The Scottish Government

« Previous | Contents | Next »

Listen

Chapter 11: A Strategy for Publicly Funded Legal Assistance on Criminal Matters

It should be noted that fewer respondents to the consultation submitted views on the questions relating to criminal matters than was the case for questions relating to civil matters. In addition, where respondents considered that their earlier points relating to civil issues applied again to a question on criminal matters they simply referred in their response to their earlier arguments. Such responses are not repeated in the analysis which follows.

The consultation stated:

There is also a need for better planning and co-ordination in the provision of criminal PFLA, as well as of civil PFLA. Some concerns have recently been voiced over the future ability of the present system of criminal PFLA to continue to supply adequate services, if insufficient numbers of solicitors come forward to undertake the work. Such concerns raise the issue of the need for such a national body as envisaged in relation to civil legal aid, also to take on proactively the responsibility for planning, co-ordination and delivery of criminal PFLA.

A national co-ordinating body which plans and co-ordinates the delivery of criminal as well as civil PFLA would also make it possible, over time and as necessary, to move towards actively using a mixed model of delivery for criminal PFLA. The most significant change in doing so would be the extent to which use would be made of salaried solicitors, through the PDSO, in the provision of criminal PFLA.

11.1 The consultation asked:

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?

Twenty-three (35%) respondents addressed this question with 21 providing a firm response and the remaining 2 submitting relevant commentary only. A summary of firm views is provided in Table 23 below.

Table 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

NB. Percentages may not total 100% exactly due to rounding

Around half (52%) of those who provided a view favoured a national co-ordinating body taking on the responsibility for the planning and co-ordination of the delivery of criminal in addition to civil PFLA. However, a significant minority (33%) of respondents were opposed to this proposal.

Very few arguments were outlined in favour of the proposition, with several respondents simply referring to their earlier comments regarding civil matters. Those that were submitted revolved around welcoming the consistency this body would establish across civil and criminal matters (Vol, LA); and the potential cost savings likely from combining civil and criminal matters under one roof (Vol).

Emerging from those who opposed the proposal was the recurring argument that there was no clear evidence that such a co-ordinating body was required in this field (Indiv, Leg). It was felt that this body could constitute just another layer of bureaucracy and administration (Leg) whilst replicating the work of SLAB and causing confusion (Indiv). A few respondents cautioned that the funding of any such body should not result in reduced funds available for PFLA (Leg). One consultee suggested that whilst there could conceivably be a role for national guidelines as to best practice this did not in itself justify the creation of a national co-ordinating body (Leg).

Finally, one respondent stated that they felt unable to form an opinion on the proposal as there was insufficient information available on details such as likely running costs (Leg).

11.2 The consultation asked:

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?

Twenty-four (37%) respondents addressed this question. A summary of their views is provided in Table 24 below.

Table 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

NB. Percentages may not total 100% exactly due to rounding

No clearly favoured view emerged from responses to this question. Similar numbers of respondents favoured and opposed the proposal, with a significant minority (21%) of consultees unsure about the best way to proceed.

11.2.1 Views in Favour of More General Use of Salaried Solicitors

The proposal was viewed by some as a means of offering greater flexibility to address supply gaps (Leg, LA), for example, in rural areas (Indiv). It was seen as a way of offering wider choice to local communities ( LA, Leg) and likely to lead to a reduction in costs over the longer term ( LA).

In terms of solicitors' professional development, the proposal provided alternative employment opportunities (Leg) and, according to one respondent, gave solicitors the opportunity to get grounding in both public and private spheres of practice ( LA). One view was that greater use of salaried solicitors allowed for benchmarking of costs, provided a test bed for new ideas and enabled exploration of various forms of inter-agency working involving public, private and voluntary organisation partners (Leg).

It was remarked that mixed models of provision such as that proposed were common around the world (Leg).

Consultees who provided cautious support for the proposals commented that this arrangement would require a shift in client attitude away from building a relationship with one particular solicitor to receiving a service from a general bank of provision ( LA), and that a salaried service should remain a minority provision with the bulk of provision stemming from private practice (Indiv).

11.2.2 Views in Opposition to More General Use of Salaried Solicitors

Two common themes to emerge from those who opposed the proposal to make more general use of salaried solicitors were:

• No evidence to suggest a salaried service is more efficient or effective than private practice (Leg, Indiv)
• The proposal would result in a reduction in choice for clients (Leg, Vol)

Other arguments against the proposal included concern that people would no longer be able to build up a relationship with their solicitor over several years (Leg), but instead be provided with a solicitor on a "taxi rank" basis with doubts over whether a salaried solicitor would have an incentive to work hard for their client or have to strive to maintain their professional reputation (Vol).

One view was that recruitment and retention of salaried solicitors may prove to be problematic (Leg). Another expressed their view that the concept of salaried solicitors seemed at odds with the integrity and independence of the criminal bar. Their argument was that a person should not be both prosecuted by the state and defended by the state at the same time (Leg).

Again, it was highlighted by one respondent that the lack of indication of the running costs of the proposal made an informed response difficult (Leg). Another consultee stressed that further research should be undertaken to establish the likely cost effectiveness of the proposal (Leg).

11.3 The consultation stated:

In the short to medium term we wish to take action to ensure that there are and will be no problems with the provision of criminal PFLA and therefore we intend to enable SLAB to adopt measures not directly based on remuneration rates to encourage private practitioners to undertake criminal legal assistance work and to encourage new entrants into the system. We are therefore interested in your views on whether similar non-remuneration based measures to those proposed for civil provision might be appropriate on the criminal side.

The consultation asked:

Q28a) Do you believe that the suggested non-remuneration based methods to encourage and maintain provision should be pursued?

Twenty-one (32%) respondents addressed this question with 19 providing a firm response and the remaining 2 consultees providing relevant commentary only. A summary of the firm views is provided in Table 25 below.

Table 25: Summary of views on whether the suggested non-remuneration methods to encourage and maintain provision should be pursued

NB. Percentages may not total 100% exactly due to rounding

Around two-thirds (68%) of those providing a firm view were in favour of pursuing the suggested non-remuneration methods to encourage and maintain provision. Very few fresh comments were received to support these views.

One respondent welcomed the proposed assistance for traineeships which, they contended, were difficult to come by (Indiv). Another expressed support for the notion of assisting with repayment of student loans for trainees embarking on a "legal aid traineeship", or assisting the firms providing the traineeships (Leg).

However, once again, one theme dominated the responses of those opposed to the proposal: non-remuneration based methods do not tackle what some saw as the fundamental problem of insufficient remuneration for solicitors providing PFLA (Leg, LA).

11.4 The consultation asked:

Q28b): Do you have any alternative suggestions?

This question received relatively little comment. Predictably, a recurring comment was for a rise in remuneration of solicitors providing PFLA (Leg, LA).

One consultee recommended greater provision of training places in criminal law firms (Leg). Another made the suggestion that employees of firms providing criminal legal aid services be paid a bonus in proportion to the volume of cases dealt with in one year ( LA).

11.5 The consultation asked:

Q29: Do you believe that SLAB should be given the flexibility of operation to allow it to pursue these methods?

Sixteen respondents (25%) addressed this question. Their responses are summarised in Table 26 below.

Table 26: Summary of views on whether SLAB should be given the flexibility of operation to allow it to pursue these methods

NB. Percentages may not total 100% exactly due to rounding

The majority (62%) of those who provided a view was in favour of SLAB being given the flexibility of operation to allow it to pursue these methods. However, a significant minority (31%) of respondents was opposed to the proposal.

Again, very few comments were received to support the views given. Providing SLAB with this flexibility was seen as potentially more cost effective than the current system according to one commentator ( LA). However, another argued that it seemed to be premature to consider these methods before the outcome of the current research regarding whether, to what extent, and why there may be shortages of new entrants to criminal legal aid work (Leg).

11.6 The consultation asked:

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?

Eighteen respondents (28%) addressed this question with 17 of these providing a firm view and a further one respondent submitting relevant commentary only. A summary of the views is in Table 27 below.

Table 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

NB. Percentages may not total 100% exactly due to rounding

Around two-thirds (65%) of those who provided a view favoured SLAB being 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. However, just under one-third (29%) of respondents was against this proposal.

Again, very little fresh commentary was contained in the relevant responses (with several simply referring to previous answers).

A few of those in favour suggested that giving SLAB greater flexibility would enable the most cost effective approach to be identified and taken up ( LA), and that exceptional cases would receive more appropriate funding from SLAB (Leg). One respondent was enthusiastic about SLAB being allowed to employ flexible methods such as the use of salaried defenders in the PDSO and contracting for criminal legal assistance (Leg). Another supported the proposal but urged that developments should take place in full consultation with local bar associations and faculties (Leg).

A contrasting view was that SLAB already has considerable discretion in terms of Part V of the Legal Aid (Scotland) Act 1986 with no evidence that it needs its existing powers and therefore no justification for extending these (Leg). One consultee expressed concern that further flexibility of methods may lead to the involvement of insufficiently skilled solicitors in providing legal assistance with greater mediocrity resulting (Indiv). Another returned to the theme of the PDSO not allowing for client/practitioner relationships to develop with the suggestion that greater flexibility in its development and roll out may create problems on this score ( LA).

11.7 The consultation asked:

Q31a): Do you agree that SLAB should be able to make greater use of salaried or employed solicitors through PDSO?

Eighteen respondents (28%) addressed this question with 17 of these providing a firm view and a further one respondent submitting relevant commentary only. A summary of the views is in Table 28 below.

Table 28: Summary of views on whether SLAB should be able to make greater use of salaried or employed solicitors through PDSO

NB. Percentages may not total 100% exactly due to rounding

Whilst the majority (59%) of consultees who responded favoured the proposal that SLAB should be able to make greater use of salaried or employed solicitors through PDSO, a significant minority (41%) opposed the proposal. However, these figures mask the difference in views between legal bodies who were largely (62%) against the proposal, and other respondents who in general favoured (78%) the proposal. However, due to the small numbers involved, these disaggregated figures should be treated with caution.

No substantive arguments were documented in favour of SLAB's greater use of salaried or employed solicitors through PDSO (although relevant commentary was submitted in response to previous questions and has been presented at various points earlier in this report).

A few of those supporting the proposition qualified their support. One cautioned that the scheme should be used " just where appropriate" and should not result in riding " roughshod" over clients wishes ( LA). Others suggested that this option be exploited just if the service offered was better than that available from solicitors in private practice and delivered at a lower cost (Vol, LA).

The most common argument outlined against the proposal was the apparent lack of evidence on the cost effectiveness of PDSO ( LA, Leg). Others questioned the integrity and independence of advice given under the PDSO scheme (Leg), and the motivation of solicitors working within the public sector (Leg). One view was that the proposal would incur unwelcome start-up costs (Leg).

11.8 The consultation asked:

Q31b): Do you agree that slab should be able to use contracting with private practitioners to provide legal aid services?

Nineteen respondents (29%) addressed this question with 17 of these providing a firm view and a further one respondent submitting relevant commentary only. A summary of the views is in Table 29 below.

Table 29: Summary of views on whether SLAB should be able to use contracting with private practitioners to provide legal aid services

NB. Percentages may not total 100% exactly due to rounding

Overall, a slight majority (53%) view was against SLAB being able to use contracting with private practitioners to provide legal aid services. However, a significant minority (41%) of those who responded favoured this proposal. Although the numbers are small and should be treated with caution, it appears that although non-legal respondents generally favoured (71%) the proposal, the majority (70%) of those representing legal bodies was against it.

No substantive fresh argument was outlined in favour of the proposal although a few consultees welcomed the mixed model of provision which this option could contribute towards (Vol, Leg).

Three arguments were documented in opposition to enabling SLAB to use contracting with private practitioners. Firstly, this was seen as undermining a client's right to choose their solicitor, a right which according to one consultee, had emerged from recent research as an important factor in consumer satisfaction with the system (Leg). Secondly, it was considered that contracting for the purposes of satisfying unmet need was not required as within the sphere of criminal PFLA unmet need had not arisen (Leg). Finally, it was argued that in England, such an approach had led to a reduction in the number of firms wishing to carry out legal aid work (Leg).

11.9 Summary Points

• Around half (52%) of those who provided a view favoured a national co-ordinating body taking on the responsibility for the planning and co-ordination of the delivery of criminal in addition to civil PFLA. However, a significant minority (33%) of respondents were opposed to this proposal.
• No clearly favoured view emerged in relation to whether there should be a more general use of salaried solicitors, through the PDSO for the provision of criminal PFLA, alongside private practice provision.
• Around two-thirds (68%) of those providing a firm view were in favour of pursuing the suggested non-remuneration methods to encourage and maintain provision of PFLA in criminal cases.
• Very few alternative suggestions were made with the only recurring comment focusing on a rise in the remuneration of solicitors providing PFLA.
• The majority (62%) of those who provided a view was in favour of SLAB being given the flexibility of operation to allow it to pursue these methods. However, a significant minority (31%) of respondents was opposed to the proposal.
• Around two-thirds (65%) of those who provided a view favoured SLAB being 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.
• Whilst the majority (59%) of consultees who responded favoured the proposal that SLAB should be able to make greater use of salaried or employed solicitors through PDSO, a significant minority (41%) opposed the proposal.
• A slight majority (53%) was against SLAB being able to use contracting with private practitioners to provide legal aid services. However, a significant minority (41%) favoured this proposal.

« Previous | Contents | Next »