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Linda Nicholson, The Research Shop
Scottish Executive Access to Justice
Scottish Executive Social Research

ISBN 0 7559 2959 4
ISSN 0950 2254

This document is also available in pdf format (688k)

CONTENTS

Acknowledgements

Executive Summary

Chapter 1: Background to the Consultation

Chapter 2: The Consultation Process

Chapter 3: General Comments on the Consultation Process and Content

Part 1: Publicly funded legal assistance on civil matters

Chapter 4: A Framework for Change
Q1 For the short-to-medium term, do you agree with the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities in respect of the provision of PFLA services in their area
Q2 What support activity do you believe would need to be provided to assist local authorities in developing their planning and co-ordination of PFLA at a local level? Who should provide this?
Q3 For the longer term, should a national body with a planning and co-ordination responsibility for the delivery of civil PFLA be established in Scotland?
Q4 What are your views on the suggested functions for a national co-ordinating body for civil PFLA?
Q5 Should a national co-ordinating body be able to fund provision by non-legally qualified providers as well as solicitors and advocates?
Summary Points

Chapter 5: Planning Framework
Q6 Should a national co-ordinating body have the ability to enter into matchfunding arrangements with other funders of PFLA?
Q7a What are your views on the proposed outline planning framework for civil PFLA?
Q7b How do you envisage the various elements of such a planning framework might work together to ensure better planning and co-ordination?
Summary Points

Chapter 6: Ensuring The Continued Provision Of Civil PFLA
Q8a For the short to medium term, do you believe that the suggested non-remuneration based methods to encourage and maintain civil legal aid provision should be pursued?
Q8b How effective do you think that such methods (non-remuneration) would be?
Q8c Do you have any alternative suggestions?
Q9a) In relation to securing the provision of civil PFLA services, do you believe that there should be greater use of salaried or employed solicitors for civil PFLA?
Q9b) In relation to securing the provision of civil PFLA services, do you believe that there should be contracting with private practitioners to provide legal aid services?
Q10 Should legally assisted parties who at the end of their case are able to meet the full cost be asked to pay enhanced rates for civil legal assistance?
Summary Points

Chapter 7: Reforming Civil Advice and Assistance
Q11 In the short to medium term, should SLAB be able to fund provision by non-legally qualified advisers as well as solicitors and advocates?
Q12 Should SLAB be able to administer an outlays fund that could be accessed by non-legally qualified providers?
Q13 Do you agree that an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience should be introduced?
Summary Points

Chapter 8: Ability to Pay and Financial Eligibility: Possible Significant Changes
Q14 In the longer term, should a system of extended and tapered financial eligibility be introduced for civil legal assistance?
Q15 Assuming that an extended and tapered scheme was affordable, what should be its main features?
Q16 In the longer term, what detailed changes to the clawback arrangements might desirably be made?
Summary Points

Chapter 9: Ability to Pay and Financial Eligibility: Other Changes
Q17 In the short to medium term, do you agree that state benefits should be disregarded in the financial assessment for civil legal aid, as they are for A&A?
Q18a In the short to medium term, do you agree that the Scottish Legal Aid Board should be able to collect contributions made over a longer time period?
Q18b In the short to medium term, do you agree that the Scottish Legal Aid Board should be able to make flexible arrangements for the repayment of contributions, including the use of instalments for contributions from capital?
Q19 In the short to medium term, do you agree that the legally assisted person should be required to inform the Board of changes in their financial circumstances over the lifetime of their civil case?
Q20 In the short to medium term, do you agree that the test of "severe financial hardship" in Section 19 of the Legal Aid (Scotland) Act 1986 should be changed to one of "financial hardship"?
Q21 In the short to medium term, would any further relaxation of the terms of Section 19 of the Legal Aid (Scotland) act 1986 be justified?
Q22 In the short to medium term, should regulations be introduced to specify how the courts should determine the liability of the unsuccessful legally aided party (Section 18 of the Legal Aid (Scotland) Act 1986)?
Summary Points

Chapter 10: The Scope of Civil Legal Assistance
Q23a Should the number and types of proceedings or categories of case under which ABWOR and civil legal aid are available be reviewed?
Q23b If so, what general criteria or principles should be applied to determine what proceedings or categories of case might be included?
Q24 Would a provision allowing SLAB to fund individual cases which fell outside scope, where there were exceptional circumstances relating to general importance of the case for public policy, be helpful?
Q25 How may publicly funded representation by non-lawyers best be taken account of when reconsidering the scope of ABWOR?
Summary Points

Part 2: Publicly Funded Legal Assistance on Criminal Matters

Chapter 11: A Strategy for Publicly Funded Legal Assistance on Criminal Matters
Q26 For the longer term, should a national co-ordinating body also take on responsibility for the planning and co-ordination of the delivery of criminal PFLA?
Q27 For the longer term, should there be a more general use of salaried solicitors through the PDSO for the provision of criminal PFLA, alongside private practice provision? Q28a Do you believe that the suggested non-remuneration based methods to encourage and maintain provision should be pursued?
Q28b Do you have any alternative suggestions?
Q29 Do you believe that SLAB should be given the flexibility of operation to allow it to pursue these methods?
Q30 Do you agree that SLAB should be allowed to employ flexible methods (within the context of its current role and functions) in relation to securing the provision of solicitors' services for criminal legal assistance?
Q31a Do you agree that SLAB should be able to make greater use of salaried or employed solicitors through PDSO?
Q31b Do you agree that SLAB should be able to use contracting with private practitioners to provide legal aid services?
Summary Points

Chapter 12: Proposals for Specific Change in Criminal Legal Assistance
Q32a Do you agree, in principle, that a contributory system should be developed for the full range of publicly funded criminal legal assistance?
Q32b What would you anticipate the main practical difficulties in establishing and operating a contributory system might be?
Q33 Should any arrangements be put in place in respect of contributions paid by people later acquitted to be refunded to them?
Q34a Do you think that the responsibility for granting criminal legal aid in solemn cases should transfer from the courts to SLAB?
Q34b If not, would there be another way of improving the transparency, consistency and cost control of the solemn criminal legal aid system?
Q35a Do you agree that the Scottish Legal Aid Board should be given powers in solemn cases to recover costs from applicants who have made false disclosure of their means?
Q35b Do you agree that the Scottish Legal Aid Board should be given powers in solemn cases to terminate publicly funded legal assistance where this is appropriate as it currently can in summary cases?
Q36a Do you think that specific financial eligibility criteria should be introduced for all criminal legal aid?
Q36b What should such criteria be based on?
Q37 Do you agree that a requirement to report material changes in financial circumstances during the lifetime of a case, to allow a reassessment of eligibility, should be introduced for criminal legal aid?
Q38 Do you agree that publicly funded criminal legal assistance should be terminated if, upon reassessment of financial eligibility, the applicant is no longer eligible?
Summary Points

Chapter 13: Changes to Summary Criminal Legal Assistance
Q39 Should a single integrated system be developed for publicly funded legal assistance in summary criminal cases?
Q40 How should such a system take account of the proposals for summary criminal reform set out in the White Paper, "Smarter Justice, Safer Communities"?
Summary Points

Annexes

1: Consultation Paper Original Distribution List
2: List of Respondents to the Consultation
3: Summary of Consultation Questions

Tables

1: Respondents by category
2: Summary of views on whether respondents agreed with the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities
3: Summary of views on whether a national body with a planning and co-ordination responsibility for the delivery of PFLA should be established in Scotland
4: Summary of views on whether a national co-ordinating body should be able to fund provision by non-legally qualified providers
5: Summary of views on whether a national co-ordinating body should have the ability to enter into matchfunding arrangements with other funders of PFLA
6: Summary of views on whether the suggested non-remuneration based methods to encourage and maintain civil legal aid provision should be pursued
7: Summary of views on how effective the suggested non-remuneration based methods would be in encouraging and maintaining civil legal aid provision
8: Summary of views on whether greater use should be made of salaried or employed solicitors for civil PFLA
9: Summary of views on whether there should be contracting with private practitioners to provide legal aid services
10: Summary of views on whether legally assisted parties who at the end of their case are able to meet the full costs should be asked to pay enhanced rates for civil legal assistance
11: Summary of views on whether SLAB should be able to fund provision by non-legally qualified advisers as well as solicitors and advocates
12: Summary of views on whether SLAB should be able to administer an outlays fund that could be accessed by non-legally qualified providers
13: Summary of views on whether an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience should be introduced
14: Summary of views on whether a system of extended and tapered financial eligibility should be introduced for civil legal assistance
15: Summary of views on whether state benefits should be disregarded in the financial assessment for civil legal aid
16: Summary of views on whether SLAB should be able to collect contributions over a longer period of time
17: Summary of views on whether SLAB should be able to make flexible arrangements for the repayment of contributions, including the use of instalments for contributions from capital
18: Summary of views on whether the legally assisted person should be required to inform the Board of changes in their financial circumstances over the lifetime of their civil case
19: Summary of views on whether the test of "severe financial hardship" should be changed to one of "financial hardship"
20: Summary of views on whether any further relaxation of the terms of Section 19 of the Legal Aid (Scotland) Act 1986 is justified
21: Summary of views on whether regulations should be introduced to specify how the courts should determine the liability of the unsuccessful legally aided party
22: Summary of views on whether a provision allowing SLAB to fund exceptional individual cases which fell outside scope would be helpful
23: Summary of views on whether a national co-ordinating body should also take on responsibility for the planning and co-ordination of the delivery of criminal PFLA
24: Summary of views on whether there should be a more general use of salaried solicitors through the PDSO for the provision of criminal PFLA alongside private practice provision
25: Summary of views on whether the suggested non-remuneration methods to encourage and maintain provision should be pursued
26: Summary of views on whether SLAB should be given the flexibility of operation to allow it to pursue these methods
27: Summary of views on whether SLAB should be allowed to employ flexible methods (within the context of its current role and functions) in relation to securing the provision of solicitors' services for criminal legal assistance
28: Summary of views on whether SLAB should be able to make greater use of salaried or employed solicitors through PDSO
29: Summary of views on whether SLAB should be able to use contracting with private practitioners to provide legal aid services
30: Summary of views on whether, in principle, a contributory system should be developed for the full range of publicly funded legal assistance
31: Summary of views on which arrangements should be put in place in respect of contributions paid by people later acquitted to be refunded to them
32: Summary of views on whether the responsibility for granting criminal legal aid in solemn cases should transfer from the courts to SLAB
33: Summary of views on whether SLAB should be given powers in solemn cases to terminate publicly funded legal assistance where appropriate
34: Summary of views on whether specific financial eligibility criteria should be introduced for all criminal legal aid
35: Summary of views on whether a requirement to report material changes in financial circumstances during the lifetime of a case, to allow a reassessment of eligibility, should be introduced for criminal legal aid
36: Summary of views on whether publicly funded criminal legal assistance should be terminated if, upon reassessment of financial eligibility, the applicant is no longer eligible
37: Summary of views on whether a single integrated system should be developed for publicly funding legal assistance in summary criminal cases

Figures

1: Reasons given by respondents in support of SLAB collecting contributions over a longer period of time

The views expressed in this report are those of the researcher and
do not necessarily represent those of the Department or Scottish Ministers.

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