Published on Tuesday 11 October 2011 09:48
LAW students would provide free advice and members of the public encouraged to use “no win, no fee” services in compensation cases under radical Scottish Government proposals to plug a £23.1 million legal aid black hole.
A new consultation also says lawyers should make greater use of videolinks when appearing in courts, prisons and at police stations, while defendants should contribute to fees in criminal cases.
However, critics have warned against encouraging “ambulance-chasing” law firms, and urged any greater use of “no win, no fee” services to be carefully regulated.
A number of the proposals, which will now be part of a consultation, have come out of the on-going Making Justice Work programme, which the Scottish Government says will be “the most radical reforms of courts and tribunals in at least a century”.
However, ministers have been forced to act now by the twin financial pressures of Westminster budget cuts and the Supreme Court’s Cadder ruling that demands suspects should have access to legal advice before being questioned by police, which has led to an increase in legal bills.
The Scottish Government faces a £2.6m legal aid shortfall next year, £7.3m in 2013-14, and £13.2m the year after that – despite already reducing lawyers’ fees and travelling expenses.
Students will give advice in civil cases – rather than criminal ones – through bodies such as the already established University of Strathclyde Law Clinic, which the Scottish Government wants to see more widely used.
They will work for free, but not necessarily as an alternative to legal aid, which will fund work by qualified lawyers.
In their efforts to ease pressure on the legal aid budget, ministers are encouraging members of the public to look for other means of funding civil actions. In the report, A Sustainable Future for Legal Aid, officials wrote: “We also propose to move closer to a system in which legal aid is seen as ‘funder of last resort’.
“In many instances there are alternative sources of funding to legal aid that could have been used – including insurance and ‘no win, no fee’ arrangements.” However, greater, reliance on “no win, no fee” companies has received a mixed response.
John Lamont, the Scottish Conservative justice spokesman, said: “[Under ‘no win, no fee’] those cases with little probability of success would be dropped at an early stage and would also not be funded by the taxpayer. This needs to be considered by the Scottish Government, because the situation is in danger of spiralling out of all control.
“However, the government must also be conscious of the danger of pushing people towards ‘no win, no fee’ claims, which could easily encourage so-called ambulance-chasing.”
Gemma Crompton, legal expert at Consumer Focus Scotland, added: “The use of no-win, no fee arrangements has the potential to increase some people’s access to justice where they cannot obtain funding elsewhere. However, they won’t always be available or be appropriate.
“We look forward to hearing more about these proposals and specifically, whether this points to a need for more regulation of claims management companies, as a way to offer greater protection to consumers.”
The Scottish Government also proposes that defendants in criminal cases who qualify for legal aid because their disposable income is less than £25,000-a-year, should still pay a contribution to costs, depending on their means. That would put them on an even footing with people using legal aid to fund civil actions.
A Scottish Government report in March highlighted this anomaly: “This can lead to a situation in which a person who is the subject of physical abuse may apply for civil legal aid to pursue an interdict, and may have to pay a financial contribution.
“But the individual who is charged with assault and pleads not guilty can apply for summary criminal legal aid and, if they qualify, will not have to pay a contribution.”
However, Citizens Advice Scotland (CAS) warned against action that harms access to justice, such as deterring people by making them worry about the financial costs.
A CAS spokesman said: “The basic principle of the legal aid system must be that people should have access to justice, regardless of their status, background or income.
“We would be concerned about any changes that undermined that principle – particularly when so many people are struggling financially.”
The Scottish Government hopes contributions in criminal cases will yield the greatest saving – the bulk of an annual £5m efficiency. It also hopes to make a £3m annual saving by contracting some services out.
However, Cameron Ritchie, president of the Law Society of Scotland, said: “Much of the Scottish Government’s proposed reforms seem sensible in principle, but as always, the devil will be in the detail..
“The introduction of contracting-in legal aid work in England and Wales created problems of access to justice for those people who needed it most and put at risk the quality of service provided.”
Ministers hopes the proposals will make justice affordable for the Scottish Government and easily available to all.
Justice secretary Kenny MacAskill said: “The Scottish Legal Aid Board and the profession are continuing to work well in the face of some difficult circumstances.
“However, it is important that we do not allow the difficulties presented by the current economic climate to undo the good work that has been done so far.”
A spokeswoman for the Scottish Legal Aid Board added: “We welcome the Scottish Government’s paper and proposals, which will protect access to justice and achieve best value for the taxpayer in difficult financial times.”