STRATEGIC REVIEW ON THE DELIVERY OF LEGAL AID, ADVICE AND INFORMATION - REPORT TO MINISTERS AND THE SCOTTISH LEGAL AID BOARD
Chapter 9 - Fundamental Administrative Issues
9.1 A number of fundamental questions about the organisational structures in place to deliver the range of purposes set out in Chapter 2 still need to be considered.
9.2 We set out our recommendations on the development of the respective roles of the Scottish Executive, the Scottish Legal Aid Board and local authorities in the planning, funding and delivery of publicly funded legal assistance in paragraphs 5.9 to 5.75. We shall deal with the specific relationships between SLAB and the Executive in Chapter 10 paragraphs 10.18 to 10.27 which explores in detail the way in which the Board and Executive work together, as well as some of the possible implications for this relationship of the implementation of the substantive recommendations in the rest of our report. However, before considering the development of new roles and relationships, we need to consider a number of preliminary questions in respect of the existing arrangements.
9A RESPONSIBILITY FOR THE ADMINISTRATION OF LEGAL AID
9.3 In the course of our Review, it has been necessary for us to consider whether current arrangements for the delivery of Scottish Executive policy on legal aid are appropriate. In the first instance, the question is whether primary responsibility should rest with an Executive Non-Departmental Public Body.
9.4 SLAB operates within the statutory framework of the legal aid legislation and Regulations, but also within the framework of the Management Statement and Financial Memorandum drawn up by the Scottish Executive in consultation with the Board. In addition, the Board must have regard to guidance issued by Ministers. However, this guidance cannot extend to the determination of applications for legal aid or Advice and Assistance. This set of arrangements ensures that, in the exercise of its functions, the Board remains independent of, but accountable to, the Executive.
9.5 It is important that independence is maintained in the determination of individual legal aid applications. This is particularly so given the nature of some of the issues in relation to which legal aid may be sought. For criminal legal aid, it is of course the state which prosecutes: for the state to have a direct role in the determination of the ability of the accused to access assistance to defend him or herself raises a clear risk of conflict of interest. The same can be seen to be true of many civil actions, such as judicial review, which may be challenging the state or other public authorities in some way or another.
9.6 Accountability for public funds is another key determinant of the mechanism for delivery. As noted above, a clear framework of accountability exists for NDPBs. It does not appear to us that the same can be said of any alternative structure, such as delivery through the private sector. We have seen nothing to suggest that there is any appetite for the return of the administration of legal aid to the legal profession itself. Nor do we see that position reflected in other jurisdictions, a recent example being the transfer of responsibility from the profession to a new Legal Services Commission in Northern Ireland. We also believe that accountability would be very difficult to secure through any other form of private sector administration.
9.7 Given these considerations, we do not believe that it would be appropriate for SLAB's functions to be delivered by the Executive (either directly or through an Executive Agency) or the private sector. This echoes the findings of the most recent Policy and Financial Management Review of the Scottish Legal Aid Board, carried out in 1995. It concluded that "the retention of an NDPB offers twin benefits of accountability of public expenditure and sufficient ministerial distance from decision making".
9.8 Having come to this conclusion, it is then necessary to consider whether the Scottish Legal Aid Board has performed its functions sufficiently well to retain its current responsibilities without the need for significant changes in operational or statutory structures.
9.9 SLAB currently works towards the achievement of Key Performance Indicators and its performance has been measured against them over recent years 1. This shows that it has established targets which provide a more rounded assessment of the organisation's performance than measures previously used and that, in the context of raised targets over a number of years, SLAB's performance has improved considerably. We also note in this context the steps taken by the Board to check the accuracy of its own decision-making, a key element of performance. Further evidence of improved performance comes from the results of regular surveys of solicitors.
9.10 More broadly, SLAB has enhanced customer awareness and responsiveness through the further development of its communications with stakeholders. It has achieved this by conducting a series of surveys (of applicants, opponents and solicitors) and by holding public meetings and a regular programme of meetings with local solicitors' groups. In this regard it is also worth noting that we received few if any negative comments about the Board's performance of its functions in the course of our interviews with a very wide range of stakeholders.
9.11 Comparisons of staff turnover figures and staff satisfaction survey results show improvements in many aspects of SLAB's internal operation, while figures on complaints (including to the Scottish Public Services Ombudsman) also show positive development.
9.12 These improvements in the performance of core functions must also be seen in light of the significant reform programme implemented over recent years. This points to SLAB's increasingly proactive approach to the identification of possible improvements in both its own performance and in the legal aid (and wider justice) system.
9.13 Taking all of this information together, it is our view that the Scottish Legal Aid Board has established itself as a credible and effective organisation, which has proved itself able to deliver on its existing functions and which has recently established good working relationships with key stakeholders, including other justice system agencies and Scottish Executive policy teams. We therefore conclude that SLAB's performance justifies its retention of responsibility for the administration of legal aid in Scotland and can also justify serious consideration as to the further development of the Board's role and functions. We return to the latter question in the remainder of this report.
9B A UNIFIED ADMINISTRATION FOR LEGAL AID?
9.14 As has been highlighted throughout this report, there are some considerable differences between civil and criminal legal assistance, both in terms of the stakeholders with which each interacts but also the policy and processes to be delivered by the Scottish Legal Aid Board. This raises a question as to whether the functions of legal aid policy development, administration and funding should be split between civil and criminal, for example by creating a civil and a criminal Board.
9.15 This has been suggested to us for a number of reasons. The different Regulations to be applied mean that there is relatively little cross-over within SLAB in the administration of the two main legal aid schemes. On the other hand, Advice and Assistance, as presently constructed, covers both civil and criminal matters. Our recommendations on Advice and Assistance in Chapters 5 and 6 suggest that this scheme should indeed be split between civil and criminal matters, so that they can be more closely integrated with civil and criminal legal aid respectively. If these recommendations are taken up, there may be even fewer administrative links between civil and criminal legal assistance in future.
9.16 Nevertheless, there remain strong arguments for retaining a single Scottish Legal Aid Board. Firstly, and most importantly, economies of scale are achieved by having a single organisation, particularly in relation to support and infrastructure services such as information systems, communications, human resources, purchasing, corporate accounting, building services, management information etc.
9.17 Secondly, many firms of solicitors provide both a civil and criminal legal aid service, and some clients have both civil and criminal problems. To have separate Boards dealing with the two separate areas would, certainly in the short and medium term, lead to duplication and potential confusion for customers and providers alike.
9.18 Thirdly, many of the key organisations with which the Board interacts are themselves unified. Perhaps most significant in this respect are the Law Society of Scotland, the Faculty of Advocates and the Scottish Court Service. To have separate civil and criminal Boards would complicate these relationships, create additional demands and lead to further duplication of effort.
9.19 Finally, the Government's policy direction on public administration includes a general presumption against the creation of new public bodies. This would be necessary were the current Board's functions to be split. For these reasons, we recommend that, although internally its administrative functions may be increasingly split between civil and criminal legal assistance, a single Scottish Legal Aid Board should continue to be responsible for both.
9C LEGAL AID SPONSORSHIP AND POLICY ROLES WITHIN THE SCOTTISH EXECUTIVE
9.20 Both sponsorship of SLAB and policy development functions relating to legal aid reside in a single policy team in Access to Justice Division, which is part of the Civil and International Group (CIG) within the Scottish Executive Justice Department (SEJD). Chapter 10 contains a detailed discussion at paragraphs 10.14 to 10.17 of the role of the Legal Aid Policy Team and the impact of its multiple functions on its operation.
9.21 Suffice it to say here that we see considerable advantages in a single team retaining responsibility for sponsorship matters and for policy development on both civil and criminal legal aid, as well as co-ordinating policy on other forms of publicly funded legal assistance, as these matters are inextricably linked.
9.22 This raises the question of whether or not this single team should continue to be based in CIG, or whether it should be relocated to Criminal Justice Group, also part of SEJD, as has been suggested in some of our discussions. This question appears particularly relevant given the balance in spending between civil and criminal legal assistance, the latter accounting for over 70% of total net legal aid expenditure.
9.23 That balance might suggest it would make more sense for responsibility for legal aid policy as a whole to rest with Criminal Justice Group which might help to ensure that legal aid policy could be more tightly integrated with wider criminal justice policy. Also that greater operational and strategic co-ordination could be achieved both between legal aid policy and operation, Scottish Executive criminal justice interests and other criminal justice agencies or NDPBs.
9.24 However, we also see a number of strong arguments for responsibility remaining with CIG. Perhaps the strongest of these is the danger that, precisely because it is of lesser significance in financial terms, policy on publicly funded legal advice on civil matters might not be given the priority it requires were it to become the 'junior partner' to publicly funded criminal legal assistance within an overall criminal justice policy context.
9.25 It is also the case that, due to its diverse nature, policy and expenditure on civil PFLA tie in to very a wide range of stakeholders outside the Scottish Executive. Within the Executive, a number of non-SEJD policy interests are active in this area. This diversity is only likely to increase further as policy development on civil PFLA is taken forward. Co-ordination of all of these interests would, we believe, be easier were responsibility for PFLA to reside within CIG rather than Criminal Justice.
9.26 This said, we do believe there is a need for greater specialisation within the Legal Aid Policy Team to ensure adequate co-ordination with other policy areas throughout the Executive, elsewhere in the justice system and externally. This would be particularly relevant if the functions of the Board were to change in light of our other recommendations, in which case direct liaison between the Board itself and the relevant stakeholders would also take on greater significance.
9.27 More specifically, adequate co-ordination of criminal justice interests is vital. We note that significant progress has already been made in this regard. This should be built on through increased liaison, both by the sponsor division and the Board, with criminal justice policy, procedure and research functions within the Executive, as well as the other criminal justice agencies.
9D SEPARATE CIVIL AND CRIMINAL LEGAL AID FUNDS?
9.28 At present, legal aid forms a single vote within the Justice Department budget, covering expenditure on both civil and criminal legal assistance. It cannot accurately be described as a budget as such, as the Legal Aid Fund is not cash-limited. However, estimates of expenditure from the Legal Aid Fund are provided to secure an allocation from within the overall budget.
9.29 It has been argued that separate Funds should be established for civil and criminal legal assistance on the basis that the civil 'budget' is in danger of being 'squeezed out' by rising expenditure on criminal legal assistance. However, the demand-led nature of legal aid means that no such 'squeezing out' can in fact take place: the Executive is committed to meeting calls on the Fund, wherever they come from.
9.30 That said, concern over rising expenditure on criminal legal aid might be seen to have a knock-on effect on civil legal aid as it may reduce the scope for finding (additional) funds for improvements within the system - as opposed to increased commitments under the existing system. In other words, additional expenditure on measures designed to improve access to civil PFLA, it is argued, are unlikely to find favour at a time when overall legal aid expenditure is rising, driven almost entirely by increases on the criminal side.
9.31 There is some merit in this argument: existing commitments are always likely to find favour over new 'nice to have' initiatives when resources are stretched. However, it does not appear to us that separating the budgets would make additional investment in civil legal assistance any more likely. A 'civil legal aid fund' would still be competing for funds with criminal legal aid in the context of the Justice Department budget and that of the Scottish Executive as a whole.
9.32 In addition, while there is no guarantee that any efficiencies that might be identified within criminal legal aid will be redirected towards civil matters. It seems even less likely that civil legal assistance would benefit if the resources freed up were to re-enter the wider justice department pot for reallocation amongst other (often very high profile) competing interests. In other words, the risk we identified above of civil legal assistance being seen as the 'junior partner' of criminal legal aid in policy terms could be of even greater consequence in budgetary terms. Finally, the administration of separate, smaller budgets would bring its own challenges when compared to a single budget. For these reasons, we recommend that legal aid remains a single vote with the Justice Department budget.
Footnotes
1 A description of performance measurement in the Scottish Legal Aid Board can be found in Annex 6