Hansard

Thank you very much.We are grateful for the opportunity to give evidence. I want to touch on several points that are of specific interest to the committee.It is important to recognise that legal aid is of benefit to a great many people in Scotland. Last year, civil and criminal legal assistance was granted in more than 450,000 instances. Although the system works, we believe that there is both scope and a need to improve and develop it, to better meet people's needs now and in the future. I will touch on some issues with which we are trying to deal within the existing legislation and mention others, which we believe need to be addressed, that would require changes in legislation or regulations. Let me start with the issues that we are trying to address now. First, we are concerned about the possible disincentive that the way in which the contributions system operates creates for applicants. In 1999-2000, 73 per cent of those who were offered civil legal aid had no contribution to pay. Of the remaining 27 per cent, almost one third did not accept the offer. We cannot assume that cost is always the reason for a person not accepting an offer. It is interesting that the level of rejection of offers is not getting worse; in fact, the proportion of people who fail to take up offers of legal aid is lower now than it has been at any point in the past eight years. Nevertheless, we are considering how we might change the contributions system to reduce the problem further. To do that, we will survey applicants who have rejected an offer of legal aid to find out why they did not accept the offer and what they did without legal aid. We believe that the research will help us to understand better the scale and nature of the problem and, I hope, to suggest potential improvements. Members may be aware that in July 2000 we introduced a system of extended repayment periods—of either 15 or 20 months—for larger contributions. I am not suggesting that that has solved the problem, but I think that it is helping, as we have seen an increase in take-up, particularly among those whose contributions are between £500 and £1,000. We are currently considering various options and their implications. For example, we are looking at the possibility of introducing more flexibility to the instalment arrangements, either by extending the scope of the longer instalment period or by relating instalments to key stages in a case or to the likely cost of the case. We must think through any such changes carefully, as well as assess their financial implications, but we hope to be ready to consult on proposed changes by the end of the summer.We know that applicants in particular circumstances can have difficulty in accessing the system—the committee has heard about the difficulties faced by victims or potential victims of domestic abuse. It is difficult for us to isolate the statistics on applications in relation to interdicts, exclusion orders and non-harassment orders, as they are often combined with other craves in actions for divorce, contact or residence, but we know that we have granted legal aid in more than 1,100 cases that were recorded simply as interdicts where the applicant was a female pursuer. In 1999-2000, such cases had a grant rate of 72 per cent, which was higher than the rate for civil cases in general, which was 67 per cent.In many cases, urgent action is necessary. Legislation—termed the special urgency provisions—allows solicitors to take a wide range of steps without having to await a decision by the board. In 1999-2000, more than 10,000 cases—almost 45 per cent of all civil legal aid applications—featured some work done under the special urgency provisions. About a quarter of that urgent work related to interim orders for custody or interdict.We are reviewing the special urgency provisions, in particular how the contributions system applies in such cases. We are concerned about the current arrangements under which, if a solicitor is taking special urgency steps and considers that his client is likely to have to pay a contribution towards legal aid, he may seek a substantial sum from the client up front, based on his assessment of the likely contribution. That is what is called a notional contribution. Many clients in that situation will not have the cash to pay up front. Solicitors ask for it because the board will deduct the notional contribution when paying the solicitor's account, on the assumption that the client has paid the contribution to the solicitor. If the client has not paid the contribution, the solicitor could be out of pocket.Over the next month, researchers commissioned by SLAB will conduct focus groups with solicitors who are experienced in that area of the law. That will give us a clearer insight into the nature and extent of the problems and will help us to develop effective solutions. Again, we hope to be in a position to consult on proposed changes by the end of the summer.We have identified the granting of sanctions and the employment of counsel or expert witnesses as being affected by and having an impact on other parts of the justice system. We need to work with the profession and the courts to ensure that those parts of the system operate smoothly and that the board receives the information that it needs to make decisions quickly and consistently. The vast majority of sanction requests are dealt with very quickly, but there are issues such as the restriction in legislation to pay Crown rates for experts in criminal cases, which can cause difficulty.We have reviewed our procedures for dealing with sanction requests for counsel and we are about to consult the Law Society for Scotland and the Faculty of Advocates on the subject. We plan shortly to conduct a similar review in relation to sanctions for expert witnesses.I want to address a few issues concerning the wider justice system. Sanctions, which I have just mentioned, are one example of why legal aid has to be seen as part of the wider justice system. We at SLAB, like others, want the system to work in a co-ordinated and cohesive fashion. By strengthening our links with other bodies, we are trying to appreciate more clearly the impact of legal aid on the system, so that we can explain to others how legal aid operates and contribute to developing improvements in the operation of the wider justice system. We have also continued our programme of consultation meetings with the public, local faculties of solicitors and voluntary organisations. That helps us to address issues as they arise, rather than once they have become entrenched problems.SLAB has a role to play in helping the profession to operate the legal aid system as effectively as possible. Some aspects of the legislation on legal aid are complex and difficult, for example property recovered and preserved, which is often referred to as clawback. We will provide more guidance and information to assist the profession on that and other issues.The Justice 1 Committee is aware that we are examining why there has been a drop in the number of applications for civil legal aid. It seems unlikely that there will be any simple explanations or conclusive answers, but we are investigating a range of possible contributory factors. The start of the decline in the number of applications can be traced back to a step change in eligibility that was made in 1993. We have commissioned an academic economist to assess whether eligibility has fallen further since then, as a result of economic growth that has not been reflected in the annual uprating of eligibility limits. We hope to have the initial results of that work by the end of June. Like me, members of the committee will have heard anecdotal evidence that there are fewer lawyers providing a civil legal aid service and that that could be a barrier to access to the legal aid system. Our evidence suggests that there is an extensive and widespread network of outlets offering a civil legal aid or advice and assistance service. Indeed, more outlets were available in 1999 than were operating in 1992.It may also be that the demand for legal aid services is changing. It is clear from the courts that there has been an overall reduction in the amount of litigation over recent years. Specifically, there has been a 30 per cent reduction in fault-based divorces between 1994 and 1999. Such actions account for a high proportion of civil legal aid applications, so it seems inevitable that a reduction in one would lead to a reduction in the other.While the number of applications for civil legal aid has fallen, there has been a large increase in the volume of advice and assistance, which covers a wide range of matters, including areas such as social and welfare law. That suggests that there is still great and increasing demand for lawyers' services, but that less of it relates to the traditional work of lawyers and court-based solutions.We recognise, along with many others, that the legal aid regulations are complex, in some respects inconsistent, and that the system can appear overly bureaucratic. We feel that a concerted review of our governing legislation and regulations is needed to address those issues.The complexity of the system means that it is often difficult to explain it adequately to applicants, particularly matters such as clawback. Clear information is needed to ensure that applicants understand what they may have to pay at the end of their case and why. We are working on that and will publish a series of revised information leaflets, the first of which should be out in early autumn.The inconsistency in the regulations can be bewildering for applicants and professionals alike. An example is the treatment of working families tax credit, which varies depending on whether one is applying for advice and assistance or civil legal aid. Issues such as that need to be considered in the context of a well-thought-out review of not only the treatment of benefits, but the availability of dependants' allowances.Bureaucracy also needs to be addressed. We are doing what we can, including a review of the legal aid forms and the development of e-commerce, but we have to operate within the existing regulatory and legislative framework.Any review should also consider the need to address some of the figures in the regulations, which have not changed for a number of years. For example, the lower capital limit for civil legal aid has not changed since 1983 and the £2,500 of property that is exempted from recovery in matrimonial cases has not changed since 1987. Clearly, the figures that are in place cannot be achieving what they were designed to achieve many years ago. The failure to keep pace with economic growth is in danger of affecting access to justice.We share concerns about the stagnation of fee levels for solicitors and advocates and are pleased to be working through the tripartite group and separately with the Faculty of Advocates to address the issue. As the committee knows, SLAB is part of the community legal service group, which is considering how to ensure that appropriate services are provided to those who need them. We reiterate our strong support for the group's work. The working group is considering two issues that are of wider relevance. The first is quality assurance, which is of central importance, not just to community legal services, but to all providers of legal services. The second is the need for improved planning of the legal aid system. The board's powers in that respect are limited. Our responsibilities are to administer legal aid and to advise ministers on its operation. We think that there is a need for a strategic role to help the planning and development of supply of legal aid and advice provision. That would encourage and enable best use of the available resources.In conclusion, much is right with the system, but much could and should be done better to meet the needs of the public. We are tackling some of the issues where we can; we would very much welcome the opportunity to do more with others.We will be happy to provide the committee with any further information or assistance that it would find helpful or which might clarify some of the technical aspects of the system that it has discussed.