As the dust settles on last week’s heavily politicised announcement from Justice Secretary Kenny MacAskill of ‘access reforms’ to legal aid availability, some inside & outside the profession begin to point out that what seemed to some as a positive step, is more of a rearranging of the curtains (as we pointed out too – Ed)
Published Date: 13 April 2009
By John Forsyth
'CIVIL legal aid is being rolled out, not rolled back." That was how Justice Secretary Kenny MacAskill last week summarised the new income eligibility criteria for Scots who might need financial assistance in pursuing a legal case or defending themselves against one.
As a turn of phrase it was neat, concise and carried a sense of progressive intent as he commended the detail to the general public with wrongs to right and to the legal profession with salaries to pay and overheads to cover.
But are they ten words that will shake the legal process in Scotland? Or even arrest the present precipitous decline in availability of civil legal representation?
Scottish Legal Aid Board figures show the number of firms that received some civil legal aid funding has fallen in each of the last five years, from 733 in 2003-4 to 609 in 2007-8. One in six firms has dropped off the SLAB list.
Ranald Lindsay, convener of the Law Society of Scotland's Access to Justice Committee, says a two-pronged attack on ensuring access to justice is required.
He said: "Extending the number of people eligible to apply for legal aid will not mean much unless the decline in the number of solicitors taking on legal aid cases is reversed.
"The Secretary for Justice promised last May at the Law Society AGM that legal aid fees to solicitors would be increased. He will have to be serious about 'rolling out legal aid' if he is going to stop the rot."
The headlines said up to a million more Scots will now be eligible for civil legal aid from 7 April as the disposable income threshold is raised to £25,000. This means around three-quarters of Scottish adults may qualify financially for legal aid. Previously, the absolute ceiling for civil legal aid eligibility was disposable income (after deducting costs such as housing and family expenses) of £10,306. The limit on the amount of disposable capital has also risen, to £12,439.
Launching the reform, Mr MacAskill said: "I have long considered it unfair that people of relatively modest means can find themselves unable to pursue a complex and expensive legal action. As a first step towards correcting that unfairness, we will increase the financial eligibility limits for civil legal aid with an appropriately tapered contribution regime."
The devil is in the detail of that "appropriately tapered contribution regime". The extension of eligibility has been achieved by introducing a band system. For those with a disposable income of less than £3,355 there is no difference; they will not be assessed for a personal contribution. Neither will there be a difference for those between £3,355-£10,995 – they will be assessed for a personal contribution of a third of the difference between £3,355 and their disposable income.
The interesting changes come in the next two bands. Those with disposable income over £10,995 will be assessed for a personal contribution of half the difference between £10,996 and £15,000. Finally, applicants with a disposable income above £15,001 will be assessed for a 100 per cent contribution of the difference between £15,001 and £25,000.
Mr Lindsay says: "Effectively, if your disposable income is above £15,000 then the Scottish Legal Aid Board is offering an interest-free loan.
"I'm not dismissing that as an aid to helping folk pursue a case or defend themselves. Access to justice has too often been denied on grounds of cost. The opponent with deep pockets but a poor case too often prevails."
But he added: "These new bands will need a lot of discussion between solicitor and client. Under the previous system, I had clients scared away at the prospect of having to contribute up to a couple of thousand pounds. I'll have to install a defibrillator before I start telling people liability could be £14,500!"
SLAB has estimated that 1,700 more grants will be made in the coming year under the new regime, at a net additional cost of £1.3 million. In 2007-8, SLAB gave 10,650 grants at a net cost of £20.38 million.
Interestingly, SLAB has three forms of revenue from cases it funds. "Contributions from Assisted Persons" is the smallest, yielding £1.06 million in 2007-8. Clawback from winnings ("Amounts Awarded to Assisted Persons") brought in £1.35 million. "Expenses from Opponents" following successful legally aided cases was £10.34 million.
What the profession is waiting for is the second shoe to drop. Mr MacAskill said last year that a review of civil legal aid fees is on its way. Draft regulations have been circulated and will be laid before parliament after Easter. They will take effect on 1 June; increases will be backdated to 1 April, 2008. This will be the first review of fees since the consolidation into blocks of work – itself a controversial reform – in 2003-4.
Oliver Adair, convener of the Law Society of Scotland Legal Aid Committee, says: "I hope the increases will be enough to arrest the decline. Whether it will be enough to entice firms that have previously dropped out to come back is another matter. The problem is we are starting from a historically poor position and it may be difficult to re-establish a civil legal aid presence across Scotland. We do want to stop the drift of legal aid availability to the cities only."
In search of a silver lining in the grey and overcast horizon of the recession, Mr Adair says some firms may look to replace income that has dropped away from conveyancing – for example, with work in other areas where litigation increases as a result of economic stresses.
He said: "I think the government and the profession need to work now to raise not just the availability but the profile of legal aid and its role in resolving disputes so when the recovery comes we'll be in a stronger position."
Mr Lindsay said: "Privately funded clients can pay Premier League rates for legal representation. Sheriff courts' approved hourly rates are the equivalent of the First Division. Legal aid fees are Second Division level. I don't mean clients get second division service, what I mean is it's second division justice when money is the crucial factor, not the merits of the case."
Extending the analogy, the Second Division is where new talent develops and veterans ply an honest trade. But it is also the division where attrition is highest and some players drop out altogether.