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Chapter 6: Ensuring the Continued Provision of Civil Pfla

The consultation stated:

A framework for better planning and co-ordination of civil PFLA is particularly relevant in the context of concerns which have recently been expressed over the future supply of services. Judicare provision, whereby legal aid services are delivered by solicitors in private practice paid for by public funds, is and will continue to be, a primary mechanism for delivery of civil PFLA in Scotland. There is however consistent anecdotal, if little empirical, evidence that difficulties may arise in the medium to long term in civil judicare provision, because of a lack of solicitors in private practice who are willing and available to take on publicly funded work. At the same time funding arrangements for voluntary sector provision are often described by service providers as insecure, thus threatening continuity and development of services.

Any strategy to tackle such supply problems needs to be based on fuller knowledge of the extent of and reasons for any supply shortages. We embarked on research together with SLAB and the Law Society of Scotland to establish whether, by what extent and why there may be shortages of new entrants to legal aid work or some degree of withdrawal from legal aid work by existing practitioners.

In the long term we believe that a planning and co-ordination framework as set out above would create a structure in which issues of supply could be tackled. In the short to medium term we believe that recent and imminent increases in remuneration for civil legal aid and A&A work have started to address the issue. However, we do not think that further substantial increases in legal aid rates would fully address all possible future supply problems.

We wish to take action to ensure that there are and will be no problems with the provision of legal aid services and we therefore intend to enable SLAB to adopt measures not directly based on remuneration rates to encourage private practitioners to undertake legal aid work and to encourage new entrants into the system. These might include measures to improve the cash flow of legal aid firms, assistance in the repayment of student loans for trainees embarking on a "legal aid traineeship" or assistance for firms providing such traineeships.

6.1 The consultation asked:

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?

Overall, 37 consultees (57%) responded to this question, with 34 providing a view on whether they believed that the suggested non-remuneration based methods to encourage and maintain civil legal aid provision should be pursued. The remaining 3 respondents provided commentary only. Table 6 provides a summary of the views expressed.

Table 6: Summary of views on whether the suggested non-remuneration based methods to encourage and maintain civil legal aid provision should be pursued

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

Just over two-thirds (68%) of those who expressed a view supported pursuing the non-remuneration based methods suggested. However, amongst these supporters were many who had no objections to the proposals but were doubtful whether, in the absence of any significant increases in remuneration for legal aid work, the methods alone would make much of an impact on new entrant and existing supply levels. One comment summed up the mood of many:

"…supportive of the concept of non remuneration based methods to encourage civil legal aid provision, but are unconvinced that these will address the continued decline in traditional civil legal aid provision unless coupled with more adequate remuneration for carrying out such work" (Leg)

Others suggested that further research should be undertaken to help to understand more precisely the reasons for the decline in solicitors willing to undertake legal aid work before measures can be developed to tackle the underlying problems identified (Leg, Indiv). A similar view was that the methods proposed could be helpful, but these were not the only options which could be implemented to stem the decline (Vol).

One respondent was keen to see the proposals operating in local authorities with a poor record of commitment to legal advice provision (Oth). Another urged that the scope of the proposed methods be extended to cover local authorities and other organisations in addition to legal firms ( LA). However, a contrasting viewpoint was that the proposals were acceptable so long as the incentives were not applied to non-legally qualified advisors ( LA).

One consultee made the suggestion that Scotland could learn from the current situation in England and Wales whereby, it was reported, the Legal Service Commission provides substantial funding for traineeships with a view to encouraging legal aid practice (Leg).

Set against these relatively supportive comments were those of a minority of respondents who had several concerns about the proposals to introduce non-remuneration based methods to encourage and maintain civil legal aid provision. One consultee considered the proposals to be overly simplistic (Leg), with another arguing that there could be considerable administrative barriers associated with repaying student loans and the various funding arrangements required (Leg). Concern was expressed by a few respondents that as legal advice has increased in complexity, the proposals may not represent the best way to achieve an effective service (Leg). It was commented that one outcome may be legal aid work carried out by trainees and less experienced practitioners (Leg). One view was that trainees may stay long enough in legal aid work to reap the benefits then leave to a different area of work (Leg).

Finally, one respondent reported being uncomfortable with the proposed bringing together of public administration and finance with private enterprise and all of its associated risks (Leg).

6.2 The consultation asked:

Q8b): How effective do you think that such methods (non-remuneration based) would be?

To some extent, this question overlapped with the previous question which probably led to a lower number of respondents addressing it specifically. In total, 30 consultees (46%) provided a response. Their views are summarised in Table 7 below.

Table 7: Summary of views on how effective the suggested non-remuneration based methods would be in encouraging and maintaining civil legal aid provision

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

Of those who expressed a view, fewer than half (47%) considered that the suggested non-remuneration based methods would be effective to any degree. Again, a key theme was that these methods could only, " scratch the surface" (Leg) and were, " simply tinkering with far more deep rooted problems" (Leg) in the absence of tackling what was seen by many as the fundamental problem of under-funding legal aid provision (Vol, Leg).

A few respondents suggested that the effectiveness of the proposed measures could be enhanced by, for example, complementing them with other approaches (Vol), or ensuring that trainees stayed in post for a set period after qualifying ( LA). Others argued that their effectiveness may depend on the level of engagement of all relevant parties (Oth, LA). On a positive note, one consultee emphasised the importance of publicising widely any successful deployment of these methods and offering the inducements to non-legal partners also to make it less likely that they will feel undervalued by them (Oth).

Of those who considered that the proposed measures would not be effective, some qualified their judgement. Views were that some of the measures were not particularly enticing, for example, paying monthly instalments of a student loan during a traineeship (Leg). Another opinion was that the measures may be rendered less effective due to the relatively transient nature of solicitors in this sector (Leg). It was argued that similar incentives existed in competing areas of law but were reinforced by better remuneration rates (Leg).

For one respondent, financial inducements alone could not tackle the problem which in their eyes was, " a question of status and prestige" also (Indiv).

Finally, one view was to empathise with the difficulties involved in designing incentive measures which did not restrain trade and provide unfair contract terms. This respondent also saw the need to ensure that any measures provided Best Value for the taxpayer rather than simply putting public funds into private businesses (Leg).

6.3 The consultation asked:

Q8c): Do you have any alternative suggestions?

Twenty-two respondents (39%) addressed this question. The majority (14) commented that the most effective way to address the decline in solicitors willing to work in legal aid, was to increase their remuneration. One comment was:

" The Executive are being willfully blind if they think that remuneration is not an issue in the failure to attract members to this sector of the profession" (Leg)

Amongst the others, however, emerged a number of suggestions for attracting people to work in this field or filling the gap in service provision:

• Introduce awards for loyalty from trainees ( LA)
• Offer public funding of traineeships within law firms carrying out a certain percentage of legal aid work (Leg)
• Encourage universities to make students aware of the opportunities existing (Vol)
• Establish posts for legally qualified non-solicitor advisers (such as many of the in-court advisers already in post (Vol)
• Develop role of non-legally qualified solicitor advisers ( LA)
• Offer interim payments under the existing scheme so payments are more frequent and more reliable (Leg)
• Offer complete payment of student loans (Leg)
• SLAB to offer traineeships within an expanded salaried service with some strategic funding to encourage niche subjects where provision may be in short supply (Leg)
• SLAB to develop a more substantial role in delivering training on legal aid directly to solicitors and trainees solicitors (Leg)
• Offer fast-track legal qualifications to individuals who have other related skills, such as advisers who have met set competency standards (Vol)
• Further development of para-legal advisers - who could train in specific areas of law without becoming a fully qualified solicitor (Vol)
• Publicise successes widely with the firm or organisation taking a successful case under legal aid receiving the " positive ramifications" of the " win" ( LA)
• Pay private practitioners working within legal aid quarterly and in advance (as they do in the Netherlands) (Indiv)

6.4 The consultation stated:

In the short to medium term we also need to have mechanisms in place to ensure adequate provision of solicitors' services. We propose that SLAB be given more flexible powers, within the context of its current role and functions, to be proactive in securing provision, such as:

• Direct employment of solicitors, based in public sector offices, private practices or voluntary sector agencies. Sections 26(1)(a)and (b) of the Legal Aid (Scotland) act 1986 give SLAB powers to employ solicitors to provide legal aid services directly, subject to regulations. At present these powers are not used in the civil context and no appropriate regulations have been made; and
• The use of contracting with private practitioners to provide legal advice services. The current primary legislation does not provide for the use of contracting by SLAB in civil legal assistance.

The consultation asked:

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?

Overall, 42 respondents (65%) addressed this question. Their views are summarised in Table 8 below.

Table 8: Summary of views on whether greater use should be made of salaried or employed solicitors for civil PFLA

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

The majority (60%) of those who expressed an opinion considered that greater use should be made of salaried or employed solicitors for civil PFLA. However, a substantial minority (40%) of respondents did not agree with this proposal or were not sure at this stage whether it should be supported

6.4.1 Views in Favour of Greater Use of Salaried or Employed Solicitors for Civil PFLA

Respondents considered that by making greater use of salaried or employed solicitors to deliver civil PFLA services, this would create greater flexibility in delivery options ( LA), provide local communities with a wider choice ( LA) and access to a solicitor (Leg), be cost effective ( LA) and straightforward ( LA). One consultee urged that such solicitors be employed locally on the basis of need, rather than nationally by a central government agency (Leg).

It was suggested that benefits would accrue to the agencies housing the salaried or employed solicitors, such as skill development within the wider organisation (Vol) and the provision of training and development opportunities (Leg). This arrangement was also seen to offer opportunities for benchmarking of standards (Leg).

One view was that current Legal Aid Centres provided an appropriate model of working ( LA), whilst other consultees argued that the Part V (of the Legal Aid (Scotland) Act 1986) Pilot Scheme had been a success and demonstrated how salaried solicitors can be employed to provide certain types of advice (Indiv, Vol). Another precedent raised by one respondent was the way in which many local authorities employed their own salaried solicitors (Indiv).

6.4.2 Views Against Greater Use of Salaried or Employed Solicitors for Civil PFLA

Some of the views against greater use of salaried or employed solicitors were in direct contrast with those in favour. For example, it was thought that the proposal would restrict choice (Leg), be very expensive to run (Leg), with precedents such as the Community Legal Service in England and Wales, and PDSO in Scotland, demonstrating little success (Oth, Indiv). One comment was that it would be foolish to try to set up a new system when private firms already have appropriate arrangements in place to deliver PFLA (Leg).

Respondents were concerned that specialist legal advice could be a casualty of the system (Leg), with sector groups such as Women's Aid suffering a loss of competent service as a result (Vol).

Concerns were raised that solicitors salaried or employed to deliver PFLA could be less accountable than others (Leg), and perhaps not as motivated as their colleagues in the private sector to provide a high standard of service since they will not have to strive constantly to ensure client retention (Leg).

6.4.3 Other Comments Regarding Use of Salaried or Employed Solicitors for Civil PFLA

Other respondents passed more general comments on the proposal to use salaried or employed solicitors to deliver civil PFLA. A recurring theme was that a preferable option would be for local solicitor firms to employ salaried solicitors (Vol, Leg) or firms to comprise all salaried solicitors (Leg). One view was that it may still be difficult to recruit and retain such solicitors particularly if their remuneration was less than that of their private counterparts (Leg).

Another common theme was that the use of salaried or employed solicitors could set up conflicts of interest between them and the organisations in which they are housed (Vol, Leg). It was stressed that to counteract this, they would need to be seen as truly independent, particularly if they were involved in challenging, say, a Government decision (Oth, Indiv).

A few consultees cautioned against over-using salaried or employed solicitors for issues such as welfare rights and money advice, which were already adequately covered by non-legally qualified providers ( LA).

6.5 The consultation asked:

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?

Overall, 34 respondents (52%) addressed this question. Of these, 29 provided a firm view with the other 5 respondents providing relevant commentary. The firm views are summarised in Table 9 below.

Table 9: Summary of views on whether there should be contracting with private practitioners to provide legal aid services

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

Of those who indicated clearly a view, a slight majority (55%) was in favour of contracting with private practitioners to provide legal aid services. Consultees in favour of the proposal outnumbered those against by a ratio of 2:1. As before, the significant minority of respondents (17%) who stated that they were unsure of whether to support the proposal or not, demonstrates, perhaps, the complexities of the issues and options under discussion.

6.5.1 Views in Favour of Contracting with Private Practitioners to Provide Legal Aid Services

Contracting with private practitioners to provide legal aid services was seen as a way to provide greater flexibility of delivery options ( LA) and wider choice for local communities ( LA). This was viewed as a straightforward way of proceeding ( LA), which would encourage suppliers of legal aid provision (Indiv) and make best use of private sector experience ( LA). Permitting such an arrangement was seen as a way of ensuring a more consistent provision of legal aid service across the country (Indiv) and providing SLAB with more scope to respond to local shortages of provision (Leg).

Many consultees qualified their support of the proposal by stating conditions under which they thought that the scheme should operate. For example, it was stressed that the contracting mechanism should be transparent with contracts closely monitored and a right of appeal where contracts are not granted or terminated (Indiv). One respondent advised against competitive tendering on price in order to avoid what they saw as the resulting undesirable " race to the bottom" (Indiv).

Others urged that the system should not try to replace other delivery provision (Vol) and should be properly funded (Vol) in order to provide realistic remuneration rates (Leg). A few consultees were concerned that this arrangement should not prove to be more costly than standard legal aid remuneration costs ( LA, Leg), and that solicitors operating under the scheme should not be granted more favourable treatment from SLAB than their counterparts outwith the contracted system (Leg).

Calls were made for safeguards to be developed to ensure continuing quality and independence of legal advice under the scheme (Indiv). Others argued for a further extension of the proposals to include competent non-legally qualified practitioners (Vol, Oth). A plea was made for choice of individual solicitor to be retained, rather than users having to draw advice from a general " bank" of legal advisors (Vol). Finally, one suggestion was for piloting of the arrangement to precede any roll out (Leg).

6.5.2 Views Against Contracting with Private Practitioners to Provide Legal Aid Services

The most common theme to emerge amongst those opposing the proposal to contract with private practitioners to provide legal aid services was that this would reduce choice and flexibility in the system (Indiv, Leg, Vol). For example, one respondent outlined how, in their view, contracts would be need to set out specific details such as the amount of casework to be delivered, which could lead to problems if this was not achieved (Vol).

Another theme was that this arrangement may slow down the delivery of legal advice on account of the added bureaucracy of attending to contracts (eg renewing, negotiating) (Vol, Leg). Others envisaged a possible exodus of practitioners from PFLA work on account of the additional bureaucracy involved (Leg) and a gradual lowering of standards (Leg). One view was that this would prove to be a relatively expensive route to follow (Leg).

In the context of considering contracting with private practitioners to provide legal aid services, several respondents expressed their support for an alternative way of working via specialist franchising of firms, for example to provide personal injury advice (Leg, Indiv), or via Law Centres built around social welfare law (Leg).

6.6 The consultation stated:

A further method that has been suggested to maintain the provision of civil legal assistance by private practitioners and to encourage new entrants is to allow enhance fees (ie fees that are higher than the normal legal aid rate) to be recovered from property or preserved at the end of the case: such a system would introduce a higher rate to be paid if a substantial asset exists at the end of the action. This has been under discussion, but no detailed proposals have as yet been developed.

Although this would increase the profitability of some civil legal aid work, we have concerns that there may be a danger that it could give rise to incentives which run contrary to the delivery of a public service, and encourage practitioners to take on work in which there is a possibility or likelihood of an enhanced fee over that in which there is none.

The consultation asked:

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?

Overall, 39 respondents (60%) addressed this question. Of these, 34 provided a firm view with the other 5 respondents providing relevant commentary only. The firm views are summarised in Table 10 below.

Table 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

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

Although those who were against the proposal outnumbered slightly those in favour, views overall were relatively evenly spread amongst those for and against, and, indeed, those who did not know at this stage whether or not to support the proposal. One respondent commented that this " thorny issue" needs much more attention before any final decision is made on its implementation (Leg).

6.6.1 Views in Favour of Legally Assisted Parties Paying Enhanced Rates if Able to Meet the Full Cost at the end of their Case

A recurring theme was that this appeared to be a fair way to progress ( LA, Leg). According to one respondent, certain cases could turn out to be " self financing" (Indiv). Another argued that a successful legally aided party should not be in a better financial position than the party who has funded their case privately and yet this was a, " current unintentional by-product of the present system" (Leg).

However, amongst cautious supporters of the proposal were those who agreed that it may make certain cases more attractive to solicitors (Oth) and could compromise the provider on occasion to perhaps accept a poor settlement in order to benefit financially overall (Leg). Many urged that appropriate safeguards be introduced to preserve the integrity of the system and prevent abuse (Oth, Leg).

Others considered the proposal to be viable only in circumstances where the client has gained a substantial improvement in their assets or income (Leg, LA). Another view was that the system could be fair only if clients were sure, from the outset, about the basis on which they would be paying (Leg).

An interesting idea emerged from one respondent (Indiv) who suggested that the Hong Kong Contingent Legal Aid Fund may be worthy of investigation in this context. Under this system, the successful client pays a premium to the fund which can be used to fund the less successful cases of others.

6.6.2 Views Against Legally Assisted Parties Paying Enhanced Rates if Able to Meet the Full Cost at the end of their Case

Many arguments were outlined in opposition to the proposal. A few consultees stated simply that they were unsure what the overall rationale was for the suggestion (Vol, LA). One specific comment was that just because a person has won their case does not change the fact that at the time of need of legal advice, they could not afford to pay ( LA). Another queried the justification of what was proposed within a context of fair reward for work done (Leg).

The most common theme to emerge was that the proposal was flawed as it would encourage solicitors to "cherry pick" their cases depending on the likelihood of these resulting in enhanced rates (Vol, Oth, Leg, LA). Another recurring theme was that people needed to be aware of the likely costs of their case prior to raising the action and the proposal would introduce an element of uncertainty ( LA). Likewise, one consultee argued that small legal firms need to be sure about the ultimate basis for and level of payment for their services prior to undertaking work (Leg).

Several respondents felt that this proposal would introduce unfairness in that people may be disadvantaged by having to pay more simply because they had succeeded in their cases ( LA, Vol). Specific situations were identified as examples of what respondents considered were inappropriate to include within the scheme. These included women having recovered assets following a divorce settlement (Vol), or people winning benefit cases and being awarded benefit payments in arrears ( LA, Oth, Vol). It was suggested that the difficulties associated with such specific cases could be addressed by making explicit that certain gains in assets should be excluded from the scheme (Vol).

Many respondents opposed the proposal on the grounds of what they saw as its potential to curtail basic rights to justice. It was considered that having to pay an enhanced rate depending on outcome may be a disincentive to some people to take their case forward ( LA, Oth). One consultee remarked candidly that it was inappropriate to address the issue of under-funding PFLA by relying on a small group of socially excluded individuals to rectify the situation by paying enhanced rates (Vol).

6.7 Summary Points

• 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.

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