Legal Aid Inquiry
We have with us Professor Alan Paterson, who is a professor of law at the University of Strathclyde law school. Members of the committee have the evidence that he has submitted in relation to our inquiry into legal aid.
Professor Paterson, what are the major problems with the legal aid system in Scotland? That may be an essay in itself, but perhaps you could summarise.
Professor Alan Paterson (University of Strathclyde):
I will start with the strengths and go on to the weaknesses, as the strengths are the converse of the weaknesses. The strengths are the breadth and scope of the coverage. Compared with other jurisdictions in the world, levels of expenditure are high and the key advantage of civil legal aid is the protection for those who lose. That does not exist in most European jurisdictions, which would look at the factors that I have mentioned and ask, "What are you worried about?" We should not lose track of the fact that, to outsiders, we have a good system. I would not say that the system does not need remedying—you will hear in a minute that I think that there are many problems with it—but we should remember that it has many strengths, especially when compared with other jurisdictions.
The weaknesses in the system depend on one's standpoint. The Treasury does not like the fact that our system is open-ended and demand led. The drive comes from people asking for help and from what the suppliers are prepared to supply—there is a link between the two elements, in that if suppliers are not supplying something, there does not tend to be demand for it. However, if suppliers are prepared to set up niche practices, demand will grow. We have evidence of that in Scotland.
The Treasury probably does not like the fact that there is limited scope for strategic planning in relation to legal aid in this jurisdiction. It probably dislikes the fact that, for many years, there was an exponential rise in legal aid expenditure. Indeed, the Treasury probably dislikes the fact that it has no quality controls. As the committee will be aware, in most other areas of public expenditure, quality assurance and value for money are thought to be good things, yet we have very limited quality controls on legal aid in Scotland.
People in the profession probably object to what they see as the bureaucracy involved in civil legal aid. However, compared with England and Wales, "they ain't seen nothing yet". I admit that there is bureaucracy, but it is very limited compared with that in England and Wales, where it has probably gone too far. Solicitors also quite rightly object to the fact that they are the providers of working capital for legal aid—they carry a lot of the costs of legal aid over the period of legal aid cases. In the Netherlands, legal aid lawyers are given staged payments in advance.
There are other ways of running things. The profession feels strongly that the fee levels are low and have been held low. There are responses to that. The Government's response would be to say that although the fee levels are pegged low, the unit cost per case keeps on rising. However, in my opinion, civil legal aid is certainly under-remunerated in Scotland.
From a client's point of view, although the scope of civil legal aid is good, it is still not as good as it should be. It excludes some aspects of fatal accident inquiries and, as members will know, most tribunals, although that is being dealt with in the Convention Rights (Compliance) (Scotland) Bill. There is no provision for legal aid for groups or collective interests and there is no provision for funding public interest litigation. Both those matters have been tackled in England and Wales, but it would be difficult for us to tackle them without amending legislation. There are problems with the urgent case provisions and there is a shortage of specialists in social welfare law, particularly in rural areas.
There is a middle-income trap. The evidence from the research work that I have been doing with Professor Genn in London and from elsewhere begins to suggest the not entirely surprising fact that those on low incomes and the wealthy are able to use legal services rather more than those who are on middle incomes. There is also some evidence that neither the clients nor some of the profession fully understand the statutory clawback in legal aid. Legal aid is of great benefit to someone who loses their case, because at that stage it becomes a grant. However, if a person wins, their misfortune is that legal aid becomes a loan and must be paid back through contributions from the other side or, failing that, from any winnings. That often comes as a shock to members of the public.
You said that we spend more on legal aid than most other jurisdictions, yet you also imply that the people who receive legal aid think that they are not receiving enough. Why are we spending more? Are we funding more cases or cases of a different kind than they do in other jurisdictions? Is our jurisdiction more litigious or simply more expensive?
Our expenditure is higher per capita. This year, the Legal Services Corporation in America has an allocation of $330 million. We are in touching distance of that in a much smaller jurisdiction. Our allocation is considerably higher than in some other jurisdictions.
In Europe, even though the European convention on human rights applies, expenditure per capita on civil legal aid and criminal legal aid is considerably lower than ours is. That is partly because there is a different way of doing things. In the Netherlands, I was involved in compiling a study with which Professor Stephen is familiar, which shows that the Netherlands spends nine times less per capita on criminal legal aid because the money is spent partly on the judiciary and partly on the different system that exists there.
The other reason why we spend more on legal aid is that our scope is wider. We complain—quite rightly—about the current eligibility level, which has dropped. In 1950, 80 per cent of the population was covered and as late as 1979, that figure stood at 70 per cent—it went down and we pulled it up again. Nevertheless, eligibility is higher in this country than in most other jurisdictions, including in Europe, Australia and the Commonwealth.
Are the differences greater in the civil or criminal area, or are they the same in both?
They are the same in both. Until fixed fees were introduced, we had a higher expenditure per capita on criminal legal aid than other jurisdictions. We had the highest level of such expenditure in the world, and probably still have. It is interesting to speculate on why that might be. The simple answer that is sometimes given, that lawyers cost more here, is not true. It is partly because of the complexities of the system. Whenever we change the system and introduce new stages, increases in legal aid follow. If legislation is changed frequently, legal aid increases.
I have a theory—which has not been tested—that eligibility for criminal legal aid depends on the interests-of-justice tests. One aspect of those tests is judging the likelihood of imprisonment. Because we have a predominantly common-law criminal law, it is difficult to rule out imprisonment; whereas, in a codified statutory system, which has statutory penalties attached to specific crimes, it would be more clear in which cases there would be the possibility of imprisonment. However, that theory has not been put to the test.
Over the past few years, Governments have tried to cut back on expenditure on legal aid. You suggest in your submission that the way in which they have tried to do that has exacerbated or caused some of the problems to which you refer. Is that fair?
It is fair to say that successive Governments and Treasuries have worried about the fact that, for a considerable time, legal aid has been the only demand-led source of public expenditure. They have managed to cap many other areas of public expenditure, but that has been the one area that they have not capped.
Despite what I have said, legal aid is still the cinderella of the social services: the one that has the least money put into it. Nevertheless, for a long time the Treasury has been anxious about it. If I were in the Treasury's position, I would be anxious too. Since 1950, there has been an exponential rise in legal aid expenditure, which has not been tied to an exponential rise in productivity or the number of cases in which people have been helped. As Professor Stephen knows, one school of thought south of the border believes that that has been due, in part, to supplier-induced demand—the fact that lawyers helped to make it happen. However, that explanation is far too simple.
In paragraph 13 of your submission, you say:
"The prevailing solution amongst contemporary thinkers to these problems of definition and analysis relating to access to justice, unmet need, the nature of legal problems and rationing legal aid is that identified by the Hughes Royal Commission on Legal Services in Scotland, namely, stipulation. As the Hughes Commission recognised, the fact that tackling these problems requires the making of value or policy judgements, does not mean that the judgements cannot be defended on rational grounds."
Is that to be interpreted as suggesting that the level of expenditure on legal aid must be seen as a matter for political decision?
Yes.
So it should be capped?
If you subscribe to the Treasury school of thought, the answer to that would be yes—that is not necessarily my view.
As I tried to say in my paper, the current thinking is that unmet need and questions of what a legal problem is do not involve definitive facts, but value judgments. No amount of fieldwork that we did would demonstrate the extent of the unmet need for legal service in Scotland—that involves a value judgment; it is not something that can be proved. However, it is possible to make rational statements about the level of unmet need, and needs assessment can be undertaken. Someone can state what the priority needs are, and they can try to defend that. Ultimately, it is a question of what the Government is prepared to fund.
The Government therefore has to have some idea of how much it will spend on legal aid, even if it does not state that £X million or £X billion will be allocated. Is it true to say that there is a global sum, within which the priorities should be considered?
In its budgetary and expenditure plans the Government estimates, on the basis of advice from the Scottish Legal Aid Board, the likely costs of legal aid for the next two years. It uses as much science as it can in that process, but it is partly a guesstimate, because it depends on legislation that is being passed and on demand. The demand has to be guessed.
Over the past two years, legal aid expenditure in Scotland has dropped. That is somewhat unusual compared to the past. The question is whether that will continue. That partly depends on whether lawyers' fees increase, on whether new forms of legislation come in that dramatically increase legal aid expenditure, and on all sorts of other factors. It is probable that legal aid expenditure will start to creep up again.
If I were in the Treasury or the Government—or even as an observer—I would say that too much of the expenditure was demand led and reactive, and that not enough of it is being spent on areas in which rational planners would want to put resources. Suppose someone was to identify—as I did in my work for the Legal Aid Board a few years ago—that there was a shortage of social welfare law provision in many rural areas. There was nothing, under the present set-up, that could be done about that. The legislation does not provide for the board to take such strategic action, and it has no legislative powers to do so. The English Legal Services Commission does have such a power. If areas of shortfall in provision were identified and a strategic view could be taken, it would be seen what could be done to provide a service in the area concerned.
I am coming round to the view that the Treasury will eventually cap legal aid, as it has done in England and Wales. If that ever happens, we have to have a system under which we can plan to spend the money as wisely as possible.
Would you go as far as allocating blocks to various aspects of legal aid?
The English and the Australians have been considering for a long time how needs assessment/prioritisation is carried out. Legal aid has been capped in Australia for several years now; English legal aid is now effectively capped. Once legal aid expenditure starts to be capped, prioritisation and rationalisation have to be carefully considered. It would be preferable to avoid that, but we need more strategic planning.
The idea of capping legal aid interests me. I should say formally that I have a financial interest in the provision of legal aid.
I understand your reluctance on capping. I was at a conference on legal aid 20 years ago, in India of all places. It was pointed out that capping is inevitable because the demand for legal aid is insatiable—that is, it never ever ends—and because resources are never infinite, legal aid always needs to be capped. Is that a fair theory?
I fear that that is correct, because, as I argued, there is no absolute level of unmet need. The level could be almost infinite if we began to service all the possible legal needs of the Scottish population. Therefore, what we have at the moment is rationalisation through the suppliers, through what they are prepared to specialise in and through the public information that we make available.
The research that I am doing with Professor Genn makes it quite clear that there are major problems with public legal education. People simply do not understand what their legal rights are or how the legal system operates and many impressions that they form of the system are highly negative. We need public legal education to tackle that.
I agree with Gordon Jackson.
In a sense, that makes capping even more likely. It might be an unfair thing to say, but the more people realise their rights, the more they will want to exercise them, the more the bill goes up, the more eventually we will be in a vicious circle in which we cannot fund legal aid indefinitely.
Indeed, except that we have, as I have indicated, a form of rationing that is not talked about. It is based on eligibility. It is based on limiting scope not in a logical way, but just because tribunals came along later and it was easier to give a blanket no. Even when the Lord Chancellor's department was in favour of extending legal aid to tribunals, the Department of Trade and Industry was not.
We have rationing, as you have implied already, but it is not done on a strategic, rational basis. Therefore, if we are going to have some kind of rationing, we need a legal services commission that at least tries to look more rationally at how the money should be spent.
Can you suggest a possible scenario for that?
We do not have joined-up legal services because the mechanism is not there. Community legal services are partly about joined-up legal services, which we do not have at the moment. We do not have sufficient links between the advice providers, between the advice providers and the private lawyers and between the private lawyers and the salaried lawyers, who all need to work together.
In the most advanced jurisdictions, it is recognised that the way forward in relation to legal aid is some kind of planned mixed model. That is a strategic overview that looks at the use of lay advisers, the private profession and the salaried lawyers in the public sector and asks how we can best rationalise the use of our resources in relation to legal aid. That means having debates such as whether it is good to have competition between the public and private sectors or when it is helpful to use a salaried model and when it is not. Those issues have been looked at in other jurisdictions but are only gradually being looked at here. That is part of what the Public Defence Solicitors' Office experiment is about.
I do not think that that would distinguish between types of case, but rather between the mechanisms through which a case is fought.
One way to get more value for money is to reduce wastage and duplication and to make sure that the money is being spent as effectively as possible. We want to do local needs assessments to assess where there are gaps. I would rather go down that route, with more quality assurance, before we finally bite the bullet about which areas we are going to pull back from. It is inevitable that we will prioritise some areas more than others. We already de facto do that.
The Hughes royal commission did a good job in many respects, but it said that people should not have legal aid to organise or regulate their affairs. That seems quite rational until we realise that it allows legal aid to people who want to litigate about the contents of their parents' estate, but does not allow legal aid to let the parents draft a simple will, which costs much less. In other words, there is a great need to move to a preventive strategy, which we have not been able to do.
Richard Suskind argues that spending a little money putting a fence at the top of a cliff is a more effective strategy than having lots of ambulances at the bottom. The research that I have been undertaking with Professor Genn shows that there is a cascade effect with legal problems: if they are not treated, they get worse and worse. For example, one starts off with a small financial or debt problem that gets worse and that leads to mortgage arrears and puts strain on the marriage. Then the house is lost and the marriage breaks down. We know of cases involving that sort of cascade effect and early preventive work is the way in which to tackle it.
What is coming across to me—I say this in order to ensure that I have understood you correctly—is that there is an advantage to a capped system. It teaches people to be strategic by forcing them into a much more rational way of spending available money through a legal services commission or whatever.
You could have such a system without capping it—that is called a soft-cap system, in which the board or commission knows what its global expenditure will be two or three years in advance and tries to plan its expenditure on that basis. I am not absolutely convinced that we must have a hard cap, as it is called, or an absolute limit on expenditure, but perhaps we must. Whether we have a hard cap or a soft cap, strategic planning would help us.
I will stay with this subject for a moment. My other difficulty is how precisely a cap can be fixed. I do not know what other countries do—perhaps you could tell us—in relation to demand-led or fixed capping. Let me be slightly flippant. With one week to go in the financial year, 18 murders take place. People must be defended—that is a requirement under the European convention on human rights. How can a cap be fixed if we do not know who is going to kill whom?
I take your point absolutely. The problem is very difficult.
Parts of Australia operated a crude cap, which meant that assisted divorces would cease in June until the next financial year. That is how a crude cap works. However, the Australians got into all kinds of problems with criminal cases. There was a celebrated murder case in which a cap on expenditure was imposed—the defence could have two Queen's counsels, but not three, or whatever. The defence argued in the highest court in Australia—the High Court—that the funds that had been allocated to that murder trial were insufficient. One can get into problems by imposing such a crude cap.
The English system tries to tackle those problems by contracting, with rolling contracts that start at different times. In theory, 10 firms would have contracts to deal with divorce cases in a part of the north of England, but those contracts would not all start on 1 January. There would always be two or three firms of practitioners with the capacity to take on divorce cases.
When you referred to the practice of crude capping in Australia, I thought that there must have been a knock-on effect for marriage guidance and social services, which will have had to pick up the pieces—that goes back to the issue of prevention.
I will change tack slightly. In paragraph 22 of your submission, you raised some general issues about eligibility criteria, with particular reference to the tapering of eligibility. You refer to the fact that the legal aid eligibility review "lacked the courage" to implement an upper limit on eligibility. Could you expand on that comment?
I am sure that it was rather naughty of me to say that.
The "Review of Financial Conditions for Legal Aid: Eligibility for Civil Legal Aid" is an interesting document that considered a number of ways of tackling what I call the middle-income trap. People whose incomes are just outside the legal aid limits seem to be left out in the cold. One of the proposals was a recommendation of the Hughes commission to remove the upper limit for legal aid, which would mean that everybody would be eligible for legal aid. Before you ask how on earth that could be operated, the answer is that there would be a tapering system of contributions in which somebody of a middle income would pay a 100 per cent contribution.
Why should such a system be established? First, the contribution could be spread over a substantial period of time, which not all private lawyers allow. Secondly, it would give a measure of protection as the case proceeded. Thirdly, there would be protection if someone lost, which is, as I said earlier, the real advantage of legal aid if a substantial contribution is required. If someone loses who is legally aided, the court has discretion to vary the person's liability between nil and the size of their original contribution. Even if someone paid a 100 per cent contribution, they would have the possibility of protection if they lost. It would be a kind of insurance policy.
The Administration considered that option and decided that it would incur a lot of additional administrative expenditure, as so many people would take up legal aid, which it would have to pay for. My response is that the cost could be factored into the contributions system. The Government did not consider that proposal as seriously as I would have liked, but that was its argument. I do not have chapter and verse on it—it is not in the consultation paper—but I recall, from asking the Government what the additional costs of such a scheme would be, that the additional costs would be relatively few millions of pounds and not a huge additional financial burden. The impression that was given by the Conservative Government was that it did not want to sign up to universal eligibility.
I do not have the facts on how much the Government said that the scheme would have cost, and it might have been difficult to get an accurate figure for that. Nevertheless, I would have liked it to be considered more carefully, along with the safety net that they were proposing.
The scheme sounds similar to that which is used by the Benefits Agency, in which tapering systems are operated to determine eligibility for some benefits.
You referred to the fact that the Government was concerned about the administrative costs of operating such a system, which, if it had been implemented, would probably have been a few million pounds. Would that money have increased the number of people who would have been eligible, or would it have been required just to implement the system?
I cannot answer that question, as I do not have the information.
Let us move on to something more specific. There may be areas outside the system at the moment. Do you have a view on specific areas that you would like to be brought into its scope? I was interested in what you said about prevention and the narrow way in which we analyse the provision of legal aid. What do you think is missing and how could it be brought into the system?
British Columbia has a form of legal aid delivery that is in many ways traditional, but which has an innovative aspect called public legal education, which is renowned. We should try to work in that area of prevention. The research that I have been involved with indicates that there is a considerable gap in the public knowledge of law. That is one area to be included, and I would like public legal education to be established here. The law centres would say that they carry out much of that education, but there are only 11 or 12 law centres, most of which are in the west of Scotland.
I would also like more legal aid to be allocated to areas of social welfare law, especially in rural areas. There is a distinct shortage of legal aid expenditure in the areas of social welfare, debt advice, employment advice, welfare benefit advice and housing advice. There is also an argument for legal aid to be made available in some instances in which there is a strong public interest in the case, as there is a difficulty with legal aid when a lot of people have the same problem. In America it is called a class action, such as when many people have the same problem with a defective product.
A celebrated case from south of the border was the litigation against Opren, a so-called wonder drug for arthritis, which was alleged not to be a wonder drug. Half the pensioners were eligible for legal aid, but the other half were not. They all started off together, but a judge ruled that those who were not eligible for legal aid could no longer be associated with the action. That caused serious problems until a millionaire stepped in and offered to fund the pensioners who were not eligible for legal aid. The system cannot be run on the basis that a millionaire might come out of the woodwork and fund actions. Something must be done about the situation, as it has been done in England.
I agree with the move to extend legal aid to certain tribunals, as is proposed by the Convention Rights (Compliance) (Scotland) Bill.
You talked earlier about the middle-income trap. In certain civil legal aid cases, the trap is not set at middle income, but just above the poverty line. The fact that repayments can be made over several months is of no consequence to people who cannot afford those repayments. I would appreciate your comments on that.
You also talked about the need for more legal aid in social welfare cases, especially in rural areas, and gave debt advice as an example of the legal aid that is required. Would you favour organisations such as the citizens advice bureaux being funded by legal aid to give advice, or do you feel that such advice will always have to be given by solicitors?
Let us deal with the urgent issue of domestic violence cases first. The Scottish Legal Aid Board and the Scottish Executive recognise that there is a problem, and they are trying to find a way around it. The issue requires attention. Lawyers feel that they have to ask for money up front in some cases, as they are not guaranteed the protection of legal aid, especially if a legal aid form has not been filled out. They are also required to undertake an assessment of the individual's means and of whether they are likely to be eligible for legal aid. That issue must be, and will be, dealt with.
Your second question, on whether legal aid funding should be allocated to non-lawyers, is something of a hot potato. That route has been explored south of the border and is part of community legal services there. The argument is that general or specialist advice agencies can provide some services quite well. Research from tribunals shows that the people who are most effective in representation and who produce the best results are not necessarily the lawyers, but the specialists—sometimes they are lawyers, but sometimes they are immigration tribunal specialists who are non-lawyers. It is not entirely unsurprising that it is the specialist who does best in representation.
The research that I and a large team have undertaken for the English Legal Services Commission compares the work that is done by the not-for-profit sector under contracts to the English Legal Aid Board with the work that is done by solicitors under contract in the area of social welfare law. What we found is not entirely surprising. In some areas, the not-for-profit sector was more effective than solicitors, partly because it was more specialist in certain debt and housing work. Sometimes the two sectors produced differing results.
Similar research has not been conducted north of the border, but we found that, in debt work, lawyers south of the border tended to challenge individual debts through the courts, whereas the advice agencies tended to take a more holistic approach and consider all the debts, proposing a debt rearrangement system rather than challenging individual debts. I am not saying that one approach was better; I am simply saying that one was more holistic and the other focused on individual debt.
Curiously, when it came to welfare benefits the behaviour was completely reversed. The solicitors conducted a generic advice benefit check, whereas the not-for-profit sector tended to carry out much more tribunal representation and challenging of the lack of award. It is interesting to note how they changed their tactics.
I presume that such organisations would need to become more like lawyers, in the sense that they would become accountable for bad advice.
Absolutely. They are subject to the quality kitemark of the English Legal Services Commission. However, as members probably know, the English Legal Aid Board and now the Legal Services Commission have pursued quality assurance and kitemarks—first for solicitors and then for the not-for-profit sector—for 10 years now. I have been quite heavily involved in that research. However, north of the border, research has not developed much, and I think that it needs to. Quality assurance mechanisms have to be applied to both the not-for-profit sector and solicitors.
Might it not have to go further than that? Does the Law Society for Scotland not have some kind of guarantee fund?
It does, but the guarantee fund is where the client's money is held. In most litigation, substantial amounts of client's money will not be held. In a legal aid litigation, payments are supposed to go straight to the board and not be held in the fund.
I understand that the guarantee fund tends to pay out where the till has been dipped into and money has been taken. However, another point to make is that the Law Society for Scotland has a block insurance policy that will cover bad advice. That would not have come into play if the advice were given out by other people.
Yes. The CABx all have insurance policies in relation to advice, as do the law centres. I would expect any agency that took part in community legal services not only to meet quality assurance standards but to be properly insured.
Should small businesses be eligible for legal aid in certain circumstances?
That is a very interesting question. In the past, I would not have been sure, but now I think that there probably is an argument for that. In my paper, I refer to a piece of research south of the border that has been funded by the Nuffield Foundation, of which I am on the advisory committee. The researcher has found some really horrendous stories of the devastation of a small business that can occur when it runs into difficulty and there is a debate over whether the supplier has been at fault or whether something has gone wrong in the way that the small business has operated. That kind of situation can cause the small business to go bankrupt and can threaten the loss of all the personal and private belongings of the small businessperson. The researcher has unearthed some very sad stories. There must be a question mark over whether the English have been right to try and remove from legal aid eligibility individuals who are small businesspersons.
The final area that we want to explore is that of a legal services commission. You mention such a commission several times in your document. How broad would its functions be?
That will partly depend on the view that is eventually taken by the stakeholders, the Scottish Executive and the Scottish Parliament on how broad community legal services should be. However, the functions should certainly cover all public legal funding. The question would then arise, in a joined-up legal service, of how a commission would relate to advice agencies that are funded in other ways or to lawyers doing pro bono work or speculative fee actions. In a joined-up legal service, there would be some link, but I doubt whether everything would come under a legal services commission. A legal services commission should have, as its primary focus, public legal funding.
Do you envisage a commission being given a hard-capped budget?
That would depend on the Treasury.
What would a commission need to fulfil the role that you think it might have?
If we had a legal services commission now, it could start to consider needs assessment, gaps where there is a lack of supply, and possibly the use of contracting. In England and Wales, franchising was originally partly driven by the notion that if there was a deficiency of social welfare provision in certain parts of the country, and if the private sector felt that it could not make a living by doing that kind of work, we should see whether we could get salaried lawyers to do the work and whether we could give them an exclusive contract for the area. That kind of planning could be done by a commission, as could planning for public legal education. A commission could also liaise with Scottish courts. At the moment, there is not enough ability to liaise with the legislature and with Scottish courts about changes. For example, small claims limits are going to change and that will have a knock-on effect on legal aid eligibility.
When Scottish courts introduced full costs recovery—the notion, to which I and many others were fiercely opposed, that litigants should pay for the great bulk of court costs and possibly even the costs of the judges—legal aid had to pay the court fees of those who received it. That did not seem a joined-up way of thinking. We should have tried to avoid a transfer from one pocket of Government to another.
We will not get innovative forms of delivery through the internet if we leave things as they are at the moment. The Scottish Legal Aid Board has limited strategic powers and limited ability to set up innovative forms of delivery. A legal services commission could do that, and could also do preventive work. There are many things that a legal services commission could do were it given the legislative power. However, I am not yet convinced that it would require a hard-capped budget.
Is it implicit in what you are saying that the advice that the minister would give to a commission would be fairly broad?
Yes. If the Government wishes to state its priorities, and if it is necessary to ration, those decisions have to come from the Government rather than from any legal services commission, although there is a school of thought that says that such decisions should be pushed down to the local level. This is not necessarily what will happen in Scotland because the decisions have not yet been made, but in England and Wales part of the theory of community legal services is to have local partnerships and providers—some funded through public legal services, some funded through local authorities and some funded through charities—that will work together with user bodies to consider the geographic area, do a needs assessments to ascertain priority needs, and then decide where they should spend resources. Under such a model, where resources were spent might vary from area to area.
There will always be restraints on budgets and the Government will eventually have to make hard choices. There would therefore be pressure on the minister to make his advice more and more specific, to constrain a commission to get the results that he wanted.
Yes, I can understand that there would be that pressure. I have indicated that we already have a kind of rationing. That might have to become even clearer if we move towards a legal services commission model.
I may sound as if I am reluctant to bite the bullet on rationing, but I think that more overt rationing may be inevitable, in which case we will need to have a body that is able to think hard about how to do that rationing. Those decisions will come either from the Government or from a legal services commission. At the moment, in England and Wales it comes from the Government. The Government has said that its priorities are social welfare law and public interest cases.
Will the Government not still say that sort of thing, even if sets up a legal services commission?
Possibly. I think that they are likely to take the view that there ought to be more clear priorities. Since that is a political choice, the Government may well say what it thinks its priorities are. Obviously, one would prefer more flexibility if that were possible.
As there are no further questions, I thank Professor Paterson for giving evidence, which has been very helpful.
Thank you for giving me the opportunity.