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Legal aid: time for a rethink

19 January 15

Following last month’s feature on the legal aid discussion paper, the Society’s legal aid co-conveners explain the thinking behind the proposals, some of which have proved contentious

by Mark Thorley, Ian Moir

In November 2014 we published a discussion paper on legal assistance. Since then, we have received a lot of feedback on the ideas set out in the paper. We continue to receive responses and are delighted to have generated such a significant level of engagement and debate on legal assistance. The feedback will help inform our views in reaching a final set of recommendations.

We are welcoming responses up until 30 January 2015. There is still time to get in touch with your views by emailing legalaid@lawscot.org.uk and we encourage anyone with an interest in these issues to do so.

Context

It is against a challenging financial backdrop that we are discussing the future shape of legal assistance in Scotland. The legal aid framework in Scotland is facing some serious challenges at the moment. Public sector budget cuts have brought the legal aid system and the public’s access to that system under pressure.

We are fortunate in Scotland to have a legal aid scheme which is demand-led and not cash limited. However, the Scottish Government is committed to implementing reforms to reduce legal aid expenditure to meet the budget. For example, in 2013-14, the Government’s budget allocation for legal aid was £138.1 million, but the total cost of legal aid in that year was £150.5 million. Notwithstanding that the budget allocation of £138.1 million was probably unrealistic, the overspend meant the Government had to find funds from other public services in order to cover the additional expenditure.

SLAB continues to forecast a significant gap between forecast expenditure and the Scottish Government’s budget provision for legal aid for 2014-15 and 2015-16.

It is clear that the Government is committed to finding savings within legal aid. However, it is equally clear that there has been a real-term decline in legal aid over the last two decades. In recent years, our members have reported that it is becoming increasingly difficult for them to offer these services while remaining economically viable. There are concerns about the future of the legal assistance system if this real-term decline continues.

Given the competing challenges of managing the budget and ensuring economic viability for legal aid practitioners, we are often asked about our overall strategy on legal aid. We are asked if we seek to:

  • persuade ministers to allocate additional funding for legal aid for the years ahead; or
  • attempt to amend Government reforms in order to mitigate the damage that might be caused by the immediate drive to reduce expenditure.

The Society works hard on both of these objectives. This involves highlighting the importance of legal aid to the public and to policy makers, as well as analysing and commenting on proposals for reform. We want to ensure our members are economically active and sustainable and that access to justice is maintained for the benefit of society.

Reinvestment

The discussion paper suggests a number of changes to the legal aid system. Some of these would reduce expenditure, while others may increase it, but result in wider savings to the justice sector. We believe that savings that are made should be reinvested within the legal aid system. We are not proposing that either civil or criminal legal aid receives additional funding at the expense of the other type of aid. We are suggesting that the savings generated by these reforms should be reinvested into both criminal and civil legal assistance. We have clarified this issue with the Scottish Parliament’s Justice Committee, as well as the Cabinet Secretary for Justice, following comments in the Parliament which incorrectly suggested that we proposed to increase criminal fees at the expense of civil legal aid

We believe that the Government might be more likely to accept a reinvestment strategy than an argument for a direct increase in funding at a time when expenditure is already over budget. Such an approach also ensures that funding is targeted within areas that need it most.

Simplification

We believe the system has become overly complex for both users and providers. We make suggestions to streamline and simplify the process, removing the distinction between different types of legal assistance, and creating a single entry point to assess eligibility.

The criminal proposals

The key suggestion in relation to criminal legal aid is to encourage the tendering of guilty pleas earlier in the process in order to achieve early resolution of cases. The intention

is not to increase the number of guilty pleas overall, but rather to ensure that where a guilty plea is made, it is made as early as possible.

The current remuneration structure for criminal legal assistance means that, in certain circumstances, it is easier for clients to access legal assistance if they plead not guilty initially. We believe that this discourages some clients from pleading guilty at the outset. These clients are more likely to tender a plea of not guilty in order to access legal aid and then change their plea to guilty at a later stage, once funding has been secured. We believe that this approach, which is caused by existing legal aid structures, endangers the effectiveness of the justice system by increasing the time taken to resolve cases and adding to cost within the justice system. Accordingly, our discussion paper suggests that this area could be reformed to allow for adequate remuneration for pleas of guilty at the outset, or following investigation.

The civil proposals

A number of changes to the civil system are suggested, including reconsidering scope and eligibility, introducing a new publicly funded loan, and restructuring the wider advice sector – including increasing the use of a range of funding options for private solicitors, as well as bolstering the network of advice providers outwith the private sector.

We believe that the current advice landscape is no longer working to best serve the public or service providers. We should look at reimagining the wider system, reshaping it to ensure that the best advice is provided at the right time. This may mean ensuring access to a solicitor, but it may no longer mean that the solicitor is funded through legal aid as we currently know it. Solicitors in law centres or in other organisations may be an alternative to private firms for some areas of work. This is clearly contingent on a proper and secure funding model being developed for these solicitors and for the advice sector in general. If this proposal were to be considered further, significant work would need to be done to develop an appropriate framework.

The range of payment options for private solicitors and their clients is growing and changing. If eligibility levels for legal aid were reduced, this would ensure public funding is targeted on individuals who are least able to pay privately. Many firms now offer a variety of funding options, such as contingency fees, unbundling, legal services loans and expenses insurance, and can refer clients to specialised funding and insurance products. These options should be promoted to ensure that individuals who might reasonably be expected to pay privately are able to access affordable legal services. The proposal also helps protect the legal aid system in a time of severe budget pressures for those of limited means who simply cannot be expected to pay privately.

We appreciate that universal scope will be a matter of principle for many. We also need to have due regard to our responsibilities in relation to equality and diversity, and how changes may affect the “protected groups” under the Equality Act. However, in order to ensure universal access to justice and an advice sector that is sustainable for the future, we believe it is now appropriate to question whether we can continue in this way. We have not come to any conclusions on this point yet, but we are glad to have started the debate, and we are analysing the feedback with interest.

Blank sheet

It is time to review the legal aid system. The discussion paper suggests a number of changes to consider, but we are open to hearing other ideas. We want your feedback on the paper, but also your alternative suggestions for change. Society and the justice system have changed hugely in the last 30 years, and we believe it is right to look at legal aid from scratch – what kind of framework would we build if we were to start again today?

The consultation closes at 5pm on 30 January. 

Mark Thorley and Ian Moir are co-conveners of the Law Society of Scotland’s Legal Aid Committee

Where to find it

The discussion paper can be found in the November news and updates in the legal aid section of the Society’s website: bit.ly/1pHrg6i

Submissions are invited until 30 January 2015.

 

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