Legal Aid Inquiry
The next item of business is a debate on motion S1M-2868, in the name of Christine Grahame, on behalf of the Justice 1 Committee, on the committee's eighth report 2001, which is entitled "Report on Legal Aid Inquiry". Members who wish to speak in the debate should press their request-to-speak buttons now.
Somehow, I do not think that the debate will be oversubscribed, Presiding Officer.
Before I address the detail of the Justice 1 Committee's report, I should say that I appreciate that a paper on legal aid—whether civil or criminal—is not the sexiest or most riveting topic. Michael Matheson challenged me on that point, but I do not wish to take up his challenge. However, it is a riveting topic for people who, for whatever reason, fall on hard times. I advise members that I will come to the problem of the pensioner, the pavement and her purse later in my speech. I hope that members will stay until the end.
As for hard times, they include marriage breakdown—more than 30 per cent of Scottish marriages fall into that category—domestic violence, dismissal from work, criminal charges or a dispute with a builder over the extension to a house. One finds oneself at the citizens advice bureau or scouring the "Yellow Pages" for a solicitor. It is at that point that legal aid leaps to the top of the agenda. It will reach the top of many people's agendas at some point in their lives, given that litigiousness is on the increase.
Once one has got over the hurdle of the "Yellow Pages" and has found a solicitor who will deliver legal aid, one is confronted with form after form. The purpose of the forms is to determine whether one has a case to argue; whether, in civil cases, one has a reasonable chance of proving that case; whether one is financially entitled to legal aid or advice and assistance; and whether it is in the public interest to use public funds for the action.
In the context of that introduction, I quote from the report's terms of reference, which were to make
"an assessment of the impact of recent changes in the legal aid system … and the likely impact of possible and prospective changes, on the contribution made by that system to securing access to justice."
Our report was set against the background of both those aims.
The motion makes it clear that the committee's work on legal aid does not end with the report. Before the committee can produce a final report, it must consider in much greater detail the issues that have been raised at this stage, including the responses that have already been received and those that are in the pipeline.
The responses that the committee has received but has yet to consider include the report of the working group—made up of Citizens Advice Scotland, the Scottish Consumer Council and others—on the establishment of a community legal service for Scotland. We have also yet to consider the research undertaken by the Scottish Legal Aid Board into the reduction in the number of civil legal aid applications between 1992 and 2001. The committee was concerned about that reduction because we were told that the service is, supposedly, demand led. We have also received responses to our report from the Executive and the Law Society of Scotland. The committee has not had an opportunity collectively to consider any of those responses.
We still await the Executive's response to the report on the establishment of a community legal service—I hope that members are still with me on all these reports—and the Executive's comments on the financial impact of our recommendations, to which paragraph 21 of the executive summary of our report refers. We also await the mapping of available legal services, which SLAB is considering, a report on the monitoring of the recent extension from 10 to 20 months of the repayment period for contributions—that report is due to be published in 2003—and responses from anyone else who wishes to respond. It is abundantly apparent that we are in no position to produce anything like a final report. I promise that, one day, the responses to the responses will cease and that we will produce that final report.
Legal aid and its availability are serious issues for our citizens. Legal aid needs more than first aid; it needs radical surgery. It received first aid with the introduction of an extended repayment period for contributions, to which I referred—contrary to popular myth, legal aid is free only for those who are in receipt of income support. I understand that that simple change has helped those in receipt of legal aid and those collecting contributions. The collection rate has reached 94 per cent, which must be in the interests of the public purse and of the contributor.
Some areas require urgent and near-urgent response. We have written to the minister to enumerate them. Our letter is in the post; the minister will find it in his large postbag. Those areas include examining the eligibility criteria. The lower capital limit for legal aid has not been changed since 1983 and there should not be a sudden cut-off when one has to pay a contribution, as that can be unfair. We suggest a tapering of the contribution until it reaches 100 per cent. There is the anomaly between financial eligibility for legal aid and financial eligibility for advice and assistance, which includes the sometimes mysterious interaction between the legal aid system and the benefits system.
Not many people have sympathy for the legal profession, which is seen to lick from the dripping roast of legal aid. I do not flinch from the truth, which is often different from the perception. The fixed fee criminal legal aid rate gives rise to concern for the supply, quality and distribution of legal aid services, particularly in rural courts. The fee rates for solicitors have remained pretty well frozen since 1992—I wish that my plumber's rates had done the same. The committee stressed that increases should be linked to quality assurance appraisals. Failure to pay the rate for the job might result in the job not being done well or not being done at all.
Another area that should be addressed is the extension of the availability of legal aid. I confirm that the committee's reference in paragraph 25 of the report to "excepted proceedings" does not correspond to the technical definition in the existing legal aid legislation; it amounts to a much broader definition that is not confined simply to defamation and election appeals, for example. That broader definition covers the wide spectrum of fora that the public might require to access in disputes.
I will give an example from a constituency case that involved an education appeal committee. At the appeal, the parents were confronted about placing their daughter, who has cerebral palsy, at the local school—where she had been refused a place—beside her older sister. The parents faced a panel consisting of two councillors, a layperson and the legal representative of the council. They were not entitled to legal aid. However, if that appeal had failed, they would have been eligible for legal aid at the next stage, which is the appeal to the sheriff. That seems unjust and, in the end, more expensive to the public purse.
The minister should also address the problem of people not knowing where to go for what. An example that came up in evidence is advice on the welfare system. We were told that it is difficult to know where one would get a solicitor who specialised in the welfare system. I would like to meet such a solicitor, because I have never understood the welfare system.
What about the pensioner, the pavement and the purse? A pensioner who has come from her local post office and is zipping up her purse trips in the hole that has been left by two utility firms. She breaks her leg and hangs on to her purse. Shortly afterwards, she suffers a stroke. As well as entering the world of hospitals and out-patients, she is entering the world of insurers, possible litigation, legal advice and assistance and legal aid.
The pensioner goes into the office of the nearest local firm, which might or might not deal with reparation and legal aid—she is not to know that. Her claim displays some complexities, as the minister will appreciate. Which utility firm is liable? Were the subcontractors who did the work responsible? Are both utility firms liable? What is the proportion? Someone claims that protective barriers were removed. Were they? Who removed them? Did she suffer the stroke as a consequence of the fall? What about her contributory negligence? She was looking in her purse instead of looking out for the hole in the ground.
I recognise that—
Is Mr Gallie going to tell us the end of the story?
Sorry, I did not hear that.
Christine Grahame is discussing legal aid and the problem of identifying the expertise of solicitors. Would not anyone who is not accustomed to going to law, whether they are applying for legal aid or are funding themselves, face the same problem?
The problem is the same, but I said that the woman in my example had to find a firm that had two specialities—reparation and legal aid. The category has to be narrowed down in that way.
Let me continue. Did the pensioner suffer the stroke as a consequence of her fall? Was there contributory negligence? I am trying to show that what looks like a simple fall is complex. In her purse, she carries her bank-book for her life savings of £9,000. Legal aid is therefore not available to her at the outset. To pursue a difficult and possibly protracted case, she will have to part with her savings. That example shows why the committee's report matters.
I am sorry, but that is the end of my speech. I cannot make it any more interesting.
I move,
That the Parliament notes the 8th Report 2001 of the Justice 1 Committee, Report on Legal Aid Inquiry (SP Paper 437) and further notes that the Committee intends to publish a final report on legal aid in due course.
Let us try Mr Wallace.
I thank the committee and all who contributed to its work for the efforts that were made in producing an important report. Indeed, I thank Christine Grahame for trying to make the report interesting. I think that she succeeded up to a point.
It is fair to say that the committee's report ranges widely. Christine Grahame mentioned several of the report's 30 recommendations, which range from minor technical issues to some major strategic questions about the general provision of legal services in Scotland. The report is a helpful and important contribution to an important subject. If I have one regret about it, it is that the recommendations—some of which are very broad indeed—are not ranked or prioritised. That makes it difficult to target our response to the committee's concerns. As the Parliament will recognise, it is difficult to move forward on all fronts at the same time.
Let me make it clear that the committee's letter sets out the four most important issues that should be considered straight away. We will then address the other issues. We are dealing with the matter that the minister mentioned.
I am grateful for that. I hope that, in this speech, I hit on the correct four.
I have limited time today, but I want to highlight some of the central recommendations. Richard Simpson will no doubt be happy to respond, either today or later, to other issues that members raise in the debate.
Before I talk about the report, it might be helpful to set the debate in a wider context. It is worth recalling that, despite the acknowledged difficulties, Scotland has a generous legal aid system. Indeed, it has one of the most generous systems in Europe. Last year, help was given to nearly 330,000 people through advice and assistance schemes, 14,000 people through civil legal aid and 75,000 through criminal legal aid.
Not only is the scope of our system wide but, at £25 a year for everyone in Scotland, the cost of legal aid is substantial. Our system has evolved considerably over recent years, so I accept that it is complex. I admit that it is not without its problems. The Executive is committed to improving the way in which the legal aid system operates and to improving access to justice for those who need it most. However, although we must seek to do better, we must not forget that our system already does pretty well by those who need it.
The committee's recommendations seem to fall into four main categories: those on which we have already taken action; those on which we may be able to act soon; those on which further work and reflection and, in some cases, primary legislation is required; and those on which I cannot in all honesty agree with the committee. I am pleased to say that there are relatively few recommendations in the final category.
In the first category, I draw attention to the range of issues on which we have already acted. We have already agreed to a new regime for dealing with urgent legal aid, which will mean that people no longer need to pay substantial sums up front to their solicitor. We have already found extra money to allow most people to make contributions over 20 months instead of 10 or 15 months. We have also uprated the income eligibility levels both for advice and for civil legal aid. We have made legal aid available for employment tribunals. We have agreed to make civil legal aid available for cases that are dealt with by social security commissioners and VAT tribunals. Those areas represent a significant step forward.
In the second category, I will mention four points on which we may be able to act soon. First, as Christine Grahame said, there will be a change to the capital eligibility limits. Because the limits for advice and assistance and for civil legal aid have not been changed for many years, their value has been eroded by inflation. I accept that and, today, I intend to put it right. I am pleased to be able to announce that I intend to increase the capital limit for advice and assistance, which was last uprated in 1992, from £1,000 to £1,300. I also intend to increase the lower capital limit for civil legal aid, which, as Christine Grahame pointed out, was last uprated in 1983—the year in which I went to the House of Commons—from £3,000 to £6,000, and to increase the upper limit from £8,500 to £10,000. The old lady with £9,000 would come into that range under the new proposals. I will bring forward regulations as soon as possible and I will be seeking additional resources in the forthcoming spending round to support those changes.
Those increases, which are all greater than inflation, will make a real impact on the number of people who qualify for legal aid and on the number of people who are exempted from contributing towards the cost. They will make a significant contribution to improving access to justice. For the future, I want to avoid allowing the limits to fall so badly behind again, so I have asked my officials to examine streamlined mechanisms to ensure that limits are uprated on a regular basis as a matter of course.
Matrimonial cases make up the greatest part of civil legal aid actions and we want to consider the amount of winnings—if we may call them that—that are exempt from any clawback by the Scottish Legal Aid Board. That amount has remained at £2,500 since 1987. I propose to increase the amount to £4,200—once again, an increase that is greater than inflation. However, I should stress that, although I see such cases as deserving particular support, I do not intend to extend such special treatment to other types of case.
On the arrangements for the Scottish Legal Aid Board to give sanction for expert witnesses in criminal cases—a technical point, but one that the committee rightly highlighted—I intend to introduce an amendment to the regulations to give the board greater flexibility so that cases can proceed more quickly and smoothly.
I will now talk about the issues that require further thought, further work or further primary legislation—or, indeed, all three. I will highlight three issues. I have sympathy with the difficulties that individuals can encounter when they try to raise a group action. I have asked my officials to discuss with the Scottish Legal Aid Board how those difficulties might be addressed and I will come back to the committee with my conclusions in due course.
I am attracted, in principle, to the idea of introducing a new, tapering system of contributions that would allow eligibility to be extended further up the income scale when the cost of legal action is too great for those on middle incomes to undertake. A number of complex issues must be considered and I have instructed my officials to examine them with the board and to report back to me as soon as possible. As the motion indicates, the committee will return to these issues; Richard Simpson and I will certainly return to the committee to discuss our progress and conclusions.
The committee also recommended that the Executive should look at the impact of changing the rules on recovery of expenses for successful opponents in legal aid cases. I want to go further than that. I am persuaded that the current test of severe hardship is too high a hurdle. I therefore intend to find a suitable opportunity to reduce the test to one of hardship. That will ease the burden on a considerable number of successful opponents. However, I warn that the legislative programme is already full and that I do not expect there to be room for primary legislation this side of the next election.
I should also mention fees for civil legal aid work. I am conscious of the case for an increase in fees, even though I do not accept the allegation that there is a shortage of practitioners. We are still awaiting proposals from the Law Society of Scotland. I undertake to consider those proposals carefully when I receive them. However, to pick up on a fair point that Christine Grahame made, let me emphasise that I will be prepared to countenance a substantial increase in fees only if it is accompanied by the introduction of robust quality assurance arrangements and real improvements in the efficiency of the system. Let us be clear: there are not unlimited resources. Increasing fees for solicitors limits our scope for other changes to benefit clients.
Lastly, and briefly, I will talk about issues on which I cannot agree with the committee. I do not think that there is a good case for legal aid to be extended to small claims cases and I see no reason to review the very short list of proceedings that are exempted from civil legal aid.
The minister's position is reasonable if the limit for small claims stays at £750. However, would he take a different view if the limit went up to £1,500, which could mean that there might be reparations actions on small claims? People might then need legal representation and the assistance of legal aid.
The whole point of the small claims system is that it is intended to be relatively straightforward. Once we enter the realms of legal aid, the process becomes complicated, thus undermining the point of having a small claims procedure. If there are problems, we will address them. However, it is important to emphasise that, even under the current system, claimants get initial help through advice and assistance.
I am not persuaded that there are significant anomalies in the merit tests for civil and criminal cases—they are different for good reasons.
In conclusion, I accept that it has not been possible to go into every issue that is raised in such a comprehensive report. No doubt members will raise points that have not been covered and I am sure that Richard Simpson will endeavour to respond to those. I am sure that the committee will return to the issues, as shall we. I hope that I have demonstrated that the Executive is open to change where we consider it to be justified. We have addressed or are addressing many of the committee's recommendations and I hope that the announcements that I have made today will receive a general welcome.
The report is fairly comprehensive and the minister detailed a long list of things that he is taking on as a result of it. It is almost impossible to cover everything in the short time available. I welcome the report, not least because I was the convener of the Justice and Home Affairs Committee when it decided to hold an inquiry into legal aid. It is nice to see the end product of something that was set in motion at that time. The committee undertook the inquiry when my colleague Alasdair Morgan was convener and I know that he is very sorry that he is unable to participate in the debate.
The desire to carry out an in-depth investigation of legal aid in Scotland arose out of evidence that the committee was beginning to get in what appeared to be unrelated investigations and reports. My recollection of the committee's initial interest focuses on the evidence that we took on what became the Protection from Abuse (Scotland) Act 2001. I see that Maureen Macmillan is at the back of the chamber and that my colleague Gil Paterson is also here—I am sure that he will comment on legal aid in connection with domestic violence.
Legal aid is one of the unsung areas of the justice system, which many people appear to love to hate. Legal aid receives media attention only in the context of soaring legal aid costs or the legal aid earnings of solicitors and advocates. I am looking at Gordon Jackson in particular—I have no doubt that he has an interest in that side of things. Consideration of legal aid focuses only on the sea of money being spent on it, rather than on the real issues and problems that arise when people find it impossible to get legal aid, for whatever reason. Invariably, both the legal aid costs, and the legal aid earnings of solicitors and advocates are held to be too high and therefore a total outrage. That makes it too easy to ignore the real problems within a system that puts justice beyond the reach of many people.
The report contains a great many specific recommendations. Michael Matheson will make some points about criminal legal aid, but I will concentrate on the civil side. At present, the stark truth is that if someone is involved in civil proceedings in Scotland today, they had better be very poor or very rich, because those are the only people who are guaranteed access to justice. Even then, if someone is poor, they have to rely on the Scottish Legal Aid Board granting their application in the first place. However, it is when someone on a relatively low or middle income applies for legal aid that the real problem emerges. The number of people in that group has grown steadily over the years, because the increases needed to bring thresholds in line with the various inflation indices have not taken place.
I have a constituent who earns slightly less than £18,000 a year who cannot for all practical purposes be granted legal aid, despite its being warranted on the merits of the case, because her income level has been judged to be too high. On an income of £18,000, she is expected to be able to cover legal fees in the region of £4,000 for just one week. I have another constituent, who has a total aggregate income of £10,977, with a disposable income assessed at £5,998, who has been asked to contribute £1,124 to legal aid.
It does not take somebody of high intellect to realise that, in those circumstances, people's prospects of going to court are completely removed because of their low income. It cannot be right that that happens, as it does far too often.
Clearly, the inquiry was bedevilled by the same paucity of information as the consultation on "Access to Justice" in 1998. I refer particularly to paragraph 21 of the committee's report, which refers to Scottish Legal Aid Board research about eligibility and take-up. It is an advance that the research is now being done, but it is a pity that years of parliamentary questions, not to mention the identification of the problem in submissions in 1998, did not motivate action a bit sooner. The inquiry comments specifically on inconsistencies in the treatment of benefits. Again, that is not a new problem—it was raised in the 1998 consultation. I raised it with the then justice minister because of problems that constituents were experiencing. I hope therefore that the Executive responds to the committee's request for proposals on that matter. I also hope that real consideration will be given to the recommendation that the whole of the legal aid set-up—both civil and criminal—be simplified. That is long overdue. I see that even the Minister for Justice thinks so, at least in so far as his quoted evidence in the report suggests.
However, in one sense, none of this is new. In fact, so not new is it that, when I looked back at the SNP's submission to the 1998 "Access to Justice" consultation paper, I found the same general concern and indeed many of the same specific issues that were addressed by this inquiry. There were a great many submissions to that consultation and I suspect that the majority of them were opposed to the general thrust of the consultation and just as concerned as I was about what was happening to civil legal aid.
What was the outcome of that whole consultation procedure? After the consultation period closed, little more was heard of it. The same could be asked about the consultation prior to that, in 1993, where an entire procedure was undertaken and then nothing happened. I very much hope that the response to this inquiry, when it is finalised, is different. What the minister has said today is very much welcome, as are the increased limits and the upratings that have been announced. That is a significant shift, and it is evidence of the strength of the committee system in the Parliament that we have achieved it.
However, I have one concern about the minister's comments on the availability of solicitors who are prepared to do civil legal aid. I have had a conversation with a prominent small firm in Glasgow that does a great deal of civil legal aid work. I was told in no uncertain terms that, without an increase in the fees in the next 12 months, the firm would simply bail out of civil legal aid altogether. I suspect that that will be mirrored throughout Scotland.
On the previous consultations—here we are again—it is all very well to identify the problems every four or five years; the real achievement will be when something is done about them.
I thank the Deputy First Minister for his constructive response this afternoon, but I ask him and his colleague whether they can confirm that all those proposed changes will be dealt with at the same time. If that can be arranged, it would make for simplicity. I also ask whether annual uprating will take place wherever possible. Again, that would make for simplicity for practitioners and their clients.
The purpose of legal aid is set out in the Scottish Legal Aid Board annual report for 2000-01, which stated:
"Legal aid allows people who could not otherwise afford it to have access to the help of a solicitor for their legal problems".
The Scottish Legal Aid Board states in its mission statement that its aim is to
"deliver appropriate access to quality legal assistance for those eligible, in a cost effective manner."
That is a wholly admirable purpose and is in accordance with the Conservatives' conviction that everyone has the right to justice and should be offered help when legal action is beyond their means. Everyone is equal under the law and justice is the birthright of every Scot. However, there has to be a cut-off point, and an appropriate ceiling on legal aid has to be established. That is one of the most sensitive decisions that any Government can make, and it is important that fairness is achieved and seen to be achieved.
It is important to remember that expenditure on legal aid is demand-led. As a result, in 2000-01, the net cost to the taxpayer was £121.2 million. Although legal aid is still subject to cash limits in England and Wales, it is not in Scotland.
The Justice 1 Committee report made 28 recommendations with the aim of assessing the impact of recent and prospective changes. Following the publication of the report, the Scottish Legal Aid Board carried out research into civil legal aid applications in Scotland between 1992 and 2001, as Christine Grahame mentioned. The board concluded that changes to eligibility in 1993 led to a reduction in applications in the following two years. That drop in civil applications was primarily due to changes in the way in which dispute resolution is conducted, which led to there being less court business. It is appropriate that paragraphs 31 and 47 of the report recommend that those changes in eligibility should be reviewed. It is important that we discover whether the extension of the repayment period has resulted in an increase in the uptake of civil legal aid.
A great deal has been said about uprating the lower capital limits in line with inflation since 1983, and uprating them annually thereafter. The present value has remained unchanged at £3,000 since 1983. If it were at all possible, it would make more sense for the Executive to have annual upratings in line with inflation, rather than coming back to Parliament at erratic intervals.
Paragraph 52 calls for urgent examination by the Executive of perceived inconsistencies in the treatment of benefits, with a view to simplifying the system and harmonising the treatment of benefits across the board. If ministers can simplify the whole process, that would constitute a considerable service and a great help to those concerned. Similarly, the committee noted that there may be a lack of coherence and some anomalies in the approach to merit testing. That, too, needs to be reviewed as part of a wider review of the legal aid regulations.
I draw members' attention to paragraph 103, which suggests that the Executive should assess the impact of applying the same rules to the successful unaided party as to the party in receipt of legal aid and should report its findings to the committee. The Deputy First Minister has announced movement on that point, which is welcome. The matter should be examined in view of the potentially adverse position in which successful unaided parties can find themselves in attempting to recover judicial expenses. It was mentioned that implementing such a change could have considerable consequences for the public purse, so the minister's proposals will be of particular interest when they are presented for debate and resolution.
Paragraph 84 recommends that the Executive should give consideration to the regulations and fee levels relating to the sanction of experts, and that SLAB should give urgent consideration to streamlining and speeding up the process.
Finally, I draw members' attention to paragraph 18, which deals with collective action. The committee stated:
"there may be a case to extend the scope of legal aid to incorporate collective action, organisations and representative bodies."
There is no doubt that that could have cost implications, but we believe that the matter should still be reviewed. The Law Society of Scotland's recommendation that a system of quality assurance in legal aid should be instituted, supported by an inspection regime, should be seriously considered.
Legal aid is a vital cornerstone of our justice system. With more and more people applying for it, it represents a great safeguard for the interests of the less well off in the community. The right to justice is a basic human right, and people should have legal aid available to them, wherever possible, to protect that right. With the complexities of a huge body of legislation, it is right that an appropriate view should be taken, which should take account of the Justice 1 Committee's best efforts to be of assistance.
When we first began considering access to justice in the old Justice and Home Affairs Committee, we looked at gaps in the law and omissions that discriminated against specific groups in society. One result of the committee's commitment to access to justice was that, with the backing of the Executive, we put the Protection from Abuse (Scotland) Act 2001 on the statute book.
As Roseanna Cunningham said, the evidence that we took for the bill made us all aware of the shortcomings of the legal aid system. Indeed, as a reporter on the bill, I remember visiting SLAB and discussing that issue. SLAB had decided to pilot a scheme to extend repayment periods for civil legal aid. In its deliberations, the committee was concerned that the very people who would benefit from the new act could not afford to access it. Pauline McNeill raised that issue when we debated the bill in the chamber.
It is no wonder that we were concerned. In 1983, the lower capital limit for eligibility was set at £3,000 and it has remained the same since. In 1993, the Conservative Government changed the eligibility rules so that the number of people who could access full legal aid was cut considerably. I remember the outcry and consternation that that caused at Women's Aid. We realised that many women seeking interdicts against violence would be disadvantaged. The need for solicitors to take on the financial risk of emergency applications meant that some agents stopped taking cases. We phoned around law firms to see who was still prepared to do so.
Since 1993, the situation has remained the same for that group of women, which will be expanded as the Protection from Abuse (Scotland) Act 2001 comes to be used. That is why one of the Justice 1 Committee's priorities is to encourage the Executive to deal quickly with the question of financial eligibility for civil legal aid.
I realise that the Executive has made significant progress in that area and I particularly welcome SLAB's introduction of an extended instalment scheme for repayment of contributions. That scheme has been of considerable benefit to people who could not afford to pay several hundred pounds up front or repay £50 or £60 a month and who would otherwise abandon their case and put the needs of their children before their own safety. I also understand that payment levels can be renegotiated if there is a change in circumstances. The Executive should ensure that that is generally known. SLAB claims that those deferred payments will encourage people to seek legal aid under the urgency provisions, which has been a problem until now, as such applications previously meant asking the solicitor to bear the risk of default. It seems that SLAB will now bear that risk. I ask SLAB to monitor that to see whether there is an increase in the use of urgency provisions. I was pleased to hear the minister say that he will consider the possibility of tapering contributions—that will make a great difference, too.
However, huge anomalies remain in the way that the benefits system dovetails with civil legal aid. That affects not only people who are seeking interdicts, but those who are pursuing personal injury claims, for example. Benefits such as the working families tax credit, which are accessed because of poverty, prevent a person from receiving full legal aid. I realise that the Executive is examining those issues, but I ask the Deputy First Minister when we might expect to hear concrete proposals.
The committee also raised access issues relating to availability of service and quality. I note that SLAB is preparing a report on the distribution of solicitors who offer legal aid and that the Law Society is actively considering how expertise and experience in certain areas of the law can be quality marked. It is important that shortcomings in the provision of legal advice and information are addressed, from deprived urban estates to remote rural communities.
We received mixed evidence on whether fewer firms were offering civil and criminal legal aid services. There seems to be a sense in the legal profession that, because legal aid fees have been static for so long, young solicitors are not attracted to court work or do not stay in it as the financial rewards are elsewhere. The statistics do not show a significant reduction in numbers, but there may be hidden problems relating to distribution or experience. We would welcome more research.
The committee has asked for an evaluation of fixed fees for criminal cases. We had conflicting evidence on how that impacted on solicitors' earnings and the courts, but my feeling is that agents will naturally seek to maximise their earnings where they can in simple cases, given that the fixed fee can curtail their earnings in more complicated cases. That can cause severe congestion in the sheriff court where cases resurface time and again.
Although all those concerns are important, they involve piecemeal changes or the monitoring of projects. I think that the committee and the Executive are looking for a step change in how legal services are delivered in the future. They should be delivered more strategically, more flexibly and with a higher regard to quality and accessibility.
I think that we all await with great anticipation detailed proposals for the development of a community legal service, to see how far it will address problems that the committee has identified. In the meantime, we are aware that the Executive has the same goals as the committee and await with interest the results of the research and negotiations on legal aid that are in train.
We move to open debate. The debate is currently running about 10 minutes light, so speakers can have up to six or even seven minutes if they so wish. I ask Pauline McNeill to speak.
You gave me a fright there, Presiding Officer, but I am sure that I will think of something to say.
I believe that we have an important piece of work in front of us, which should not be underestimated. The Justice 1 Committee is to be congratulated on persevering with the inquiry. What we have heard from the Minister for Justice today proves that the inquiry was worth while, as he made some positive announcements.
We all agree that access to justice is fundamental in a parliamentary democracy. That means that there must be some state funding for those who are genuinely unable to assist themselves, not only in civil cases but in criminal cases.
Although, as Lord James Douglas-Hamilton said, legal aid can only be demand-led and a strict upper limit cannot be set, criteria and standards must be set so that we have a scientific way of calculating the cost to the public purse. We must have standards and ensure that there is fairness. The system must be easy to access and it must be easy for somebody to establish what their contribution might be. One of the issues that the report has uncovered is that when somebody is embarking on an interdict or using the law to their advantage it is not always easy to establish what it will cost them. Our legal aid system does not currently meet all those criteria. The report hits some of the right notes on that and the minister has made some very positive announcements today.
I will make several specific points. The first is on tribunals. We are familiar with a range of tribunals, which were primarily set up to be informal settings in which to decide on legal matters such as employment issues. The Executive has already taken a welcome step by recognising that there must be some advice by way of assistance for employment tribunals on more complex issues. That needs to be developed. In my former life as a trade union official, I represented individual trade unionists at employment tribunals. I can vouch for the fact that they are no longer informal forums but cover complex aspects of the law. When someone does not have access to a legal representative or a trade union, we must ensure that their best interests are protected.
My second point is on the idea of a public defenders office. I am not proposing to have a debate on that this afternoon; I know that a full paper has been produced that examines whether that would provide value for money for the public purse. My reservation about a public defenders system is that it would not allow people the choice of solicitor. That is why I have reservations about proceeding much further with that, although it is important to examine the issue.
Many members have talked about the importance of civil legal aid. I think that the report's biggest success is in uncovering some of the things that have been going on in relation to that. Sometimes we take the view that criminal law is more important than civil law, but that is not always the case. Civil cases, such as divorce cases and defamation cases, can be just as important as criminal cases and affect people in similar ways. If we are taking the view that there should be a systematic review of criminal legal aid, in which we increase the thresholds in line with inflation, I do not see why civil legal aid should be left out.
I will develop the points that Maureen Macmillan made. We should consider the very successful bill that she initiated on domestic abuse—now the Protection from Abuse (Scotland) Act 2001. Women who are victims of domestic abuse will have to apply for an interdict under civil procedures. We must ensure that they are not disadvantaged because they cannot afford to do so. I cannot see the logic in the way in which different benefits are treated. Constituents have come to me who were unaware, when they applied for a harassment order, that they would have to make a higher contribution of about £500 because their incapacity benefit is treated as income. I do not understand why we cannot make uniform our approach to benefits. That approach has a disadvantageous effect on people who want to use the useful laws that the Parliament has been involved in providing.
We have established this afternoon that it is important that the system should be transparent. Roseanna Cunningham made a point about middle-income earners. People who have a legitimate case of defamation or another important legal case should not be disadvantaged because they are middle-income earners. We must ensure that when people walk through the door of a solicitor's office, it is easy to understand what the legal fees will be and what the process will cost. I know that that is sometimes impossible, but the ordinary citizen would argue that it is not always easy to establish what the process will cost. We must give that matter some attention.
In his evidence to the committee, Professor Paterson talked about the lack of co-ordination between advice that is given by salaried lawyers in community settings and that which is given under the legal aid system by lawyers in private practice. That point should be developed. Because all that advice is provided for out of the public purse, we must ensure that the system is joined up.
The report is good and the Executive's response has been positive. There is further work to do. I welcome the work on which the Justice 1 Committee has embarked.
I thank the Justice 1 Committee for its important work on changes to civil legal aid. It goes without saying that the work is particularly important for women who suffer from domestic violence. At present, it is easier for a perpetrator of an act of domestic abuse to obtain criminal legal aid than it is for a woman who suffers from abuse to secure legal protection. That must be wrong.
I welcome the recommendations to change elibiligity criteria—
Eligibility.
Thanks very much, teacher.
It is late in the day.
I welcome the recommendation to change eligibility criteria by removing inconsistencies in benefit treatment. I am particularly pleased that the minister is considering tapering, which will be beneficial. We must increase the qualifying income levels, which determine whether an applicant can be considered for legal aid and the scale of the contribution. At present, the levels prevent women from gaining the protection they require. We must make changes in that quickly.
I am disappointed that the Executive will not take on board the recommendations on the merit test. Scottish Women's Aid took evidence from lawyers. I have a few illustrations of that evidence, which spell out to me—and should spell out to other members—why it is imperative that we do something about the matter. One lawyer stated:
"the legal aid board, for whatever reason, are often reluctant to grant legal aid to protect a person against domestic abuse where there has been no police involvement."
Will the minister ask why that is the case? The lawyer went on to say that they were
"concerned that where an interim interdict has been granted, but when it is breached, there is a reluctance on behalf of the legal aid board to grant legal aid to enable breach of interdict proceedings to be raised."
The lawyer continued:
"The above are simply attempts by the legal aid board to save money, with disregard for the domestic situations of persons who require legal advice and protection from the law … I still have problems with the legal aid board refusing to grant legal aid. Even though a sheriff has granted the interdict at the initial hearing, the board still feel able to second guess by refusing to grant a full certificate. The reasons given by the board vary from ‘it has not been shown that the police would not be able to deal with the situation' to ‘it has not been shown that the behaviour was going to persist'".
As a layman, I reckon that the reason why someone has taken the trouble to challenge that assertion is that that behaviour was going to persist. The system should be proactive, rather than wait for something to happen that we will all regret. The final quote is that the Legal Aid Board refused legal aid for an interdict because
"it was not demonstrated that the orders sought were reasonable and necessary".
If the recommendations that the Justice 1 Committee has made on legal aid are accepted, it should be easier for women to gain the protection that they need. To even the situation up, further consideration must be given to qualifying incomes and merit tests, so that we protect all the people, not just some of them.
I congratulate the committee on the fact that the minister seems to have acted on some of its recommendations already. All members of the committee must feel pleased about that. However, the committee's final statement is that it considers this to be unfinished work—I agree, given the amount of information that has still to come forward.
As a member of the then Justice and Home Affairs Committee, I welcomed the inquiry into legal aid. It was something that I, and other members, pushed for. We were delighted when Roseanna Cunningham and then Alasdair Morgan proceeded with the inquiry. I am sorry that I was not a member of the committee when the report was written. I sat through all bar one of the nine meetings on the issue, yet I was not able to participate at the report stage because I had been replaced as a member of the committee by Lord James Douglas-Hamilton. During the Standards Committee debate on committee substitutes, reference was made to the fact that members should not disclose what is contained in draft reports. My honourable friend Lord James would not let me see the draft report—he has always met the Standards Committee's expectations of members. However, the Procedures Committee debate indicated that I would have been able to sit in on the report stage had substitutes been allowed. I would have liked to do that.
I have several positive points to make on the report's findings, as well as one or two criticisms. I am convinced, as was the committee, of the need for a strategic review. I compliment the committee on the fact that it did not press ahead with the suggestion that we set up a legal services commission. There is a feeling in the Parliament that we have too many quangos. The Parliament and the Executive have the ability to deal with the issues without establishing another body. The Scottish Legal Aid Board has responsibilities that would have to be passed over if a legal services commission were to be set up. I applaud the committee's recommendations, in paragraphs 119 to 122, on setting actions for the Executive. I recognise that those recommendations are fairly onerous and that it will not be easy for the Executive to respond quickly to every one. However, it seems to have begun to take a stab at it.
When such a report is compiled, there is a time limit for those who want to contribute to the debate, which does not allow full analysis. Nonetheless, I record my satisfaction with paragraph 103 and the committee's suggestion that the awarding of expenses to successful unaided parties in any court case should be considered. The committee found that, if someone who received legal aid lost a case, the expenses that were incurred by the defendant were not met by legal aid. I think that that issue is worth pursuing, and that seems to have been the committee's conclusion.
I would have liked the report to refer to evidence from Ian Smart of the Law Society of Scotland, which relates to comments that were made by Maureen Macmillan and Gil Paterson. Mr Smart said:
"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."—[Official Report, Justice 1 Committee, 25 April 2001; c 2331.]
We, too, considered that issue. Ian Smart commented further that that situation is also common in cases in which working mums are looking after their families while facing domestic abuse problems. I would have liked reference to those situations to be included in the report, as that would have strengthened it.
An area of disappointment for me—I have made this point time and again—is that many small businesses are taken to court for minor cases, but those small businesses are not entitled to any form of legal aid. Those businesses often operate on a shoestring. They almost certainly, in many ways, meet the capital and revenue requirements of legal aid, but they are excluded from receiving it.
Will the member give way?
Yes, but I am on a tight time scale.
Mr Gallie has always believed in giving legal aid to small businesses, but has he worked out how much that would cost? Have we an indication of what it would cost to provide legal aid in the business community in that way? Mr Gallie would be the first to tell us that resources are finite.
I accept that, but my point concerns very small businesses. I commend the Justice 1 Committee for asking the Executive to perform a cost analysis along the lines that Gordon Jackson suggested. I accept his argument about costs, but I am not asking the Executive to implement such a move immediately. I would like a cost analysis to be done, because it would be fair to provide legal aid to small businesses.
I acknowledge the time, Presiding Officer. [Interruption.] The Presiding Officer is indicating that there is no limit on time. I love that.
An interesting issue has come to my attention since the committee completed its deliberations. The matter concerns the Hague convention, which, it seems, depends on systems in one country providing legal aid for citizens in another country. I know of an instance in which an individual had to go to America to fight a case for custody of her son. The child had been partially under the care of the court, but the court had yet to determine parental responsibility for the care of the child. However, the father took the child to the United States of America against the wishes of the court, the social work department and the mother.
Once the father and the child were in the USA, legal charges were incurred, which were dealt with on a pro bono basis. The child was returned to the United Kingdom. Unfortunately, the father appealed, but legal aid could not be provided from this country to address the matter and an application for legal aid was turned down in the USA. That case raises an important issue. I am pleased that the Minister for Justice has agreed to a meeting tomorrow with me and the American solicitor, Stephen Cullen, to address that issue. There might be other answers, but perhaps the Justice 1 Committee could take that issue on board when it considers its unfinished business on legal aid.
At that point, Presiding Officer, I will come to a close. However, I have one last point to make on costing. Fees for solicitors have been frozen since 1992. Never before have I been an advocate for solicitors, but I think that ministers should also consider that issue from the report.
I thank Mr Gallie for his single-handed effort to get us back to the timetable. We are still about five minutes light, so I will be reasonably flexible as we move to the closing speeches. I call Donald Gorrie first, for the Liberal Democrats. You have five or six minutes.
The work for this report was done before I became a member of the Justice 1 Committee, so I can praise the report dispassionately. It raises a lot of important issues, some of which have been covered by the minister, which I welcome.
I want to pursue two main areas, the first of which is eligibility for legal aid. The other is the quality of the product, which relates to matters such as fees and quality assurance.
The committee heard a lot of evidence about widening access to legal aid. Collective action by communities does not seem to be possible at the moment. Communities must nominate one person to pursue the case. Communities should be encouraged to work together and could perhaps get help when they promote causes in which they are interested.
The tribunal plays an important part in our lives, whether it is to do with employment, discrimination, housing or whatever. However, people do not get legal aid when they contest a case in a tribunal. That is a serious lack in the system. I recognise that the budget is limited, but access to justice is a basic point in a civilised society and we must work hard to ensure that people have that access.
The minister, if I understood him correctly, rejected the idea of extending the provision of legal aid to cases in the small claims court. I do not know enough about such matters to know why the idea was rejected; it seems to me that it might be sensible to consider giving people legal aid for small claims cases.
The report contains some interesting examples from the Law Society of Scotland and the Glasgow Bar Association that illustrate how people whom everyone would consider to be pretty poor still have to contribute considerably to their legal aid case. The matter is complicated by the issue of benefits and that needs to be simplified. I welcome what the minister said about getting the capital figures changed, but I think that we also have to consider the income figures to help people who are in poorer circumstances.
Quality assurance is necessary and we must think seriously about how that is to be delivered. Some people—from one of the CABx, I think—raised the issue of how the client can get an idea of whether a lawyer is any good or not. Some information in that regard would be useful, as a bad lawyer can lose a case with no trouble at all. It is important that people have confidence in the lawyer who is working for them.
A related issue is that there is a great deal of evidence that the fees are simply inadequate. Some firms manage to provide a service within the fees, but they do so only by using inexperienced and low-paid staff. They complain that the fees are such that a lot of their support staff and other important people leave the firm—I think that the Glasgow Bar Association in particular said that. In rural areas, someone might have to travel a long way to obtain a precognition. That would cost a lot of money and the fees do not cover that. There is a theoretical risk—I think that it might also be a practical risk—that some people's cases are not as well prepared as they should be because the lawyers could not afford to go and interview some of the more remote witnesses.
Social welfare law is a jungle and most lawyers know nothing about it. We have to encourage lawyers to understand social welfare law and ensure that there is a network of people throughout the country who can deal with it. In rural areas, there will inevitably be fewer specialist lawyers than there will be in the big cities.
When I was at Westminster, the issue of fees was raised with me and I was given all sorts of examples of the ways in which solicitors lose out. For example, the fees do not properly cover situations in which sheriff court cases are continued. I ask the minister to consider improving the fees, allied to quality assurance. Lawyers must be paid properly for doing a good job.
The report makes it clear, as did much of the evidence, that there is a need for a full review of the regulations, which are a jungle. They have obviously grown incrementally. The report also makes it clear that there is a need for further review of the whole civil justice system.
There is enough work to keep the ministers and the committee going for many years to come. The issue is important and the report raises many important issues. I hope that the Executive will respond to those issues as well as it can and keep on putting money into the system to try to improve it further. I congratulate the committee on its report.
As I have never served on the Justice 1 Committee or been involved in the issue before, I can, with some detachment, congratulate the committee on a job well done. The committee seems to have been effective at getting some movement out of the Scottish Executive—if only more of us were so fortunate.
Legal aid is important. Its availability and, more important, its quality are important. The criterion that we should apply to the granting and availability of legal aid must always be fairness. At the same time, we must be mindful of the cost implications.
As I listened to Christine Grahame's interesting story about the pensioner falling into a hole in the ground—
I am glad that somebody found that interesting.
Christine Grahame should remember that Bill Aitken worked in insurance.
I thought that the story was a textbook example of the way in which liability claims could be dealt with. I would have suggested that the old lady wander into the sheriff court and merely quote the findings of Sutherland v Glasgow Corporation 1938, which would have given her an absolute right of recovery. Failure to do so on her part would not necessarily have avoided the action, because she could have looked at her insurance policies, many of which now have the appropriate extension that enables legal representation in such matters.
As I said, fairness must be the watchword, but we must also acknowledge the dangers of the vexatious litigant, and prioritise. It is therefore a little disappointing that, on 6 February 2001, the Justice 1 Committee supported Executive legislation that gave terror suspects and their sympathisers in Scotland the right to legal aid to appeal against a banning order that is made against their group. The Conservatives opposed that move. It is not the sort of thing to which we should be giving priority when, as a number of members have explained well, legal assistance in other respects remains unsatisfactory.
A number of aspects of the committee's report are non-controversial but should perhaps be queried to some extent. However, the committee's point on the extension of legal aid to bodies such as community groups and organisations is well made. I recall a case in the west end of Glasgow in which a local community council found its members in a state of serious concern with regard to a potential liability that they had incurred. The provision of legal aid would have dealt with that. Although those people were perhaps unwise to take the action that they did, they did so in the best interests of their community. It would have been wrong had those individuals been prejudiced because of that.
The committee suggested that the Executive should consider a number of extensions in the availability of legal aid. The Conservatives do not go along with the line that small claims should be among those extensions, given the comparatively cheap and informal approach that is necessary for the success of the system of dealing with small debt actions.
We do not object to the idea, per se, of an extension to include industrial tribunals, but we state firmly that that should have been a matter for wider consideration. A review of the tribunal system should have been conducted to determine whether extending legal aid to tribunals would be viable. We would have to consider that carefully.
If eligibility for legal aid was to be extended—Gil Paterson's point on this matter is perhaps worthy of examination—it would be worth pursuing the committee's recommendation that the question of community groups that find themselves in difficulty with their eligibility for legal aid should be re-examined at the end of the SLAB inquiry. We would be content with that.
The question of fees in the context of legal aid is controversial. The other evening, I found myself in the company of a number of advocates, who berated me for the fact that they now receive the same amount for conducting an appeal against sentence for a summary matter as a plumber or electrician would charge for a call-out fee. That question might well have to be examined. There can be no doubt whatever that fees have fallen behind over the years. The Executive has, to an extent, committed itself to re-examining the situation in the time ahead.
The committee's report is a fairly good one, with which we cannot take any serious issue. The Justice 1 Committee is to be congratulated on getting some movement—albeit fairly limited—from the Executive.
We are now back on track, and I call Michael Matheson, to whom I allocate five minutes.
I will not take all my allotted time, as I am sure that Gordon Jackson will have a number of points that he wishes to cover on behalf of the committee.
A number of members have concentrated on civil legal aid, and I wish to pick up on a few matters relating to criminal legal aid. Since the introduction of fixed fees in April 1998, the fixed fee system has been something of a running sore among those who work in the legal profession. It is clear that things are getting rather bad when friends who are solicitors take every opportunity to nip yer heid, even in the pub, about the impact of the fixed fee system.
We should reflect on the reasons why we have arrived at the present situation. It was interesting to hear the evidence of the then Deputy Minister for Justice, Iain Gray, who stated:
"The legal aid fund is demand led."—[Official Report, Justice 1 Committee, 19 June 2001; c 2580.]
Christine Grahame picked up on that point, and ministers are often keen to highlight it. Given the evidence that was presented to us, particularly in consideration of the impact that the fixed fee system has had on the legal aid budget, I cannot help but feel that what we have is, in all but name, a capping system.
When the fixed fee system was introduced, the Westminster Government perceived legal aid as an open-ended commitment to an ever-escalating budget, which had to be brought under control—hence the fixed fee system. In written evidence to the committee, the Glasgow Bar Association described the fixed fee system as
"a very blunt axe to deal with a fine problem."
The introduction of the fixed fee system for criminal legal aid brought with it the concept of swings and roundabouts: if a solicitor makes something in one case, that may be offset against a case in which they may have been over the fixed fee limit. That concept does not, however, recognise the fact that, ethically, solicitors are required to ensure that they prepare all cases properly—they cannot decide, for example, that when they have reached their fixed fee of £500 the clock should stop and they have finished.
The evidence that was received by the committee showed that solicitors often encounter a whole series of swings but very little in the way of roundabouts. Some people might think that I am talking about "The Magic Roundabout", but this is a serious issue for many solicitors, particularly those who practise in criminal legal aid.
I might be a little old-fashioned, but I believe that the going rate should be paid for a piece of work. If it costs £150 for a solicitor to do a piece of work, he should be paid £150; a solicitor should not be paid £500 for doing £150-worth of work. Conversely, why should a solicitor do £700-worth of work when he will receive a fixed fee of only £500?
I was surprised to note from the evidence that we received that no value-for-money test has been applied to the fixed fee system since its introduction. I welcome the fact that the Executive has agreed to undertake later this year some form of research into the impact that the system has had since it was introduced.
One concern that I have—and which was highlighted to the committee—relates to the impact that the fixed fee system is having on our ability to attract young solicitors into criminal legal aid work. Some of the evidence that we received, particularly from the Glasgow Bar Association, made it clear that young potential members of the profession are being put off by the financial limitations of working within the criminal legal aid system. It is a matter of concern that those limitations are discouraging good people from entering this area of work.
At the same time, the fixed fee system appears to be forcing out people who have experience of criminal legal aid work. Peter Gray of the Faculty of Advocates stated that
"in the region of 40 per cent of the more experienced junior counsel and senior counsel"—[Official Report, Justice 1 Committee, 13 March 2001; c 2257]
have left the bar in the past five years. People may have a variety of reasons for choosing to leave the criminal bar, but it is clear that one contributory factor is the fixed fee system.
The fixed fee system has wider implications both for solicitors and for other parts of the legal profession. The system is in the interests neither of the client nor of the solicitor and will serve only to undermine the administration of justice. I hope that the discussions that arise from today's debate and the further evidence that the Justice 1 Committee receives will allow the committee in its subsequent report to tackle a number of the chronic problems, which, if they are not addressed, will continue to be a running sore within the legal system.
It falls to me to close the debate on behalf of the Executive. I, too, welcome the committee's report and have found today's debate interesting. Despite Christine Grahame's worries, the debate has at times been quite stimulating. Certainly, it has provided food for thought.
I do not have time to deal with all the points that have been made, and I am sure that members will acknowledge that. If I miss points, or if questions require more detailed answers, I ask members to write to me or to my colleague, who will give further attention to those points.
Phil Gallie made an interesting point in relation to overseas matters, which I will deal with quickly. The member will be excited to learn that a European directive concerning cross-border support for legal aid is about to appear. One difficulty is that our system is more generous than that of other European countries. I am sure that when the directive hits Phil Gallie's desk he will stand up and cheer for something European.
My colleague outlined a number of our initial responses to the report. I stress that those are initial responses, but I am pleased that members have welcomed them. We have identified the issues to which we are giving further thought, such as the regular uprating of capital limits, to which Lord James Douglas-Hamilton referred. That is interesting, because he was the minister responsible during a lengthy period when there was no uprating. However, I agree that in many areas we should have a system of regular uprating, provided that the Parliament is comfortable with that.
We are concerned that there should be a more user-friendly, joined-up network of quality-assured legal information, advice and help throughout the country. We set up a broadly based working group to consider a range of issues, and last November the group issued its report. The report does not constitute a fully fledged or detailed blueprint for the development of community legal services in Scotland, but it identifies problems with the current arrangements and some of the key principles and features of a comprehensive network. Along with the Scottish Legal Aid Board, we are considering that report, with the aim of producing concrete proposals. I hope that that deals with some of the points that Roseanna Cunninghame made about the issue of access, which many members raised. We all desire good, reasonable access that is not burdened by costs, but which we can afford. That is very important.
We have been asked whether we will introduce all the new eligibility criteria in one move. Some of them require primary legislation, so we will not be able to introduce them all at one time, but we will try to do so wherever possible.
A number of members referred to the changes that we are introducing regarding the repayment periods. It is too early for us to know how effective those changes will be, but—as Christine Grahame said—the change to 20 months is welcome and it allows the middle-income group, to which Pauline McNeill and Maureen Macmillan referred, a longer period in which to repay, which is appropriate.
The benefits review, to which Maureen Macmillan referred, is also important, particularly in the context of domestic violence, to which Gil Paterson referred. I will return to that later if I have time. I hope that we will be able to take a view on that and introduce proposals in the summer. That is partly dependent on the UK Government's current review of all benefits, so there are issues to consider. We accept that there is a need to consider the rationale between legal aid and the benefits system.
I have referred to the middle-income trap. We have said that we will consider tapering, which is important.
Gil Paterson and others talked about merit testing and Gil Paterson gave cogent examples of the interpretation by SLAB. We cannot instruct SLAB on individual cases—Gil Paterson is aware of that—but we will follow up the matter, see whether there is persuasive evidence of anomalies and consider whether we can tackle them.
We have announced that we will make it easier for successful unaided opponents to get expenses from legal aid. I hope that that answers Phil Gallie's point and that it will make things easier.
Small businesses were referred to and Bill Aitken referred to community groups. As sole traders, small businesses can already apply for legal aid, but given that businesses can get legal insurance quite easily, we feel that that is a more appropriate route. We have sympathy in relation to community groups and we will consider that matter further.
I turn to the difficulties in civil legal aid. In 1990-91, 1,029 firms were involved in civil legal aid, whereas in 2000-01 the figure was 1,049. There has been an increase in the number of firms available. The number of firms is only one measure, but the Law Society of Scotland is introducing proposals and we will consider the question of civil fees in due course. That will need to be quality assured—Lord James Douglas-Hamilton and others referred to that—and we will ensure that any fee increases in that context will have to be accompanied by proper quality assurance.
Michael Matheson's point on fixed fees is important. There are slight concerns about the recruitment of young lawyers into criminal legal aid. We have not received great evidence that the fees need to be increased, but colleagues have made me aware of the fact that there are difficulties in that area and we will return to it.
In conclusion, we welcome the report. I hope that members believe that we have acted on some issues and will act on others. We will keep the Justice 1 Committee informed of the outcome of our further considerations.
I am sorry that I ran slightly over time.
I call Gordon Jackson to close for the committee. We must finish at 5 pm.
I shall try to finish by then.
I begin by declaring an interest: this will surprise many members, but I have a direct financial interest in the provision of legal aid. Despite that, I think that a system that provides legal aid and which allows access to justice is almost by definition a good thing. However, like all such provision, it needs to be revisited from time to time to ensure that we are providing what is intended in the best possible way.
The report is part of that. It is not in any sense final or definitive, but it is part of the continuing process towards trying to improve what we have. I suggest that, in that process, we must bear in mind the requirements of any system of legal provision. I shall mention three of those.
Such a system must be affordable, as far as the public purse is concerned; it must give access to justice to those who need it; and it must provide high-quality legal services. Those requirements seem obvious, but in practice, they often produce a tension. Our purpose is to try to achieve a balance.
Michael Matheson was right: it is all very well to say that a lot of legal provision is demand led, but, as in every field, there will always be a financial constraint. We must recognise that no budget is ever infinite. I remember attending a conference almost 20 years ago—in India, of all places—at which legal aid was discussed. One of the Indian states was trying to set up a legal aid scheme, which was not an easy task. Through research, the Indians discovered that a problem always arises with demand-led legal aid, in that demand is never exhausted. The more provision there is, the more demand increases, and cost eventually becomes a problem. We must always bear that in mind when we ask for an extension to legal aid provision.
On the other hand, there is a legitimate requirement to give proper access to justice wherever that is required, although, as Roseanna Cunningham was right to say, we do not always achieve that. The perception is that the only people who can afford to be involved in the courts or in any legal action are the very poor and the very rich. The Justice 1 Committee has been able to highlight a number of areas in which there seems to be a gap in our provision, and those areas must be tackled. I was delighted that the Deputy Minister for Justice said that the Executive would consider the business of collective action by representative bodies such as community councils. There are many occasions on which an injustice arises because legal aid is not available to such organisations.
When one considers the requirements to extend legal aid and to limit costs, the third requirement—a good-quality service—becomes a problem. There is the danger that, if one tries to balance affordability and increased access, one might end up with a second-class service. Many countries have experienced that problem. I have discussed the issue with lawyers from Australia and America. Unlike us, they perceive the situation to be the norm. They would expect the so-called best lawyers to work for those who could pay for them privately—I think that was what Donald Gorrie was hinting at—and that lawyers who are publicly funded would not be nearly as good. In many countries, that position is perfectly normal and reasonable, but I hope that I am not being arrogant when I say that that has never been the case in Scotland. The quality of legal advice and service that is given to someone who has been charged with a serious crime in Scotland is the same, whether or not they are in receipt of legal aid, but I am afraid that that will not continue to be the case indefinitely.
I do not want to talk about money for lawyers—I have already declared my interest—but an important statistic demonstrates the reality of the situation. A lawyer or advocate who is acting for someone on legal aid is now paid about 25 per cent of what he would charge for acting on a non-legal aid basis. Some might say that that is a good thing and that the less lawyers are paid, the better, but that statistic will affect the level of service that we provide.
I hope that it is obvious that balancing the requirements of affordability, access and quality is not easy. That is why we need to have a radical look at the entire system. We need joined-up legal services and a proper, strategic approach. I do not have time to read to members the evidence of Professor Alan Paterson, but I commend it to those who are interested in the subject because it was excellent. He points out that, in this country, we have never had that kind of proper, strategic approach to legal services. Community legal services may be the way forward, although both Phil Gallie and the committee had doubts about that. We could also consider the remuneration of lawyers or the extension of legal aid and eligibility. The process of trying to get a proper, strategic overview is continuing, and both this debate and the committee's report are part of that process.
I commend the report to the chamber. I hope that it is a useful contribution—it is only a contribution; no more, no less—to the debate.