Civil legal aid

Chapter 33AA Ordinary Cause Rules

The civil legal aid team has been in discussions with SLAB and the Scottish Government on the need for payment in relation to these new rules since summer 2013.

At a meeting with the Scottish Government and SLAB on 19 May 2014, the team made clear the Society’s position that these rules require new and additional procedure in s 11 cases where a proof has been allowed, and that the current fee regime does not cover this work. The team is firmly of the view that the Scottish Government must ensure that work properly done is paid for.

The Scottish Government would not commit to introducing new fees to cover this procedure. Instead, it is proposed that a review of the fee structure as a whole is carried out with a view to ensuring that existing funding can be distributed equitably. The team noted that irrespective of any upcoming review of fees, the current position must be addressed now, as work is being required that cannot be claimed for under legal aid.

The Scottish Government could not indicate any timescales for addressing this issue, or for the proposed review of the entire fee structure.

However, the civil legal aid team will continue to press this issue and will feed back to the profession as more is known.

If you have any concerns or observations on how the system is currently operating, please contact the team by emailing  Marina Sinclair-Chin.

Response to Landscape Review of Publically Funded Legal Assistance

The civil legal aid team was pleased to note the publication of the Landscape Review of Publically Funded Legal Assistance as part of the Making Justice Work programme in April 2014.

The team is encouraged at the high level of satisfaction reported in relation to solicitors as advice providers, including 69% of respondents to the Scottish Crime and Justice Survey ranking solicitors as the top advice provider for family issues. We feel this represents the important role of solicitors in supporting individuals with civil problems, and the high quality service provided by solicitors.

The Review makes a wide range of recommendations, and we look forward to working together with other civil justice stakeholders to help ensure that Scotland has and maintains an effective system of PFLA.

However, the Review raises a number of concerns and questions. We would be interested in clarification of the full data used to generate the figures in the Review, in particular, how does the figure for gross legal aid compare to that of legal aid expenditure net of amounts received through contributions, expenses, and property recovered or preserved? In addition, many of the recommendations will require further detail and development before we are able to comment. For example, there is a suggestion that the quality assurance system for civil legal aid solicitors should be reviewed. However, there is no suggestion of what alternative review procedures might be suggested or what the issues with the current system might be.

We note that family law issues are raised as an area of high expenditure, and therefore targeted for reform. While we are happy to support cost effective and early intervention approaches to family law, we would note that this is a particularly crucial area for public funding. The consequences of a family issue not receiving appropriate support can be severe and it is in the interests of wider society as well as the individuals involved that funding and support in this area is not compromised. Reforms to the area of family issues should be undertaken with care to ensure that unintended negative consequences to the system and those within it are avoided.

We look forward to working with SLAB and the Scottish Government through the Making Justice Work programme to examine the recommendations made and issues raised by the review.

Savings and reforms

Following the Scottish Government's Strategic Spending Review, the legal aid fund is facing a cut 7.2% over the years 2012/13 to 2014/15. Following the measures introduced to cut legal aid expenditure earlier this year, this additional cut represents a huge challenge to access to justice and to the sustainability of legal aid practice.

The Scottish Government has published a White Paper, A Sustainable Future for Legal Aid, which outlines the proposals for reforms to legal aid. The Society's Civil Legal Aid Team has prepared a paper on these proposed reforms, and on possible alternative savings which could be made with least damage to access to justice. A copy of this paper can be downloaded from this page and all views would be welcomed.

The legal aid savings packages already implemented are forecast to save £19.1 million by 2014/15, with current forecast savings for 2011/12 being almost £2 million greater than originally estimated. However, due to an increase in legal aid expenditure, the legal aid budget over the coming years is showing a shortfall between estimated expenditure and budget provision. Therefore, the Scottish Government is working on a third package of savings measures. These will affect both civil and criminal legal aid. The Scottish Government has provided a paper outlining progress on savings to date, and the development of a third package of savings measures. A copy of this paper can be downloaded from this page.

Both the civil and criminal legal aid teams have met with SLAB and the Scottish Government to hear the proposals that are being developed and the teams will continue to be actively involved in seeking further information and assessing the impact of the proposals for further savings. An indicitive timetable for the development of these proposals has been issued by the Scottish Government, and we will advise the profession of the detail of each savings proposals as soon as we are able to do so.

Reciprocal enforcement of maintenance orders

The Maintenance Orders (Reciprocal Enforcement) Act 1972 provides a scheme whereby maintenance orders made by courts in reciprocating countries may be registered in sheriff courts in Scotland and enforced. Legal aid is available for this work. The Law Society of Scotland receives these cases from the Scottish Government for distribution to solicitors within the relevant sheriffdom who are willing to undertake the work.

If you would be interested in receiving these cases, please email Marina Sinclair-Chin to be added to the register.

Civil legal aid updates

The Civil Legal Aid Team sends out regular email updates on its work, including meetings with the Scottish Legal Aid Board (SLAB). Notes of meetings and other information on the team's work can be downloaded from this page.

If you would like to receive these updates, please contact Marina Sinclair-Chin to be added to the mailing list.

To find out more about the Society's work on civil legal aid, please contact Marina Sinclair-Chin on 0131 476 8136.