Response to interpellation 2022/23:373 on standardized fees for judicial orders
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
M argues that the state's resources should be used efficiently and that cost control for legal counsel is necessary 1. M emphasizes that flat-rate fees are a proven way to regulate costs 1 2 and that it is reasonable to balance the need for legal counsel for individuals with the need to use public funds efficiently 2. M underlines that the right to legal counsel is fundamental for the rule of law 1 2 and that the role of lawyers is indispensable for the balance of justice. S argues that the flat rate risks the rule of law because lawyers may be forced to do less work or withdraw from cases 3.
Written by AI in advance and may contain errors. The numbers lead to the speech a statement builds on; check against the text below.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! I have been asked what measures I intend to take to secure everyone's right to reasonable and good support in cases of appointment.
Förordnandemål are criminal cases where a court has appointed a legal assistant, but where the preliminary investigation does not lead to a prosecution. These cases currently constitute approximately one-third of the total number of criminal cases at the district courts.
During the last ten-year period, the expenses for legal counsel in commitment cases have increased by approximately 155 million kronor. As Ola Möller mentions, the Swedish National Audit Office has been critical of this cost development. In an audit of the courts' compensation to legal counsel in criminal cases, the Swedish National Audit Office has assessed that the district courts do not exercise a reassuring control over the compensation to public defenders and victim's counsel. The Swedish National Audit Office particularly highlights that the courts have poor conditions to be able to conduct a thorough review of these compensation claims.
Against this background, the Courts Administration has recently decided to introduce a fee in cases involving court-appointed counsel. The fee entered into force on 1 June and aims to provide the courts with better conditions to exercise a reliable cost control. It follows from the Code of Judicial Procedure that public defenders and victims' counsel have the right to reasonable compensation for the work they perform. The Courts Administration has stated that the new fee is not in conflict with this.
Since a preliminary investigation in a referral case does not lead to an indictment, the court often has limited insight into the work that has been performed by a legal assistant. It has therefore been difficult to assess what constitutes a reasonable compensation for the assistant.
For the government, it is of course important that the state's resources are used in the best way and that there is an effective cost control for legal assistants' claims for compensation. The use of standardized compensations is one of the Court Administration's proven ways to regulate the compensation to legal assistants in criminal cases, and fees already occur today in some criminal cases where charges have been filed. At the same time, the right to a legal assistant is fundamental for a functioning rule of law and an important part of the right to a fair trial. That defense counsel and victim's counsel should be able to perform their work under reasonable conditions is a matter of course.
I am very aware that many lawyers and the Bar Association have reacted critically to this reform. And the government will follow the outcome of how the new tariff is applied and return to it after that.
Ola Möller (S)
Mr. Speaker! I thank the Minister for Justice for the answer. I apologize for not being in the chamber when the debate began, but I had forgotten my notes at the office. Such things happen.
I am not at all very knowledgeable on these issues. And I am fully aware that this is an agency decision. Therefore, I am very humble before this debate, which perhaps is not my strongest characteristic in other debates. But in just this debate, I thought I would be.
For those who are not familiar with the issue, this is about a lawyer receiving payment only for the interrogation time conducted if the investigation does not lead to a prosecution.
I am one of those who, unfortunately, have sat in an interrogation in my youth, and I know that there is very much beyond the interrogation time itself when it concerns young people. It is about needing to explain to the young person what it is about. One needs to have preparatory conversations with the young person, who sometimes almost need psychological help to cope with it.
The same applies to women who are being interrogated regarding sexual offenses and violence in close relationships. They often need time to be able to prepare, but they can also break down.
If the preliminary investigation does not lead to a prosecution, the lawyer will not be paid for all this time today. This means that very many lawyers will unfortunately choose not to take these cases. It also means that the lawyers who do take these cases will be the lawyers who are least eager to help their clients fully, because they expect to receive only these funds. Then they put as little work as possible into this. This is not a development that we want. And I know that the Minister for Justice shares this view.
I also have respect for the fact that one cannot just go in and change agency decisions however one likes, but it is not enough to just say that one will keep an eye on and follow the issue when the Minister for Justice himself admits that this risks legal certainty. I could give a long harangue about the issues of legal certainty, but I intend to leave them as they are in this debate. I think, namely, that this is so important.
The risk is that we end up in a situation where it becomes a class issue - that the one who has the means to pay for the time will receive the help, while the one who does not have the means will not receive it. But it must somewhere be the society's duty, because we have the notion that everyone is innocent until proven otherwise, to support everyone in the same way in this process.
My question is therefore actually: Is there anything beyond just following the question that the Minister for Justice can do to truly ensure that this does not mean that people do not receive the help in legal processes that they actually must have? This is also about the most vulnerable. It is about women who are subjected to violence in close relationships, about children, about young people and so on. I would like the Minister for Justice to really express this because I know that the Minister for Justice has a background that makes him fully understand this.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! I have great respect for Ola Möller's way of approaching the issue, and I just want to confirm the reasons that the member raises and which argue that individuals, in connection with a suspicion of a crime, should be able to count on a qualified representative - a qualified voice - who takes care of their interests. It is a completely fundamental matter in a constitutional state.
Based on a fairly extensive personal experience of acting as a representative for individuals in various situations, I can also confirm that I am very well aware that the role of a representative often involves a broad scope of care, so to speak. It is about handling the entire situation and the strain that it entails to be in contact with the justice system. I also know that it is on that basis that many lawyers who work with this type of case have reacted strongly to the reform and fear that it will have negative effects.
At the same time, it can be said that it is a legitimate claim from the citizens that the public funds we use in the entire legal system are used in an effective way. Lawyers are and must be subject to cost control.
When a case comes to court, it is the court that makes that assessment - a lawyer submits their invoice, and then the court makes an assessment of what is reasonable compensation given the work the lawyer reports. In this case, it will never reach court, so there is no court that can make the reasonableness assessment, and the Swedish National Audit Office - which has the task of auditing how we use public funds even in this area - has pointed out that we need to find another model.
It is quite true that it is Domstolsverket that, as the authority in relation to the courts, has that task. Using templates to determine the compensation has been based on a fairly proven model. I believe everyone involved in this acknowledges that it is difficult to find a good and objective yardstick for how to calculate the compensation, but something that can be measured is, in any case, the time that has been spent on the interrogations. Therefore, the model has been built around that.
By saying this, I want to emphasize the legitimacy of the issue and the problem that Ola Möller points out here. I am also very aware of what lawyers across the country fear could be the effect of this reform.
With that said, the system entered into force only a couple of weeks ago, so it is actually not possible to do anything other than speculate about the effects. But quite soon we will see the effects of this, and then the question is what a Minister for Justice can do without crossing the line and entering an area that is not the department's, the minister's or the government's, but the agency's—in this case, the Courts Administration.
Yes, for example, one can task Domstolsverket to follow up on this in a systematic way and report the consequences and the outcome of the model. It is my intention to do so when we eventually write a regulatory letter to Domstolsverket for next year, so that within a reasonable time and based on a concrete use of the model, we can see what effects it has had and draw our conclusions forward from that.
Ola Möller (S)
Madam Speaker! I thank the Minister for Justice for a good argument.
I understand the issue surrounding the fact that a court cannot determine the cost, and I share the view that we should have cost control in the public sector – anything else would be almost sensational. But at the same time, I think this is interesting, because there is a similar activity that has been on the agenda, namely bankruptcy administration. The bankruptcy administrators decide more or less their own cost specifications and in some cases have been paid quite handsomely even for fairly simple bankruptcies.
Even though there are courts involved in establishing this, there can therefore be flaws in the system, and I would actually wish that the government reflected on some kind of model for compensation in this. The vast majority of lawyers, just like all other people in this society, want to do the right thing. My experience of lawyers is also that they are very objective and systematic; they keep records of their hours and the like.
Furthermore, there is another party in this, namely investigating authorities in the form of, for example, the police. It is they who conduct the interrogations, and if a client breaks down during an interrogation and one is forced to go out and spend time getting the client back to a constructive state, one is not paid for this with the system that has been introduced. Such things should also be something the government could have some views on or reason around.
I take that as a promise that this shall be included in the regulatory letter, and I appreciate that. It must, of course, be followed up, but I take the minister on his word here.
Then it is the case that this will take time. The problem I foresee is, among other things, the development that the government's coalition partner wants to see in this, namely that the age of criminal responsibility should be lowered to twelve years. The party leader for the coalition partner Sverigedemokraterna answered more or less yes to that in the debate on Tuesday.
Twelve-year-olds shall therefore be able to be locked up in prison, and I can only imagine the situation with twelve-year-olds who enter an interrogation situation with this type of steering mechanism for the lawyers' work and the risks that are built into this system. Guiding a twelve-year-old through an interrogation is no easy task, and it will be very problematic. If, as a lawyer, one also feels a stress that the costs do not add up, there are risks that the work will not be properly performed.
Then one also has to ask if there are additional parties who could have some form of follow-up responsibility in this – I don't know, a children's ombudsman or similar – and who can be tasked with auditing. We must really ensure that it is guaranteed that everyone receives the rights they need.
Since then, it is the case that other parts of the justice system have had a significantly stronger development when it comes to costs. Since 2017, the police have had a stronger cost development than the costs for these cases; the police have had a 19 percent cost increase, compared with a 15 percent increase in this. The lawyers have, in that case, therefore been more restrained.
This is connected: As more people are sent into the justice system, the costs will also increase. We did a lot of work during the last parliamentary term to prosecute more, and according to what the government itself says, it has the same ambition and wants to increase the number of prosecutions by very much more. Then the clients will also enter more cases, and then it is clear that we will have increased costs in the interrogation situations.
It is also the Minister for Justice's view that one of the state's absolute core tasks is to safeguard the citizen's right to a legally secure process when being interrogated and subsequently potentially prosecuted.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! It is, of course, entirely correct that a fundamental task for our legal order and for the state is to ensure a high degree of legal certainty for the individual. A cornerstone in this is to ensure that individuals have the right to legal counsel in these types of proceedings.
I still want to nuance the picture of the rules that are now in place. It is quite true that the fee is based on a standard, but there are relief rules that allow one to request compensation for the extra costs if it can be shown that it has been justified to perform efforts beyond what can be inferred from the interrogation time. It is a fee with a significant relief valve so that other work that has been justified in the concrete case can be captured.
The age of criminal responsibility can differ between different civilized democratic states of law. We have 15 years. I believe Germany has 14. The Netherlands has 13. One can have different views on that, but regardless of where the level is set, this type of procedural rule provides a special protection for minors when it comes to access to legal counsel. It is clear that it is of decisive importance to ensure that individuals in general, and especially children and young people, have access to adequate legal counsel.
I assess that the reasonable way forward is to acknowledge that there are several legitimate interests here at the same time. On one hand, there is the strong interest in ensuring that individuals have access to proper protection in the form of legal counsel in a legal process, and on the other hand, there is the very legitimate claim that public funds should be used and monitored in a good way.
The National Audit Office's assessment has been that the follow-up has been insufficient. In that case, one must find a model to handle this. That is what the Courts Administration has done, and this model has now been in effect for a few weeks.
We are fully aware of the criticism that has been put forward from the bar association. I most recently read yesterday a protest letter with Advokatsamfundet at the forefront, backed by several hundred lawyers. I undertake to follow the development in a very careful manner and to return with a specific assignment to Domstolsverket to more deeply follow up the effects and the outcome of this system. Then we shall draw our conclusions from that.
I am convinced that it is possible to accommodate both of these interests in a balanced way. Now we shall see where this leads us. We shall listen very carefully to those who have different roles in the judicial process, to individuals and their experiences of this work and, for that matter, to the responsible authority's assessments of how the system has functioned. Then we shall draw our conclusions for the future.
Ola Möller (S)
Madam Speaker! There are more imbalances in this. The state is shifting its positions towards the individual citizen. For example, the number of prosecutors has increased by 24 percent since 2017, while the number of judges has not even increased by 7 percent. It is clear that it creates a different balance in the system when the prosecution side grows significantly while we see that the protection for the individual in the interrogation situation risks being weakened. This does something to the balance in the rule of law.
I truly believe that this is something we must follow up on over time. That is not to say that we should not have control over the costs, but I believe there must be a middle ground in this. I have high confidence in the lawyers when it comes to their ability to present this in a good way. Then one can have a review committee or some other makeshift thing to study this, if the judges are not to do it – they have other things to do.
I thank you for a very constructive and good debate. Despite the current pace of expansion regarding the very repressive measures that the government is undertaking together with the Sverigedemokraterna, I hope that the individual's legitimate need for protection is established and that the remaining liberal values in the government base ensure that one holds fast to this.
I am concerned when the state moves its positions so incredibly powerfully as it does now with this type of measures. However heart-wrenching cost control may be, we really must be careful with the balance between the state and the individual in these tasks. I hope that the Minister for Justice will follow this and look into it. I also have full confidence that the minister will do so, because I perceive that he has a good foundation in these issues and often has a good direction in what he does.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! I thank Ola Möller for his kind words. I would like to return them by saying that I think it is extraordinarily good that this issue is also being raised here in the chamber of the Riksdag and that we are given the opportunity to discuss these pressing issues of legal certainty.
I would like to confirm that there is no doubt that the entire legal order and the entire justice system are under strong pressure. This is primarily driven by societal development, but also from the political side, we are taking measures and adding new tools to crime fighting in order to achieve increased crime clearance and increased prosecution. This subjects the entire justice system to increased pressure.
The role of lawyers is indispensable for a right balance between public interests and individual interests to be able to exist in the concrete case. Therefore, I think it is extremely important to listen to the individual representatives' experiences of how this model works in practice and take that with us as an important basis when we are to evaluate the model for the future.
I can broaden the perspective further. Tomorrow, I am going to have a meeting with a number of judges who have led a judicial protest. It is an expression of the fact that even the judges are being subjected to a great amount of pressure and a very high pressure in this situation.
What this fundamentally underscores is the following: If we are to manage this task, which has an enormous magnitude, and reverse the development, particularly regarding organized crime, we must ensure that the entire justice system is equipped, all the way down to the handling of the individual case, in such a way that it can be done in a way that is both efficient and legally secure.
Many thanks for the opportunity to discuss these important issues today!
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.