When Jim Wallace announced the formation of a working group to consider “whether our communities have the comprehensive, well-signposted, well-connected legal and advice services which they require” the suspicion from many in the profession may have been that he was merely creating a ruse to avoid the real issue of the underfunding of our civil legal aid system.
If an inclination to cynicism is temporarily cast aside, it might be that his speech to mark the Scottish Legal Aid Board’s 50th anniversary last month was deliberately couched in vague terms because the Justice Department’s working group really is going to convene with a blank page and, perhaps critically, with a determination to be as far removed as possible from the English experience which has enveloped the Legal Aid Board under an all-encompassing scheme of community legal services.
The Justice Minister noted in his address “one thing that has come clearly out of the meetings is the huge range and variety of advice available across Scotland, how it has developed to meet different needs and how it relies on a variety of funding mechanisms.
“Our aim is not to set up some new centrally controlled service. We recognise the valuable work which is already done by the wide range of bodies providing advice, legal services and representation. Our first objective is to stimulate local partnerships which will draw together what is there and in a spirit of co-operation work out how best to meet the needs of the client”.
But what does Jim Wallace mean when he talks about the key being “the development of local partnerships which will bring together the main components - private solicitors, law centres, advice centres and advice agencies in such a way that they are complementary and their services are well-signposted” with the aim of ensuring “that advice, legal information and representation should be available to a uniform standard, although not necessarily provided in a uniform way, across Scotland”?
Lynn Welsh, Secretary of the Scottish Association of Law Centres, is clear that as a starting point “community legal services” is the wrong badge under which to begin looking at improved access to justice.
“We want change here to be as far-reaching as it has been in England, but in a different way. More money needs to be injected into legal advice services to enable an expansion of non-private solicitor advice. I can only presume that people in Shetland or Inverness have the same problems of accessing justice, but services offered by law centres are concentrated mainly in the west of Scotland”.
So what does the Justice Minister envisage when he refers to local partnerships? Lynn Welsh cites Paisley, where she is based as principal solicitor at the Social Inclusion Partnership funded law centre, as being a good example of strong co-operation between public and private advice agencies. “We have a good relationship with the local Faculty here, but the problem is that in general we don’t know enough about each other. Private practice has been excluded from the process to some extent and that doesn’t help to develop trust.
“The notion of a system of community legal services is achievable, and if the working group is open-minded to suggestions and ensures that groups aren’t forced into a contest to compete for available money, then something useful can come out of this process”.
Paul Brown, principal solicitor of the Legal Services Agency, agrees that fundamental to the consultation process is an open approach and a determination not to set groups against each other.
“Those who are proposing partnership working need to be clearer about what they mean. Adversarial debate and choice is paramount in this human rights era. Legal services goes to the heart of citizenship. The Executive must be willing to hear all views and it’s encouraging that so many people are being invited to sit on the working group.”
Paul Brown is adamant that whatever does emerge should not be some kind of Executive-led behemoth. “An agency like ours is based on a clear idea of community. I don’t know what is meant by community legal services, but I know it cannot be a Government organised provision. In England, it seems that it has been adopted as a nice cuddly banner, but it doesn’t mean very much if it doesn’t have anything to do with community.
“ I would urge the Executive to give the Legal Aid Board the power to issue grants. At present civil legal aid withers on the vine. It needs wholesale upgrading or risks dying out.
“This needs to be a process of genuine co-operation, openness and a fair financial approach to all.”
Mike Dailly, Principal Solicitor at the Govan Law Centre, said: “We need a guarantee that proposals for community legal services will be without prejudice to the existing advice and assistance scheme. Any developments will have to be additional to what we have under the present civil legal aid system.
“ The working group will have to take on board the fact that the backbone remains private practice solicitors. I deal with many firms who have extensive expertise in areas of social welfare law and it would be perverse if any system of community legal services was developed at the expense of what we already have.
“It’s also essential that the principle of equality of arms is a paramount consideration. Citizens need to have access to qualified representation and have choice. Voluntary lay representation by and large doesn’t work; it confuses advocacy with representation. Representation requires proper skills and understanding of the law, protecting the client’s legal position. In that respect there is no-one better qualified than a solicitor. Citizens have the right to access people of calibre to represent them.”
So should solicitors in private practice view any comprehensive system of community legal advice as a threat? Mike Dailly thinks not. “Solicitors in law centres have provided a powerful resource for communities, without conflict with private practice colleagues. The only concerns will be if the new venture is to be paid for at the expense of the existing system.
“I welcome Jim Wallace’s plan to have some sort of joined-up strategy for community legal services, but not if it’s a strategy resulting in access to justice on the cheap. This debate is of such importance that in addition to the working group we need to engage discussion in an open forum where all meaningful views can be heard”.
Gerry Brown, Convener of the Law Society of Scotland’s Legal Aid Committee, welcomed the Society’s invitation to participate in discussion on how to develop a system of community legal services. He agrees that the first task of the working group is to define what the discussion is about: “We would like to know what is meant by community legal services, only when that is determined will we be able to come up with a programme to put it into effect.
“We also need to ask whether it is required by the public and, if so, how it will be delivered. It should be recognised that solicitors in legal practice are major providers of early advice and assistance on a variety of topics throughout Scotland.
“It’s essential that this process starts with a blank sheet of paper, nothing should be pre-judged. And we then have to be brave enough to face the question of whether we have a system that satisfies the need. Discussions must reflect the distinctive social, economic and geographic problems of Scotland and we should therefore be wary of drawing any comparisons with the English experience”.
Chairman of SLAB Jean Couper said: “The Board welcomes the Minister’s announcement and we look forward to working with others to develop effective, practical proposals for a community legal service providing a high quality service for the public. This is an important step forward for the development of legal information, advice and representation services, including civil legal aid, in Scotland and we are delighted to be playing an active role in the creation of an effective and co-ordinated service for the people of Scotland.
“Shortly we will invite organisations to submit proposals for pilot projects relating to community legal services for civil matters, with a view to the first pilot projects being selected in the early part of 2001. The pilot projects will be possible when Part V of the Legal Aid (Scotland) Act 1986 is enacted.
“The Board is expanding its policy and research function to support the development of future legal aid policy and best practice. Some of the staff within our Policy Unit will be involved in setting up and evaluating these pilot projects. The unit will also carry out research into the reasons behind trends in the delivery of legal aid, particularly the decline in the number of applications for civil legal aid. The results of the pilots and the research will, I am sure, be of interest to the working group as it develops its ideas for the community legal service.”
In this issue
- President's report
- Remembering Donald Dewar
- Providing pension provision on divorce
- The Title Conditions Bill
- Modern code for adults with incapacity
- Delivering legal services to the community
- Service of documents within the EU
- EU's Charter of Fundamental Rights
- Distance selling regulations now in force
- Controlling paper and electronic files