Administrative Law and Human Rights Standards in Legal Aid: An Overview with Examples from Finland and England & Wales

Abstract

The majority of writing on legal aid is from a socio-legal or political perspective and little attention has been paid to legal aid as a branch of administrative law. This is an important failing as the legal aid requirements imposed by international human rights law do not only relate to the scope of legal aid, but also establish parameters for the administration of legal aid schemes. These requirements may be met directly within the specific legislation governing legal aid, but in some instances rely on the application of general domestic administrative law principles. Employing a comparative approach, this article explores some of the connections between administrative law, international human rights law and the provision of legal aid, using the jurisdictions of Finland and England & Wales as examples. Good protection of the relevant international human rights standards is provided in Finland through a robust administrative law system which contains a clear set of basic principles and is directly applicable to the making of decisions on legal aid. In England & Wales administrative law principles are not as helpful; however the manner in which administrative law acts upon discretionary decision-making in that jurisdiction means that strengthening administrative law principles might not have much impact on legal aid administration. In such a situation subject-specific legal aid legislation must be relied upon to meet human rights standards.