Justice 1 Committee, 13 Mar 2001

Meeting date: Tuesday, March 13, 2001

Official Report 286KB pdf

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Legal Aid Inquiry

We now move to the fourth item on the agenda. For the next evidence session in the legal aid inquiry, I welcome witnesses from the Faculty of Advocates. Colin Campbell QC is vice dean of the faculty and he is accompanied by Peter Gray and Eugene Creally.

I want to start by considering your written evidence to the committee. Paragraph 6 of your submission mentions that access to justice for some who have good claims is inhibited by the means-testing criteria. Can you expand on those concerns?

I would happy to do that. However, perhaps I can just say that the faculty has been very glad to be asked to assist the committee and hopes to be able to do so in future on this and other matters.

In relation to your question, the faculty has little direct experience of the operation of the financial criteria in particular cases. However, it is aware of—and to an extent shares—a concern that the eligibility criteria are currently inhibiting access to justice because they are set too low. In the absence of any significant contribution, one almost has to be on income support or benefits of some nature before a claim is allowed. That might be entirely unnecessary, because aside from matrimonial legal aid, legal aid is largely self-financing for the reasons that we set out in the paper in what we hope is a reasonably clear way.

Experience shows, particularly with personal injury cases, that the vast majority of cases are successful; either there is a settlement or the claim succeeds, in which case there is a recovery of expenses from the other side. The paper sets out many other benefits to the public purse. In such circumstances, there might be a case for relaxing the financial criteria that would otherwise prevent an individual from prosecuting a good claim.

We are aware that there are other potential methods of funding civil litigation, particularly those used in England, where there has been a move towards replacing large swathes of the civil legal aid system with other methods. Those other methods have a part to play, but the faculty is strongly supportive of—and would urge upon the committee—the need to retain, in the public interest, a strong, healthy and vigorous legal aid system.

When you talk about the limits being set too low, how far do you see them needing to be raised from current levels? How far out of line do you think they are?

I do not mean to duck the question, but I do not think that I can usefully elaborate on that point of detail as I do not have sufficient access to particular case figures. I would rather raise this matter as a general concern. I suspect that others would be better placed to comment on what the specific changes ought to be.

Correct me if I am wrong, but you seem to be suggesting that the extent to which limits would be raised would not matter, as the system is to be self-financing. That sounds almost too good to be true.

Please do not misunderstand me; there will always be cases that will be lost. The point that I am making would not apply to matrimonial legal aid, but would apply to personal injury cases and to civil litigation, which is a very important part of the overall scheme.

You mentioned certain measures that are being introduced in England. You did not rule them out, but said that you thought that they should not necessarily be applied in the areas where they were introduced. Could you expand on that, to say what those measures are, and where they might be relevant north of the border?

I am thinking about conditional fee arrangements and legal insurance schemes and the like, all of which have a part to play. The Faculty of Advocates is concerned that there are various disadvantages to those schemes, which persuade us, at least, that it would be wrong to see them as a substitute for a legal aid system. An example would be a legal insurance scheme, where there remains the question of the premium. Legal insurance schemes are unlikely to cover complicated, difficult cases where the prospects of success are, perhaps, less certain, and they are still largely untried and untested.

The Faculty of Advocates' principal concern about conditional fee arrangements, commonly called no-win-no-fee arrangements, is that inevitably the case lawyer has to have a personal financial interest in the outcome of the litigation. That can be justified in certain circumstances where, otherwise, access to justice would be prevented. As a generality, however, it is an undesirable element in any case.

From your experience, is it the case that no-win-no-fee cases are taken on only when solicitors or others recognise the certainty of the case that they are projecting?

That is a fair observation. Our concern is for cases where, for example, someone has a difficult medical negligence case to pursue as their child has been born in circumstances that at least give rise to concern about the quality of care. Quite rightly, those are traditionally difficult cases to pursue and to win. In the absence of any certainty of success, it is unlikely—although not impossible—for that person to find a solicitor ready and willing to take the risk of the substantial financial outlay for running a case of that nature. It is not obvious to the Faculty of Advocates why the lawyer should gain a double fee—if I can put it that way—from winning, whereas the lawyer who loses gets nothing. Usually, the success or failure of a case does not depend on the lawyer's competency or efficiency. A very well-organised case can be lost for many reasons.

Paragraph 8 of your evidence invites us to reject as representing access to justice the situation whereby a successful defender against a legally aided action is unlikely to be awarded costs. Will you expand on that?

Views may differ about that situation, which is not black and white. There is a concern that defenders are often unfairly treated. For example, suppose that a litigation was raised against one of us—private individuals with the means to finance an action or at least sufficient funds not to allow us to recover legal aid. We face a legally aided pursuer, who, because of that benefit, faces no financial risk in the action and can afford to pursue the case. In such circumstances, insurers or defenders will often settle a claim, not because they recognise that the claim is good or justified, but because they want to avoid the risk of legal and other expenses.

Do not get me wrong—I am not suggesting that although the financial eligibility criteria should be expanded, legal aid claims should be strangled by reference to a merits test. The legal profession must be given some credit. When acting for legally aided clients, we keep a close eye throughout on whether it remains reasonable for a case to be prosecuted. If it does not, we alert the Scottish Legal Aid Board.

In the submission, we recognise that it is not easy to address the issue. There is no easy answer. However, we suggest one or two simple and practical solutions that might be introduced and which would achieve some improvement.

You commented on access to justice, and I accept what you just said. Given that, would it be fair for the layman to suggest that civil law is open to the very poor and the very rich and that those in between are virtually excluded?

There is concern that the present costs and uncertainties of litigation make it difficult for the people whom you mentioned to contemplate it. Often, people are forced into litigation. Those who are defending an action may have no choice. However, one must balance against that the public interest in vindicating good claims and the need not to prejudice the public interest by the factors that we discussed.

If we follow your line and try to compensate by allowing a successful defender to draw against legal aid funds, for example, the funds will be squeezed. What priority would you give to such a claim?

My personal view is that it should not have the highest priority. We try to recognise that in our submission. We recognise the fact that there may be difficulties. That is why we discuss other possibilities for addressing the issue.

You raise the possibility of successful defenders recovering money from the fund, but you also suggest that the fund is self-financing at the moment and that we could open up the criteria. You also say that cases settle for the somewhat cynical and pragmatic reason of expense. I find it difficult to square all that. If you allowed defenders to have a claim on the fund, the pragmatic settling would not happen and the system would not be self-financing. In other words, your original argument cannot fit with allowing defenders to get their money back out of the fund. Is it fair to say that?

I do not suggest that this is an easy matter; it is an attempt to flag up for the committee a concern that is shared by many—although not all—that the current system can operate unfairly for defenders.

Did the Faculty of Advocates see any workable case for allowing successful defenders to get their expenses back out of the fund—regardless of their wealth—without destroying the structure of the legal aid budget?

In limited circumstances, it can be done already. The Legal Aid (Scotland) Act 1986 allows it in cases that are just and equitable and in which there would otherwise be substantial hardship. I take on board the point that you are making, however. I would not want to argue that there is only one way to proceed. The Faculty of Advocates is trying to bring the issue to the committee's attention.

With regard to the hardship element, I assume that a successful defender could end up bankrupt because of the court costs. You have answered the question that I was going to ask by saying that the act allows for such people to get their expenses out of the fund. How often is that done?

My impression is that it is not done often.

Is that because there is often no need for it or because people do not know about it?

In the past, the courts have taken a fairly restrictive approach to the matter, no doubt partly because of the considerations that Gordon Jackson mentioned a moment ago.

You raised the issue of the failure to increase the legal aid fees in respect of criminal work. Could you give details of the negative impact that that is having?

The background is that criminal legal aid rates have not changed since 1992. Civil legal aid rates underwent a 3 per cent increase in 1995, but have not been changed since. The impact is manyfold, but I will try to summarise the main features.

A widening gap has developed between the scale rates that are recoverable under the regulations and the level of remuneration that counsel can obtain for privately funded work, particularly in civil matters. The result of that is that, over time, there has been a growing disincentive for experienced, well-qualified counsel to take on criminal work. That has been mitigated, to an extent, by the ability to seek enhanced fees from the Legal Aid Board. The lesson of history, however, is that that has created additional difficulties, aggravation, delay and expense. There have been a variety of problems, not just for counsel, but for the Legal Aid Board.

We are concerned that, unless the matter is addressed now, there will come a time when the public interest in the administration of justice in our criminal courts, particularly in serious criminal cases in which appropriate skilled representation is vital, will be harmed. The Faculty of Advocates is addressing that problem in partnership with the Legal Aid Board and the Scottish Executive. I should be happy to talk about that in a moment if you want.

While I know that this sort of thing is often said to be about lawyers being concerned about their fees, I can only ask you to accept it when I say that the Faculty of Advocates is very concerned that the situation is causing real harm, considering the fact that counsel who have a lifetime's experience of practice in the criminal courts are giving that up to do other things, because of the difficulties that they have in obtaining reasonable remuneration for what is very important work.

What evidence do you have that criminal bar members are moving to other areas?

We are a relatively small body of people—about 400 people practise out of the courts just down the road from here. We all know each other. We live together and talk together. I simply know about what is happening from my own observation and experience.

Has the annual income of experienced members declined over the past decade?

Generally, throughout the Faculty of Advocates?

Yes.

I do not know the figures for the average income of members of the faculty over that period, nor whether average income has declined. The income of the bar as a whole has increased quite considerably over the past 10 years, but so has the size of the bar. I am afraid that I do not have the figures to answer your question.

You seem to be saying that, because you are a close-knit community, you know that people are moving into other areas of work. However, you do not discuss among one another your total remuneration. Does nobody say, "Things are getting hard," or, "We're having a really good year," or anything like that?

From talking to colleagues, I know that people have been suffering real hardship as a result not just of the low rates, but of the difficulties in obtaining payment from the Legal Aid Board that have existed in the past. The matters relating to the board are, I am pleased to say, beginning to be addressed and mitigated.

I do not want to over-egg this particular pudding, but I equally do not want to leave the committee thinking that the issue is not of significance. If people are leaving the bar for the shrieval bench or are not going into criminal legally aided work, that, in time, will cause real harm. In fact, it is causing harm now.

I am sure that I can expect extensive correspondence from my constituents, who will be concerned about the fact that your annual income has not increased.

How many advocates have qualified to the criminal bar recently—particularly over the past 10 years—compared with a decade ago?

I do not have the figures on that, but I am happy to go away and think about it. My impression is that, these days, people come to the bar more and more to do civil work, not to work in the criminal courts. That is not to say that there are not people coming to the bar who are going into the criminal courts—do not get me wrong. I do not have precise numbers to give you, and it may be that there are still the same number of people overall, but I am concerned about our ensuring that there will be an appropriate level of skilled counsel at all levels of seniority in the future, doing what is important work.

Why do you think the fees have remained unchanged? We have just dealt with a couple of statutory instruments, as you heard, which involved annual uprating. Some people might argue that the same case could be made for the annual uprating of your fees. Is there somebody in Government or the civil service who thinks that you are getting paid too much? What is the motivation?

That is a very good question. I am not certain that I know the answer.

To an extent, the situation has worked simply because counsel has the ability, in an appropriate case, to seek what is called an uplift on the fee. As the scale rates have become ever more historic, so, for obvious reasons, the number of attempts to seek uplifts has increased.

To be fair, the Legal Aid Board finds itself in a somewhat difficult position, because it is expected to operate in a slightly artificial world where the scale rate remains the appropriate rate for a case of normal complexity and difficulty, but increasing numbers of requests are received for cases that fall outwith that description. Allied to that, counsel has the right to go to an independent auditor, who can look at the case to assess what a reasonable fee would be. Over the years, that assessment has become more and more divorced—for reasons that I hope are obvious—from the scale rates.

Over successive years, the requests that have been made for increases have fallen on deaf ears. Life has continued in the way that I have described—which, it must be said, is fairly unsatisfactory for counsel and for the Legal Aid Board. We have now reached the stage where something really has to be done.

The faculty commissioned an independent expert to develop a graduated fees scheme for legal aid, which I would be happy to talk about if the committee wishes. The scheme is now before the board and we are having discussions about it. The general idea is that a graduated fees scheme will provide an up-to-date, objectively fair and reasonable solution to the problem in future. Also, since we understand that Government has a legitimate need to have some idea of what the future budget will be, the scheme will enable Government to predict and assess the future budget for counsel's fees with a degree of confidence that it may not have at the moment.

Having said that, let me stress that the absence of a cap on the budget for legal aid in Scotland is an extremely good feature of the system—the reasons for which, I hope, should be obvious. Assuming that our discussions with the board are successful, we hope that the graduated fees scheme for criminal legal aid will be attractive to the Scottish Executive.

I have a quick question. Do you think that QCs are the victims of public perception? When the Government considers QCs, it recognises that if their salary levels were retained at a certain level, the public would not be too upset. The Government might simply ask why their salary levels should increase.

I have no doubt that we would not receive the same sympathy as, for example, the nurses.

Perhaps we can move on to civil matters—

May I add something? Paul Martin asked how many people are leaving the criminal bar, for whatever reason, and what effect that has.

As someone who practises solely in the criminal courts, I would say—and I think that Gordon Jackson could confirm—that a substantial proportion of people from a senior level in the criminal bar have left in the past five years. I do not have the precise figures, but I would put the figure for those who have left the criminal bar at something in the region of 40 per cent of the more experienced junior counsel and senior counsel.

In a small jurisdiction, that has a huge effect on the administration of justice. If, over a five-year period, 40 per cent of people in the medical profession were to leave, one can easily envisage the difficulties that would arise. The consequence of those people leaving is that the administration of justice suffers. Repeatedly, there will be serious cases—such as murders—that will not be able to proceed at the appropriate time because no appropriately qualified counsel are available to conduct the case.

I have been trying to find out from Gordon Jackson how much he earns, but he will not tell me. He just says, "It's no enough."

Put it this way, Maureen, I became an MSP for the money.

As you said, people are leaving the criminal bar and some are moving into civil work. Your submission says:

"There is now a wide divergence between the scale rates and fees considered appropriate for privately funded work."

Can you give us some figures? Can you make comparisons within the same field—perhaps between rates for divorce cases, for matrimonial work and for reparation?

There is no scale rate, as such, for civil work. However, recent auditors' reports suggest that a junior counsel who appears in Glasgow sheriff court on a matrimonial matter might expect to receive a gross fee—the top figure from which a lot of expenses must be deducted before one even gets to the taxable fee—for the day, including all preparation for the case, in the region of £650 to £700. Decisions vary from auditor to auditor; some will be higher, some lower. The scale rate for a junior counsel conducting a criminal trial in Edinburgh is just under £250. For a senior counsel conducting a criminal trial in Edinburgh, the rate is £315.

Is that £700 legal aided?

Yes.

That is the difference between the rates for civil and criminal cases. What if an action is not legal aided? How much could be charged? I am trying to establish the difference between what an advocate would get from a private client and what they would get from someone claiming legal aid.

It is hard to generalise. Much will depend on the client and the complexity of the case. It might be fair to think in terms of a factor of two and a half to three, in relation to the scale rates.

Okay. Would those advocates who take legal aid cases—such as the junior counsel whom you talked about—specialise in legal aid cases in civil matters, or would they typically have a mix of clients?

We have talked at length about criminal legal aid; I emphasise that because the criminal bar depends to a substantial extent on legal aided work. If one specialises in civil work, there is greater scope for privately funded work. Having said that, there are counsel who work at what one might call the matrimonial bar, who rely to a substantial extent on legal-aided work in the civil courts.

In any event, the bar is committed to serving the public through the civil legal aid system. I will conduct legal aid cases, as will most advocates. However, unless there is some recognition of the problem, the number of people who are prepared to undertake such cases will diminish over time. Nonetheless, we are committed to the civil legal aid system as well as to the criminal legal aid system.

Do people specialise in the matrimonial bar all their lives, or does a junior counsel undertake that work before moving on to other, perhaps more remunerative, work?

Most people at the civil bar tend to have a mixed practice. Some specialise in matrimonial work, and may do so all their days, but they will also do other things. There are others who will do matrimonial work for a period in their practice, then through natural evolution, without a particular desire on their part, will move into other areas.

At the level of senior counsel, is there any evidence of a decline in the willingness of experienced advocates to take legal aid clients? Are they moving away from legal aid clients to self-funded cases, or is the mix as it always was?

It is difficult to say. I suspect that it is more difficult now than it was 10 or 15 years ago. When I started at the bar more than 20 years ago, there was, in effect, no difference between the legal aid rates and what one generally would charge for privately funded cases—the latter may have been slightly greater. The thinking in those days was that the legal aid rate would be 90 per cent of what one might call the market rate, to allow for certainty of payment, through not having bad-debt worries or anything of that nature. The bar is not saying that we should go back to a figure of 90 per cent of the market rate, but the gap now is far too wide.

Is there any evidence that recently qualified advocates are unwilling to take legal aid clients, or will they just take what they can get when they are starting out?

I am not aware of any evidence to that effect. It would be quite hard to come across it, in any event.

I would imagine that, if someone was starting out, they would take whatever cases came to them, unless they had a considerable source of private income.

That is likely.

In your evidence, you refer to the fact that there is inadequate financial provision for the instruction of expert witnesses or expert advisers in legal aid cases. How extensive is that problem?

Peter Gray, because of his particular expertise in criminal work, has some experience in that area.

The problem with the instruction of expertise in criminal legal aided cases is, first, that as a matter of practice, the Scottish Legal Aid Board is slow to process applications. If sanction is granted for the instruction of an expert, it is not uncommon for it to be granted at 5 minutes to 5 the night before a High Court trial is due to start, with the result that it affects the administration of justice, and causes distress to complainers and inconvenience to everyone. Once sanction is granted, the Legal Aid Board puts stringent limits on the amount of money that is available to instruct an expert. It is not uncommon to find that even when sanction is granted, it is difficult to find an appropriate expert, because when he or she is told the amount of funding that is available, they simply decline to carry out the work.

The other difficulty that arises is that even if sufficient funding is provided to instruct an expert at the beginning, an expert will often do a preliminary report, carry out a preliminary investigation, and then say, "I need to carry out X or Y in order to complete my report." The solicitor then has to go back to the Scottish Legal Aid Board and make a fresh application for further funding for the expert to complete their report. That causes further delay, and the administration of justice suffers as a result. It is a problem. In theory, legal aid is available, but in practice, funding is often insufficient and delayed.

It sounds like the problem stems from both the authorisation procedure and the limited funding that is available to pay for expert advisers. What action would you want to be taken to address the problem? Have discussions taken place with SLAB to speed up the authorisation procedure?

On the second question, the court has made it clear on a number of occasions that it is, at the very least, unsatisfactory that cases are delayed because SLAB has failed to deal with an application for an expert.

I am not sure that the situation can be improved without further funds. I do not know what the experts' rates are in different sectors, but the amount of money that SLAB considers to be appropriate frequently does not meet the reasonable expenditure that the expert expects.

I would have thought that a reasonable course of action would be for SLAB to try to improve its procedural process—that should not be too costly. How extensive is the problem?

The Law Society would be in a better position to give evidence on how to improve authorisation procedures, because the solicitors are the ones who are involved in the telephone calls and correspondence with SLAB to get sanction in the first place.

With the benefit of the forensic scientific skills that are now available, expert evidence has become increasingly important in criminal trials. Having done exclusively defence work and, before that, having prosecuted for three years in the Crown Office, I would say that about 25 per cent of cases could involve expert evidence. That figure is off the top of my head, although I can say that expert evidence is involved in more than a minimal number of cases but not in every other case.

That suggests that the problem is fairly large and increasing.

Yes.

In page 5 of your submission, you make your views fairly clear on several miscellaneous matters, but it might be helpful to have those views on the public record. You mention the need to consider greater legal representation of families in fatal accident inquiries. Can you elaborate on that?

I should indicate that, contrary to what paragraph 19 of our submission might suggest, legal aid can be awarded for representation of families in fatal accident inquiries. I apologise for that slight inaccuracy.

Having considered the matter further, I understand that it is still difficult, in practice, for families to persuade SLAB to grant representation. I gather that representation is automatic if there is a death in police custody, but in other cases the board requires to be persuaded, or satisfied, that the family's interest will not be adequately protected by the procurator fiscal. It may be thought that the presumption should be the other way round, so that as a generality legal aid is available for families in such difficult situations.

You also mention employment tribunals. You point out that that is an extremely complicated area of the law, which even lawyers find difficult. Could you comment on what you see as the unmet need in that area? I have to say, in passing, that other witnesses have suggested in their evidence that the lack of interest in that area is not because of the system, but because lawyers have never taken an interest in it. Could you comment on that?

Again, since the submission was written in December, there have been some changes. Legal aid is now available for industrial tribunals and employment tribunals, although the comments that I made a moment ago in the context of fatal accident inquiries again apply.

I do not specialise in employment law, but I have acted before industrial tribunals and employment appeal tribunals. That area of the law is supposed to be user friendly; members of the public are encouraged to come along without a lawyer and plead their case.

However, the law is unbelievably complicated and difficult to follow and it is getting worse with every passing year. The practical effect is that, leaving aside any other issues, the tribunal is put in a difficult situation. It is required somehow to balance the interests of the unrepresented individual by, in a sense, representing and pleading the case before itself and then adjudicating the case. The same issues arise in social security tribunals and in relation to criminal injuries compensation. I expect that the committee will consider the position in relation to a much broader area than employment tribunals alone.

Our evidence suggests that a case could be made for legal aid not just to be given to individuals but to be extended to small businesses or even to other representative bodies. Does the faculty have a view on that suggestion?

The faculty's view is summarised in the final paragraph of its written evidence.

Historically, it is interesting to note that the Cameron report, which was published just after the war, appeared to anticipate that small businesses would be eligible for legal aid in appropriate cases.

We believe that a case could be made for extending the availability of legal aid to representative bodies, particularly given the growth of administrative law and the increase in judicial review-type challenges.

Earlier, Mr Gray responded to a question on the delayed clearance by SLAB of applications for expert witnesses. Those delays could lead to the adjournment of court hearings and a build-up of additional costs, which would be added to the judicial procedure.

That is exactly what happens. SLAB regularly causes delay. The defence will turn up for the trial, with the Crown having served an expert report on the defence solicitor. That solicitor will have applied to SLAB for sanction to instruct an expert, but either that sanction is not forthcoming or it is insufficiently funded. Nevertheless, the case is called and it is inevitable that there will be delay and expense. As I said, enormous distress is often caused to complainers and prosecution witnesses who have been waiting to give their evidence.

How often do such situations arise? You say that they are a regular occurrence, but do they account for one in every three cases, one in every six cases or one in every 10 cases?

I think that up to 25 per cent of cases are affected. Inevitably, that figure is off the top of my head, but the number of occurrences is more than minimal.

I understand that SLAB recognises the problem and is discussing the situation with the Crown Office. The faculty would be pleased to participate in those discussions. We have regular meetings with SLAB—in fact, I am to meet SLAB's chief executive this afternoon. This is certainly the sort of issue that we would wish to raise with SLAB.

Finally, I will ask about the continuing discussions on community legal services and how they should be funded. It has been suggested that those services should be funded by diverting money from existing expenditure, on the basis that they represent better value for money, as people do not get into expensive court procedures. What are your views on those services?

The faculty considered community legal services a year or two ago, in the context of an earlier consultation document on access to justice. We realise that the subject has come up again.

Two or three years ago, we had concerns about the apparent intention to create a community legal service of solicitors or paralegals who would be publicly employed, either by SLAB or by another organisation. Members may know far more about the current consultation than I do, but I understand that the desire is to integrate or co-ordinate existing agencies, to advise them and to encourage communication and dialogue among the disparate bodies, such as advice bureaux and law centres. No one would quarrel with that approach, which, if done properly, could only be a good thing.

However, the faculty is concerned about the financial implications of community legal services and about the diversion of money away from other needy areas of the legal services regime. In particular, we are concerned about money being diverted from the higher courts or other areas of independent legal practice. While that approach might cure one ill, it would do so at the expense of another area.

Does that response directly answer your point, convener? I am conscious that I may not have caught the comments that you made at the end of your question.

You may not be able to answer the question, but some people take the view that agencies that are more community based might provide better value for money, in terms of the number of people who are helped or cases that are cleared up. Problems could be sorted before they got to the higher courts, which are seen as being more expensive.

I understand that absolutely. I know that all solicitors and counsel believe that an important part of their function is to resolve disputes by settling them, in order to avoid the expense of court proceedings and the like. A logical extension of that is for people who have housing difficulties or social security problems to have access to appropriately skilled advice in their local area, which would be a good thing.

As there are no further questions, I thank the witnesses from the Faculty of Advocates for attending. We will certainly take up their offer to appear before the committee again during future inquiries.

We will take item 5 in private.

Meeting continued in private until 12:43.