Big shakeup of legal aid on the cards

Extended civil eligibility, unified criminal process and strategic body to succeed SLAB all in Executive paper

News, 17 June 2005

A new structure to allow more people to benefit from civil legal aid and assistance in Scotland is among the possibilities raised in the Executive's long-awaited consultation paper on legal aid, published today.

The paper, "Advice for All", recognises that the current maximum disposable income for qualifying for civil legal aid (£9,570) means that those on moderate incomes are often deterred from pursuing worthwhile cases through fear of the cost.

"We are therefore giving serious consideration to a significant restructuring of financial eligibility to extend access to justice beyond the relatively narrow range of circumstances covered at present", the paper states. It suggests an extended and tapered system of financial eligibility with those above the current income limit qualifying for legal aid but at an increased contribution, possibly up to the full cost of the case. "In those cases, legal aid would facilitate access, rather than pay for it: the taxpayer would bear the risk".

The Executive firmly believes that there is a need for a national body proactively to plan, co-ordinate, support and develop civil legal aid in all its forms. This body would take over the role currently performed by the Scottish Legal Aid Board, but with additional powers and a wider remit.

The Executive also recognises, without in terms accepting, concerns over a lack of solicitors in private practice willing and able to take on publicly funded work. A proper planning framework coupled with recent increases in civil rates would help address this issue, it states; "However, we do not think that further substantial increases in legal aid rates would fully address all possible future supply problems." Measures to help firms' cashflow, empowering SLAB to employ solicitors and to contract with private firms, and increased use of voluntary and public sector provision of legal advice are all floated as alternative possibilities.

On criminal legal aid, the paper proposes similar measures to encourage private practitioners to provide assisted work. It also asks whether more use should be made of the Public Defence Solicitors Office.

More fundamentally, it notes that SLAB does not have the same degree of control over criminal legal aid expenditure as sheriffs and judges are responsible for granting legal aid in solemn cases. The Executive is concerned that insufficient information is available to assess how the courts apply the "undue hardship" test, and that it may be applied differently by SLAB and the courts. It believes that there are "strong arguments" for transferring the granting of solemn legal aid to SLAB, and, on balance, that specific financial eligibility criteria should be introduced for both solemn and summary criminal legal aid.

The Executive supports SLAB's aim of rationalising and bringing greater consistency to financial eligibility across all types of summary criminal assistance. However specific proposals will depend on changes to summary criminal procedure, onwhich further plans will be announced shortly.

Launching the paper, which has a closing date for responses of 9 September, Deputy Justice Minister Hugh Henry said:

"Efficient and effective justice services founded on the basic principles of fairness and equality are central to delivering the peaceful, prosperous Scotland we all want to live in.

"But I also believe that we need to be very clear on the purposes of legal aid and about why taxpayers' money is spent - and that's what this consultation asks respondents to consider.

"Value for money needs to be foremost in our minds when taking forward modernisation of our legal aid system.

"Only if we drive efficiencies through the system through a more effective management of publicly funded legal advice will we be able to meet our goals, whether promoting access to justice or ensuring a fair reward for those who deliver legal services funded by legal aid."

The 2003-04 expenditure was £51.247 million for Civil Legal Aid and £102.217 million for Criminal Legal Aid. Another £3.840 million was spent on Children's legal aid, miscellaneous categories and the Public Defence Solicitors Office.

The paper can be read at http://www.scotland.gov.uk/Publications/2005/06/16153135/31366 .