Date set for reform package

The package of reform of civil legal aid announced by Jim Wallace in February will, once approved by Parliament, be implemented on 1st October 2003.  

The package includes administrative reform and the creation of a quality assurance regime together with a new block system of fees based on a unit value. It is anticipated that the new regime will result in a significant and necessary increase in fees for civil legal aid work as well as introducing quality assurance, the key element of the reform.

As the profession are all too aware, there has been no real increase in civil legal aid fees since 1992, even to take account of inflation. Practitioners have expressed great concern that remuneration rates for civil practitioners have remained static for so many years that fewer solicitors are prepared to carry out civil legal aid work.  

Over the last two years the “Tripartite Group” (the Society, the Scottish Executive and the Scottish Legal Aid Board (“the Board”), have been working to find a way forward for civil legal aid in Scotland which would allow an increase in fees. This resulted in the Society’s Proposal for the Reform of Civil Legal Aid to the Scottish Executive in October 2002.  

The negotiations were given impetus by the Scottish Parliament’s Justice 1 Committee Report on their Inquiry into Legal Aid published in November 2001 that stated at paragraph 81:

“The Committee recommends that the fee rates paid for solicitors and advocates who provide civil legal aid and advice and assistance should be increased – linked to the introduction of a quality assurance system.”

The Proposal was spearheaded by Ian Smart and the Society’s Legal Aid Committee, made up of experienced civil and criminal legal aid practitioners from across Scotland. Council approved it at its meeting in September 2002.

Following the submission of the Proposal and further negotiations between the Society, the Executive and the Board, the Executive offered £19 as the new unit cost.  This was debated at the Society’s Council meeting on 31st January 2003. It was agreed at the meeting that the Society should seek a meeting with the Deputy First Minister to discuss seeking £20 per unit, failing which the offer should be accepted.  The President and Ian Smart discussed the proposals with the Deputy First Minister on 4th February 2003. They were advised that although he appreciated the points made by the Society, there could be no increase to the offered value of the unit.   

It was agreed that the wide-ranging package of reform was to be implemented on 1 October 2003 at the unit cost insisted upon but that there would be periodic review of the new system. It was agreed that Advice & Assistance reform would be considered as a matter of priority and that there would be a review of the Court of Session.  

The final details of the scheme are currently being developed by the Society and the Board with input from the Scottish Executive. The key elements are as follows:

• Registration and Quality
• Assurance Regime

The new scheme provides that all solicitors wishing to undertake civil legal aid work from 1 October will register with the Board and re-register at two yearly intervals thereafter.  Registration will require periodic external inspection by the Board of their procedures, processes and case files against published quality standards.  

In addition there will be a system of quality assurance by regular peer review carried out by experienced civil practitioners (reviewers) recruited by the Society. When firms re-apply for certification by the Board their application will include a Certificate of Competent Practice from the Society following a review within the previous two years. The reviewers will be given training and guidance and will need to be satisfied that there has been a reasonable level of competent practice in a random number of files chosen from the Board’s records. The process is to be cost neutral to the client.

To put the registration scheme and the respective roles of the Society and the Board in the quality assurance scheme on a statutory footing the Society will promulgate a practice rule.  As with all practice rules, this will be sent to the profession and debated at a General Meeting in accordance with the Solicitors (Scotland) Act 1980.

Applications and Reporting

The proposed scheme includes a new system of applying for legal aid with regular progress reports to allow SLAB to review developments in a case and consider whether assistance should continue. At the initial application stage the solicitor will be asked to give a more detailed assessment of the prospects of success and the costs of litigation than at present. Solicitors will also be asked to submit a report to the Board where there is a significant development in a case that could affect the Board’s view of ongoing probable cause or reasonableness.  

Solicitors will be entitled to payment to account of fees for work done at the stage of each report. This will ease the cashflow problems experienced by solicitors who currently have to wait either till the conclusion of cases or until two years into a long-running case for payment or payment to account.

New feeing structure

On the 1st October 2003 the new block fee system will completely replace the current “time and line” system for all legal aid certificates granted after that date. All accounts for new cases in the Sheriff Court will be based on a unit value and will be rendered on a simplified basis (other than specific exceptions such as adoption cases and fatal accident inquiries).  

There will be a flat rate increase in fees for cases falling outside the block fee structure, on a time and line basis only; and for work in the Court of Session.

The block fee system is based on rewarding efficiency and results, rather than merely the work done. There is an emphasis on getting the case resolved.  

The detail of the new block fees system has been subject to extensive negotiation, including practical modelling by the Society and the Board using 399 existing cases. Professor Brian Main of the Economics Department of the University of Edinburgh was instructed by the Society to prepare reports on the new feeing structure. These show that based on the current files, the new system should result in a significant increase in payment per case.

Benefits of the block fee system will be that solicitors’ accounts will be much simpler and less time-consuming to prepare. In future solicitors will be able to prepare their own accounts rather than have them prepared by law accountants.  

The new system will be reviewed by the Society, the Executive and the Board in 2005 and periodically thereafter.  The outcome will be reported to Ministers with any recommendations for change. The review may result in recommendations for changes both to the structure and to the level of block fees, or for changes to the application and reporting system. The Justice 1 Committee have recently suggested an earlier review, although given the time the system will need to become established the Board and the Society feel that 2005 is the earliest practical date.  

The Society is planning a series of evening seminars in the autumn on the workings of the scheme and to answer any queries. There will also be regular updates in the Journal.  

The new scheme will implement a new system of civil legal aid work which is quality assured and properly remunerated. It should result in an improved rate for the work done. It should encourage more firms to consider undertaking civil legal aid work and continue to ensure that clients of moderate means in need of legal assistance have access to justice.

Civil legal aid reform is the beginning of a wider assessment of legal aid provision in Scotland. The Scottish Executive is committed to consider Advice & Assistance reform as a priority.  The Society proposes that criminal legal aid reform should be considered as soon as possible. Oliver Adair, Vice-Convenor of the Legal Aid Committee, has consulted a number of Faculties to obtain their views before the Society approaches the Scottish Executive in this regard.  

The Society is grateful to all of the solicitors who have contributed to the reform proposal and would continue to welcome any input from solicitors wishing to contribute to ongoing discussions.  If any solicitor wishes to do so, please contact Mrs Moira Shearer at the Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh.

Moira Shearer is secretary of the Society’s legal aid committee. This article represents a collation of views.