Purely rhetoric?

On 6 March 2007 the Society of Solicitors in the Supreme Courts held a justice hustings, chaired by Robert Carr of Anderson Strathern. Present were Maureen MacMillan (Labour), Jeremy Purvis (Lib Dem), Stewart Stevenson (SNP), Margaret Mitchell (Conservative) and Patrick Harvie (Green), along with members of the profession ranging from those who retired several years ago through to trainees.

The usual rhetoric was present – more prison places; new “super ASBOs”, etc. What was not present was a commitment from any of the parties to increase the legal aid rate in a real and significant way. What caused concern and, frankly, depression as to the future of this profession, was that although the phrase “access to justice” was bandied around by all the politicians, they were unable to answer a direct question about how they see this being achieved in a two-tier system of legal advice. That is, one tier for the well-off and one for those who cannot afford advice.

Access by what route?

It is trite to say that for there to be true access to justice there has to be access to legal advice, and there has to be a profession to provide that advice. In short, it is submitted in this article that if the current practice of underinvestment continues, there will be no solicitors of talent carrying out legal aid work in the medium term, and the public and our legal system will be seriously prejudiced as a result. Even if there are some solicitors still persevering, they will be so inundated that securing their services will be as easy as securing tickets for a Beatles comeback tour!

The problem is that politicians refuse to look at this from the result backwards. They see only the lawyer looking to earn more money, as opposed to the poor punter who has been kicked out of his house and needs access to the court to enforce his rights. With the increasing shortsightedness that politicians seem to have such a talent for, all they look at is what there are votes in.

In answer to the point, raised by Vince Belmonte, that the parties should all be ashamed of themselves for their failure to invest in access to justice, at least one politician present responded with “Well, we can’t just throw money at lawyers!” Why? Because the public won’t like it.

Behind the figures

What they do not seem to realise is that we are not asking them to “throw” money at us. They use this deliberately emotive language in an attempt to hide the real issue. Civil legal aid rates have had but one rise, notionally of 21%, since 1995, with only one 3% increase in the three years prior to 1995. This does not even take account of the fact that, in real terms, rates have actually fallen in many practice areas.

If all the government had done was to give inflationary rises since 1992, the rate would be closer to £70 per hour (as opposed to the £51 that it currently is), and almost enough to run an assistant according to the 2005 Cost of Time Survey.

Politicians underestimate the desire of many lawyers to take a role doing legal aid work provided that they can afford to live and justify their seven-year training before becoming qualified. From the views I have canvassed from friends and colleagues at the junior end of the profession, the majority would prefer (all other things being equal) to work in an area that provides them with client contact and responsibility, and fulfils their wish to act with a social conscience.

Mind the gap

If we were to poll people who go into the law degree from school, the majority would say they were doing it because they wanted to be in court defending criminals or, perhaps, suing people; very few would talk about completing big corporate or commercial contracts etc. Inevitably some of these answers would change as they mature and realise they like commercial subjects, and by the time university finishes many would want to do corporate work. However, many still would not.

Legal aid work gives young lawyers the chance to work with clients, appear in court and ultimately to accept levels of responsibility not often offered to their corporate colleagues. This is what young lawyers say they want. Why then are legal aid practices struggling to find assistants?

People who choose legal aid work know they will never earn the same as corporate colleagues and they can accept this. It is the gaps forming between directly comparable practice areas where firms are choosing not to undertake legal aid work that is the problem.

According to recruitment consultants Frasia Wright Associates, the gap between those undertaking civil law at a legal aid firm at one year qualified, as opposed to those in an identical role at a firm not doing legal aid, is around £5,000 per annum. This gap will vary depending on circumstances, but overall will tend to increase throughout a career, despite the solicitor having to, perhaps, accept greater responsibility at an earlier stage when acting in legal aid cases. This gap also does not take account of the benefits given to staff in non-legal aid practices.

Blinkered view

The quote at the hustings that caused most distress to those present was from Maureen MacMillan, the Labour spokesperson, who after telling the audience that her husband was a legal aid practitioner, said “Well, we didn’t starve”, as if that was meant to attract young lawyers in their droves.

What should be pointed out is that the older generation of legal aid practitioners were able to spend a large portion of their early careers working on legal aid when the rates represented fairer reward for the work done. They also did not have the same levels of student debt to pay back that the younger generation now have.

It is the type of view expressed by Mrs MacMillan that demonstrates the failure to understand the problem. Assistants are likely to be unwilling to work long hours on difficult cases, often with difficult clients, when the best they can hope for is to avoid starvation!

The problem is also created by the administration of legal aid and the perceived “form filling”. This is admittedly changing through the Scottish Legal Aid Board’s civil simplification project, but that change cannot come quickly enough. The concern must be, however, that the Executive tie any future rise in the rates to even greater bureaucracy, in the same way that the rise in 2003 was. Assistants cite the fact that dealing with legal aid work feels “frustrating” and “demoralising” to them, when asked to comment on the drip-feeding of funding and the seemingly arbitrary abatements on already low account levels. They also cite the fact that if legal aid was less bureaucratic, they could more effectively (and consequently more satisfyingly) deal with their cases.

Path to oblivion

In their refusal to listen to the profession, and in particular the younger members, on matters such as this, the parties and the Executive are going down a much more dangerous route than they might think. Unless something changes, there will be no next generation of legal aid practitioners. As things stand, the future does not seem to offer a significant and continual investment into access to justice. None of the parties were willing to commit to that. Instead, it seems to be a commitment to separating those who are able to pay for the expertise of a solicitor from those who will have to make do with a lay adviser in an advice centre.

The role of advice centres is crucial in providing members of the public with instant advice, which may often avoid conflict if given at the right time. Citizens’ Advice Bureaux and projects such as the Strathclyde University Law Clinic and Edinburgh Legal Dispensary must be applauded. They are extremely good at providing what is within their scope, and providing for an otherwise unmet public need. However they cannot hope to match the specialist knowledge of a solicitor in a particular practice area. CABx are aware of where their expertise begins and ends, and are reluctant to step outwith that. They should not be forced to do so just because the Executive sees them as a cheap option.

The current situation with dentists is something that the Executive should take notice of. It is well publicised that in many parts of the country a dentist cannot be found to undertake NHS treatment. It is submitted that if the same were to happen with assisted legal services, the prejudice to the public would be enormous.

For example, the inequity of someone attempting to review the decision of a housing association, on a shoestring budget and represented by an in-court adviser while the housing association is represented by genuine experts, is striking. Some will say it is already there, but it will only get worse if the current underfunding continues and the solution provided is access to advice centres.

The public’s loss

What the politicians all seem to ignore is that the profession can cope without legal aid more easily than the public can. We have already adapted in personal injuries cases, where speculative fee agreements are now routine, often to the exclusion of legal aid, even when a client is financially eligible. This already results in some firms cutting out legal aid altogether.

Any law student who has been through the legal system course will be able to rhyme off the concerns about speculative agreements, in that they encourage “cherry picking” of cases. This is inevitable. The cases that will not be taken on this basis will be those that are unpopular or complicated. Those most needing help in asserting their rights will not be able to find it, or at a very minimum will be left with less choice and lower quality advice.

The vulnerable will suffer in other ways. Family practitioners point to the appallingly low rates for dealing with interdicts in the sheriff court – a very important protection for women with abusive partners. Many firms already do not accept instructions in such cases. It is somewhat ironic that Maureen MacMillan was one of the leading forces behind the change in legislation in 2001 that strengthened the position of the vulnerable, but that her views on legal aid may lead to the individuals that need its protection being

unable to access it.

Returning to the analogy with dentists, it is unlikely that the public would be happy with NHS treatment being by dental nurses, no matter how good they are: why should they be happy with advice centres instead of solicitors?

Politicians should be forced to look 10 years down the line. The ship has not sunk yet. The rhetoric of access to justice is not enough, however, and commitment to its cause needs to be demonstrated. One large investment soon after the election, and then a commitment to keep the levels high enough to cover costs, would be sufficient to ensure that new members of the profession looking to exercise their social conscience will be able to do so for the foreseeable future – and that members of the public will continue to have true access to justice.

Richard Pugh is a solicitor at Drummond Miller LLP and President of the Scottish Young Lawyers Association

MANIFESTOS HOME IN ON CRIMINAL JUSTICE

The legislative agendas of the first two terms of the Scottish Parliament have attracted criticism for what many in the legal community regard as an obsession with piecemeal reforms to the Scottish criminal justice system for short-term political gain. However, it is clear that the legislators have also had some success, including the Bonomy reforms to the High Court.

Scottish Labour Party

The recent announcement by the Justice Minister, Cathy Jamieson, that a review committee chaired by the Lord Justice Clerk would discuss far reaching reforms to Scotland’s civil justice system, including an increased focus on arbitration and ADR, heralded a shift in the Executive’s reformist tendencies away from criminal justice. However, on more familiar ground, the party is committed to expanding the community warden scheme, including the introduction of junior wardens, and rolling out another three youth courts. Tougher new community justice schemes would be introduced to ensure that offenders pay back to the communities they have disrupted, including the option of apologising to their victims.

Controversially, they would also roll out new disclosure arrangements for “predatory” sex offenders, allowing courts to make public the whereabouts of the most dangerous. The DNA and fingerprint samples of all those accused of an offence would be retained, regardless of whether they are subsequently convicted. A similar measure was rejected by the last parliament, despite such reforms having already been introduced south of the border. Lastly, there is a pledge to introduce a Serious and Organised Crime Bill to give courts and the police new powers to protect communities. “Super ASBOs” (serious crime prevention orders) would be introduced to remove loan sharks from communities and increase protection to witnesses against them.

Scottish Liberal Democrats

Jeremy Purvis, the LibDems’ justice spokesperson, continues to emphasise the party’s opposition to the introduction of ID cards with the slogan “Labour think more plastic. We think more community police”. This commitment involves the introduction of another 1,000 community police officers, and tougher community sentences to replace short term prison sentences, which the LibDems believe simply reinforce offending behaviour. The party also pledges to “crack down” on knife crime with the introduction of combined custody and community sentences of up to seven years, which may cause some bemusement in Labour ranks as they recently “cracked down” on knife crime by doubling the maximum sentence from two to four years.

A more innovative approach is the proposal to involve “young people” in efforts to cut youth crime by establishing youth panels (a similar scheme being cited as successful in New York). This would allow young people to be involved in judging and modifying the behaviour of other young people before it deteriorated further. The party also proposes to replace the Scottish Prison Service with a Scottish Custody and Rehabilitation Service, which sounds remarkably similar to Labour’s past proposals for a Scottish Correctional Agency that were eventually abandoned due to opposition from local authorities. Lastly, like the SNP, the LibDems also focus on the constitutional question to an extent, calling for increased fiscal powers for Holyrood.

Scottish National Party

Aside from the SNP’s constitutional focus, Kenny MacAskill, the party’s justice spokesman, has also focused on criminal justice issues. The SNP oppose the introduction of identity cards and have pledged to convert the Scottish Sentencing Commission into a Sentencing Council to provide guidelines for the judiciary and restore public confidence in the justice system. A full judicial inquiry into the McKie affair would also be set up. The party believe pettier crimes should be treated in the community, through initiatives such as the Airborne Initiative which would be revived. Broader measures are proposed to tackle the harmful effects of drug and drink addiction.

An SNP Government would begin negotiations in its first 100 days to devolve responsibility for firearms from Westminster in order to tackle airguns. Tougher community sentencing would also be introduced, alongside 1,000 additional community police officers. Local communities would be awarded an increased role (possibly through community councils) in applying for ASBOs. The SNP would streamline Scottish government, by reducing the number of ministers and departments, and increase public participation in the legislative process. After independence, which would be put to the public in a referendum in 2010, the party promises to introduce a written constitution with enshrined rights for Scottish citizens.

Scottish Conservative and Unionist Party

Traditionally the “law and order” party, the Conservatives’ justice spokesperson, Margaret Mitchell’s pledge to defeat drugs and cut crime is at the core of the party’s manifesto. On the basis that the majority of crime in Scotland is drug-related, they commit to reduce crime and drug abuse through a four-year £1bn plan. The party also makes more familiar commitments of 1,500 extra police on the streets; monitoring the movements of sex offenders through satellite tracking; an American-style “three strikes and you’re out” sentencing policy; and an end to automatic early release. More original, although surprisingly not a priority for the other parties, are the proposals to abolish double jeopardy (the party is obviously unaware that this is a particularly English concept), to allow retrials where “new or compelling evidence” becomes available, as enacted in England in 2005.

The party is also committed to a “lighter legislative and regulatory framework” in Scotland, through a “sunset clause” for all primary legislation, under which civil servants will have to prove the “worth” of such legislation after five years for it to remain on the statute book.

Scottish Green Party

By the Green Party’s own admission, it is still attempting to develop a “green” justice policy, beyond an obvious commitment to environmental justice. However, Patrick Harvie, the party’s justice spokesperson, achieved high visibility for his outspoken attacks on “mandatory” identity cards. On a similar note, the party opposes retaining innocent individuals’ DNA, and their other policy commitments adopt a generally pro-human rights and equal opportunities slant.

Scottish Socialist Party/Solidarity Scotland

The two socialist parties (which are barely distinguishable on policy grounds) are also firmly opposed to policies such as identity cards, but their justice policy is mainly focused on the rights of asylum seekers in Scotland. The SSP leader, Colin Fox, is also committed to establishing domestic violence courts throughout Scotland; decriminalising heroin and cannabis use; and, uniquely among the Scottish parties, the “restoration” of recent cutbacks in legal aid provision, as well as its extension to employment and consumer disputes, to ensure continuing access to justice. Tommy Sheridan, the leader of Solidarity, who may have his own views on the civil justice system, has also recently introduced a member’s bill to restrict the use and sale of airguns.

It is clear that there is a lot of common ground regarding justice policies amongst Scotland’s main political parties, with the constitutional question demonstrating more radical differences in terms of manifesto pledges. Once thing is certain, however: raising legal aid rates is unlikely to be a priority for whoever is governing Scotland after the election.

Michael Torrance completed a part-time LLB at Strathclyde University and is currently a Diploma student at Edinburgh University. He will commence a traineeship in August