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Chapter 3: General Comments on the Consultation Process and Content
Although most of the comments submitted focused tightly around the questions raised by the consultation, several respondents added more general commentary on the consultation process and/or broad issues relating to publicly funded legal assistance ( PFLA). A representative selection of this commentary is presented here.
Some respondents welcomed the exercise as a significant step forward:
" This consultation paper is a critical leap in a direction (we) have been advocating for years, and (we) therefore warmly welcome it" (Vol)
The consultation was seen as having the potential to impact positively to improve access to a range of legal assistance for people disadvantaged on account of disability, race or gender (Vol). Many consultees noted favourably the net cast widely by the consultation in terms of embracing a broad range of stakeholders, " who fund and provide legal advice" (Indiv). Others (Vol, Leg) praised the aims of PFLA, as outlined in the paper:
- To help with early resolution of legal problems;
- To promote effective access where necessary to formal dispute resolution mechanisms;
- To contribute to greater social inclusion and to help close the opportunity gap in Scotland.
However, set against these positive comments were those of many respondents who held particular concerns about the consultation process and/or the content of the document.
One respondent considered that there appeared to be several related consultation exercises at different stages of progression which could, in their view, lead to a, " climate of continuing uncertainty" (Leg). Two consultees criticised the document for what they saw as its tendency to make assertions without the backing of hard evidence:
" I find the document very unsatisfactory. It lacks any specification and seems to just come out with comments without any evidence to support it… no facts or figures are given. It is difficult, therefore, to give completely detailed mature reflection to what is being suggested in the absence of figures" (Leg)
Another criticism from one respondent was that the definition adopted for PFLA seemed to them to cover too wide a range of activities, which could, in their view, create confusion when trying to think strategically, to assess need, and maintain and co-ordinate PFLA (Indiv). This consultee disagreed that PFLA should be charged with contributing to greater social inclusion, arguing that:
" the objectives of those responsible for the provision of PFLA in Scotland should not be confused with some unfocused and unspecific social change agenda which has nothing to do with the effective, efficient, accessible, fair, relevant and publicly approved delivery of an essential public service" (Indiv)
One recurring theme emerging from many of those harbouring concerns about the consultation proposals was that some (especially those related to criminal matters) may result in more bureaucracy, delays in process and inconvenience for those involved. A typical comment was:
"..will inevitably lead to delays and disruption to the resolution of cases, causing added inconvenience and stress to the accused, witnesses and victims and added expense throughout the summary criminal justice system" (Leg)
Another overarching theme to emerge from across different respondent sectors was that until what was seen as the fundamental issue of under-resourcing of the legal aid system is tackled, then other proposals, however worthy, amounted to tinkering around the edges of the system. One respondent expressed their view thus:
"The crux of the matter is that civil legal aid needs more funding not more bureaucracy" (Vol)
Despite these reservations, the general mood of respondents was one of engaging with the consultation and the issues it raised. One respondent (Leg) posed further questions which they considered of relevance to the exercise:
- What can be done to reduce bureaucracy?
- Should the legal aid fund be split between civil and criminal legal aid?
Others identified what they saw as key omissions which they felt merited inclusion in the document:
- Emphasis on role of mediation (Vol)
- Emphasis on role of Alternative Dispute Resolution (Vol)
- Potential use of new technology (Vol)
The following 10 Chapters document the substance of the analysis, presenting the main issues, arguments and recommendations contained in the responses. These follow the ordering of issues raised in the consultation document and are divided into those pertaining to civil matters (Part 1) and those relevant to criminal matters (Part 2).
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