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STRATEGIC REVIEW ON THE DELIVERY OF LEGAL AID, ADVICE AND INFORMATION - REPORT TO MINISTERS AND THE SCOTTISH LEGAL AID BOARD
Chapter 2 The Purpose of Publicly Funded Legal Assistance (PFLA)
2.1 Our discussions with stakeholders and review of literature suggest a range of views as to the purpose of publicly funded legal advice. This was true of both civil and criminal legal assistance, although there was considerably more variation on the civil side. The following section sets out the various possible purposes we have identified and relates them to the broad groupings of stakeholders that subscribe to them.
2A Publicly funded legal assistance on civil matters
The range of purposes
Promoting access to justice
2.2 Many (if not most) of the stakeholders we spoke with identified the promotion of access to justice as a key purpose of publicly funded legal assistance (PFLA). This broad consensus is perhaps unsurprising, given that the notion of access to justice is rooted in the principles of modern democratic political systems: principles of the rule of law and of fundamental equality for all citizens. However, the concepts of both 'justice' and 'access' are somewhat abstract and appear to mean different things to different people. In practice, therefore, most stakeholders identify more specific purposes. These are set out below.
Ensuring equal ability to use the law
2.3 This purpose has traditionally been expressed in relation to the state's role in ensuring that those of limited means should have the same ability to use the law as those with means, centring particularly on the formers' ability to access the courts. While one might argue that one response to this argument would be to make court procedures more accessible to the lay person, the argument tends to accept that effective access to the courts requires effective access to lawyers. Thus one should not be denied access to the courts because one does not have the means to employ a lawyer.
Ensuring equality before the law
2.4 This purpose is closely related to that above, in that it suggests that opposing parties in a dispute should be on an 'equal' footing, or, as others describe it, in an adversarial system of dispute resolution there should be 'equality of arms'.
2.5 This purpose is particularly pertinent and well understood in relation to criminal law, where it is the state that brings actions against the individual. However, the same argument of 'equality of arms' can be said to apply to many civil disputes, and especially those that involve an individual taking on an institution, or more importantly perhaps defending actions raised against them by an institution. Such institutions may be private institutions such as insurance companies, but may often be institutions of the state whether local authorities, government departments or public bodies. In the vast majority of such cases the institution in question will be legally represented, whilst at the same time the outcome of the case may for example affect the individual's livelihood or the security of their home.
Providing a means to enforce rights
2.6 Again closely related to the ability to use the law, publicly funded legal assistance can be seen to provide a means for the enforcement of the rights that a government has granted its citizens. For the rights granted by government to be effective, they must be enforceable. To deny to citizens the means to do so would be illogical, if not immoral. This purpose has been expressed particularly in relation to social and welfare rights. In this context, the purpose of PFLA is not seen simply as a way of assisting individuals in securing their rights to, for example, social security benefits, decent public housing or fair employment treatment: on a more structural level, PFLA is here seen as a tool to promote substantive equality and social justice.
Promoting social inclusion
2.7 A variation on the 'enforcement of rights' theme, it has also been suggested that PFLA is particularly important in resolving problems that either contribute towards social exclusion or disproportionately affect those who may be either socially excluded or considered at risk of social exclusion. Although there is no universally agreed definition of social exclusion, the term is used here to describe a situation in which people or areas suffer from a combination of linked problems such as unemployment, skills shortage, low incomes, poor housing, high crime, bad health and family breakdown. The 'social inclusion' argument sees the purpose of PFLA as to help people resolve these often inter-linked problems when they occur and, indeed, prevent the occurrence of 'knock-on' problems wherever possible.
Facilitating early intervention
2.8 A further purpose identified for PFLA is to allow for early intervention, helping ensure that problems are resolved without recourse to formal mechanisms of dispute resolution. This, it is suggested, has advantages for all concerned: the individual has their problem resolved early, as does the 'other side', if there is one; the formal civil justice system benefits from seeing fewer cases; the taxpayer benefits from funding fewer long-running cases; society as a whole benefits as problems do not escalate (an idea closely related to the social inclusion argument).
Securing a fiscal benefit for the funding body
2.9 A final suggested purpose of publicly funded legal assistance is to provide a fiscal or economic benefit to the body providing the funding. This can be seen to apply particularly to (legal) advice on debt, money and benefit problems, funded by local authorities. This, the argument goes, results in income maximisation for those receiving the advice and, in turn, less debt owed to the authority (rent and council tax, for example) and less money spent on recovering the debt or repossessing the heritable property. The 'client financial gain' resulting from the advice may not only result in less debt owed, but is also seen as an economic benefit to the area 1.
2.10 A further aspect of this purpose sits alongside that of early intervention: by assisting people to resolve problems (and especially to resolve problems early), the provision of advice services prevents the escalation of these problems, reducing the need for remedial action by the local authority further down the line. There is also a clear link here to the discussion above on social exclusion.
Stakeholder views
2.11 In Scotland, stakeholders and providers describe a mix of purposes for the provision of Publicly Funded Legal Assistance. No single one of the purposes described above came through most strongly, but it seems possible to group the purposes expressed and pursued into two main strands, which come together under the primary purpose of ensuring access to justice:
- ensuring equality of access to the law and the legal system, and an equal ability to use it
- a broader purpose of ensuring fairness and contributing to social inclusion by advising on rights and remedies, assisting with problem resolution and by using the law to bring about social change
2.12 The first of these finds support and expression amongst all stakeholders. However, the second is much more strongly expressed and supported by stakeholders from the voluntary sector, the local authority sector and law centres
2.13 With the clear risk of over-simplifying the rich picture, it may be said that the first set of purposes are the combined purposes given to and primarily pursued by the legal aid system in Scotland, and within that especially civil legal aid (more so than Advice and Assistance). The second set reflects the combined purposes primarily pursued by the wide range of advice agencies and local authority employed advisers, law centres and single-issue organisations. Some private practice solicitor activity under Advice and Assistance can also be seen in this light. This second set of purposes is also the main driver behind calls for a 'community legal service' for Scotland.
2.14 In the course of our discussions with stakeholders on the purpose of publicly funded legal assistance the question of whether or not this should, in some circumstances, be available for organisations or representative bodies was occasionally raised. The issues that arise from such a question are very complex, and range across issues of principle (would this apply equally to civil and criminal matters?) of definition (which bodies? how constituted?) and of practicality (how to test financial eligibility, for example?), and are inextricably linked with legal issues outwith the scope of this Review, and indeed legal aid policy generally. We have, therefore, focused in this Strategic Review on the purpose, prioritisation and delivery of publicly funded legal assistance for natural persons.
Conclusions on the purpose of Publicly Funded Civil Legal Assistance
Primary Purpose: To enable the resolution of 'justiciable problems'
2.15 The most widely stated primary purpose of publicly funded legal assistance emerging from our discussions with stakeholders is the promotion of access to justice. We do not see civil PFLA as ensuring access to justice, as this is dependent on many other factors, not all of which can be addressed through the public funding of legal assistance. Nevertheless, we consider the contribution of such assistance to be crucial: without it, the reality of access to justice becomes very much harder to achieve.
2.16 However, as discussed above, 'access to justice' is something of an abstract concept. It is therefore of relatively limited use in a strategic context. In our view, promoting access to justice means more than promoting access to, or participation in, the formal justice system. Instead, the promotion of access to justice suggests to us the enhancement of an individual's ability to resolve the justiciable problems they may face, including through access to relevant services where these are needed to assist them in doing so. Thus, by way of clarification of the meaning of access to justice, we propose that the primary purpose of publicly funded legal assistance on civil matters should be to enable the resolution of justiciable problems.
Secondary Purposes
2.17 We see three secondary purposes flowing from and amplifying this primary purpose:
- Promoting the early resolution of legal problems
- Promoting effective access to formal mechanisms of dispute resolution
- Promoting social inclusion
Promoting the early resolution of legal problems
2.18 The ability of legal assistance to facilitate the early resolution of problems provides a strong argument for its public funding. As discussed above, there are clear and considerable advantages in resolving problems before they escalate into either more serious problems or entrenched disputes requiring more expensive methods of resolution. Early resolution can also play a role in preventing social exclusion, as is discussed below.
2.19 There are, of course, other ways of securing early resolution: it should not be assumed that advice will always be needed to help resolve a problem. In many instances, it may be more appropriate for the individual affected to contact the source of the problem, whether this be a landlord in relation to a housing disrepair problem, a creditor in relation to a debt, a shop in relation to a consumer problem etc. Recent research evidence 2 suggests that many people do in fact attempt to resolve their problems themselves and many do so successfully. Nevertheless, for those who are unable to do so, it is important that early advice is available. In other words, where it is important that a problem is resolved, the one option that is not desirable is for the individual to feel unable to do anything at all.
Promoting effective access to formal mechanisms of dispute resolution
2.20 We recognise that not all problems can be resolved at an early stage and that, even with the most comprehensive access to legal advice, some will escalate into disputes that have to be resolved via the mechanisms provided for this purpose by the state. Where this is the case, it is fundamental that parties to a dispute do not forego their legal and procedural rights through lack of effective access to these mechanisms. This purpose goes beyond the traditional argument for legal aid that by paying for lawyers for those who do not have the means to do so themselves, one is ensuring an equal ability to use the law, by which is normally meant the courts. The purpose we have set out here differs in two main ways.
2.21 Firstly, we would suggest that the use of the law in this sense cannot be assumed to apply only to courts. The state has developed a number of means by which disputes can be resolved; the 'effective access' argument must apply to each of these. Perhaps most significant in this regard are tribunals. However, as there are no reserved rights of audience before tribunals, there can be no automatic link between access to tribunals and access to lawyers. The question then becomes whether effective access requires third party assistance, potentially including representation, or whether the procedure adopted by any given tribunal enables individuals to access these mechanisms of dispute resolution without the need for representation. If assistance is deemed necessary, one must then ask whether that assistance should be provided by a lawyer or whether it might (equally or preferably) be provided by some other adviser.
2.22 Thus the promotion of effective access to formal mechanisms of dispute resolution goes wider than either access to the courts or access to lawyers. It suggests instead that, in principle, public funding should be available wherever legal assistance is required for access to formal dispute resolution, with that assistance to be provided by the adviser most appropriate to the individual's circumstances and the particular forum.
2.23 The second main difference between the promotion of effective access and ensuring an equal ability to use the law stems from the concept of 'equal ability' itself. The latter concept involves a comparison of the position of the person of limited means with that of the person with means. Implicit in this comparison is some limitation on the circumstances in which the former should have access to public funding. This has traditionally been read to extend only to those situations in which the 'reasonable man of means' would choose to spend his money on a lawyer.
2.24 This is problematic for a number of reasons. At one level, there is some debate as to what constitutes 'limited means'. Is there an objective point at which means are considered limited, or is it a relative concept i.e. can it be taken to imply means that are insufficient to cover the costs of the action being considered? By extension, there is also room for doubt as to whether the comparator should be, as previously suggested by the Scottish Office, the person with moderate rather than abundant means. This is particularly relevant in relation to certain classes of court case that may be beyond the means of all but the wealthiest of individuals.
2.25 The 'reasonable man of means' concept is also problematic in the context of effective access to mechanisms of dispute resolution other than the courts. The reasonable man of means is perhaps unlikely to find himself requiring assistance in, for example, a social security tribunal. In addition, many advice services (other than those provided by private lawyers) do not involve a charge to the end user in any event.
2.26 None of this is to say that consideration of the resources of the individual is irrelevant. However, for the reasons outlined above, we do not think that the purpose of PFLA should itself be based on the concept of 'equal ability'. Rather, we return to the question of the individual's resources below when considering prioritisation and targeting of services and provision.
2.27 As with early resolution arguments, it is important to stress from the outset that PFLA can only ever promote effective access; it cannot ensure it. Ensuring effective access is an issue for the civil justice system as a whole. PFLA is a key strategic tool in this task, but cannot be regarded as a panacea.
Promoting social inclusion
2.28 There are other, perhaps more direct, strategies for tackling social exclusion than through providing advice on justiciable problems. However, the research evidence firmly points towards the important contribution that legal and advice services can make. Of particular relevance in this respect are the findings of the Paths to Justice and Paths to Justice Scotland studies 3 and subsequent work in both Scotland and England and Wales. These studies focus on the experience of justiciable problems among the general population and the action taken to resolve such problems 4.
2.29 The studies give consistent results, and the Legal Services Research Centre's national periodic survey in particular has been analysed in considerable depth. This analysis describes the vulnerability of particular population groups to the experience of justiciable problems, and the way in which certain justiciable problems act as 'triggers' for others, or tend to occur in combination. The resulting 'clusters and cascades' of problems are typical of the circumstances which might be said to contribute to social exclusion. The experience of these problems by already vulnerable people can be seen to lead to or exacerbate existing social, economic and health problems. 5 The role of advice in resolving these problems - and particularly in preventing escalation or the triggering of further problems - can therefore be seen to have far reaching implications. It follows from this that provision of and investment in advice can contribute to tackling and preventing inequality and social exclusion.
2.30 By describing the promotion of social inclusion as one of the secondary purposes of publicly funded legal advice, we are not suggesting either that PFLA should focus exclusively on 'social welfare' problems, or should only be available to 'at risk' groups. These are questions of prioritisation and targeting and will be considered in paragraph 4.45 What we are suggesting is that, by making the connection between social inclusion and PFLA at this fundamental level, the role of PFLA can be seen to contribute towards, and indeed be actively included as part of a broad but co-ordinated strategy to promote social inclusion.
2.31 PFLA is not and cannot be the only or primary route to promoting social inclusion though the link between the two should not be underestimated It is one which should be recognised across government and taken into account in the development of policy, both on PFLA itself and more widely in promoting social inclusion. Only by explicitly recognising the promotion of social inclusion as one of PFLA's own purposes do we believe that this can be achieved.
2B Publicly funded legal assistance on criminal matters
2.32 Our exploration of the rationale for publicly funded legal assistance in criminal matters suggests a broader consensus than we found for civil matters. In part this appears to stem from the long history of representation in Scottish criminal proceedings (although not necessarily a recognition of a right to free representation). The current system of legal aid is in many respects a contemporary expression of what is said to be one of the oldest traditions in Scots law, namely that accused persons (particularly those facing serious charges) should not go unrepresented. Nevertheless, there are a number of specific arguments that might have a bearing on the design of a scheme for publicly funded legal assistance.
The range of purposes
Obligations under the European Convention on Human Rights
2.33 Taking a pragmatic (if somewhat narrow) approach, one could argue that the purpose of publicly funded criminal legal assistance is to ensure the UK's compliance with its obligations under Article 6(3)(c) of the European Convention on Human Rights (ECHR). This provides that:
"everyone charged with a criminal offence has the following minimum rights… to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".
The interests of justice
2.34 The language of Article 6 is directly reflected in the current system of provision of criminal legal assistance in Scotland: the 'interests of justice' test is applied by the Scottish Legal Aid Board in determining the availability of summary criminal legal aid. Regardless of the ECHR obligation, there is considerable strength in the principle that the interests of justice will, in at least some situations, require the state-funded provision of legal assistance.
2.35 Criminal legal assistance can be seen to serve the interests of justice in two ways. At one level, it ensures that the interests of the individual accused are protected and reduces the potential for miscarriages of justice. However, by helping ensure that 'justice is both done and is seen to be done', publicly funded criminal legal assistance can also be seen as a key component in maintaining the legitimacy of and public confidence in the criminal justice system and, at an even more fundamental level, the rule of law.
Natural justice/Procedural fairness/Equality of arms
2.36 As a variation on the interests of justice theme, it can be argued to be a requirement of natural justice that the state ensures that people are able to defend themselves when they are being investigated by the police or prosecuted in court.
2.37 Scotland has a criminal justice system in which the accused is presumed innocent until proven guilty. In this context, representation of the accused and the role of the defence in putting the prosecution to the test are regarded as crucial in ensuring an equality of arms: in an adversarial process the state, bringing the prosecution, is always represented and there is perceived to be an imbalance of power between the accused and the prosecuting state.
2.38 The Scottish criminal legal aid system both satisfies the ECHR test and can be seen to meet the requirements of procedural fairness and equality of arms. However, both the ECHR test and those in the Scottish legal aid legislation make clear that state-funded legal assistance will not be given in all cases. In Scotland there are limitations related to the client's ability to pay for their own defence and, in summary cases, the extent to which representation is needed to satisfy the interests of justice (there is no merits test in solemn cases). These tests operate regardless of the fact that a state-funded lawyer will feature in every case prosecuted. In this sense, there appear to be some limits on the extent to which the Scottish system and other systems satisfying the ECHR test, deliver unqualified 'equality of arms' in all circumstances. The rationale for the imposition of such limitations is therefore an important question in designing a system for publicly funded criminal legal assistance.
Promotion of systemic efficiency
2.39 Alongside protecting the interests of the accused and helping maintain the legitimacy of the criminal justice system, it has also been suggested that criminal legal assistance plays a key role in promoting the efficiency of that system. The provision of appropriate legal representation is seen to 'oil the machinery of the courts'. Thus it has been argued that "legal representation assists not only individuals but also the Courts by the presentation of information in a concise, relevant and intelligible way". and that without legal representation "Judges will require to guide and instruct unrepresented accused in their defence and valuable Court time will be expended on this exercise" 6.
2.40 There is considerable strength in this argument in relation to the efficient progress of individual procedural hearings and, perhaps most importantly, trial diets. However, the role of legal assistance in this regard has the potential to extend beyond the benefits of providing representation, particularly given the minority of cases that actually proceed to trial. It is argued that the structure of the legal aid system itself, and the manner in which it either encourages or discourages certain behaviours, can also be seen to have a profound impact on how individual cases proceed through the criminal justice system.
2.41 Similar arguments can of course be extended to any proceedings that are adversarial in nature and so could also be applied to civil cases. However, we believe that the greater variety of actors in civil disputes, and in particular the less significant contribution of PFLA in supporting actions in the civil justice system as compared with criminal actions, makes the potential impact of PFLA on the effectiveness of the wider civil justice system less prominent.
2.42 This issue is explored in more depth when looking at the drivers of expenditure within legal aid in paragraphs 7.3 to 7.23. Suffice at this stage to note that the 'systemic efficiency' purpose elevates legal aid to the position of a key institutional player, in continuous inter-action with the wider criminal justice system and contributing to the better operation of this system, as well as promoting the needs of the individual accused. This has important implications for the design of the legal aid system itself.
Conclusions on the purpose of publicly funded criminal legal assistance
2.43 Our investigations into the rationale for publicly funded legal assistance in criminal matters suggest a broader consensus amongst stakeholders than we found for civil matters. Given the narrower range of purposes identified and greater degree of consensus, we believe it is possible to identify two main purposes for publicly funded criminal legal assistance.
- Protecting the interests of justice
- Promotion of systemic efficiency
Protecting the interests of justice
2.44 There is a strong case for stating 'protecting the interests of justice' as one of these purposes. We believe that this should be read as protecting both the interests and rights of the individual accused as well as the interest of the criminal justice system, by reducing the potential for miscarriages of justice and thus helping to maintain the legitimacy of the system.
Promotion of systemic efficiency
2.45 We believe that the promotion of systemic efficiency should be stated as a further purpose. This purpose is not only relevant in relation to individual procedural hearings, where legal representation may facilitate efficient hearing and informed decision making, but also, and importantly, where the structure and administration of publicly funded criminal legal assistance impact on the functioning of the criminal justice system as a whole. Thus, while considerations of systemic efficiency may have a place in the design of system for civil PFLA, we feel that it is one of the key drivers for having a system of criminal PFLA in the first place.
2.46 It is therefore essential that the objectives of our system for publicly funded criminal legal assistance are aligned with the objectives for the criminal justice system as a whole, and that the system is designed, and when necessary adapted and changed, to achieve this. It follows that when significant change occurs in the criminal justice system, corresponding change in the criminal legal aid system is inevitable.
Footnotes
1 Where income maximisation is a result of, for example, the receipt of a previously unclaimed social security benefit, the impact on debts owed to the local authority is of course simply a transfer of resource from one public sector budget to another.
2 'Paths to Justice Scotland'. Hazel Genn and Alan Paterson, 2001.
3 See 'Paths to Justice Scotland' - Hazel Genn and Alan Paterson, 2001. The Scottish Executive has undertaken similar work (Microcosm study, 2001 and Needs assessment for pilot partnerships, published in May 2004). The Legal Services Research Centre (LSRC) in London has also undertaken a national periodic survey of justiciable problems in England and Wales on behalf of the Legal Services Commission. This study is the largest and most detailed of this kind.
4 Broadly speaking, this phrase is used to refer to problems that raise a legal issue or have a legal remedy or that, if not resolved earlier, could ultimately result in court action or some other form of legal procedure (e.g. tribunals) being initiated.
5 For the full analysis see Causes of action: Civil law and Social Justice - Pascoe Pleasance and Alexy Buck, 2004
6 Law Society of Scotland response to Scottish Home and Health Department Consultation Paper (on Legal Aid), 1985.
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