Access to Justice, Civil Liberties, Legal Aid, Legal System, Scots Law

Civil Legal Aid in Scotland: a vital system that is struggling

A recent open letter to the Scottish Legal Aid Board and the Law Society of Scotland’s Legal Aid Committee highlights the very real problem with civil legal aid in Scotland. The open letter concerned the fees paid by SLAB for work undertaken by the firm in a case before the UK Supreme Court. The case concerned the position of siblings in the Children’s hearing system and whether they should have the designation of a “relevant person”. In the end, the Supreme Court decided that they should not have the formal designation of a “relevant person”, but highlighted the importance of their involvement in the proceedings. That is just by way of background; what the solicitors complained of was the fee paid to them by the Scottish Legal Aid Board. They wrote that their fee was abated to just over £3,000. That may sound like a lot, but it is not at all for all of the work that would have went into preparing for a case in the Supreme Court which was heard over a period of two days.

Solicitors have been complaining about legal aid payments for a long time. Most of the recent public complaints have related to the criminal legal aid system; however, many of the same issues exist in the civil legal aid system as well.

Most civil litigation in Scotland takes place in the Sheriff Court; where solicitors typically do all of the work without the involvement of Counsel (although in more complex cases sanction can be sought to involve Counsel). In most civil cases the fees that solicitors receive are “block fees”; that is, a fee is payable for certain work no matter how long it takes. Each block of work is assigned a number of “units” and then there is a unit fee. The fee is calculated on the basis of units x unit fee. The current unit fee, applicable from April 2019, is £21.63. This unit fee was first set in 2003 at the rate of £19 per unit. So in the space of 17 years the unit fee has risen by £2.63 (or 13.84%). Averaging out the 13.84% increase over the past 17 years it gives an average of 0.84% per year (this is artificial because there hasn’t been an annual increase).

Inflation has been running considerably higher than 0.84% every year since 2003; using the Bank of England’s inflation calculator, £19 in 2003 would be worth about £30.27 in 2019 (the latest year that this calculator will allow you to calculate for). Again, it’s a rough estimation as it averages out inflation across the period. The calculator has worked it out on the basis of an average inflation rate of 3% per year.

What this shows us is that there has been a year-on-year real terms cut in the unit price paid by SLAB to solicitors for work undertaken; and a considerable one at that. Now, it would be fair to take account of the significant reductions in public spending that have occurred since 2010. However, assuming that the unit price had increased every year in line with average inflation between 2003 and 2010; and thereafter been a frozen until the 3% increase in 2019, the unit price would be in the region of (again, using the Bank of England’s inflation calculator) £24.13 today; higher than the £21.63 that it currently is (there is roughly an 11.5% difference).

Why should non-lawyers care about this? This cuts to the heart of our democracy. One of the central tenants of democracy is the rule of law; that doesn’t just apply between citizens and the state, but also between individuals and businesses. Without the ability to enforce rights (whether they be statutory rights or rights created by contract) they may as well not exist. Moreover, it is a disincentive to honour rights if you know that the other person is not going to be able to enforce those rights.

The reality is that more and more solicitors are withdrawing from providing legal aid services. They cannot afford to provide them. Lawyers typically to have an altruistic streak to their personality, but equally law firms are businesses and they need to make a profit. If law firms are not making a profit on their legal aid work then their privately paying work is having to subsidies that; it reaches a point where it becomes so uneconomical that firms either stop offering legal aid services altogether or they cannot continue to trade and close their doors (especially where the majority of their work comes from legal aid cases). This harms the rule of law; it makes it harder for people to find solicitors who can act for them if they’re unable to pay privately. The current concept of legal aid came into existence alongside other key aspects of our welfare system; it is a fundamental part of our welfare system.

There are some firms that make a considerable amount of money from the legal aid system. The annual report from SLAB shows what every single firm has been paid from the fund each year. However, there are a few things that those figures don’t reveal. Firstly, in the case of civil legal aid, firms are only paid at the conclusion of the case (although there have been some temporary changes made via the Coronavirus legislation allowing interim payments to be made; but this is temporary and does not reflect the usual position). Civil cases can last years; meaning these figures will inevitably include work that has been done in previous years. Civil cases lasting years has nothing to do with solicitors seeking to increase the fees that they get; that’s just not how it works. The delays often arise out of issues elsewhere in the system. Moreover, as indicated, most Sheriff Court work is paid on a block fee basis rather than an hourly basis; therefore, there is often no incentive at all for solicitors to “spin” things out to increase fees.

What should also be remembered is that these are payments to a business; like any other business. From those fees, the firms require to pay overheads. Every business has to pay overheads, but it is a factor that should not be overlooked when assessing how generous legal aid payments are: the overheads for running a solicitors firm are high. Many of these overheads relate to the highly regulated environment in which we (rightly) operate.

Finally, the firms making the most from legal aid will be doing “bulk work”; it probably accounts for the majority of the firm’s workload. The average cost to the taxpayer per case has fallen; so these large payments will also be coming from a large number of cases.

Our private rates significantly outstrip the amount we’re paid for legal aid. However, generally speaking the profession is not asking to be able to bill the taxpayer what we bill our privately paying clients. We recognise that the rates paid out of taxpayers’ money will be less; however, what we need is a system where the rates are increased more than a handful of times in the best part of 20 years. The system cannot continue to sustain the real term cuts of that it has seen historically. The system provides good value for money: our accounts are closely scrutinised and we need to justify every single charge to SLAB. Practitioners offering legal aid services are regularly subjected to “peer review” process; which looks at whether we’re complying with the technical requirements as well as the level of service being offered to the client. The peer review process is far from a box ticking exercise; our peers are tough but fair – if the standard of service offered is not up to scratch then we’re re-assessed and ultimately we can be stopped from providing legal aid if we fail to meet the standards.

The Scottish Government commissioned an independent review of the legal aid system in Scotland; it has reported and made many good recommendations about how to reform the system for the benefit of the public. On fees it concluded that it had seen insufficient evidence to support a general increase in fees; a conclusion that was criticised (and ultimately ignored, to some extent, by the Scottish Government who provided a general increase in 2019 anyway). The Scottish Government also established the “Legal Aid Payment Advisory Panel”; its work can be seen on the Scottish Government website. After the election next year, whoever forms the Scottish Government should prioritise taking forward the recommendations and conclusions of the review and the advisory panel.

Legal aid is a vital service and it is worth fighting for; politicians know that there are no votes in legal aid and so do not treat it with the priority that it deserves. In some respects the system in Scotland is in a much better place than the system in place in England and Wales; the Scottish Government hasn’t removed whole areas of the law from the scope of the civil legal aid system in the way that the UK Government has in England and Wales. However, that is not an excuse for refusing to deal with the issues in the system that exists here in Scotland (and those go beyond just the rates of pay) – this is an area within devolved competence; “at least we’re better than England” shouldn’t be an answer to criticism on any area of devolved responsibility – and legal aid should be no exception to that general proposition. Don’t let the Scottish Government dwindle the system away: it’s part of the safety net that exists and you never know when you may need it.

Access to Justice, Civil Law, Environmental Information, FOIA, FOISA, Freedom of Information, Information Rights, Legal System, Scots Law

Court Fees, Access to Justice and Freedom of Information

On Monday new tables of fees enter into force for the Sheriff Courts and Court of Session in Scotland.  The new table of fees is necessary because of the new Simple Procedure that is coming into force next week to replace the Small Claim procedure and to partially replace the Summary Cause procedure in the Sheriff Court.  It would appear that the Scottish Government has used this opportunity to increase some other fees as well.

The other increases are part of the Scottish Government’s aim to get “full cost recovery” in the civil courts; that is, that so far as is possible those who litigate in Scotland’s civil courts fully fund the cost of running those civil courts.  I have grave misgivings about such a policy for access to justice (and I am not alone in that view).  This blog has, in recent times, moved more towards the field of Information Law and to that extent, I am going to look at these latest court fee rises in the context of Freedom of Information appeals.

In Scotland, under the Freedom of Information (Scotland) Act 2002, if a person is dissatisfied with how a public authority has handled a FOI request they can make an application to the Scottish Information Commissioner (SIC).  The SIC has the power under the 2002 Act to make a decision as to whether the public authority has complied with the Act, and if not, she has the power to state what steps the public authority must take in order to comply with the act (including to order that the public authority release information to the requester).  If a requester or public authority is unhappy with the Commissioner’s decision there lies a right of appeal (on a point of law) to the Court of Session.

The Scottish appeals procedure differs vastly from the appeals procedure under the UK Freedom of Information Act, where a right of appeal (on both fact and law) exists to a specialist First-Tier Tribunal and then on to the Upper Tribunal and the Courts (on a point of law only).  There is currently no charge for lodging an appeal with the First-Tier Tribunal, nor for any step of process or a hearing.  That is not the case in Scotland.

Unless the party bringing the appeal is in receipt of Civil Legal Aid, there are court fees to be paid.  The appeals are also dealt with under Chapter 41 of the Rules of the Court of Session and go straight to the Inner House.  For those who are unfamiliar with the Scottish court structure, the Court of Session is split into two “houses”.  The Outer House hears cases at first instance and is usually presided over by a single Senator of the College of Justice; while the Inner House is the appellate court and hears appeals from the Outer House as well as other courts, tribunals and regulators (such as the Sheriff Appeal Court and the Scottish Information Commissioner).  Appeals from the Inner House are (with permission) to the UK Supreme Court; the Inner House is therefore Scotland’s supreme Civil Appellate court.  In the Inner House, at least three of Scotland’s most senior judges will sit to hear the appeal.

On 28 November, the Court Fees (Miscellaneous Amendment) (Scotland) Order 2016 shall enter into force.  Schedule 1 to that Order sets out a new table of fees in the Court of Session.  Paragraph 1 in Section B of the Table sets a new fee for lodging an “Appeal, application for leave or permission to appeal, summons, or other writ or step by which any cause or proceeding, other than a family action, is originated in either the Inner or Outer House (to include signeting in normal office hours)”.  The new fee is set at £300, up from £214.  So, in order to lodge your appeal against a decision of the SIC the Appellant (whether an individual or public authority) needs to stump up £300.  The Respondent (who is the SIC) will also have to pay £300 (again, up from £214) to lodge their Answers to the Appeal.

There may be other fees to pay along the way, depending on the procedure that ends up taking place; however, when it gets to the hearing of the appeal, the costs start to mount up significantly.  Each party (appellant and respondent) will be required to pay £500 (up from £239) per 30 minutes (or part thereof).  Therefore, a hearing that lasts a full court day (roughly 5-6 hours) will result in a court fee of between £5,000 and £6,000; and that is before solicitors’ fees and the fees of Counsel are added.  This is an astronomical figure.  It is not paid by anyone in receipt of legal aid (and legal aid is available for FOI matters in Scotland), but you do not have to be very well off not to qualify for legal aid.

This represents a significant barrier to accessing justice.  These are sums of money that most middle earners will struggle to get their hands on, even if they attempt the appeal as a party litigant (which given the complexity and sometimes archaic nature of the Court of Session Rules is no easy task).  When it comes to the question of FOI, it only strengthens my belief that appeals against decisions of the SIC should be to a lower court or tribunal in the first instance.

There is a much more fundamental point however; the civil courts should be accessible to everyone.  The level that court fees are rising to (and they are going to continue to rise over the next few years as the Government moves towards “full cost recovery”) presents a very real barrier to justice.  The Scottish Government accepted that fees represent a barrier to justice in respect of the Employment Tribunal fees set by the UK Government (and has pledged to abolish them when the power to do so comes to the Scottish Parliament in the near future).  However, the Government seems happy to continue with a policy of full cost recovery (that was, admittedly, started under the Labour/Liberal Democrat Administration that left office in May 2007).  It is a flawed policy that will place a very real barrier to the courts for very many people.  That, is a tragedy for justice and for democracy.