The importance of structure and context in legal aid comparisons: A study in North-West Europe

The legal and administrative structures of legal aid provision are fundamental to its functioning. In examining cost and affordability, it is therefore useful to look beyond individual examples of good practice projects to the basic construction of the legal aid scheme in a jurisdiction. The architecture is provided by the public and administrative law elements of legal aid which vary substantially, as shown by a recent large-scale comparison of nine jurisdictions in North-West Europe (the Nordic countries, the UK jurisdictions and the Republic of Ireland). The research considered the legal foundation for civil and criminal legal aid, in particular the decision-making and appeals structures, scope and merits tests, and found that these vary radically between jurisdictions, including between jurisdictions where similarities might be expected, such as Finland and Sweden. Surprising similarities were also found, such as those between Norway and England & Wales, and Finland and the Republic of Ireland. The large scale of the examination enabled a search for patterns and revealed links between policy and practice, outlined in this paper, which are less evident in smaller comparative studies.

The presence of many structural variables which interact in complex ways has an important consequence for inter-jurisdictional learning; great care must be taken when attempting to transfer elements of legal aid provision between systems. The paper concludes with a proposed framework for the analysis of legal aid systems, to enable systematic evaluation and meaningful comparison between jurisdictions. Use of such a framework can improve the prospects of successful borrowing of ideas by enhancing the understanding of both familiar and unfamiliar legal aid schemes.