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Chapter 10: The Scope of Civil Legal Assistance
The consultation stated:
Currently, A&A can be obtained in relation to any matter of Scots law, but does not cover representation in court or at a tribunal. ABWOR and civil legal aid, which do cover representation, are only available in relation to certain proceedings, as specified in the legal aid legislation.
Civil legal assistance may not therefore be available for every type of assistance an individual may need. This raises the question of what the scope of different forms of civil legal assistance should be, both in terms of types of proceeding and categories of cases, and whether the current arrangements are appropriate in the Scottish civil justice system of the 21st century.
The availability of publicly funded representation through ABWOR and civil legal aid has developed piecemeal over the years, largely in response to changes in the court and tribunal system and the kinds of cases heard in courts and tribunals, and also in response to the development of case law. As indicated above, at present the overriding criterion to determine whether or not representation may be made available by means of ABWOR or civil legal aid is the type of proceedings the individual is involved in.
It has been argued that a more coherent and clearer system could be achieved by a radical review aimed at restructuring ABWOR and civil legal aid. Such a review would reconsider in which types of proceeding as well as in what categories of case, representation will be funded by the public purse, by reference to a clear set of principles and criteria. The question arises of what these principles and criteria should be.
10.1 The consultation asked:
Q23a): Should the number and types of proceedings or categories of case under which abwor and civil legal aid are available, be reviewed?
Thirty-eight respondents (58%) addressed this question with 36 indicating whether the number and types of proceedings or categories of case under which ABWOR and civil legal aid are available should be reviewed. Of these, all but one (97%) agreed that there should be such a review.
The key reasons for advocating the review were:
- Appropriate to review the situation as part of the wider review of PFLA (Leg, LA)
- Current system too restrictive ( LA)
- Research suggests that a review is necessary (Vol, LA)
- To promote consistency in practice (Vol, Oth)
- No rationale for the current situation (Leg)
- To promote greater access to justice (Vol)
- To met the requirements of Article 6 of the ECHR ( LA)
The one dissenting voice argued that such a review constituted a cost cutting exercise with no apparent benefit to the taxpayer or the legal aid applicant (Vol).
10.2 The consultation asked:
Q23b): If so, what general criteria or principles should be applied to determine what proceedings or categories of case might be included?
Overall, 31 respondents (48%) addressed this question. Submissions ranged from very broad statements, eg. " as many areas as possible to be included" (Indiv), to relatively specific lists of types of proceedings and categories of case which respondents considered should fall within the scope of ABWOR and civil legal aid.
Many consultees outlined general principles or criteria which they suggested could help to determine which proceedings or categories of cases might be included. Amongst these were:
Complexity of proceedings | Where public interest served | Cost of case rather than type of case | Where person unable to represent themselves adequately (eg learning disability) |
Interests of fairness, justice and human rights involved | Any matter that could result in legally binding and tangible penalty | Age of client | Vulnerability of client |
Limited grasp of English | Where limited means of person would bar them from raising/defending case | Mental illness | Areas where law relatively undeveloped at present |
A few respondents stressed their view that consideration should be given to extending aid to cover advice delivered by non-legally qualified providers (Vol, LA).
Other respondents specified more precisely the nature of cases which they considered should be included under the umbrella of ABWOR and civil legal aid. Most commonly cited were various types of tribunal representation (Leg, Vol). It was commented that where proceedings involved parties in a relatively adversarial setting such as employment tribunals, clients often needed help to formulate and present their cases (Vol). In a similar vein, one consultee remarked that tribunal work could be extremely intimidating for the person involved and that their limited means should not prevent their receiving appropriate representation (Leg).
Others recommended that representation at various appeal committees should fall within the ambit of legal aid provision (Leg), with representation at small claims courts also cited as a candidate for inclusion (Vol). Some respondents argued that representation at the Children's Hearings System should come within the scheme (Leg, LA). Another supported inclusion in the case of small debt matters (Leg). Two respondents suggested that multi-party ("class") actions should qualify (Vol, LA).
A broad view from one consultee was for the scheme to be expanded to take in areas of law which were currently underdeveloped (Leg).
Two more general comments were made by respondents. One argued that using the value of a claim as a criteria for inclusion may not always be appropriate as in some cases, the pursuer aimed to achieve justice in non-monetary terms, rather than any financial compensation (Vol). Another comment was to highlight what was seen as inaccurate wording of the consultation document in its referral to, "the essential scope of civil A&A as being any matter to which Scots law may apply" when a variety of issues such as immigration may, indeed, be reserved matters covered by UK legislation (Oth).
10.3 The consultation stated:
An additional or alternative, possibly more flexible, approach might be to give SLAB power to fund individual cases which fall outside the current scope of legal aid, if exceptional circumstances applied. In that case, the expectation would be that cases funded in this way would raise questions of general public importance and interest. Clear guidelines would have to be drawn up for the application of such powers, with the assumption being that it would be used only in exceptional circumstances.
The consultation asked:
Q24 Would a provision allowing SLAB to fund individual cases which fell outside scope, where there were exceptional circumstances relating to the general importance of the case for public policy, be helpful?
Thirty-nine respondents (60%) addressed this question with 37 providing a firm response and the remaining 2 respondents providing relevant commentary. A summary of the firm responses is in Table 22 overleaf.
Table 22: Summary of views on whether a provision allowing SLAB to fund exceptional individual cases which fell outside scope would be helpful
| No. | % |
|---|
Yes | 33 | 89 |
|---|
No | 2 | 5 |
|---|
DK | 2 | 5 |
|---|
Total | 37 | 100 |
|---|
NB. Percentages may not total 100% exactly due to rounding
Of those who provided a view, the vast majority (89%) was in favour of allowing SLAB to fund exceptional individual cases which currently fall outside scope.
A few consultees stressed that this provision should be used sparingly (Vol) and kept for exceptional cases only (Leg). Some urged that clearly defined guidelines on the terms of the provision were essential to avoid the system becoming bogged down in applications ( LA). Various criteria were suggested to include in the guidelines, for example, cases where large numbers of people would be affected by the outcome (Vol, LA, Leg) or where the case carried particular importance for public policy (Vol, Leg). One view was that the novelty of the case and its anticipated length and/or complexity should play a part in deciding whether SLAB funds it (Leg). Another consultee commented that the Legal Services Commission south of the border has such a power to fund cases in the public interest (Indiv).
Several respondents specified more precisely the types of case which may merit special treatment under this provision. These included:
- Social security issues with outcomes which may have a significant impact on large numbers of people ( LA, Oth)
- Discrimination claims (Vol)
- Medical negligence (Oth)
- Class actions (Oth)
- Corporate killing/culpable homicide (Leg)
- Representation at Fatal Accident Inquiries (Vol)
- Disability law cases where people may, because of their disability, not wish to pursue the case (Vol)
- Cases of domestic abuse where the victim has a low income ( LA)
- Important areas of law where development has not yet taken place (Leg)
A few consultees argued against setting up this provision. One considered the proposal to be "unobjectionable" but probably not necessary if a sufficiently comprehensive tapering system is introduced (Leg). The other suggested that the defining of the provision was likely to be so vague as to be unhelpful and open to interpretation ( LA).
10.4 The consultation stated:
Publicly funded representation may also be available from lay advisers in cases where the involvement of a solicitor is not strictly necessary. We would welcome your views on how this may be best taken account of when reconsidering the scope of ABWOR in particular.
The consultation asked:
Q25: How may publicly funded representation by non-lawyers best be taken account of when reconsidering the scope of ABWOR?
Twenty-six (40%) consultees addressed this question.
Many respondents commented in general terms that they agreed that in some instances legally-qualified representation was not always necessary ( LA, Vol, Oth). Others also expressed a general concern that any non-legal input should be subject to quality standards and accreditation (Leg, Vol, LA). It was pointed out that in providing representation, solicitors are subject to the requirements of their profession and are supervised by their professional body (Leg).
A few consultees recommended that to take account of the contribution of non-lawyers in an educated way, there should be an analysis of their input and an approach worked out in the light of the outcome of the analysis ( LA). One respondent argued for the areas of work which it is decided that non-lawyers can undertake within the scope of ABWOR to be clearly defined (Leg).
One recurring comment was that it is preferable to publicly fund non-legal organisations rather than individual providers on a case-by-case basis (Leg, Oth). In this context, a few respondents emphasised that cognisance should be taken of funding arrangements already in place with additional funds available only where non-lawyers are not already receiving support (Leg, Vol).
A common theme was that this proposal should not constitute legal aid on the cheap by transferring funds away from solicitors to non-lawyers (Vol).
Amongst the small minority of dissenting voices, emerged the view that non-lawyers should be excluded from ABWOR ( LA), with the question raised as to whether advice from someone with no legal training could, strictly speaking, fall within the scope of "legal" aid (Leg). This respondent also questioned whether the proposals would contribute to contravening the ECHR principle of equality of arms in legal disputes on account of one party having to rely on non-legal representation, whilst the other was legally represented (Leg).
A strong argument against the proposal was stated by one consultee who maintained that:
" Provision of advice by lay advisors simply leads to miscarriages of justice in a misguided attempt to obtain representation on the cheap" (Leg)
Finally, one respondent argued for further research and consultation to address issues such as who would provide indemnity insurances to non-legal advisers, for example, in potentially complex areas of law ( LA).
10.5 Summary Points
- All but one (97%) of those who responded agreed that there should be a review of the number and types of proceedings or categories of case under which ABWOR and civil legal aid are available.
- Respondents identified a range of both broad and more specific proceedings or categories of case which they considered should fall within the scope of ABWOR and civil legal aid.
- Of those who provided a view, the vast majority (89%) was in favour of allowing SLAB to fund exceptional individual cases which currently fall outside scope.
- There was a general concern that any non-legal representation under ABWOR should be subject to quality standards and accreditation.
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