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Legal Aid in Sweden

  • Isabel Schoultz
Open Access
Chapter

Abstract

Sweden has a combination of public and private protection of legal expenses in civil cases. The public legal aid scheme is subsidiary to the legal expense insurance, which means anyone who had a legal expense insurance covering the current affair would not receive legal aid. The chapter aims at reviewing the current legal aid in the country with emphasis on the public legal aid scheme and the legal expense insurance. The text also includes discussions on the function of the legal aid scheme in relation to the welfare state and from an access to justice perspective, pointing out strengths and weaknesses of the legal aid policies and practices.

Introduction

Today, Sweden has a combination of public and private cover for legal expenses in civil cases. Legal expenses insurance (Rättsskydd) is part of household insurance policies, and it can pay part of the costs of legal representation in certain types of case under litigation. Those without household insurance, or if the insurance does not cover the particular case, can, under certain circumstances, be entitled to publicly funded legal aid (Rättshjälp). In order to obtain legal aid you have to apply to the Legal Aid Authority, which provides legal aid under the Legal Aid Act, or directly to the court if the case is already before the court. To be eligible for publicly funded legal aid you have to meet certain criteria: for example your financial base must be less than 28,000 € (260,000 Swedish Krona—SEK)1 a year and you must not have legal expenses insurance covering the issue. Legal aid is not granted if your financial situation would have enabled you to take out insurance. Legal aid also applies primarily to private individuals.

This means that legal aid legislation is based on the assumption that the market supplies appropriate insurance policies, and that individuals actually take out insurance (Swedish National Courts Administration 2009). Today, 96% of the Swedish population above the age of 16 has household insurance. In other words, most of the Swedish population is protected by legal expenses insurance. However, young people (16–34 years) and people born abroad are significantly less likely than the average population to have household insurance.2 Legal expenses insurance and legal aid have been described as two sides of the same coin (Kilian and Regan 2004) but there are significant differences that will be discussed in this chapter.

Civil procedural rules in Sweden have been described as ‘creating a defendant-friendly forum’, and increasing the economic risk for the plaintiffs (Carlson 2012, p. 135). The civil litigation process also includes an allocation of legal costs and fees whereby the losing side in the majority of cases has to pay costs and fees for both sides (Carlson 2012). In relation to legal aid, economic obstacles limiting individuals’ access to information and adequate representation is highly relevant (Cappelletti 1993). Access to justice could also be seen as a major element of the welfare state. Cappelletti and Garth (1978) point to barriers in the legal system that may be of relevance to an understanding of the need for legal aid: the costs of litigation, time, and party capability (including the competence to recognise and pursue claims, and experience of the judicial system). Thus, getting access to justice in practice, rather than merely at a theoretical level, may require legal aid to overcome these significant barriers.

This chapter aims to review the current state of legal aid in Sweden, with emphasis on the public legal aid scheme and legal expenses insurance. The text also discusses the function of the legal aid scheme in relation to the welfare state and, from an access to justice perspective, identifies strengths and weaknesses in legal aid policies and practices. In an attempt to give the reader the necessary background to the current legal aid scheme in the country, the history is presented first, followed by a review of the meagre research on legal aid in Sweden. A section on legal expenses insurance follows, since this is the primary source of legal protection. Thereafter, public legal aid is described, with the focus on entitlement criteria, general restrictions and procedural issues, the providers supplying the aid, statistics on the use of public legal aid, and the cost of the scheme. The two following sections examine legal aid provided by the unions, and alternative legal aid provided by pro bono lawyers and student legal clinics. The chapter ends with a concluding discussion.

Historical Background

In 1919, Sweden passed the first legislation providing free legal aid to poor people (Johnsen 1994). Subsequently, at the end of the 1960s, legal aid policy was influenced by Scandinavian welfare ideology, providing both litigation aid and legal aid assistance (Johnsen 1994). However, prior to 1973 there was no statutorily unified system of legal aid in Sweden (Muther 1975). The purpose of the Legal Aid Act (1972:429) that came into force in 1973 was to equalise access to legal services by enabling everyone to obtain legal assistance in any case where legal aid was needed (Muther 1975). The legal aid of that time was part of the generous welfare programmes developed in the early 1970s, and included assistance for most legal problems including advice and minor assistance. It was also open to most of the population (Kilian and Regan 2004).

The Swedish legal aid scheme up until the middle of the 1990s has been described as ‘probably the most generous and comprehensive scheme internationally’ (Kilian and Regan 2004, p. 247). However, legal aid in Sweden was described by Johnsen (1994) as limited in comparison with other Nordic countries’ legal aid schemes at that time. The limitation mainly regarded the low number of cases eligible per 10,000 people, the preponderance of matrimonial cases, and the limited cover of other legal problems (Johnsen 1994, p. 329). These conflicting opinions have at least two explanations. First, Kilian and Regan (2004) were not specifically comparing Sweden with other Nordic countries: if they had done so the conclusion about Sweden may have been different. Second, Kilian and Regan (2004) include protection given by public legal aid as well as by legal expenses insurance, while Johnsen (1994) only discusses public legal aid. Legal expenses insurance was integrated into household insurance policies in response to pressure from the labour movement in the 1960s. It was designed to fill gaps in public legal aid by providing legal aid to middle-income earners who might be excluded from public legal aid because of their income, and to cover costs that were not covered by public aid, such as costs awarded by the court in unsuccessful civil cases. At this time, legal expenses insurance was not widely used, and most Swedes relied on public legal aid (Regan 2003). However , by including legal expenses insurance, Kilian and Regan (2004) reach their conclusion that the Swedish legal aid system was probably the most generous legal aid scheme in the world.

In the current Legal Aid Act (1996:1619), which came into force in December 1997, the Swedish government introduced a reform to legal aid policy in an effort to cut public spending, and, by extension, to change the way Swedes responded to common legal problems. One of the goals of the legal aid reform was to achieve major cost savings, since Sweden was undergoing the worst recession since the 1930s (Regan 2003). The more limited resources were mainly to be allocated to those in most need of legal aid (Swedish National Courts Administration 2009). Regan (2003) notes that the reform did not affect all forms of legal aid: aid in criminal cases and to victims was maintained. Other welfare policies were not changed as much as legal aid policies (Regan 2003). The overarching change in the reform was to make the legal aid scheme secondary to the legal expenses cover provided by individuals’ household insurance. This means that the claimant in a dispute should first turn to their insurance company. Anyone who had legal expenses insurance covering the case in question would not receive legal aid (Swedish National Courts Administration 2009). However, the reform did not, as Regan (2003) points out, include a requirement on insurance companies to expand the cover they were offering. The reform presupposed that insurance companies would continue to offer legal expenses insurance to existing policy-holders in the future. Despite major changes in the legal aid scheme, the reform caused little public protest, apart from that voiced by the Swedish Bar Association (Regan 2003). The reform also separated legal aid from other forms of legal assistance, such as public defenders, public counsel, and counsel for injured parties (Renfors et al. 2012).

Another aim of the legal aid reform was to make the legal aid fee vary according to the income of the applicant; it was to be calculated in relation to the costs of legal counsel and paid regularly to the appointed counsel (Swedish National Courts Administration 2009). The new law also included other changes to the entitlement criteria for legal aid. Among other things, up to two hours’ counselling had to precede an application for legal aid. The annual income limit for entitlement to legal aid was reduced from 26,800 to 22,600 € (249,000 to 210,000 SEK). Even so, more than 80% of the population was entitled to legal aid, on the basis of their income (SOU 2014). In 1999, the income limit for entitlement to legal aid was raised to 28,000 € (260,000 SEK) (Swedish National Courts Administration 2009).

The 1997 Legal Aid Act also introduced requirements for special grounds for legal aid to be granted in cases relating to divorce and related issues, to child maintenance, to business owners as regards business activities, and to cases handled abroad (Swedish National Courts Administration 2009, p. 18). Many family law disputes no longer qualified for legal aid in the new legal aid scheme and an alternative form of dispute resolution was introduced. The allowance for employing counsel was also limited to a maximum of 100 hours, with very limited opportunity for increase (Swedish National Courts Administration 2009).

In the middle of the 1990s, prior to the reform of legal aid, Sweden had more than one hundred publicly employed lawyers working in twenty-eight bureaus at the county level (Johnsen 1994, p. 309). The state-financed legal aid bureaus were closed down in 1999 on the grounds that the state should no longer engage in the practice of law (Departementsserien 1992).

As regards the welfare state, the 1997 reform of the Legal Aid Act singled out legal services from other welfare reforms in the 1990s in the retreat from quasi-universal and comprehensive coverage, as well as the shift from public to private protection (Regan 2003). The current legal aid law is fundamentally different from the previous law in that sense that, from being tax-funded legal aid in the previous law, it has become mainly privately funded through insurance premiums.

Previous Research on Legal Aid in Sweden

There are only a few academic publications to be found on legal aid in Sweden. It is noteworthy that these journal articles on legal aid in Sweden are all written by non-Swedes. Muther (1975) wrote a paper on the legal aid act reform of 1973. In 1994, Johnsen (1994) published a more extensive piece on Nordic legal aid, in which he compares the systems in Sweden, Finland, and Norway. Thereafter, Regan (2000, 2003) published two papers on the 1997 reform and on the mix of private and public legal protection. A few years later Kilian and Regan (2004) published a paper in which they compare legal expenses insurance and legal aid schemes in Sweden and Germany. However, this comparison seems to be based on Regan’s previous work on Sweden.

In addition to these studies, Renfors et al. (2012) and Stangendahl (1998) have published comments on the Legal Aid Act (1996:1619). Bruder (1998) has written a book on issues relating to legal counsel in the context of the legal expense insurance and the Legal Aid Act. These pieces are naturally limited to summaries and explanations of the law, and do not contain any empirical research on legal aid.

The legal aid scheme in Sweden has also been subject to several government initiated investigations, both prior to the 1997 reform (see for example SOU 1977, 1984, 1995; The Swedish National Audit Office 1992, 1993) and after (Departementsserien 2003a, b; SOU 2014). The current legal aid act has also been evaluated twice by the Swedish National Courts Administration (2001, 2009).

To sum up, legal aid in Sweden has been the object of several governmental investigations, but academic publications are few. It is hard to know why legal aid research has been underdeveloped in Sweden, particularly in contrast to the extensive research on legal aid done in neighbouring countries, such as Norway. This chapter therefore aims to fill part of the gap in the literature on legal aid in Sweden by providing a description and discussion of the current legal aid scheme in relation to access to justice and the function of the welfare state.

Legal Expenses Insurance

Today, legal expenses insurance is the primary source of legal protection in Sweden. Household insurance has contained a legal expenses element since the 1960s, and, prior to the 1997 reform, claimants could obtain legal protection both through insurance and through public legal aid . Nowadays it is a matter of either or—anyone who has legal expenses insurance covering the case in question will not receive legal aid.

Johnsen (1994) differentiates between litigation aid and legal assistance aid. Legal expenses insurance only covers the former, i.e., cases under litigation. One of the significant limitations of legal expenses insurance is the lack of cover for legal advice and minor legal assistance (Kilian and Regan 2004). In general, insurance covers hearings in a District Court, a Land and Environmental Court, a Court of Appeal, or the Supreme Court. Insurance does not apply to criminal cases or disputes that may be examined by administrative authorities, specialist courts, or the administrative courts (Swedish National Courts Administration 2009). The administrative courts have their own investigative responsibility (Carlson 2012) and therefore the need for legal representation is not deemed to be the same (Swedish National Courts Administration 2009).

Legal expenses insurance is incorporated into household policies, and is not offered as an ‘add on’ or separate ‘stand-alone’ insurance. As a rule, insurance companies require that the policy has been taken out for at least two years before use can be made of the legal expenses insurance (Swedish National Courts Administration 2009). Generally, too, legal protection through the insurance is not granted if the value of the case is less than half a base sum which represents 2400 € (22,250 SEK) in 2015. Insurance does not generally apply to disputes having to do with divorce or the dissolution of partnerships, or to disputes relating to the insured’s employment or other professional duties (Swedish National Courts Administration 2009). The costs for the individual can vary since insurance companies have different conditions but liability for 20% of the base amount and 20% of the damages costs exceeding 20% of the base amount is common (Swedish National Courts Administration 2009). In practice, liability can end up as much as 5000 €.

In addition, different insurance companies have different exceptions and rules. Some companies exclude child custody, child maintenance, and similar issues. Others have a withdrawal period of a year or two after the marriage, partnership, or relationship ends before the legal protection can be utilised in these disputes. Several insurance companies do not cover litigation under the Group Proceedings Act (2002, p. 599) (Swedish National Courts Administration 2009). The Swedish National Courts Administration (2009) found in their evaluation that, even though the insurance criteria differed somewhat between insurance companies, insurance policies have not changed since the reform came in to place to a degree that would imply that the system is no longer functioning as it is supposed to.

As a rule, the legal representative hired must be operating close to the insured party’s home, or the place where the hearing takes place. The legal representative must be a lawyer or an associate employed in a law firm. The possibility of appointing other appropriate legal representation exists but needs to be approved by the Board for Legal Protection Insurance Issues (Swedish National Courts Administration 2009). Generally, the insurance company pays the legal representative’s fees and costs in accordance with an hourly rate norm, the costs of the investigation and collection of evidence, and administrative costs in court. Legal expenses insurance generally also covers situations when the insured is compelled to pay legal expenses to the opposing party or to the State, as well as settlements (if it is likely that the Court would have decided on a higher amount) (Swedish National Courts Administration 2009). In 2015 the maximum amount of legal protection varied between insurance companies, from 13,000 to 27,000 € (120,000 to 250,000 SEK) (The Swedish Consumers’ Insurance Bureau 2015).

In a survey conducted by Swedish National Courts Administration (2009) directed at lawyers, several negative consequences of legal expenses insurance were highlighted. More than 90% of lawyers think that there is a need for the possibility of public legal aid being given in cases where legal protection through insurance has been exhausted (Swedish National Courts Administration 2009). Another issue brought to light by the lawyers, is the need for legal advice. For legal expenses insurance to be used the issue has to be formally considered a legal dispute (when a claim has been wholly or partly rejected by the other party) but legal advice may be necessary prior to that (Swedish National Courts Administration 2009).

In 2014, legal expenses insurance was used in 12,879 cases at an estimated cost of 38 million € (356 million SEK).3 In 1997, the amount paid by legal expenses insurance was estimated at 17 million € (157 million SEK) distributed among 11,401 insurance cases. Ten years later, in 2007, the equivalent sum was estimated at 29 million € (271 million SEK) distributed among 13,046 insurance cases (Swedish National Courts Administration 2009). These figures include legal expenses insurance in both household insurance and second/holiday home insurance. The costs have increased significantly but interestingly the developments indicate that the number of insurance cases has not increased to the extent that you might expect, given that legal aid reform made legal expenses insurance the primary source of legal protection. The increased costs are probably related to rises in legal costs in general, and the fact that insurance companies have raised the ceiling for the amount of legal costs being reimbursed. The number of policyholders who received compensation peaked in 1999, with more than 15,000 disbursements for legal expenses (Swedish National Courts Administration 2009). In relation to developments between in 1997 and 2007 Regan (2003, p. 58f) concludes that, since the increase in the insurance industry’s costs were much smaller than the decrease in public expenditure after the reform, legal disputes are either being funded by alternative means, or more cases are abandoned before they go to court. Many of the ‘missing cases’ are probably family law cases that are now dealt with through negotiation or do-it-yourself divorces. However, Regan (2003) suggests that some are cases where people have been discouraged from seeking legal advice since it is too costly. The issue raised by Regan (2003) may still be valid: the legal aid reform may have discouraged citizens from using lawyers and going to court. From an access to justice perspective, the figures may indicate that effective equality in the sense of equal opportunities (see Cappelletti 1992), is not being achieved.

The Public Legal Aid Scheme

Entitlement Criteria

The right to legal aid is governed by the Legal Aid Act (1996:1619). Public legal aid covers all legal matters (rättslig angelägenhet) not specifically excluded in the law (the restrictions are presented later in this section). While legal expenses insurance is limited to cases under litigation, public legal aid has a wider application. However, Renfors et al. (2012) argues that, in practice, it does not make much difference since many of the issues that would come into question as ‘legal matters’ not requiring litigation, for example, marriage contracts and wills, are nonetheless excluded in the Legal Aid Act.

According to section 6 in the Legal Aid Act, legal aid can be granted to a person whose financial base does not exceed 28,000 € (260,000 SEK) a year. This limit was last changed in 1999. The financial base includes annual income after allowances for maintenance obligations, including 2700 € (25,000 SEK) per child, to a maximum of 8100 € (75,000 SEK), assets and debts (Legal Aid Act section 38). Generally, assets exceeding 5400 € (50,000 SEK) are taken into account and half of this amount will be added to the annual income. The value of the residence where the claimant lives permanently is not counted as an asset (Renfors et al. 2012). It is difficult to tell exactly what percentage of the Swedish population qualifies for legal aid in relation to their financial base. In 2013, the median income (including income from pensions, sickness benefit, and other taxable payments from the Social insurance agency) of the Swedish population aged between 20 and 64 was 30,600 € (284,001 SEK) a year, while for people under 20 it was 27,000 € (252,540 SEK) (Statistics Sweden 2015). However, these numbers include neither maintenance obligations, nor assets or debts. Based on the income level for 2013, a government investigation concluded that about 43% of the Swedish population is eligible for legal aid (SOU 2014). The government-initiated report suggests that the income limit should be raised to 43,100 € (400,000 SEK), in order to meet the intentions of the law that about 80% of the population should be eligible for legal aid based on their income (SOU 2014). However, no such steps have been taken.

A person granted legal aid would have to pay between 2% and 40% of the costs to the legal representative in a legal aid fee. The size of the legal aid fee is based on the financial base and the total costs of the legal representative. The idea is that individuals should contribute to the costs to the extent they can afford (Legal Aid Authority 2015a). If the claimant is a minor the legal aid fee may be waived if the applicant’s financial circumstances justify it (SOU 2014).

As stated by section 7 in the Legal Aid Act, legal aid cannot be granted if legal assistance can be obtained in another way. In the centre of the paragraph is the claimant’s need for a legal counsel; if the individual can protect his or her own interests, no need for legal counsel is considered to exist. This includes an assessment of personal qualifications and the seriousness of the issue, for example, a trained lawyer may be considered not to have a need for a legal counsel (Renfors et al. 2012). Legal aid can also not be granted if the matter in hand gives entitlement to other forms of legal assistance, such as public defenders or public counsel (appointed for example in cases concerning compulsory care and deportations). Similarly, legal aid is not granted if the claimant can obtain it from trade unions or other organisations, such as tenants’ organisations (Renfors et al. 2012).

Section 8 in the Legal Aid Act makes it clear that legal aid may be granted only when, considering the nature and importance of the matter, the value of the dispute and other circumstances, it is reasonable that the state should contribute to the costs. In practice, the nature of the case can mean that an application for legal aid is rejected if it is obvious that the case has no prospect, or that the dispute concerns a matter that is considered to involve larger financial transactions unrelated to the claimant’s everyday welfare. For example, if the dispute relates to an expensive hobby, the purchase of luxury objects or equities, art speculation, tax avoidance, or transactions involving the grey areas between the permissible and impermissible, legal aid may not be granted (Renfors et al. 2012). Renfors et al. (2012) state that according to the explanatory statement of the law the feasibility assessments should be made with caution and balance, taking into account all the circumstances relating to the matter. In addition, like legal expenses insurance, legal aid is not normally granted if the value of the dispute is considered small: a special reason is needed if the amount does not exceed half a basic amount (2400 € in 2015). Another circumstance that may negatively influence the right to legal aid arises if it is considered that the claimant has obstructed the investigation of the matter (Renfors et al. 2012).

To be granted legal aid the applicant must not have legal expenses insurance covering the legal matter (Legal Aid Act section 9). The same applies if the applicant should have had legal expenses insurance. As already discussed, this is the fundamental difference between the current legal aid scheme and the previous one. The should have had a legal expenses insurance rule is important here. If the applicant does not have legal expenses insurance but if, given their insurance coverage in general, or their financial and personal circumstances, they should have had such protection, legal aid is granted only if there are special reasons as regards the nature of the issue or the importance of the claimant. This rule was inserted to discourage people from not taking out insurance and relying that legal aid would be granted (Renfors et al. 2012). Renfors et al. (2012) refers to the preparatory work for the legal aid act regarding what ‘financial circumstances’ means in practice, and concludes that those located near or within the upper half limit of eligibility for legal aid, are to be considered people who should have had insurance. This means that if you have a financial base close to or within the range of 13,000–28,000 € (120,000–260,000 SEK) your application may be rejected. Legal practice in this area indicates that if the applicant can prove that he/she is living in certain circumstances (if, for example, they have only just received housing as a result of divorce or release from prison ) and therefore have not had time to take out insurance he/she can be granted legal aid (Renfors et al. 2012). In a specific case where a man had neglected to renew his insurance, the court concluded that, given his financial and personal circumstances, he should have had insurance, but he was still granted legal aid since the matter in question (child custody), and other circumstance, could be classified as a special reason (Swedish National Courts Administration 2009). This rule has been criticised by several of the lawyers participating in the Swedish National Courts Administration survey evaluating the Legal Aid Act. One of them said:

‘It is not uncommon for individuals to lack legal expenses insurance, and for it to be held that they should have had insurance. They are then completely without protection and have no opportunity to litigate with the help of a legal counsel.’ (Swedish National Courts Administration 2009, p. 353, response no. 24, my translation).

Given that most Swedes do have legal expenses insurance, this problem only applies to a small part of the population. Nonetheless, this rule can cause significant limitations as far as access to justice principles go. Even though those who fall between the cracks have an income, economic obstacles may limit their access to the courts.

General Restrictions

As mentioned, all legal matters qualify for legal aid, unless specifically excluded. However, there are various limitations to the right to legal aid in certain areas: the preparation of tax returns, the writing of wills, prenuptial agreements, estate inventories, and cases relating to debt restructuring do not get legal aid (Legal Aid Act section 10). The argument here is that people can handle certain simpler issues on their own (Renfors et al. 2012). As described above, the legal aid reform also abolished legal aid in most family law disputes, replacing it with negotiation in disputes involving children and do-it-yourself application forms for divorce (Regan 2003). Thus the current Legal Aid Act (section 11) requires special reasons to grant legal aid in family-related matters, such as divorce and child maintenance support. For example, in divorce cases a prerequisite is that the case is considered to be more complicated and to require more legal counselling than is normally required in cases of divorce (Renfors et al. 2012).

Section 11 in the Legal Aid Act requires special reasons in cases concerning taxation, customs fees or other similar charges, as well as small claims (mentioned above), and matters handled abroad. Victims of sexual assault abroad are an exception, no special reasons being required (Legal Aid Act section 21). Legal aid is generally not approved for cases in the European Court of Human rights or the UN commissions (Renfors et al. 2012). For anyone who is not a Swedish citizen and has not previously been resident in Sweden, legal aid is limited to matters dealt with in Sweden (Swedish National Courts Administration 2009, p. 21f).

Another highly relevant limitation to legal aid is the fact that legal aid is not generally granted for hearings before the Administrative courts (see Legal Aid Act section 7 on the need for legal assistance). Such cases are also excluded from legal expenses insurance (Renfors et al. 2012). As mentioned previously, there is not deemed to be the same need for legal representation, since the administrative courts have their own investigative responsibility. Cases involving individual freedom and personal integrity, such as those involving the deportation of asylum seekers or the deprivation of liberty due to mental illness or addiction have public counsel appointed by the state. However, since the 1997 reform, these provisions are no longer included in the Legal Aid Act (Renfors et al. 2012). In the government-initiated evaluation of the Legal Aid Act, lawyers addressed the limited possibility of receiving legal aid in administrative courts. One lawyer participating in the survey highlights this issue:

‘Administrative law cases, involving, for example, the withdrawal of sickness benefit, the right to life annuities for accidents at work or recovery of paid claims of the kind specified, are routinely denied legal aid (legal protection through insurance is exempted by insurance criteria) and thus parties cannot hire a legal representative.’ (Swedish National Courts Administration 2009, p. 409, response no. 8, my translation).

These experiences indicate that access to justice is limited in administrative cases. All the more so because administrative law cases are excluded from legal expenses insurance policies. In cases concerning, for example, the withdrawal of social benefits, people could be assumed to have a very limited ability to pay for legal services themselves. This means that an individual may, without knowledge and experience, have to fight a case where a government agency is the opposing party. Administrative cases regarding, for example, the right to social benefits may have a great impact on people’s lives. The evaluation of the Legal Aid Act suggests that there are grounds for reviewing the possibility of legal aid in administrative law cases (Swedish National Courts Administration 2009); however, no such review seems to be taking place.

Legal aid is, in general, not granted to business owners in matters arising from business activities, unless there are special reasons relating to the nature and limited extent of his or her economic and personal conditions and circumstances (Swedish National Courts Administration 2009). In addition, the requirement in section 6 of the Legal Aid Act that legal aid applies to private individuals denies legal aid to organisations and groups of individuals.

Procedural Issues

Applications for legal aid are decided by the Legal Aid Authority, unless the matter is already before a court. In that case, it is the court that decides on legal aid. Section 2 of the Legal Aid Act states that an application for legal aid must be preceded by consultation with a lawyer or other legal practitioner (for a minimum of one hour and a maximum of two hours). Exceptions may be made if it is clear that such consultation is unnecessary. The consultation fee paid by the applicant is a set at 175 € (1628 SEK) per hour in 2015. The fee can be reduced to half if the individual’s income is less than 8100 € (75,000 SEK) per year. In the case of people under the age of 18, and those with no income or wealth, the consultation can be waived by the Legal Aid Authority (2015b). The application for legal aid is filed together with the legal counsel undertaking the consultation.

The benefit of legal aid counsel covers work to a maximum of 100 hours, with some limited opportunity for increase. The state pays the costs of evidence in the public court, the Labour Court, and the Market Court. The state also pays the costs of an investigation up to 1100 € (10,000 SEK), except for investigation of a matter that should be heard by an administrative court or an administrative authority (Swedish National Courts Administration 2009).

The majority of lawyers participating in the above-mentioned survey say that often, or very often, 100 hours is not sufficient (Swedish National Courts Administration 2009). One of three things usually happens when legal aid ceases: the client pays the excess, or the legal representative does not charge more, or the client drops the case (Swedish National Courts Administration 2009). While legal aid is limited to 100 hours, continued legal aid may be granted for the hours required to complete a process. In legal expenses insurance, a similar possibility does not exist. In order to avoid these differences in the systems, the Swedish National Courts Administration is proposing to give the Supreme Court and the Supreme Administrative Court the ability to grant extended legal assistance at public expense (Swedish National Courts Administration 2009). However, the suggestion has not been implemented.

Decisions taken by the Legal Aid Authority can be appealed to the Legal Aid Board. The Board consists of five members: a chairman who is a judge , two lawyers, and two other members, all appointed by the government. The decisions taken by the Legal Aid Board cannot be appealed. In 2014, 6.3% of all applications were appealed to the Legal Aid Board (Swedish National Courts Administration 2015b).

Conclusions on Entitlement to Public Legal Aid

Our description of the entitlement criteria, general restrictions, and procedural issues relating to public legal aid has revealed the strengths and limitations of the Swedish legal aid scheme. Public legal aid covers those on average to low incomes who do not have insurance, and have not failed to take out insurance when they ought to have done so. The above description does not however reveal that nowadays the percentage of the population that is eligible for legal aid has decreased significantly, and that this goes against the intentions of the law (SOU 2014).

The legal aid scheme does potentially cover some issues not generally covered by legal expenses insurance, such as more complicated child custody and child maintenance cases, and work related issues. A significant difference between public legal aid and legal expenses insurance is the coverage of costs when a case is lost in court. Public legal aid does not cover the opposing party’s legal expenses in the way legal expenses insurance does. On the other hand, in the survey of lawyers conducted by Swedish National Courts Administration (2009), several respondents raised the issue that individuals using their legal expenses insurance may have to pay a considerably higher fee than people with the same income who have been granted public legal aid. One lawyer said: ‘people who have no or a very low income pay 20–25% of the legal counsel’s fee [when using their legal expenses insurance]. If they had been granted legal aid, it would have been about 2–10%’ (Swedish National Courts Administration 2009, my translation). In such cases, it is a disadvantage to have legal expenses insurance.

According to Regan (2003) the reform of legal aid has significantly downgraded access to legal advice and minor assistance in legal cases, and thus actively discouraged many Swedes from seeking advice or assistance from lawyers for legal problems. The legal aid scheme places considerable responsibility on the individual to identify the legal problem and pay for legal assistance to access legal advice. Even though the legal advice fee can be reduced or waived for those with no, or a very low, income, others have to pay quite a high fee to receive legal advice. In other words, the support that people might need to work out whether they have a legal problem or not, and how it could be solved, is costly. This is inconsistent with the fact that most people need assistance with every-day non-litigation legal problems (Eidesen et al. 1975; Kilian and Regan 2004). This is a significant example of limited access to justice. Legal advice and assistance can play an important role in tackling social exclusion (Buck et al. 2005; Currie 2009).

Furthermore, a prerequisite for obtaining legal aid is that citizens are aware of their right to legal assistance. A survey conducted by the Swedish National Courts Administration reveals that awareness of legal protection is low; most people cannot distinguish between legal aid and the legal protection provided by household insurance. Most are not even aware of the extent to which they have such insurance. The Courts Administration therefore proposes that information about the opportunities for legal assistance must be made more widely available (Swedish National Courts Administration 2009).

As this section has shown, there is a range of limitations to the granting of legal aid. These limitations will also be apparent when we look at how many are granted legal aid. Before that we will look briefly at the providers of legal aid.

Providers Under the Scheme

Johnsen (1994) differentiates between judicare, which is legal aid delivered by private lawyers, and salaried legal aid provided by public employees. Salaried legal aid no longer exists in Sweden: citizens are only offered judicare. According to section 26 of the Legal Aid Act, the legal aid counsel appointed can be a lawyer, an associate in a law firm, or any other appropriate person. In other words, no formal qualifications are required. However, the Legal Aid Authority or the court assesses legal counsels who are not lawyers or associates of a law firm for their suitability as representatives (Legal Aid Authority 2015c).

The legal representative’s remuneration is based on an hourly rate adopted by the government. In 2015, this was 140 € (1302 SEK) (excluding VAT) for those approved for Swedish F-tax (entrepreneurs who pay their own preliminary tax and social security contributions) and 107 € (991 SEK) (excluding VAT) for those not approved for F-tax (Swedish National Courts Administration 2015a). According to section 27 of the Legal Aid Act, the hourly rate may deviate from the standard rate if this is justified by the skill and care with which the assignment has been carried out, or by other relevant factors. The hourly rate represents the minimum amount that a lawyer will charge per hour in ordinary cases not covered by legal aid; double the rate would hardly raise an eyebrow in business law.

Use of Legal Aid4

Diagram 3.1 shows the use of legal aid approved by the Legal Aid Authority and the courts (when the case was already before a court) between 1997 and 2014. It also shows the use of legal consultation partly or fully funded by the Legal Aid Authority from 2000 to 2014, since no statistics before 2000 on legal consultation exist.
Diagram 3.1

The number of legal aid matter that has been concluded between 1997 and 2014, approved by either the Legal Aid Authority or by the Courts (Source: Statistics from the Legal Aid Authority)

If a legal aid case has been concluded it means that the Legal Aid Authority has decided on the division of the legal aid costs (Swedish National Courts Administration 2015b); in other words the legal aid case is closed. The diagram reveals several interesting developments in legal aid. The most noteworthy is the steep decline in legal aid after the legal aid reform. Between 1997 and 2000, the total amount of legal aid cases concluded fell from 36,301 to 14,242 (figures arrived at by adding those approved by the Legal Aid Authority to those approved by the courts). From the beginning of the millennium, the total number of legal aid cases concluded steadily declined to 7952 in 2014. However, if we compare the legal aid approved by the Legal Aid Authority with the legal aid approved by the courts, the former shows the drop, while the latter has remained relatively unchanged since 2000. In fact, legal aid approved by the Legal Aid Authority declined from 7235 cases in 2000 to 740 cases in 2014. Examining the figures closely, we can see that, of the 7235 cases in 2000, only 1411 were granted under the current Legal Aid Act. In other words, in the year 2000 the Legal Aid Authority was still concluding legal aid proceedings from the former Legal Aid Act. However, taking into account only those granted legal aid under the current Legal Aid Act, the number of cases concluded has still almost halved, from 1411 in 2000 to 740 in 2014 (Swedish National Courts Administration 2003, 2015b). The decline is not surprising, given that the number of applications also steadily declined, from 2587 in 2000 to 1154 in 2014 (Swedish National Courts Administration 2015b). These figures leave us with two obvious questions: (1) Why have applications to the Legal Aid Authority fallen so significantly? (2) Why has the approval of legal aid in the courts not declined in line with the rate of approval by the Legal Aid Authority? The answer to the first question is most likely connected to the fact that the income limit for entitlement to legal aid has not been revisited since 1999. In other words, fewer people satisfy the entitlement criteria. It might seem reasonable to expect that the income limit would affect the approval of legal aid in court in a similar manner, but it has not. Unfortunately, there are no statistics on the number of applications for legal aid coming in to the courts so we cannot tell how applications to the courts have developed during the same period. The second question is, therefore, difficult to answer. We do know, however, that family law cases in the courts (which is a large part of the legal aid granted in courts) increased by 85% between 2001 and 2014, which may be part of the explanation.

Looking again at Diagram 3.1, one sees that the number of legal consultations includes consultations where, due to individual financial constraints, the fee has been partly or fully waived. Here, there is an upward trend. In 2000, the Legal Aid Authority paid for 2113 consultations while in 2014 it paid for 5664. These numbers do not reveal if the use of legal consultations has increased in general, only that the number of people who had the fee partly or fully waived due to individual financial constraints has increased significantly. The increase is relevant in relation to the previous discussion on access to legal advice being reduced by legal aid reform. What these numbers indicate is that an increasing number of people cannot afford the legal consultations that are necessary if one is to be granted legal aid.

Table 3.1 presents the types of cases granted legal aid in 2014 by the Legal Aid Authority and the courts. There is a massive preponderance of family law oriented cases. However, this category includes a range of issues, such as divorce (lawsuits), child custody, alimony, and various other family-related issues. The preponderance can perhaps be understood in the light of the fact that some insurance companies have excluded the issues of child custody, child maintenance, and the like, while others have a withdrawal period of a year or two after the end of the marriage, partnership or relationship before legal protection can be utilised in these disputes.
Table 3.1

Legal aid granted in 2014 by the Legal Aid Authority and the courts, based on the various concerns

Concerns

Legal Aid Authority

Court

Total

Family law

405

6295

6700

Labour law

189

150

339

Claims, demands

56

274

330

Damages

23

102

125

Rental dispute

2

66

68

Another concern

8

48

56

Other civil

7

31

38

Other administrative matters

3

31

34

Inheritance

6

18

24

Victims of crime abroad

10

 

10

Property dispute

1

8

9

Social Security

1

1

2

Total

711

7024

7735

Source: Statistics from the Legal Aid Authority

The most common issues not related to family law, are those to do with labour law and claims/demands (concerning for example a dispute where someone claims payment, and the other person rejects the claim). As discussed previously, issues involving administrative law are not very often granted legal aid. Table 3.1 also reveals differences between legal aid granted by the Legal Aid Authority and that granted by the courts. First, the courts grant ten times as much legal aid, which means most cases are already before a court when legal aid is granted. Given the number of applications to the Legal Aid Authority presented above, it seems that most people granted legal aid in court did not apply to the Legal Aid Authority before the case went to court. One possible explanation might be that some people at least, did not know about the possibility of legal aid before the court proceedings. Second, if one looks at the issues concerned in percentage terms, labour law constitutes a considerable part (27%) of the legal aid granted by the Legal Aid Authority but not of that granted by the courts (only 2%). In general, family law issues are much more dominant in the cases granted legal aid by the courts. If one looks at aid granted over time, family law issues have predominated since 1997. Still, given that family law oriented cases represent 87% of all legal aid granted, Regan (2003, p. 50) may have a point when he argues that the legal aid policy introduced in 1997 has restricted ‘assistance to a relatively narrow range of court cases.’ It is difficult to tell to what extent the granting of legal aid matches the legal problems people experience in their daily lives. For example, in Table 3.1, rental disputes account for quite a small share of legal aid granted in 2014, while classical legal aid studies have shown that people frequently have housing problems, but that these do not necessarily qualify as legal cases (Eidesen et al. 1975; Eskeland and Finne 1973). Other attempts to measure civil justice problems indicate that consumer issues and those relating to employment, neighbours, and debt were most common (Buck et al. 2005; Currie 2009). However, others have pointed out that divorce problems are one of those issues for which legal advice is most commonly sought (Genn and Paterson 2001). Previous research indicates that the fact that public legal aid in Sweden is dominated by family law court cases does not necessarily correspond to the legal problems people have. Norwegian studies (Eidesen et al. 1975; Eskeland and Finne 1973) also emphasise the need for legal aid programs that reach out to people rather than waiting for them to seek help, and then ask what their ‘real problems’ are.

The statistics on those granted legal aid also show the share of the total cost the applicant had to pay, calculated on their financial base (see Table 3.2). We find two thirds of those granted legal aid belong in the lower income range: those who pay 0 to 10% of legal expenses in a legal aid fee. This distribution may have to do with the fact that those with an income above 13,000 € are generally considered able to afford household insurance that includes cover for legal expenses, and are therefore largely denied public legal aid.
Table 3.2

Distribution of the legal aid granted in 2014 on the basis of financial base of the claimant and the share of the total cost to be paid by the legal aid fee

Financial base of the claimant of legal aid

Share of the costs payed by the claimant of legal aid

Proportion of those granted legal aid in 2014

Minors without income

0%

10%

0–5400 €

2%

29%

5400–10,800 €

5%

20%

10,800–13,000 €

10%

8%

13,000–16,200 €

20%

9%

16,200–21,600 €

30%

12%

21,600–28,000 €

40%

11%

Source: Statistics from the Legal Aid Authority

Spending on the Scheme

As already mentioned, one of the main aims of the legal aid reform that came into force in 1997 was to cut public spending (Regan 2003). This was indeed achieved (Swedish National Courts Administration 2001). Spending decreased between 1998 and 2005 because the legal aid scheme was made secondary to legal expenses insurance. Thereafter, costs began to increase again, because the number of cases did not decrease at the same rate as in previous years, while the hourly cost of legal counsel increased (Swedish National Courts Administration 2009). In 2014, legal aid under the Legal Aid Act cost the state approximately 27 million € (248 million SEK). These costs do not include the 1 million € (8.5 million SEK) costs of legal consultations where the fee was partly or wholly waived due to individual financial constraints. In the same year, the state received revenue from legal aid fees of about 4 million € (41 million SEK) (Swedish National Courts Administration 2015b). Taking this revenue into account, the total cost of legal aid, including legal consultations, was 23 million €—which represents slightly more than 2 € per capita during 2014. The public legal aid figures do not include other forms of legal assistance, such as public counsels in administrative cases involving individual freedom and personal integrity, counsel for injured parties, or public defenders in criminal cases, since these provisions are not included in the Legal Aid Act.

Legal Aid Through Trade Unions

Work-related issues are not covered by legal expenses insurance but can qualify for public legal aid if a person is not unionised, or if the union cannot help. Members of a trade union have the right, under certain conditions, to obtain legal aid in matters connected with, or relevant to, his or her work. Before you can obtain legal aid the union may require you to have been a member for a certain period of time. The dispute must be related to work: matters such as wage disputes, redundancy, the right to occupational injury or disease benefits, or work-related criminal charges. Legal aid through the union can be granted if there is deemed to be a reasonable chance of winning the case. For those who are granted legal aid the union pays all legal costs if the case goes to court and the costs for both sides if the case is lost. In addition to legal costs, lost earnings and any accommodation and travel costs incurred in connection with the proceedings may be paid.

The trade union confederations LO5 and TCO,6 as well as some of the unions in the third confederation Saco,7 employ the same law firm (LO-TCO Rättsskydd) to take legal proceedings relating to social insurance and labour law. The firm is primarily owned by LO. According to its own statistics, in 2014, more than 40 trade unions employed the firm on about 1000 cases, including ones relating to labour and social insurance law.8 These numbers are a minimum of those receiving legal aid though the unions, since each case can include more than one person and several trade unions handle their own cases.

Union membership has declined since the mid-1990s, from 85% of all wage earners (excluding full-time students working while studying) in 1995 to 70% in 2014 (Kjellberg 2015). From an international perspective, union membership in Sweden is still among the highest in the Organisation for Economic Co-operation and Development (OECD) countries (OECD 2015). Union membership differs greatly with age, from 35% in the 16–24 age bracket to 80% for those aged 45–64. Union membership among foreign-born workers is somewhat lower than among workers born in Sweden. The union confederation that caters mainly for blue-collar workers (LO) has seen a greater decline since the mid-1990s than the other two main union confederations (Kjellberg 2015). The decline in union membership is relevant from a legal aid perspective because legal expenses insurance does not normally cover labour law disputes. As already mentioned, if people are not unionised, or if the union cannot help, it may sometimes be possible to obtain legal aid though the Legal Aid Act. However, those who are not members of a union and have a financial base exceeding 28,000 € per year, have nowhere to turn in disputes relating to their work.

Alternative Legal Aid Initiatives

There is a range of legal aid alternatives in Sweden, although they are not as well known or comprehensive as in Norway, for example. In the following section, I will discuss pro bono legal services and voluntary student legal clinics. There are, however, other forms of alternative aid, for example, public institutions offering consumers legal aid (see Johnsen 1994) that I will not discuss.

Pro Bono Legal Assistance

According to Regan (2001), pro bono work by lawyers diminished after the comprehensive 1973 legal aid reform, since the Legal Aid Act covered most legal advice and minor assistance as well as legal representation in most courts. At this time, legal services could be obtained from both private and public lawyers. With the second reform in 1997, a renewed need for pro bono legal assistance arose.

Since 1998, the Swedish Bar Association has organised free legal advice offered by lawyers working in their spare time in several cities in Sweden. One of these services offers consultations with a lawyer for about 15 minutes on certain dates at local libraries and civic centres. They can be found in more than 30 places in the Stockholm area and in eight other cities in Sweden. During the consultation the lawyer does not draw up legal documents, or take any other direct action, but offers advice on how the client can move forward with their issue (Advokatsamfundet 2015).

There are also legal firms offering free legal advice on immigration law. For example, the Swedish Refugee Advice Centre in Stockholm provides free legal advice on issues relating to asylum, family reunification, and Swedish citizenship, and on other matters relating to Swedish immigration law . In 2015, they registered 350 new cases (Rådgivningsbyrån för asylsökande och flyktingar 2016). Similar asylum advice centres exist in other cities (see, for example, Stadsmissionen 2015).

Another form of pro bono work is offered by a well-known law firm operating as a foundation supported by donations and grants from individuals. The firm takes on cases pro bono if they concern equal treatment (non-discrimination), freedom of association, property rights, freedom of trade, rule of law, and personal privacy, where the state, municipality, trade union or the employer is the opposing party (Centrum för rättvisa 2015). They only deal with a few cases each year—ones, for example, in the European Court of Human Rights, or class actions on gender discrimination in the national courts.

Cappelletti (1992, p. 29) discusses pro bono work from an access to justice perspective and argues that it is a sign of a ‘political laissez-faire philosophy’, where the state has not undertaken necessary measures to solve a known problem. However, the way the programme is structured by the Swedish Bar Association enables it to meet, to some extent at least, the criterion Cappelletti (1992) discusses , namely geographical availability, even though the programme is not available nationwide and is concentrated in medium-sized and large cities. Since lawyers offer legal advice in local libraries and civic centres, they at least come somewhat closer to being able to ‘reach out to the poor’ (Cappelletti 1992, p. 30).

Voluntary Student Legal Clinics

There are several voluntary student legal clinics in Sweden. Both Stockholm and Gothenburg have ones connected to the editorial office of a magazine sold by the homeless and specifically targeting homeless and other socially disadvantaged people. The clinics are sponsored by larger legal firms (Faktumjuristerna 2015; Gatujuristerna 2015). There is a similar legal clinic targeting homeless and other socially disadvantaged people in Lund. This one, however, seems to be working without the support of larger law firms (Juridikcentrum 2015). These three legal clinics are quite new initiatives, which started in the years from 2005 to 2013.

Other law student-initiated aid schemes are more general, such as Juristjouren in Lund and Uppsala. The work of the clinic in Lund will be discussed further below. It was formed in 1978 to offer free legal advice and information to the public. Juristjouren in Lund is an independent non-profit organisation run by law students from Lund University. Their office in the town centre is financed by the municipality. During a visit to Juristjouren , I was able to interview two of the students working there.9 The Lund legal clinic offers legal advice in face-to face meetings or on the phone. (The similar clinic in Uppsala also offers advice via e-mail.) Meetings take place either in their office in Lund, where they have a drop-in hour, four days a week, or in local libraries or civic centres in the region of Malmö and Lund. The students’ travel expenses are paid by the civic centres.

Individuals and small businesses are offered a 30 minute consultation. While other student-initiated legal clinics may provide help with drawing up documents and contacting authorities, Juristjouren does neither of these things; focusing instead on offering legal information covering a wide variety of areas. Today they have about 80 members taking part in the activities of the legal clinic as volunteers, while pursuing their studies. They are at various stages in their law studies but the clinic requires that students should have passed the third semester before joining. They offered help in about 600 cases in 2014, either in face-to-face meeting or on the phone. To advertise their services they use social media and their web site; they offer lectures to various stakeholders and hand out leaflets on the street. Recently they have been putting up posters in six languages to reach groups that do not speak Swedish.

Among the most common issues handled by Juristjouren are those to do with family law (e.g., divorce, cohabitation agreements, child custody), inheritance law, housing, consumer law (e.g., the purchase of various types of services and contractual interpretation), criminal law, and administrative law (matters concerning the Social Insurance Agency and Social Services). Juristjouren can be understood as a first resort: ‘Many people come to us to see if they have a case at all, before turning to a lawyer, since it is very expensive to turn to a lawyer’, one of the students, Robin, explains. He describes the nature of many of the cases they help with: ‘A lot of cases are not that difficult really, but people do not know how to handle them.’ The other student, Agnes, expands on this: ‘People do not really know what they are entitled to.’ In this type of case, the legal clinic can inform people about their rights and what they can expect from, for example, the authorities. The classic Norwegian legal aid study (Eskeland and Finne 1973) and more recent international studies (Curran and Noone 2008; Denvir et al. 2013) indicate that people rarely know their rights or what they are entitled to. Furthermore, research has shown that people often do not see their problems as legal ones (Sandefur 2009). In line with the students’ experiences, Eidesen et al. (1975) found that the legal aid citizens need seldom involved complicated legal issues but had to do with concrete problems in a legal framework.

Sometimes a case brought to the student legal clinic in Lund, is very specialised, or involves something requiring legal proceedings, and they have to refer the client to a law firm. Since they are not sponsored by any law firm, they never suggest a specific firm to their clients. Instead, they can point clients to the judicial area in which they should try to find a suitable firm. However, they think that most people who seek help get it in one way or another. They, at least, get advice on how to proceed with their case. Sometimes they request their clients to take the first step (for example, to make a phone call to an organisation) and then get back to them.

The students identify another area where information is often sufficient. Agnes described people’s lack of knowledge about their entitlement to legal services: ‘Something that people rarely know about is that they may be entitled to help through their household insurance. We provide that information quite often.’ Robin said: ‘That’s right, they should check the terms of their household insurance if they want to sue someone or are being sued.’ Their experience that few people know about legal expenses insurance is significant to an access to justice perspective, where knowledge of your rights is a cornerstone (Curran and Noone 2008). If Swedes generally do not know if or how they are covered, this becomes a problem if they end up in a litigation process. A prerequisite for the use of legal aid is that citizens are aware of their rights.

Like the pro bono programme organised by the Swedish Bar Association, the student clinic initiative in the Lund and Malmö area, strives to achieve geographical availability by offering services in the Lund office as well as in local libraries and civic centres. From an access to justice perspective, the student legal clinics are evidently filling a gap that the general legal aid scheme is not able to fill, namely the provision of legal information and, to some extent , legal advice.

Concluding Discussion

As the current legal aid scheme in Sweden is currently structured, most of the population relies on legal expenses insurance, rather than public legal aid. Thus, the legal protection offered today is primarily through people’s private household insurance and secondarily through publicly funded legal aid. Legal expenses insurance limits the type of legal services provided, since it only covers legal problems that involve litigation in court. The figures presented in this chapter on the use of legal aid in Sweden show that the great majority (90%) of those granted public legal aid are already before the courts when they are granted legal aid, and the rest will most likely also eventually end up in court. In other words, out-of-court cases lose out when it comes to entitlement to legal protection, both through legal expenses insurance and public legal aid . The legal problems, even quite mundane ones, people experience with government agencies, employers, neighbours, and landlords can have serious consequences if not resolved (Sandefur 2009). Thus, offering legal advice services can prevent legal problems from escalating. As previously pointed out in this chapter, the hourly rate for a legal consultation (the prerequisite to applying for legal aid) is high enough to discourage people from seeking advice, and it can only be reduced or waived in retrospect for those with no income, or a very low one. The increasing numbers of people having the fee partly or fully waived due to their financial constraints indicates that more and more people cannot afford the legal consultations that are a prerequisite to being granted legal aid.

Limited access to legal advice and minor assistance for problems outside of litigation is a consequence of the legal aid reform in 1997 (Regan 2003). Prior to the reform Sweden was known as a country coming close ‘to attaining the ideal of equal access to legal services for all’ (Kilian and Regan 2004, p. 246). Regan (2001) argues that the reform brought back the need for pro bono work by lawyers, which today provides the free legal advice (although limited to 15 minute consultations in specific locations in Sweden) that the public legal aid does not. Student legal clinics to some extent also cover the need for legal information and legal advice. Nonetheless, the structure of the current legal aid scheme in Sweden places a considerable responsibility on the individual to identify the legal problem. In other words, the form of support that people might need to decide whether they have a legal problem or not, and how it can be solved, is costly.

The chapter has also highlighted how the reform of the legal aid policy has left some groups without help for their legal problems: for example, those with moderate means who do not have legal expenses insurance, are not poor enough to qualify for legal aid but may still not be able to afford a private lawyer. The same goes for those with moderate means who are not eligible for legal aid for work-related legal problems and who do not belong to a union. Taking into account the fact that fewer people meet the income criteria in the Legal Aid Act (SOU 2014), the number of people who fall between the cracks will increase if the income ceiling is not raised. In addition, the chapter has shown that access to legal aid in administrative cases is limited. This could indicate limited access to justice in legal matters, where an individual may have to pursue a case in court against a government agency. Such individuals may have a very limited ability to pay for legal service. The fact that administrative law cases are excluded from legal expenses insurance policies , results in higher dependence on public legal aid. These examples cast a dark shadow on the promises of the welfare state, and can be argued to contribute to weakening access to justice for certain groups of people.

Footnotes

  1. 1.

    All amounts in Swedish Krona are converted to Euro based on the exchange rate 24 January 2016: 1 € equals 9.28 Swedish Krona. All amounts in Euro are rounded up to the nearest hundred.

  2. 2.

    The most recent figures for the percentage of the population with home insurance were received through e-mail from Philip Ando at Statistics Sweden (SCB) (2015–09-28).

  3. 3.

    The figures from 2014 were received from Lena Westerberg at Insurance Sweden (Svensk Försäkring). These numbers exclude legal expenses insurance for businesses and real estate. In 2014, 6445 insurances cases concerning businesses and real estate received legal expenses compensation to an estimated value of 219 million SEK.

  4. 4.

    The author would like to thank Ylva Boström-Berglund at Rättshjälpsmyndigheten (the Legal Aid Authority) for providing all the statistics on public legal aid.

  5. 5.

    LO stands for the Swedish Trade Union Confederation, which is the central organisation for 14 affiliates that organise workers in both the private and the public sectors.

  6. 6.

    TCO stands for the Swedish Confederation of Professional Employees and comprises 14 affiliated trade unions.

  7. 7.

    Saco stands for the Swedish Confederation of Professional Associations and is a trade union confederation of 22 affiliated associations.

  8. 8.

    Based on e-mail correspondence with Sussanne Lundberg and Claes Jansson at LO-TCO Legal AB by 2015–10-12 respectively 2015–10-15.

  9. 9.

    The interview was conducted in 15 October 2015 with Robin E. Göbel and Agnes Emaus Günzel at Juristjouren in Lund.

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Authors and Affiliations

  • Isabel Schoultz
    • 1
  1. 1.Sociology of Law DepartmentLund UniversityLundSweden

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