Advice deserts and PDSOs

As the Society runs a survey of views on the state of civil legal aid provision in Scotland, it appears that the situation is even more serious than previously thought

The Journal, June 2007, page 24

The opening of the proposed PDSO offices in Aberdeen and Dumfries has been put back from April to September 2007. In addition, the search for premises in these locations has been put on hold. The Society has been advised this is because there were no suitable candidates for the posts in these offices. Further, there were apparently only just enough suitable candidates for the Ayr office to match the positions available.

This mirrors the experience of all those within the Society and the private sector regarding recruitment (a) into High Street court work, and (b) outwith the central belt. Even given the experience of those of us on the frontier trying to recruit, however, it was still a shock that it also affected the Public Defence Solicitors Office.

A number of issues arise and the Society wants to highlight these with help from the profession. To do this, the Society is carrying out a short online questionnaire to collate data on practitioners’ views of the current state of civil legal aid provision in Scotland. Even if firms have stopped offering civil legal aid, the Society is keen to have that information so it can build up an accurate picture of the legal aid map in Scotland.

Of immediate relevance to all concerned with access to justice is the fact that there are clearly supply problems regarding solicitors prepared to work in certain geographic areas and/or practice areas. It is of particular concern that this has arisen regarding recruitment in criminal law, traditionally regarded as an attractive and exciting area of law to practise in. If there are difficulties recruiting solicitors to practise criminal law, how much more difficult will it be to recruit in the areas of civil law with which legal aid is concerned – normally seen as not so glamorous or exciting? In civil law, publicly employed solicitors are not an experiment, but the SLAB/Scottish Executive-perceived solution to the problem of lack of suitable people able to provide advice and representation to the public.

Similarly, if a public body, with pension benefits, job security, a guaranteed wage, holiday entitlement, secure funding and personnel backup, cannot recruit or is having difficulty recruiting, what chance has an undermanned private practice dependent on the vagaries and uncertainties of commerce?

If the public sector can’t get people who want to do the work, then the current solution mooted to resolve the “advice desert” phenomenon is not going to work and it is the public who will suffer.

What is going to be done about it?

It would be perfectly possible for the public sector to offer a more beneficial wage and benefit package in order to try to attract more recruits. However, if that is done, how is a level playing field to be maintained? If the private sector is still constrained by the current system and thereby stuck in the same Catch 22 rut (of which the public sector is now having a taste), then:

• the private sector cannot fairly compete;
• any comparison of the merits and demerits of delivery methods becomes irreparably flawed;
• the private sector withers on the vine, as the limited number of solicitors who are apparently prepared to do this work are snapped up by the more attractive rates offered by the public sector;
• the policy idea of a mixed public/private legal advice and representation delivery becomes impossible; and
• the public sector has to assume the whole responsibility for delivery of state assisted legal advice and representation, with consequent implications of huge costs for establishment of an infrastructure parallel to that which (more or less) exists at the moment, conflict of interest, remoteness of advisers for the vulnerable, and the effect on local employment and economies.

The private sector has been experiencing, and voicing concerns about, these difficulties for years. The perception in the private sector has always been that no one in authority either believed us or was interested.

In point of fact, it now seems that the situation is worse than we had imagined. The private sector has always thought there were three problems:

• legal aid involves too much hassle and paperwork;
• legal aid does not pay enough to be attractive; and too few solicitors want to work outwith the central belt.

Now it transpires the problem is much simpler. Even the removal of a significant part of the administrative burden (the PDSO does not have to bother itself with human resources, financial management or accounting for each individual case) is not enough and we are still left with the second and third problems.

Public sector benefit packages aside, it appears that solicitors simply do not consider it worthwhile for them and, presumably, their careers, family and financial commitments and aspirations, to work in publicly funded High Street legal work as it stands outwith the central belt.

Which leads us back to the main question. The public still require legal advice and representation. A significant proportion require assistance paying for it. Obviously, for that advice and representation to be provided, there must be personnel on the ground. If there are insufficient personnel prepared to do so, in certain geographic areas, we are going to have advice deserts and it will be the most vulnerable sectors of the population in those areas who miss out and suffer as a consequence.

How do we ensure that sufficient suitable people are attracted to work in this area, whether in what is left of the previously national private sector infrastructure or a newly established public sector infrastructure?

The temptation for SLAB and the Scottish Executive is to wait and see, or to cling to the belief that what happened in Dumfries and Aberdeen was a one-off “glitch”. In the short term that is the cheapest option and does not involve silly radical ideas like properly resourcing and investing in what is left of the existing infrastructure.

Given the gravity of the situation, failure to bite the financial bullet and address these issues is simply going to result in delay, during which the public will suffer and more of the private sector infrastructure will decay through neglect.

Once gone, that infrastructure will cost even more to re-establish from scratch, assuming it can be re-established at all. This rot needs to be addressed now before it affects the entire structure of legal assistance for the poor and vulnerable.

Of course, the cynically-minded could suggest that SLAB now have a vested interest in private practice withering on the vine. After all, SLAB are moving from being simply the funder of public legal assistance to being both funder and provider in competition with private practice. Wouldn’t we all like to be holding the competition’s purse strings? Conflict of interest, anyone?

I wonder what SLAB will be telling the Scottish Ministers?

    Ranald Lindsay is a legal aid practitioner and Council member for Dumfries

*To take part in the Society’s consultation on civil legal aid, go to www.lawscot.org.uk and either download the questionnaire (which is on the home page), fill it out and return it to the Law Reform Department, LP-1 Edinburgh, or 26 Drumsheugh Gardens, Edinburgh EH3 7YR. Fill it out online if you have Adobe 7.0. If you would like a hard copy of the questionnaire please contact Katie Hay in the Law Reform Department on 0131 476 8351. The closing date is 30 June.