The Legal Aid Board exists to fund cases for those without the means. We all demand value for money from public services, especially in straitened times, but where is the line drawn between value and justice. And has it quietly moved? Steven Raeburn reports.

The Western Isles Council have found themselves on the receiving end of some searching legal actions recently, most memorably the long running dispute over the allowance of Sunday ferry sailings, so vexed in the Hebrides due to the religious demographic of the population. The Goliaths at the Council have found themselves facing fresh litigation from an unexpected David in the form of 10 year old Ellen Macleod, who would like to swim in the newly constructed Lewis Sports Centre on a Sunday, except the Council refuses to open it, in accordance with their policy not to permit any work on a Sunday, other than that relating to “worship, necessity and mercy”, as Ellen’s counsel put it. “It is not understood that any other local authority in the UK has a policy of Sunday closures of sports centres for religion related reasons,” he added.

Assisted by her mother, Ellen has challenged the council’s position, but has been denied legal aid to do so, for reasons that we’ll come to in a moment. Whilst this is undoubtedly a case with eccentric specifics, the Firm does not propose to argue Ellen’s case for her or push her argument to obtain legal aid. What we are concerned with is that the administration of legal aid may have subtly changed in recent years, to the extent that it may affect access to justice. One senior criminal practitioner, and a prominent legal figure -whose name you all know but we can’t disclose- both said that in their view the entire legal aid artifice, employing three times the number of staff as the entire Law Society, to administer only 11% of solicitors’ income, has become so big as to have become dysfunctional, has as its sole priority the preservation of its own existence, and ought to be completely scrapped, torn down and “redrawn from a blank piece of paper.” Ouch.

So how can one case expose this sort of ire?

It is not up for question that legal aid is a worthy entitlement and a pillar of a justice system that values equality before the law, and a body must exist to administrate it. So far so good. It needs a budget to pay the solicitors and counsel who act for claimants, and every taxpayer requires that this money is used efficiently without wastage. So its budget must be finite and well managed. All still agreed. It must also refuse to fund frivolous actions or those without legal merit, and apply a fair means test to ensure a level playing field before the courts. Yes, yes and yes. The Macleod case suggests not only that not all of these ideals are being met, but that other considerations beyond the strictly legal may be affecting decision making.

It has happened elsewhere, too. Last issue the Firm reported defence advocate Gordon Jackson QC and retired fiscal Jock Thomson QCs’ shared concerns that difficult decisions in the prosecution service were being avoided, and cases that in their view should not have proceeded went ahead anyway and were allowed to “hit the buffers” and fail through the court process, at the hand of the jury.

This was widespread and endemic, they said.

During June, chaos engulfed the criminal defence branch of the profession over the publication of emergency guidelines issued to pre-empt challenges in anticipation of the Cadder case. It is widely expected to rule the Scottish practice of six hour detention without counsel unlawful, and arose almost a year and a half after the Glasgow Bar Association warned the Justice Minster and Lord Advocate that the Turkish Salduz case, which spearheaded the ruling at EU level, was imminent. Again, no action was taken and the infamous Cadder case proceeded, in the apparent blind faith that it couldn’t happen here, against all contrary prevailing evidence.

These instances are the first squirts that bear testament to a deep and pervasive well of apathy, inertia and attrition that appears to have gradually but perceptibly eaten into the collective Scottish judicial culture. Ellen Macleod’s case hints that the Legal Aid board may have become affected too. One senior Scottish legal figure placed very close to Westminster decision making told the Firm they observed the same syndrome over the 13 years of the Labour government, where willing public servants ultimately became enmeshed and entrenched in their own arrogance after too long in post and becoming too accustomed a certain pattern of thinking. Could such a thing be happening at the Legal Aid Board?

What confuses Macleod’s solicitor Cameron Fyfe is the basis for the Legal Aid Board’s refusal to grant legal aid, which they have done so on the grounds of regulation 15, claiming Macleod herself will not be seriously prejudiced by the refusal to fund the case, and that it would be reasonable for “other people concerned“ to pay the legal expenses. To this end, Ellen’s mother has undertaken a hefty series of community fundraisers, with modest but not yet consequential success. The religious aspect of the case, the elephant in the room, does not appear anywhere in their correspondence.

“I’ve had this before on several occasions with the legal aid board, and have always thought it was one of the most unfair, irrational rules you could ever imagine,” Fyfe says.

“Counsel’s opinion was that we had a strong case, so we applied for legal aid. As I suspected, the Legal Aid Board came out with this regulation 15, which says that if there are several people who would all benefit from a victory in a case such as this, then they should all put their hands in their pocket and fund it, rather than the applicant. But nobody is prepared to. People will certainly use the pool on a Sunday, but no one is prepared to go to court or prepared to pay for the funding of the case.”

The board were keen to underline to the Firm that regulation 15 is not discretionary and is a test that must be applied in every case, adding that the regulation specifically states that “examples of cases where an applicant will not suffer serious prejudice include closure of a school, community centre, swimming pool or other cultural or leisure institution.”

However, in the Macleod case the sports centre is not being closed. It is just not being opened one day a week. Something else is behind the rationale. Something new that results in this frequent hiding behind regulation 15.

“They have used this argument at least half a dozen times with me recently, whereas before that they didn’t. They are using it much more than they used to. It is an easier way of refusing,” Fyfe said. Could the legal aid board have fallen victim to the same creeping cultural reluctance observed by Jackson, Thompson and those others whose names you know?

“There’s something in that,” Fyfe agrees.

“In the tobacco case I applied 12 times for legal aid and got refused 12 times. They were quite to the point there. They just said they didn’t think I could prove negligence. It was a good straight answer. They didn’t say the rest of the smoking community should put their hands in their pockets.

“This is certainly a strong case, so they had to look outside the box to find another reason to refuse. They just don’t like the idea of spending all this money. I pointed out to them that, because it is a strong case, it is highly likely we are going to win and therefore they won’t have to pay anything - the opposition will. But that wasn’t enough to persuade them.

“She and her daughter are determined to take it forward somehow, which is why she is now going round doing charity walks and so on. And she is having to try and sell the case to her community. It is also ironic to me that the taxpayer put millions of pounds into this sports centre, and it is the taxpayer who funds the legal aid board, and they won’t put in that little extra more to have the facility open when it should be open.”

Macleod’s argument is based principally on the Equalities Act 2006, which states that a local authority providing a service to people has to treat them all equally and cannot discriminate. Therefore a council with jurisdiction over all of the islands in the outer Hebrides cannot treat those on Stornoway different from those on Uist, Barra and Benbecula, all of which have sports centres open on Sundays, but crucially, a different demographic mix. This is the same provision Calmac used to successfully argue for Sunday sailings to be permitted.

Macleod’s second argument is the familiar Wednesbury test, which is that no reasonable council acting reasonably would ever have acted in this way. Perhaps an obvious one, if one considers the uproar that would have followed a similar decision in Glasgow, Edinburgh or elsewhere.

The Firm put it to the legal aid board to address the contention that they may have become less willing to make difficult or controversial decisions, and that the unavoidable religious aspects of this case were in fact being avoided. The board cannot be faulted for the speed and vigour with which its council members and Chief Executive contacted us and gave us their candid, frank and unqualified assurances that this was simply not the case, and that any suggestion that it could be was unfair, unreasonable and unrealistic. They also provided a lengthy statement outlining their view in terms which the Firm can gratefully describe as thorough. (Crown Office, please take note)

“If an applicant does not meet the tests which are set out in legislation then the Board will not grant legal aid. The Board cannot pick and choose which regulations to consider,” the statement said.

“The application of regulation 15 (applications by persons with a joint interest) is not optional and is not applied at the discretion of the Board. There is no question that this is used as some kind of tactic: it is a function of our governing legislation.

“In this case, the issue involves an individual challenging a local authority and did not raise for us any matters of particular sensitivity, religious or otherwise. For this reason, it was not necessary for it to be considered by our Legal Services Cases Committee which deals with complex or novel cases. Any religious dimension does not and cannot play a part in the Board’s decision making. Nor does the Board allow the reasoning for its decisions to be influenced by any potential for adverse publicity.

“We are, quite frankly, astonished at the suggestion that the Board would grant or refuse cases because of other considerations. The Board has granted and refused civil legal aid in high profile and controversial cases which have received adverse media coverage. Each application is dealt with on its own merit.

“For example, we have granted and refused civil legal aid in cases such as those to pursue reparation for historic child abuse against religious orders and local authorities; in child support needs cases and long term adult care cases against local authorities.”

Notwithstanding the board’s assertion that the religious aspects of the case played no part in their deliberations, it is worth noting that - as the faith schools issue in England or the rise of manic creationism have shown- we live in an increasingly post-secular world, and the religious Puritanism that modern, enlightened liberal thinkers used to believe was safely confined to the dark ages or the lunatic fringe is in fact very organised, well financed, determined, methodical and increasingly to the fore in public life and Government. The question is, in Scotland, where church and state are officially separated, to what extent ought this to be a cause for concern?

“I don’t think anyone on the legal aid board has taken a religious decision, but I think they would regard this as a real hot potato,” Fyfe says.

“If they were to grant legal aid, no doubt they would be fearful of criticism. I suspect these things may subconsciously affect the decision making.

“In some ways it is relatively trivial in the whole scheme of things, but it is much more important than just one girl swimming on a Sunday.”