We published the following article in the Gazette of June 2009 but have received very little response from the membership, quite insufficient for the purposes of forming a policy. Members are therefore given the opportunity once again to consider the work which Council has done in connection with legal aid. Our meetings with the Scottish Legal Aid Board are ongoing but there would be more purpose in these meetings and possibly more benefit to members, if we could receive views from around the membership in connection with the issues which arise in connection with the provision of legal aid. The article was published as follows:-
LEGAL AID? ASKING THE QUESTIONS
It is sometimes difficult to discern whether the membership of the Society at large would wish Council to formulate a detailed policy concerning the provision of legal aid or whether those practitioners active in the delivery of legal aid are, by and large, seen to constitute almost a separate profession in their own right. Council, however, has regular meetings with the Scottish Legal Aid Board and always finds the Board to be helpful and constructive, albeit, sometimes subject to a perception of circumstances rather different to that reported to Council by the membership. The following are the notes which emerged from our most recent meeting with the Board, on 1st May, 2009:-
1. ABATED ACCOUNTS PROCESSED MORE SPEEDILY?
Steven Carrie, Senior Technical Specialist from the Board's Accounts Specialist Unit explained that all fees and outlays were paid at the offer stage and only the abated amount was held back with the exception of advice and assistance accounts. Plans are now under way to make sure that all advice and assistance accounts which come in online are paid at the offer stage subject to retention only of proposed abatements. The Board policy is to persuade solicitors to use the online facilities.
2. PROSPECTIVE EFFECT OF PUBLIC EXPENDITURE CUTS
At this stage, it is not clear what the impact of the Budget and the Scottish Government's financial position will have on legal aid expenditure. All aspects of public expenditure in Scotland are likely to come under review. However, the Board envisages making savings in its running costs by streamlining procedures and, in particular, by the better use of technology. Legal aid Fund expenditure is currently not cash limited and it is the Board's hope to retain that status. However, there is likely to be greater pressure to find further efficiency savings in legal aid.
3. SUMMARY JUSTICE REFORM
The monitoring work of the Summary Justice Reform Group and meetings with the Falkirk and Hamilton bars have indicated that the new system of ABWOR for guilty pleas and other measures have greatly improved the system and the Board has successfully amended its procedures to take into account the various summary justice reforms which have taken place and feedback currently indicates that this has been successful and beneficial.
4. VERIFICATION OF FINANCIAL ELIGIBILITY
There is a large and unacceptable instance of applications for advice and assistance in which solicitors confirm financial eligibility but without sight of or production of wages etc verification. This means that solicitors are indicating that applicants meet the financial requirements but without necessarily having any evidence to that effect and there is also a significant number of such cases transpiring not to meet the financial requirements. The Board takes the view that repeated instances of this within the same firm or through the same practitioner might well amount to a compliance issue. The Board urges that solicitors should bear in mind that the legal aid fund is taxpayers' money which should not be disbursed unless all the relevant rules and regulations are met. The submission of claims to satisfy financial eligibility without evidence is a long standing problem and these cases are being checked more frequently and invalid claims are being uncovered.
The Board is very serious about addressing this issue and points out, in particular, that it may be extremely unfair on those firms which check or provide verification if they suffer inconvenience or prejudice as a result of the remedial measures implemented by the Board.
(NOTE 5th February 2010. From our most recent discussions with the Board, the above remains vey much a live issue.)
5. REVIEW OF DUTY SOLICITOR SCHEME
This will become subject to review. One objective shall be to remove any closed shop type restrictions on new practitioners entering the scheme. While there is a reported perception that there are not enough solicitors available to fill duty schemes, the opposite is the case and the issue shall be to regulate the numbers that wish to access the scheme. The cost of the duty scheme has increased from £600,000 to £2m over a period of 6 years and, as this represents serious expenditure and a serious investment in access to justice, the Board seeks to maximise the value achieved by this expenditure.
6. CRIMINAL PEER REVIEW QUALITY ASSURANCE
This will be in place by summer and will involve an exercise similar to the civil scheme in which, for example, each practitioner, or firm, submits files for external inspection by a peer reviewer.
7. PDSO
This is authorised by the Scottish Government and not by SLAB but there is no doubt that the office is here to stay. For one thing, it provides the Board with insight to the practice and delivery of legal aid and the criminal justice system and recent statistics so far show that there is a high rate of client satisfaction through the PDSO service. The extent of the provision is governed by the Scottish government and not by SLAB. The Scottish Government has no policy or proposals to increase the provision of PDSO services beyond the current level. However, that provision could be subject to increase in accordance with circumstances. For example, where there was market failure (i.e. local solicitors not providing services) such as occurred in Stonehaven and in Kirkwall, where the whole duty scheme was taken over by PDSO changes might be needed. It is noted that private practice solicitors have now rejoined the duty scheme for Stonehaven. It is the policy of the Board and the Board understands that it is also the policy of Scottish Ministers that both PDSO and private practitioners shall be retained but no figures are available as to what percentage of provision shall be supplied by the PDSO. It is likely, however, that the provision will be expanded if problems need to be addressed such as lack of private provision in certain areas of geographical or types of business. At present as far as Glasgow criminal legal aid is concerned, there are two PDSO solicitors and there is no intention to increase that provision. Ministers have publicly made it clear that they see the vast majority of criminal legal assistance being provided through private practice. There are around 15 PDSO solicitors across Scotland and around 1350 private practice solicitors providing criminal legal assistance.
The Board takes on trainee solicitors and intends to take on more trainees than it actually requires with a view to considering, for example, shared traineeships and with a view to stimulating connection between the Board and the practising profession. Trainees at the Board receive a broad traineeship across the main areas of practice but are likely to have special skills in the operation of legal aid. The Board would like to consider possible arrangements for sharing trainees with private firms.
Generally, it is a misconception to think that there are not enough solicitors available to deliver criminal legal aid. In fact, in some areas, for example Glasgow, there appears to be a fairly saturated market.
8. GRANT FUNDING
There is increasing scope for the provision of legal aid by specific grants to fund services in particular geographical or jurisdictional areas. The Scottish Government has provided additional funding to the Board for a grant scheme to provide additional help to people in difficulties as a result of the recession, particularly in relation to debt or housing problems. Publicity involving applications for grant funding will go live on Wednesday, 6 May 2009. Applications may come from the advice sector, law centres or private practice solicitors.
9. IN-COURT ADVISERS
These are usually non-solicitors provided by agencies such as CAB and law centres and their function is not to represent persons at court but to give them basic advice. These advisors do not replace solicitors and, in fact, there are signs that one of the effects of in-court advisers is that persons who might not otherwise have been aware that they would benefit from representation or how to obtain representation are advised accordingly and thereafter seek representation so that legal aid applications are likely to be increased, rather than decreased.
10. EMPLOYED CIVIL SOLICITORS
The Board is also recruiting a small number of additional solicitors in Aberdeen and Edinburgh where there are difficulties in finding private solicitors who undertake debt, mortgage rights, and repossession work, to assist in providing access to justice in these areas.
11. SIMPLIFICATION OF CIVIL LEGAL ASSISTANCE
New forms have been in place from March 2009 with family cases split off from other cases. So far as possible tick boxes have been introduced, particularly in the forms of application for sanction. There has been good feedback so far and the Board has been told that the transition to the new forms has been smooth and successful and that the service has improved.
12. CHANGES TO FINANCIAL ELIGIBILITY
There has been a dramatic increase in the maximum disposable income, to £25,000 per annum although the capital limits have not been changed. This greatly increases the scope of availability for legal aid. However, the tapering system means that there are substantial contributions payable from higher earners and legal aid in these cases is likely to be appropriate for high value or complex cases mainly. However, it is not always wise to be put off using the legal aid facility just because of a substantial contribution because litigants have to bear in mind that by proceeding without legal aid, they lose the protection against adverse expenses. Contributions can also be restricted to the solicitor's estimate of the cost of the case although a contribution up to the maximum can be requested if the case costs exceed the solicitor's estimate.
13. SUPPLIER SUPPORT
This relates to the Board setting up contact with individual firms to provide feedback on the Board's experience with the firm (for example, quality of civil legal aid appliacations, percentage of rejected applications, the frequency of particular problems and other statistics concerning the legal actions raised or defended). This has proved beneficial in a small pilot project and the system is now ready to be rolled out to the top twenty legal aid firms which undertake a large volume of legal aid business.
(MS wondered whether there is an intention here to move towards the franchise arrangements that exist down in England i.e. the Board will only support firms with large volumes of legal aid work - we were assured not)
14. LEGAL AID ONLINE
Use of Advice and Assistance online continues to increase to just under 70% of intimations and increase applications. Feedback from users is very positive. Criminal legal aid online and civil legal aid online are now being piloted and will be rolled out to the profession over the next couple of months. If there are any problems in this area, contact should be made with Diane Ireland, who is in charge of online issues. It is acknowledged that there is an issue where practices who operate case management systems need a link with the Board's online system to include information about legal aid applications in their own systems and this is under investigation.
15. SUBJECTIVE TEST IN CRIMINAL ABWOR APPLICATIONS
Where solicitors submit these applications they have to carry out the work without knowing whether their responses to the subjective tests as to the merits are acceptable to the Board e.g. prospect of imprisonment etc, and therefore whether or not their accounts shall be paid. The Board view appears to be that the tests are necessary and that, in many cases, it is perfectly obvious that the test is not satisfied but that, nevertheless, solicitors have claimed that the test has been satisfied and the Board is determined not to pay in such cases. It appears that the solicitor would have to decline to represent the accused or else be prepared to act on a gratuitous basis.
Legal Aid Policy Considerations
From the foregoing, it is apparent that there are many specific issues to be addressed in connection with the provision of legal aid and it would appear that your Council has previously proceeded upon a general policy that the provision of legal aid to those in need is appropriate and that solicitor acting in that provision ought to be reasonably remunerated and that practitioners should be involved in the regulation of legal aid. This, however, does not really take Council very far forward when detailed matters arise from our discussions with the Scottish Legal Aid Board. The question now may therefore be considered as to whether the Society should ingather the intelligence and views of its members with a view to a formulation of a more detailed policy which addresses specific issues such as financial eligibility, access to custody business, use of publicly employed solicitors, quality assurance and rates of remuneration etc.
Some members might take the view that legal aid is not of concern to their particular businesses and that they can safely ignore the issue but others might take the view that it is in the interests of the profession, and of the public which it serves, that the legal profession be unified and that the great majority of litigation as well as many other services simply could not take place without the provision of legal aid and that these issues cannot responsibly be ignored by any active practitioner who looks to the future of the Scottish legal profession. The following comments and questions are offered therefore in order to find out whether there is a desire in our membership for representations on behalf of members to be made to the Scottish Legal Aid Board, the Scottish Government and the Law Society etc in connection with legal aid arrangements. These questions and comments concern some fundamental issues for initial consideration with a view, if so desired by members, to moving thereafter towards more detailed issues.
THE LEGAL AID PREMISE
If the legal aid premise is that many, if not most, people cannot afford to pay their own legal expenses for litigation, then, in one of the wealthiest societies in the world, it is hardly satisfactory and while one might reasonably hope that the extent of the need for legal aid might diminish in the course of time with the more enlightened distribution of resources, there is always likely to be a need for such assistance in a capitalist, property owning democracy in which some people will always do better, and some do worse, than others. If the state creates and maintains the legal process and, in particular, the process of criminal prosecution, it seems that the state is obliged to make legal representation available where it is required, at least to persons who do not choose to litigate but are forced to do so in order to defend proceedings raised against them. It is, perhaps, less obvious that they should be assisted to raise proceedings in the first instance. Formerly, the legal profession itself provided a form of legal aid by way of free representation but this was (a) mostly limited to criminal prosecution, (b) of uncertain quality because it was often delivered by non qualified or training personnel and (c) dependent upon the generosity and profitability of private practitioners and therefore did not really present an equal facility available to all who were in need. The informal provision by the legal profession continues, of course, to fill these gaps where legal aid is not available or where there is simply no practicable alternative and is seen in operation, day and daily in the courts and law offices around the country.
LEGAL AID FOR VOLUNTARY LITIGATION
The question as to whether assistance should be provided to those who cannot afford but nevertheless choose to litigate is partly addressed by the conditional fee or "no win no fee" provision but that is beyond the scope of this article. One argument might be that persons should not be deprived of the vindication of their legal rights by reason of impoverishment. However, these same persons are likely to be deprived of private housing, foreign holidays, designer clothing, high quality nutrition and peace of mind by reason of the same impoverishment and, in order to accept the case for legal aid for voluntary litigation, one would have to be persuaded that the right to litigate was in some way more important than many other goods and services that only money can buy.
ELIGIBILITY
The decision to provide assistance for litigation gives rise to other difficult questions. In a normal market, a falling price causes rising demand and it would be a logical extension of that rule to find that a price which falls to zero, such as the price of litigation where full legal aid is available, would induce an unlimited demand, which is simply impracticable and intolerable to the tax payer. Therefore, the limitation of demand arising from financial limitation and restraint which governs non-assisted persons has to be replaced somehow in the case of assisted persons. A previous option was that eligibility for legal aid for criminal matters was determined judicially and for civil matters by voluntary committees of legal practitioners. The former has been or is about to be phased out as has the latter and both replaced by determination by the same government agency that is responsible for the delivery of the legal aid provision so that we have arrived at a situation in which the persons who are answerable to the executive for the extent and cost of the legal aid provision are responsible also for the determination of individual grants of legal aid. While this appears, on the face of it, to represent a conflict of responsibilities, it is one which has long been resolved in the parallel context of social security provision in which the decisions of the government agency as to eligibility are referable on specific and limited grounds to an independent tribunal service with ultimate resort to the courts.
LEVEL OF PROVISION
Another problem which arises from the provision of legal aid relates to the level of that provision. A self financing litigator makes his choice as to whom to instruct whether it be an expensive firm which may have greater resources or a cheaper firm which may have less resources and, also, whether to instruct counsel as well as a solicitor. The assisted litigator also has restrictions on his choice but not as imposed so much by financial restraint as by legal aid regulation so that he can only instruct a solicitor registered as a legal aid practitioner. Within that restriction, he has freedom of choice but there might be some economy to the public purse if the assisted person's choice of solicitor was limited to a solicitor as appointed by the legal aid authority or, even more so, if restricted to a solicitor employed by the legal aid authority. We have to consider, in other words, whether the state's duty to provide representation is satisfied by the provision of an appropriately qualified person or whether, in addition, the assisted person should have the right to choose his representation, in the same way as a non-assisted person. The extreme case of provision through a solicitor employed by the legal aid authority has the particular difficulty that the most frequent opponent of the assisted litigator is the state itself and it may be objectionable in principle for his own agent to be an employee of that state. Again, special provision might be made for cases in which the litigation is voluntary and in which the opponent is not the state.
FUNDAMENTAL QUESTIONS
This article does not represent the opinions or policy of Council but is intended, however clumsily, to give rise to the following fundamental questions in order to enable members of the Society to contribute their views to assist Council to formulate policies for members involved in the provision of legal aid:-
(a) Should the state provide legal aid to persons who cannot afford their own legal representation?
(b) Should the above provision be limited to non voluntary litigants?
(c) Should any legal aid provision be limited so that litigants, whose opponent is other than the state, may be represented by solicitors employed by the legal aid authority?
(d) Should persons in receipt of legal aid be free to choose their own representation?
(e) Should eligibility for legal aid be determined by the legal aid authority?
(f) Should decisions as to eligibility for legal aid be appeallable to an independent tribunal, with an ultimate appeal to the courts?
(g) Please suggest any other fundamental questions which should be addressed in connection with the provision of legal aid.
Members are invited to submit their views on the above issues for consideration by Council and even one word answers would assist Council to gauge membership views.
Michael Sheridan
Secretary
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