Legal Aid
Item 1 on the agenda is the three statutory instruments on legal aid. The Deputy Minister for Justice is at this committee again. I am sure that he thought that he had seen the last of the Justice and Home Affairs Committee for a wee while, but it was not to be.
The three statutory instruments have been allocated up to 90 minutes on today's agenda, although I do not think that this will take anything approaching 90 minutes, not even if Phil Gallie contributes.
The minister will now make his initial comments. Members can then make comments or ask questions.
It is lovely to be here again with the Justice and Home Affairs Committee. This is turning into Groundhog Day.
I will rattle through my speech as quickly as possible, in the hope that it will be of benefit to the committee and myself. First I will give a brief explanation of each of the three legal aid regulations that the committee is considering this morning. While those are the first legal aid regulations subject to the affirmative resolution procedure that I have dealt with, and the first such legal aid regulations put before the Scottish Parliament for approval, the financial conditions regulations are part of a regular cycle of review of the qualifying levels in the legal aid regulations. I expect that a minister will appear before the committee in a year's time to consider what further increases might, at that stage, be appropriate.
The Advice and Assistance (Financial Conditions) (Scotland) Regulations 2000 provide for the uprating of financial eligibility limits in relation to advice and assistance. We propose that, from 10 April 2000, the lower weekly disposable income limit will be raised from £75 to £76 and the upper limit will be raised from £178 to £180. As a result of those upratings the regulations also revise the contribution bands, which determine the level of contribution paid by those applicants who receive advice and assistance. The eligibility upratings represent a 1.1 per cent increase on the 1998-99 limits. That matches increases proposed in the level of income-related social security benefits, which take effect from 10 April, and will ensure that people on low and modest incomes will continue to have access to advice and assistance when they need it.
The Civil Legal Aid (Financial Conditions) Scotland Regulations 2000 are similarly concerned with uprating the financial eligibility limits for civil legal aid. With effect from 10 April 2000, they raise the lower disposable income limit—below which civil legal aid is available without contribution by the assisted person—from £2,680 to £2,723 a year, and raise the upper limit—above which civil legal aid is not available—from £8,370 to £8,571 a year. Those changes represent a 1.6 per cent increase on the 1998-99 eligibility limits. Like advice and assistance, the uprating matches social security benefit increases, which are a matter for the UK Government.
The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2000 make two changes to the legal aid rules for assistance by way of representation, which is a form of advice and assistance.
First, they extend the availability of assistance by way of representation to proceedings before the immigration appellate authorities. Under immigration legislation, if an asylum seeker or foreign national is refused entry to the UK, he or she has a right of appeal in the first place to an adjudicator, who has powers to overturn the decision where it is not in accordance with the law or immigration rules. If this appeal is unsuccessful, leave to appeal to the Immigration Appeal Tribunal may be sought. It may also be possible for the Home Office to appeal to the Immigration Appeal Tribunal against the decision of an adjudicator.
Following concerns in England and Wales about unscrupulous advisers giving potential asylum seekers incorrect and inaccurate advice, the Lord Chancellor agreed that legal aid, in the form of assistance by way of representation, should be made available for appearances before adjudicators and the Immigration Appeal Tribunal. We are not aware of similar problems in relation to the Immigration Appeal Tribunal that sits in Glasgow, but it appears appropriate to provide a broadly equivalent cover for appearances before the immigration appellate authorities, regardless of where they sit. Those regulations will bring Scotland into line with England and Wales.
Secondly, the regulations provide for assistance by way of representation to be made available without reference to an applicant's means for all proceedings under part V of the Mental Health (Scotland) Act 1984. In Scotland, there is at present a requirement for the financial eligibility and contributions tests to apply to mentally disordered persons in mental health proceedings. That is not the position in England and Wales, where applicants before a mental health review tribunal are exempt from the financial eligibility test and are not required to make a contribution.
To bring Scotland into line with England and Wales required primary legislation. The previous Administration promised to correct this anomaly when a suitable legislative opportunity arose. I understand that no such opportunity presented itself. However, using the vehicle of the Access to Justice Act 1999, Scottish ministers now have the power to prescribe proceedings where the financial eligibility and contribution tests will not apply.
The regulations that the committee is considering make provision for useful improvements to the legal aid system in Scotland and for the uprating of eligibility limits. I therefore commend them to the committee.
I move,
That the Committee, in consideration of The Civil Legal Aid (Financial Conditions) (Scotland) Regulations 2000, recommends that the Regulations be approved.
Motions moved,
That the Committee, in consideration of The Advice and Assistance (Financial Conditions) (Scotland) Regulations 2000, recommends that the Regulations be approved.
That the Committee, in consideration of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2000, recommends that the Regulations be approved.—[Angus MacKay.]
Thank you, minister.
The Subordinate Legislation Committee has reported on those statutory instruments. In its view, the attention of Parliament need not be drawn to any of them. Do any members want to ask the Deputy Minister for Justice a question?
I will start off by asking about the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 2000. It has always been of concern that, in respect of civil legal aid, the thresholds exclude a heck of a lot of people from participating in the process. The very wealthy are okay and the poor are okay, because the thresholds allow them support. Those just above the thresholds are virtually excluded from the system. It frequently works in favour of big business and against the interests of small business. Does the Executive have any plans to examine this problem? If so, how will he address it without raising the thresholds substantially?
Can I also ask the minister why, in respect of the retail prices index, housing elements should be excluded in relation to civil legal aid? Advice and assistance regulations take account of housing elements, according to the Executive note, because that brings simplification. If it brings simplification as far as advice and assistance regulations go, why should it not bring simplification as far as civil legal aid is concerned? I shall hold fire at that point to hear what the minister has to say.
My questions follow the same tack as Phil Gallie's. As a civil lawyer who has done a lot of civil legal aid work, I would like to raise some points. The increases are, to use a limited word, modest. Do you have any plans to review financial eligibility limits in civil legal aid and, separately, in legal advice and assistance? The limits are currently very low and, as Phil has said, one must be either on benefit, or pretty close to it, or rich, if one is to do anything in civil proceedings.
Do you have any plans to review the probable cause test in civil legal aid? It is quite often applied by the Legal Aid Board on a policy position, which is difficult for lawyers to find out. I found it increasingly hard to get cases up and running. I almost had to establish the case on the test for court, which required far too high a level of corroboration, particularly in interdict proceedings.
Do you have any plans to publish separately the cost of civil legal aid and civil advice and assistance? I appreciate the height of the criminal legal aid bill, but I am concerned that the cost of civil legal aid and civil advice and assistance is often blocked in with it. That gives the wrong impression. There is recovery in civil proceedings. When you are publishing those costs, will you give more prominence to the net cost, taking into account expenses recovered, contributions and capital recovered?
Do you have any plans to increase the scope of civil legal aid? I welcome what you have done on assistance by way of representation in mental health proceedings, but do you have any plans in the pipeline to increase ABWOR for industrial tribunals, fatal accident inquiries or children's panel hearings, for which there is no representation?
Do you have any plans to apply a more robust test for applicants in interim interdict proceedings? I have had difficulties in cases where interim interdict has been awarded, and the probable cause test appears to be slack in such cases.
At the moment, the working families tax credit is taken into account for civil legal aid in cases such as interim interdicts with powers of arrest, which particularly affect women who are trying to get some remedy from domestic abuse. The working families tax credit is not taken into consideration when legal advice and assistance is applied for. I would like to make a plea for the working families tax credit to be disregarded for civil legal aid as well, as that would make quite a difference to a lot of people at the lower end of the income scale.
I have only one question to add. Where stands the "Access to Justice—Beyond the Year 2000" consultation that took place about 18 months ago? I do not remember exactly when it was published, but I remember sending a submission. Everything seems to have gone quiet. It would be useful to know what is happening with that.
It is clear that we need to have a general discussion at some future date about the scope of civil legal aid and the rules that govern it. As I understand it, incapacity benefit is not disregarded for the calculation. Are there any plans to change that?
That exhausts the questions.
The questions came thick and fast. I shall attempt to answer them as best I can.
The first point that I must make on the availability of legal aid relates to the cost of provision. In attempting to uprate the financial eligibility levels, we must take account of the burden that legal aid already places on the public purse. To take decisions blithely—and I use that word carefully—about extending the availability of legal aid or about the level of uprating has dramatic and sharp consequences for the overall legal aid budget. That is not to say that we are not broadly sympathetic to some of the areas that have been mentioned.
With these changes, we are trying to ensure that those on income support and equivalent levels of income continue to receive legal aid and advice and assistance free of any contribution. Those on modest incomes above income support level also receive that, albeit subject to a contribution that is directly related to their disposable income.
The contribution level, if any, that a legal-aided person is required to pay depends directly on that person's disposable income. That is the income that is left after allowance has been made for certain essential living expenses. In determining that, all sources of income are considered when carrying out the calculation. Only in a small number of cases is a legal-aided person required to pay a contribution from their capital.
In some circumstances, people whose disposable income falls just within eligibility for civil legal aid will have to pay a contribution. That simply reflects the fact that the resources that are available for expenditure on legal aid have to be targeted as closely and efficiently as possible towards those who are least able to pay. In addition, it must be borne in mind that the contribution payable is a maximum, which is not exceeded, no matter how much a legal-aided person's case costs.
In 1998-99, the average value of a contribution, where payable, in civil proceedings was £653. The average cost per case for family or matrimonial proceedings in the sheriff court and in the Court of Session was £1,562 and £8,630 respectively. If the case costs less than the maximum contribution, the contribution is restricted to the actual costs. Nor does the contribution mean that the assisted person is out of pocket in all cases. If he or she wins a case, expenses and damages may well be awarded that will effectively provide a partial or total refund of the contribution.
The Legal Aid Board has carried out a short pilot scheme to allow applicants who are required to pay a contribution in excess of £500 a period of 12, 15 or 20 months to repay it. We are awaiting the board's final conclusions and recommendations in relation to that pilot scheme. Jim Wallace recently indicated, in response to a parliamentary question from Maureen Macmillan, that information on the conclusions of that pilot scheme will be made directly available to all MSPs. That will give us an opportunity for further discussion about how the existing regulations might be developed and refined to assist in cases in which hardship might otherwise occur as a result of the requirement to repay contributions.
I know that there is criticism because the working families tax credit is included in the calculation of disposable income in relation to civil legal aid. In making financial assessments, the Scottish Legal Aid Board makes allowance for the dependent children of an applicant. Family responsibilities are already taken into account to some extent in attempting to assess a person's financial eligibility for civil legal aid. I am sure that the responses that I have given so far will not wholly satisfy members of the committee, but I hope that they go some way towards explaining the purpose and intent behind the regulations.
I have lodged some questions about why incapacity benefit is not disregarded. You have answered the point about the working families tax credit, but I cannot for the life of me work out why incapacity benefit is included as disposable income. Based on what you have said, it seems that the principle should still apply. Are you prepared to consider that?
Which principle should still apply?
That benefits should not be included in the calculation of disposable income.
The amount of incapacity benefit payable will vary according to individual circumstances. The detailed financial circumstances of people receiving incapacity benefit will also vary widely, but will probably be comparable to those of other people on low or modest incomes. The present position is that it is not regarded as right to disregard incapacity benefit entirely in the calculation of entitlement to civil legal aid or advice and assistance.
The minister omitted to comment on the RPI links for civil advice and assistance. Perhaps he could reflect on that.
The other point that strikes me is that, although the minister suggests that those on income support could be guaranteed free legal support, the intention behind Government policy is to ensure that someone who earns is always better off than someone who does not earn. On that basis, will the thresholds that have been set always ensure that those who are just above the income support bandings will remain better off than those who get legal aid because they get income support?
When were the allowances for children and other dependants last reviewed? Passing reference was made to capital limits, but those can be quite devastating to older people who are above the level for making no contribution, but who may have capital. Their capital may be all that they have, but the disposable capital limit for advice and assistance remains unchanged at £1,000, which would exclude a lot of people, particularly older people.
I appreciate that the minister may not be able to answer those questions right now, but I would appreciate a reply if I were to write to the minister about them. I may also think of others in due course; he has opened up a war wound for me.
Before the minister begins his answers, I would like to reiterate the point that Christine Grahame has made. The limit of £1,000 discriminates against people who are saving for their later years, and that is something that the Government says it is trying to encourage.
Some people are turning down offers of legal aid because they feel that they cannot afford the repayments. Women who are in danger from violence often feel that they cannot afford the protection of the law. I would like an assurance that the minister will consider that.
Phil Gallie, if I understood him correctly, was asking whether there is a poverty trap. I am not persuaded that people make decisions about remaining on benefits or moving into employment on the basis of whether they would have access to legal aid. Perhaps that is not what you meant.
It is not.
Our intention is to create a level playing field in court. It is difficult to give a uniform answer on the specific circumstances of someone who is on income support compared with someone who is not. Circumstances will vary discretely from case to case, depending on the benefits or other forms of income that apply. I am not sure that there is a single, clear answer to the question.
On the point about RPI, as I understand it, no deductions are made for rent, council tax and so on in means assessments for advice and assistance. The limits for advice and assistance already contain built-in average allowances to simplify the means assessment carried out by the applicant's solicitor. The corollary is that advice and assistance limits should be uprated by an index that includes housing costs, which is the RPI. That is the logic that applies.
The question is why there should be a difference between the index used for civil legal aid and that used for advice and assistance. The Executive's note on advice and assistance says that the RPI housing index is used for reasons of simplification. If that is the case for advice and assistance, why is it not the case for civil legal aid?
Because, as I understand it, the means assessment used by the Scottish Legal Aid Board in civil legal aid applications enables allowances to be made for rent and council tax.
But why?
Let me come back to that point in a moment, once my brain has had the opportunity to deal with it.
Maureen Macmillan raised the issue of refusals of offers of legal aid. I know that there are concerns about the circumstances in which people refuse offers of legal aid. However, the number of people who refused offers of legal aid fell from 1,974 in 1997-98 to 1,704 in 1998-99, which is a drop of around 300.
It should not be assumed that people refuse an offer of legal aid purely on the ground of the contribution required. A number of other factors come into play. Refusal of legal aid may occur because the case has been settled, because the dispute has reached a resolution in some other way or because the person to be assisted decides that the benefits of a legal judgment would not necessarily outweigh the demands of the contribution.
I am cognisant of the sensitivities surrounding the availability of legal aid, given the group of people targeted and the circumstances in which some of them apply for legal aid. That is why the Scottish Legal Aid Board's report on the pilot scheme will provide a useful starting point for a broader debate around some of the sensitive issues to do with the take-up of civil legal aid and the tapers and contributions that are required.
Phil Gallie mentioned the distinction between civil legal aid and advice and assistance. I have been advised that solicitors grant advice and assistance and that one of the important elements when advice and assistance is sought is that there should be a simple and quick assessment so that advice can be given there and then. A distinctive regime operates for civil legal aid for that reason. If that explanation is not sufficient, I am more than happy to pick up the point in writing.
I accept Christine Grahame's offer to put in writing my response to her question and to any others questions that may arise.
I have one final comment. People give up work to get access to legal aid—I have seen it done. It is disingenuous to believe that it does not happen. I know men—clients of mine—who have done it so that they could get access to civil legal aid. It happens.
I am sure that it occasionally happens. My general point about poverty traps was that I do not believe that people make a decision about employment on the basis of whether they will be eligible for civil legal aid. There may be circumstances in which people do, but I am sure that those are the exception rather than the rule.
I believe that Phil Gallie wants to come back in on the third statutory instrument.
Yes. That is the one about mental health. I totally go along with the regulation as far as adults with incapacity go. It seems to tie up with our recent deliberations. However, why is there no element of means-testing for asylum seekers, some of whom come to this country with reasonable amounts of wealth and others of whom earn while they are here? The wealth that they possess should be taken into account when we consider their situation.
I also query the statement in the Executive's explanation that
"there could be claims of unfairness if Scottish Ministers did not provide broadly equivalent legal aid cover for adjudicators".
That suggests that there is no scope for differences between Scottish and English and Welsh law, which seems to cut across the principles of devolution on which this Parliament is founded.
Keep going, Phil.
Can we move on please? We have a long agenda.
Okay.
If it is indeed wrong for the Scottish system to differ from the system in England and Wales, how does that affect other European states, given the implications of the European convention on human rights? Do other states apply the regulation in a similar way to England and Wales?
I thank Mr Gallie for the opportunity to defend the legal systems of the entire European Union but, if he will forgive me, I will not take him up on that point.
My understanding is that asylum seekers who are represented are subject to the same tests and are on a level playing field with other applicants for legal aid. The advice that I have received is that the same tests apply.
I could take comfort from the minister's comment if that were the case, but that is not clear in the document. It does not seem to be what the regulation says.
My advisers and I are having some difficulty grasping the question.
It is about means-testing.
For asylum seekers?
As far as I can see, asylum seekers would be exempt from many levels of means-testing with respect to advice and assistance and representation. If asylum seekers have some form of wealth behind them, they should pay their share.
My understanding is that they are not exempt from the tests that apply to other applicants.
Perhaps I have misread the regulation. It appears that I have.
I can understand why the original might be slightly confusing. I can reassure Mr Gallie that there is a level playing field for all applicants.
In that case, I am satisfied on that point, but that leaves the minister with the devolution aspect to deal with.
It is not correct to say that there cannot be circumstances in which the regime in Scotland operates differently from the one in England and Wales. Members may be aware of the media coverage at the weekend about the availability of legal aid for personal injury in England and Wales. The system down there is now entirely different from that in Scotland. The point is that we are trying to create a level playing field where we feel that that is appropriate, as we feel it is in this circumstance.
We appear to have exhausted the questions. Minister, do you want to make any final comment or can we move straight to a decision?
I see that the committee has a busy agenda so I am happy to conclude.
I will put the question on each of the three motions individually.
The question is, that motion S1M-668, in the name of Angus MacKay, be agreed to.
Motion agreed to.
That the Committee, in consideration of The Civil Legal Aid (Financial Conditions) (Scotland) Regulations 2000, recommends that the Regulations be approved.
The question is that motion S1M-667, in the name of Angus MacKay, be agreed to.
Motion agreed to.
That the Committee, in consideration of The Advice and Assistance (Financial Conditions) (Scotland) Regulations 2000, recommends that the Regulations be approved.
The final question is that motion S1M-666, in the name of Angus MacKay, be agreed to.
Motion agreed to.
That the Committee, in consideration of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2000, recommends that the Regulations be approved.
All the motions have been carried. The committee must report to the Parliament on its deliberations. There are two options. The first is that we agree to report in simple terms, namely to recommend to the Parliament that the draft instruments be approved and draw the Parliament's attention to the Official Report of today's meeting, which could be done within the next couple of days.
The second option is for the committee to consider a draft report at the first meeting after the recess, on 26 April. That is worth doing only if the committee wants to make a point of substance about the instruments. I allowed today's debate to range much more widely than I should have, because I know that people have concerns about legal aid as a whole and that it is an issue to which the committee has said that it wants to come back. However, the report is on the three instruments that were before us today. If members want to go for the second option, we will need to consider how we will deal with the matter on 26 April. My instinct is to go for the first option and report in simple terms to the Parliament. Are we all agreed?
Members indicated agreement.
We will go for the first option.
I thank the minister, who is welcome to stay and listen to the rest of our proceedings.
I was going to suggest that we end with a chorus of "We'll meet again", as we undoubtedly will.
I am sure that we will. I thank you, minister, and your team for coming along.