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

Legal aid 95
corresponding voucher, there will not be strong incentives to select one client over
another.
Government’s post-design role
The state’s primary post-design role after the implementation of a legal aid voucher
scheme overseen by an independent multi-stakeholder body would be in providing
adequate funding to the responsible body. The multi-stakeholder body, which would not
be a direct government agency but would rely on state funding, would be responsible for
overseeing, monitoring and fostering different delivery modes for legal aid. Thus, the ex
post role of government would be aimed at negotiating adequate, long-term budgets with
the multi-stakeholder oversight body. 92
Friedland notes that, in the context of a constrained budget, “the most important
consideration is the need for innovation and experimentation” 93 in the delivery of legal
services in order to arrive at the best “mix” of judicare, clinics and other delivery
mechanisms. Consequently, governance of the legal aid system needs to be independent
from the legal profession and other groups whose interests are implicated, and yet also be
responsive to their concerns as well. As Friedland observes, “The stronger the
independent component of [the governing body], the more confidence the government
may have in it and the less likely it may be to try to influence the operation of the
institution.” 94
Friedland proposes that funding be allocated by the government, but that the allocation
of funds via a mix of instruments be at the discretion of an independent board comprising
lawyers, government representatives, community clinic staff members and persons with
management expertise. 95 This body would assume many of the tasks that the government
or Law Society would otherwise be responsible for, including monitoring the quality of
legal aid provided in the system, ensuring that people in need of legal aid are actually
receiving assistance, and taking a proactive role in experimenting with new delivery
modes and engaging in pilot projects. Friedland also advocates a rigorous system of
accountability mechanisms including reporting, audits, inspection and a complaint
process. Community clinics would be required to have at least one board member
appointed by the legal aid board and to abide by certain guidelines set by the board in
order to qualify for funding. The Legal Aid Board system in England and Wales
compares favourably with Friedland’s model, although the Lord Chancellor’s office, to
whom the Board is ultimately accountable, retains considerable control over the setting of
priorities. 96
Political considerations
Clearly the most formidable lobby relating to legal aid is lawyers. The other principal
interest group is legal aid clients, but these are generally amongst the most vulnerable and
voiceless members of society, not only because they are poor but because they also very
frequently have been charged with a criminal offense, and the general public is unlikely
to be disposed to favour their interests with large-scale expenditure programs. Lawyers,
as an interest group, are likely to favour a generously compensated judicare form of legal
aid program of the kind that exists in many (but far from all) jurisdictions. There are