The legislative proposal by State Secretary of Justice Albayrak to limit access to legal aid is meeting heavy resistance. Unfairly, in the opinion of University of Groningen lawyer and sociologist Dr Bert Marseille. ‘The Secretary of State has grasped the need to make cuts as a way to suggest fundamental improvements in the way that disputes are dealt with.’ The Lower House of Parliament will debate the proposal on 17 December.
People on low incomes have part of their legal costs reimbursed. Albayrak wants to save about EUR 55 million of the annual government budget of EUR 400 million for legal aid. People above the level of assistance benefit will in future only receive aid for legal problems that cannot be insured against. Social lawyers are protesting. Access to the law is no longer guaranteed, they say.
University of Groningen lawyer and sociologist Dr Bert Marseille sees many advantages in the proposal. ‘Albayrak has grasped the need to make cuts as a way to introduce fundamental improvements to the way that disputes are dealt with. She has made an intelligent proposal, with plenty of room for the value of alternatives to the courts. There’s currently much more litigation than necessary. People who go to court are not always helped there.’
One example Marseille mentions are court cases rising out of divorces. By stimulating ex-partners to present a joint proposal, unnecessary litigation can be avoided. ‘A mediator or other expert can often provide excellent assistance. And there’s an important additional advantage – research has shown that mutual agreements hold for longer than those imposed by a third party.’
The threshold to proceed against a government decision is also too low, in Marseille’s opinion. ‘There’s far too much unnecessary litigation. A financial inducement to reduce this would be very good. Albayrak also suggests that officials should call citizens who have lodged an objection to a decision about a benefit or permit. This would clear up a lot of misunderstandings about the exact content of the decision, which could mean that the objection is withdrawn. Experiments with that way of working have been positive.’
But is the proposal socially fair? Not everyone who is just above assistance benefit level is able to or wants to have legal aid insurance. Marseille: ‘A significant number of the cases that now fall under legal aid are for people with relatively high incomes who could easily arrange insurance. But just how big the state’s safety net should be, and how much personal responsibility the state can expect from its citizens is actually a political issue.'
Marseille hopes that the discussion in the Lower House will not only be about the size of the group of people who may fall between two stools as a result of Albayrak’s proposal. ‘The proposal has too many positive aspects for that.’ Of the EUR 55 million that must be saved, only EUR 12 million will be at the cost of people who will have to approach an insurance company for legal aid. The rest of the cuts will be the result of stimulating alternatives to the courts. Marseille: ‘Compared with the total of EUR 400 million that the government spends on legal aid, EUR 12 million is not much. That would be my argument if I was Albayrak.’
Dr Bert Marseille (Leeuwarden, 1961) studied Law and Sociology at the University of Groningen, after which he worked for the court in Assen, among other places. He joined the Department of Administrative Law and Public Administration in 1999, where he became University Reader in 2005. In addition, he is the permanent annotator for the journal AB Rechtspraak Bestuursrecht, deputy judge for the Groningen court and a member of the objection advisory committee of Delfzijl municipality.
Dr Bert Marseille
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