Item 3 is further evidence in our legal aid inquiry. I welcome the representatives of the Scottish Legal Aid Board. We have with us, in no particular order: Lindsay Montgomery, the chief executive; Jean Couper, the chairman; Tom Murray, the director of legal services; and Colin Lancaster, the head of the policy unit.
Yes. Several of the issues I want to touch on are of concern to the committee.
I ask you to keep your opening statement short. You will be able to come in again at the end of the evidence session, once we have asked all our questions, if you feel that anything has been missed.
Thank you very much.
I want to consider the criminal justice system more broadly. Paragraph 41 of your written evidence says:
The evidence refers to how we work and how other parts of the system work together. For example, Jean Couper mentioned sanctions. One thing we find is that where different players provide different information, there are different perceptions of why sanctions do or do not work.
Can you give the committee an example?
If a court decides to change how it operates intermediate diets, for example, that will affect the time scales to which solicitors must work. Information must be passed round the whole system.
Are you saying that such changes happen routinely and that you do not find out about them except by default?
I would not put it as starkly as that. There could be more effective consultation at an earlier stage and discussion of the impact of changes in one area on other aspects—not just the budgetary situation, but on the way that we process cases. That would help matters.
One of our witnesses, Professor Paterson, suggested that a Scottish legal services commission should be set up to give that kind of strategic overview to the system. Could that be one of the solutions?
We certainly see the advantage in the authority that the Legal Services Commission in England has. Its role is to identify needs and to plan how best to address them. That is missing from the system in Scotland, so it would be helpful to have that kind of planning process, which would impact on the issues that Lindsay Montgomery mentioned.
Such a process would not solve all the problems that we are talking about. The Legal Services Commission deals with legal aid and associated areas, but it must still work alongside the rest of the justice system, so such an organisation in Scotland would not remove the need for greater consultation and working together.
The previous section of your written evidence refers to the register of firms and solicitors who provide criminal legal assistance, and the code of conduct that solicitors must comply with to be registered. What benefits have come from having that register and the code of conduct?
The key benefit is that we are able to ensure, with the profession, that all criminal practitioners are administering the system in the same way. When we do audits—we have done many—we give the solicitor a questionnaire to determine what they thought of the audit. It is interesting that a very high proportion say that they found the audits useful and that they helped them to get their processes and procedures to operate effectively. In addition, the audits have not been as intrusive as it was feared they might be at the outset. They have helped the quality of the administration of the process, but they do not necessarily tackle the quality of the product; that is a separate issue, which the system does not yet deal with.
I note that you say in your evidence that
Some solicitors were less happy than others, but to have introduced a system like that—which means going round other people's offices and looking at what is being done—and to have that level of satisfaction is quite surprising in some respects, and quite positive.
Have you been able to examine why the 15 per cent were unhappy and felt that there was disruption? Were they justified in taking that view? Have you taken any steps to ensure that they will in future be happier?
Some people do not like the idea of the Scottish Legal Aid Board having access to their files and offices. No matter what we do, I am not sure that we can remove their concerns. We have learned from the process. We get back the questionnaires and the comments, and we examine how we operate. During the two and a half years in which we have been operating the system, we have gradually improved the process to make visits as brief and unobtrusive as possible.
Paragraph 43 of your written evidence refers to new guidance for solicitors on applications to instruct counsel or engage expert witnesses, which you touched on in your opening remarks. Are you making progress on the development of that guidance?
Yes, we are.
SLAB has had a working group over recent months that is made up of a wide range of board members, and which examines sanction for counsel. We are at the stage of speaking to the Faculty of Advocates and the Law Society of Scotland on the outcomes and we are providing draft guidance, which we will put out to the profession, to make the system operate better. We want solicitors to give us the information that will allow us to take a decision quickly and effectively, and we want to reduce the number of times that we must go back to solicitors to say, "We are not clear why you need two seniors." The work that we are doing will make a difference to that.
Am I being a bit naive? You say that you are trying to clarify the issue with the Executive. I would have thought that that question could be answered simply with a yes or no.
The issue is not that simple. There are questions about the meaning of the legislation. If the Executive takes the view that there is scope for greater discretion than SLAB has used, or than is understood to exist, that will help us to adapt more. If the Executive says that there is no discretion, we will want the regulation to be changed to solve the problem.
I will pick up on your reference to the forums that are required for greater communication and consultation. Will not that just involve more bodies? Will not that place extra burdens on busy people? Will it incur extra costs? Is not the solicitor the conduit for passing back change that might occur in a court? Would it be simpler to adopt a fast-track approach, using the information that comes from solicitors?
Information that is fed back from solicitors is ad hoc and anecdotal. We see advantage in capturing that information, which we obtain and try to make the best use of. However, there remains a need for a more concerted approach to working with other relevant parties. The idea would not just involve more bodies. The bodies that exist should meet and work more closely in consultation with one another. That would have great advantage, because closer contact, better understanding of the issues for different parties, and joint working to decide how best to proceed could bring about incremental improvement. We do not ignore solicitors, but often their information is anecdotal, rather than being factual and figure-based evidence on which we can agree with other relevant bodies in the system.
Solicitors have an important place in the process. We value the information that we obtain from solicitors, which is one of the reasons why we have made many visits to local faculties of solicitors in the past year or so, to find out what they think of the process. That allows us to feed views back to the justice department or elsewhere. We want to continue that process, but that does not allow us to start meeting the other drivers of the system to discuss how we can make the system work better.
Your evidence explains that 70 per cent of criminal legal aid accounts are now covered by the fixed-fees regime. You also suggest that solicitors and their clients have had fewer problems than were predicted. Will you explain how you reached that judgment?
When the introduction of fixed fees was proposed, the profession's substantial reaction was that the system would not work and that it would be grossly unfair. Issues about fixed fees need to be resolved, particularly for expensive cases. I hope that the Convention Rights (Compliance) (Scotland) Bill will deal with those issues.
There is a view that opting for fixed fees has led to a lower level of service being provided. Inevitably, when solicitors are involved in cases for which a fixed payment is made, it is in their interests to minimise the time that they give to clients and the time that they spend in court. Do you think that the quality of service has been affected? I refer you to the much-publicised case in which a couple of solicitors refused to defend an individual and a question of rights under the European convention on human rights arose.
In very complex cases and in cases that have many precognitions, the solicitor will be under an extreme burden under fixed payments. That matter is being addressed by the changes in legislation. It is difficult for us to see the impact that fixed fees have on outcomes in court. The tripartite group involving the Scottish Legal Aid Board, the Scottish Executive and the Law Society for Scotland, which is monitoring fixed payments—there is some way to go on that—has received no suggestion that the system has had an impact on the quality of work that solicitors do.
Some solicitors have suggested that that is because they subsidise such cases to their own cost. Is that a fair observation?
There are some cases in which the amount that is paid will be more than is necessary to reimburse solicitors reasonably, but there are others in which it will be less. There are swings and roundabouts, but the question is where we strike the balance. I think that it is recognised that in very expensive cases the balance is not fair to the solicitor. That needs to be sorted out.
Finally, no compensation is paid for idle time that is the result of cases being held up in court. Do you have any information on the costs that solicitors incur because of suspension of cases and loss of time in court?
That issue arises if the start of a trial is delayed. If there is delay after the trial has started, the solicitor is paid for each subsequent day. The initial delay is the problem, but our systems cannot pick that up. It should be possible to get that information from the courts. We know that that issue causes great concern to the Glasgow Bar Association, which we visited and had a useful discussion with several days ago. Substantial delays mean that that association's members are unable to make money. Under the previous legal aid system, the board would have paid for the solicitors' time. It is in everybody's interests to make the system as efficient as possible, so that nobody is sitting around waiting for proceedings to start.
I declare that my husband is a solicitor who does both civil and criminal legal aid work.
The line that we have generally taken on the Convention Rights (Compliance) (Scotland) Bill, which addresses the fixed payments issue, has been that to account properly for the work that is done on a case, it is important that somebody who is claiming on a time-and-line basis should have reasonable records to support their claim, which could be very substantial. We recognise that the Law Society of Scotland's view is that that is quite difficult to do. We have offered to sit down with representatives of the Law Society of Scotland and of the Executive to work out how we can bring those two positions together, so that we do not have an unfair situation for solicitors. However, we need early warning, and solicitors need to keep the records that are necessary to support what could be a substantial claim on the taxpayer.
I turn to what you say about fee levels for solicitors and advocates in paragraphs 62 and 63 of your written evidence. I note that you highlight the static nature of those fees and your concern about the gap between legal-aid fee work and private-fee work. Some of the evidence that we have heard has suggested that it is becoming increasingly difficult for solicitors and advocates to do legal aid work. Have you undertaken any assessment of the impact that the static nature of the fees has had on the availability of legal aid work, on both the criminal and civil sides? I know that you said that you believe that there is still an extensive network on the civil side, but have you undertaken any assessment to see whether there has been an impact?
We have done some work to map where the legal aid outlets are; Colin Lancaster has been leading on that. That is where we get the information that there has been an increase over the piece in the number of people who are able to offer advice and assistance services or civil legal aid. What the work does not really tell us yet—we might get this information in the future—is what that means for a firm. If somebody does one or two applications in a year, that is not a huge provision in a particular area of Scotland. We would like to see a fuller view of all the providers of legal aid and of the advice and information sector; that might begin to happen with the community legal service work. That would give us a better picture than we have at the moment.
Some of the evidence that we have received suggests that, in practices that have continued to provide legal aid work, that work is often passed on to more junior staff, rather than to senior solicitors. I take on board your point about the apparent increase in the number of outlets that are making services available, but I think that we must ask a serious question about the quantity of the service that is being provided. Is it just one or two cases a year? Is more work being done overall, or is it just a case of more practices being available to provide legal aid?
There has been quite a substantial increase in the volume of advice and assistance that has been provided in recent years. We know that, at the same time, there has been a reduction in the number of full civil legal aid applications, so there is some relationship between those trends.
What stage have you reached in assessing that specific area of difficulty and finding out exactly what is going on?
Some of the work on that will come through the work on community legal services. We are on the steering group that is considering the extent of provision across the country. SLAB, the Law Society and the Executive should consider the qualitative aspect through the tripartite group, especially on legal aid as opposed to community legal services more widely.
Given the impact that the level of fees has had on the level of service that is available under legal aid, do you have a view on the level at which the fees should be set to address that?
No; we are not at that stage yet. We want discussion on that matter to come through the tripartite group and we want to discuss it separately with the Faculty of Advocates to establish its view on what the level of fees should be. We will formulate our view after those discussions have taken place.
What is the time frame for that process?
We are currently working with the Faculty of Advocates. We are engaged in discussions and there is documentation to help those discussions along. In relation to solicitors, I believe the Law Society is issuing a document to the Scottish Executive, outlining its views on the current fee rates. We hope that that will be produced for discussion shortly.
You have outlined several factors in your evidence today, such as the fact that some parts of the regulations have not been changed since 1987.
1983.
It goes that far back. Should SLAB have the powers to change such things when it recognises that there is a need to do so? Would you welcome those additional powers if they were on offer?
We would welcome a more proactive role in suggesting where amounts need to be uprated and changed. The changes are matters for Parliament; that is in no way a bad thing. We uprate benefits each year. I do not see why other amounts could not be uprated regularly in line with specific indices.
I understand the need to uprate in the same way as benefits are uprated and I know that it is a matter for Parliament, but the inquiry is considering how the system has been operating. You have identified real problems in the way the regulations are set. It is clear that the limits have been allowed to remain at their current level for more than a decade, without any detailed scrutiny as to whether the system is working effectively. Part of the process is to ensure that that does not happen again. The question is whether it is appropriate for the matter to come back to the Justice 1 Committee or to the Parliament every time, or whether there should be a mechanism in the system to allow changes to occur automatically. Could SLAB have a role in making those changes?
There is an opportunity to introduce a mechanism to uprate those amounts, similar to the uprating of wider eligibility levels. Beyond that, we have identified and agreed that there is a need for a more strategic approach. We believe that that would be very helpful and would be the way forward. We would be happy to play a role in that.
Our equivalent in England, the Legal Services Commission, has much wider powers in these areas, under the Lord Chancellor's Department. Those powers have grown over recent years to allow it to have greater control over where provision exists in England. That is left almost wholly to the market in Scotland. That is the sort of matter that might be worth considering.
Does the Legal Services Commission have powers to uprate?
It is able to influence what is provided and where. It does that through a range of mechanisms. It gets agreement on what people are paid, although the Lord Chancellor's Department sets the rates initially.
I understand that a public defenders project has been running recently. Could you comment on that project? What would the benefits be of extending that scheme? Could you give us an overall idea of the average savings made through fixed fees and of the savings that you would expect to make through the use of public defenders?
The Public Defence Solicitors Office is the subject of independent research that has been commissioned by the Scottish Executive. Until that report is published—it is due in October of this year—we do not know the answers to the questions that Mr Gallie asks. I am loth to make predictions; it would be wrong for me to do so.
It would be unfair of me to press you on that matter, but could I press you on the overall savings you expect to have made from the introduction of fixed fees?
At the outset, the aim of the legislation that introduced fixed fees was to achieve a saving of £10 million a year. Fixed fees were introduced at the same time as other measures, so it is difficult to know what causes each cost or saving. The general level of payment has decreased a bit, but it is too early to say whether the full saving of £10 million has been achieved.
We are considering the budget in our joint meeting with the Justice 2 Committee later this morning. I notice that the budget for legal aid for the next three years is exactly flat. Does that mean that nothing is changing or that, by happy chance, changes up the way are matched exactly by changes down the way?
On the grant-in-aid side of that question, we published our corporate plan last week—all members have a copy of it. The plan lays out our aims and targets for the next two years. We have made it clear that if we are to achieve those objectives, we need additional resources, which we have asked for, to pay for additional staff and new systems. We hope that we will hear from the Executive soon on the matter of our grant in aid for the next couple of years and I am hopeful that we will receive those additional resources, so that we can move forward.
I will take the point about the flat line of the overall provision. From our point of view, legal aid is not a budget—it is not cash-limited. Next year, if we have a huge increase in cases, ministers will have to find the money.
Your written evidence talks about the declining number of applications for civil legal aid. Have you made any progress in identifying the reasons for that trend?
As I said in my opening statement, there has been a downward trend in the number of legal aid applications. We are considering that decline and research is being undertaken to try to identify the reasons for it. We do not expect a clear-cut answer in terms of cause and effect, but I hope that that research will help us to clarify whether there are changes in demand and how much of the decline is to do with eligibility levels and with the contributions that are asked of individual applicants.
Paragraph 24 of your evidence mentions the increasing proportion of applications that are rejected on the merits test. Why is the proportion rising?
The proportion of applications for legal aid that we are granting is currently around the 67 per cent mark. On refusals of applications, we are very much in the hands of the information that we get in support of an application. We have said that there is a need to open up the dialogue and to ensure that the profession and others know exactly what we require in terms of the statutory tests to be able to grant applications.
Forty-two per cent of refusals were reviewed and granted in 1999-2000. Do you think that you could have been applying the merits test too severely? Forty-two per cent is quite a high figure.
You have to bear in mind that the review process opens up the application for the applicant to provide further and more detailed information. Many of the applications for review that we see contain more detailed information than we had in the first instance. It may be that, with the passage of time, the agents are able to get more information for the review application, or it may be that we have identified a lack in the original application that the profession has the opportunity to address at the review stage.
We have introduced another change over the past year that will affect the figures. In the past, if we did not get the necessary information, we could just refuse, because it is the solicitor's job to provide that information. We have now tried to speed up and help the process by continuing cases and sending them back to the solicitor for an explanation of certain points. We give them that opportunity to come back to us before we determine the application. That change should be quite helpful to solicitors, as an applicant will not be using up their opportunity to review when we should be able to get the information from them relatively easily.
Do you have any idea of the percentage of those who take up civil legal aid who win their cases?
It is a very high percentage.
We do not have the numbers at the moment. We used to publish those details in the annual report, but we ceased to do so about five years ago. However, we still collect that information, so we can certainly provide it to the committee if that would be helpful.
That would be helpful.
What progress has been made in reviewing the treatment of property that is recovered and preserved with respect to contributions?
There are two separate issues there. Property being preserved is one of the most tortuous areas of legislation in this area and one that gives solicitors and their clients difficulty. We have done quite a lot of work on that. We now want to clarify exactly what the legislation means, and we will get an updated counsel's opinion in the near future to get as clear a view as possible as to what the legislation means, how we can interpret it and where our areas of discretion are.
You mentioned research into the decline of applications for civil legal aid. What is the time scale for that research?
We will have the results on the effect of eligibility levels—the economic effect—from the researchers towards the end of June. We will examine those results over the summer, but we want to make them public as early as we can.
By when do expect them to be made public?
I hope that we will have had the first report and examined it by some time in the middle of the summer—for example, the end of July.
I am conscious that the research might be quite helpful to our inquiry. Could we receive a copy of it?
We will furnish the committee with a copy as soon as we can.
We have already touched on costs. Paragraph 16 of your submission suggests that, even when an applicant is required to make a contribution, they benefit from being an assisted person because they will not usually be liable for the other party's costs. Some witnesses have suggested to us that that is unjust. Why should successful defenders be denied costs if SLAB funds an action but be able to get costs if the action is privately funded?
One of the fundamental benefits of being an assisted person is a fair degree of protection from having one's resources taken away if one loses. That is part of the benefit of being granted legal aid. It has to be balanced by the interests of the assisted person's opponent if the opponent does not have legal aid.
I want to go back to applications that have been rejected on merits tests. We have had evidence of people applying for civil legal aid for matrimonial interdicts with powers of arrest and being turned down on the ground that it is a criminal matter and should be dealt with by the police. I think that the evidence we heard was from Scottish Women's Aid and the Law Society of Scotland or the Glasgow Bar Association. I have also heard anecdotal evidence privately from the Family Law Association.
The topic of matrimonial interdicts and the involvement of the police seems to have developed a life of its own. As you will appreciate, when we consider an application, we have to consider two merits tests. One is probable cause, which is a low threshold test.
I have one or two figures that may help. We cannot separate matrimonial interdicts in our system, but with regard to interdicts generally, in 1999-2000 1,201 female pursuers were granted legal aid for interdicts, at a grant rate of 72 per cent—higher than our normal civil legal aid grant rate. There were also 229 applications to defend interdicts—men or women, which was a grant rate of 43 per cent. It worries us that there is a bit of a myth that we will say "No" or "Go to the police." It is not like that. That is an area where we will undertake to provide much better information to the profession on what it is able to do. I have seen evidence of people having said that it is not worth applying. I am sorry, but it is worth applying and we will grant, based on getting useful information.
Solicitors seem to be especially concerned that the board is not doing what it ought to be doing and is using the dual nature of this kind of legislation as an excuse.
No. Some evidence suggests that we do what we do to save money. That is not the case. If we have a decent case for granting, we are perfectly happy to grant. It is a question of ensuring that we get the information that allows us to do that. I mentioned going for continuations earlier—that might help.
You will probably be aware that many people think that civil legal aid is available for the very poor and the very rich, but Paul Martin touched on the comment about the right of successful defenders to pull back on their costs.
We have no way of telling that. If someone is not an assisted person, we simply will not hear any more.
That raises a further issue. I accept the point that a legal aid certificate is a powerful weapon in the hands of a pursuer who is legally assisted. The onus shifts to ensure that we make available as much information as possible to the opponent, so that they know exactly what their rights are, for example in making representations against any application for legal aid that is coming in. We have to ensure that the focus is equally split, between information to the applicant on how he goes about getting legal aid and information to the opponent on how they can successfully resist, or rather make appropriate representations against, somebody who applies for legal aid.
That is fine, but civil legal aid cases are often for relatively small amounts of money. I am thinking of cases where small businesspeople, perhaps sole traders, are involved. Even the cost of using solicitors can be an off-putting factor.
People have to be in a position to make decisions on the basis of proper information on what their rights are. You mentioned the small businessman, Mr Gallie. Technically, there is nothing in legislation that would prevent a small businessman applying for civil legal aid. The difficulty with legislation in this area is that it is very specific about who can apply for legal aid. The definition in the 1986 act limits it to an individual—a natural person. If someone is involved in partnerships, limited companies or small businesses, they are clearly outside the scope of the definition. Because the sole practitioner is an individual and not in a partnership, they could come under the civil legal aid system if they meet the eligibility criteria.
I would like to move on to discuss those eligibility criteria for civil legal aid. In your written evidence, and indeed in your opening statement, you noted the difference between the criteria for civil legal aid and those for advice and assistance. A number of witnesses have suggested that the different treatment of the working families tax credit in particular is anomalous.
By that, we are referring to the nature of the total calculations that are carried out and the way in which advice and assistance eligibility and civil legal aid eligibility as applied are different. There are different deductions for various things. In civil legal aid, we apply deductions for housing costs, among other things; in the case of advice and assistance, we do not. That is why it would sometimes be too simplistic to say that we will just make the benefits the same in both cases.
Is that because the different eligibility regulations grew like Topsy and have not been properly examined?
If you go back to a long time ago, when legal aid and advice and assistance were set up, they were trying to do slightly different things, but they have changed in various ways over the years, which is why it would be a good time to revisit the fundamentals of eligibility and ask whether the right people are getting legal aid or advice and assistance.
Some witnesses have suggested that the working families tax credit should become a passported benefit for civil legal aid—if you receive the benefit, you ought to receive civil legal aid. Do you have a feel for the implications of that for civil legal aid, for example the effect of the reduction in the number of applicants who would have to make a contribution?
We cannot say. We can consider it and see whether we can estimate the effect.
So you could estimate the financial effect on the legal aid fund.
We come at this from a number of different angles. First, there are inconsistencies in the regulations, one of which we have just discussed. Secondly, as was mentioned, there are figures in the regulations that have not been uprated for a long time, so it is hard to see how the result that was intended back in 1983 or 1987 can be achieved. Thirdly, there is the sheer complexity of the system and the bureaucracy that surrounds it.
The committee may be aware that we recently made public the fact that for a number of years the board was aggregating advice and assistance and civil legal aid accounts. Having taken the opinion of several counsel, we worked out that we should not have done that. It happened because of conflicts and difficulties between various parts of our legislation on advice and assistance and civil legal aid. That is the kind of thing that we and the Law Society of Scotland would like to sit down and tackle with the Executive, to provide something that is easier to understand. As Jean Couper said, in the legislation there are 10 or 14 figures that have not changed for many years. We would be happy to list those for you if that would be useful.
There seem to be two issues. First, there is the fact that the regulations are complicated and should be simplified, although I do not know how long it would take to review them. Secondly, because the regulations are now so complex and bureaucratic, they have to be explained more to the public. There are two issues that have to be addressed to make the system simpler for the public to understand.
I agree. One of the things that we are doing is producing a revised set of information leaflets for the public, which can be used by solicitors to inform their clients of the position in a number of complex areas. Frankly, they are difficult for solicitors to understand, let alone explain to their clients. We expect the first of the leaflets to come out in the autumn.
Perhaps we can move on to discuss quality assurance. Your evidence suggests that there is a need for more quality assurance mechanisms in the legal aid system. What sort of mechanisms do you have in mind?
We are conscious that at the moment there are in place what might be called input quality measures, in terms of the training solicitors undergo before taking up office or as part of their continuing professional development, but there are no processes to measure the quality of the delivery of legal aid services. All we have a role in and responsibility for is the payment of the account at the end of the case.
We are pleased that quality assurance is one of the major subjects being considered by the community legal service group. Regardless of which part of the process is being considered, quality assurance needs to be embedded, to give the public confidence in the overall system.
Although you cannot measure quality at the moment, do you have a feel for whether there are firms that are not offering a good service?
We have insight only through anecdotal evidence from individual applicants or groups that are working with applicants. It would be unfair and inappropriate of us to reach conclusions on that basis. Inevitably, there will be individuals who feel either that the service has not been good enough or that it was not what they expected.
Do you think that, as the Law Society suggests, sufficient safeguards exist through its practice rules?
Those are the input controls. There is a lot of good guidance in them, but they are not a quality assurance system.
So you are looking for a different kind of standard from that which the Law Society requires of its members.
Yes.
Another witness suggested that clients would benefit from knowing the number of cases in the various areas of civil law that solicitors had dealt with. The idea would be for you to indicate at least a firm's experience in an area of law through the publication of league tables. Would that be feasible, using your data on how many cases of a particular kind a firm had dealt with? Would it be useful?
The organisation that suggested that idea has a valid point. It wants to know what firms have expertise in specific, specialist areas of law. That information is sometimes difficult to provide, although we would like it to be made available. However, the Law Society has an important role in providing information on its members' services, and there could be difficulties if we published information only on the firms that happened to have done something specific. Moreover, that could not be a guarantee.
There must also be quality control mechanisms.
Yes.
The danger is that, if we published the frequency with which individual solicitors dealt with specific issues, people might read across from frequency to expertise and quality. The figures would not necessarily provide that information.
Yes. Solicitors would argue that, in matters of law, even if they had not taken on a specific type of case before, they would still be competent to deal with it. The question is one of perception.
The question is whether the firms have the expertise. There is no reason why a small firm would not have expertise in a wide range of areas, but it might deal with certain subjects only once every five years. However, there would be nothing to prevent a small firm from going to a larger firm to get the service.
I want to pick up on the issue of quality assurance and the quality control mechanisms, particularly in relation to the idea of greater community legal services, to which those mechanisms would be essential. You said that that issue is high on the CLS working group's agenda. My concern is that everyone in that forum and in the Law Society, for example, has a vested interest in the process. I am always suspicious of bodies that set their own standards and monitor whether those standards are suitably applied. Should there be an independent element in the scrutiny of the quality of legal aid services? Might that be done by a Scottish legal commission?
I am not sure that all the people and bodies involved have the same interest. We pay for what the solicitors or others might be doing and it is perfectly legitimate to say that, as we do with accounts generally, we should have an independent view of the process and arrive at a position on whether we should pay the balance. Quality can be considered in that way. However, organisations such as ours need to have other watchers, which we have. We have to ensure that whatever part of the system is being considered is subject to independent review and has an appeal mechanism.
I can imagine a fight developing if SLAB were in a position to decide what was good-quality service. From what you are saying, I believe that SLAB would decide that the service was not good enough. The legal profession would fight with SLAB over who would be responsible for enforcing the standards, even if everyone had been involved in the negotiations over setting the standards. Have you thought about the wider implications of the watchdog role that you envision for SLAB?
We should be careful on this issue, so I am glad that you came back on that point. We are not saying that we should suddenly take on the responsibility for monitoring standards. One of the good things about the CLS working group is that it is examining proposals that cover the whole system in an attempt to ensure that there is as much agreement as possible on who should carry out various roles. It would be dangerous for us to pre-empt the work of that group well before it is ready to report to ministers, which should be in October. The group is considering the issues that you raise and there will be some interesting discussions as we go through that process.
Do you think that your operations, practices and procedures are 100 per cent compliant with the European convention on human rights?
Who would be daft enough to answer that? [Laughter.] We did an awful lot of work internally on that last year—primarily Tom Murray's team and the legal members of our board. We then employed three external parties to give us their views. We have identified the changes that we have made. For example, we can give far more detailed reasons in criminal cases of why we have refused legal aid. We have not been deluged with a huge number of challenges and I hope that we are reasonably protected against legitimate ones.
Have you had any challenges?
We have not. Obviously the Executive has had a number of challenges, but we have not.
To give the broader picture, it has to be said that we have not seen a number of applications coming in against other public authorities either. I expected a raft of applications to come in, but that has not been the case.
Perhaps the people involved cannot get legal aid.
We expect to consult towards the end of the summer on our recommendations on how to change and improve those provisions.
Some witnesses have mentioned the problem with getting speedy legal aid to deal with domestic abuse cases. Do your proposals cover that issue?
The special urgency provisions work in that area much of the time. There is a link to special urgency issues—someone might be asked for £500 up front because that is what the solicitor thinks the contribution would be. Those are the sorts of thing that the consultation will cover; the recommendations on other contributions will read across to that. The time scale is to go to consultation by the end of the summer.
In your evidence, you refer to the fact that certain areas are outwith the scope of legal aid. Which are the most important?
There was a range of tribunals for which legal aid was not previously available. We are pleased that the issue is now being addressed on a tribunal-by-tribunal basis. We have also been concerned about people who are just outside the limit, as has been mentioned. In the whole process, they can be the ones who are worst-off. If they are against someone who is legally aided, issues arise about how far eligibility goes and about whether eligibility could be wider but with commensurate contributions. Those are the two main areas.
As you probably know, it has been suggested to us that, in areas such as welfare law, the legal profession is neither interested nor especially qualified. Have you come across that notion?
That is not an area that a lot of solicitors deal with, although some do. In particular, such solicitors will be found in the law centres. Those people are expert in their fields and in the advice sector. Whether they should be more widely spread—especially in rural areas—is an issue that the CLS will consider.
It has been put to the committee that a move to a community legal service would improve the delivery of advice and representation. What is your view on that?
Provided that it was funded properly, such a service would provide more advice and more information to more people, where they need it. That must be a good thing.
A worry seems to be that such a service would lead merely to a redistribution of financial resources across the different types of legal advice and representation. Your previous answer may almost have answered this question: is that worry valid?
I do not think that what you suggest might happen will happen. However, that will be for the Executive and ministers to take a view on. I would be surprised if some additional funding is not necessary to set up such a service and make it operate. In England, as the community legal service was being developed, a significant amount of money was put into it to make it work; that investment seems to be bearing fruit. Our service will be different from the one that has been developed in England.
You seem to be saying that it is unlikely that ways can be found in which the community legal service can provide advice and representation more cost-effectively than under the present system. Can you confirm that that is the case?
The system may well be cost-effective, but there will be a cost if more money has to be put into a range of not-for-profit organisations and the advice sector. Cost will also be involved in ensuring that those organisations have access to the necessary expertise and can build up their infrastructure. Those are the kind of issues that the group will have to look at when it gets to the tough bits of the CLS discussions.
Will the straight-line budget continue to be valid?
That is a provision that we will be interested to discuss with the Executive.
As the committee does not have any further questions, is there anything that the witnesses would like to say to us as a result of this morning's discussion?
We will be happy to follow through on the points that were made this morning by providing the information as agreed. If the committee has any other questions, we would be delighted to provide members with further information.
When the witnesses last gave evidence, it was suggested that copies of the papers that solicitors have to complete would be sent to us. I am not sure whether other committee members have received a copy of those papers, but I have not. We have heard complaints from various witnesses about the detail that they have to provide in the papers, so a copy of them would give us an idea of the problem.
We will deal with that request.
I thank the witnesses from SLAB for their evidence this morning.
Thank you.
Given that the minister cannot be here until 11 o'clock, and as the rest of the morning is packed, I propose to move quickly into private session for item 5.
Meeting continued in private until 10:54 and then adjourned.
On resuming—
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