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A Scottish Executive Justice Department written consultation on 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. The written consultation was supplemented by qualitative research. Eight focus groups with members of the general public were held between 12 - 23 September 2005 at which issues raised in the written consultation were discussed by a total of 64 participants. This is a summary of the analysis of the responses to the written consultation (undertaken by The Research Shop) and the findings from the qualitative research (undertaken by MRUK).

The findings from both exercises 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.

Main Findings

Civil Matters

• Members of the public placed importance on rational and transparent decision-making at a local level as a basic principle for a framework for change of publicly funded legal assistance ( PFLA) for civil matters
• Amongst respondents to the written consultation, the slight majority (57%) view was in favour of a consensual approach (rather than a statutory requirement) to developing better planning and co-ordination of services by local authorities
• The majority (76%) view amongst written consultees was in favour of establishing a new national body with planning and co-ordination responsibilities for the delivery of PFLA in Scotland
• Both professional respondents to the written consultation and members of the public focus groups generally supported the notion of salaried or employed solicitors for civil PFLA. Differences emerged between these 2 respondent sectors, however, in their views on how accountable and motivated salaried solicitors might be compared with their private sector colleagues
• Different views emerged on the issue of contracting with private practitioners to supply civil legal aid services. Whereas a slight majority (55%) of respondents to the written consultation favoured this proposal, it drew criticism from all of the focus groups
• Views were mixed on whether legally assisted parties should be asked to pay enhanced rates at the end of their case if they are then able to meet the full costs. Both professional written consultees and public focus group participants considered that this may give rise to solicitors selecting those cases likely to result in enhanced rates
• There was much support from written consultation respondents and public focus group participants alike for the proposal that the Scottish Legal Aid Board ( SLAB) should be able to fund provision by non-legally qualified advisers as well as solicitors and advocates
• A common theme amongst written consultation respondents and focus group participants was that too many people were currently excluded from receiving legal aid and proposals to widen access by extending and tapering financial eligibility should be welcomed. A large majority (92%) of written consultation respondents was in favour of disregarding state benefits in the financial assessment for civil legal aid

Criminal Matters

• The principle of "best possible value for the public money invested" in criminal legal aid matters was of key importance to members of the public taking part in the focus groups
• Around half (52%) of those responding to the written consultation was in favour of a national co-ordinating body taking on responsibility for planning and co-ordinating the delivery of criminal, in addition to civil, PFLA
• Much support (68% of respondents) was expressed from written consultees for the pursuit of non-remuneration methods to encourage and maintain provision of PFLA in criminal cases
• The majority of focus group participants welcomed the proposal to widen the use of the Public Defence Solicitor's Office ( PDSO) for provision of PFLA services. Whilst the majority (59%) of professional respondents to the written consultation also favoured SLAB making more use of salaried or employed solicitors through the PDSO, a significant minority (41% and comprising largely legal bodies) opposed this move.
• The majority view (58%) amongst written consultation respondents was opposed to the proposed transfer of responsibility for granting criminal legal aid in solemn cases from the courts to SLAB
• The majority (61%) of written consultees favoured SLAB being given the powers in solemn cases to terminate PFLA where appropriate
• Most (80%) written consultees who provided a view were in favour of the various existing schemes for assistance in summary cases being streamlined to create a unified structure

Context

The process of reforming and modernising legal aid in Scotland began with the deliberations and report of the Justice 1 Committee in the first session of the Scottish Parliament (November 2001). In 2003/4 a Strategic Review of the Delivery of Legal Aid, Advice and Information was conducted, the first comprehensive review of the operation of the 1986 Legal Aid Act. The Review made recommendations for changes in the system of legal aid and advice and related arrangements for the provision of a wide range of advice.

The written consultation paper contained proposals for strategic reforms, based on the findings of the Strategic Review, including fundamental changes to the ways in which publicly funded legal assistance ( PFLA) is provided as well as technical and administrative improvements to the existing legal aid system. The qualitative research probed public opinion on a selection of key proposals and topics included in the written consultation.

The Consultation

The written consultation became live on 17 June 2005 and closed on 9 September 2005. Over 300 copies of the consultation paper were distributed to a wide range of interested organisations and professional individuals. The consultation paper summarised recent, current and proposed changes to PFLA in Scotland. It set out a vision for the future and made specific proposals for change. Forty questions were posed as a framework for respondents' replies.

A press release helped publicise the consultation paper which was made available on the Scottish Executive and other national websites. A series of face-to-face events and seminars also contributed to encouraging relevant debate and response.

Sixty-five responses were received with legal bodies comprising the largest respondent sector (34% of responses).

The written consultation was supplemented by qualitative research with members of the general public. Eight focus groups were held between 12 - 23 September 2005 at which issues raised in the written consultation paper were discussed by a total of 64 participants.

Aims and Objectives

The aim of the research were:

• to analyse the comments contained in written responses to the consultation on Publicly Funded Legal Assistance in Scotland; to present the findings of the analysis and to identify any gaps in respondent sector;
• to gather opinions held by members of the general public regarding a selection of key proposals and topics included in the written consultation.

Methodology

Responses to the written consultation were sent to the Scottish Executive consultation team either in hard copy or via e-mail. The consultation team sent copies of each response to The Research Shop for analysis. The consultation attracted a relatively modest volume of responses. Legal bodies comprised the largest respondent sector (34%) but voluntary sector organisations (31%) and local authorities (23%) also contributed significantly to the overall submissions.

Compared with other written consultations, this exercise attracted relatively greater response from representative equality bodies. One possible gap in respondent organisations emerged as the Sheriff Courts.

An electronic Excel database was used to store and assist analysis of the responses. Most of the analysis was qualitative in nature although where scope for quantitative analysis existed, this was exploited.

Eight focus groups with members of the public were held by MRUK to supplement the written consultation findings. These involved 64 participants aged 25 years and over. Both genders were represented with the focus groups structured to include a socio and geo-demographic mix.

In view of the complexity of some of the topics for discussion, deliberative techniques were adopted by the researchers to enable the focus group discussions to be informed and placed in context.

The following summary of responses focuses largely on the topics which were covered by both consultations. A wider range of issues, not included in the qualitative research, was included within the written consultation, an analysis of which has been published separately.

Civil Matters

Framework for Change

Focus group participants discussed the underlying principles of civil PFLA as outlined in the written consultation document. Participants placed particular importance on the principle that service provision should be based on rational and transparent decision making, which they saw as vital in facilitating "access for all".

Amongst those responding to the written consultation, the slight majority (57%) view was in favour of the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities. This was seen as providing the flexibility for national priorities to be interpreted and applied at a local level. In contrast, the most common argument in favour of a statutory duty on local authorities to ensure the planning and provision of civil PFLA in their areas was that this would ensure a comprehensive coverage of services over different geographical areas and different topics on which advice was sought.

Focus group participants expressed concern that access to many services, including legal provision, could be difficult in rural areas and that a transparent process which incorporated needs assessment at the local level was important to address this.

The majority view (76%) amongst those responding to the written consultation was in favour of establishing a new national body with planning and co-ordination responsibilities for the delivery of PFLA in Scotland. Respondents considered that this would promote consistency of approach to provision and access to legal aid across Scotland. Most (85%) of those who provided a view agreed that a new national body should have the ability to enter into matchfunding arrangements with other funders of PFLA.

Ensuring the continued provision of civil PFLA

Concerns about the future supply of civil PFLA were raised in both the written and qualitative consultations. It was suggested that difficulties may arise over the medium to long term due to a lack of solicitors willing and available to take on PFLA. Proposals were tabled by both consultation exercises to address this potential problem.

Respondents to the written consultation gave the proposals their support:

• 68% supported pursuing non-remuneration based methods to encourage civil legal aid provision
• 60% considered that greater use should be made of salaried or employed solicitors for civil PFLA
• 55% were in favour of contracting with private practitioners to provide legal aid services

Participants within the focus groups also responded favourably to the notion of salaried or employed solicitors for civil PFLA. However, the rationales of the general public on this matter contrasted with those of the professional respondents to the written consultation. Whereas the former considered that publicly salaried solicitors would be more accountable for their performance than those working in private firms, a concern of the latter was that salaried solicitors may not be as motivated as their private sector colleagues, with questions raised over the standard of service they may deliver.

Again, the views of the public contrasted with those of the professional respondents on the issue of contracting with private practitioners. A slight majority (55%) in favour emerged from the written consultation, but the proposal drew criticism from all of the focus groups. Whereas the professional respondents perceived advantages of flexibility of delivery options and wider choice for local communities, the public expressed concern that the firms involved may select only the shorter, "simpler" cases to fulfil their contract and/or assign less experienced staff to undertake these cases leading to a possible dumbing down of quality.

Recovery of enhanced fees

The written consultation posed the question of whether legally assisted parties who at the end of their case are able to meet the full cost should be asked to pay enhanced rates for the civil legal assistance they received. Views from respondents were relatively evenly spread for and against the proposal. The most common argument against this idea was that solicitors may "cherry pick" their cases depending on the likelihood of these resulting in enhanced rates.

The same scenario was raised for discussion in the focus groups. Overall reactions were slightly negative with the majority again suggesting that this could give rise to solicitors prioritising cases that involved the likelihood of recovery of substantial assets.

Reforming civil advice and assistance

The vast majority (81%) of those who provided a response to the written consultation was in favour of the Scottish Legal Aid Board ( SLAB) being able to fund provision by non-legally qualified advisers as well as solicitors and advocates. However, 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.

There was also much support for this proposal from members of the public. Focus group participants considered that if the services provided by non-legally qualified advisers were equal to those provided by solicitors then they should have access to the same funding. In addition, they commented that such non-legally qualified specialists may actually be potentially more suitable than solicitors for certain cases depending on their expertise, and allowing them access to funding would help to address any shortfall in legal aid practitioners and offer people more choice.

Most (88%) of the written consultation respondents agreed that SLAB should be able to administer an outlays fund that could be accessed by non-legally qualified providers.

The vast majority (85%) of those who responded to the written consultation was in favour of the introduction of an enhanced rate for solicitors undertaking A&A work which requires specialist skills, knowledge and experience.

Ability to pay and financial eligibility

The written consultation highlighted the argument that the existing system of PFLA could be considered to be harsh for those just outside the eligibility criteria. A common theme amongst respondents was that too many people were currently excluded from receiving legal aid and proposals to widen access by extending and tapering financial eligibility were welcomed by them.

A large majority (92%) of respondents to the written consultation was in favour of disregarding state benefits in the financial assessment for civil legal aid. Strong support was expressed for the proposal that SLAB should be able to make more flexible arrangements for the repayment of contributions including collecting contributions towards the cost of civil legal aid over a longer time period.

Focus group participants also favoured the proposal to introduce new systems of extending repayment periods and tapering eligibility for financial assistance. These approaches were perceived to be fairer than the status quo with the potential to facilitate access to justice for more people.

Most (92%) of those who responded to the written consultation were in favour of changing the current test of "severe financial hardship" in Section 19 of the Legal Aid (Scotland) Act 1986 to one of "financial hardship".

Scope of civil legal assistance

There was almost unanimous support (97%) from written consultation respondents for the proposal to review the number and types of proceedings or categories of case under which ABWOR and civil legal aid are available. In addition, most (89%) were in favour of allowing SLAB to fund exceptional individual cases which currently fall outside scope.

Criminal Matters

Strategy for publicly funded legal assistance

Focus group participants discussed the principles of criminal PFLA as outlined in the consultation document. Overall the principle of the "best possible value for the public money invested" was of key importance to them, primarily because they perceived that criminal cases lasted "longer" than others and thus cost more.

Around half (52%) of those who provided a response to the written consultation favoured a national co-ordinating body taking on the responsibility for planning and co-ordinating the delivery of criminal in addition to civil PFLA.

No strong overall view emerged from written consultees 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. Overall, a slight majority (59% - largely non-legal bodies) favoured SLAB making more use of salaried or employed solicitors through the PDSO, although a significant minority (41% - largely legal bodies) opposed this move.

Focus group participants, however, welcomed the proposed wider use of PDSO, primarily because they saw this option as promoting legal service provision based on "justice" rather than "money", coupled with ensuring greater accountability of use of public funds.

A slight majority (53%) of those who responded to the written consultation was against SLAB being able to use contracting with private practitioners to provide legal aid services.

Around two-thirds (68%) of those providing a view in the written consultation were in favour of pursuing the proposed non-remuneration methods to encourage and maintain provision of PFLA in criminal cases. However, a recurring comment was that an alternative approach would be to increase the remuneration of solicitors providing PFLA. Interestingly, focus group participants found it difficult to comment on what constituted a "fair reward" for solicitors in monetary terms and a common perception was that members of the legal profession are already "well paid".

Proposals for specific change

The written consultation presented a number of specific proposals for changes to the current system. A summary of the views relating to the key proposals is below.

Views were evenly balanced for and against the proposal that, in principle, a contributory system should be developed for the full range of publicly funded legal assistance. Key practical difficulties were seen to be the possibility of justice being compromised by such a system and problems with collecting and enforcing contributions.

The majority view (58%) was opposed to the proposed transfer of responsibility for granting criminal legal aid in solemn cases from the courts to SLAB. A recurring concern was that the proposal would result in delays in solemn proceedings.

The majority (61%) of those who responded favoured SLAB being given the powers in solemn cases to terminate PFLA where this is appropriate.

The majority view (69%) was in favour of specific financial eligibility criteria applying across all legal aid.

Changes to summary criminal legal assistance

The written consultation tabled the proposal that the various existing schemes for assistance in summary cases (A&A, ABWOR and summary criminal legal aid) should be streamlined to create a unified structure. The vast majority (80%) of respondents who provided a view was in favour of this proposal, which was seen as providing greater value to the taxpayer and facilitating a more streamlined and efficient model of working.

If you wish further copies of this Research Findings or have any enquiries about the work of Social Research, please contact us at:

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The report "Advice for All: Publicly Funded Legal Assistance in Scotland - the Way Forward. Analysis of Written Consultation Findings" and the Qualitative Consultation Report, both of which are summarised in this research finding, are web only documents and are available on the publications page of the Scottish Executive website at www.scotland.gov.uk/publications/recent

This document (and other Research Findings and Reports) and information about social research in the Scottish Executive may be viewed on the Internet at: http://www.scotland.gov.uk/socialresearch

The site carries up-to-date information about social and policy research commissioned and published on behalf of the Scottish Executive. Subjects covered include transport, housing, social inclusion, rural affairs, children and young people, education, social work, community care, local government, civil justice, crime and criminal justice, regeneration, planning and equalities issues. The site also allows access to information about the Scottish Household Survey.