Advice For All: Publicly Funded Legal Assistance in Scotland ? The Way Forward: Analysis of Written Consultation Responses

Executive Summary

A Scottish Executive Justice Department consultation "Advice for All: Publicly Funded Legal Assistance in Scotland" took place between 17 June 2005 and 9 September 2005. A consultation paper was issued to which 65 responses were received from a wide range of individuals and organisations with an interest in reforming the present system of publicly funded legal assistance in Scotland. This report presents an analysis of the responses to the written consultation.

The consultation paper set out Scottish Executive proposals for the way forward in publicly funded legal assistance in Scotland. It dealt with publicly funded advice and services provided by lawyers and advice by non-lawyers in the public and voluntary sectors. The consultation paper highlighted far reaching options for reforming the present system including a new structure to allow more people to benefit from civil legal aid and assistance in Scotland. Other key proposals were:

Providing people on moderate incomes, but earning more than the current threshold of eligibility for legal aid, with some financial support to pursue their cases;
Allowing the Scottish Legal Aid Board additional powers to improve delivery of civil publicly funded legal assistance and to ensure adequate provision by a range of methods, including the ability to fund non-solicitors;
Transferring the granting of solemn criminal legal aid from the courts to the Scottish Legal Aid Board to ensure better transparency and consistency and ensure better value for money for the public purse;
Considering the introduction of means tested contributions in criminal publicly funded legal assistance with the aim of making sure that those who can afford to pay towards their own defence should do so.

The response to the consultation was modest compared with other Scottish Executive written consultations and represented professional organisation and individual views. One third (34%) of responses were submitted by legal bodies with 31% of responses from voluntary sector organisations. The remaining respondents comprised largely local authorities and professional individuals. The views of members of the public were invited during a separate series of focus groups, and their views form the basis of another report.

The findings from the consultation will inform the development of reforms aimed at ensuring appropriate access to civil and criminal justice in Scotland, and the tackling of key issues such as rising trends in expenditure on criminal legal aid and the possible unmet need for legal advice and help on civil matters.

Summary of views expressed

Part 1: Publicly Funded Legal Assistance on Civil Matters

Chapter 4: Framework for Change

Of those who expressed a view, a slight majority (57%) was in agreement with the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities.
The consensual approach was seen as providing the flexibility for national priorities to be interpreted and applied at a local level.
The most common argument emerging from those respondents who supported a statutory duty on local authorities to ensure the planning and the provision of civil PFLA in their area was that the duty would ensure a comprehensive coverage of services over different geographical areas and different topics on which advice was sought.
Common topics identified by respondents as candidates to include in guidance and support to local authorities in their planning and co-ordination of PFLA were: how to map unmet need and current provision; information on useful toolkits, templates and established systems; articulation of a national policy framework for PFLA and an agreed quality framework for local service provision; and provision of examples of good practice.
A common view was that the Scottish Executive should provide much of the support activity required at least in the short term.
Three-quarters (76%) of those who provided a view were in favour of the establishment of a new national body with planning and co-ordination responsibilities for the delivery of PFLA in Scotland.
The most common reason for favouring the establishment of this body was that this would promote consistency of approach to provision and access to legal aid across Scotland.
Seventy-one per cent of those who responded agreed with the functions proposed for a new national body: national planning and co-ordination; national development and research; and responsibility to ensure provision of services where necessary including second tier services such as training and information.
Of those who provided a view, the vast majority (89%) was in favour of the national co-ordinating body funding provision by non-legally qualified providers as well as solicitors and advocates.
A common theme was that being able to direct people to the most appropriate advice provider who could offer a quality service was more important than issues of whether or not the provider was legally qualified.

Chapter 5: Planning Framework

The vast majority (85%) of those who provided a view was in favour of a national co-ordinating body having the ability to enter into matchfunding arrangements with other funders of PFLA.
Many advantages were associated with the proposed outline planning framework. Common themes were that the proposals appeared to involve a range of stakeholders in contributing to the local plans and that the framework appeared to have the benefit of harnessing both national and local priorities.
A recurring theme was that in fitting the various elements of the planning framework together, lessons could be learned from local authorities, from experience in England and Wales and from pilots.

Chapter 6: Ensuring the Continued Provision of Civil PFLA

Just over two-thirds (68%) of those who expressed a view supported pursuing the non-remuneration based methods suggested to encourage and maintain civil legal aid provision. However, amongst these supporters were many who had no objections to the proposals, but were doubtful about their effectiveness without further significant increases in remuneration for legal aid work.
Of those who expressed a view, fewer than half (47%) considered that the suggested non-remuneration based methods would be effective to any degree.
The most common alternative suggestion to the methods proposed was to increase the remuneration of the solicitors involved in legal aid work.
The majority (60%) of those who provided a view considered that greater use should be made of salaried or employed solicitors for civil PFLA.
It was considered that greater use of salaried or employed solicitors would create greater flexibility in delivery options, provide local communities with a wider choice and access to a solicitor, be cost effective and straightforward.
Of those who indicated a view, a slight majority (55%) was in favour of contracting with private practitioners to provide legal aid services.
Views were relatively evenly spread between those for and against the proposal that 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.
Many of those in favour considered this to be a fair way to proceed. The most common argument against the proposal was that solicitors may "cherry pick" their cases depending on the likelihood of these resulting in enhanced rates.

Chapter 7: Reforming Civil Advice and Assistance

The vast majority (81%) of those who provided a view was in favour of SLAB being able to fund provision by non-legally qualified advisers as well as solicitors and advocates.
The strength of support for this proposal was far greater amongst non-legal bodies and individuals (93%) than that expressed by legal bodies (57%).
A recurring comment was that non-legally qualified practitioners were already making a significant contribution to the delivery of legal advice and would continue to have much to offer.
The vast majority (88%) of those who responded agree that SLAB should be able to administer an outlays fund that could be accessed by non-legally qualified providers.
A common theme was that this arrangement would avoid the need for non-legally qualified providers to have to refer cases to a solicitor simply to obtain necessary reports.
The vast majority (85%) of those who commented was in favour of the introduction of an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience.
The most commonly cited benefit was that the incentive of the enhanced rate would encourage more solicitors to develop skills in specialist areas of law in which high quality advice could, at present, be difficult to access.

Chapter 8: Ability to Pay and Financial Eligibility: Possible Significant Changes

A sizeable majority (88%) of those who responded was in favour of extended and tapered financial eligibility for civil legal assistance.
A common theme was that too many people were currently excluded from receiving legal aid and the proposals would widen access to meet needs.
The main features of an extended and tapered scheme were identified as: a higher income threshold than at present; provision for payments by interest free instalments; protection against the risk of meeting the costs of the opposing side; greater clarity of operation and of eligibility criteria.
Regarding clawback arrangements, respondents requested greater clarity in their operation; a greater consistency between the clawback arrangements under A&A and civil legal aid; and a review of the range of exemptions with a view to extending the current list.

Chapter 9: Ability to Pay and Financial Eligibility: Other Changes

A large majority (92%) of those who responded was in favour of the disregarding of state benefits in the financial assessment for civil legal aid.
Arguments in favour of their disregard focused on stressing that state benefits should be seen as a safety net of basic living expenses; and attempting to achieve a greater consistency between civil legal aid and A&A.
All but one of the respondents who expressed a view favoured allowing SLAB to collect contributions for civil legal aid over a longer time period.
Ninety-five percent of those who expressed a view favoured SLAB being able to make flexible arrangements for the repayment of contributions, including the use of instalments for contributions from capital.
The vast majority (90%) of respondents supported the proposal that a legally assisted person should be required to inform the Board of changes in their financial circumstances over the lifetime of their civil case.
Most (92%) of those who commented were in favour of changing the test of "severe financial hardship" in Section 19 of the Legal Aid (Scotland) Act 1986 to one of "financial hardship".
A recurring comment was that this change would bring about a greater fairness to the non-legally aided party who may have had little choice in being taken to litigation.
Respondents were almost evenly split between those who saw justification for further relaxation of the terms of Section 19, those who did not see any justification for this proposal, and those who were unsure whether further relaxation was justified or not.
Two-thirds (66%) of those who responded advocated introducing regulations to specify how the courts should determine the liability of the unsuccessful legally aided party.

Chapter 10: The Scope of Civil Legal Assistance

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.

Part 2: Publicly Funded Legal Assistance on Criminal Matters

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

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.

Chapter 12: Proposals for Specific Change in Criminal Legal Assistance

Equal proportions of those who responded favoured and opposed the principle of developing a contributory system for the full range of publicly funded legal assistance.
Of the practical difficulties associated with a contributory system identified by respondents 2 themes dominated: compromising justice and difficulties in enforcement/collection of contributions.
A slight majority (53%) of those who responded was in favour of putting arrangements in place to refund contributions paid by people who are later acquitted. However, a sizeable minority (41%) opposed this proposition.
The majority view (58%) was opposed to the transfer of responsibility for granting criminal legal aid in solemn cases from the courts to SLAB. However, although a clear majority (77%) of legal bodies opposed the proposal, a slight majority (55%) of other respondents favoured this transfer of responsibility.
A recurring theme was that the proposal would result in delays in solemn proceedings. Others defended the expertise of the courts in assessing financial circumstances and eligibility.
All of those who provided a view agreed that SLAB should be given powers in solemn cases to recover costs from applicants who have made false disclosure of their means.
The majority (61%) of those who responded favoured SLAB being given the powers in solemn cases to terminate publicly funded legal assistance where this is appropriate.
The majority view (69%) was in favour of specific financial eligibility criteria applying across all criminal legal aid.
A variety of suggestions was made as to appropriate criteria to use, including ability to pay, seriousness of charge and undue hardship.
Almost two-thirds (63%) of those who provided a view favoured the introduction of a requirement to report material changes in financial circumstances during the lifetime of a case, to allow for a reassessment of eligibility.
Views were evenly divided between those favouring the termination of criminal legal assistance if the applicant is reassessed as being no longer eligible, and those opposed to this proposal.

Chapter 13: Changes to Summary Criminal Legal Assistance

The vast majority (80%) of those who provided a view was in favour of the development of a single integrated system for publicly funded legal assistance in summary criminal cases.
Integration was seen as providing greater value to the taxpayer and facilitating a more streamlined and efficient model of working.
Very few (6) respondents addressed the question of how a PFLA system in relation to criminal matters could take account of the proposals for summary criminal reform set out in the White Paper, "Smarter Justice, Safer Communities".
Recommendations included moving the 2 sets of reforms forward in tandem, sharing common goals and early engagement between the profession and stakeholder agencies.

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