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Civil justice - access to advice, representation and mediation
4 The importance of good quality, accessible advice and information about the law and the legal system cannot be overstated.
4.1 At its best, the right information and advice, made available at the right time, can help ensure that people make the right choices when making decisions which have legal consequences for them. It can help a young person leaving home understand what responsibilities they are taking on when they sign a lease; help a parent understand what the consequences are of registering the birth of a child; help people manage their money and not take on debts they cannot repay; help someone setting up in business decide whether to trade in their own name or as a limited company; and help someone to support an elderly relative to manage their affairs. These are all common everyday situations where, without the right information and advice, it can be difficult to make the right decision.
4.2 Advice and information is also vital if things go wrong or unexpected events happen. People need to know where to go for advice and information, and to have confidence that the advice they receive will be appropriate and of good quality. Different problems need different types of advice, and different levels of intervention. Some situations may be sorted out by simply getting information about a complaints system or an industry-supported arbitration service. Sometimes a local Citizens' Advice Bureau or Welfare Rights Office will be able to provide the advice needed. And sometimes the problem will be best dealt with by a solicitor. A range of advice and information services and providers is needed, and people need to know where they are and how they can help.
4.3 Where some kind of process has to be gone through to resolve the situation, the majority of people will want to ensure that the process is as quick and painless as possible and that they can influence the outcome. In some cases a court process will be required, for example, where the authority of the court is required to recover property or obtain recompense for injury, to prevent damaging or destructive behaviour, or to challenge the actions of a public authority. In many instances, however, negotiation-based methods of dispute resolution, such as mediation, can offer an alternative way of reaching a conclusion in a dispute, or can at least help to focus the key issues and preserve a process of dialogue which may avoid positions becoming too entrenched.
4.4 Representation or advocacy can be just as vital as advice and information. The law and the legal system are complex, and although some people may be happy to speak for themselves in negotiating with the person on the other side of a dispute, or to argue their own case at a court or tribunal, many will not. It is therefore essential that people can have access to good quality representation when they need it, at a price they can afford.
Advice and information - key aims
- ensuring people have access to good quality information and advice to enable them to understand their rights and obligations and avoid problems;
- when problems do arise, ensuring people have access to advice and, where they need it, to representation, to prevent problems escalating and resolve them as quickly as possible; and
- encouraging the use, where appropriate, of negotiation-based methods of dispute resolution such as mediation.
WHAT WE HAVE DONE
4.5 In 2004 the Strategic Review of the Delivery of Legal Aid, Advice and Information made recommendations to Scottish Ministers and the Scottish Legal Aid Board. The review looked at the criteria for the granting of legal aid and advice and assistance for both civil and criminal matters. It also asked some searching questions about the future role of the Scottish Legal Aid Board and whether there should be a new national body to co-ordinate the delivery of publicly funded legal assistance. A consultation entitled "Advice for All: Publicly Funded Legal Assistance in Scotland - the Way Forward" was subsequently published in September 2005. The first phase of proposals from the review was taken forward in the Legal Profession and Legal Aid (Scotland) Act 2007. More wide-ranging changes, by way of new primary legislation, regulatory changes and administrative action are expected to be brought forward in future months and years.
4.6 A strong, sound and independent legal profession, in which the public has confidence, is one of the cornerstones of the justice system. Our consultation on "Reforming Complaints Handling, Building Consumer Confidence - Regulation of the Legal Profession in Scotland", invited views on how best to address concerns about the way complaints against the profession have been handled, and to improve public confidence in the system. The Legal Profession and Legal Aid (Scotland) Act 2007 contains measures which take account of views expressed by members of the public in response to the consultation.
4.7 The first in-court advice project, set up in Edinburgh Sheriff Court in 1997, has proved to be a considerable success. Further in-court advice projects were established in Aberdeen, Airdrie, Dundee, Hamilton and Kilmarnock in 2002/03. An evaluation published in January 2006 has indicated that these services are a valuable resource which was particularly able to meet otherwise unmet legal need for people involved in court proceedings. We confirmed in January 2006 that funding for the services would be continued for a further 3 years to allow further evaluation and consideration of how such services should be developed.
4.8 We have for many years invested in a number of national family relationship support bodies and over the last 2 years have invested in moves by them to integrate their services and project work, for clients' benefit. Alongside the legal reforms achieved by the Family Law (Scotland) Act 2006, we have provided support for families in transition by producing the Parenting Agreement for Scotland and the Grandchildren's Charter.
4.9 We have put in place a number of projects aimed at increasing the availability of information for people affected by debt. The Debt Arrangement Scheme was established in 2004 under the Debt Arrangement and Attachment (Scotland) Act 2002 to provide assistance in setting up a managed environment in which people can repay multiple debts over time, free from the threat of enforcement action or sequestration. We provided £3 million each year from 2002/03 to 2006/07 to develop money advice services and to support an increase in the number of frontline money advisers. In each of the years 2005/06 and 2006/2007 we made a further £2 million available to carry on that work and to meet the demand for money advisers approved to use the Debt Arrangement Scheme.
4.10 The 2002 Act also made it a requirement that creditors supply debtors with a copy of the Debt Advice and Information package, consisting of the booklet "Dealing with Debt: Finding Your Feet", and a leaflet about local Money Advice services, before they can use the diligence of attachment.
4.11 At the European level we are part of the European Judicial Network in Civil and Commercial Matters. This provides contact points in all EU jurisdictions to allow officials and organisations to obtain information quickly about civil justice systems in other countries. It also promotes access to information for the general public through the EU Commission's EJN website.
WHAT WE ARE DOING
4.12 Our information initiative to support family law reform aims to improve the range of information available for couples, families and children. It includes a new web portal, 8 a pilot integrated help-line and a new range of printed materials for couples and young people. Working closely with a small number of sheriff courts, we will also pilot new approaches to child contact in conflicted cases. And we have invested a further £300,000 during 2006/07
in relationship counselling and mediation at local level.
4.13 The family law web portal is linked to the new advicefinder problem-solving website, 9 launched in May 2006. This aims to act as a gateway to sources of information and advice on the whole range of civil legal problems that people may face, such as debt, housing, employment, benefits, etc.
4.14 The Debt Arrangement Scheme is under review and was amended to extend it to other diligences by the Bankruptcy and Diligence etc. (Scotland) Act 2007 and by changes to administrative procedures by the Accountant in Bankruptcy. The Debt Advice and Information package is also under review.
4.15 The Bankruptcy and Diligence etc. (Scotland) Act paved the way for money advisers to provide lay representation in court for debtors, and the Scottish Civil Enforcement Commission will be given a specific function of improving public knowledge and education as regards diligence and enforcement of decrees.
4.16 In the field of alternative dispute resolution, we have a strong programme of work to promote quality control and good practice in mediation and to raise public awareness about it. Here we are working in partnership with the Scottish Mediation Network ( SMN), which has been funded by the Executive to develop a quality assurance framework across all spheres of mediation. SMN is also running awareness workshops and presentations and the Executive supported their mediation conference in September 2006.
4.17 We are currently developing a strategy for mediation research through the Justice Department Analytical Services Division and aim to commission an evidence review of mediation to guide this process. Simultaneously, a number of research projects have been undertaken or are underway in relation to mediation. Analytical Services are currently working with SMN to build in a framework for evaluation. A survey has also been undertaken of both sheriffs and judges on awareness of, and attitudes towards, mediation, and an evaluation of the In-Court Mediation Pilots is about to get underway.
4.18 As well as continuing to support the mediation service running alongside the in-court advice service in Edinburgh sheriff court, two new in-court mediation services are also being supported by the Executive, one in Glasgow and one in Aberdeen. These pilots will run for 2 years and have been designed to test different models of provision to help inform decisions about future sustainability of such services.
4.19 There is strong interest in mediation and other forms of alternative dispute resolution at a European level and we are continuing to contribute, in partnership with the UK Government, to the development of a draft EU directive on mediation.
4.20 The Legal Profession and Legal Aid (Scotland) Act 2007 will bring about significant improvements to, and increase public confidence in, the system for handling complaints against the legal profession. It provides for the establishment of a Scottish Legal Complaints Commission ( SLCC) which will handle consumer or service complaints against the legal profession, as well as overseeing the handling of discipline issues by the legal professional bodies. The Act also puts in place the first phase of improvements to legal aid and will pave the way for the longer-term strategy by giving the Scottish Legal Aid Board additional powers to fund new models of provision for publicly funded legal assistance.
4.21 Alongside these primary legislative changes, we continue to monitor the operation of the civil legal aid regulations with a view to updating and revising them in response to stakeholder responses in addition to initiatives at a European, UK and Scottish Executive level. These include making the necessary amendments to support new court and tribunal procedures. In addition, the Scottish Legal Aid Board has started a project to look at ways of simplifying civil legal assistance for solicitors, applicants and opponents. That will include simplification of the financial eligibility assessment process for applicants; reduction of documentation required for the civil legal aid application process; and development of a training support strategy for solicitors.
4.22 As part of our longer term strategy in relation to public funded advice and assistance, we will shortly publish a tool-kit and guidance to support local authorities to assess the needs for advice and assistance within their areas. We are also working with the Scottish Legal Aid Board and a number of advice agencies to develop a national quality framework for legal advice and information.
4.23 Arbitration is a specialised procedure in which disputes are referred, by agreement between the parties involved, to an independent third party, the arbiter, to resolve. The majority of the law relating to arbitration in Scotland is common law. In the 1990s the Scottish Advisory Committee on Arbitration Law, under the chairmanship of Lord Dervaird, undertook a detailed review of the law and produced a report making a number of recommendations for change. A draft Bill was also prepared. We are currently undertaking a project to assess the case for bringing forward legislation to update and restate the law of arbitration in Scotland, building on the work done by the Committee.
Improving access to information and advice
- in-court advice projects in Edinburgh, Aberdeen, Airdrie, Dundee, Hamilton and Kilmarnock;
- new printed materials and web portal giving information for couples, families and children; and
- advicefinder gateway website to sources of information and advice.
Resolving disputes outwith court
- support for the Scottish Mediation Network to raise public awareness and promote good practicein mediation;
- mediation services in Edinburgh, Glasgow and Aberdeen sheriff courts; and
- developing legislation on arbitration.
WHAT WE WILL DO
4.24 We will take forward the work we have started on reform and restructuring of the system of publicly fundedadvice andassistance. Our aim is to achieve a mixed economy of provision, with legal practitioners, not-for-profit organisations, local authorities and central government working in partnership to ensure everyone in Scotland has access to the advice and assistance they need, at a cost they, and the public purse, can afford. The next key stage could be the creation of a national co-ordinating body with wide powers to support the development of a healthy and vibrant network of service providers. This will be a matter for an incoming Administration.
4.25 We are working to set up the Scottish Legal Complaints Commission to deliver the policy objective of increasing public confidence in arrangements for handling complaints about legal services. The anticipated operational date for the Commission is late 2008. It will be for the incoming Administration to decide whether to take forward our programme of work reviewing arrangements for the regulation of the legal profession and promoting competition in the provision of legal services in Scotland. This programme aims to identify pro-competitive reforms in the consumer interest which are suited to the Scottish legal services market. Account is also being taken of developments elsewhere, including the changes proposed in the Legal Services Bill for England and Wales in the light of the Clementi Review.
4.26 We will commence sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 to permit professional or other bodies to apply for specific rights of audience and rights to conduct litigation on behalf of their members.
4.27 The current arrangements whereby auditors of court deal with the assessment and checking (known as "taxation") of parties' legal expenses and solicitors' accounts resulting from litigation and other legal work are outdated and lack transparency. We will work in partnership with the courts and the legal profession to consider what the future arrangements for assessment and taxation of accounts should be.
Advice and information - key future actions
- reform and restructuring of system of publicly funded advice and assistance on civil matters, including creation of a national co-ordinating body;
- commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act by mid-March 2007; and
- reform of the system of assessing solicitors' accounts and legal expenses.
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