President’s report

I have written before about concerns I have about access to justice.

Progress in Civil Legal Aid

Access to justice is a prime concern in Civil Legal Aid. The Society has been working hard to improve a situation where fees for Civil legally-aided work have not been increased for ten years.  Such a situation can only lead to potential and real problems of access to justice for people in Scotland.  

A Civil Legal Aid Fees Working Party headed by Michael Scanlan reported its findings over a year ago and presented them to the Scottish Executive.  The Report showed the erosion of the real value of fees and gave a detailed analysis of comparative Legal Aid fees in England and Wales.  TheTripartite Group, which was set up by the Society, the Scottish Executive and SLAB, to discuss and progress Legal Aid issues, considered the report and the Executive indicated that without a fresh approach to Civil Legal Aid procedures and issues, no money would be available.  The Society was faced with a potentially worsening situation where any improvements in the provision of Legal Aid services in Scotland seemed unlikely in the near future.  

SLAB then indicated it would consider supporting proposals for an increase in fees if concurrent changes to procedures were adopted. The Executive indicated that if proposals were presented to it which were acceptable to both the Society and SLAB then it would give consideration to them.  Ian Smart (Convener), David Lyons and Oliver Adair (Vice-Conveners) and the members of the Society’s Legal Aid Committee have worked on this initiative for six months and the resulting draft proposals will be considered at the December Council meeting.  

The committee’s work has involved considerable detail and short timescales which have not allowed for exacting consultation but have put heavy demands on committee members and I commend them for their commitment.  The opportunities for discussion and consultation with the profession have been taken whenever possible.  I have been able to advise solicitors attending Faculty visits of the general thrust of the work being undertaken by the Committee and a significant part of a meeting of Deans of Faculties in September was devoted to discussing Legal Aid matters. Ian Smart gave a full report on the work in progress, which your Dean will no doubt have reported back to you.  

I hope that the Society’s pro-active approach leads to several improvements and welcome the fact that SLAB and the Society have worked together on this very important issue.  We have, after all, a common purpose – ensuring that the highest possible quality of Legal Aid provision for clients not only survives but flourishes in the coming year.  

Personal Injuries and Summary Cause Actions

Access to justice for clients must not only be available, it must be in the right forum.  In the last few weeks Personal Injuries and Summary Cause actions have come to the fore.  In November the Scottish Parliament’s Justice 2 Committee considered the Executive’s proposals to change the privative jurisdiction of the Court of Session.  The Society supports the proposal that personal injury actions for under £5,000 should be raised in the Sheriff Court.  It comes as a surprise to many who do not practise in the Courts that a pursuer can take an action for £3,000 or £4,000 to the Supreme Court.  

The Executive’s proposals went beyond the level of action raised to include the extension of summary cause procedure for actions up to £5,000.  When these proposals were first made a after consultation in 1998, the Society was very concerned that summary cause fees would be inadequate for some actions and lead to restricted access to justice.  The then Deputy Justice Minister gave an undertaking to the Committee in November that parties should be able to recover the costs of an action. The Executive has withdrawn the proposals for more consultation.   If the Summary Cause Rules are changed and fees reflect the true cost of an action then it seems reasonable that damages actions under £5,000 should be dealt with under Summary Cause procedure.  

All change

I wish Lord President Cullen and Lord Justice Clerk Gill every success in their new roles. I would also like to congratulate Elish Angiolini, the new Solicitor General, on her appointment. She is the first solicitor and former procurator fiscal to be appointed to the post and is a credit to the solicitors’ profession.

The announcement that Lord Bonomy is heading an investigation into the workings of the High Court is most welcome as is the current atmosphere of change. I hope that a root and branch review of the civil justice system long advocated by the Society proceeds before public confidence in the whole Scottish Court system is lost.

Encouraging debate

The Society’s schools debating competition, renamed the Donald Dewar Debating Competition last year, is proving an even greater success than the past three tournaments. Open to every secondary school in Scotland, there have been more entrants than ever before and the second round is already under way. The Debating Competition is a fun thing for schools to be involved in but it is also an opportunity for the Society, the law and issues such as Access to Justice to be recognised and debated amongst school pupils.  Other countries have citizens classes in schools and the Society is considering various other initiatives which would increase young people’s awareness of the law and legal processes.

I would like to wish readers an enjoyable break over the festive period and a happy and blessed Christmas.