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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 11 - Streamlining Legislation

11.1 The Terms of Reference of the Strategic Review specifically require the scope for streamlining of the legal aid legislation to be assessed. In order to do so, we first of all briefly examine the complexity of the current legislative framework. We then assess the impact of this complexity and the need for modernisation. To conclude, we set out the options there may be for change in the legislative framework.

11.2 It should also be noted that the problem of legislative complexity and need for modernisation becomes even more relevant as one considers making significant structural reforms of the type we recommend throughout this report. Some of these reforms may be implemented within the existing legislative framework. In this context, the discussion below on the flexibility of the existing system and dangers of adding complexity through incremental change is particularly pertinent. Other proposals however, such as those to provide more flexible powers to the Scottish Legal Aid Board, would have to be taken forward through a combination of regulations and primary legislation, wither by way of amendment to existing statutory provisions or the creation of entirely new legislation.

11.3 The second part of this chapter gives a very brief overview of the legislative implications that would result from the key recommendations in this Strategic Review.

11.4 Legal Aid on Scotland and the Scottish Legal Aid Board which administers it, are creations of statute. However, the structure created by the Legal Aid (Scotland) Act 1986 was not entirely new, inheriting many features and concepts from previous legal aid legislation. Thus, issues arising in current legislation may well be grounded in structural difficulties pre-dating the Board's inception. Whilst the 1986 Act removed a complex set of 'schemes' administered by the Law Society, the extent to which a more streamlined structure is achievable within the current legislative framework hinges upon the interaction between :

• The Legal Aid (Scotland) Act 1986
• Regulations made under the Act
• Determinations of Scottish Ministers
• Rules of Court
• Other Scottish and UK legislation
• EU legislation
• Practice Rules made by the Law Society of Scotland
• The Board's Code of Practice for Criminal Legal Assistance

11.5 The legislative framework has been sufficiently flexible to adapt to a certain amount of change since 1986, but has relied on piecemeal amendment, often in reaction to other developments. Legislative change has therefore not been at a fundamental structural level, although significant operational changes have been made. Changes have often been driven by developments outwith the mechanisms envisaged by the 1986 Act. The reactive nature of change within legal aid legislation may appear unplanned, and capable of being overtaken by structural or procedural changes elsewhere in the justice system. The extent to which that interaction has created legislative and operational complexity is explored briefly below.

11A Legislative complexity in criminal legal assistance

11.6 As has been shown in earlier chapters, criminal legal assistance is not a unified type of legal aid, but rather an umbrella description for criminal legal aid and Advice and Assistance on criminal matters. It can be further sub-divided into general advice on a criminal problem, and representation in criminal proceedings. That conceptual distinction immediately creates a barrier to a simplified system in which initial advice flows smoothly into help in court once a prosecution commences.

11.7 Simplification is further inhibited by the mechanisms which have evolved for representation in court. It is at this level that complexity in provision is most keenly observed. The segmented legislative structure militates against a harmonised model of criminal legal assistance. It allows a range of aid types, subject to different means and merits tests, to be employed during the lifetime of the case. We give here some examples of complexity in criminal legal assistance as it operates in the context of various proceedings.

Summary proceedings

11.8 The statutory definition of criminal legal aid is very prescriptive, and prevents any representation in connection with summary proceedings prior to a not guilty plea, except where automatic legal aid is available. Thus, criminal legal aid is not available to those who are not in custody but wish to plead guilty or raise a preliminary matter upon their first appearance in court. Equally, legal aid cannot be provided to those who wish to make a procedural appeal at an early stage.

11.9 Representation in certain preliminary stages of a summary cases can be provided through Assistance By Way Of Representation (ABWOR), but is only available to those who are financially eligible for Advice and Assistance, and are not 'in custody'. However, coverage is incomplete (for example, there is no explicit cover for raising devolution issues). This interaction between ABWOR and criminal legal aid is inflexible in responding to changing circumstances within a summary case.

Criminal appeals

11.10 There is no harmonised form of legal aid for appeals in criminal cases, with coverage determined by the stage the case has reached:

• some appeals at the preliminary stages of summary cases can be covered under ABWOR (appeals relating to preliminary pleas) or automatic criminal legal aid provided by the duty solicitor (e.g. bail appeals)
• procedural appeals are funded under any existing grant of legal aid for the trial
• appeals against conviction, sentence, other disposal or acquittal are covered by a distinct form of criminal legal aid for criminal appeals.

Growth in ABWOR

11.11 Although originally conceived as a mechanism for dealing with the preliminary stages of non-custody summary cases (to avoid the constraints described above), ABWOR has developed into a mechanism for covering a range of criminal matters, including:

• preliminary proceedings for extension of a warrant in terrorism investigations
• tariff proceedings in the High Court in respect of life prisoners
• post-conviction proceedings arising from breach of a non-custodial disposal
• representations by a non-accused in post-conviction proceedings under the Proceeds of Crime Act 2002
• proceedings before a criminal court arising from breach of an interdict containing a power of arrest.

11.12 This growth is indicative of the flexibility offered by ABWOR: it can be adapted to provide cover for matters which would fall outwith the narrow definition of criminal legal aid. However, it is also suggestive of an apparent lack of a clear overarching rationale for the growth of ABWOR provision. Within ABWOR there is inconsistency in the approach to means and merits testing, with some categories exempt from the means or merits tests, whilst others may only be provided with SLAB's prior approval or upon an assessment of various factors by the solicitor.

Legislative complexity in civil legal assistance

11.13 As with criminal legal assistance, the primary conceptual difference in civil legal assistance is between pre-litigation advice (Advice and Assistance) and representation in court or tribunal proceedings (civil legal aid or ABWOR). Initial advice does not flow naturally into representation, other than certain ABWOR categories where representation may be provided without consideration of the merits of the case (for example, an asylum case). The requirement to apply for civil legal aid for most civil proceedings creates a clear break in the help available.

11.14 The lack of harmonisation between these segments of civil legal assistance is manifested by differences in :

• approaches to financial eligibility (e.g. benefits disregarded as disposable income in Advice and Assistance are brought into account for civil legal aid)
• merits tests for different classes of case
• exemptions from payment out of property recovered or preserved
• procedures for dealing with urgent steps in a court or tribunal
• remuneration structures.

The impact of legislative complexity

Operational uncertainty

11.15 A complex legislative framework can create a lack of certainty for both the Scottish Legal Aid Board and the practitioner. Extensive amendment of primary and subordinate legislation creates a 'moving target', in which it becomes increasingly difficult to track changes and find the law. Consolidation of Regulations has been undertaken, although infrequently.

11.16 Complexity also brings risks of :

• concentration of knowledge of legal aid legalisation and Regulations within SLAB
• difficulties in informing SLAB staff, practitioners and other stakeholders of legislative change
• lack of understanding of legislative provision among practitioners
• loss of knowledge of policy context and purpose
• insufficient clarity as to applicable aid type
• wide scope for interpretation and dispute
• need for comprehensive guidance (for example, on property recovered or preserved), although that guidance has no statutory effect
• translating policy intention into legal aid legislation is often a difficult and time consuming task for the Scottish Executive
• errors being made when changing Regulations
• the nature of legislative change may also be difficult and time consuming to deal with for the Scottish Parliament, particularly where MSPs lack working knowledge of the existing legal aid structure.
• inconsistent decision-making

Impact on applicants and opponents

11.17 The legislative framework also impacts upon the applicant, as consumer of legally aided services, and the opponent, as someone affected by assisted litigation. Both may find their respective rights and obligations difficult to understand. Leaflets issued by SLAB explain matters at a very basic level, and seek to explain very difficult concepts in everyday language. However, both applicants and opponents may ultimately have to rely on the quality of advice offered by their solicitor. Unless the solicitor has a good grasp of the effect of legal aid legislation, there is a risk of incorrect advice being provided. In turn, this may result in the client making decisions with a major impact on the conduct or outcome of the case, based on an incomplete or incorrect understanding of the legal aid consequences of that decision (for example, clawback from winnings). This is a major risk where solicitors do very little legal aid work, particularly in civil matters.

Legislative inconsistency

11.18 The legislative complexity can lead to legislative inconsistency. We have elsewhere in this report identified inconsistencies and contradictory approaches in civil and criminal legal assistance, for example in relation to the lack of harmonisation of means and merits tests within aid types (e.g. in criminal legal aid) and the lack of harmonisation of financial eligibility between Advice and Assistance and other aid types. Other examples of legislative inconsistency are:

• incomplete amendment of legal aid legislation, when all necessary changes have not been identified (e.g. changes to categories of case covered by civil legal aid not mirrored in Civil Fees Regulations)
• where existing provision may be inadequate for specific purposes, this can lead to targeted amendment affecting a smaller pool of cases (e.g. changes in ABWOR for the Youth Court pilot)
• gaps in provision where external legislative changes (including procedural changes in Rules of Court) have not been reflected in legal aid legislation (e.g. devolution issues raised at the preliminary stages of summary criminal cases)
• legal aid provision governed by other primary legislation, rather than the 1986 Act (e.g. availability of criminal legal aid for extradition cases).

Effecting change

11.19 The complex interactions within the legislative framework also translate into difficulties in driving and implementing change, raising issues as to the responsibility for initiating and developing legislative change, the planning and co-ordination of change and the preparation for implementation.

The need for modernisation and simplification

11.20 Against a background of modernisation elsewhere in the justice system, it is appropriate to consider the benefits of wide ranging modernisation of legal aid legislation. These are:

• creating greater operational certainty, by ensuring greater clarity as to provision, and removing scope for dispute
• removing inconsistency within and between aid types
• improving consistency of decision making
• stabilising and consolidating legislation
• increasing understanding and knowledge (for administrators, practitioners and assisted persons)
• easing interpretation and implementation
• improving transparency for all users, including applicants and opponents
• better planning and management of change between the Scottish Executive, SLAB, and UK Government Departments and other partner agencies.

11B Options for change

11.21 A modernised legislative framework must be capable of delivering the objectives for publicly funded legal assistance discussed in this report. In order to maintain delivery of the current core function of the Scottish Legal Aid Board (administration of the Legal Aid Fund) and to enable delivery against a possible wider range of functions, it will be essential to build upon the principles of the 1986 Act, namely administration and funding of legal services through an independent public authority accountable to Ministers and, ultimately, to Parliament.

11.22 To varying degrees, changes in legal aid legislation currently receive Parliamentary scrutiny, although a great deal of Regulatory change can be introduced without requiring an affirmative resolution of the Scottish Parliament. We consider that the principle of Parliamentary scrutiny should continue to underpin modernised legal aid legislation.

11.23 A number of approaches to modernising the legal aid legislation are possible, either on their own or in parallel:

• continuing to amend existing legislation, but on a more planned basis than at present
• providing mechanisms to automatically uprate figures for financial eligibility and/or fees on an annual basis, without the need for annual regulatory change
• involving the Board directly in drafting of regulations thus achieving a greater synergy between policy and operational objectives
• creating a new legislative framework, taking on the essence of each of the approaches above.

11.24 Planning legislative change could avoid the need for so many sets of amending Regulations, and allow improved timetabling of workflow between the Legal Aid Policy Team in the Executive, the Office of the Solicitor to the Scottish Executive (OSSE) and the Scottish Legal Aid Board. However, regular consolidation would still be necessary to maintain clarity of provision. Better planning would appear to be the minimum requirement for a modernised system.

11.25 Even a planned approach would not necessarily overcome the dispersed nature of current legislative provision between the 1986 Act, Regulations, Determinations and Rules of Court. A simpler structure might therefore be achieved by bringing as much provision as possible within primary and subordinate legislation. This approach was used when the payment provisions for specially urgent civil work were brought within the ambit of Regulations.

11.26 In respect of the regular changes required in relation to financial eligibility, with annual Regulations uprating the criteria for Advice and Assistance and civil legal aid, effective planning is possible and does exist. However, it still requires an annual process of drafting amending legislation, and awaiting the outcome of an affirmative resolution before the Scottish Parliament, which may be very close to the implementation date. Consideration could be given to simplifying this process, by creating an automatic mechanism for uprating fees and financial eligibility. This would however remove the annual Parliamentary scrutiny which is currently in place.

11.27 As matters presently stand, the legislative process depends upon interaction between the Legal Aid Policy Team, OSSE and the Scottish Legal Aid Board. Whilst SLAB has the operational expertise of administering legal aid legislation, SLAB's solicitors are not presently directly involved in drafting Regulations. Greater efficiency could be achieved by developing a closer and more immediate working relationship between SLAB and OSSE.

11.28 In the short-term, we would recommend that a combination of these options be considered as a means to achieving modernisation. This should be approached on the basis of a planned approach agreed between the Executive and the Board, and make optimum use of the expertise in legal aid administration and legislation present at the Board. In the medium term, a thorough audit of existing legislation should be undertaken to identify inconsistencies and where possible rectify these.

A new legislative framework

11.29 A new legislative framework would be the most radical option for modernisation. Although one of the undoubted benefits of a simplified system would be greater certainty and stability, there will still require to be sufficient flexibility to respond to external change.

11.30 Any new framework would need to address the difficulties identified throughout this report which stem from the complexity of the current system with its many aid types and their differing eligibility criteria and administrative requirements.

11.31 In addition a new framework would, we believe, need to encompass the essence of the approaches described above for streamlining of the existing legislation:

• A unified system - with all provision within the scope of new primary and secondary legislation and so under Parliamentary scrutiny, and consisting of two main systems: for civil assistance and for criminal assistance
• A flexible system - to respond to the many possible drivers that can have an impact on publicly funded legal assistance. Greater flexibility and responsiveness could be achieved by removing predominantly operational matters from the instrument of Regulation
• Regular review - the ability to plan change proactively may remain limited due to external drivers of change. Whilst an improved legislative framework should reduce the need for consolidation, regular review may still be required.
• Limited mechanisms for automatic change - to reduce the necessity for routine change (e.g., financial eligibility uplifts, fee changes) through secondary legislation where appropriate

11.32 In England and Wales an entirely new operational structure was created through the Access to Justice Act 1999, as a result of which the Legal Services Commission (LSC) acquired responsibility for drafting a Funding Code. The parameters for drafting that Code are set out in the Act. The draft Code requires the approval of both the Lord Chancellor and Parliament before becoming operative. The Code can be amended, but only after a consultation and Parliamentary process. However, under this structure Regulations are still required for matters such as financial eligibility.

11.33 The Code allows the Commission to give effect to its priorities for funding legal services to individuals, and is underpinned by the requirement to ensure provision of the most appropriate service. In setting its funding criteria, the Commission must consider whether the Code ought to reflect a number of statutory factors, including public interest, cost benefit and prospects of success. These criteria reflect our discussion of prioritisation based on reasonableness, and demonstrate the importance of a reasonableness test to any new legislative framework for legal aid.

11.34 A similar model for Scotland has attractions, by empowering the Board to set out its priorities, rather than relying on unplanned regulatory change. It would still allow appropriate provision to be made for different cases, or classes of case. Discretion would still be exercised in individual decisions. The Board would have the ability to drive change, while still retaining Parliamentary scrutiny. A Code would not remove Ministerial involvement in legal aid policy making, in particular in relation to financial control. Provided the development of a Code maintained the Board's operational independence, and could react flexibly to external developments, there seems no reason why a similar structure should not be an effective, simplified solution to the current model.

11.35 However, careful consideration will need to be given to how to achieve and maintain the most appropriate balance between flexibility and accountability in such a structure and how this is expressed through the scope of each of its constituent parts: primary legislation, a Code and Regulations. A new structure built on these elements could prove as complex as present arrangements: a requirement for Ministerial approval might restrict the setting of priorities, and create the risk of a perception of politicised decision-making. On the other hand, a failure to remove sufficient matters from the cumbersome instrument of Regulations may not result in as much streamlining of the processes as desired. There could also be a question of priorities set out in a Code being vulnerable to judicial review at the instance of applicants or opponents.

11.36 On balance we believe that developing a legislative structure of primary legislation, a Code (under statutory powers) and Regulations offers the only real long term alternative to the present framework.

11.37 Further investigations are required into any operational issues that have arisen in England and Wales, including whether the funding priorities in LSC's Code have been subject to judicial review. In the time available we have been unable to investigate whether examples of alternative arrangements for the interaction between the three key elements of such a structure exist, which preserve the key components of democratic accountability, Parliamentary scrutiny and flexibility and achieve the appropriate balance between them.

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