This module is a resource for lecturers
Topic 8. Quality assurance and legal aid services
A significant issue that arises in many jurisdictions is the quality of legal aid provision. In several countries, Codes of Conduct outline the importance of independence, while also providing practical guidance on matters relating to quality, such as excessive caseloads, and the duty to act impartially and without discrimination. Quality assurance is a problematic issue, especially as it raises the question of State interference with the independence of lawyers. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) provide that States also have a responsibility to "ensure that legal aid providers are able to carry out their work effectively, freely and independently" (Principle 12).
While the administration and delivery of legal aid various among countries, independence of lawyers is fundamental. For this reason, for example, the European Court of Human Rights has been hesitant in placing responsibility on States for ensuring that criminal lawyers carry out their work to a sufficient standard, leaving national authorities with a certain 'margin of appreciation' in assessing the need for any interference with the performance of the lawyer's role. Thus, in one case the court held that:
A State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes… [States are] required to intervene only if a failure by counsel to provide effective representation is manifest or sufficient brought to their attention (European Court of Human Rights, Imbrioscia v Switzerland, No. 13972/88, November 1993).
However, given the close link between the right of access to legal aid and the right to fair trial, it may be argued that States have a responsibility to ensure that legal aid is effective and that it meets minimum standards; a responsibility that is heightened by the fact that the State may be underwriting some or all of the cost of legal aid, and thus has a responsibility to ensure that State expenditure is justified, appropriate and effective.
The primary approach of the UNPG is to place responsibility on States to ensure that legal aid providers have the necessary education, training and skills to provide legal aid services to an appropriate standard. Thus, Principle 13 provides that:
States should put in place mechanisms to ensure that all legal aid providers possess education, training, skills and experience that are commensurate with the nature of their work, including the gravity of the offences dealt with, and the rights and needs of women, children and groups with special needs.
This exemplifies the approach, seen in several jurisdictions, which seeks to ensure that legal aid providers are competent to carry out their work. In most, if not all, jurisdictions, lawyers are subject to minimum knowledge and skills to qualify as lawyers. In some jurisdictions, legal aid lawyers are subject to particular qualification requirements as a pre-condition to the receipt of legal aid funds.
This is addressed to a limited extent in the UNPG, which provide that States, in co-operation with professional associations, should set criteria for accreditation of legal aid providers (Guideline 15) and, furthermore, provides guidance on the discipline and oversight of legal aid providers. Probably the most developed accreditation scheme is found in England and Wales, where lawyers who provide legal aid services to suspects and accused at the early stages of the criminal process must pass a number of knowledge and skills assessments in order to be accredited to carry out such work.
Another approach is to assess the competence of work carried out by lawyers. Some jurisdictions, such as Chile, England and Wales, and Scotland, have developed 'peer review' schemes under which the quality of work carried out by legal aid providers is assessed. This raises the question of who is qualified to carry out such assessments. In Chile, the Public Defender Office has appointed several inspectors, who are lawyers with experience in criminal law. They inspect the work of individual public defenders according to an annual plan, and the reports are used as a mechanism for quality control and to improve performance.
In addition to quality assurance in relation to legal aid providers (that is, the lawyers and others who provide legal aid), there is also the issue of quality in respect of legal aid service providers (that is, the organizations that employ lawyers and other providing legal aid). Guideline 16 of the UNPG provides that States should, in consultation with civil society organizations, justice agencies and professional associations, establish quality standards and monitoring and evaluation mechanisms for legal aid service providers.
The approach to quality assurance of legal aid service providers depends upon how legal aid is organized and delivered. In particular, it will depend upon whether: (a) there is a legal aid body responsible for administering legal aid; (b) whether there is a contracting relationship between the legal aid body and legal aid service providers; and (c) whether legal aid is provided through a public defender service.