Targeting best value

Access to Justice is vital to a functioning democracy and the rule of law. However, legal aid exists in a world of infinite demand and all too finite resources. In the past the profession largely defined the legal needs of the public and how they would be met, but in recent years this has become a more contested terrain where other stakeholders (policymakers, the Treasury, taxpayers, clients and politicians) have contributed to the definition of legal need and the public good.

In truth no one stakeholder in the field has a monopoly of wisdom. The real challenge for policymakers and providers is how to work together with funders and other stakeholders. Whether you look on it as Big Society thinking or a wartime coalition, the prize is the same – a partnership in which all are committed to the best use of the scarce resources available. The example of the Law Society’s Quality Assurance Committee where the profession, Scottish Legal Aid Board and the public work successfully to quality-assure legal aid providers, is but one illustration that this can be done.

It will not, however, be easy. To make partnership thinking work will require all sides to eschew the temptations of political point scoring and sniping from the sidelines. How about some open and honest debate? We all know there is a crisis in public sector funding and that savings have to be made. We will have to work hard if Scotland is to retain legal aid as a demand-led budget. It has to be balanced against other important forms of public expenditure. It surely follows that all of us will have to accept that tough choices have to be made. The Centre for Professional Legal Studies, of which I am the Director, has shown the value of bringing together the principal stakeholders for candid discussions on topics such as legal aid in a way that enables the Government to explore options without the risk of megaphone diplomacy overtaking them.

Here I believe that Scotland’s recent track record is considerably better than that in England & Wales. Spending ministers there seem to find it impossible to refrain from labelling legal aid lawyers as “fat cats”. How refreshing also if they were to cease trotting out the half-truth that the UK has the highest spending legal aid programmes per capita in Europe. As UK Government ministers well know, since the researchers they commissioned have told them so, when you look at total spend on the courts (including prosecution costs and legal aid), the UK is not out of line with its North European counterparts. If Scottish policymakers can resist such temptations – and they have – why can’t the Ministry of Justice?

The profession will be called on to play its part. The temptation to reject any reductions in expenditure is both understandable and, I fear, unsustainable. Suggestions for efficiency gains from new ways of working and the new technologies so close to Richard Susskind’s heart must surely be the order of the day. However, speaking entirely personally, and declaring an interest, I do not think that forced marriages between organisations such as SLAB and the Scottish Legal Complaints Commission, which have no logical connection with each other, totally different functions and completely separate funding mechanisms, are really the answer. Asking solicitors to conduct the complex means testing for civil legal aid (as opposed to collecting contributions) may sound reasonable, but it has not worked in other jurisdictions and the limited experience we have of solicitors attempting it here, e.g. the special urgency provisions, does not suggest that it would be a viable proposition. That said, a considerable part of SLAB’s work is to safeguard the Fund, and efficiency gains are a key part of that. It stands favourable comparison with the Legal Services Commission in that regard.

Clients, on the other hand, will also have to accept some unpalatable truths about the legal aid system. Assisted parties will undoubtedly have to accept greater contributions, either directly or through the clawback mechanism. There may be scope for a supplementary legal aid scheme (with a percentage contribution from successful pursuers). Moreover, further incursions on assisted parties’ ability to instruct the lawyer of their choice in legal aid cases seem inevitable.

In short, the public interest in access to justice can best be achieved by a partnership between all the stakeholders. There is a future for civil and criminal legal aid, but we will have to be nimble of foot.

Alan Paterson