Interview with Deputy Justice Minister Hugh Henry on the consultation paper "Advice for All", discussing the future of legal aid

“I don’t want this simply to be a consultation with the profession or on the other hand a consultation only with those who have complaints about the profession.”

The words are those of Deputy Justice Minister Hugh Henry, who has responsibility for legal aid in Scotland. We are meeting in the glass-fronted ministerial offices clustered together on the fourth floor of the Scottish Parliament building, from which well-kent faces glance out as we pass. But there is no time to survey the scene if we are to make the most of the slot allowed for the Journal’s interview.

And there is much to cover, for the legal aid consultation document, “Advice for All”, that we are to discuss throws up the prospect of fundamental changes in the way legal aid is organised and paid, which call for a prompt response if the profession is to make its views known by the 9 September deadline.

A growing imbalance

Legal aid practitioners are well aware of the problems in the system. The paper provides a few figures (though only hints at the lack of increases in remuneration in recent times). The number of grants of civil publicly funded legal assistance, or PFLA (the term used throughout the paper), fell by 48% in the decade from 1993-94; actual expenditure fell by 27% in the last seven of these years. Meanwhile criminal costs rose by 28% in only four years and now swallow over 70% of the total budget. This despite the constraints of fixed fees in summary cases.

The paper also remains reluctant to accept without further research that there has been a significant decline in the number of firms doing legal aid work, though the Minister is more open: “We recognise that there’s been a big change in the pattern of legal aid provision right across Scotland and the types of work that are being done, and that’s obviously something that we keep an eye on.” He adds: “We have responded to some of the concerns that have been expressed over the fees. There may be more that we have to do, but as politicians responsible not just for framing and delivering the legislation but also for the budget, we cannot respond to concerns by saying that there will always be more money made available. We have to get better use of the money that’s there.”

Co-ordinating strategy

Underpinning much of “Advice for All” is the need for a proper strategy, the absence of which is seen as a principal weakness needing to be addressed – along with the lack of mechanism to relate supply of services, by solicitors or others, to assessed need; the variable quality of advice and representation; and restrictive and inconsistent financial tests on the civil side.

The Executive clearly has it in mind to create a “national co-ordinating body”, taking over from the Scottish Legal Aid Board but with extended powers and duties. So says the paper, though Mr Henry insists that there is no view yet on what the structure might be. Those familiar with the even greater travails of the legal aid system in England and Wales might think they see the shadow of the Legal Services Commission in some of the functions proposed for this body, but again the Minister is non-committal: “I think there are a number of things that we could usefully learn from what’s been happening in England and Wales, but at the same time I think it’s important to stress that we not only have a distinct legal system, we also have our own experience to draw on and our own culture.”

Advice from all

Mr Henry is more assertive on the subject of having people look to the most appropriate sources of advice, citing in support the Scottish Parliament debate on 23 June. “There was a very clear message coming out across the political spectrum, and indeed also from those who had previously worked as lawyers, that the role of lawyers is critical in the future and those lawyers should be adequately and properly rewarded, but very clearly a number of people were saying you should try to remove lawyers from the provision of advice that is inappropriate. If there are others who are better placed to give advice and assistance, they should be allowed to and encouraged to do that so that lawyers should be able to concentrate on what they were best trained and prepared for.”

Does he believe then that there are many cases where people consult a solicitor unnecessarily? “Yes, I do think that it happens. I have some experience myself, a letter from a solicitor asking me to contact a senior official of my local council to find out what was happening with a request that had been made to that offcial. Now the type of request that had been made is one that councillors and MSPs regularly make, so in the first instance that begs the question, why did someone have to go to a solicitor?… It would then beg another question, did the solicitor think it was appropriate for them to fire the letter off, or should or could the solicitor in the circumstances if there was a different relationship have said, someone else can do it? And was that individual charged for something where an MSP was asked to do a bit of work, was legal advice and assistance charged? All these issues I know are there and I know for a fact that I’m not the only one who’s had that type of experience.”

Though solicitors may not agree with the analysis, he cites previous experiences when he worked as a welfare rights officer.

The Executive’s paper envisages a significant role for local authorities in co-ordinating advice provision within their areas. Local plans would be drawn up “in consultation with the voluntary sector, the legal profession and other stakeholders… based on assessment of need for legal services; The investment of centrally held funds… to be subject to an agreed and approved planning process… and to an overarching quality assurance system;… In the longer term, funding from a national co-ordinating body to be available to the full range of providers of civil PFLA, in ways appropriate to the circumstances of the provider such as grant funding, contracts or direct employment.”

How much control?

Mr Henry concedes there is a “big challenge” to avoid an over-bureaucratic approach. “We need to retain flexibility. We’ve certainly also got to retain independence. I really wouldn’t want to introduce a system where we were interfering with the decisions or the work of the legal profession. It’s very hard, if someone says I want to see a lawyer, I need to see a lawyer, they should have the right to go. The question would be how would they pay for that, if there are other options open to them? They have the right to use their own resources if they wish, clearly. The question would be how much should the public purse contribute if that support could be provided elsewhere.”

Curiously, one might think, given their pivotal role, the consultation paper shies away from putting local authorities under any new duty to ensure the planning and provision of civil PFLA in their area. “A high degree of central control is inappropriate for service delivery at local level”, it maintains. “Our preferred policy is therefore strongly supportive of the idea that all the relevant interests should adopt a consensual and co-operative approach.” This would seek to allow local authorities flexibility in delivering national policy priorities at a local level.

Surely, however, this is a ready made recipe for each authority only committing as much effort and resources as it wants? The Minister insists that it is proper to allow this freedom. “That goes back to a fundamental political discussion about what should be the legitimate role of the government in Scotland, the Scottish Executive and the Parliament. Should it be for the Parliament to determine all local service provision and to ensure that in every area every aspect of service provision should always be identical? Because if you take that view you have to ask, what do you leave for local authorities to decide?… We’re trying to create a national framework and I think it’s right that those who are responsible for budgets locally, those who are responsible for service delivery locally should be left to make decisions that best suit their locality.”

A related point, to which he returns more than once during the interview, is the desire to build on and not cut across the advice services already developed or supported by many councils: law centres, money advice services, Inverness citizens’ advice with its investment in telephone and IT support for those in remote areas, to name but a few. “I very firmly believe that there is a need to leave local decision makers the right to use their resources most appropriately while at the same time funding centrally some of the pilot projects, funding centrally the legal aid project, and indeed funding centrally the money we give to local authorities…. What we do not want to do is to destroy the good work that’s there by trying to centralise and dictate to people. We’ve seen a very dynamic service evolve in many parts of the country and the best way forward for us is to look at how we support and help to develop that further.”

So is it a necessary part of his plans that the voluntary sector plays an expanded role? “It’s not about replacing the role of private solicitors, but it’s enhancing and also trying to get the best value for public money, so it’s about developing partnership. I don’t think we’d be anticipating a model that talks about an enhanced role for the voluntary sector which would be a deliberate attempt to replace the private sector. The voluntary sector I think may have a role to play where the private sector is unable for whatever reason to provide a service.”

Rewarding quality

What then does the paper have to offer the civil legal practitioner? It believes that “recent and imminent” increases in rates have started to address the supply issue, but not “that further substantial increases in legal aid rates would fully address all possible future supply problems”. However SLAB could be empowered to adopt other measures to encourage private practitioners: steps to improve cash flow, assistance in the repayment of student loans for trainees on a “legal aid traineeship”, or assistance for firms providing such traineeships. Where further action is needed, the direct employment power in section 26 of the Legal Aid Act could be used for civil work. SLAB could be enabled to contract with private practitioners to provide legal advice work – and to fund provision by non-legally qualified advisers.

The paper also notes a suggestion made of allowing enhanced fees to be taken from property recovered or preserved – somewhat coolly, in view of a perceived “danger that it could give rise to incentives which run contrary to the delivery of a public service,” by encouraging practitioners to be selective in the work they take on.

Reform of civil advice and assistance, the paper states, is “of strategic importance in improving the delivery of civil PFLA”. First stage proposals agreed by the tripartite group (the Executive, the Society and SLAB) will be implemented in light of the responses to the consultation; the next questions are whether SLAB should fund provision by non-legally qualified advisers, and whether an enhanced rate should be introduced for solicitors with specialist skills. On both points the paper is careful to reiterate as a precondition another recurring theme, the need for an “overarching system for quality assurance” for all legally aided work. Mr Henry is non-committal as to whether specialist accreditation by the Society would suffice:

“I think we’re still some way off a decision on that. I recognise the very valuable work that the Society has done in recent years and its constant efforts to improve the professionalism of those who work in the profession. I think there have been huge advances made in recent years that are a credit to everyone involved in that. I think at some point we’ll need to sit down with the Society and others to ask how should we recognise that, what’s the best way forward.”

Finally on the civil side, but of equal concern to the profession, is the proposal that the current eligibility ceiling be significantly raised, at the same time introducing a “tapering” system whereby contributions which might meet even the full cost of the proceedings are assessed on those at the upper end of the scale. This, the paper notes, would limit financial risk compared with a client paying a solicitor privately, allow the client to pay by interest free instalments over an extended period (beyond that currently allowed), and provide some protection against the risk of being found liable for an opponent’s costs. Changes are also proposed to the clawback arrangements, recovery of an unassisted party’s costs, and the rules on changes of circumstances.

The public-private debate

We turn to the criminal section of the paper. Here of course reform goes hand in hand with the major procedural reforms in progress, and on summary procedure “Advice for All” is deliberately left open to the final shape of the McInnes reforms. But there remains much to provoke debate.

The letters page of the Journal has been, and remains this month, an indicator of the strength of feeling about the existence of the Public Defence Solicitors’ Office and whether it provides fair competition with private practice. “Advice or All” affirms a clear belief that “in principle, criminal PFLA in Scotland is best delivered by a mix of salaried legal professionals and those in private practice” – providing choice to the consumer, different opportunities to the lawyer and benchmarking of cost and quality. The Minister however denies that this represents a firm objective.

“What I said was we recognise that we need highly qualified and professional skilled people to deliver a service, that we were trying out a number of different models and we will see what that tells us. I think it’s too early to draw fixed conclusions about what some of the pilots are doing…. I’ve been encouraged by the early work of the public defenders and I think they have performed well, but it would be right to wait and see what comes as a result of the analysis.”

“We do want the principle [of client choice] but we recognise that in some areas it isn’t freedom of choice, it’s actually plugging gaps as well. So I think it would be wrong to characterise this as an attempt to introduce competition across Scotland… We already know there’s an element of choice, that there’s competition within the private sector. What we are going to look at is ensuring there’s good quality, there’s consistency of practice, that there are no gaps, that public money is used effectively and efficiently, and if we can help to develop different models of service delivery then we will.”

Are the two forms of practice operating side by side in fact the best means of encouraging efficiency? “Frankly it’s not the biggest thing that’s on our agenda at the moment. There was a pilot that’s been tried out in a number of areas and we will see what comes from it. I am sure that there will be beneficial lessons to be learned, that there will be things where we will probably determine there can be improvements made. I think in the bigger scheme of things that there are bigger issues than that, which is not to denounce the contribution that has been made.”

Control and contributions

The paper itself goes on to explore how to ensure continued provision of criminal assistance; and, inevitably, control of expenditure. On the former, in the longer term the national co-ordinating body would take the lead; meanwhile, SLAB might be given powers to improve solicitors’ cash flow similar to those proposed in civil cases – and to plan for more general use of PDSO solicitors, or contracting with private practitioners.

On spending control, it can be surmised that SLAB feels some frustration at its lack of authority over the granting of solemn criminal legal aid, and the paper clearly leans towards ending the court’s role here. Practitioners may wonder whether this would prove cost-effective given the very high proportion (some 97%, it is understood) of summary applicants who successfully apply to SLAB. The Minister is clear however that the question should be examined, along with a general contributory system to make the regime more consistent with the civil side: “The first issue is whether or not we do it, and we’ll see what comes back from the consultation. If after the consultation we decide that it’s the right thing in principle, then of course you would have to set a level of contribution and the level of contribution will determine how much you get back, so these decisions have still to be made. I think it’s right to ask in principle whether people think it’s the right thing to do, to ask some people to make a contribution who currently don’t.”

And the profession should make its voice heard if there are practical reasons why the present arrangement should continue: “I’ve said to the Law Society that if there are wider issues that people want to raise as part of the debate then we will look at that.”

Could any discrepancies between the courts and SLAB be smoothed out through clearer guidelines? “I think generally we would want to improve the guidelines that are provided, we would want to ensure that there are no inconsistencies. At the same time I recognise that there are different responsibilities and different layers of accountability between the courts and SLAB so we’ll look at all that. I’ve been very encouraged by the changes that have been made in recent years at all levels of court operations to try and make things work smoother. We’ve contributed to some of that with the changes in the law, but there have been internal changes as well and there’s more to be done.”

A statement of commitment

Will any efficiency savings be ploughed back into the legal aid fund? “I don’t think that any minister could give that undertaking. I think that what’s on record is this Executive’s very clear investment commitment to legal services and to the provision of justice. There is certainly no attempt here to shave money… We are always under an obligation to look at how we improve the delivery of services, how we use the money that we have more effectively and efficiently and if that can be done sometimes by transferring money elsewhere then we will look at it, but no minister could give that categoric assurance.”

So the options, on the Minister’s assurance, remain open; but decisions will not be long in coming as a legislative window opens next February, though the proposed national strategic body would have to await the next parliamentary session. And change will happen, says Mr Henry in conclusion:

“We all live in very challenging, very demanding times. I recognise the very significant contribution the legal profession has made over many years to ensuring that people have access to justice. I think everyone can always improve; the status quo is not an option… I think we’ve got a very good foundation on which to build, but it’s fair to say that everyone in the Executive, legal profession, voluntary organisations, local authorities and others, we can always do more and this is about learning how we can improve, how we can work together. I’ve been encouraged by the constructive discussions that we’ve had. I wouldn’t diminish for one moment some of the difficulties which people face. We’ve listened to some of the concerns, we’ve tried to respond to some of the concerns, and we look forward to the widest range of responses to this consultation exercise.”

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