Scottish Government

STRATEGIC REVIEW ON THE DELIVERY OF LEGAL AID, ADVICE AND INFORMATION - REPORT TO MINISTERS AND THE SCOTTISH LEGAL AID BOARD

Chapter 4 - Prioritisation And Targeting

4.1 The previous two chapters have set out the purposes of a system of publicly funded legal assistance and the various delivery models methods that might be employed to deliver on those purposes. However, while these discussions are important in reaching a view on the desirable overall shape and scope of the system, further significant questions remain. The reality of public administration is that there are limited rather than limitless funds with which to pursue what are essentially a series of aspirations rather than tangible goals.

4.2 The key issue in a world of limited resources is the relative significance of both the purposes to be pursued and the contributions of each delivery mechanism: should equal resources be allocated to the pursuit of each objective, or to each delivery method designed to achieve it? If the answer to either of these questions is no, one has to find some way of deciding how resources should, in fact, be allocated. Inevitably, this involves a process of prioritisation.

4.3 This is a complex process, with decisions at various levels. As has already been suggested it will at one level involve considerations such as the relative priority accorded to different purposes. However, it is also likely to incorporate factors such as the relative cost of different forms of provision and the availability of non-publicly funded alternatives. Beyond this strategic prioritisation, once it has been agreed that services should be provided in particular ways for particular purposes, there remain questions of how to ensure that the service is targeted at priority needs, groups, classes of case, or individuals.

4.4 Systems for prioritisation and targeting are already used throughout the provision of publicly funded legal advice, in Scotland as much as in other jurisdictions. For example, the merits and means tests set out in regulations and applied in individual cases by the Scottish Legal Aid Board. Other bodies which provide funding for legal advice and information will equally make decisions about targeting and prioritisation, whether or not they do so explicitly and consistently: decisions are made about where to base an advice service, the type of service it will provide, the type of enquiries it will and will not deal with and the subjects it will cover.

4.5 Our aim in this chapter is to make explicit the link between purposes on the one hand and mechanisms for prioritisation on the other. We also explore the kinds of criteria that might be developed to target resources once strategic decisions on service delivery have been made. Given that the discussion on purposes in the previous chapters is split between civil and criminal legal assistance, the same approach is taken here as regards prioritisation.

4A PRIORITISATION OF PFLA ON CIVIL MATTERS

Demand Led vs. Fixed Resource Provision

4.6 When discussing the method used or to be used to prioritise expenditure and activity on publicly funded legal assistance in Scotland, it is important to note that different considerations apply for legal aid (including Advice and Assistance) on the one hand and practically all other publicly funded legal assistance on civil matters. This is because the budget for legal aid under the present Scottish system is 'demand led'. In theory, therefore, expenditure on legal aid will simply expand to meet demand (as long as private practitioners are available to provide services). However, the realities of public finance mean that some control over expenditure must nevertheless be retained, not least because a 'demand led' system such as legal aid still functions within the overall context of limited, and scarce, public funds. For legal aid, there are a number of ways in which control might be retained or exercised, focusing on volume of cases and the cost per case.

4.7 Restrictions on the volume of civil cases that require public funding can be achieved by limiting the scope of legal aid schemes or by limiting eligibility on financial grounds. Both scope and financial eligibility are explored below. Control of cost can be achieved primarily by restricting the amount that will be paid for particular services. In legal aid, this refers most directly to the fees paid to solicitors and counsel.

4.8 Without some kind of restrictions, a demand led budget could very easily spiral out of control. This is not a problem that will affect, for example, local authority funding in the same way. If demand for the services provided by, say, a local advice centre or a council welfare rights team exceeds the capacity of those services, the excess demand will go unmet. The services will not simply expand to cope (as in theory the demand led legal aid services provided by private practitioners do), as they are subject to restricted funds, either by way of grant or council resource constraints. It will then be for the local authority to proactively decide (in the context of all the other demands for its resources), whether additional funds should be provided to allow for the expansion of service required to meet the excess demand, or for an advice centre to seek additional funds from another, or the same, funding body. By contrast to legal aid services, there can be no assumption that the extra demand will be met.

4.9 In the context of legal aid, it is relatively easy to identify many of the demands that are not being met: these will be demands for services that are excluded from the general scope of legal aid, or from people who do not qualify financially, or whose cases do not meet the merits criteria. Whichever of these applies, it is possible to point to a particular rationale for the demand not being met (whether one agrees with the rationale or not). Where demand is unmet because of difficulties with accessing services, perhaps because no solicitors provide a legal aid service in any given area or subject, it is more difficult to identify the specific demands that remain unsatisfied.

4.10 It is similarly difficult to identify areas of unmet demand in fixed resource advice services and further to establish whether or not any particular rationale applies to the lack of provision. If no service exists at all to meet the demand, it may be because the demand has not been anticipated, or because a specific decision has been taken not to fund the relevant service. In the latter case, some sort of rationale may be identifiable: several such criteria for prioritisation are explored below. Where demand simply exceeds supply, it may be impossible to tell who is and, perhaps more importantly but not as easily, who is not accessing a service. Numerous factors such as limited opening hours, location, other physical access restrictions, restricted telephone access etc may also play a part in the ability or inability of individuals to access services. It seems unlikely however that this results in a pattern of access and exclusion that would reflect any rational assessment of priorities or need.

Possible criteria for prioritisation

4.11 There are many different ways in which the provision of publicly funded legal assistance can be, and is at present, prioritised. These criteria for prioritisation can be grouped under six headings:

• International obligations
• The person
• Process/procedure
• Reasonableness
• Impact
• Needs assessment

Criteria based on international obligations

4.12 It could be argued that the state's primary priority in providing publicly funded legal assistance is to fulfil its international obligations. However, there is no express requirement in the European Convention on Human Rights that legal aid must be provided in civil cases. Nevertheless, the European Court of Human Rights in the case of Airey v. Ireland (1979) ¹ found that Article 6 (1):

"may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case".

4.13 However, the Court also recognised that legal aid was not the only means by which states could meet this responsibility. In particular, the Court noted that simplification of procedures could make access to the courts effective. There is, therefore, considerable scope for states to determine for themselves the most appropriate means by which to promote effective access. Nevertheless, the observations of the Court suggest a number of ways in which provision may be prioritised. These are dealt with below. It should be noted, however, that the Airey judgement relates to court proceedings and is, therefore, of limited help in developing prioritisation mechanisms for other aspects of PFLA.

Criteria based on the person

• Financial Eligibility
• Residence
• Access to other means of assistance

4.14 Financial eligibility is perhaps the most readily identifiable criterion related to the individual seeking publicly funded legal assistance. Means tests are applied to virtually all forms of legal aid in Scotland at present. The use of financial eligibility as a prioritisation mechanism stems from the original proposition that legal aid was for those who did not have the means to pay for a lawyer themselves: it is the 'means test' that distinguishes those with means from those without.

4.15 The tests for civil legal aid and Advice and Assistance are set out in the legal aid legislation. The test for civil legal aid is complex. It requires a very full statement of income and outgoings and, while the limits are fixed and there are specified allowances for dependants, the Board retains a degree of discretion with regard to the treatment of other outgoings. By contrast, the test for Advice and Assistance is relatively simple, with a far narrower range of defined allowances.

4.16 The question of whether or not the current financial eligibility criteria successfully focus public funding on those who cannot afford to meet their own costs is open to debate: this notion of 'ability to pay' must be seen in the context of the cost of privately financing the action for which public funding is sought. Certainly, many actions for which legal aid is sought are likely to be beyond the means of many of those deemed able to pay. We return to this issue below.

4.17 Residence is not a criterion used in determining access to any form of legal aid in Scotland. However, it is sometimes used in relation to services provided or funded by local authorities for example. In such cases, only residents of a local authority area will be able to access the relevant service. Residence has also been a key determinant of eligibility for services funded through Social Inclusion Partnerships and the Urban Aid programme before them. As these programmes are targeted on areas of particular need, the services funded through them have been restricted to those residing in the affected areas.

4.18 Access to other means of assistance is a criterion that applies in the context of legal aid services, where assistance from legal aid is for those who do not have access to other means of assistance. Where, for example, a person is a member of a trade union that funds certain legal cases on members' behalf, or has legal expenses insurance, these facilities should be relied upon before any call is made on the public purse.

Criteria based on process/procedure

4.19 In the Airey case, the court noted that some countries (in some circumstances) may prescribe legal representation. Such compulsory representation forms a criterion for prioritising public funds. In general terms, in Scotland compulsory representation does not exist. An applicant is free to either conduct their case themselves or be represented. However, other than in the most straightforward court procedures (e.g. small claims actions), only a lawyer can act as a representative in the courts, while other proceedings (e.g. tribunals) may also be conducted by non-lawyer representatives

4.20 The complexity of the procedure can be one of the considerations in determining both the scope of civil legal assistance and whether public funding should be made available in individual cases. For example, legal aid is not available for small claims or most tribunals, at least in part on the basis that these proceedings are explicitly designed to be accessible to the lay person, without the need for professional representation.

4.21 However, as the law in many areas covered by tribunals in particular has become increasingly complex, the assumption that representation was not necessary and therefore should not be supported through public funds has been increasingly under challenge. Many local authorities have considered the need for representation at, for example, social security tribunals to be such that they have either funded or directly provided assistance, either through independent advice centres, including law centres, or through in-house welfare rights teams.

4.22 In recent years, the blanket exclusion of tribunals from legal aid coverage has also been chipped away. The incorporation of ECHR into domestic law led to a review of the availability of representation, the most significant result of which was the partial inclusion of employment tribunals in the ABWOR scheme. The test for ABWOR in such cases explicitly refers to complexity, not of the procedure in general but of the particular case.

4.23 There are justiciable problems for which the only remedy available involves a court process. The nature of the court process is such that many, if not most, individuals, although entitled to act for and represent themselves, would need legal assistance. Where the remedy requires a court process this may therefore form a basis for prioritising public funding. The most striking example of these is divorce. In Scotland, divorce may only by granted by a Sheriff Court or the Court of Session. Even in its most simplified form this is a process requiring application to a court and no other alternative remedy is available. This may explain why a large percentage of the spending on civil legal aid in Scotland is related to family law.

Criteria based on reasonableness

• Prospect of success
• Prospect of recovery
• Wider public interest

4.24 Various approaches to merits testing are currently used by different funding bodies who may provide assistance for individual cases, such as the Scottish Legal Aid Board but also organisations such as the Equal Opportunities Commission, the Commission for Racial Equality, and the Disability Rights Commission. A commonly expressed form of such merits testing is whether it would be 'reasonable' to support a particular case or class of case. Different funding bodies may focus on different factors under the overall umbrella of reasonableness, which largely stem from their specific objectives.

4.25 A key aspect of reasonableness is the prospect of success which may be subject to differences in application by funding bodies. For some this may not actually be of primary importance (clarification of the issue at stake, rather than the outcome for the client, being most important). However, in the context of funding by the Scottish Legal Aid Board, it is a very significant factor.

4.26 SLAB's approach is that even if the sum sought hugely outweighed the likely cost of the case it would still not be justifiable to make public funds available if the case had little or no chance of succeeding. At a very basic level, this is incorporated in the test of probabilis causa² for legal aid. However, even if a case is stateable, there may be insufficient evidence in support of the applicant, or the legal argument may be so tenuous as to be doomed to failure.

4.27 In tandem with its assessment of the prospects of success SLAB examines a range of other factors when assessing whether it would be reasonable to make public funding available. Amongst those factors two of the most important are cost benefit and the prospect of recovery. Cost benefit assessment involves the weighing up of the proportionality of the likely cost of the case as against the expected benefit of taking the action. Thus, it would in most cases be unreasonable to launch an action for damages that was likely to cost 50,000 if the sum sought was, say, 2,000.

4.28 The prospects of recovery factor relates to the opponent's ability to pay. Even in a strong case, it may be unreasonable to provide public funding if the opponent is deemed unlikely to be able to pay any damages awarded or meet the expenses of the publicly-funded party's costs.

4.29 A final factor common to a number of funding bodies may be a desire to support cases whose outcomes are of wider significance beyond the individual whose case it is. A wider public interest may be served where such a case is likely to establish an important precedent that would affect a wider group. This may either be so where there are other, already existing similar cases which may not need to be heard and could be settled once this case is decided, or might be the case where the outcome would have the effect of clarifying the law for people who may at a later point face a similar situation.

4.30 In the legal aid context, the wider public interest criterion can be seen to apply in two subtly different ways. First, where a case would have a significant wider interest, lower thresholds may be applied in relation to the other elements of the reasonableness test set out above. In some cases this might mean that it is reasonable to grant legal aid even where the cost to the taxpayer is likely to outweigh the benefit to the individual applicant.

4.31 This factor might also come into play in relation to what are sometimes called 'group actions', although the use of this term often causes confusion. In one sense, it can refer to actions taken by and on behalf of a group in its own right. This is not the sense in which we are using the term here: in this context we are concerned with the provision of advice to individuals. In its other sense, 'group action' is used to describe a number of applicants, each individually seeking legal aid in relation to cases that are (directly or indirectly) linked to each other. A common example might be a group of bus passengers, each seeking damages from the bus company for injuries sustained in a crash.

4.32 Where a large number of potential litigants in such a situation apply for legal aid, it might not be reasonable to allow all cases to proceed separately, even though the statutory tests may be satisfied in each individual case. Instead, it may be considered more reasonable (and appropriate) for the common issues, for example liability, to be determined by the court considering a single or small number of (test) case(s). Thus instead of a commitment to meet the costs of a whole series of cases, the expense of fees for solicitors, counsel and also perhaps several costly experts can be contained in a single case. This investment in one case may then result in either settlements for the other affected parties without the need for further expensive litigation or, if the initial case is unsuccessful, actions being dropped at no further cost to the public purse.

4.33 While much of the foregoing description relates most clearly to the determination of applications for legal aid, at least some of these considerations are likely to apply in deciding whether to take individual cases, even where funding is not provided on a case by case level. For example, in advising a client whether a case is worth pursuing, many publicly funded advice agencies will weigh up prospects of success and recovery, the wider public interest and the cost to the client - in terms of time and stress, if not financial commitment (although the client's own liability for expenses if unsuccessful will also be a factor). Although the cost/benefit analysis is less direct in this setting, most organisations function in a world of limited resources. In this context, they are unlikely to be willing to pursue hopeless actions at the expense of others that appear more likely to succeed.

Criteria based on impact

4.34 More commonly expressed in relation to criminal legal aid, considerations as to the seriousness of the consequences of the case may also influence decisions as to whether public funds should be made available. Some civil cases clearly affect basic rights and freedoms conferred by the state. Issues of livelihood will feature particularly in employment, debt and welfare benefit cases. Each of these could have a substantial impact on the individual's resources and, by extension, quality of life. Similarly, where a person is defending an action for rent arrears, they are in clear risk of losing their home. Where someone is seeking asylum, the consequences of being unsuccessful could be very serious indeed. The same might be true of those seeking legal remedies to protect them from violence from partners or others.

Criteria based on needs assessment

• Geographical areas
• Specific subjects

4.35 Needs assessment in one form or another is implicit in funding decisions for much public sector and voluntary sector provision. It will in some instances incorporate considerations of impact, as outlined above, to distinguish matters on which assistance might be desirable from those on which it might be needed. To the extent that it has played a part both in the development and application of the merits tests for legal aid and in setting the scope of the legal aid schemes themselves, needs assessment can also be seen to underlie legal aid provision.

4.36 Needs assessment can also be used to influence patterns of provision as between geographical areas. This relative assessment of need may result in services being targeted on 'deprived' areas. Thus some areas are designated as social inclusion areas, or previously areas of priority treatment, based on analysis of socio-economic and demographic data. The use of specific data is now being developed to enable a relative assessment of legal advice need between geographic areas. However, funding decisions on voluntary or public sector advice services have for many years been based at least in part on a more general assessment of levels of need in the area to be covered by the proposed service. Thus locally-focused advice services tend to be located in deprived rather than affluent areas. To the extent that legal need relates to deprivation, this can be said to target resources on the areas of greatest likely need.

4.37 Similar processes may be followed in determining the need for advice services on specific subjects. Thus a local authority or other funding body may decide to fund an advice centre focusing on housing rather than, say, employment, on the basis of some (formal or informal) assessment of the levels of housing advice need in an area as compared to the need for employment advice.

4.38 Advice services may also be directed towards meeting the needs of specific client groups. This might find expression, for example, in the establishment of women's rights projects, services focusing on the specific needs of the black and ethnic minority community or advice sessions on legal problems encountered disproportionately by people with a disability.

4.39 A further variation on this theme relates to the development of specific forms of intervention designed to meet particular needs. For example, a telephone helpline might be funded to meet the particular needs of a rural area, in which distances might make it difficult for people to attend an advice service office. Similarly, outreach sessions or home visits might be organised to deliver services to the less mobile in a way that meets their needs.

4.40 While much of the foregoing discussion focuses on the funding decision-making process, decisions about prioritisation on a needs basis are taken by most advice centres as part of their general management activity. Thus a law centre may decide to offer an outreach service, or run any of the specific needs-focused projects used as examples above, while a Citizens Advice Bureaux may decide to develop a debt advice service. These decisions may come from the management committee, from wider community links and feedback, or from evidence gathered by the service itself about levels of need for different kinds of advice. Thus needs assessment is an ongoing, possibly informal, activity for service-providers as well as for funding bodies and policy-makers.

4.41 These types of needs assessment based prioritisation are less in evidence in the legal aid schemes. As discussed above, the merits tests for civil legal aid do prioritise between cases in a number of ways. However, they do not involve any consideration of the seriousness of the potential consequences of a case for the individual applicant. Nor can particular classes of case, or cases affecting particular groups, be prioritised by applying different merits tests, or lower thresholds for factors such as prospects of success, prospects of recovery, or balance of costs and likely benefits. The only exception to this relates to the 'wider public interest' factor described above.

4.42 However, some form of priority can be seen to be given to certain classes of case, or groups of applicants, by virtue of their being dealt with under ABWOR, with different tests to those for civil legal aid. For example, those seeking ABWOR for asylum cases in front of the Immigration Appeals Tribunal are subject to a means test, but no merits test at all, while the ABWOR means test is not applied for actions under Part V of the Mental Health (Scotland) Act 1984.

4.43 A further variation applies to employment cases. We have already noted the different merits tests for ABWOR in such cases. However, it should also be noted that employment cases are 'prioritised' in terms of the treatment of property recovered and preserved: any award made by the tribunal or in settlement of a claim is exempted from 'clawback' ³. This places the assisted person in such cases in a considerably better position than the person who recovers property in, for example, a personal injury case.

The relationship between purpose and prioritisation

4.44 The criteria explored above focus primarily on the targeting of resources to meet priority needs, whether this relates to particular areas of law, client groups or individual cases. However, there are also various ways in which funding bodies can encourage certain behaviours or approaches to the resolution of problems. In this way, funding bodies can prioritise between the achievement of different purposes.

Social Inclusion

4.45 The promotion of social inclusion is clearly related to the needs assessment approach outlined above: the targeting of services on the kinds of problems often associated with social exclusion, or population groups at risk of social exclusion, will often be explicitly aimed at the achievement of this purpose.

Effective access

4.46 The funding of services that provide representation as well as Advice and Assistance is equally clearly aimed specifically at the promotion of effective access to formal mechanisms of dispute resolution.

Early resolution of justiciable problems

4.47 This can also be promoted by prioritisation in several ways. Some of these are based on making it as easy as possible for those who wish to access early advice to do so. This might include for example outreach services, or the placement of advisers in non-advice settings, such as health facilities. The promotion of early resolution might also suggest the use of resources to raise awareness of rights or the availability of advice services, or both. Another way of encouraging early resolution is to provide direct incentives, or disincentives, for formal dispute resolution. For example, the relatively favourable arrangements for 'clawback' under Advice and Assistance may provide a considerable incentive to settle rather than litigate, particularly in family action as the value of a home recovered or preserved under Advice and Assistance will not be used to meet the cost of the case, unlike under civil legal aid.

4.48 The use of performance measures as part of funding arrangements for advice services can also encourage certain behaviours on the part of the service provider, thereby offering a further tool to deliver certain purposes. Similarly, remuneration structures may encourage approaches to casework that are in line with strategic objectives. For example, it has been suggested to us that paying more for court work than for negotiation leading to settlement, may actually discourage the early resolution of problems.

Overall conclusions on prioritisation in PFLA on civil matters

4.49 We have shown that different forms of prioritisation are applied by different funding bodies in relation to different forms of PFLA, and that each of the methods of prioritisation can focus services in a different way. We have also shown that there are, and should remain, various purposes for PFLA. The application of different forms of prioritisation is both inevitable and appropriate.

4.50 It would not in our view be either necessary or desirable for all publicly funded legal assistance to be subject to the same methods of prioritisation. Given that we do not recommend at paragraph 5.54 that all advice provision be brought under central control, it follows that we do not propose that the same forms of prioritisation be used for all PFLA. However, we do recommend that all decision-making on priorities for funding should be as objective, transparent and robust as possible.

4.51 Further, we think that there are strong grounds for applying particular forms of prioritisation where services are funded on a case-by-case, demand-led basis i.e. through the legal aid system. This is to avoid expenditure being completely open-ended, while ensuring that resources are used to meet established priorities. While the latter consideration should also apply to 'fixed-resource' services, such as those provided through a grant-funded advice centre or a local authority department, the nature of these funding mechanisms means that levels of expenditure are far more firmly within the control of the funding body.

4.52 Our conclusions and recommendations on prioritisation mechanisms are discussed in more detail below, separately for 'demand -led' and 'fixed resource' services.

Prioritisation of demand-led PFLA on civil matters

4.53 As detailed above, there are a number of ways in which, within a demand-led system, resources are targeted on priority needs. The main mechanisms for this at present in Scotland are:

• Financial eligibility
• Scope - the range of proceedings for which assistance is available
• Merits

4.54 We will also consider the introduction of additional means by which to prioritise. Firstly the prioritisation of classes of case or groups of applicants and secondly, we consider the introduction of a prioritisation 'code'.

Financial Eligibility

4.55 We believe that financial eligibility is a particularly relevant primary method of prioritisation in demand led provision. Accordingly, we recommend that most legal aid services should remain subject to financial eligibility restrictions. This ensures that those receiving this type of service (as presently defined, the assistance of a solicitor or counsel) are those who most need (financial) help to access it. It follows that we think that those who are able to pay for these services should be expected to do so and we support the principle of the individual making a financial contribution to the cost of their case where they are able to do so.

4.56 We also recommend that, in general, financial eligibility arrangements should be consistent across different types of legal aid where essentially similar services are being provided. It is inconsistent with the principle of ability to pay for significantly different eligibility arrangements to apply (as is currently the case) simply because some disputes require to be resolved in court, as opposed to a tribunal, or through sustained negotiation leading to settlement.

4.57 This does not mean, however, that exactly the same test need be applied to all forms of assistance. For example, it may be disproportionate to apply a thorough and complex means test to determine eligibility for a limited amount of assistance. Thus we believe that the general principle of ability to pay may in some circumstances need to be balanced with considerations of practicability.

4.58 In addition, we would wish to minimise the degree to which the eligibility principle might be seen to run counter to the underlying purposes of PFLA. This might be a particular consideration in relation to the desire to promote early problem resolution. Thus it might be justifiable to have a less restrictive test for initial diagnostic advice, to ensure that those in need are not discouraged from seeking advice, either because they fear the cost involved or assume they will not be eligible for publicly funded services.

4.59 We make detailed recommendations on financial eligibility for civil legal assistance in paragraphs 5.141 to 5.147.

Scope

4.60 In Scotland, Advice and Assistance can be sought in relation to any matter of Scots law, while ABWOR and civil legal aid are only available in relation to certain proceedings. We do not believe that the scope of Advice and Assistance should be restricted to certain types of problem or subjects, as to do so would endanger the system's ability to deliver on the purposes we set out for PFLA. However, we do think that other reforms are necessary to ensure value for money in Advice and Assistance. These are discussed further in paragraphs 5.93 to 5.109.

4.61 We think it appropriate that restrictions on the proceedings for which publicly funded representation is available remain. Based on the discussions we have had and the evidence we have reviewed, we do not believe that representation, whether by a lawyer or some other representative, is automatically and always required wherever an individual is involved in formal dispute resolution proceedings, whether the 'other side' is legally represented or not.

4.62 However, we are not able at this stage to set to set out in detail which proceedings should or should not attract publicly-funded representation. Instead, we recommend that a clear rationale for any restrictions should be established. This should be developed via a detailed, evidence-based analysis of the need for representation in any given proceedings. Such an analysis would include an exploration of the level of legal formality built into the procedure and any specific efforts made to make the procedure accessible to non-lawyers and those representing themselves.

4.63 If it is determined on the basis of this kind of examination of a particular form of proceedings that representation may be required in at least some cases to promote effective access i.e. to meet the purpose set out in paragraphs 2.20 to 2.27 of ensuring access to formal mechanisms of dispute resolution, then that form of proceedings should be brought within the general scope of PFLA. Such an extension of scope should however be accompanied by the development of further tests to determine which individual cases should attract public funding and also, in line with the 'most appropriate adviser' principle, which adviser is best placed to act in each case. This principle is explained at paragraph 3.26.

Merits tests

4.64 We believe that some form of merits testing is necessary in a demand-led system to target public funding effectively by distinguishing between cases that should and should not be supported. We discuss in paragraphs 5.194 to 5.196, a number of issues in relation to the application of the current tests and the additional tests that might be required were public funding to be extended to a wider range of proceedings than at present.

4.65 At this point it is also worth repeating that the tests applied are inconsistent as between advice and assistance, various types of ABWOR and civil legal aid. As with financial eligibility, while consistency is generally preferred, variation may be appropriate, based on the different types of assistance sought. As discussed above, to the extent that different tests make certain forms of assistance in relation to some proceedings, or affecting certain client groups, easier to access, variation may also itself reflect some degree of prioritisation. This is considered further below.

Prioritisation of classes of case or groups of applicants

4.66 We have shown that variations in the conditions attached to particular forms of assistance can result in a measure of de facto prioritisation of classes of case or client groups. The rationale for this prioritisation is unclear however and its potential for achieving strategic goals is not fully realised. Thus while our analysis suggests that at least some of these variations favour the early resolution of cases, this is not always the case. Nor is it clear why some types of cases or client groups are prioritised and not others, except by virtue of the proceedings concerned being outwith the scope of civil legal aid.

4.67 It is, in our view, appropriate to prioritise strategically in this way: not all competing demands are considered equal at present and nor need they be. However, as with decisions on scope, we recommend that where some cases, classes of case or client groups are to be prioritised, a clear rationale exists. This rationale should again be evidence-based and made explicit.

A prioritisation 'code'?

4.68 It should be recalled that the Scottish Legal Aid Board must weigh many factors in coming to a decision on individual cases. Thus the Board's approach to the reasonableness test can be seen as another means by which prioritisation takes place. While the Board publishes in full the guidance it uses to reach decisions on reasonableness, this merely represents the Board's interpretation of the test. It is not, therefore, based on system-level strategic priority setting.

4.69 One way of making decisions on prioritisation more explicit - at all levels - would be to include them in the legislation to be applied by the Board, as is the case with the interests of justice test for summary criminal legal aid, or the schedule of proceedings excepted from civil legal aid. However, such provisions, even if in regulations rather than primary legislation, may be inflexible to changing circumstances.

4.70 An alternative would be to draw prioritisation mechanisms together in some form of code, drawn up by the Board under statutory powers and approved by Ministers. This could set out the differing criteria to be applied in different classes of case. Such a code could be updated on a regular basis to ensure that it remained relevant to current and possible changing priorities, giving the flexibility to respond to changing circumstances, such as the creation of new proceedings as a result of legislation.

4.71 However, this flexibility would have to be balanced against considerations of democratic accountability and the risk of changes to the code being politically driven. A codified system relying on Ministerial approval would also be problematic in relation to the fundamental separation of the roles of the Board and Ministers as to decisions to grant legal aid, either in general or in individual cases. One way to avoid this would be to require the code to be approved by Parliament. However, this would appear to offer little advantage over the inflexibility of the current statutory and regulatory framework. This suggests the need for some other form of parliamentary scrutiny, or a reliance on other mechanisms for ensuring accountability. The priorities set out in a code may also become vulnerable to judicial review. While there are certainly some hurdles to be overcome, we recommend that further consideration be given to the creation of a mechanism for establishing a rationale for prioritisation and keeping this under review.

Prioritisation of 'fixed-resource' PFLA on civil matters.

4.72 While financial eligibility is a primary method of prioritisation in demand led PFLA, we do not propose that these tests either should apply or need to be applied to all PFLA. Other primary prioritisation methods may be more relevant to 'fixed-resource' services and may be applied, for example in setting the level of grant for the service, or determining the location and scope of a new service. In such cases, the funding body may consider that no further prioritisation is needed: resources are already being targeted in line with priorities. Thus if a project dealing with, for example, debt and benefit matters was to be established in a deprived area, the funding body may view the combination of priority subject matter and priority target area as sufficient: to impose an additional financial test for individual clients might make little difference to the effective targeting of the service. However, we do think it important that funding bodies actively consider whether non-financial targeting mechanisms are sufficiently effective in seeking to ensure value for money.

4.73 We do not intend to single out any particular criteria for prioritisation as being more appropriate than others. We do however believe that some general principles should be established for funding bodies engaging in this process. In essence, we think that funding for advice services should be based on as transparent and objective an assessment of needs as possible. We recognise that 'need for advice' is difficult to define objectively. However, much work has been done in recent years to develop tools for this purpose.

4.74 This work has shown that needs assessment itself will not produce policy answers: it will not tell a funding body what their priorities should be. It can however provide a solid information base which can inform such decision-making. For example, it can indicate which types of problems are most prevalent in an area; which problems act as triggers for other problems, or occur in clusters; which problems seem to be resolved satisfactorily by individuals and which appear to be left unresolved, and which advice services are best used in relation to which problems.

4.75 In this way, a framework for prioritisation can be developed which moves funding bodies towards a position where decisions can be directly related to evidence of advice need. A transparent prioritisation process, built at least in part on needs assessment, will help focus resources on areas, subject matters or client groups in which the most acute, severe or widespread needs occur. This should lead towards a more rational distribution of resources between competing demands and should help deliver better value for what are inevitably scarce resources. A similar process could also be used to further inform priorities at a national level.

4B PRIORITISATION of PFLA on criminal matters

4.76 By contrast with civil PFLA, there are relatively few mechanisms for prioritising expenditure on criminal legal assistance. This is reflective of the narrower range of problems and proceedings covered by criminal legal assistance.

Criteria for prioritisation

• International obligations
• Financial eligibility
• Interests of justice

International obligations

4.77 As outlined in paragraph 2.33 and unlike for civil matters, the European Convention on Human Rights (ECHR) does deal explicitly with the question of publicly funded legal assistance for criminal proceedings. However, there is still considerable scope for prioritisation within a system that nevertheless meets the requirements of Article 6(3) ECHR. Indeed, as noted above, both financial and 'interests of justice' tests are included in Article 6(3) itself.

Financial eligibility

4.78 Article 6(3) requires that, subject to the interests of justice test, legal aid should be made available if an individual has not 'sufficient means to pay for legal assistance'. It is important to note the underlying assumption in this statement, i.e. that there will be individuals who are able to pay, and that therefore there is no requirement to make publicly funded legal assistance (legal aid, in the Scottish context) available universally.

4.79 There is no guidance in the ECHR or case law on what might constitute 'sufficient means' in this context. The financial tests for Advice and Assistance and ABWOR and the various forms of legal aid are set out in the legal aid legislation. The same simple and clearly defined test is applied for advice and assistance in relation to criminal matters as for civil matters ⁴. By contrast, financial eligibility for criminal legal aid is based upon an assessment of the applicant's ability to meet the cost of the case without 'undue hardship'. No fixed eligibility limits have been prescribed, nor has any guidance been provided by the 1986 Act. It has been left to the Board (for summary and for appeals, where the applicant did not receive criminal legal aid for the proceedings at first instance) and the courts (for solemn and section 23(1)(b)) to determine how to assess 'undue hardship'. This raises a number of issues: we return to these below.

Criteria based on the interests of justice

4.80 The second part of the ECHR test is also part of domestic legislation. However, as with the question of 'insufficient means', what constitutes the 'interests of justice' is rather vague. Case law of the European Court of Human Rights has given examples of situations where a case might meet the test, but these are neither extensive nor exhaustive. However, the very existence of the interests of justice test suggests that not every accused requires to receive legal aid: the underlying assumption is that some applications will be refused, as the test may not be met.

4.81 Unlike ability to pay, the criteria to be weighed by the Board in determining whether access to summary criminal legal aid is in the interests of justice are contained in Regulations. These can be seen to fall under the same broad themes as set out above for civil PFLA, in that they focus on the seriousness of the case (including the potential penalty), the complexity of the law or evidence and the individual's capacity to represent themselves. However, there are further criteria related to whether the applicant is being held in custody, whether it is in the interest of someone else that the accused is legally represented and whether there is a non-frivolous defence to the action.

4.82 Some, but not all of these factors are to be applied by solicitors where ABWOR is to be provided for a guilty plea in summary proceedings. A small number of other criminal matters dealt with under ABWOR are subject to an interest of justice test, although there is no further statutory guidance as to how this test should be applied in these circumstances.

4.83 There is no test at all for solemn criminal legal aid: it appears to be presumed that someone who is being prosecuted under solemn procedure automatically meets the interests of justice test, on the basis that the potential outcome for an applicant in a solemn case may be much more serious than in a summary case (although the legal issues involved may not necessarily be more complex).

4.84 Finally, in most criminal appeal cases, the court determines the question of whether the case is stateable. In these appeals the Board only therefore requires to assess the means. However, a small number of appeal applications remains in which SLAB does apply an interests of justice test. This is a different test to that applied by the court and there is a lack of guidance as to how it is to be applied by the Board.

Conclusions on prioritisation within criminal PFLA

Financial eligibility

4.85 We note above the partial parity between civil and criminal legal aid that currently exists by virtue of SLAB's application of the civil financial eligibility limits in addressing the 'undue hardship' test for summary criminal legal aid. At least in part, this is driven by the notion of equity as between those applying for civil and criminal legal assistance. SLAB, in response to The Scottish Office's 1994 "Criminal Legal Aid Review - Consultation Paper", questioned whether it would be just, or be seen to be just, to make criminal legal aid freely available to accused persons, irrespective of means, when persons of modest income are required to pay significant contributions towards the cost of civil legal aid.

4.86 While means testing remained following that consultation, a view still exists that those facing criminal prosecution are in a different position to those either pursuing or defending their civil legal rights and that, on this basis, there should in fact be no financial restrictions on access to publicly funded criminal legal assistance. As it is the state that decides to bring a criminal prosecution and the criminal accused has no choice other than to defend him/herself or be convicted, it is argued that his/her position should not be prejudiced by considerations of ability to pay. This resonates with the principle of innocence until guilt is proven.

4.87 Nevertheless, it has been accepted since the introduction of criminal legal aid that assistance will not be made available to everyone facing criminal charges. As discussed above, this position is reflected in both the current Scottish legislation and ECHR, both of which suggest tests on ability to pay and as well as on interests of justice. Thus we are not convinced that there is any over-riding issue of principle that precludes the inclusion of financial eligibility criteria in a system of criminal legal assistance.

4.88 As noted above, the existence of some financial limit inevitably means that some criminal accused will fall outwith the scope of public funding. To draw a further comparison with civil cases, the successful self-funded party will usually be able to recover their own costs from their opponent. However, the self-financing accused who defends him/herself successfully is not in this position.

4.89 We think it problematic that, as is currently the case, a 'successful' accused who is not assisted from public funds must meet the costs of his own defence against a prosecution which they had no choice but to be involved in. We have rejected the argument that an accused person should automatically have the cost of their defence met. However, we see a stronger argument where the accused is actually acquitted. There is, therefore, a question as to whether some form of reimbursement of defence costs should be made by the prosecuting state in such cases.

4.90 Thus our position of principle is that ability to pay should remain a factor for criminal legal assistance, as it is for civil legal assistance although questions remain about the way that means testing operates in practice. In line with our conclusions on civil legal assistance, we recommend that consistency between different forms of criminal legal assistance and their respective eligibility criteria be achieved wherever possible with a view to wider considerations of efficiency and practicality. We consider these questions in more detail in Chapter 6.

Interests of justice test

4.91 We believe that some form of interests of justice test is appropriate for criminal legal assistance, and is indeed both implicit in the overall purpose of criminal legal assistance we proposed in Chapter 2, as well as provided for by ECHR. As outlined in paragraphs 4.80 to 4.84 above, there is some inconsistency in the merits tests applied for different forms of criminal legal assistance. Even where an 'interests of justice' test is specified in the legislation or regulations, the factors to be weighed are not always made clear: as we have seen, while appropriate factors are specified for summary criminal legal aid, they are not always set out for some forms of ABWOR or for criminal appeals. This can be seen to lead to confusion and inconsistency in the application of the tests, which may be applied either by SLAB or by the solicitor depending on the circumstances of the case. We recommend that, wherever an interests of justice test is to be applied, the factors to be weighed should be specified and that these should be consistent where this is possible and appropriate.

4.92 However, we do not recommend that an identical test need be applied for all criminal legal assistance, as we recognise that specific procedures or fora may require a different application of the test. For example, the existence of complex evidence required for summary criminal legal aid is irrelevant for ABWOR where a plea of guilty is to be tendered. We do believe, however, that differences in application should be based on a clear rationale and that this should be made explicit. Paragraphs 4.68 to 4.71 discuss, in general terms, how this may be achieved through primary or secondary legislation or through some form of (statutory) code.

Prioritisation of different purposes of criminal legal assistance

4.93 While the above discussion relates to the determination of eligibility for state funded assistance in individual cases, there are further measures that can be used to determine the design of the system of criminal legal assistance to ensure that it meets other priorities. As set out in Chapter 4, one of the key purposes we see for publicly funded criminal legal assistance is the promotion of systemic efficiency within the criminal justice system. Thus it is relevant to consider how the system can be structured to prioritise ways of dealing with cases that contribute towards this purpose.

4.94 Perhaps the most significant way in which the criminal legal assistance system could encourage efficiency in the wider justice system would be to encourage early investigation of cases and early resolution where possible. It has been argued that the current structure of payments for criminal legal assistance discourages the tendering of early guilty pleas. In particular, there has been criticism of the fact that criminal legal aid is only available after a plea of not guilty.

4.95 While some of these criticisms tend to overlook the availability (and fairly extensive use) of ABWOR for initial guilty pleas, it is true that the rate of payment under ABWOR is lower than that available under criminal legal aid. This has led to the suggestion that more cases might conclude at an early stage if remuneration were improved for work involving pleas of guilty ⁵. Thus one research report suggested that:

"in areas of ethical indeterminacy…where the choice is between two courses of action…where ethical practitioners genuinely differ about which is the better…greater weight is placed on the advantages that flow from a course of action that is in one's own interests." ⁶

4.96 However, the same report also argued that legal aid does not operate in a vacuum: decisions as to plea involve a number of considerations for both accused and solicitor. These have also been explored in previous research ⁷, which reached the conclusion that the structure of legal aid was certainly one factor, but that the summary justice system as a whole also plays a significant part in influencing behaviour.

4.97 Thus the research evidence suggests that the apparent prioritisation noted above towards those pleading not guilty might itself run counter to the promotion of systemic efficiency. However, to reprioritise by making changes to publicly funded criminal legal assistance might be ineffective without also making changes to the wider criminal justice system. We discuss this in more detail in Chapter 10 in the specific context of the current proposals and programme for change in the Scottish criminal justice system.

Footnotes

1 (1979) 12 EHRR 305

2 This test requires that a stateable case in law is established.

3 The system whereby an assisted individual may be required to meet all or part of the cost of their case from any property recovered or preserved by them at the conclusion of the case.

4 With a few exceptions: where representation is being provided under ABWOR in relation to initial warrant proceedings in Terrorism Act cases , tariff proceedings relating to prisoners in the High Court, or custody proceedings under the Matrimonial Homes Act or Protection from Abuse Act.

5 Stephen, F.H., 1998, 'Legal Aid Expenditure in Scotland: Growth, Causes and Alternatives'.

6 Goriely, T. et al, 2001, 'The Public Defence Solicitors' Office in Edinburgh: An Independent Evaluation', pp.68-69.

7 Warner, S., 1996, 'Research into Criminal Legal Aid under Summary Proceedings in Scotland: A Review' .