Chamber
Plenary, 15 Nov 2007
15 Nov 2007 · S3 · Plenary
Item of business
Scottish Legal Services Market
I understand the minister's point, but we have to consider the consumer—the person who needs the service. If they are saying that they are unable to access services, we need to listen to them. The profession may say, "Yes, we are able to provide services at that rural court, if enough cases come up"—but we still have to consider how people can access those services.
If there is provision in a particular area, I am not suggesting that the Government should provide it. However, in Inverness and the surrounding areas there was no provision and people really struggled to get access. That was why services were set up. I therefore urge the Government to ensure that people in other rural areas also have access to services. If they do not have access to services, the Government should step in to provide them.
We need to go further than public civil offices to ensure access to legal services. We need to look at the financial barriers. Civil legal aid is means tested. People who wish to get an interdict to protect them from abuse can apply for civil legal aid, but they are often prohibited by the means test.
The Government acknowledges that abuse can take the form of financial abuse. It accepts that the abused person can often have no access to their own funds. If, on paper, a person appears to have an annual income exceeding the amount set down in the regulation, they cannot access civil legal aid. That means that one aspect of their abuse prevents them from getting assistance and then protection from the other aspects of their abuse. We need to allow anyone who is applying for an interdict with power of arrest against an abuser to qualify automatically for civil legal aid. Anything less would not work. How can a person prove that they have no access to funds when those funds are controlled by somebody else? How could the person access proof if their life has changed dramatically because they have had to flee abuse? In some cases, people have left their home, job and family. Their annual income may exceed the limit, but they no longer have any income because they have had to give up their job.
Claiming civil legal aid has the added complication that the applicant's opponent can object to the application and to the granting of legal aid. In cases of abuse, that provides the abuser with another route to continue their abusive and controlling behaviour. The abuser can appeal against the victim receiving civil legal aid. We need to stop that happening.
The counter argument to extending civil legal aid to all who need an interdict to protect them from abuse is that it would open the floodgates for other such cases. However, that would not happen, because this type of interdict is unique. It is the only civil action that, if breached, leads immediately to arrest and criminal proceedings, meaning that the offender can access legal aid while the victim cannot.
Another anomaly of the system is that some benefits are taken into account when calculating income. Benefits should never be counted as additional income. It is anomalous to take account of them in that way, regardless of the reason why legal aid is sought. Some benefits are available to everyone, regardless of their income. For example, child benefit is specifically for the child; it is not for seeking any legal representation.
I ask the minister to address the following points. He should ensure that benefits are not calculated as part of income; he should roll out a series of public civil offices so that everyone in rural areas has equality of access to civil legal aid; he should remove the right of objection from opponents whose victims are fleeing abuse; and he should give an automatic right to civil legal aid to all those who require an interdict to protect them from abuse.
If there is provision in a particular area, I am not suggesting that the Government should provide it. However, in Inverness and the surrounding areas there was no provision and people really struggled to get access. That was why services were set up. I therefore urge the Government to ensure that people in other rural areas also have access to services. If they do not have access to services, the Government should step in to provide them.
We need to go further than public civil offices to ensure access to legal services. We need to look at the financial barriers. Civil legal aid is means tested. People who wish to get an interdict to protect them from abuse can apply for civil legal aid, but they are often prohibited by the means test.
The Government acknowledges that abuse can take the form of financial abuse. It accepts that the abused person can often have no access to their own funds. If, on paper, a person appears to have an annual income exceeding the amount set down in the regulation, they cannot access civil legal aid. That means that one aspect of their abuse prevents them from getting assistance and then protection from the other aspects of their abuse. We need to allow anyone who is applying for an interdict with power of arrest against an abuser to qualify automatically for civil legal aid. Anything less would not work. How can a person prove that they have no access to funds when those funds are controlled by somebody else? How could the person access proof if their life has changed dramatically because they have had to flee abuse? In some cases, people have left their home, job and family. Their annual income may exceed the limit, but they no longer have any income because they have had to give up their job.
Claiming civil legal aid has the added complication that the applicant's opponent can object to the application and to the granting of legal aid. In cases of abuse, that provides the abuser with another route to continue their abusive and controlling behaviour. The abuser can appeal against the victim receiving civil legal aid. We need to stop that happening.
The counter argument to extending civil legal aid to all who need an interdict to protect them from abuse is that it would open the floodgates for other such cases. However, that would not happen, because this type of interdict is unique. It is the only civil action that, if breached, leads immediately to arrest and criminal proceedings, meaning that the offender can access legal aid while the victim cannot.
Another anomaly of the system is that some benefits are taken into account when calculating income. Benefits should never be counted as additional income. It is anomalous to take account of them in that way, regardless of the reason why legal aid is sought. Some benefits are available to everyone, regardless of their income. For example, child benefit is specifically for the child; it is not for seeking any legal representation.
I ask the minister to address the following points. He should ensure that benefits are not calculated as part of income; he should roll out a series of public civil offices so that everyone in rural areas has equality of access to civil legal aid; he should remove the right of objection from opponents whose victims are fleeing abuse; and he should give an automatic right to civil legal aid to all those who require an interdict to protect them from abuse.
In the same item of business
The Presiding Officer (Alex Fergusson):
NPA
Good morning. The first item of business today is a debate on motion S3M-847, in the name of Kenny MacAskill, on competition, regulation and business structu...
The Cabinet Secretary for Justice (Kenny MacAskill):
SNP
I appreciate that the level of excitement about today's debate is not quite on all fours with the anticipation for Saturday's 5 pm kick-off at Hampden Park, ...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
The Law Society of Scotland has suggested that, in its assumptions about the Scottish legal system, the Consumers Association made a number of errors, which ...
Kenny MacAskill:
SNP
We have been in regular contact with the OFT. We have always been at pains to point out that we accept the need for consumers' rights to be preserved and pro...
Paul Martin (Glasgow Springburn) (Lab):
Lab
I note that at your request, Presiding Officer, the minister extended his speech. I hope that you do not receive a fee note for that, given that he previousl...
Kenny MacAskill:
SNP
I intervene at Mr Martin's request. We accept that although the Law Society and the Faculty of Advocates each perform a pivotal role for their professions, t...
Paul Martin:
Lab
I welcome that commitment from the cabinet secretary and agree with that way forward.A number of key issues are worth raising today, some of which were menti...
The Presiding Officer:
NPA
I call Bill Aitken. Mr Aitken, as you have picked up, you basically have as long as you like.
Bill Aitken (Glasgow) (Con):
Con
Gee, thanks.The Cabinet Secretary for Justice and I have exchanged some harsh words this week, but he will no doubt be relieved to learn that that is highly ...
David Whitton (Strathkelvin and Bearsden) (Lab):
Lab
Okay, so the legal profession contributes £1.2 billion to the Scottish economy, but is Bill Aitken saying that legal fees should go up instead of some way be...
Bill Aitken:
Con
No. Mr Whitton will be relieved to learn that I am saying that we should expand the market and bring in more business. As a good public relations man, he sho...
The Presiding Officer:
NPA
I now call Mike Pringle, to whom the instructions that I gave Mr Aitken also apply.
Mike Pringle (Edinburgh South) (LD):
LD
That is probably a first.Although this subject is important, the English 2007 act that covers these issues does not become effective until 2011, so we are di...
John Wilson (Central Scotland) (SNP):
SNP
I congratulate the Cabinet Secretary for Justice on the motion and Pauline McNeill on her amendment. The Scottish Government is clearly attempting to develop...
Rhoda Grant (Highlands and Islands) (Lab):
Lab
When we are debating legal structures, it is important that we focus on the people who require access to the legal system. Their needs must inform our decisi...
Kenny MacAskill:
SNP
I am grateful for the points made about civil legal aid. The Government's position has always been that we are happy to provide facilities for civil legal ai...
Rhoda Grant:
Lab
I understand the minister's point, but we have to consider the consumer—the person who needs the service. If they are saying that they are unable to access s...
Stuart McMillan (West of Scotland) (SNP):
SNP
I am sure that many members in the chamber are as delighted as I am at being dragooned into being here this morning.Scotland has a unique situation regarding...
The Deputy Presiding Officer (Trish Godman):
Lab
Excuse me, Mr McMillan.I do not know how many times I have to say this to members, but phones have to be switched off. Off.
Stuart McMillan:
SNP
Of course, funding problems are not solely related to community law centres. The Scottish Legal Aid Board's legal funds have been significantly drained thank...
David Whitton (Strathkelvin and Bearsden) (Lab):
Lab
I speak to the amendment in the name of my colleague Pauline McNeill, with particular emphasis on widening choice and on easier access to more affordable leg...
Kenny MacAskill:
SNP
No, they have not. What the member says seems rather to contradict Mr Martin's points. Is Mr Whitton telling the chamber that he supports Tesco law?
David Whitton:
Lab
I support the move to make the law more affordable and more accessible to ordinary people in the street. One of the reasons why people want to introduce what...
Aileen Campbell (South of Scotland) (SNP):
SNP
Like previous speakers, I welcome the debate. It gives the Scottish Government the opportunity to respond to the super-complaint from the consumer group Whic...
Nigel Don (North East Scotland) (SNP):
SNP
In the context of an extensive debate, I will address one specific issue that has not been mentioned much—advocates. The argument is made that it is uneconom...
Christopher Harvie (Mid Scotland and Fife) (SNP):
SNP
Presiding Officer, I crave your indulgence for my late arrival in the chamber.We are sentimental about the law because the law and the office of Lord Advocat...
Margaret Smith (Edinburgh West) (LD):
LD
Again, we have had an interesting debate. It has been interesting listening to colleagues trying to fill not only their time, but that of other members. I en...
John Lamont (Roxburgh and Berwickshire) (Con):
Con
I declare an interest as a member of the Law Society of England and Wales. I was a practising solicitor with Brodies until June 2007.Like many others who hav...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I declare an interest in that my husband is a practising advocate. However, competition, regulation and alternative business structures are not often the sub...
The Deputy Presiding Officer (Alasdair Morgan):
SNP
Order. The member may wish to draw her remarks to a conclusion, to allow the minister adequate time to respond.