SCOTTISH SCOTTISH LEGAL ACTION LEGAL ACTION

GROUPGROUPWorking to explain and improve Working to explain and improve

the law and legal servicesthe law and legal services

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“If you know the law you know what a powerful tool it is.”

- Kirsteen MacKay, mother of three young children, two with disabilities, on benefits and facing divorce who was unable to get the legal advice she needed and embarked on her own legal research, and now in third year of a law degree with support of bursary from Edinburgh University.

SCOLAG’s proposals:

• The development of a network of community based law centres throughout Scotland. These law centres should work in conjunction with the voluntary sector and other advice services, and could even share premises and resources.

• An expansion of public education on legal matters amongst adults and children. This would involve greater publication of legal information for use by the general public and also teaching within the school curriculum some of the basic concepts relating to the structure of the civil and criminal justice systems in Scotland, together with some of the basic concepts relating to legal rights and responsibilities which underpin our society or have practical significance for people in their daily lives.

“SCOTLAND'S ACCESS TO JUSTICEInquiry into the Scottish Legal Aid system

COMMUNITY LEGAL SERVICES1 Extension of advice and law centres • The Group has long supported the extension of community advice and law

centres as cost‑efficient and congenial access for the public to legal assistance. It is a matter of concern that the funding of all such bodies tends to be precarious.

2 Employment of Legal Aid solicitors in advice and law centres • Solicitors employed by the Scottish Legal Aid Board and knowledgeable and

experienced in areas in which advice agencies specialise such as employment, housing and social security should be located in advice agencies, supported by appropriate secretarial back‑up and office equipment.

3 Supply of Legal Advice & Assistance by unqualified staff • We believe that non‑legally qualified staff can supply Legal Advice and

Assistance funded by the Scottish Legal Aid Board. Sometimes they would be the persons with most knowledge and experience in certain areas. To assure quality, however, they must have qualifications in their specialisms and training in associated areas of the law.

“SCOTLAND'S ACCESS TO JUSTICEInquiry into the Scottish Legal Aid system

5 Reference resources • These should be increasingly placed in public libraries

and in advice agencies, both in printed form and on computer by means of CD Rom and the Internet.

6 Education • We favour greater effort in teaching children, along with

modern studies and civic awareness, the rudiments of law and the legal system.

• A publicly‑funded agency could also undertake the publication of more explanatory leaflets than are currently available from rights and trading standards agencies, and could highlight on radio, television and in the press topical items of importance.”

Paths to Justice Scotland, Professor Hazel Genn &

Professor Alan Paterson, (2001, Hart Publishing)

• “Over a five year period about 26% of the general population experienced one or more problems or events for which a legal problem is available “

• “The results … indicate a widespread feeling of ignorance about legal rights that exist across most social groups”

Paths to Justice Scotland, Professor Hazel Genn &

Professor Alan Paterson, (2001, Hart Publishing) • “The accounts of difficulties in accessing free advice from CABx

and other advice agencies contrasts sharply with the ease with which advice can be obtained from solicitors if members of the public in Scotland can afford to pay for such advice and are willing to do so……. for most of the population there is still a good network [of solicitors carrying out legal aid work] to act as the basis for a Scottish community legal service.”

• “CABx were less likely than solicitors or all other advisers to provide direct assistance such as contacting the other side or negotiating on the respondent’s behalf. They were also extremely unlikely to recommend threatening the other side with legal action or taking legal proceedings. Given the behaviour and intransigence of some opponents described by respondents in this chapter, it is unsurprising that by the time members of the public seek help they feel a need for active assistance and sometimes credible threats to be made. “

Paths to Justice Scotland, Professor Hazel Genn &

Professor Alan Paterson, (2001, Hart Publishing) • “The evidence of this study has shown that despite efforts by

members of the public to resolve their justiciable problems by means of self-help strategies and even after having enlisted the help of advisers, a high proportion of problems are abandoned without any resolution.”

• “Greater understanding about the law and greater certainty about the enforcement of legal rights and obligations in the civil context might have an impact on the behaviour of those who evade their responsibilities and obligations when the opportunity exists and when the likelihood of sanction is remote. The objectives of any Scottish community legal service are likely to include the provision of general legal information about the law and legal system and the availability of legal services, as well as providing advice and assistance in the resolution of disputes.”

Local Law Centres

• Castlemilk Law & Money Advice Centre• Drumchapel Law & Money Advice Centre• East End Community Law Centre• Ethnic Minorities Law Centre• Govan Law Centre• Legal Services Agency (Glasgow) (recently lost grant of

£43,000 for Refugee Legal Project)• North Ayrshire Law Centre• North Dundee Law Centre• Paisley Law Centre• West Dumbarton Law Centre (CLOSED due to West Dumbarton Law Centre (CLOSED due to

withdrawal of funding)withdrawal of funding)

Specialist Law Centres or Legal Services provision (not exhaustive):• Enable; Scottish Child Law Centre; Shelter

Scottish Housing Law Service; Scottish Refugee Centre; Equal Opportunities Commission; Disability Rights Commission; Save the Children Fund Travellers Project; Victim Support; LSA Mental Health Project (Edinburgh); LSA Homelessness Project (Inverclyde).

LEGAL AID• SLAB’s 2003-2004 Annual Review shows

that from 1999-2004 the expenditure on civil legal assistance (which excluded cases involving children and contempt of court cases) was fairly level constant at just under £40 million. However payment levels to lawyers increased over that time. The number of cases where civil legal assistance was granted has fallen substantially over the same period, from 188,773 in 1999-2000 down to 148, 962 in the year 2003-2004. The 2004-2005 Annual Report (published December 2005) shows that this trend has continued. The number of grants of civil legal assistance fell to 139,933, a further reduction of 7% on the previous year. The number of grants of civil advice and assistance fell by 7% to 128,944 (this is 23% lower than in 1999-2000). The number of grants of legal aid fell by 11%. The number of applications of legal aid granted as a percentage of those made fell from 61% to 67%.

020,00040,00060,00080,000

100,000120,000140,000160,000180,000200,000

Number ofcases where

awardsgranted

1999-2000

2003-2004

2004-2005

Legal Aid: Other Points to Note• procedural changes in how applications are made, requiring less application forms to

be submitted

• movement from funding of personal injury cases away from legal aid to no-win no-fee arrangements

• within the same period there was a very large increase in the amount of work done relating to immigration, asylum and nationality cases (due to the Home Office policy of dispersal of asylum seekers) - 6,257 grants of advice and assistance in immigration cases in 2004-2005, an increase of 16% on the previous year – decrease in non-immigration cases even more significant in light of this

• fall in the numbers of people accessing a solicitor providing legal aid. This is despite an increase in Part V funding initiatives by SLAB which are designed to increase access to legal aid to those most in need. The number of solicitors in private practice doing legal aid work is reducing. One large Edinburgh firm which accounted for approximately 20% of immigration and judicial review work has recently stopped all new legal aid work and solicitor who handled these cases was made redundant

Legal Aid IssuesAuthorisation of expenditure

Formerly a rule that solicitors could obtain retrospective approval for an increase in  authorised expenditure for  the vital work of advising and assisting poor clients should be reinstated. Presently require to obtain prior authorisation:

– The rule penalises the solicitor who will write a letter or see a client because of the urgency of the matter,  rather than turn the client away for another week while an application is made for increased expenditure.

– It involves the solicitor in the extra work of keeping a note of expenditure to date when there are more important things to do, helping clients (though admittedly some solicitors have systems for recording time spent as the matter proceeds).

– The solicitor will be unable accurately to predict how the matter will develop and will be tempted to speculate on what work will require an increase.   The introduction of "templates" (whereby there are fixed amounts authorised for certain kinds of work) has ameliorated the position in many cases, and urgent increases can be obtained in some cases over the phone, but the need for prior authority is still a problem.  Where there is no "template“ (e.g., education, ASBO’s), and sometimes even where there is,  the solicitor will therefore devote unpaid time, substantial in relation to the fees earned,  on thinking through the likely course of a matter and then framing an application.

– Applying retrospectively will enable the speedy preparation of a concise and accurate summary of the work involved.

– If the work justified the increase, and the solicitor was prepared to take a chance that the expenditure might not be authorised and that he would therefore not be paid, why on a point of principle should the solicitor be penalised?   There can be no moral justification for cutting back on fees of a busy, conscientious solicitor who is not thinking of fees first, just to save money for the legal aid fund.

Legal Aid IssuesMeans testing

    Income: The Executive made a major advance in not requiring that most state benefits be included in means calculations, bringing a greater percentage of the poorer members of society within the scope of the Civil Legal Advice & Assistance Scheme.      The income limits for those in employment are nonetheless on the low side.    A couple with a joint disposable income of £86 per week has no contribution to pay.  There is then a scale of contribution from £7 to £117 depending on income.   If you have disposable income of more than £203 per week after tax and allowances for dependants (including £31.95 for the spouse or partner) Civil Advice and Assistance is not available.   

    Capital   Here the situation is more unjust, because modest savings are penalised.    If you have capital (excluding your house, its contents and your personal effects and tools of trade)  in excess of £1412 you don't qualify.   The figure is £1727  for a couple.   Computations of capital should not include a modest car in rural areas where it is now so essential a feature of life.   Where someone is being sued for debt,  any vehicle, the use of which is reasonably required by the debtor, not exceeding in value £1,000, is exempt from attachment.   If legal advice and assistance is required, however, the poor punter may have to sell his car to get legal help!

Legal Aid IssuesExtension of Advice & Assistance     A&A has been extended in recent years to cover a number of

matters which were previously excluded, such as Employment Tribunals, Mental Health tribunals, etc.   The simple procedure for Assistance By Way Of Representation, in place of the complex procedures for normal Civil Legal Aid, should be extended to cover initial sheriff court work such as interim  interdict, interim exclusion orders, contact and residence orders for children, etc.  Only where the dispute is not settled at the interim stage should a full legal aid certificate be required to take the case forward to the adjustment stage and beyond.   By allowing for the work up to interim orders, and then the making of such orders final in the absence of  opposition, the use of A&A  will cut down on the elaborate paperwork which stifles legal aid practice.

Legal Aid IssuesFees

    Solicitors who choose to represent the less fortunate members of society should not be remunerated at less than half the rate of remuneration a private client would pay.

    Example of current scales:       Assistance by way of Representation at a Mental Health Tribunal hearing on a proposed Care & Treatment Order - per hour:  Legal Advice & Assistance rate £66.40    Sheriff Court Chapter III (party paying)  £125.00.   Solicitor's other time (chambers) per quarter hour LAA £12.75 and Sheriff Court (party paying) £29.55

    The latest Cost of Time survey for the Law Society calculates that the cost of a solicitor varies from £77.02 per hour for a qualified assistant to £120.42 for a partner earning £55,000 per annum.     So a firm will make a loss on any such work. 

    Many legal firms with able solicitors used to offer legal aid as a matter of course and would accept instructions on the same "cab rank" principle as the bar has.  More and more firms are giving up this kind of work, which leaves it to be done by less able solicitors.

What Law Centres Do• Specialise in social welfare law and related issues – areas of law that tend

to affect the most disadvantaged in our communities – housing , debt, mental health, employment.

• Govan Law Centre receives funding to provide advice on education law throughout Scotland.

• Aim to make the law accessible. They tend to operate from shop front premises in local neighbourhoods. They promote themselves amongst the local community and build up a local reputation.

• Provide support to local groups and individuals. This may include legal advice on setting up a group and ongoing support on local issues. Advice and support services for other voluntary organisations can include how to set up a constitution, become a company limited by guarantee, comply with charity legislation, employment law problems.

What Law Centres Do• A major issue for voluntary organisations is inability to get advice

when there are issues between that organisation and the local authority funding it – local authority staff not permitted to advise organisations.

• Provide information about the law. They publish leaflets on subjects which are of the greatest interest to their clients. These are published in different languages to reflect the languages used in the local community. The leaflets are written in easy to understand language, explain legal jargon and technical terms where these are most commonly encountered, and are designed to make the information as accessible as possible taking into account special needs.

• Legal Services Agency is the largest single provider of training on social welfare law topics in Scotland.

What Law Centres Do

• Law Centres have used their legal skills to pioneer new areas of legal practice and expertise to deal with the issues most impacting on the lives of the communities they serve.

• Law Centres work to improve social inclusion and encourage and support local people to make their voices heard.

• Law Centres speak on behalf of local communities and inform both local and central government of the effect legislation has upon local people.

• Law Centres promote equal opportunities policies.

Consumers’ Association survey of legal services (June 2000) found that in England:

“In terms of who provided quality advice, local and specialist community advice, Law Centres were considered the best.”

Access to Justice and Legal Education

Causes of action: civil law and social justice [a research report of a study carried out by the Legal Services Research Centre (The Stationary Office, February 2004)]

• Nothing was done to solve one in five civil law problems.

• In a third of these cases this was attributable to those involved not understanding their legal rights or not knowing how to get help.

Legal Education• People who have an informed understanding of the laws that govern

them are less likely to be in conflict with those laws and the justice system that upholds them.

• People who come in contact with the system , whether as a potential litigant, an offender, a victim, a witness or as a potential juror - may not be aware of their obligations or where to get information about their situation.   

• Information and education are important aspects of crime prevention. This is supported by research studies.

• Every member in a democratic society has a need and responsibility to be aware of their rights and responsibilities and of the rights of other members in that society.

Legal Education• Knowledge about the law can help people better identify the kind of

legal advice or assistance they may require. Public legal information is not intended to replace the services of a lawyer where it is required, but often it is helpful to have information about the law in question, in addition to seeking advice. It therefore can act as a back up to those who do make use of available legal or advice services.

• Public legal education can provide people with the help they need to help themselves without the need to involve a lawyer.

• Having access to information about the law and how to access legal and social resources in the community can be especially important to people who are disadvantaged because of language, physical or economic well being, discrimination or other reasons. It helps empower people. This helps individuals and communities become effective agents for change and helps contribute to a more effective and inclusive society.

Legal Education

Department of Justice, Canada: “The main goal of public legal education

and information (PLEI) organizations is to create an informed citizenry that is knowledgeable about the law, able to recognize and exercise their lawful rights, fulfill their legal obligations, and perform their duties as participants in a democratic society.”

Examples of Legal Education in Practice

• Print and audio-visual materials about specific legal issues, such as divorce, child support and tenant rights. A good example in Scotland is the publication of materials under the Vulnerable Witnesses (Scotland) Act 2004.

• Phone lines staffed by people who provide legal information. These people would not provide advice on a particular legal problem, but could provide information in relation to the legal system and could direct people to places to go to get particular help.

• Taped legal information available by telephone. In Canada there is a "Dial-a-law" and Téléphone Juridique service.

• Speakers, seminars and workshops on specific legal topics aimed at the public, offered through adult education courses or as part of a public legal education and information service.

Examples of Legal Education in Practice

• School-based law courses - could be fitted into the curriculum as an Intermediate 1 or Intermediate 2 course offered as an option for fifth (or sixth) year pupils [these courses are sometimes studied by third/fourth years as well] - but there's also a need for it to be more generally taught to everyone, possibly as sections within social education between the ages of 14 - 16.

• Schools take part in national mooting competitions. For several years members of the Faculty of Advocates have organised MiniTrials for pupils at secondary schools in Kilmarnock and Edinburgh, where pupils take on the role of lawyers, court staff, witnesses and jurors. Builds on skills learnt in school to develop, gather, organise and analyse information and then apply those skills in a novel situation. Also get an insight into the legal system and how it works. Organised as a direct response to the finding in the Paths to Justice Scotland research about the widespread lack of knowledge amongst the public about the civil and criminal justice systems.

• Electronic access to legal information.

• Interactive learning modules.

• Television and radio programmes with strong and accurate legal content.

SCOTTISH SCOTTISH LEGAL ACTION LEGAL ACTION

GROUPGROUPWorking to explain and improve Working to explain and improve

the law and legal servicesthe law and legal services

www.scolag.orgwww.scolag.org