GREEN PAPER ON LEGAL AID IN CIVIL MATTERS
(21051)
5507/00
COM(00) 51
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Green paper on legal aid in civil matters: the problems confronting the
cross-border litigant.
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| Legal base: |
— |
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| Document originated:
| 9 February 2000 |
| Forwarded to the Council:
| 11 February 2000 |
| Deposited in Parliament:
| 13 March 2000 |
| Department: |
Lord Chancellor's Department
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| Basis of consideration:
| EM of 23 March 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Cleared |
Background
18.1 A consequence of the increasing use
of the Treaty rights to free movement of persons, goods and services
has been an increase in the potential number of cross-border disputes
including those in which individuals and small companies are involved.
Under Article 65 EC, the Council can adopt measures, amongst other
things, to eliminate obstacles to the smooth functioning of civil
proceedings.
18.2 In the conclusions of its meeting at
Tampere on 15 and 16 October 1999, the European Council invited
the Council, on the basis of proposals by the Commission, to establish
minimum standards ensuring an adequate level of legal aid in cross-border
cases throughout the Union. This Green Paper is the first step
towards this goal.
The Green Paper
18.3 The document concentrates primarily
on civil legal aid. It analyses the existing obstacles to effective
access to legal aid for European citizens involved in legal proceedings
in Member States other than their own. It then makes some suggestions
for reform. Its main aim is to call for reactions from interested
parties.
18.4 The paper sets out the obstacles faced
by cross-border litigants and suggests solutions. The problems
which it identifies are:
Eligibility ratione
personae: this concerns whether
the litigant falls within the category of potential recipients
designated by the legislation of the State in which he wishes
to obtain legal aid, in particular whether he satisfies a nationality
or residence test.
Substantive eligibility:
even if the litigant satisfies the above criteria he will need
to demonstrate that he meets the conditions of eligibility envisaged
by the State's legislation, in particular with regard to his financial
circumstances and those concerning the merits of the case for
which legal aid is required, and also that legal aid is available
for the type of procedure in which he is involved.
The problem of extra costs engendered by the fact
that the litigation is cross-border: legal
aid may be tailored to purely domestic proceedings and may not
therefore make provision for defraying the extra expenses engendered
by the fact that the case has a cross-border element. Such costs
include the necessity of hiring two lawyers, translation and interpretation
costs, and miscellaneous costs such as extra travel costs of litigants,
witnesses and lawyers.
Effective access to an appropriately qualified
lawyer: the litigant needs a lawyer who
is qualified to plead in the relevant courts and ideally one who
shares a common language with the litigant. He may also require
a lawyer in his home country who has some knowledge of the law
and legal system of the country of litigation and who speaks the
language of that country and who can assist him in making contact
with a lawyer in the host country.
Technical procedures:
the mechanics of applying for legal aid abroad may constitute
an impediment to access to justice for the cross-border litigant.
Information and training:
this relates to information to the public, the legal profession
and to the authorities which decide on the grant of legal aid
about legal aid systems in the whole of the Community.
Reform of the national legal aid systems and alternative
means of ensuring access to justice: the
paper compares the United Kingdom reformed system of contingency
or conditional fees with the system operating in Germany of encouraging
citizens to obtain legal expenses insurance. It doubts whether
either is an adequate substitute for some system of legal aid
and warns against adoption of reforms at national level which
jeopardise the European Council's goal of ensuring an adequate
level of legal aid in cross-border cases.
The Government's view
18.5 The Government view is set out in a
helpful Explanatory Memorandum from the Parliamentary Secretary,
the Lord Chancellor's Department (Mr Lock).
18.6 The Minister states:
"Eligibility ratione
personae:
"Legal aid is already available to foreign nationals
bringing or defending proceedings in the UK. There are no residence
requirements and therefore no discrimination against foreign nationals
as regards eligibility for civil legal aid. The proposals in this
section would therefore cause the UK no difficulty."
"Substantive eligibility:
"... The Commission suggest that the financial
conditions of the granting country should be applied but with
a 'corrective factor' or 'weighting' to take account of the differences
in the cost of living applied [between Member States].
"The Government takes the general view that
it would be unfair to apply a test involving stricter eligibility
limits to UK nationals than to foreign nationals. The alternative
of the weighting factor would be both difficult to agree or administer.
"The Government is content with suggestions
for transparency of the criteria on which legal aid is granted
and reasons for refusal on the merits test. We disagree with the
Commission's view that the subjectivity of decision-making makes
it more difficult for an EU national to pass the merits test than
a national of the Home State. Our legal aid merits test applies
equally to all applicants regardless of nationality and is as
objective as possible in the circumstances.
"The Commission states that it has no intention
of harmonising legal aid provision and we would wish to see this
stance continue on eligibility tests, which are closely connected
to provision."
"The problems of extra costs engendered by
the fact that the litigation is cross-border:
"... Legal aid in the UK already complies with
the provisions of the Strasbourg Convention on the Transmission
of Legal Aid Applications. Legal aid can be obtained to assist
with the translation and preparation of applications for legal
aid in another country, provided it is a signatory of the Strasbourg
Convention. The Legal Aid Board and the Scottish Legal Aid Board
also transmit applications for civil legal aid to the appropriate
authority abroad. There is currently no provision for other extra
costs, such as translating other legal documents, or travel costs
of witnesses.
"In Northern Ireland, the Northern Ireland Law
Society is the designated body for transmitting applications abroad.
In some cases it has covered both the cost of translation and
the expenses of expert witnesses.
"Effective access to an appropriately qualified
lawyer:
"In England and Wales, a Community Legal Service
Directory (which will list legal service providers) will be available
on the Internet and in a hard copy format from April 2000. It
will show which providers are contracted to do legal aid work
and in what categories.
"There may be difficulties in the Commission's
suggestion to tie contracting in with a network of lawyers prepared
to take on cases in other Member States on a legal aid basis.
The Government will wish to address this in its response to the
Commission."
"Technical procedures:
"The section on 'Technical Procedures' relates
to the Strasbourg Convention and its operation in practice. The
Commission focuses on making it easier to apply for legal aid
in another country, for example through the standardisation of
forms.
"This is likely to cause problems for
UK legal aid schemes. While there is a standard form for the transmission
of applications, applicants seeking legal aid in the UK need to
fill out a separate application form as well, because the statutory
nature of the schemes requires specific information to be provided
to show that the application passes the means and merits test.
Other Member States' schemes are organised differently. Any move
to a standard set of forms could make it harder for legal aid
authorities in the UK to be sure that all cases qualified.
"Reform of the national legal aid systems
and alternative means of ensuring access to justice:
"The Commission's aim is to establish minimum
standards in cross-border cases. We do not disagree with this
in principle. However, the Commission should not force Member
States to provide legal aid for all categories of case or prevent
them from prioritising spending. The Government is committed to
increasing access to justice for all through the development of
conditional fees and other ways of funding the resolution of disputes,
and to targeting public funds on the areas of greatest need. This
point will also be covered in more detail in the Government's
response."
Conclusion
18.7 This Green Paper fulfils a mandate
from the Heads of State and Government meeting at the Tampere
European Council. It also addresses a genuine problem for individuals
and even SMEs which can only increase as the internal market is
consolidated. It is therefore to be welcomed as opening up a debate
on the topic. We support the Government's approach which seeks
to reconcile the need to facilitate the provision of legal aid
in cross-border cases with the freedom of Member States to determine
their own systems in the light of their own particular circumstances.
18.8 We are content to clear this document.
We thank the Minister for his commitment to keep the Parliamentary
scrutiny committees informed. As well as his own response we would
welcome a copy of any other responses to the consultation paper
that he receives.
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