsel system, is best at providing all forms of legal aid services. In
order to take advantage of the benefits of each type of system, we should encourage
mixed modes of service delivery to be made available in the system and allow consumers
to choose between them. This would allow individuals to choose individual lawyers by
voucher when this is appropriate and the services of legal clinics or staff offices that
would be funded to a large extent through capitated supply-side grants or contracts (de
facto vouchers) when that alternative is suitable (e.g. when it addresses the special needs
of a community). Entitling all those who qualify to choose from among those members of
the bar participating under different organizational structures provides the benefits of
competition and diversity while preserving access to justice. 84 It also allows
organizational experimentation, innovation and competition with respect to delivery
models. These freedoms are especially valuable because no firm consensus currently
exists as to the relative efficacy of delivery modes in particular contexts, even though the
general strengths, weaknesses and limits of each delivery mode are well known. It may
be that through this type of competitive arrangement the efficient role for each delivery
mode will emerge spontaneously in the market for legal aid services.
The means by which quality of legal representation can be monitored both
institutionally and by consumers of the legal aid system varies from delivery mode to
delivery mode and is critical in assessing whether access to justice goals are being
realized. Four basic elements 85 are required in any quality control program for legal aid.