Strategic Aim 6: Establishing Effective Oversight
At the start of this chapter, Mr Evans makes reference to the fact that he encountered overt negativity and even animosity towards SLAB on the part of members of the legal profession. He goes on to say that “some of the criticisms are unfair”, before giving examples. No examples of fair criticisms are provided. This partial approach typifies much of this report, which is sprinkled with statements which lack justification, often for the very good reason that there is none. Egregiously, this chapter repeatedly contains reference to the fact that “the Scottish Government is responsible for setting the policy and the Scottish Legal Aid Board is charged with delivering it”, as if SLAB has no input in relation to policy. Further, Mr Evans seems to proceed on the basis that SLAB has no control over the question of the setting of fees. This presentation does not reflect the true position. This can readily be seen from Mr Evans’ own comments in this chapter. He makes reference to the fact that it is important, for example, that SLAB’s “advice to ministers has credibility”. In relation to the question of fees, if it is correct that SLAB bears no responsibility for these then one wonders why SLAB held roadshows last year on precisely that topic.
Having inaccurately described the current arrangements, Mr Evans turns to “Options for the future”. Three are identified. The first one is the “return [of] delivery of legal aid to the Law Society of Scotland”. This is dismissed in one sentence: “It would be a very retrograde step and would be likely to significantly reduce public trust and Scottish Government confidence in the administration of legal aid.” Nothing is offered by way of justification for this offensive statement, which seems to shed significant light on the attitude of Mr Evans and, more significantly but less surprisingly, SLAB and the Government towards the independent legal profession in Scotland. It must be the case that Mr Evans has been told by sources in the Scottish Government that they do not trust the legal profession. Who in the Scottish Government has told him that they do not trust the legal profession? Why would the return of responsibility to the Law Society of Scotland be described as “retrograde”? Why is no attempt made to balance that analysis with consideration of the potential advantages that such a step might bring, for example by having people who understand the legal system design and administer an appropriate scheme?
Predictably, Mr Evans concludes that a rebranded version of the current set-up is the preferred option. Interestingly, he expresses his dislike for the term “Quango”, noting that this has come to be regarded as a term of disparagement. He does not seem to reflect on the reasons for that. Put short, quangos are regarded by informed opinion as being self-serving, bloated bureaucracies. Almost perversely, Mr Evans suggests that an organisation like SLAB is best placed to provide support and information to the legal aid profession because, inter alia, it knows how to “navigate through the complex fee structures”. The fact that SLAB is responsible for the ludicrously complex current system seems to have escaped him.
Essentially, SLAB’s task is to facilitate legal representation for those who cannot otherwise afford it. Why the pursuit of such a simple end has resulted in the Byzantine bureaucracy at Thistle House is a daily source of wonder for many practitioners. The landscape of legal aid needs to be recast so that the people who understand the legal system have significant input, always of course subject to stringent financial oversight within the framework of high professional standards.
It is suggested by the Edinburgh Bar Association that consideration be given to removing responsibility for criminal legal aid from SLAB, or any successor organisation, and placing this in the hands of the Law Society of Scotland with administration to be shared with the Scottish Court Service at the first point of need, thus ensuring shrieval supervision of the behaviour of practitioners. The fact that the Law Society of Scotland is not trusted by the Scottish Government to fulfil such a role is a matter of deep concern and chimes with the perception that the continued existence of an independent criminal bar in Scotland is a matter of indifference as far as the Scottish Government is concerned. The last thing Scotland needs is yet another quango such as the “Scottish Legal Assistance Authority”, suggested by Mr Evans. The example of the most recent quango in this field, the Scottish Legal Complaints Commission, should cause the Government to pause before following Mr Evans’ suggestion.
The Edinburgh Bar Association does not expect that its radical proposal in relation to the provision of criminal legal aid will be welcomed by the Scottish Government, but it does expect it to be seriously considered.