Compromise is better option to confrontation

While the very mention of the Scottish Legal Aid Board still acts as the proverbial red rag to a bull for some in the profession, it’s probably fair to say that the mutual exasperation that used to define the relationship has been replaced by a spirit of co-operation and realisation that compromise works better than confrontation.

As Board Chairman, Jean Couper has presided over a period of bridge building, where that hackneyed phrase “constructive dialogue” has, for the most part, replaced the mud slinging which characterised the period in the late 1990s when fixed fees for criminal cases and the Public Defence Solicitor were introduced.

Which is not to say that the occupants of numbers 26 and 44 will be meeting on the lawns of Drumsheugh Gardens for a summer barbeque. The robust and protracted negotiations which led to the eventual civil legal aid settlement are a case in point.

“The Board recognised for some considerable time that there was an issue with the rates and have been happy to assist the Society in developing proposals. We’re delighted that they have now been placed before Scottish Ministers and that agreement has been reached. It’s now up to us all to work in close collaboration and in consultation with other parties to ensure an effective implementation on 1st October,” said Jean Couper.

Nevertheless, as with the issue of criminal legal aid highlighted earlier on these pages, anecdotal evidence has pointed to a drift away from firms doing civil legal aid work and that new recruits to the profession have been reluctant to enter into civil practice.

“We undertook research last year which showed that there hasn’t been a major drift out of civil legal aid, the number of outlets and number of solicitors still providing civil legal aid remains fairly constant.

“That said, there is less civil legal aid being done and the number of applications year on year is dropping. I am aware of the concerns of the Law Society and others that there is a risk that members of the profession will pull out of civil legal aid provision and we share that concern. One of the reasons we are pleased to see a significant increase in rates coming through is to try and maintain quality providers of civil legal aid and hopefully to encourage others to start providing it.”

The quality assurance system still remains something of an unknown factor, but Couper is adamant that it was an integral part of “the total package of civil legal aid reform”.

“It is right that there is quality assurance of the services provided to clients and we do think that is a positive step forward.”

Concerns have been expressed that the new system is not suitable in many family cases, in particular where a wife is escaping an abusive relationship.

“We do not see any foundation for these concerns. The reforms have been structured to encourage negotiation rather than forcing people into court and the development of the reforms was done with strong input from solicitors experienced in the provision of family law.”

Harder for the Board to overcome is the feeling in the profession that excessive levels of bureaucracy impede the efficient working of the profession.

“I would refute that there are excess levels of bureaucracy. We have worked hard over the last few years to streamline the system and make it more effective and our e-commerce project will bring major improvements.

“We have developed our procedures and guidelines for staff and deliberately put that out to the profession in order to be as transparent as possible. We have been extremely open in terms of what we are doing, how we are doing it, and in issuing further guidance on specific matters where there is need for clarity, such as clawback.

“We will continue to look positively at comments from the profession in order to achieve a more streamlined and easier-to-operate system.”

Meanwhile, the Board’s clear adoption of a programme of e-commerce has led to concerns that small firms without the necessary capital to invest in IT and training will ultimately be excluded from being providers of legal aid.

“There is real benefit to the profession in engaging with us in e-commerce. There is no compulsion to do that but there are significant benefits, and I’m sure the majority will want to take advantage of the reduced administration costs, and improved accuracy and completeness of applications and accounts and faster turnaround. This will allow the Board to take its decisions quicker, pay accounts faster, giving firms further improvements in their cash flow and help them provide a first class service to their clients.

“We are working on pilots at the moment and the real thing will start to roll out in the autumn. There are two things the profession needs to know. First, we are not talking about any solicitor needing a very extensive or expensive system, just a PC with internet access. Secondly, there is no compulsion, but firms that do engage will benefit from a better service. Those who do not will not receive that improved level of service.”

Despite the emphasis on “no compulsion”, she does admit there will come a time when the Board may have to take a view on the value of providing a paper service if only a small number of firms continue to require it.

Couper rejects claims that all too often solicitors are made to feel as though they are trying to fleece the Board. She denies there’s a policy of treating all claims with scepticism.

“We are not of the view the profession is out to fleece the Board, but we do have a statutory duty to assess all accounts and pay what is properly due. We also have a duty to advise Scottish Ministers of how to develop and improve the system.”

The Board is using its systems to identify particular practices by individuals or firms or changing trends in applications and accounts.

“We can analyse the patterns of legal aid applications and accounts and identify trends that are different from the norm. That might lead us to undertake further investigation or discuss with the firm what is leading to that anomaly with a view to resolving any issues. But I would emphasise that the overwhelming majority of firms do not show any unusual or irregular practice and there is absolutely no suggestion that there is widespread abuse of the system.” Trend analysis also helps identify changes in the usage of legal aid and areas for potential development of the system to meet current needs.

By the end of her second term, Jean Couper will have been involved with the Board for 12 years.

“I think that will be enough and it will certainly be time for a person with fresh ideas”.

So what does she hope will be her legacy?

“The aim is a legal aid system which better enables access to justice for those who need it and a Legal Aid Board which delivers top quality services to its customers efficiently and cost effectively. We have come a long way and I sense that the profession – and others - do recognise the improvements the Board has made and welcome the consultation we have undertaken to move the development of legal aid forward in a constructive way.

“But there is much more to do. Our plans for the next three years are very challenging but highly deliverable. We will continue consultation and collaborative working with the Law Society, local faculties and others, focusing on key issues and developing solutions which deliver improved services and good value to the tax payer.”