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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 3 Delivery Models

3.1 The delivery mechanisms included in any scheme of publicly funded legal assistance will reflect the purpose of that scheme. Given the range of purposes for civil legal assistance described in Chapter 2, a range of delivery methods may therefore be appropriate. This is because no single delivery mechanism is likely to deliver services that will satisfy all purposes.

3.2 It appears to us that this is less so in relation to criminal legal assistance: the purposes and objectives on the criminal side are somewhat more focused, an inevitable result of the very direct relationship between the criminal justice process and the need for criminal legal assistance. By contrast, the 'need' for civil legal assistance is very much more diffuse. Nevertheless, there is still scope for systems for the delivery of publicly funded criminal legal assistance to vary in terms of their relative ability to deliver on both the 'interests of justice' and 'systemic efficiency' purposes.

3A Delivery models in civil PFLA

The impact of purpose on methods of delivery

3.3 A brief examination of some of the purposes stakeholders state in the civil context and the pursuit of these purposes in practice reveals a relationship between the purpose stated and the design and choice of system for delivery.

Ensuring equal ability to use the law

3.4 The delivery model most closely associated with this purpose is essentially the legal aid system as we know it in Scotland today, with delivery through private practice solicitors, paid on a case by case basis, and access based on certain financial eligibility criteria. The objective is to provide access to an existing system of delivery of legal services for those 'who cannot afford to pay'. The delivery system itself is one by which businesses (private practice solicitors) are paid out of the public purse for work done on behalf of clients who qualify for assistance. The majority of these legal practices (many of which are small) will also do work on behalf of privately paying clients. In the literature this system is described as the ' judicare model'. ¹

3.5 However, as discussed above in paragraphs 2.20 to 2.27, the equal ability to use the law can also be seen to extend beyond access to the courts and to encompass other fora for the resolution of disputes, such as tribunals. Representation in tribunals has not traditionally been the preserve of lawyers, perhaps because legal aid has not generally been available. To the extent that representation is seen as necessary in such proceedings, other delivery methods are therefore brought into focus.

Ensuring equality before the law

3.6 Delivering on the purpose of ensuring equality before the law could see legal advice and representation being provided not only for all those that have a legal dispute with an institution, and especially where this is a public body, but in principle in all instances where the other party has legal representation.

3.7 This argument is invariably refined in practice, for example by saying - 'to ensure equality of arms for those who cannot afford to pay for this themselves'. A different means of delivering on this purpose in practice is by determining that the consideration of procedural equality does not result in the need for representation in certain procedures, as some procedures are in fact intended and designed to be easy to use for unrepresented litigants. On this basis representation in, for example, small claims procedures and most administrative tribunals is not in Scotland funded from the Legal Aid Fund.

3.8 However, in those situations a range of other advisers and lay representation may be available to an individual, for example local authority welfare rights advisers. These advisers are also funded from the public purse, but for a variety of purposes different from that outlined above. Publicly funded advisers may, for example, play a role in alleviating poverty or preventing social exclusion through ensuring that welfare benefit entitlements are realised. These examples highlight the reasons why the funding bodies of PFLA may favour different purposes, choose different delivery systems, and apply different criteria in deciding who should be the beneficiaries of advice.

Providing a means to enforce rights

3.9 This purpose justifies in particular policies and expenditure aimed at enabling citizens to identify their rights, and to become aware of any infringement of those rights. It further justifies the provision of means by which to remedy a situation in which an infringement has occurred.

3.10 Preferred delivery models may therefore have a strong proactive or educational element to them, and may also be linked to other community empowerment activity. Here the delivery of legal advice will, often explicitly, focus more on some areas of the law than others - areas where citizens are given rights and entitlements which are enforceable against public bodies and other institutions. Examples include welfare rights, housing rights, and rights under anti-discrimination legislation such as the Disability Discrimination Act. The models of delivery of legal advice most closely associated with the purpose of enforcing rights are community based law centres (which employ solicitors on a salaried rather than profit-making basis), single issue organisations providing advice (e.g. Shelter) and also local authority advice workers such as welfare rights officers. These delivery methods are also associated with the promotion of social inclusion discussed below.

Contributing towards the promotion of social inclusion

3.11 This purpose, which is closely associated with the previous one, sees the provision of legal advice not primarily as an end in itself, but as a means to a further end: to tackle societal rather than merely legal inequality.

3.12 Delivery of publicly funded legal advice for this purpose will focus on particular groups of people and particular areas of the law, or sometimes focus on particular geographical areas for its delivery. For example there may be (legal) advice for people from ethnic minorities (because they may experience particular problems), there may be a strong focus on advice on debt and money matters. In all cases there is likely to be an emphasis on ensuring advice is available early in the history of a problem, as appropriate help at an early stage can prevent escalation and limit the occurrence of further problems.

3.13 The 'promoting social inclusion' purpose and its focus on 'social welfare law' is not reflected in the traditional pattern of expenditure under civil legal aid, which highlights family law and reparation/damages (although recent research evidence suggests that the resolution of family problems is important in preventing a pattern of further problems associated with social exclusion). There is a clear recognition under this purpose that what people need in many instances is advice rather than assistance in the initiation of legal proceedings. Indeed, good and early advice may mean that proceedings can be avoided. Advice and Assistance (A&A) is available in relation to any matter of law, whether any proceedings are likely to be raised (or defended) or not, and is a useful tool for solicitors seeking to provide legal services to clients with a wide range of problems, not all of which could be taken forward under civil legal aid. Its use is more diverse than that of civil legal aid, with the social welfare areas far more significantly represented, and social welfare law (including asylum) accounting for a growing proportion of A&A spending in Scotland.

3.14 On the other hand, it is this purpose of promoting social inclusion, or variations upon it (anti-poverty strategies, social work objectives of assisting people in need, as part of regeneration initiatives) that has been the driver for much local authority involvement and investment in advice provision.

International comparisons

3.15 A review of models of legal aid and advice delivery on civil matters (available on the Scottish Executive website at www.scotland.gov.uk) in a number of jurisdictions shows that decisions on the types of delivery models adopted in any particular jurisdiction are primarily informed by the purposes that have been set for the system. The literature also shows that no one delivery model has characteristics that can be seen as superior to others - there is no one 'right answer' to service delivery. Instead, it shows that service delivery should be context specific, and that the choice and suitability of the services provided depend upon the desired objectives as well as the specific delivery problems requiring resolution (e.g. geographic issues or problem dominance).

3.16 This review of other systems also reveals that 'mixed models' of delivery are accepted as the most desirable approach. 'Mixed model' in this context is set against the 'judicare model', and means a model of delivery of legal aid services that involves salaried as well as private practice solicitors.

3.17 However, examination of legal aid and advice delivery models in a number of western jurisdictions shows the emergence of 'complex mixed models', involving provision of a variety of service types under the broad ambit of legal aid and advice provision.

3.18 Complex mixed models of service provision are described in the literature for Australia, England and Wales, New Zealand, and Canada. Key shared elements of provision within these complex mixed models include:

• a mix of providers of legal advice services, including both salaried and private practice lawyers, as well as non-lawyers
• a clear role for the not for profit sector and non-lawyers within the complex mixed systems. Providers include community law centres and law clinics, volunteers as advisers, and advisers employed by organisations whose primary business is not the provision of advice
• specialisation among the non-lawyer or not-for-profit sectors in delivery of social welfare law services in most cases
• a tendency for the majority of publicly funded legal services to be provided through the private bar, although this is not always the case. Practice varies as to whether services are provided on the basis of quality assured contracting with the private bar, or case by case funding
• A wide range of service provision going beyond traditional advice and representation, and including the supply of services such as information, mediation, advocacy, law reform work.

3.19 The key conclusion of the international comparisons is that the choice of delivery model must be informed by the purpose of a system of PFLA. Thus it follows that, where a range of purposes is to be pursued, a complex mixed model appears to be the most suitable and responsive model to adopt.

A delivery model for Scotland

The 'complex mixed model'

3.20 At present in Scotland we see a mix of purposes being stated and pursued in the provision of publicly funded legal assistance. This mix of purposes translates itself into a sometimes perplexing array of delivery mechanisms and service provision: we find the entire range from private practice solicitors to employees of single issue advice agencies, from salaried solicitors in law centres to volunteers in generalist agencies and from local authority employees working in one stop shops to welfare rights specialists.

3.21 This could be described as a 'complex mixed model' of delivery. However, it is not planned or managed. It is a complex mixed model not by design or desire, but by accident and history. It is a model of delivery that, though it may in principle be the most suitable model, appears neither to fulfil its potential in Scotland, nor to be consistently purpose driven. The ROLIAPS report ² of the Working Group looking into the possible development of a community legal service for Scotland highlighted shortcomings in delivery, as did the report of the Justice 1 Committee Inquiry into Legal Aid, which expressed concern about the lack of strategic overview in the delivery and planning of legally aided services.

3.22 In Chapter 2 above, at paragraph 2.15 we propose that the future primary purpose of publicly funded legal assistance on civil matters should be to enable the resolution of justiciable problems. We also propose three secondary purposes: promoting the early resolution of legal problems, ensuring effective access to formal mechanisms of dispute resolution and combatting social exclusion.

3.23 Following on from this proposal, we believe that a planned 'complex mixed model' for the provision of publicly funded legal assistance on civil matters is the only model capable of delivering against this complementary range of purposes.

3.24 A 'complex mixed model' of delivery has the ability, through its great variety of providers and its flexibility, to reach a very wide range of advice seekers and address a great variety of needs. The literature indicates that no particular method of delivery or any particular provider is intrinsically better placed to provide publicly funded legal advice than another. Different methods and providers can, in principle, complement each other both in terms of the particular (secondary) purpose they pursue, the people they reach, the type of service they provide, and the subject matter they deal with.

Achieving a 'planned complex mixed model'

3.25 We also believe that in order for a 'complex mixed model' to achieve its full potential of using complementary delivery methods for complementary purposes, a degree of planning and co-ordination of such a model is essential. It may therefore be more accurate to speak about a 'planned complex mixed model'. A full discussion of planning and co-ordination within a complex mixed model can be found at paragraphs 5.71 to 5.75.

3.26 The variety of providers within a complex mixed model is one of its strengths. We believe that this strength can only be used to its full potential if the provision of services to advice seekers is approached on the basis of the 'most appropriate adviser principle'. This principle suggests that legal advice and help should be provided by the adviser best placed to do so on the basis of their skills, knowledge and experience, and the circumstances of the case.

3.27 We recognise however that the great variety of providers within a complex mixed model can also lead to difficulties: in recognising good advice providers, in making easy and appropriate referrals, or in the planning and co-ordinating of services. We therefore believe that a quality system which encompasses the services delivered by the full range of providers is an essential building block of any (planned) complex mixed model. This will also be discussed further in paragraphs 5.76 to 5.86.

3B Delivery models in publicly funded criminal legal assistance

The impact of purpose on methods of delivery

3.28 The link established above between the purpose for publicly funded legal advice and the method of delivery in principle holds true for PFLA on criminal matters as well: the appropriate means of delivery will be determined by what one seeks to achieve.

3.29 The key choice in the delivery of PFLA in criminal matters is in the balance that is to be struck between the needs and the rights of the individual (expressed through the purposes of natural justice, procedural fairness, equality of arms) and the role of publicly funded criminal legal assistance in promoting systemic efficiency.

3.30 These considerations do not necessarily lead in opposite directions: as suggested above, it can be argued that representation in criminal cases by a solicitor contributes to the efficiency of the court system as well as benefiting the accused. The prominence given to one or the other of these purposes can however be argued to have an impact on the choice of preferred delivery model.

3.31 A limiting factor in the choice of any delivery model for PFLA, and for criminal legal assistance in this case, is that it has to operate within the justice system as it finds it. In our legal system, notwithstanding the right to represent oneself, representation in criminal cases by another is required to be by a fully qualified legal practitioner, lay representatives having no rights of audience in the criminal courts. Accordingly, the delivery of publicly funded legal assistance on criminal matters is likely to be almost exclusively delivered by legal practitioners and entirely so where representation is required. However, it is not impossible to conceive of a delivery model where initial legal advice and help on criminal matters (for matters at the less serious end of the scale) is provided by lay advisers or paralegals, and focused on helping people represent themselves.

3.32 At present however providers of criminal PFLA in Scotland are almost invariably fully qualified legal practitioners. The choice we will therefore discuss here is of deciding whether delivery should be through

• salaried solicitors, i.e. some form of public defenders' organisation
• private practitioners paid on a case by case basis (the judicare model)
• the contracting of private practitioners (an adaptation of the judicare model)
• or a mixture of these (the 'mixed model')

3.33 As set out above, different delivery models place differing levels of emphasis on the purpose(s) of a system of PFLA. For example, private practice lawyers remunerated on a case by case basis will have the individual case and the interests of their client as regards the particular charge they face as their primary, if not sole focus.

3.34 In contrast, a public defender-based delivery system may also have secondary objectives aimed at creating efficiencies within the wider criminal justice system. It may also seek to act as a point of access for a holistic approach to the client's wider advice and social needs. To this end, a public defender service may be required to co-ordinate its activities with those of other advisers to assist the client with, for example, employment or addiction problems. This is not to say that a public defender service is 'better' than private practice; we simply recognise that the model offers opportunities for looking beyond the traditional solicitor/client model of criminal practice.

International comparisons

3.35 A review of models of legal aid and advice delivery on criminal matters in a number of jurisdictions shows that these are without exception variations on the themes of salaried provision, judicare provision or mixed model provision.

3.36 The literature shows that much of the debate in relation to provision of publicly funded criminal legal assistance has previously centred around salaried versus judicare provision. However, as is the case in the civil context, the debate has moved beyond this polarised approach to a growing recognition of the need for mixed provision involving both salaried lawyers and the private bar, and a general recognition of the benefits that salaried provision may bring. Some jurisdictions which have traditionally adopted a judicare model of provision are starting to recognise the benefits of supplementing private bar provision with at least some level of salaried lawyer provision, and are introducing mixed provision models.

3.37 Within the mixed models there are differences: some systems have delivery of limited criminal defence services for less serious cases through a public defender organisation, and full defence services for more serious cases through judicare. Other systems may deliver through the direct appointment of defence counsel by the court in serious cases, with only advice (paid through legal aid) being available for minor offences, while others again have a 'pure' mixed system with the same services being in principle available through both delivery structures.

A delivery model for Scotland

3.38 In Chapter 2 we recommended two main purposes for publicly funded criminal legal assistance: the protection of the interests of justice and the promotion of systemic efficiency.

3.39 We have shown above how judicare provision and salaried provision may have differing strengths and focus in relation to these purposes. We therefore believe that the dual aims of publicly funded criminal legal assistance are best delivered through a mixed model incorporating both of these delivery methods.

3.40 There are a number of additional benefits that can be identified in relation to a mixed model:

• It increases the choice available to clients. Although there are many firms dealing with criminal cases, some clients may wish to choose a salaried, public sector lawyer rather than a private sector solicitor
• Salaried provision offers an alternative employment setting that may be attractive to lawyers coming into the profession. This could be a significant positive measure at a time of concern about future shortages of young lawyers joining the criminal bar. We discuss this further when considering supply issues in Chapter 8.
• Through salaried provision it is possible for the public funding body to gain greater insight into criminal practice, the operation of criminal legal aid and the interaction with the criminal justice system as a whole. It also assists in highlighting any problems in the system as and when they emerge
• Salaried provision enables the ongoing benchmarking of the cost and quality of legally aided defence work

3.41 Until very recently, delivery of criminal legal assistance/legal aid in Scotland was through a judicare system only. However, salaried provision was introduced in October 1998 when the pilot Public Defender Solicitors' Office (PDSO) started operating in Edinburgh. A further two PDSO pilots in Inverness and Glasgow have also recently opened.

3.42 Scotland has therefore tentatively begun to move towards a mixed system of delivery for PFLA in criminal matters. The current PDSOs are pilots and fundamental decisions on the wider use of PDSO provision are not expected until an evaluation report on their operation is completed in 2008 ³.

3.43 As is suggested in paragraphs 8.34 to 8.38 below however, the existence of the current PDSOs already provides flexibility to deal with particular issues in the supply of criminal legal assistance. Therefore, pending the overall policy decisions emerging from the results of the evaluation, we see good arguments for retaining this flexibility and to allow for some further development to address specific problems, such as lack of supply in specific areas or training shortages.

3C ALTERNATIVES TO PUBLIC FUNDING

3.44 It is worth repeating here that legal assistance may not always be the best way to achieve the purposes suggested for the system in Chapter 2 at paragraphs 2.15 to 2.31 and 2.43 to 2.46. Nor can it be assumed that all such assistance must be publicly funded: a desire to promote the resolution of legal problems does not necessarily lead to the public funding of all provision or particular services. Alternative routes may be available for funding legal action, such as the use of conditional fee agreements (CFAs) or legal expenses insurance (LEI).

Conditional Fee Agreements

3.45 In speculative or conditional fee agreements the solicitor (or advocate) agrees to act for the client on a 'no-win-no-fee' basis, and the client may have to pay an enhanced fee in the case of success. Various models exist, with complex issues including how to meet the opponent's costs in unsuccessful cases and whether the successful party or the opponent should pay the 'success fee'.

Legal Expenses Insurance

3.46 Legal expenses insurance also comes in various forms, but in principle gives the policyholder the ability to pay their own lawyer, or to use a lawyer employed or designated by the insurance company. Insurance of this type can also indemnify against the opponent's cost if the case should be lost. Legal expenses insurance can be taken out in its own right but is often part of other insurance policies. A very common example of the latter is as part of motor insurance policies, where the policyholder is covered for legal cost arising out of a motoring accident.

3.47 It has not been possible, within the time available for this Strategic Review, to gather sufficient information on the current usage and operation of CFAs or LEI in Scotland to make a full assessment of their potential contribution to the promotion of access to justice. Nor indeed to determine the manner in which they interact with publicly funded legal assistance. We would simply observe at this stage that both speculative/conditional fees and Legal Expenses Insurance offer access to advice and, in particular, court proceedings for those who may otherwise be excluded because they fall outwith the financial limits for publicly funded legal assistance. The operation of both is necessarily governed by commercial considerations however, which often results in limitations on the range of matters on which advice can be provided. It also invariably focuses support on cases with good prospects of success, regardless of any possible wider public interest. As such, the extent to which either can be relied upon by the state to deliver public policy priorities appears limited. Nevertheless, this is an area that merits further investigation and research.

Footnotes

1 Judicare: the provision of legal aid services by solicitors in private practice, paid for by public funds.

2 Review of Legal Information and Advice Provision in Scotland published November 2001

3 Under the terms of s.28A (9a)of the Legal Aid (Scotland) Act 1996 this will require to be laid before 31 ^st December 2008

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