The bill: a half measure

Why the legal aid provisions of the Legal Profession Bill fail to satisfy service providers

The Journal, June 2006, page 12

Submissions to the Justice 2 Committee on the legal aid part of the Legal Profession and Legal Aid (Scotland) Bill have been almost unanimous in doubting whether the provisions will achieve their stated aim of improving access to justice.

While section 45 of the bill would allow non-legally qualified advisers registered with the Scottish Legal Aid Board to provide advice and assistance, it does so in a very limited way compared with the expectations raised by the strategic review of legal aid published in late 2004, and the “Advice for All” consultation last year which directly preceded the bill.

Those papers looked towards the funding of services rather than a simple extension of the advice and assistance scheme. The distinction is an important one for the not-for-profit sector, which generally operates on the basis of grant funding, offering advice “free at point of delivery”, and does not have the systems and procedures in place to operate on a case-by-case basis.

“The proposed system of case-by-case funding simply will not achieve [access to justice], because it is alien to the service and to the voluntary sector”, Kaliani Lyle, the chief executive of Citizens Advice Scotland, told the Justice 2 Committee in evidence. “The proposal will not deliver and is not what the Scottish Executive recommended in its strategic review of legal aid”.

Filling in forms, she added, would detract from the advice-giving process: “the measure does not conform to the service’s ethos or to how we work and will therefore not help with the delivery of advice”. And she insisted that the CAB service has sufficient quality controls in place to allow grant funding in advance of the development of national standards for advice provision, or the overarching strategic body foreshadowed in the earlier papers.

Balanced approach

Submissions from within the legal profession have been sympathetic to the advice agencies’ position. The Law Society of Scotland recognised that there are areas where advice sector bodies have specialist skills which make them an equivalent source of advice to a solicitor. Supporting the principle of a balanced approach to the provision of publicly funded advice, it recognised that service level agreements would be a more appropriate way to fund agencies and encourage them to register with SLAB.

The Society also pointed out that the bill is unclear whether registered advisers would receive any more than the current unqualified rate for legal assistance – in which case the remuneration would attract little interest from the sector. On the other hand an anomaly would arise if registered advisers were paid at a higher rate than trainee solicitors.

A further area of concern for the Society was the lack of detail in the bill regarding consumer protection and complaints against registered advisers, a matter also picked up by the Scottish Association of Law Centres. In the SALC response, its secretary Mike Dailly called for registered advisers to be “subject to the same robust quality assurance schemes as legal aid practitioners” – including indemnity insurance, a guarantee fund, peer review, and oversight by the proposed Complaints Commission. “It is not in the public interest to have a two-tier legal aid scheme, where members of the public can seek statutory redress for solicitor complaints, but have no statutory right of redress and recompense for registered adviser complaints”,he wrote.

SALC also supports the grant funding approach, pointing out that this could enable SLAB to fund new city or rural community law centres in areas currently lacking access to such advice. While Glasgow currently has six such centres, Aberdeen has none.

SLAB: unnecessary restrictions

The Board itself expressed its disappointment that grant funding, its preferred approach, is not enabled in the bill. It also pointed out that even though the bill confines itself to the case-by-case approach, by only extending part of the definition of advice and assistance to registered advisers the bill effectively restricts them to offering initial advice, as opposed to providing assistance in taking appropriate steps – “which does not seem to us to achieve best value out of even that funding”.

In his oral evidence to the Justice Committee, the Board’s chief executive Lindsay Montgomery commented that the more fundamental issue for SLAB was that most of the proposals in “Advice for All” were about “bringing more flexibility into the operation of legal aid so that we can try to match supply with demand. Currently, it is a wholly demand-led system and we do not have the ability to ensure that the right people get advice in the right places”.

The Board is naturally pleased that it will take over responsibility for granting solemn criminal legal aid from the courts, claiming this “will assist in ensuring the consistent application of the financial test set by Parliament”. It points to its current performance in dealing with around 80% of applications in summary cases within two days and 99% within 10 days, and predicts that taking on solemn cases (where no “interests of justice” test need be applied) will not result in any delay, or hinder the conduct of the defence – provided the “special urgency” regulation is amended to fill any potential gaps in provision.

For its part the Society, while suggesting there will be “practical difficulties” with this change, appears to accept such an amendment as an important but sufficient safeguard if this section of the bill is enacted.

Amendments promised

When he came to give evidence to the Justice Committee, Deputy Minister Hugh Henry appeared to accept many of the points. There was a role, he said, both for grant funding and for case-by-case funding. “It was not easy to resolve this issue before the introduction of the bill, which is why there are no references to it. At stage 2 we hope to lodge amendments on some kind of grant-funding scheme, but we will wait to see the stage 1 report first.” And the limited power of registered advisers was said to be “a drafting mistake and we intend to correct it”.

However the Executive is not inclined to permit recourse to the Complaints Commission against registered advisers, in case it acts as a disincentive to people applying for this status. “If a profession of registered adviser takes off, further down the line some thought will have to be given to whether it is still adequately regulated”, the minister’s legal adviser commented. “In the meantime, we will rely on the SLAB code of practice and the threat of deregistration if people do not comply with those standards.”