Access to justice for all is an ideal that any democracy strives for, but as the arugument over legal aid costs continues unabated it seems that Scotland could be getting further and further away from that ideal. Steven raeburn talks to a number of leading lights to get their views on the future of legal aid.

The recent threat by criminal defence advocates to boycott sex offence cases, in a protest over fixed fees for criminal work, lit the touchpaper on a volatile discussion over the issue of legal aid, in both civil and criminal contexts. The second half of October saw a spate of high profile criticisms of the Scottish Legal Aid system. Firstly, a BBC Scotland Freedom of Information request revealed that a Scottish Executive investigation had concluded there was now a greater risk of miscarriages of justice taking place than ever before.
Later that week, Oliver Adair of the Law Society\'s Legal Aid Solicitors Committee criticised the Executive‘s proposed expansion of the Public Defence Solicitors’ Office pilot scheme. The Executive had intended that expanding the PDSO scheme, currently running in Edinburgh, Glasgow and Inverness, would improve access to legal aid, and widen an accuser’s choice of defence. Adair seemed instead to advocate increased funding, saying: “The current priority should be investment in the legal aid system to ensure the long-term viability of private solicitors providing an independent, value for money service.” And amidst the debate between the politicians and the profession, there was the unwelcome publicity surrounding the Legal Aid Board’s decision to refuse legal aid to the mother of Misbah Rana (formerly Molly Campbell) who is engaged in a custody dispute with Misbah’s father in Pakistan, where Misbah now resides. The case had been given high prominence by the media after Misbah had left the country to travel to Pakistan with her father. The decision to refuse legal aid, whilst no doubt in keeping with the normal legal aid procedure, highlights the difficulties many individual pursuers have in proceeding with cases that they believe are strong, when they fail to satisfy the eligibility criteria.
Emotive single cases frequently highlight specific problems with the practical delivery of legal aid. In October, Tommy Sheridan MSP said he would challenge the Executive to raise financial eligibility thresholds for civil legal aid, a particularly contentious area that many in the profession believe is preventing clients with potentially worthwhile actions proceeding to court, as they cannot afford to pay the required contribution or proceed without financial assistance. In response to these criticisms, the Scottish Executive released a statement in defence of the present system, claiming: “The Executive is committed to providing access to justice for all. The legal aid system must fulfil responsibilities as set out in legislation, as well as meeting the needs of applicants, the legal profession and the court system, while working with other justice partners to ensure that the legal aid system is fit for the 21st century.”
The concentration of criticism, and the increased temperature of the debate, may be an indication that the legal aid structure has reached a tipping point, where neither the profession nor the public have confidence in its ability to function.
The legal aid system has gone through a series of reforms since the Legal Aid Board was created to take control from the Law Society in 1987. Jean Couper, former head of the Scottish Legal Aid Board discussed some of the difficulties with The Firm on the eve of the completion of her tenure in charge. Like many in the profession, she is concerned about civil eligibility levels but points out that the Board itself has no discretion over them, as they are controlled by the Scottish Executive. “The Board have had concern for some years now about the number of civil applications reducing year-on-year and the potential impact on access to justice that that brings. The Scottish Parliament sets out the financial eligibility rules that we have to apply. We have no discretion on the financial eligibility rules.”
Couper also said that, like many civil practitioners, she is very concerned that the public may not be getting satisfactory access to the courts and the justice system. For instance, litigation expert Cameron Fyfe said last month that over the years he has had many hundreds of clients who have been forced to abandon actions due to financial ineligibility. Couper expressed concern at the way the financial rules necessarily enforce a financial cut-off point. “The way the eligibility rules operate, if you are underneath the bar, you qualify financially for legal aid; if you are over the bar, you don’t. Our concern is that those who are over get no support through legal aid, yet the cost of litigation is very expensive and presumably many of these people don’t go to court or don’t take advice because they can’t afford it,” she said.
The Legal Profession and Legal Aid (Scotland) Bill is currently before the Scottish Parliament. In its present draft, it largely deals with creating and administering the new Scottish Legal Complaints Commission. However it proposes an amendment to the 1986 Act to the effect that criminal legal aid will be available in solemn cases after application to the Board, and subject to their satisfaction that, “after consideration of the person‘s financial circumstances, that the expenses of the case cannot be met without undue hardship to the person or the person‘s dependants”.
On the face of it, this seems to introduce a means test to criminal proceedings, already a contentious and vexed area in civil matters. It remains to be seen whether this provision will be included in the Act when passed.
The new Act follows the Strategic Review on the Delivery of Legal Aid, Advice and Information in 2004, and the consultation that followed, Advice for All: Publicly Funded Legal Assistance in Scotland – The Way Forward. Responding to recent criticisms of the civil criteria, an Executive spokesman said: “The Executive wants to see public funds used to their full potential. Although legal aid is demand led and not capped, it is important to get best value for taxpayers’ money.” The statement continued: “Current financial eligibility criteria will enable around 50 per cent of the population of Scotland access to legal aid in some form. Scottish Ministers are committed to ensuring fair access to justice and will continue to keep eligibility criteria under review to ensure this in the future.”
Often overlooked in the legal aid debate are the socio-cultural changes that have taken place, which have impacted on the character of actions making their way to the courts in the first place. Developing attitudes to family relationships affected the volume of legal aid applications, according to the Board’s own findings. Jean Couper told us how this has manifested itself in practice. “The areas of reduction in application for civil legal aid mirrors changes in the wider applications and cases going into court, and to some extent it reflects changes in society and changes in the type of case that is going to court. A large part of civil legal aid expenditure is on family matters and divorce. With the changes in society and the patterns of marriage and divorce, the changes in our application level reflect what is happening in the courts more widely.”
During her tenure at the Board, Couper was an advocate of ADR, expanding advice and assistance, and identifying other methods of avoiding litigation where possible. When court action proved unavoidable she believed the responsibilities of the Board included ensuring value for the taxpayers who fund it, as well as the claimants directly affected. “I think we do get back to looking for ways to enable people to have access to legal aid on a fair basis, but also with the requirement from the taxpayers’ perspective of delivering value for money for the money spent.”
However, within those criteria, the Board are necessarily constrained by the funding provided by the Scottish Executive. “All our tests are laid down by the Scottish Parliament, and the financial eligibility year on year, is determined by Scottish Ministers. Our role as a Board is to administer, within the Acts and regulations we have, and to give advice to Ministers on the effective delivery and development of legal aid. And we do that.”
The threshold levels fixed by the Executive were the areas that had concerned Cameron Fyfe, who called for the levels to be increased last month. “The difficulty with our system is that you have access to justice if you are either very poor or very rich. If you are in the middle, which I would imagine is the bulk of the population, then it is almost impossible to proceed with a costly court action. In a Court of Session action for instance, it could easily be £50,000-£70,000, and that is beyond the limits of most people, and therefore the door of justice gets slammed in your face. And for that reason there must come a time, surely, when the Scottish Executive agrees to increase the threshold limits … The threshold must be raised because, just now, so many people are being denied justice.”
Couper argues that the issues are wider than funding, requiring the concentration of all elements of the profession working together collectively to manage conflicting agendas and facilitate a working alternative. “Often it is about prioritisation and about timing and about resources, not just the Legal Aid fund. The people resources within the Board, within the profession, the Scottish Executive. It’s about bringing all that together and bringing a plan of change through.”
Many of the concerns about civil legal aid would be addressed by the injection of funds from the Executive. On the other side of the profession, the concerns of Advocates undertaking criminal legal aid work have the potential to result in miscarriages of justice, as has been observed. Maggie Scott, Chair of the Criminal Bar Association, believes that the advocacy profession is being handicapped by restrictive remuneration levels which restrict the amount of time advocates can spend in proactive defence. “The key to preventing miscarriages of justice is to have a system that properly pays for preparation.” she says.
In addition, advocates undertaking work in outlying court districts have expressed concern at fee levels that fail to account for their considerable overheads. The increased risk of miscarriages of justice, the problems of the PDSO scheme, and the issues surrounding criminal legal aid from the practitioners’ point of view are currently being investigated by The Firm, and the conclusions will be published in a future issue. The Executive say they are committed to providing access to justice for all. With so many gaps identified in the provision of the service by both the public and the profession, the next move is up to them.