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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 10 - Relationships between the Scottish Executive and the Scottish Legal Aid Board

10.1 Delivering the ambitious agenda set out in this report will require a change in the way in which the Scottish Executive operates in respect of legal aid on the one hand, and the Scottish Legal Aid Board on the other. It will also require improvements in the way communications flow between the two bodies. The key issues that need to be taken into account in redefining roles and relationships are set out in this Chapter.

10A INTRODUCTION

10.2 The Scottish Legal Aid Board is an Executive Non-Departmental Public Body (NDPB). The functions of SLAB under the 1986 Act are, broadly:

• advising Scottish Ministers on the current operation and development of legal aid provision
• investigating different ways of delivering a legal aid service
• developing operational plans and procedures, including e-business, to improve the delivery and administration of legal aid
• considering applications for civil and, where appropriate, criminal legal aid and making decisions on whether to grant or refuse these
• examining accounts sent in by solicitors and advocates for all legal aid work, and paying them the appropriate amount for the work they have done
• collecting expenses and contributions
• registering firms and solicitors under the Code of Practice in relation to criminal legal assistance and monitoring their on-going compliance
• investigating and pursuing abuse of legal aid
• administering the Legal Aid Fund and managing its grant-in-aid.
• providing the necessary financial, operational, IT and other support functions for the effective operation of the legal aid system. This includes providing management and trend information on legal aid for its own and the Department's use.

10.3 The Scottish Executive Justice Department is responsible for the "sponsorship" of the Scottish Legal Aid Board. Within the Justice Department, the sponsor teams play a crucial role in facilitating the delivery of Ministerial aims and objectives through effective communication with NDPBs, as well as undertaking formal duties connected with sponsorship. The Access to Justice Division of the Justice Department has overall responsibility for sponsoring the Scottish Legal Aid Board and on a day-to-day basis sponsorship functions are carried out by staff in the Legal Aid Policy Team. The sponsorship function encompasses, amongst other things:

• the appointment of Board members
• the pay remit of staff
• acting as a conduit for the relationship between the Scottish Legal Aid Board and Scottish Ministers
• general oversight of the operation and planning of SLAB
• in respect of legal aid, responsibility for policy on legal aid Regulations under the 1986 Act, which in effect means lead responsibility for taking forward amendments to Regulations in order to reflect changes in policy and administration of legal aid
• responsibility for managing the Department's legal aid budget, consisting of the Legal Aid Fund (currently 150m) and the Scottish Legal Aid Board's grant-in-aid (currently 10.2m).

10.4 While the Board must have regard to guidance from Ministers as to the exercise of its functions, Ministers may not give guidance on the consideration of applications for legal aid. This is in order to ensure that legal aid is considered to be outwith the political process which is a key reason why SLAB is a Non-Departmental Public Body operating at arm's length from the Scottish Executive.

10B HISTORIC PERSPECTIVE AND CONTEXT

10.5 Since its inception the Board was seen, and saw itself, as being primarily concerned with the management of the process of the administration of legal aid, in other words the processing of applications and the payment of accounts. Historically the Board did not adopt a strategic overview of its position in the overall justice system and its interactions with the Justice Department focused on the sponsorship role and the administration of the Legal Aid Fund.

10.6 From the Department's perspective legal aid has traditionally been given little priority in policy terms and has been regarded as a self-contained policy and administrative function. Only in 2001, with the establishment of the Access to Justice Division of which legal aid forms a key part, has legal aid policy grown in importance within the Department. This Division took on responsibility for work on the development of a 'community legal service' for Scotland. At the same time, the Justice Department funded two new posts in SLAB to assist in taking this work forward. The importance of legal aid, and legal aid policy has been reinforced in 2003-04 because of the significant increases in the demand-led Legal Aid Fund. These increases have largely been due to the increase in volume in the criminal justice system as well as other pressures ¹.

10.7 Despite the historic lack of strategic positioning of the work of the Scottish Legal Aid Board, it does interact with many parts of the overall justice system, and has a number of potential influences. For example:

• it controls a significant amount of public expenditure (with the Justice Department)
• it has the capacity to increase access to justice in line with Scottish Executive policy
• it has a particular insight into the manner in which different parts of the justice system interact
• it can take a view on the efficiency of aspects of the justice system and any changes to it
• it has considerable influence over the behaviour and attitudes of members of the wider legal profession.

10.8 In addition, the context within which the Board and the Scottish Executive are operating are subject to significant change:

• rapid and significant change in the justice system at large
• significant amounts of new legislation across the Executive are increasing demands on the legal aid system
• stresses arising from the high financial pressures on the Fund
• Ministers expecting a high level of partnership and openness
• the stated policy intention of the Minister for Justice to promote access to justice primarily in the civil area, although it is in the criminal cases that the majority of expenditure arises
• the Board has developed a number of new policy areas in relation to the innovative provision of advice services (such as the Public Defence Solicitors' Office and the promotion of pilot partnerships and Part V projects in the context of 'community legal service' developments).

10C CHANGING ROLES AND REQUIREMENTS

Scottish Legal Aid Board

10.9 Since the late 1990s the Scottish Legal Aid Board has developed a more proactive management and policy development culture and has increasingly endeavoured to engage other players in the justice system, such as the Crown Office, the Scottish Court Service, the Judiciary and others. The Scottish Legal Aid Board has also significantly improved its relationships with other parts of the system, including the Law Society of Scotland and the Faculty of Advocates, as well as not-for-profit providers of legal advice.

10.10 The Board has produced a strategic vision of its duties as they might look in 2006 and is working towards achieving this vision. It has established a research and policy function (in part with funding and support from the Department), to help develop the vision and has aligned its human resources, ICT and communications strategies with the vision. It has also increasingly provided advice to Ministers on legal aid issues. Over the past three or four years it has reviewed most of its policies on the operation of legal aid and provided revised and enhanced guidance to the legal profession.

10.11 The Board has set in motion a series of changes to allow it to adapt the way it is working, both in order to improve the effectiveness of the way it administers the legal aid system in line with increasingly tight corporate targets, and to support the development of policy in innovative areas. The Board has taken this forward through an incremental approach within the constraints of the current legislative regime for legal aid, and has sought clarity from the Justice Department on its strategic vision for the development of the justice system to put this work in an appropriate policy context.

Staff structure and organisation of SLAB

10.12 The current structure of senior staff comprises the Chief Executive (and Accountable Officer) and three Directors responsible for Legal Services and Applications, Corporate Services and Accounts (legal aid accounts), and Audit, Compliance, Investigations and Quality, who are responsible for the executive management and operation of the organisation. As set out in its Vision Statement and HR Strategy the Board plans to reduce its numbers of fairly junior administration staff as its investment in new technology comes on stream (Legal Aid On-Line).

10.13 SLAB has increased the number and use of qualified solicitors in its decision making processes as part of its drive for more accuracy and better service for applicants and their legal representatives. It expects to further develop its policy, research and analytical capability and to increase its capacity for partnership working. The Board intends to review the size and structure of its staffing when the outcomes of this Strategic Review are agreed. There will be a need to consider the additional grant-in-aid resources required by SLAB to properly deliver the agreed outcomes of this report, especially where it is given new or expanded duties and responsibilities.

Justice Department requirements

10.14 The Legal Aid Policy Team within the Access to Justice Division plays a crucial role in acting as the interface between the Department and the Scottish Legal Aid Board in respect of overall Ministerial policy to improve access to justice. As sponsor of the Board it is responsible for ensuring that the financial and management frameworks are in place. This involves close working with Finance colleagues in the Executive and promoting and monitoring an effective corporate planning and reporting system with the Board.

10.15 At the same time, as promoter of policy, the Branch has to ensure that Ministers are kept abreast of strategic and operational issues on legal aid, translate Ministerial wishes into action, gather intelligence on and interpret policies from other parts of the Executive, and interpret feedback on the operation of the legal aid scheme from the Board. As a result of the nature of legal aid legislation and the requirement to keep it up-to-date and modernise it in line with Partnership Agreement commitments, the translation of policy into action involves a significant amount of time devoted to the handling of new and revised Regulations in partnership with the Board and the Office of the Solicitor to the Scottish Executive.

10.16 Carrying out these various functions effectively requires a combination of financial, management, corporate planning and legal and technical expertise as well as the ability to maintain a strategic overview of the direction of policy in the way in which the various aspects fit together. In addition, the Legal Aid Policy Team and its management structure need to act as an effective facilitator of communications between the Board and Ministers, other parts of the Justice Department, and other relevant parts of the Executive (e.g. the Crown Office).

10.17 It is clear that in the past, due to a lack of appropriate resources and a disconnection between the Legal Aid Policy Team and the policy process the Team has been less effective than it might be in carrying out this range of functions. It is also due to the fact that the Scottish Executive has not invested in the development of skills in legal aid policy and legislation. It will be essential when taking forward the agenda set out in this Review to restructure, re-skill and re-resource the Team so that it can carry out all the necessary functions effectively.

The Executive and the Board working together

10.18 In order to move forward on the agenda set out in this Review, and to ensure more effective working between the Executive and the Board, three separate areas have been identified in which specific issues need further consideration or where specific recommendations can be made.

Regulatory issues

10.19 The nature of legal aid policy requires regular and time-consuming updating of the Regulations, which in itself adds further layers of complexity to the primary legislation. Often the updating is relatively routine such as changes to eligibility levels, rather than involving substantial legislative drafting to reflect significant policy change.

10.20 It will be important, while proposals for legislative change are considered as a result of this Review, to consider the case for turning basic regulation into an administrative rather than a legislative task. If it becomes administrative, it will be important to consider the way in which such a task could be carried out by the Board under an appropriate form of governance which protects the public interest in such issues. The legally trained resource at the Board is greater than that in the Department and more in touch with the administrative impacts of regulatory change. Such a move from regulation to administration will avoid the duplication in the system at present and should allow the Legal Aid Policy Team to focus more on strategic, budgetary management and sponsorship issues. A key element in terms of governance will be the protocols which can support such an approach.

Managing the Legal Aid Fund

10.21 At present the responsibility for managing the Fund under the legislation and the Financial Memorandum is split between the Legal Aid Policy Team and the Board: the Policy Team is responsible for budgetary management of the Fund within the Justice Department, and the Board for its administration.

10.22 Given the way in which the Fund operates as a demand-led budget, it is essential that there is effective joint working between the Legal Aid Policy Team and the Board to provide more effective forecasting of expenditure and management over time (building on the Board's work in trends analysis).

10.23 The key issue to be considered in this context is the extent to which it will be sensible to transfer responsibility for the detail of budgetary management to the Board. Careful consideration of the governance and protocols required will be necessary to ensure that this can be done in the context of overall Justice Department budgetary policy and accountability to the Parliament and within the context of a demand led budget. It will also be essential to maintain the proper independence of the Board for decisions on applications and legal aid accounts.

Communications

10.24 Communications need to be improved in a number of areas, and in particular in respect of senior level horizon scanning and understanding (at Group Head, Chairman, Chief Executive and Division Head level) and in respect of senior level operational and strategic understanding (at Chief Executive/Division Head level, involving the Head of the Legal Aid Policy Team).

10.25 While recognising the Board's operational independence, a shared view of strategic business and Departmental policy needs to be developed at Board level in order for it to operate within a clear and understandable context and in turn to ensure that the Department's policy is informed by the Board's contribution on strategy. Regular exchanges between Board staff and Legal Aid Policy Team staff on business planning and on financial, regulatory, legislative and developmental issues.

10.26 To improve co-ordination of activity and forward planning, increased interaction needs to be facilitated between the Board, other parts of the Justice Department and the rest of the Executive, and especially Criminal Justice Group (including criminal justice research), Justice Finance and Central Finance functions and the Office of the Solicitor to the Scottish Executive.

10.27 The current work on staff interchange and management induction between Access to Justice Division and SLAB (such as recent secondment of a solicitor from SLAB to the Division) needs to be built upon. It should also be aimed in part at building up a stronger understanding between the two bodies and a mutual recognition of respective pressures and circumstances.

The role of the Legal Aid Policy Team

10.28 A further key point which must be addressed is the need to adopt a more strategic approach to the way in which the Legal Aid Policy Team acts as the interface between the Scottish Legal Aid Board, Access to Justice Division and the rest of the Executive. At present there is a lot of toing and froing, rethinking and duplication of activity in respect of Regulations and other functions.

Facilitative role

10.29 Over time it will be important to move to a more facilitative function for the Legal Aid Policy Team in which it should see its role as ensuring a joining up of the work of the Board and the Department in order to take forward the agreed legal aid policy agenda. It should seek to do this by making the right connections such as:

• acting as an advocate within the Department of the work of the Scottish Legal Aid Board, seeking opportunities to ensure that the work and role of the Board is understood and its potential contribution optimised
• seeking positive collaboration from other parts of the Executive on the role the Scottish Legal Aid Board can play
• offering constructive feedback on the work of the Scottish Legal Aid Board where this is appropriate
• using the Board as a resource for research, ideas and views, particularly on innovative policies coming from other parts of the Executive
• collaborating effectively on research issues, building on current good joint working between the Civil Justice Research Team and extending this into the criminal justice area
• ensuring in respect of regulation that the role of the Legal Aid Policy Team is to facilitate an effective outcome
• facilitating access by the Board to other parts of the Executive
• identifying new legislative proposals within the Executive and their influence on legal aid and ensuring that the Access to Justice Division and the Scottish Legal Aid Board can play a role in influencing these in line with legal aid policy
• receiving and disseminating feedback from the Board on the operation of the Justice Department and the justice system (as it impacts on the Board and legal aid)
• making best use of the information, policy and operational advice to Ministers on the operation of the justice system and legal aid provided by the Board
• working with other players in the justice system and helping them to understand their engagement with legal aid
• understanding and interpreting changes in sponsorship/public body functions
• co-ordinating media activity where it impacts on both the Board and Ministers
• acting as the initial point of reference for the Departmental Accountable Officer and providing him with the required support
• working closely with the Board on trends analysis to improve financial forecasting
• working closely with the Board on legal aid efficiency measures in line with the Minister's Value for Money initiative.

Sponsorship role

10.30 In relation to sponsorship the key tasks to be carried out by the Legal Aid Policy Team to improve the sponsorship of the Board include the following:

• updating and agreeing the Financial Memorandum to reflect the outcomes of the Review
• more effective co-ordination of Business Plans between the Access to Justice Division and the Board to facilitate resource and operational planning for both, and to coordinate policy planning
• clarity on timetabling and the purpose of formal meetings, including the use and dissemination of regular Quarterly Reports from the Board to the Department
• clearer definitions of respective roles and responsibilities in protocols, such as
• agreement on the nature and the extent of the Board's duty to advise Ministers
• agreement on the handling of press enquiries and communication strategies
• agreement on sharing of information in respect of submissions to Parliament
• a statement of respective roles and responsibilities in the handling of regulations,
• the extent of, and limits to, Ministerial powers of direction in terms of sponsorship and strategy, excluding decision making on individual applications

It will be important that these protocols do not impinge on the Board's proper independence.

Relations with central finance and public body policy

10.31 A further area that will need to be addressed is the way in which the Legal Aid Policy Team deals with central finance and with public body policy areas in respect of the way in which overall policy in these areas impacts upon the Scottish Legal Aid Board.

10.32 Historically there has been a lack of understanding in the Legal Aid Policy Team on the one hand about the reasons for central policy changes and on the other hand a difficulty in understanding at the centre of the way in which the Board operates and its own relationships with Audit Scotland.

10.33 To take this forward the Head of Division, acting in consultation with the JD Finance Team and the Accountable Officer, should review recent contacts between the Board and the central finance parts of the Executive and make recommendations, in discussion with the Chief Executive and Accountable Officer of the Board, on how communication in this area can be improved for the future.

10D THE BOARD

Composition of the Board

10.34 The Board's governing legislation requires there to be between 11 and 15 Members. This must include two members of the Law Society of Scotland, two members of the Faculty of Advocates and one other having knowledge and experience of the courts. At present there are 12 Board members, of which six are legally qualified - three solicitors, two advocates (both QCs) and a Sheriff. This represents a higher proportion than in the past, particularly when the Board had 14 members. There are currently six non-legally qualified members, including the Chairman. Their backgrounds include a wide range of business experience, experience of serving on the Boards of other public bodies, experience of the not for profit sector, and of local government.

10.35 Achieving an appropriate mixture of legally qualified and non legally qualified members is important to the effective working of the Board. Legally qualified members bring direct knowledge and experience of the courts and the workings of legal aid in practice. The non-lawyers provide a mixture of views and experience that help shape the strategic direction of the Board and ensure high standards of corporate governance.

10.36 If the recommendations elsewhere in this Review for SLAB to take on wider powers are accepted there will be a need to review the composition of the Board. If, for example, the Board takes on a broader role in the development and delivery of legal services by non-lawyers there will be a need to have more members from the not-for-profit sector, while maintaining a sufficient mix of legal, managerial and governance skills.

10.37 In its plans for 2004/05 SLAB has indicated its intention to set up advisory groups to provide it with direct input from a range of stakeholders. It is intended that these advisory groups will include legal aid practitioners, others with involvement in the courts and the justice system, and representatives of user groups and the advice sector. This development will help SLAB to identify issues that it may need to consider as well as providing a useful sounding board for new ideas and initiatives.

10.38 Depending on the outcomes of this Strategic Review there is scope for revisiting the size and composition of the Board within a couple of years. The balance and mix of membership can be changed from the current situation without changing the current legislation by increasing the membership of the Board up to its maximum of 15 and/or by reducing the number of legally qualified members to the legally required minimum of 5.

Operation of the Board

10.39 The Board has recently reduced its number of main meetings each year from 10 to 8. It also has holds two strategic sessions over weekends each year to consider its direction and major issues. There are three main strands of the work of the Board. First is deciding its advice to Ministers on the operation of legal aid within the justice system, considering major developments and initiatives such as the reform of civil legal aid, reform of advice and assistance etc, and deciding major operational policy issues and responses to major consultations.

10.40 Second is the strategic monitoring and overview of the business and ensuring good corporate governance. This generally involves receiving regular periodic reports on performance, operational activity, finance, complaints and trends. Third, the Board will agree corporate and operational plans and other significant supporting strategies such as Information and Communications Technology, internal and external communications, human resources etc.

10.41 There are currently three Committees of the Board:

• The Audit Committee
• The Remuneration and Appointments Committee
• The Legal Services Committee

The Audit Committee is concerned with corporate governance and meets four times each year. It comprises six Board members including the Chairman, and the Chief Executive in his capacity as Accountable Officer. The Remuneration and Appointments Committee meets when necessary, usually three or four times per year. The Legal Services Committee deals with the application of legal aid legislation and the Board's policies for conducting its operational business. It meets 12 times per year. The Legal Services Sub Committee also meets 12 times per year to deal with sensitive, high profile or complex legal aid applications. Its membership includes (lay and legally qualified) members of the Board and external co-opted legally qualified members (solicitors or advocates). These external members have experience in legal aid work and provide a valuable input into the decisions on these difficult cases.

10.42 The Board will review its operation and committee structure once the agreed outcomes of the strategic review are decided. This will be needed to ensure that these are fit for purpose, given any proposed wider powers and responsibilities and to ensure that the Board operates sufficiently strategically.

Selection of Board Members

10.43 There have been difficulties over recent years in recruiting to the Board. It can at times prove difficult to attract sufficient interest in the work of Board amongst suitably experienced individuals. The Scottish Executive is responsible for recruitment, and does so through open competition and with candidates applying for membership in accordance with the Nolan principles. The Board's Chairman is involved in the selection process although final decisions are taken by Ministers. Candidates are sought through advertising in the national and professional press. Consideration may need to be given in future to a greater variety of means to attract interest in membership of the Board, in particular if a broader composition of the Board is being considered.

10.44 Board members' remuneration is determined by the Scottish Executive. It is uprated annually in accordance with the recommendations of the Senior Salaries Review Board, but has not been revised to take account of the changing role and responsibilities of members. Board members are currently paid 7965 for three and a half days per month. However, concern has been expressed over the relative level of remuneration of Scottish Legal Aid Board members, and how this may be related to the kind of recruitment difficulties noted above. Board members' remuneration is lower than that of other NDPBs sponsored by the Justice Department which, like the Board, perform executive functions. This is an issue that will take on additional relevance if the role, responsibilities and workloads of members were to change further.

10.45 It is therefore recommended that the recruitment and remuneration of members be reviewed, with particular account to be taken of the outcomes of this Review and any new role and responsibility that may be given to the Board.

Footnotes

1 Drivers in legal aid expenditure are discussed in detail in Chapter 7 ('Forecasting legal aid expenditure')

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