EBA Response to Legal Aid Reform Consultation
RESPONSE OF THE EDINBURGH BAR ASSOCIATION
EBA answers to the specific questions posed by the Scottish Government can be viewed here. Below is a copy of our overall response to the consultation.
Part One- Foundations for Change
1. Legal Aid has the user voice at its centre
2.Legal Aid has flexibility to address and adapt to user need
3.Legal Aid as a public service
Part Two- The Change Agenda
1. Scope and oversight
2. Improving access and targeting interventions
3. Simplicity and fairness
4. Enhanced statutory powers and best value
The Association welcomes the opportunity to participate in this consultation. We note the stated aim of the consultation is to reform the design and delivery of legal aid in Scotland. We note the observation that the framework established in the Legal Aid (Scotland) Act 1986 is outdated.
There is much within the paper to be welcomed particularly with regard to simplification of the existing system and we have made a number of suggestions to contribute.
However, the proposals would involve a root and branch reform of the legal aid system. The paper begins with the assertion that the present system is not fit for purpose. This consultation specifically states that it is not seeking to address the issue of funding, although it opens with an observation on spending on legal aid. The paper seeks to fundamentally change the system as a whole, without considering the whole system. This would be the biggest change to Legal Aid in a generation. It is impossible to do so without considering remuneration and funding.
Recruitment and retention of legal aid practitioners has been an increasing problem that is only getting worse. For example, there has been a 16% reduction in criminal legal aid practitioners since 2015. Less than 5% of criminal legal aid practitioners in Edinburgh are female with school age children. We are competing, not only against the private sector, but also against other publicly funded institutions. Many solicitors have opted to leave legal aid practice because of pay or conditions. The proposals within this paper do nothing to address these issues.
The other area of grave concern is the surprising proposal that decisions on policy be “devolved” from the Cabinet Secretary to SLAB. Whilst it is clear from the paper that major changes are intended, it is far from clear what the new system would be. As we read the paper, power could be passed to SLAB, and only after that will significant decisions be made. Given that the reforms are to change the future of legal aid practice for a generation, it would be remarkable if it were not subject to close ministerial scrutiny.
It is the intention of the EBA to submit this paper along with answering the specific questions asked.
PART 1 – FOUNDATIONS FOR CHANGE
1 Legal aid has the user voice at its centre.
This is the first declared objective of the paper. We agree that the professionals delivering the legally aided service are presently the “users” of the system. The client provides information to his solicitor who in turn passes that onto SLAB. The solicitor makes the application, and deals with any requests from SLAB for further information, whether by contacting the client again or otherwise. At present, it is likely that the client has little to no contact with SLAB during the course of the case which is being funded.
We welcome the shifting of focus from the solicitor to the legally aided person. For the legally aided person to be truly the user of the system, and for their voice to be at the heart of the system, they should communicate directly with SLAB as that will allow maximum opportunity for their voice to be heard.
Following on from this, we note the concern that the “user voice is being lost within the current system”. At the moment, the client has ultimate control over the delivery of their service in that the judicare model allows for the operation of a competitive market economy. Clients decide who to instruct. In fact, many legal aid solicitors do not require to advertise and clients often come from a recommendation. Competition is the best assurance of quality. Whilst it may be difficult to assess, it should be borne in mind that clients are the main assessor of quality under the present system.
It would be interesting to know what procedures there presently are in place for the “user voice” to be ascertained given that the PDSO and the CLAO have been dealing directly with clients for 20 years. It is our understanding that there is no formal structure.
We note the various proposals for ascertaining the needs of the user. As stated, the client is presently the main assessor of quality. There is a danger that this voice may in fact be lost the more administration is in place. The more contact the user has with SLAB directly can only assist in their voice being at the heart of the system.
2 legal aid has flexibility to address and adapt to user need
We note the tenor of this part of the report is that the present judicare system is failing to deliver consistent services nationwide. The assertion is that there are gaps either in areas of law, or areas of the country. We do not agree that this is due to an “inherent lack of flexibility in the current model”. The competitive free market economy is an extremely flexible system, with supply appearing to meet demand. The market is not operating properly due to a lack of funding, so that supply cannot meet demand due to financial constraints.
The post Cadder changes in police interviews provide a case in point. Following the decision, Advice and Assistance was made available to cover police station attendances and telephone advice. A police station duty plan was drawn up. The system adapted and worked. It failed due to a lack of proper remuneration.
As another example of this is that very few firms now offer financial provision upon divorce legal aid. This is directly as a result of the high risk/ low pay involved in such cases. This is not a gap in the area of law as firms offer such advice and assistance for private paying clients.
We note it is stated that the issue of legal aid fees and payment framework will not form part of this consultation, albeit the paper opens with a statement on the per capita spending on legal aid. We do not accept the suggestion that the system itself is solely responsible for issues with supply of services.
We do not recognise the problem of oversupply. The market demand determines the level of supply. The suggestion is that there is over supply in areas of large population. We do not accept that. If over supply is an issue there, why do the PDSO operate there? Over supply, if it exists at all, does not require an overhaul of the system to correct.
We also draw attention to the fact that there does not appear to be any policy as to where the PDSO operates and in which areas of law. This would appear to be a tool available to address issues of provision of services. We note that it is not suggested here, for reasons that are not clear.
3. Legal Aid as a public service
The nomenclature of what we do is not important. The purpose behind the statements in this section seem to place greater onus on the “planning or designing of services” rather than their effective delivery. As stated above, a properly operating market would respond quickly and instinctively to fill any gaps in the market for provision of services. Shifting the onus onto planning and design would move resources from delivery.
The reference to the governance structures is difficult to comment upon as there is no indication as to how these are said to be deficient at the moment and there is no indication as to what is proposed to meet them. As stated elsewhere, solicitors are subject to a number of different governance structures. There is a danger new ones would add to or compete with others, or hinder solicitors ability represent clients effectively.
The stated objective of engaging Best Value considerations indicate that cost will be a significant factor. The reference to driving continuous improvement would appear to suggest replacing the improvements made necessary by the free competition model with pre-determined criteria which are at risk of being artificial and risk diluting the user voice.
PART 2 – THE CHANGE AGENDA
1. Scope and oversight
We agree the current scope of legal aid be maintained. It is difficult to comment on the proposal that SLAB be given additional powers without knowing what specifically is proposed particularly with regards to oversight. The issue of responsiveness has been dealt with.
2. Improving access and targeting interventions
The recommendation that legal aid providers enter into a Memoranda of Understanding with SLAB causes concern.
Within the existing system, each firm and each individual solicitor require to be registered with SLAB to provide legal aid. Further obligations ensue on the granting of legal aid in each individual case. There are there for existing obligations. We would submit that an “understanding” has less force and is of less significance.
It is of great concern that this Memoranda of Understanding may be used by SLAB to compel firms to take on certain work. This compulsion is designed to fix a perceived gap in the market. A gap exists because certain work is presently financially unsustainable. The gap is filled by SLAB compelling it to be done on threat of other work being denied to a provider. This approach is fails to recognise the cause of the gap in the first place and is itself unsustainable. It also raises questions about the stated objective of these reforms.
Such a Memoranda could also be used to implement policies which SLAB have previously proposed but have been unable to implement such as collection of contributions by solicitors.
The proposal of exclusive funding agreements is an extension of the Memoranda and an extension of the concerns. The restriction on judicare is a restriction on client choice and therefor user voice. The comment on the low uptake of mediation, and the implication that this could be improved by a changed model of funding, appears to be a very clear indication that the executive will seek to interfere with the advice given and therefor solicitors’ ability to do their job. Whilst it may be presented as, not an attempt to regulate advice given, but to regulate the quality of the advice given, the effect is the same. This is particularly concerning, given the additional powers regarding quality assurance that are sought.
Whilst it is stated that the Memoranda could indicate what should be expected in return, i.e. SLAB’s part of the bargain, there is no indication as to what they might be. Given the willingness to position the work as a Public Service, we would expect training and physical and mental welfare to be at the heart of this.
3. Simplicity and fairness
We agree that the present system is too complicated and welcome all efforts to simplify. This will be of particular importance where the client is the user and has more direct contact with SLAB in the application process.
A single aid type with one financial eligibility test is welcomed. Simplification of eligibility calculations and financial verification is also welcomed. We would highlight the present issues with the latter. It is often the case that issues are raised by SLAB regarding the issue of financial verification, not at the time of the application, but at the time of submission of the account once the work has been carried out.
A new system would require to recognise that work often requires to be carried out on the same day as the application is made and the system of checks will require to accommodate this. The proposal of a “High trust” system would appear attractive to achieve this. The trust being placed in the user who is at the heart of the system.
Provision already exists for the provision of advice without the signature of a client in the data capture of telephone advice to a suspect in police custody. We would propose that this be extended to all types of legal aid.
FAIs and Contributions and clawback
Legal aid clawback is fine in principle but the effects of the system have meant that many solicitors no longer offer work which would be subject to clawback. The reason behind this is that, if one is required to withdraw from acting in such a case and there is a possibility of financial recovery, it is unlikely that a solicitor will ever get paid. Advice and assistance civil legal aid does not allow for the recovery of funds for either outlays or interim payments. This means that a file can sit for months without the solicitor either being reimbursed for outlays or being paid any fees.
The system of contributions to the payment of civil legal aid certificates appears to work well. The user liaises directly with SLAB which avoids conflict between client and solicitor.
The merits test is applied differently in respect of the existing aid types. In respect of summary applications, it is clear and has been consistent for over 20 years perhaps to the point of being redundant. With regard to ABWOR, particularly eligibility for ABWOR, the rules are complex and opaque. Shifting the onus of the system from the legal aid providers to the user will require a system that the user can easily understand. Where a system is difficult to understand, or inconsistent, the user’s decision as to how to progress his case may be affected by their belief as to their entitlement to legal aid. Such a situation should be avoided.
4. Enhanced statutory powers and Best value
We note the proposal for a unified approach to quality assurance. For this approach to be truly unified, and if the definition is of a public service, this should be a wholesale review. Solicitors are presently subject to quality assurance by a number of different organisations. We would wish to avoid a situation where obligations are competing against each other. We would not wish to be subject to more or less supervision than other parts of Public Service.
We welcome the proposal of an approved suppliers list with regard to outlays.
Devolution of power from the Scottish Government to SLAB is as ridiculous as it is insulting. SLAB has been at the heart of Legal Aid policy since 1986 and have been instrumental in, and largely responsible for, the present situation which is now said to be fundamentally flawed. The notion of “SLAB having the ability to make use of targeted interventions once the outcome of this process was known, without the need to obtain the agreement of either national or local government” is undemocratic and would represent an appalling dereliction of Ministerial duty.
There should be no mistake that the powers and proposals contained within this document would represent the most significant to change to the Legal Aid system in a generation. Indeed, it is clearly intended to be such. The effect on the Justice System as a whole will be considerable and permanent. For the Scottish Government to pass all power and responsibility not only for the administration of the system but also for the policy that drives it, is a Ministerial washing of the hands of the Justice system. If the Cabinet Secretary for Justice does not have responsibility for this, what do they have responsibility for? Is the Scottish Government proposing the same devolution of powers from the Cabinet Secretary for Education and Skills? Or Finance? Why then do it for Justice?
It should be remembered that the notion of Exclusive Funding Agreements was proposed by SLAB a number of years ago. We do not view it as a coincidence that SLAB have now identified a problem the answer to which is something they already indicated they wanted to do.
The concerns stated above when dealing with the Memorandum of Understanding are reiterated here as are the concerns about the lack of accountability of SLAB should power be devolved.
Should the Scottish Government pass power to SLAB, it will be in the knowledge that that is their intention and the consequences should come as no surprise in years to come.
Without Ministerial responsibility for the direction and administration of policy it will go unchecked and the only recourse will be expensive and lengthy. Once power has been devolved, any attempt to restore it to the democratically elected politicians will be resisted by those who hold it.
SLAB wishes to control policy, the administration of policy, have those providing its services enter into a Memoranda of understanding to oblige the provider to give unspecified commitments and be the sole assessor of Quality control with future contracts decided on the basis of the quality control assessment. Although the provision will be called a Public Service, those providing it will not be public servants and will not have the security and protections public servants enjoy. This appears to be entirely one sided.