The first item is our continuation of the budget scrutiny for the 2001-02 budget. In today's session we will hear evidence from the Law Society of Scotland, and from its legal aid committee, on the Executive's expenditure proposals and on the situation it faces in respect of what is coming up.
Many of you will know some of the people behind the table here. I am the vice-president elect of the Law Society of Scotland. To my right is Gerry Brown, who convenes the legal aid committee. To his right is Michael Clancy, director of law reform and an employee of the society. Convener, you have already introduced Professor Frank Stephen, who is not on a retainer by the society but who has produced research that was commissioned by it. That is the book to which you referred.
Thank you. We have received various papers, although I do not know whether you have seen copies of them. I think that a copy of the one from the Crown Office has been forwarded to you.
Yes.
So you will be aware of the detail of what it is suggesting. Chapter 5 of "Investing in You", the annual expenditure report of the Scottish Executive, is the chapter to which we are directing our concern, for obvious reasons.
Perhaps I should declare an interest, in that my husband is a member of the Law Society of Scotland. Michael Clancy and I have talked quite a lot about civil legal aid, particularly for victims of domestic or other violence, but I have not been terribly successful in getting information on that disaggregated from the legal aid statistics.
You were not being heard, Maureen, and now you are whistling.
I shall start again.
We can ask for the Law Society's view on the matter, as it represents the people who probably have more anecdotal information than anybody else in Scotland. Other members may be able to pick up on issues that relate to civil legal aid.
The issues that have been identified by Mrs Macmillan are ones that we would also identify. The tightening of eligibility for legal aid, which occurred in 1993, impacted more directly on women and children than on any other sector of the community. The representations that we made at that time to the Scottish Affairs Committee made that point. It might be useful for me to sketch out the issue of eligibility in detail, as that will address the point.
Yes. Many examples were available when we last commented on this matter to the Scottish Affairs Committee at Westminster in 1993. One example is of a lady whose husband is seeking access to their two children, who are aged 11 and 13. She works part time at a local dry cleaners and has a net income of between £250 and £300 a month, depending on overtime. Because of the lack of staff, she sometimes gets more overtime than normal. In addition to her wage, she receives child benefit of £24 a week, together with working families tax credit of £85 a week. She therefore has about £200 a week with which to look after herself and the two children as well as pay all the normal household expenses.
I should declare an interest, in that I am a member of the Law Society. This time last year I was a practising civil lawyer, dealing mostly with legal aid cases. I could ask you hundreds of questions, but I will restrict myself to two or three.
If you are going to use Latin phrases, you must explain them to those members of the committee who are not conversant with legal phraseology.
The test of probabilis causa is the test of whether there is the prospect of a case running. It involves people being asked to provide statements in corroboration. Is that test becoming more onerous?
Questions to our witnesses today, with the possible exception of Professor Stephen, do not have to be confined to legal aid. I appreciate that legal aid is a big issue, but the Law Society may, and probably does, have a view on a range of issues in the justice system. Members should not feel constrained by the fact that the first questions were about legal aid.
I could not miss the opportunity, convener.
We were asked first whether there was any evidence of solicitors no longer being prepared to do civil work. We often hear anecdotal evidence that so-and-so has given up because he is not making enough money from legal aid, but it is too early to say whether there is real evidence of that. In some areas, particularly the more rural areas, where people are attracted by more remunerative work, there may be difficulties, but in many firms throughout Scotland there is cross-subsidy. Legal firms do a range of work and regard it as appropriate and proper that they should do legal aid work. Although there is no evidence that people are being denied access to justice, it is possible that, because in the past eight or nine years there has been only one small increase in rates of pay, younger people going into the profession may choose to practise in more remunerative areas. That is a real danger.
It is not obvious that more stringent tests are being applied. We are trying to work closely with the board. A new chief executive and a new chairperson were appointed recently. We have tried actively to develop constructive discussion with them. One of the issues that we are examining is whether probable cause has been defined too tightly. We are also examining, on behalf of the profession, whether applications are being framed in a way that does not crystallise the issues. There may be lessons to be learned on both sides.
That relates also to the previous question about SLAB's policies. We work with the board at many levels, and in the past year or so we have had constructive dialogue with it. We have a liaison committee that meets four times a year, as well as various working groups. The board consults us at an earlier stage than it did a couple of years ago, so the relationship is developing.
On policy formulation, it is useful to get an idea of where such formulation operates within the board. As the board is a statutory organisation and is limited by the terms of the Legal Aid (Scotland) Act 1986, it must operate within the framework of law. In the past year and a half or two years, we have noticed a heightened awareness by the board of the nature of operating within such a framework. Sometimes, in the past, interpretation of the regulations might have been rather free, but the board has realised that certain interpretations are not appropriate for this day and age when judicial review is a more common occurrence. What appears to be a policy change is actually a recalibration of the interpretation of the law.
So that is a change.
A very positive change.
A big problem for a solicitor who is dealing with someone who appears on a Monday morning with a major domestic issue is that they must assess quickly a notional contribution—which might be £800—and if they do not seek that payment, there is a risk that all the work might be undertaken without payment being made. Martin McAllister's suggestion of a fast-track system that is free to all, no matter the income, might have some mileage in protecting individuals.
I want to ask slightly more general questions. We are in danger of going into too much detail on legal aid and forgetting that this should be a more general budget scrutiny exercise; we have expressed our wish to come back to the specifics of legal aid in future.
Professor Frank Stephen might want to talk about the general spending per head of population across the whole legal aid budget.
That takes me on to the objective, mentioned on page 67 of "Investing in You", to
We do not have specific information about the proposed pilots, but I have a couple of comments to make. First, legal aid must be demand-led; it cannot be capped. Secondly, as members may be aware, community legal services have been introduced south of the border and there has been quite a dramatic shake-up of the civil system. The Scottish system is completely different. In Scotland, the perceived problems in the legal aid system a couple of years ago were with summary criminal proceedings. In England, my understanding is that the problems were with civil proceedings. That is what the Lord Chancellor has tried to remedy. Professor Frank Stephen may have something to say about that.
We will hear the Law Society's comments on the targets and objectives first and then ask Professor Stephen to come in.
Not specifically, but we responded to the Executive's proposals in "Access to Justice - Beyond the Year 2000", which contained a lot of information about ideas.
I got no answer last week about what is happening with that document.
The only thing that we can think of is that the community legal service concept may be piloted. The society also sometimes works hand in hand with citizens advice bureaux, local legal clinics and law centres. Members of the society are involved.
So you are not aware of anything concrete that you could imagine as being part of that target?
We have not yet received notification of any pilots. However, discussions are on-going and I know that discussions about the community legal service are pending. Over the past few weeks, we have been trying to arrange a meeting between the Executive, SLAB and ourselves to discuss the issue. I imagine that we will hear more about concrete proposals then.
The second objective is
I was up collecting mine before I came here. Last year, there was a major problem. Michael Clancy received a response from the Scottish Legal Aid Board about the reasons for the problems.
About this time last year, we received a lot of representations from solicitors throughout Scotland saying that there had been a noticeable slow-down in payment by the board. We raised the issue with SLAB. On 4 May last year, the chairman wrote to Philip Dry, the then president of the Law Society, confirming that the average time delay between receipt of account and payment was a little longer than the normal standard. That was due to a number of factors, including a rise in the volume of receipts and the loss of some key staff.
Is it your impression that the situation has been resolved?
The situation appears to have been resolved. There is still an issue with abatements, but there is a joint working group to try to sort that out.
It is a question of monitoring the situation and continuing to receive representations from the profession.
Professor Stephen, you have remained commendably quiet until now. We welcome your input on the whole issue of legal aid. Pauline McNeill and Phil Gallie have some further questions about legal aid.
My question is not about legal aid.
Okay. Pauline McNeill's questions are about legal aid, so I will take her before we move off that subject. First, I invite Professor Stephen to make some introductory remarks.
If I may, I will first go back to the issue that was raised by Mrs Macmillan. I come to the issue from a slightly different perspective from members of the Law Society. In essence, I examine the data and try to understand what it tells us. SLAB's annual reports for the past decade show that the proportion of applications that were granted civil legal aid and then abandoned after offer more or less doubled between the beginning of the 1990s and the date of the most recent annual report.
I want to stick with the theme of access to justice, which will be a major issue for the Justice and Home Affairs Committee from today. I want to ask a couple of things about legal aid, then to broaden the discussion out.
Pauline, this is meant to be an exercise in scrutinising the Scottish Executive's expenditure. Any discussion with the Law Society about lawyers' fees for private work is an entirely different issue. You must stick to discussing the money that the Law Society gets from the Executive, which is legal aid.
I will finish on this point. In the context of what we are discussing, I am not happy that the whole issue of access to justice revolves around legal aid. I would be pleased to hear your comments on that.
That is not for this exercise, and I would ask the witnesses to respond to those aspects that relate to legal aid.
Certainly, we share Pauline McNeill's concern about the benefits that are not allowed as deductions. It is not only benefits—the scheme was set up 30 years ago and certain deductions were allowed while others were not. That needs to be revisited. Things that were considered luxuries 30 years ago may not be considered as such now. Reconsidering that area could increase access to justice, because there might be more take-up of legal aid offers.
I do not want to go down that road, Mr McAllister, because it is not germane to today's business. It may be something to which we want to return.
I want to draw the committee's attention to some elements of the legal aid system that are not widely appreciated.
Is it true that you have identified one particular aspect of the rules as the reason for the increasing amount that is spent on criminal legal aid?
I am not sure whether it is correct to say that I identified an area. Having identified that 32 per cent of expenditure went on summary cases in sheriff courts where no trial took place, and that that also accounted for 49 per cent of the increase in expenditure in the first half of the decade, I spent some time considering the incentives. I was struck by the difference between the regulations that apply in Scotland and those that apply in England and Wales, according to my understanding. However, I must point out that I am an economist, not a lawyer. In Scotland, criminal legal aid is not granted if there is a guilty plea, whereas in England and Wales full legal aid is still available even if there is a guilty plea.
In effect, you are saying that guilty pleas in Scotland are being delayed in order to get legal aid, so that the person can get a decent plea in mitigation.
That was the inference that I drew. Research that was carried out at the University of Edinburgh suggests that accused persons are quite sophisticated in how they—as opposed to their agents—play the rules to get a plea in mitigation.
It could end up being cheaper simply to give legal aid to the early plea.
The impact of the European convention on human rights will be a substantial policy issue. When it comes into effect in October, the ECHR may make some of the objectives and targets in "Investing in You" redundant. We were told that there was to be a £10 million saving as a result of the introduction of fixed payments and that that would be applied, in part, to convention cases.
I am very concerned about this issue. There was a reduction in the legal aid payment fund last year and I think that there will be a reduction this year.
It is an on-going reduction. If you look at the table, the fund seems to be declining consistently.
Table 5.24?
Yes, the one that gives the figures in real-terms, which is the more accurate way of looking at it.
It is important, in devolution and human rights issues, to identify where the money is going. It would be helpful—for us, I presume for the board, and for this committee—to know how much has been spent at the end of this year on devolution issues since the set-up of the Parliament. For policy purposes, you have to know that in order to anticipate future costs.
As no one has any more questions on legal aid, we will move on.
Last week, we heard from representatives of the Crown Office that they were absolutely satisfied with their level of funding, that they had an adequate number of procurators fiscal, that the procurator fiscal service had no problems with resources, that courts were adequately financed, and that all was well. However, I hear from people whom you represent—and I know that other colleagues have heard the same—that they do not feel that all is well at all. We hear from people in the police service and from people going through court processes that there are problems in those services. There often seems to a lack of time for procurators fiscal to deal adequately with cases. What do you feel about the level of funding for the Crown Office and the courts?
Often, one deals with anecdotal evidence from different branches of the profession about trying to get in contact with a fiscal to discuss a case, or about waiting for correspondence from a fiscal's office or from the Crown Office. As I see it, there is no criticism at all of any individuals who work in the procurator fiscal service. However, there may be systemic problems concerning the way in which they deal with the work. Those problems may involve difficulties in arranging to reply to correspondence or to calls, or in arranging meetings. However, that does not apply across the board. It seems to apply in pockets in certain jurisdictions. For example, it may apply in Glasgow but not in other, smaller, jurisdictions.
So you are saying that the Law Society has heard no evidence from its members of problems in the procurator fiscal service across Scotland.
What does that mean?
You said that there were problems in Glasgow—people waiting for justice in Glasgow may have to wait longer than people in Fife, for example.
No. It is like a balloon full of water: if you to try to do something in one part of it, the balloon bulges on the other side. In Glasgow, for example, the time between a plea of not guilty and the trial is very short, whereas in Tayside they are fixing trials for 2001. Why should that be? Is it because there are not enough sheriffs? Is it because there are not enough clerks?
So you are happy with the suggested levels of Crown Office funding?
I would not say that I am happy; I am sitting on the fence. I am not being complacent; I am not happy.
It takes a lot to make him happy.
It also takes a big fence. [Laughter.] We are not complacent about the issue; we are keeping an eye on it.
It has been suggested that £0.9 million should be put aside to deal with issues connected with ECHR and to prepare the justice system and the courts for it. It does not seem that there is too much money for on-going requirements, yet every day your colleagues seem to come up with examples, arising from the ECHR, of injustice in the Scottish system. Should there not be a concentrated effort in this area? Does the budget provide for such an effort being made?
Not that I think you were, but it is not fair to criticise the legal profession for doing things that lead to judgments that might cause difficulties.
The job of the lawyer is to exploit the law to the benefit of their client.
I think that the lawyer's job is to examine the law and act on a point where it is felt that there is one. Some effects of the adoption of the ECHR could be anticipated, others could not. Any country that has adopted the convention has experienced a period of difficulty that has lasted for about three or four years.
We are aware that there was a lot of pre-implementation preparation. The courts, the judges and the prosecution service were pretty well served by the judicial studies board and others in the Crown Office who were learned in convention rights and jurisprudence. Dr Alastair Brown, in the Crown Office, is renowned for his expertise in this area and was closely involved in the educative process. The institutional framework had access to a lot of high-quality information at a relatively early stage. If anything, it was the defence solicitors who were slower in getting to grips with the full import of the convention.
I recognise that we could widen the discussion but I am talking about the budget figures. The document says that £0.9 million has been spent on preparations for the convention. Your members have quite rightly identified a number of serious loopholes. I can see nothing in these budget statements that suggests that future problems have been catered for. Should that not be a priority? How much would have to be spent to ensure preparedness?
In fairness to Michael Clancy, I remind members that he raised that issue and said that what has been spent in this area, and what is likely to be needed in the future, needs to be identified. The money will have to come from somewhere and the problem is not going to go away.
It definitely is not going to go away. The process is on-going. If £0.9 million has been spent in the past year, we can predict that there will be expenditure of that order in the future.
Thanks. That is the point that I am trying to get at. The document does not cater for such spending.
It is not given a separate heading, certainly.
The Crown Office budget is going down, so I doubt that it is being provided for.
That is an important point. Do the regulations that allow to be raised what are called devolution issues—they are in fact human rights issues—reflect the policy intentions and do they cover the situations that are arising? I do not think that they do. We raised those issues with the Executive some time ago and are working with it to examine and resolve them. If a citizen has an issue that has been sanctioned as a devolution issue by a judge or sheriff, he should be able to ventilate it and get legal aid cover for it.
As of 3 October, it will not just be devolution issues that are involved.
I wish to ask about the physical facilities in courts. There is a beautiful sheriff court in Edinburgh, which I visited, but the situation is not the same elsewhere the country. Do you think that refurbishing and, in some cases rebuilding, court buildings, particularly in rural areas, should be a priority for the Executive? I am thinking of the comfort of witnesses more than that of solicitors. Witnesses are often stressed and need somewhere to sit quietly without being bothered by witnesses for the other side.
The priority is that a community should have its own court. An old building with poor facilities is better than no court at all. Members may know that there was a proposal recently to reduce the availability of courts in the Borders. Thankfully, that proposal was not implemented. Certainly courts should be places where people are comfortable. Coming to give evidence can be a traumatic time. Witnesses should be catered for and their needs should be paramount.
I agree with what you said about rural courts and courts in the Borders. It has been brought to my attention that Peebles sheriff court may still be threatened with closure. Have you any information about that?
No one has expressed that to us.
The problem with rural courts is linked to transport in rural areas—people have difficulties getting to court.
I agree. I had understood that Peebles sheriff court had been reprieved, but was then informed—I cannot disclose the source—that the court might still be under the sword of Damocles.
Have the witnesses read the Crown Office and procurator fiscal service strategic plan? Do you think that the objectives that are set out on page 6 are appropriate? Are they achieving any of those objectives? I know that that is a tall order. I refer in particular to the operational targets such as whether they are serving indictments within the appropriate time.
Mr Gallie mentioned the Crown Office's satisfaction that its budget is sufficient. Some of these objectives are high targets. It is hoped that they will reached within budget. Squeezing the balloon—I mean the balloon to which Mr Brown referred, rather than Mr Brown—at one end could have an impact on the fiscal service. If there are delays in courts, there are resource implications that impact on other targets.
Targets are great things to have. In chapter 5, table 5.3 refers to targets for the criminal injuries compensation scheme. Would the committee and the Executive like to know whether those targets are ever met? We do not seem to have those data. Table 5.5 gives targets for the community-based supervision of offenders. It might be interesting to know whether the target for probation orders and community service orders is being met. One might also want to find out whether they are complied with and, if they are not, when they are brought back to court. They cannot be effective if a breach of probation or community service takes place on 1 January 1998 and the person is not brought to court until January 2001.
It would therefore be useful to have the previous year's objectives and targets and the outcomes for that year, as well as the targets for this year. There is no reason why we cannot ask for that information to be provided. No doubt you, too, would be interested in that information.
Presumably, the Crown Office can provide you with statistics on the percentage of cases that are now dealt with by the imposition of fiscal fines and the percentage of cases that are diverted from prosecution, compared with the proportion four or five years ago. Our information is that there has been a huge increase in the number of cases of fiscal fines and diversion from prosecution. There are probably good reasons for that, but data on that would be helpful so that you could make an assessment of the funding that will be required in future. If those proportions increase as they have done, less money might be required for criminal legal aid and more will be available for civil legal aid.
There is a point about the effect of the efficiency of the court service and the fiscal service on the legal aid budget. A factor that is recorded in chapter 6 of the report of my research is that the growth in expenditure was in itself a function of the volume of cases. As the volume of cases built up in sheriff courts and there were delays in the system, legal aid expenditure rose because of cases that were not heard or were delayed or in which there were problems in agreeing evidence. The efficiency of the fiscal service or the court service has implications for the legal aid bill because agents, witnesses and others can become involved in unnecessary diversion of work, which increases the bill. A statistical factor that became apparent in the statistical analysis was that the growth of work in the 1990s had a cumulative effect on the bill for legal aid because of delays and court congestion.
I thank the witnesses for attending and answering our questions. No doubt we will see some, if not all, of you in future on other subjects.
And the European convention on human rights.
And ECHR. Are there other—
The targets.
And the targets. We should indicate clearly that, although we are grateful for the list of objectives and targets, we would like to know last year's objectives and targets and whether they have been met.
On legal aid, we should look at the report on the gap in emergency support for women in situations of domestic violence and at the need for a special kind of duty solicitor rota in civil work.
I do not want us to get too bogged down in the detail.
Civil legal aid would relate more specifically to the bill that we are trying to pursue.
I am conscious that if we end up spending so much time on legal aid alone, we will be neglecting other areas.
Criminal justice, social work and victim support.
I reserve the right to come back on this next week, if necessary. I asked a question about the time delays in the civil courts. I would like to do some research on that, because I am not sure whether the answer that we received last week is accurate.
No problem.
There is the issue of police funding. We have not had any police witnesses yet. It would be helpful—
I am aware that the longer this goes on, the more questions arise. One of the difficulties is that we have not received the information that we asked for at last week's meeting—that would have been useful for our exercise this morning.
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