FORMER Carnegie UK Trust chief executive Martyn Evans sent shockwaves through the legal sector last year when, after a year-long review, he recommended a complete overhaul of the legal aid system that covered everything except fee levels.
Solicitors, who have long campaigned for an increase to the rates they receive for doing publicly funded work, were up in arms, with some suggesting that the Scottish Government, which had commissioned the review, should rip it up and start again.
One person who was not surprised by the report’s recommendations was Colin Lancaster, the chief executive of the Scottish Legal Aid Board (SLAB), who, having served on Mr Evans’ review panel, had sensed the direction his views were likely to go in.
“It wasn’t a surprise for those who were involved in the report because he [Mr Evans] really took the opportunity to step back and think about what legal aid is for,” Mr Lancaster said.
“The Government gave him a fairly blank canvas to work with so there were no preconceived constraints on where it could go.
“What he brought to it was to see legal aid in a wider context – what it’s for, what it’s contributing and to what extent it is able to contribute to the kind of things he thinks it should be contributing to.”
Since its inception in the post-war years, the legal aid fund has been a means by which those on low incomes can access legal advice on a range of different matters, with eligibility being decided on a case-by-case basis.
In practice that has led to a complicated system that can be difficult to navigate, with Mr Evans recommending it be simplified by positioning legal aid as a public service that is funded in a more flexible way.
SLAB has engaged with that vision in its response to the government consultation on the report, putting forward five different models that could help achieve it. The differences between them centre on the amount of change the Government would have to embrace to get there, with the least ambitious essentially tweaking the current system while the most ambitious would see the vast majority of legal aid fund expenditure targeted by way of contracts, grant funding or direct services rather than being allocated on a case-by-case basis.
Though he notes that at this stage government ministers are “gauging the appetite for change”, Mr Lancaster said it is clear that some flexibility needs to be introduced into the current system.
“We’re very much saying we have a system of a particular type that does a particular job and it does that job fairly well – it is fairly wide in scope, fairly broad in eligibility and people do get help with a range of issues,” he said. “But it’s not easy for the system to respond; it can be a bit clunky and change can be tricky.”
Noting that he “would like to see a system that is able to deliver the outcomes that were expected of it”, Mr Lancaster said that “if ministers really want to embed the features of public service, what we are saying is that will be difficult with the tools that are currently available”.
“Radical change comes with risk though and [the Government] will have to weigh up the benefit of going down a different path against the risks,” he said.
“If we’re going to do it we would have to make sure that we’re doing it well and are managing the change process so we’re not lurching from one thing to the next or risking losing the positives that we’ve got.”
Whatever the Government decides to do with the recommendations and consultation responses it has received, fee levels remain an issue for those working in the sector in spite of Mr Evans saying he could find no evidence that fees should be increased.
Edinburgh Bar Association, for example, whose members have been gradually cutting back on the number of duty rotas they will serve on for SLAB, has warned that more solicitors will give up on legal aid work unless fee levels are addressed.
“The inverse correlation between the numbers of solicitors providing criminal legal aid and the number of courts for which criminal legal assistance is required renders the provision of that service within our jurisdiction enormously problematic,” it said in its own response to the consultation.
The Government is seeking to address this through the establishment of a separate legal aid fee review committee that community safety minister Ash Denham said would look to modernise the fee model to “ensure that it is fair to both the taxpayer and the provider”. Having served on the panel since it launched in March, Mr Lancaster is hopeful it will be able to achieve that.
“Fees have always been the emotive component,” he said.
“We’ve been having interesting discussions looking at how other areas of public service are remunerated. It’s not just about fee levels but about how those services are and could be paid for.
“We’ve still got a feeing model that in some respects looks like a 1940s private client model, but we’ve had presentations about GPs and dentists and how things work in other jurisdictions and we’ve got a sense for other ways that it could be done.
"It’s not just about how much you pay but about how you pay.”
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