Society's legal aid paper needs basic points addressed: SLAB view
Fundamental issues in legal aid are not properly addressed by the Law Society of Scotland's discussion paper, according to the Scottish Legal Aid Board in its response published today.
Identifying five such issues that it urges the Society to address, SLAB agrees that change is needed to simplify the system, support access to justice and achieve value for money, but says it disagrees with many aspects of the paper.
Taking its five issues in turn:
1. The proposals are “currently based on a very narrow view of the legal aid system and appear to be very much based on a solicitor perspective”. The suggestions for reducing the scope of civil legal assistance (cutting matters including employment, housing and personal injury) fail to take into account the impact on clients, the mixed market of legal aid providers or the grants from the legal aid fund to the advice sector and SLAB's own role as legal services provider. The research evidence cited does not support the proposals. SLAB further contests the paper's “central premise” that the legal aid system has not kept pace with wider changes: the last 15 years have seen “significant evolution” of other funded assistance, support for which would need to be increased to safeguard access to justice if the proposals were implemented. Therefore it is not the case that savings made could be reinvested in the remaining solicitor services.
2. The assertion that the current system is not fit for purpose “lacks resonance as the paper neither articulates a clear purpose for legal aid nor demonstrates how the system fails to achieve that purpose”. The examples cited, SLAB continues, have all previously been discussed with the profession, which then rejected some of the proposals now made. Arguing that legal aid has kept pace with and positively contributed to the justice system, it adds that while further change is both necessary and desirable, “to characterise this as a need for root and branch reform is both to overstate the need for change and to underestimate the extent of change that has already happened”.
3. Claims that the system is overly complex are “undermined by the sheer volume of assistance currently provided and the range of providers who remain active within the system”. While the range of assistance given means that a one-size-fits-all approach is not possible, and, for example, additional fee elements have been added to reflect certain procedures, “it is simply untrue to state that this leads to a degree of complexity, uncertainty and challenge such that taxation is a regular feature of legal aid accounting, as stated in the paper”: there were only 18 taxations last year. Block fees, called for in the paper, were rejected by the profession in 2006 for criminal cases.
4. SLAB challenges the assertion that the legal aid budget has failed to keep up with inflation, claiming that the overall reduced cost is “a combined consequence of a significant decrease in activity in the justice system as a whole and the success of measures taken over recent years to encourage greater efficiency and cost effectiveness, both in the justice system and in the delivery of legal aid services”. Average costs have increased in many types of cases; and in both civil and criminal legal aid there has been an increase rather than decrease in recent years in the number of providers. SLAB's digitisation programme has been beneficial to solicitors.
5. Finally, “There is little in the discussion paper which looks at the current models of provision of publicly funded legal services by solicitors and examines whether it promotes the public interest or access to justice.” Unlike other parts of the public sector, private legal firms offering legal aid services do not have a contract designed to achieve particular public service outcomes, which can cause difficulties when employees move firms. It can also “promote both short termism and a fragmented supply base of small firms, who resist expansion and medium to long term business development for fear that today’s employed solicitor will become tomorrow’s competitor for public funds... These are matters on which the discussion paper is silent and on which we would welcome discussion”.