Justice 1 Committee, 18 Mar 2003

Meeting date: Tuesday, March 18, 2003

Official Report 138KB pdf

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Civil Legal Aid

Item 3 is on civil legal aid. I refer members to the relevant statutory instrument—the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003—which appears as J1/03/7/3. There is correspondence regarding the reform of civil legal aid from the Deputy Minister for Justice in paper J1/03/7/4, from the Law Society of Scotland in paper J1/03/7/5 and from the Association of Independent Law Accountants in paper J1/03/7/6. There are also submissions from the Scottish Consumer Council in paper J1/03/7/7 and from Scottish Women's Aid in paper J1/03/7/22. I also refer members to the note by the clerk, J1/03/7/2, inviting the committee to consider the responses and to decide whether any further evidence is required before the committee formally considers the regulations at its meeting on 25 March.

This is an area in which I am seriously inexpert. The Association of Independent Law Accountants seemed to have concerns. There are swings and roundabouts, but I think that undefended cases were excluded from the provisions of the regulations altogether. If I understood the association's submission rightly, under the regulations bigger cases would come out badly whereas smaller cases would come out well. At issue was whether that would discourage the association's members from taking on bigger cases. That seemed to be the argument. Perhaps someone who knows more about it can clarify that.

We need to decide whether we want to take evidence from those who have made written submissions. There is time for us to do that if members still have concerns. Members may feel that they no longer need to take oral evidence because sufficient clarification has been given in the written submissions. I am asking the committee to tell me what it wants to do.

The opposing arguments on the issue seem quite evenly balanced. I come down on the side of the Law Society of Scotland for four reasons. The regulations are supportable because they provide accountability, value for money, quality assurance and simplicity—they are easier to operate than the current system.

I have indicated previously that I have serious reservations about the way in which the changes have been drafted. Principally, I am concerned that they have been drafted by parties that have a vested interest in the process. That is not intended to be a negative point; it simply reflects the reality of the situation. The Law Society must consider the interests of practitioners. The Scottish Legal Aid Board is concerned to manage the budget and to simplify the system for itself. There has been a lack of detailed scrutiny of the regulations.

I note the correspondence that we have received from Scottish Women's Aid, the Scottish Consumer Council and the Association of Independent Law Accountants. We have not really got to the bottom of the matter. Many questions remain unanswered. Scottish Women's Aid is keen for some kind of review system to be established, so that we can monitor how changes affect the system if and when they are implemented. That suggests that there is still considerable doubt about what will happen on the ground with the new regulations. I was interested to note that the Association of Independent Law Accountants is now working with the fifth or sixth draft of the table of fees, which suggests that developments remain rather fluid.

In my view, we need time to consider the issue in detail. We need to consider the implications of the new regulations on the ground. I am conscious of the time limits to which we are subject because of the forthcoming dissolution of Parliament. I would not want the committee to appear to be obstructing some very positive measures. However, the regulations may also contain some very negative measures that we have not had time to consider in detail.

I am reluctant to say that we should readily support the regulations without ensuring that there is a mechanism for reviewing them, as suggested by Scottish Women's Aid. If negative features of the regulations become apparent once they are in force, the Executive should commit itself to taking action to remedy that problem.

Section 4 on page 4 of the letter that I received from the Scottish Executive dated 3 March is headed "Review of the new system". It states:

"The operation of the package will be reviewed by the end of 2005."

I make that point for information purposes. I am not coming down on one side or the other—I am just taking soundings. It sounds as though two members would like to take further evidence.

I agree with much of what Michael Matheson has said. However, the Association of Independent Law Accountants also has a vested interest. There now appears to be a spat between the AILA on one side and the Law Society and SLAB on the other, with Scottish Women's Aid as pigs in the middle. I think that the process has been badly handled from the start. There should have been more input from organisations such as Scottish Women's Aid and Victim Support Scotland to ensure that the needs of people who are affected by legal aid were considered.

We need to clear up this point, to determine whether there is something substantial in it. However, I do not know whether we need another evidence-taking session, as we have quite a lot of correspondence on the issue. If we can question the minister, that may be sufficient. Nonetheless, we ought to ensure that the effects of the changes in legal aid are monitored, not just two years down the line, but right from the start.

I agree with a number of the points that Michael Matheson raised about vested interests. However, it is always the case that the organisations that take part in our proceedings are not necessarily those that are affected as client groups. I am afraid that, rather than entering a process of outreaching, we tend to have the usual groups as witnesses.

I do not think that we will be able to deal with the issue in the time that we have left. The matter will be a legacy issue, although I am not sure about the logistics of that. We should have looked at the ways in which we could have got out there to the people who use the legal aid system, whether through the local authorities or through some other form of engagement. At the moment, as Michael Matheson says, we are consulting the usual suspects. I do not blame them for being involved, because they have put their hands up and said that they want to engage with us.

The question that we face is whether we are reflecting the views of the public who want to use the legal aid system. We are perhaps doing that as MSPs, but are we bringing those views into the committee system? I do not think that we are. I have some ideas of how we could go about doing so, however. We could find out from local authorities which organisations they have in their databases that are involved with legal aid issues on a daily basis and we could engage with those organisations. However, I am not sure that we can deal with the issue in the time that we have left.

I apologise for being late, convener. The point about vested interests is important. We feel that the proposals represent a huge advance on the current system and I am concerned that, if we do not deal with the issue now, not only could a new justice minister seek to revisit the matter and take a different view from the one that we have reached, but a new justice committee might not get around to considering the issue until later in the session, which would mean that we would have another year of a less-than-optimal civil legal aid system.

The proposals represent a huge advance on where we are and a yearly review process is built in. Given the choice between two evils, we should secure at least a year of an 80 per cent or 90 per cent better system. The legacy paper could suggest that the new committee revisit the new regulations. Given that the meeting last week went so well, my inclination would be to resist the possibility of a new justice minister or a new justice committee either kicking out everything that we have achieved so far or delaying its implementation for another full financial year.

Thank you. There are some practicalities to consider. A motion to annul the proposed regulations would have to be lodged before our meeting. That could be done and we could call the minister before the committee to debate the motion and answer questions. The motion could then be either voted on or withdrawn. Alternatively, we could simply note our concerns and leave the matter for the next justice committee and justice minister. Those are the only options that are open to us, because of the timetabling of the regulations. Any member can lodge a motion. The problem for us is that we would have to know whether any member intended to do so, so that we could invite the minister along to question him on the motion.

Can we take up the point that Michael Matheson and others have raised about the review? We are told by the Executive:

"The operation of the package will be reviewed by the end of 2005."

The package will start in October 2003, so there will be two years before the end of the review. I do not know how long a review will take, but perhaps we could ask for it to be undertaken before the end of 2004. That would be a step forward.

That is an excellent suggestion. The Executive suggests a long period. After two years, we should be able to get a measure of how the regulations are working in practice.

I have three things to say. I have already expressed my concerns about the process that has been used to arrive at the new regulations. I am keen to ensure that, if we pass the regulations, we make it clear that the drafting process should be different, that a wider body of counsel should be sought when such major changes are considered and that there should be a mechanism that allows interested parties to comment on the changes within a reasonable time scale to allow their views to be taken into consideration and for any amendments to be made.

We should highlight the problems with the process that has been used. I get the distinct impression that people in the Law Society to whom I have spoken recognise that there have been some failings in that process, but it is worth putting that on the record, possibly with the minister. His comments when he was last before the committee indicated that he was sympathetic to the idea that we should seek better ways of redrafting the regulations.

Secondly, there is a need to bring forward the proposed review. I go along Donald Gorrie's suggestion on when the next review should take place. Thirdly, it would be worth while involving organisations such as Scottish Women's Aid in some type of informal review while the new regulations are coming into force so that those organisations can discuss with SLAB and the Law Society any problems that present themselves at an early stage. I do not know whether such organisations would be interested in doing that, but it would mean that they did not have to wait until the review started before they flagged up any issues that are encountered.

You have raised three issues: the consultation process; the shortening of the review period; and post-legislative scrutiny—I think that that is what you are referring to—which can go on all the time. We have already made the point that, when legislation has passed through the committee, we should be able to consider it later. If there are practical issues—even before the review period—we or our successor committee could engage in such scrutiny. That is a proper point.

That is not really what I was suggesting. My third point was that there should be some type of working party, in which organisations such as Scottish Women's Aid, which clearly has a particular interest in the issue, could be in continuous dialogue with the Law Society and SLAB so that, once the regulations are implemented, any problems can be highlighted. There should be some type of mechanism for Scottish Women's Aid to feed such problems into SLAB. Perhaps we need to put something in the legacy paper to enable the successor committee to consider the issue. However, it is clear from what Scottish Women's Aid says in its paper that it would like some type of on-going monitoring of the regulations once they are implemented.

Is the rest of the committee content that we put something along those lines in our report? The mechanism would be to draft our report but to allow the regulations to be passed. In those circumstances, we would not require the minister to come next week. Do I take it that we are content that the clerks write a draft report to highlight the concerns that members have raised, e-mail it round and then send it as our response to the regulations?

That would be sensible, as it meets Wendy Alexander's point. Moreover, the practitioners expect us to be decisive. The successor committee can revisit the matter in depth.

I am looking for clarification from Michael Matheson. Three issues have emerged in the papers. One is the process, on which we have commented. The second is Scottish Women's Aid's specific concerns, which in large part seem to have been met, but which it is appropriate to review within the context of the guidelines.

However, by far the most persuasive submission, which outlines the issue that we need to express in the legacy paper, is the one from the Scottish Consumer Council. The SCC rightly says that the problem is that the regulations have tidied up the system around the private client model, whereas there is no doubt that the financial aid available in the civil justice system needs to move more towards the needs of those using the system. The SCC points out that the proposals do not make the system better for the large number of people who have difficulty accessing civil justice—all of us have seen that problem in our constituency case work. I am not suggesting that we want to embark on that now. I am saying simply that in the legacy paper—

Perhaps that is in our report on legal aid—

I want the legacy paper to raise the issue. I am all for saying, "Let's review how this has worked vis-à-vis Scottish Women's Aid." However, if we are going to have a working party, the issue is not Scottish Women's Aid and whether the regulations tidy up the system; the issue is the purpose of civil legal aid. I am not trying to be difficult. Let us say that Scottish Women's Aid and others can report regularly. However, if we are saying that there needs to be a wider or longer-term review, as the SCC suggests, that is an issue for the legacy paper.

That will be in the legacy paper. Our report on civil legal aid dealt with access to legal aid, the financial tests and eligibility, which is a bigger issue in many respects. The Scottish Women's Aid paper raises that issue as well as a lot of points about access to documents and forms—those points do not pertain to the regulations, but we have addressed them to some extent in our inquiry. We should raise the other issues of access to justice—not just the problems with swings and roundabouts in consultation, but financial eligibility and probability tests. Those issues have to be examined, because we fear that people are being denied access. We should circulate a draft report, which we can strengthen and beef up between now and the next meeting.

I want to clarify the points that Wendy Alexander raised. The last paragraph on page 1 of the Scottish Women's Aid paper states:

"It is crucial that ongoing monitoring is carried out during this period, with a report to the Justice Committee and a public report every 6 months."

A review after a year would perhaps be adequate. We should ensure that, in the first year, organisations such as Scottish Women's Aid should have an open door to SLAB and the Law Society, so that problems can be flagged up before the formal review process starts.

I sent the clerks an e-mail about Scottish welfare law practitioners, because there might be a feeling that the swings and roundabouts will not work for them, given the kind of cases with which they deal. This is really a matter for our successor committee, but we should let the minister know about other organisations and interested parties that should be part of the consultation and the working party. We are content to pursue the matter in a report.