Justice 1 Committee, 25 Apr 2001

Meeting date: Wednesday, April 25, 2001

Official Report 281KB pdf

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Legal Aid Inquiry

I welcome our witnesses, who are no strangers to us. From the Law Society of Scotland, we have Gerard Brown, the convener, Ian Smart, the vice-convener, and Michael Clancy, the director.

Thank you for your evidence and for your further submission. I want to ask you about the criteria that you laid out in paragraph 22 of your submission on the subject of the minimum basis for a just and effective system, which includes the statement that

"Justice cannot be easily priced".

Do you think that our criminal legal aid system stands up to those five criteria? Have there been any recent changes that might fail to meet the criteria?

The only recent major change concerning criminal legal aid has been the introduction of fixed fees. In response to consultation, our submission is concerned with trying to remove the roundabouts from the swings-and-roundabouts analogy and with the cover for exceptional cases. In those discussions, we anticipated that there might be a minimum of perhaps 500 exceptional cases.

We are happy to note that, after nearly two years of the fixed fees regime, the Convention Rights (Compliance) (Scotland) Bill includes provision for exceptional cases to be dealt with on application to the board. The question is, what would the criteria for those exceptional cases be? We hope to discuss that in more detail with the Scottish Executive and with the Scottish Legal Aid Board through the tripartite group.

We have instructed a respected academic, Professor Brian Main from the University of Edinburgh, to examine the impact of fixed fees. We also want to see what issues arise from the Convention Rights (Compliance) (Scotland) Bill and the effect that it will have in general terms on the summary criminal legal aid system.

As with other elements of criminal legal aid, the matter of solemn procedures also relates to the question of fees. We hope that a submission on the subject will be sent to the tripartite group within the next few weeks.

Leaving aside the matter of fixed fees, would you say that the current system meets the minimum criteria that you lay out in your submission?

Yes. We are content that those who require legal aid are getting access to legal aid in the criminal sphere.

Other members might want to explore that issue further.

Some people have expressed concern that the current level of fees places the viability of certain practices in serious jeopardy. Do you have a view on that?

We think that, economically, firms have to address various issues. However, we take the view that the fact that there has been no effective increase in criminal legal aid fees since 1992 should be addressed urgently. Also, since it has been two years since the introduction of fixed fees, there should be a framework for the review of the level of fixed fees on an annual or biannual basis. That debate should develop quickly, because we have been invited to produce a paper that will be presented to the Scottish Legal Aid Board and the Scottish Executive.

As part of the same argument, it has been suggested that criminal legal work is no longer attractive to entrants to the profession. Have you any evidence that supply is beginning to diminish because the price is falling or not rising?

We three witnesses have nearly 100 years of experience—perhaps more in Mr Clancy's case.

Consecutive sentences.

There is no remission for good behaviour.

The anecdotal evidence is that a change is taking place. Members of the profession who tutor people for diplomas or in universities note that all young entrants are disinclined to become involved in legal aid work. We are conducting some research into that, which we hope to be in a position to consider before the committee's inquiry ends.

In my experience of appearing in courts throughout Scotland and entering various common rooms, I have noted that the average age of practitioners is not as low as it used to be. Partners are appearing regularly in courts, because firms are not employing trainees or young assistants. My firm has lost three young assistants in the past two years to firms that are involved in commercial work such as commercial litigation and intellectual property, because they offer a more attractive career structure and higher income.

You say that a more attractive career structure is available. Are people influenced by considerations other than income?

Yes. The long-term prospects are different. Other firms may have a structure that allows them to expand their business into aspects that do not involve legal aid.

I am slightly surprised at your comment on young solicitors. Several people have advised me that, after attending university, young solicitors sometimes find it difficult to obtain placements in law firms. How does that equate with your comment about the loss of young solicitors to firms that work on commercial operations?

Some young graduates who have finished their diplomas are having problems obtaining traineeships, because many firms—especially those involved in legal aid work—are unprepared to take on the overhead of employing a trainee.

That is an interesting point.

You said that fixed fees have been the only recent major change in criminal legal aid. Were not public defenders introduced? If so, how have they affected you? Do you not consider their introduction a significant change?

We are represented on the research group that is examining the Public Defence Solicitors' Office. The scheme applies only in Edinburgh. The impact there will be considered in due course, when the study reports. The PDSO's effectiveness, cost, quality of service and how it presents itself will have to be assessed by the research group.

It would be unfair if I pressed you on that.

Thank you. I do not mind being pressed, but not on that subject.

I will move on. I understand that solicitors have said recently that the fixed fees system does not cover their costs sufficiently for progress with cases. That raised questions about the European convention on human rights and representation. Will you comment on that?

There have been several cases on the issues involved. The judicial committee of the Privy Council is to consider one such case from Fort William on Thursday or Friday this week. We hope that the exceptional cases proposal in the Convention Rights (Compliance) (Scotland) Bill will produce agreed criteria that will allow exceptional cases on summary complaint to cover all summary criminal procedure. If someone approaches a solicitor with a difficult, complex and potentially lengthy summary criminal case—which is unusual—that solicitor should be able to apply to the Legal Aid Board on the criteria. The Legal Aid Board should grant that the case is exceptional and will be paid on time and line, rather than with a fixed fee.

Should those exceptional circumstances be recorded precisely in that bill, or are they best dealt with later by statutory instrument?

As you will have seen from some of the briefings that you have received on that bill, we suggest that the bill's record-keeping obligation should be modified. Record-keeping requirements should increase when the case is determined to be an exceptional case. You may recollect that, after the Crime and Punishment (Scotland) Act 1997 was introduced, a criminal legal assistance register was set up and the Scottish Legal Aid Board established a code of practice. They have operated since October 1998 and have worked well.

The Scottish Legal Aid Board has not suggested that major compliance issues exist or that solicitors have failed to comply with the code of practice or the time-recording or record-keeping requirements of the board. Therefore, it would undermine the compliance structure to require solicitors to keep records from day one on a case to the level of detail that would be required for an exceptional case, in anticipation of that case becoming an exceptional case.

When someone enters a solicitor's office with a complaint, it may not be immediately identifiable that the case is exceptional. I do not want to rehearse the arguments for an amendment that I understand has been lodged and that the committee may discuss later this morning. However, it struck us that the bill proposed an almost impossible task for the solicitor to meet, because they would have to identify on day one the fact that the case would later become an exceptional case to which the relevant regulations would apply. That is why we produced an amendment that would remove the retrospective element in the section involved. Does that answer your question?

We will move on, because we are not discussing the bill at this stage.

It is always great when people take an opportunity, as Michael Clancy just did.

I will return to the script and move on to civil legal aid. The Law Society of Scotland's submission refers to

"a crisis in eligibility levels which has a significant bearing on the ability of a large section of the Scottish population to secure access to justice."

You also say that financial eligibility criteria are inadequate. Will you expand on that?

For the record, I should say that Gerry Brown and I are the convener and vice-convener not of the Law Society, but merely of its legal aid committee.

We tried to set out the information in some detail in the figures that we provided, particularly those on the working families tax credit. It is possible to take the total income produced by the working families tax credit and, without worrying about how that figure is arrived at, simply consider what it represents in terms of a net weekly income, and then consider whether it is reasonable that the relatively small amount of money involved should make people financially ineligible for legal aid. That will be for the committee to consider.

As members will see from the Scottish Legal Aid Board's annual report—and from the comments made by Mrs Couper in the preliminary memorandum, which was at some pains to say this, in fairness to the board—the board does not have a statutory obligation to advise the Government on eligibility. However, Mrs Couper felt it incumbent on her to comment that there is clearly a significant decline in the number of people applying for legal aid. There is also, clearly, a significant increase in the number of people who, having been offered legal aid, are declining to take it up because they are not prepared to pay the contribution. We suggest that, in many cases, they are not financially able to pay the contribution.

That is a serious problem that solicitors face daily. Going to law is expensive. Despite everyone's efforts to minimise the cost—and the Scottish system is considerably cheaper than the system south of the border—it is nonetheless beyond the resources of a person on average earnings to finance a complex legal case. The legal aid scheme is not providing the means to allow access to the system. We would defend the principle of contributions; but we feel that the contributions are too high. In any event, the eligibility cuts off too early.

Your answer has covered a number of questions that I had intended to ask. When you consider civil legal aid and make an award, how often does that work fairly for the other person involved in the case, who may not have been awarded legal aid? How often does that person just put their hands up and say, "Right, I am giving up"?

That is a real problem. It is partly an eligibility problem: someone of very low means will be eligible for legal aid but someone of modest means either will not be eligible or will be eligible only with a substantial contribution. Anecdotally, the most common situation that solicitors come across is of the feckless father, who is unemployed and who qualifies for legal aid, bringing proceedings to secure contact with a child, and of the mother, who is working part-time and who is on working families tax credit, being faced, under the current legal aid system, with having to find £1,000 or £1,500 to defend those proceedings. Similarly, it is very common in matrimonial violence cases to find that the woman is working hard to provide for the children and is stuck with having to pay the costs of bringing proceedings against a violent partner, whereas the feckless and unemployed violent partner will get free legal aid to defend those proceedings.

We do not seek to justify that. I think that I could go so far as to say that, if the Law Society of Scotland thought that there was one thing that could come out of this committee's inquiry, it would be for you to bring pressure to bear on the Executive on financial eligibility for civil legal aid. That is the biggest problem in the legal aid system in Scotland.

We know that the Executive is always faced with demands on its limited resources, but the cost of the civil legal aid scheme in Scotland is minimal. We pay VAT and court fees back to the Government, so £10 million of the £30 million spent is recovered in expenses or contributions. The amount spent here is a small fraction of the amount spent in England and Wales per head of population. I do not know the exact figure, but it is something like 20 per cent. The difference is that big.

If we accept what you say, can you give us some idea of the percentage uplift that you are looking for, and of the minimum level of contribution? How much do things cost overall?

In our submission, we give an example on advice and assistance. The cut-off for advice and assistance is based on net income. The maximum figure is £163 a week. We suggest that that figure might go up to somewhere in the region of £250 a week. We do not think that that is unreasonable. Obviously, there has to be a cut-off point, but we do not think that someone who is earning £250 a week net is necessarily a rich person. I am afraid that we do not have access to the modelling to allow us to say what the overall cost would be. You would have to ask the Executive or possibly—although it is not obliged to give the information—the Scottish Legal Aid Board may be able to assist you.

You are proposing a 50 per cent increase—in fact, it is just over 50 per cent—on the current figure. That would have a significant impact on the overall budget. No doubt, many more cases would come forward.

Not necessarily. We give the example that the average cost of an advice and assistance account is only £129. If the client's contribution to legal aid is more than that, patently the client will opt to have the matter dealt with privately, if you follow the logic. The difficulty with advice and assistance cases is that, although the average cost per case is only £129, there are exceptional cases. Everyone is anxious to promote mediation in matrimonial matters. Funding is available for that under legal advice and assistance. However, mediation is not cheap. A session may cost £70 or £80. Often, a bill of £1,000 or more can be built up. That is a lot of money to ask someone to find when they may be earning only £165 a week and therefore not be eligible for legal advice and assistance as things stand at the moment. Such larger cases may be a factor if eligibility is extended, but I am certain that an increase of approximately 50 per cent in eligibility would not lead to anything like a 50 per cent increase in expenditure. I am sorry that that was such a complicated explanation, but these things are difficult to explain.

Is there any scope to allow small solely operated businesses access to civil legal aid?

That is a complicated question. The answer depends on the business medium. If we are talking about small business in the sense of a single sole trader, it is easy to calculate the financial side of things. In principle, I can see no reason that aid should not be extended in such cases. However, I will come back to quite a big caveat to that comment. With a limited company—even a small one—it is much more difficult to calculate eligibility. It is also difficult with a partnership. If someone applies for legal aid, all their assets are taken into account. If they were in a partnership, all the assets of all the partners would have to be taken into account too. It gets complicated.

Generally speaking, businesses are expected to insure against risks. Employers liability insurance is compulsory. Any good business practice involves obtaining occupiers liability insurance. Businesses can insure against most legal risks for a relatively modest sum that is tax-deductible. That puts them in a different position from members of the general public.

In his opening remarks, Ian Smart said that SLAB does not have a statutory responsibility to make recommendations on the financial eligibility criteria. Should someone have that statutory obligation? If so, should it be SLAB or another agency?

If you had asked me that question two years ago, I would have said that it should be SLAB. However, now I think that it should be the Parliament. That is one reason that we have a Parliament—to give advice on such matters. That is why you are having an inquiry. If the Government sets up a quango, it will just appoint the people who will make the recommendations that it wants. How will that move things forward? It is your role to make recommendations.

I understand what you say; but if this is to be a continuing process, carried out annually, it might be difficult, from the Parliament's point of view, to get one committee to go through all the processes. That is why I wondered whether there should be another body with a statutory remit to consider this issue.

We did not burden the Justice 1 Committee with the issue of civil and criminal legal aid fees because we decided that the starting point for that would be the tripartite group that includes representatives from the Scottish Legal Aid Board and the Scottish Executive. I agree with Ian Smart that the framework of that group may be a vehicle whereby members of the Justice 1 Committee or another committee can monitor legal aid fees. We would welcome a regular yearly or biannual appraisal in a framework that is acceptable to all. We do not want to have to ask for an increase in legal aid fees each year.

It is already a feature of the landscape that regulations to uprate eligibility come before one of the Parliament's two justice committees more than once a year. Indeed, a couple of eligibility issues have come before the justice committees in the past 18 months. The committee would not, therefore, find it unduly burdensome to deal with the legislative element of legal aid fees.

However, the greater burden would be for the committee to deal with the investigative aspect to ascertain how far the eligibility uprating should go. That need not take place every year, as the process could be spread out over two or perhaps three years. As part of my homework for this morning's session, I found myself reflecting on the fact that the big event in eligibility happened in 1993, when the previous Government changed the eligibility criteria quite substantially. In that year, I recollect clearly being at a meeting of the Scottish Affairs Committee at Westminster, of which Phil Gallie was a member. Eligibility criteria were then a new issue for Parliament and the issue came before that committee without having been considered substantively before. As your legal aid inquiry is only the second occasion on which the issue has been considered from 1993 to 2001 there has been a long lapse indeed and there is clearly room for more regular parliamentary scrutiny of the issue.

We have had regulations before us on previous occasions. The Law Society made submissions about those regulations at the time. However, we need to consider whether the process is adequate. I suggest that, if problems arise before regulations are set, we start then to consider the issue along with the parties that have an interest in the matter.

That would resolve the issue of having to take evidence from organisations to ascertain whether the regulations work every time regulations come before us. If the interested parties can reach agreement, the committee may not need to consider the regulations. We need to build in a strategy that is not overly burdensome and bureaucratic, but which works so that problems are flagged up at an early stage.

The central problem with eligibility is that, in 1992-93, the Government made a conscious decision to cut back on eligibility, so that index linking was with prices rather than wages. The problem has built up over 10 years. It is similar to the situation that led to the shambles of the 75p pension increase. It is not for us to comment on the political sphere, but what has happened since that time is—to put it bluntly—more cock-up than conspiracy. The gap between price and wage inflation has led to a steady decline in eligibility. The problem has been compounded by the working families tax credit, the Government's conscious decision about the structure of the tax burden and what that has meant to the interaction with the legal aid scheme.

I am sure that members understand the point that it is absurd that the working families tax credit is a passported benefit for free legal advice purposes but counts as income for legal aid purposes. I do not believe that anyone intended that the cost of legal aid should go up for those on working families tax credit who have a second child. The additional working families tax credit that such families receive is more than the additional legal aid allowance that they are given. As I said, one does not have to be either a supporter or an opponent of the Government to think that that is a cock-up rather than a conspiracy.

You mentioned the importance of the working families tax credit and, I think, also the disability living allowance. Are there other benefits that create the same problems?

The working families tax credit is the primary problem area. The DLA produces exactly the opposite problem in that it is discounted for full legal aid but counts as income for legal advice and assistance. Although I hesitate to say that they do well out of the system, people who have had catastrophic accidents often receive a significant layer of benefits. They receive incapacity benefit, industrial injuries disablement benefit and disability living allowance at higher rates for both the mobility and the care component. Those people are in the absurd situation of not being eligible for the legal advice and assistance that would allow them to pursue compensation because their benefits stack up to the point that they are taken out of the scheme. However, they would be entitled to full legal aid because a number of the benefits that receive, such as the DLA in particular, are discounted for legal aid purposes.

We do not believe that all benefits should be passported. Income support and the working families tax credit are means-tested benefits, whereas other benefits including incapacity benefit, DLA and industrial injuries disablement benefit are contribution-based benefits. In certain circumstances, people are entitled to those benefits even if they have £1 million capital in the bank.

I declare an interest. My husband is a solicitor who does legal aid work, both criminal and civil.

What other barriers are there to access to legal aid? We heard evidence from Scottish Women's Aid and from the Glasgow Bar Association that those seeking legal aid for interdicts under the Matrimonial Homes Act 1983 were turned down by the Scottish Legal Aid Board. SLAB said that the matter was one for the police and that the applicant should not be given legal aid to go before a civil court. Have your members complained about that?

Yes. The Scottish Legal Aid Board has shown considerable inconsistency in its decision making. Members have access to the board's annual report. Rather than hold up today's proceedings while I check the figure, I suggest that members find in the report a number of cases where the board comes to a different decision on review from that which was made in the first instance. SLAB asks whether a matter has been reported to the police and, if the answer is yes, it says that there is no need for an interim interdict but, if the answer is no, it asks why legal aid should be granted to bring civil proceedings. People get into a completely circular argument with SLAB and that is one of the things that they get most annoyed about, particularly given the bureaucracy that surrounds regulation 18 of the Civil Legal Aid (Scotland) Act Regulations 1996. That emergency provision means that, in certain circumstances, where the board has decided that someone will not get full legal aid, lawyers are not paid for the work that they have done on a bona fide basis for a party who is otherwise financially eligible for legal aid from the earlier stages of their proceedings.

Is there any way of resolving that? It seems to be a problem that really irritates.

To be fair to SLAB, it realises that there are problems with its decision-making processes. It has promised us that every decision—I think by the end of this year—will be considered by a solicitor, rather than just by an unqualified member of staff on the board. We hope that the decision making will be better as a result. We still have our differences with the Legal Aid Board, but it would be only right for us to acknowledge that, in general, its decision making is getting better.

The board will also conduct research on regulation 18 of the 1996 regulations, and I understand that focus groups will soon be working on the issue. That work will also deal with aspects of contributions and eligibility. A lot of work is going on in that area.

Regulations develop over the years. If we had started with a clean sheet, we would perhaps not have produced some of the regulations that are now in place, particularly in view of the mass introduction of information technology, which we welcome. SLAB has invited us to work with it in making progress with IT throughout the legal profession. The board has recently received funding for that, and is actively involving us in that.

There are two elements to the use of IT. One is to lessen the complexity of some of the form filling that has to be done. Some members will be aware that the volume of forms that need to be filled in for civil legal aid is enormous. The complexity must be lessened because of IT considerations.

Secondly, perhaps we should consider the regulations afresh and spring-clean them to make them more user friendly for everyone, including the committee. We want to push forward with that, although it would have major resource implications for us, for the Legal Aid Board and, possibly, for the Executive. All the regulations would need to be examined, and I am sure that we would all welcome any assistance that might be provided in doing that.

SLAB promised us a while ago that we would be able to look at legal aid forms. Not all of us have seen them, so it would be a good idea to ensure that we did that.

I refer in particular to the financial forms that have to be filled in for civil legal aid. I am unable to find the reference now, but I can say that there are 146 questions on the standard financial questionnaire. That is not all; two other forms need to be filled in.

That leads me to my next question, which is on the decline in the number of applications for civil legal aid. You have mentioned the problem of ineligibility. If people are not financially eligible, they will not apply. Are there other barriers, such as the complexity of filling in the forms? People may take one look at their form and say, "Oh, stuff this."

We hope that that is not the case. That is a very subjective question. It depends to an extent on the solicitor's availability to assist with filling in forms or to press the client to pursue the matter. Sometimes a client who is given the form may not have come back to the solicitor 10 days later. If the solicitor is busy, the case just goes by the board. If the solicitor is not busy, they will remember and will drop the client a line saying, "Look, if you're having a problem with the form, bring it in, and we'll do what we can to assist." Perhaps that is not how the system should operate.

What Gerry Brown said about IT is important in this context. Solicitors are frustrated all the time by the part G, which is how the financial questionnaire form is known. Those forms come back to the solicitor time and again—the clients fill in the part G themselves. The whole legal aid application is often bounced because one of the 146 questions has not been answered. There are some absurd situations: for example, somebody who has been on income support for two or three years, which is disclosed in the form, may not have ticked a box to say that they are not a company director. The Legal Aid Board will send the whole thing back. What is the likelihood of somebody in those circumstances being a company director?

The IT changes will mean that, if a form is not filled in properly, it simply will not go through, and we will not have the frustration of it being sent back time and again.

With IT and ready access, the problem could be addressed almost immediately through the person dealing with the application sending an e-mail to the solicitor's office and asking why a certain box was not ticked. An immediate response could be given, rather than having the delays that currently take place. We think that such procedures are a realistic prospect in the shorter term.

In other evidence, it has been put to us that the legal profession is not equipped to deal with most aspects of welfare law, as its members have no experience in it. Do you accept that view?

We do not accept such a bald statement as an accurate reflection. There are great wells of experience in many areas in the social welfare arena. That includes housing cases, debt cases and so on. When one considers the basic statistics that Citizens Advice Scotland has released on such matters, it becomes clear that the idea that solicitors do not do such work has come about because someone else is doing it, and because the marketplace is already being very well supplied by citizens advice bureaux.

If, say, 90 per cent of inquires about some aspect of benefit law are dealt with by citizens advice bureaux, and 10 per cent by solicitors' offices, it is quite obvious that solicitors will not get the opportunity to develop expertise in that area. Any analysis of the incentives and disincentives to operate in the system is complex, but I could not claim that solicitors have a vast expertise in every range of law. However, in the range of complaints that we receive about inadequate professional services, aspects of social welfare law do not feature terribly highly.

Therefore, one could deduce that there is a high level of satisfaction among clients who receive advice from solicitors on such matters. The fact that other bodies are providing the advice means that we can only speculate that clients are being satisfied there also.

Would you be happy for welfare law to be taken over more by advice agencies, and perhaps to have legal aid follow it? Citizens advice bureaux could be used for tribunals and so on.

We have to consider what kind of system we want and where the strategy for providing advice and for deciding who should provide the advice is to be formulated. The Law Society would like to reflect on that question a wee bit more, because it is a complex issue. I would not want to peril and prejudice the views of the committee on the matter. If you want, we will come back to you in writing on that issue.

I welcome the opportunity to write to the committee about that. Social welfare law is a broad term, which includes such things as housing and benefits issues. If a solicitor is instructed in relation to a social welfare issue, he must identify that there is a legal issue. If the person is eligible for advice and assistance, he places that application with the board, which is then obliged to identify that it is a legal issue that requires advice and assistance.

That is very important, because it is not always clear from some of the statistics we see that issues that are identified as legal issues actually are legal issues. There may be some other problem that is not necessarily a social welfare issue. The indicator for that is that it is an experienced professional who has undergone a period of qualification or training who identifies the issue. It is then submitted to the board, which also confirms that that is the position. I have yet to be totally convinced by all the statistics we see from some other agencies that all those issues are specifically legal issues.

I am in the fortunate position of having the local citizens advice bureau literally next door to my day-to-day practice. I sing the praises of that citizens advice bureau. There is a constant interaction, with people going backwards and forwards between our two offices. The local CAB is good at identifying when someone needs to see a solicitor and referring them to my practice or to one of the other firms in the town.

We also refer business to the CAB. For example, somebody who is facing eviction may come to see us, and we may discover that it is because housing benefit payments have not been processed that they are facing eviction. Sometimes it is the client's fault; they may not have filled in the right forms. In such cases, what is really needed is just a lot of chasing about, getting on to the people who know, sorting things out with the council and fixing the problem. To put it bluntly, someone does not need a solicitor for that. We commonly tell such clients that there are people at the CAB who can assist them. However, we practise in the North Lanarkshire Council area, and members will appreciate that that council is not always a model of administrative efficiency.

Never!

Let us draw a veil over that.

Sometimes it is the case that the client has filled in the right forms, but the council has not processed them or some mistake has been made in its system. If that is the case, it becomes a legal focus, because it is not that the eviction is being properly but wrongly carried out, but that there is a legal issue about stopping it. It is a question of identifying which it is.

It is horses for courses. We do not say that the advice given by Citizens Advice Scotland and the many other voluntary agencies that fall into the same category is not worth while. What we ask is whether it is necessarily legal advice and whether, if it needs funding, that funding should come out of the legal aid budget rather than other available budgets.

It would be interesting to know what proportion of social welfare problems are legal and how solicitors get expertise in dealing with them. I presume that, if you can identify a social welfare problem as a legal problem, the people involved are eligible for legal aid, and that, if it is not a legal problem, they are not eligible. There is still a contention that the legal profession does not know about social welfare law, but you obviously dispute that.

It is absurd to say that the legal profession does not know about social welfare law. Not everybody in the legal profession knows about it, but then not every lawyer knows about all aspects of the law. I am sure that if you asked the three of us about agricultural tenancies, for example, we would have to put our hands up and say, "Sorry. We're not that kind of lawyer."

Lawyers who practise in areas of deprivation, and who commonly deal with matrimonial violence cases, criminal cases and issues to do with damp or inadequate housing, inevitably pick up knowledge and expertise on welfare law, including benefits law, along the way. However, that does not necessarily make them more expert than the welfare rights officer employed by the local authority. We have an excellent welfare rights officer locally, who undoubtedly knows more about those areas of law than I do. I advise people every day to go and see him rather than speak to me.

Maureen Macmillan mentioned the possible involvement of solicitors in tribunal areas. My understanding is that, for the very reasons that have just been given, other people who are already operating in civil areas in which they have specific expertise should be used in tribunals. Is not it the case that, if one starts using solicitors, one should just go straight to court rather than having tribunals?

There are different problems in rural Scotland and in urban Scotland. I operate in a relatively small town in the west of Scotland, but we have a welfare rights officer, a citizens advice bureau and an unemployed workers centre, all of which give excellent advice on tribunals. If I were a local family solicitor in a rural part of Scotland, I might be the only port of call and I might not have all those other agencies. That is why I do not think that a one-size-fits-all solution is the way forward. I would hesitate to say that solicitors should be kept out of the system altogether.

I do not think that anyone is suggesting that solicitors should open doors to every tribunal and hearing that might be dealt with in Scotland. For benefits tribunals, for example, there may be as many as 50,000 or 60,000 summary trials; I do not know the exact statistics. There may be situations where, given certain criteria, legal advice is essential. For example, there may be a complex legal issue, or the individual may have difficulty dealing with complex issues of fact, or language or understanding problems. Legal advice should be provided only in cases where such criteria apply. I do not think that anyone is suggesting that there should be an open door to all those tribunal areas.

There is obviously a problem in view of the European convention on human rights, article 6.1 of which states that people must have a fair hearing and representation. I agree with Ian Smart. In my firm, we have excellent relations with two welfare rights officers, who take up benefits issues on behalf of clients. Whether that access is readily available in rural areas is another matter. As we discussed before we came to this meeting, there are many benefits of living in a rural area other than having access to a welfare rights officer, such as lovely views, scenery and clean air.

All MSPs are constantly contacted about incapacity benefit. What could a solicitor offer in that area? It really comes down to medical interpretation of an individual's specific situation.

The medical evidence is clearly important. One of the pieces of advice that people often do not know is that they are entitled to obtain their own medical evidence and are not necessarily obliged to accept the examining medical officer's assessment. That is a big piece of information in itself. As in any other area, people have to have the articulacy—yes, that is the right word; I thought it might be a McLeishism—to be their own advocate, and that is not always the case.

Phil Gallie will probably know about this better than anyone else, because he has had the advantage of being a Westminster MP as well. Quite often, when one is tied up in an interminable argument with the Benefits Agency, a phone call from the member of Parliament or the member of Parliament's office suddenly gets a result that was not achievable by the person on their own.

Sometimes it is the authority of the position and sometimes it is just the ability to marshal the facts, speak to the person at the right level and make the point succinctly so that it is picked up. We see that in any situation in which evidence is being given—even with us this morning. You struggle to make a point as narrowly and precisely as you can. I do not necessarily mean legal representation, but experienced representation. People who are not panicked by the system can get more quickly to the right result for everybody.

Unfortunately, even if they have their independent medical report, not everyone knows that, instead of just waving it at the tribunal, they should focus on saying, for example, "My doctor says that X was missed by the examining medical officer" or, "They have not picked up on the fact that I have a depressive illness as well as a back problem."

Perhaps we can move on, as our witnesses' time is limited. Are you happy to leave it there, Maureen?

I just had a sweeping up question. Are there any other areas that it would be beneficial to bring into the scope of civil legal aid?

The Legal Aid (Scotland) Act 1986 is extensive. Schedule 2 says that civil legal aid is available for proceedings in the judicial committee of the Privy Council, the House of Lords, the Court of Session, the lands valuation appeal court, the Scottish Land Court and the sheriff court. That is very broad—it is applicable in every court in Scotland. It is available also in relation to the Lands Tribunal and the employment appeal tribunal. There are few excepted proceedings in part II of schedule 2, including defamation actions and—of interest to elected members, although I know that it will never be an issue for you—election petitions under the Representation of the People Act 1983. The excepted proceedings also include simplified divorce applications, small claims processes and petitions for sequestration. There is a narrow range of excepted proceedings and it is difficult to imagine how civil legal aid could be much wider than it is at present.

The witnesses will be aware that Professor Paterson described the neglected topic of quality assurance in the legal aid system. There is no equivalent of a code of practice for legal aid providers to adhere to. Would the witnesses welcome the introduction of a code of practice for providers under the civil legal aid system?

Michael Clancy has already referred to compliance in criminal legal aid. A solicitor spends four years doing an honours degree and two years as a trainee. There is now cross-fertilisation, with a new diploma system that links the university year with presentation and office learning skills.

However, the Law Society also has practice rules and codes of conduct, which apply to how solicitors deal with matters. There is continued professional development and IPS—inadequate professional services—which is when solicitors fail to provide a proper service. In civil work, there is invariably an adversary and if the case goes to court there is an arbiter—a sheriff or a judge. There is also a record of proceedings and appeals procedures. Finally, there is the marketplace. If the individual is not happy about the service they are being provided with, they can consider changing solicitors.

We take the view that there is not a major quality issue. All those safeguards satisfy the public about the service that we provide. However, we are not closing the door to considering the matter further. There is no evidence of a quality problem, but it has appeared in our discussions with the Scottish Legal Aid Board. We are happy to revisit that with the board. As we have said before, what we are against is increasing administrative burdens on solicitors—which are a disincentive to doing the work—and over-regulation.

Would practices withdraw from the legal aid system as a result of the compliance costs that you have described?

There is potential for that to happen. We would not want to discourage people from entering this area of work, but all the safeguards that we have mentioned—there are probably more, but I have forgotten about them—are intended to ensure the quality of the service that is provided.

The final point goes back to what we were saying earlier. Our perceived view—which I accept is anecdotal at this stage—is that younger practitioners are not going into civil legal aid work, which means that more experienced practitioners are doing the work. I can vouch for the fact that they know what they are doing.

Is it possible to reinvent some form of code of practice, to crystallise it in some way?

One solution might be some sort of random peer review in which, for example, my files are sent randomly to Ian Smart to read, and to ask whether I am doing a decent job. It would have to be another jurisdiction—someone who is not connected in any way. We are not closing that door and we are happy to consider the matter.

What role should the Law Society and the Scottish Legal Aid Board play in ensuring a level of quality of service?

The Law Society regards itself as a body that should safeguard the service that is being provided to the public. It does that across the board. I would argue that its complaints procedure is one of the best—certainly in comparison to some other complaints procedures. We will work—as we worked with compliance in criminal legal aid—with SLAB and any others in safeguarding a quality service. If some body or organisation is concerned about that we will try to allay those concerns with a constructive response.

In the absence of a code of practice, is it possible to publish league tables, setting out the actions carried out by each firm, as a way to assess a solicitor's experience? Would you welcome that?

League tables mislead the public. The fact that a firm has a turnover of a certain level does not necessarily mean that it is doing a good or a bad job—it is not an indicator.

When you say league table, what precisely do you mean?

The number of actions—

The number of divorces and consumer debt cases and so on?

Yes.

It is difficult for that information to be gathered in a comprehensive way. We can gather the statistics that are available on legal aid matters but that might be only a proportion of the cases that the firms are undertaking. There might be practical difficulties in gathering that information but, as Gerry Brown says, just because a firm has a high turnover in a certain area does not necessarily dictate that it is the best in that area. High turnover, for example, might relate to the number of offices rather than to the service that is provided, and could be a crude way of analysing the quality of the service.

We are concerned about quality issues. We want to engage with those issues—we can see difficulties but we can also see areas in which one could identify some quality standards in relation to client satisfaction. For example, the Scottish Consumer Council surveyed clients and found that 87 per cent were either satisfied or very satisfied with their solicitor, which suggests that those clients received a quality service. It might be that those surveys should be done more frequently and that solicitors should be encouraged to take information from their clients by asking, "What do you think of the service that you received?" I could envisage a lot of work being done in that area to get feedback from clients. Thereafter, we could assess the size of the problem—if there is a problem.

An idea has just popped into my head. Am I right to say that solicitors can call themselves experts in this or that area simply by giving themselves a label, without any evaluation?

We have a system of accredited experts.

How does that system work?

The society established an accreditation panel, which is a peer review group. If someone has an expertise in a particular area, they can apply for recognition as an accredited expert.

The system operates in discrete areas of law, such as agricultural, employment or mental health law.

Is the system capable of being expanded?

Yes. Proposals are frequently received from some of the committees that I deal with, which ask the accreditation panel to consider specific issues. For example, I think that there is a committee on intellectual property. Let us say that that committee said, "Patent law is an area in which we want accredited expertise." We would put a proposal to the accreditation panel to see whether it would establish such an accredited expertise.

Are the witnesses constrained by time today?

The council of the Law Society is sitting at the moment, so we are missing that meeting, but that is probably an incentive for us to carry on here.

Given our agenda, the committee has some time constraints, but we could ask some of our questions on the community legal service—we could at least ask the salient questions.

I should begin by saying that I am conscious of the statement in your memorandum that you do not think that you can comment on community legal services as you are party to the working group. You may have noticed from the evidence that the committee has received that some of the other parties on that working group have given their views. Are you happy to make your views known today?

We are not hesitant about making our views known, but we are part of the working group on community legal services and the Executive made it quite clear to us that an issue of confidentiality is involved. The past president of the Law Society, Michael Scanlon, is a member of that working group and we would want him to be present.

Do you want to continue with your statement, as it may lead on to some of the issues that I was going to cover?

To be blunt, we are not sure that a problem exists, but if a problem does exist, and if there is to be a solution to that problem, we would like that solution to be a Scottish solution.

Could you take that statement a little further?

We think that the Scottish community should be considered. Any solution—if there is a problem—should be adapted to the specific situations in Scotland that we are dealing with, such as the rural aspect of Scotland, or the central belt, which is an area with a large population. The solution must be a service that deals with legal issues, rather than something that is totally holistic.

The discussions are pretty complex and are still at an early stage. We would like to reserve our position until the person who is dealing with the working group is present and we have the Executive's agreement that we can discuss the work of the working group in more detail.

Given the time constraints, we should perhaps leave matters at that.

Yes. This is a suitable time to end our discussion on this agenda item. We have other questions that we would like to ask the witnesses, but we will ask those questions in writing. Depending on the response, we will decide whether we should pursue the matter in a further oral evidence session.

I thank the witnesses for attending. We will let them get back to their other meeting.