Transcript SCOTTISH LEGAL ACTION GROUP Working to explain and …

SCOTTISH LEGAL
ACTION GROUP
Working to explain and improve the law
and legal services
www.scolag.org
“If you know the law you know what
a powerful tool it is.”
- Kirsteen MacKay, mother of three young
children, two with disabilities, on benefits
and facing divorce who was unable to get
the legal advice she needed and
embarked on her own legal research, and
now in third year of a law degree with
support of bursary from Edinburgh
University.
SCOLAG’s proposals:
• The development of a network of community based law
centres throughout Scotland. These law centres should
work in conjunction with the voluntary sector and other
advice services, and could even share premises and
resources.
• An expansion of public education on legal matters
amongst adults and children. This would involve greater
publication of legal information for use by the general
public and also teaching within the school curriculum
some of the basic concepts relating to the structure of
the civil and criminal justice systems in Scotland,
together with some of the basic concepts relating to legal
rights and responsibilities which underpin our society or
have practical significance for people in their daily lives.
“SCOTLAND'S ACCESS TO JUSTICE
Inquiry into the Scottish Legal Aid system
COMMUNITY LEGAL SERVICES
1 Extension of advice and law centres
• The Group has long supported the extension of community advice and law
centres as cost-efficient and congenial access for the public to legal
assistance. It is a matter of concern that the funding of all such bodies
tends to be precarious.
2 Employment of Legal Aid solicitors in advice and law centres
• Solicitors employed by the Scottish Legal Aid Board and knowledgeable and
experienced in areas in which advice agencies specialise such as
employment, housing and social security should be located in advice
agencies, supported by appropriate secretarial back-up and office
equipment.
3 Supply of Legal Advice & Assistance by unqualified staff
• We believe that non-legally qualified staff can supply Legal Advice and
Assistance funded by the Scottish Legal Aid Board. Sometimes they would
be the persons with most knowledge and experience in certain areas. To
assure quality, however, they must have qualifications in their specialisms
and training in associated areas of the law.
“SCOTLAND'S ACCESS TO JUSTICE
Inquiry into the Scottish Legal Aid system
5 Reference resources
• These should be increasingly placed in public libraries
and in advice agencies, both in printed form and on
computer by means of CD Rom and the Internet.
6 Education
• We favour greater effort in teaching children, along with
modern studies and civic awareness, the rudiments of
law and the legal system.
• A publicly-funded agency could also undertake the
publication of more explanatory leaflets than are
currently available from rights and trading standards
agencies, and could highlight on radio, television and in
the press topical items of importance.”
Paths to Justice Scotland, Professor Hazel Genn &
Professor Alan Paterson, (2001, Hart Publishing)
• “Over a five year period about 26% of the
general population experienced one or
more problems or events for which a legal
problem is available “
• “The results … indicate a widespread
feeling of ignorance about legal rights that
exist across most social groups”
Paths to Justice Scotland, Professor Hazel Genn &
Professor Alan Paterson, (2001, Hart Publishing)
• “The accounts of difficulties in accessing free advice from CABx
and other advice agencies contrasts sharply with the ease with
which advice can be obtained from solicitors if members of the
public in Scotland can afford to pay for such advice and are willing to
do so……. for most of the population there is still a good network [of
solicitors carrying out legal aid work] to act as the basis for a
Scottish community legal service.”
• “CABx were less likely than solicitors or all other advisers to
provide direct assistance such as contacting the other side or
negotiating on the respondent’s behalf. They were also extremely
unlikely to recommend threatening the other side with legal action or
taking legal proceedings. Given the behaviour and intransigence of
some opponents described by respondents in this chapter, it is
unsurprising that by the time members of the public seek help they
feel a need for active assistance and sometimes credible threats to
be made. “
Paths to Justice Scotland, Professor Hazel Genn &
Professor Alan Paterson, (2001, Hart Publishing)
• “The evidence of this study has shown that despite efforts by
members of the public to resolve their justiciable problems by means
of self-help strategies and even after having enlisted the help of
advisers, a high proportion of problems are abandoned without any
resolution.”
• “Greater understanding about the law and greater certainty about
the enforcement of legal rights and obligations in the civil context
might have an impact on the behaviour of those who evade their
responsibilities and obligations when the opportunity exists and
when the likelihood of sanction is remote. The objectives of any
Scottish community legal service are likely to include the provision
of general legal information about the law and legal system and the
availability of legal services, as well as providing advice and
assistance in the resolution of disputes.”
Local Law Centres
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Castlemilk Law & Money Advice Centre
Drumchapel Law & Money Advice Centre
East End Community Law Centre
Ethnic Minorities Law Centre
Govan Law Centre
Legal Services Agency (Glasgow) (recently lost grant of
£43,000 for Refugee Legal Project)
North Ayrshire Law Centre
North Dundee Law Centre
Paisley Law Centre
West Dumbarton Law Centre (CLOSED due to
withdrawal of funding)
Specialist Law Centres or Legal
Services provision (not exhaustive):
• Enable; Scottish Child Law Centre; Shelter
Scottish Housing Law Service; Scottish
Refugee Centre; Equal Opportunities
Commission; Disability Rights
Commission; Save the Children Fund
Travellers Project; Victim Support; LSA
Mental Health Project (Edinburgh); LSA
Homelessness Project (Inverclyde).
LEGAL AID
•
SLAB’s 2003-2004 Annual Review shows
that from 1999-2004 the expenditure on civil
legal assistance (which excluded cases
involving children and contempt of court
cases) was fairly level constant at just
under £40 million. However payment levels
to lawyers increased over that time. The
number of cases where civil legal assistance
was granted has fallen substantially over the
same period, from 188,773 in 1999-2000
down to 148, 962 in the year 2003-2004.
The 2004-2005 Annual Report (published
December 2005) shows that this trend has
continued. The number of grants of civil
legal assistance fell to 139,933, a further
reduction of 7% on the previous year. The
number of grants of civil advice and
assistance fell by 7% to 128,944 (this is 23%
lower than in 1999-2000). The number of
grants of legal aid fell by 11%. The number
of applications of legal aid granted as a
percentage of those made fell from 61% to
67%.
200,000
180,000
160,000
140,000
120,000
100,000
80,000
60,000
40,000
20,000
0
19992000
20032004
20042005
Number of
cases where
awards
granted
Legal Aid: Other Points to Note
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procedural changes in how applications are made, requiring less application forms to
be submitted
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movement from funding of personal injury cases away from legal aid to no-win no-fee
arrangements
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within the same period there was a very large increase in the amount of work done
relating to immigration, asylum and nationality cases (due to the Home Office policy
of dispersal of asylum seekers) - 6,257 grants of advice and assistance in
immigration cases in 2004-2005, an increase of 16% on the previous year – decrease
in non-immigration cases even more significant in light of this
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fall in the numbers of people accessing a solicitor providing legal aid. This is despite
an increase in Part V funding initiatives by SLAB which are designed to increase
access to legal aid to those most in need. The number of solicitors in private practice
doing legal aid work is reducing. One large Edinburgh firm which accounted for
approximately 20% of immigration and judicial review work has recently stopped all
new legal aid work and solicitor who handled these cases was made redundant
Legal Aid Issues
Authorisation of expenditure
Formerly a rule that solicitors could obtain retrospective approval for an increase in authorised
expenditure for the vital work of advising and assisting poor clients should be reinstated.
Presently require to obtain prior authorisation:
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The rule penalises the solicitor who will write a letter or see a client because of the urgency of the
matter, rather than turn the client away for another week while an application is made for increased
expenditure.
It involves the solicitor in the extra work of keeping a note of expenditure to date when there are more
important things to do, helping clients (though admittedly some solicitors have systems for recording time
spent as the matter proceeds).
The solicitor will be unable accurately to predict how the matter will develop and will be tempted to speculate
on what work will require an increase. The introduction of "templates" (whereby there are fixed amounts
authorised for certain kinds of work) has ameliorated the position in many cases, and urgent increases can
be obtained in some cases over the phone, but the need for prior authority is still a problem. Where there is
no "template“ (e.g., education, ASBO’s), and sometimes even where there is, the solicitor will therefore
devote unpaid time, substantial in relation to the fees earned, on thinking through the likely course of a
matter and then framing an application.
Applying retrospectively will enable the speedy preparation of a concise and accurate summary of the work
involved.
If the work justified the increase, and the solicitor was prepared to take a chance that the expenditure might
not be authorised and that he would therefore not be paid, why on a point of principle should the solicitor be
penalised? There can be no moral justification for cutting back on fees of a busy, conscientious solicitor
who is not thinking of fees first, just to save money for the legal aid fund.
Legal Aid Issues
Means testing
Income: The Executive made a major advance in not requiring that most state
benefits be included in means calculations, bringing a greater percentage of the
poorer members of society within the scope of the Civil Legal Advice & Assistance
Scheme.
The income limits for those in employment are nonetheless on the low
side. A couple with a joint disposable income of £86 per week has no contribution to
pay. There is then a scale of contribution from £7 to £117 depending on income. If
you have disposable income of more than £203 per week after tax and allowances for
dependants (including £31.95 for the spouse or partner) Civil Advice and Assistance
is not available.
Capital Here the situation is more unjust, because modest savings are
penalised. If you have capital (excluding your house, its contents and your personal
effects and tools of trade) in excess of £1412 you don't qualify. The figure is
£1727 for a couple. Computations of capital should not include a modest car in rural
areas where it is now so essential a feature of life. Where someone is being sued
for debt, any vehicle, the use of which is reasonably required by the debtor, not
exceeding in value £1,000, is exempt from attachment. If legal advice and
assistance is required, however, the poor punter may have to sell his car to get legal
help!
Legal Aid Issues
Extension of Advice & Assistance
A&A has been extended in recent years to cover a number of
matters which were previously excluded, such as Employment
Tribunals, Mental Health tribunals, etc. The simple procedure for
Assistance By Way Of Representation, in place of the complex
procedures for normal Civil Legal Aid, should be extended to cover
initial sheriff court work such as interim interdict, interim exclusion
orders, contact and residence orders for children, etc. Only where
the dispute is not settled at the interim stage should a full legal aid
certificate be required to take the case forward to the adjustment
stage and beyond. By allowing for the work up to interim orders,
and then the making of such orders final in the absence
of opposition, the use of A&A will cut down on the elaborate
paperwork which stifles legal aid practice.
Legal Aid Issues
Fees
Solicitors who choose to represent the less fortunate members of society should not
be remunerated at less than half the rate of remuneration a private client would pay.
Example of current scales:
Assistance by way of Representation at a Mental Health Tribunal hearing on a proposed
Care & Treatment Order - per hour: Legal Advice & Assistance rate £66.40
Sheriff Court Chapter III (party paying) £125.00. Solicitor's other time (chambers) per
quarter hour LAA £12.75 and Sheriff Court (party paying) £29.55
The latest Cost of Time survey for the Law Society calculates that the cost of a
solicitor varies from £77.02 per hour for a qualified assistant to £120.42 for a partner
earning £55,000 per annum. So a firm will make a loss on any such work.
Many legal firms with able solicitors used to offer legal aid as a matter of course and
would accept instructions on the same "cab rank" principle as the bar has. More and
more firms are giving up this kind of work, which leaves it to be done by less able
solicitors.
What Law Centres Do
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Specialise in social welfare law and related issues – areas of law that tend
to affect the most disadvantaged in our communities – housing , debt,
mental health, employment.
•
Govan Law Centre receives funding to provide advice on education law
throughout Scotland.
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Aim to make the law accessible. They tend to operate from shop front
premises in local neighbourhoods. They promote themselves amongst the
local community and build up a local reputation.
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Provide support to local groups and individuals. This may include legal
advice on setting up a group and ongoing support on local issues. Advice
and support services for other voluntary organisations can include how to
set up a constitution, become a company limited by guarantee, comply with
charity legislation, employment law problems.
What Law Centres Do
• A major issue for voluntary organisations is inability to get advice
when there are issues between that organisation and the local
authority funding it – local authority staff not permitted to advise
organisations.
• Provide information about the law. They publish leaflets on subjects
which are of the greatest interest to their clients. These are
published in different languages to reflect the languages used in the
local community. The leaflets are written in easy to understand
language, explain legal jargon and technical terms where these are
most commonly encountered, and are designed to make the
information as accessible as possible taking into account special
needs.
• Legal Services Agency is the largest single provider of training on
social welfare law topics in Scotland.
What Law Centres Do
• Law Centres have used their legal skills to pioneer new
areas of legal practice and expertise to deal with the
issues most impacting on the lives of the communities
they serve.
• Law Centres work to improve social inclusion and
encourage and support local people to make their voices
heard.
• Law Centres speak on behalf of local communities and
inform both local and central government of the effect
legislation has upon local people.
• Law Centres promote equal opportunities policies.
Consumers’ Association survey of legal services
(June 2000) found that in England:
“In terms of who provided quality advice, local
and specialist community advice, Law Centres
were considered the best.”
Access to Justice and Legal
Education
Causes of action: civil law and social justice [a
research report of a study carried out by the
Legal Services Research Centre (The Stationary
Office, February 2004)]
• Nothing was done to solve one in five civil law
problems.
• In a third of these cases this was attributable to
those involved not understanding their legal
rights or not knowing how to get help.
Legal Education
• People who have an informed understanding of the laws that govern
them are less likely to be in conflict with those laws and the justice
system that upholds them.
• People who come in contact with the system , whether as a potential
litigant, an offender, a victim, a witness or as a potential juror - may
not be aware of their obligations or where to get information about
their situation.
• Information and education are important aspects of crime
prevention. This is supported by research studies.
• Every member in a democratic society has a need and responsibility
to be aware of their rights and responsibilities and of the rights of
other members in that society.
Legal Education
• Knowledge about the law can help people better identify the kind of
legal advice or assistance they may require. Public legal information
is not intended to replace the services of a lawyer where it is
required, but often it is helpful to have information about the law in
question, in addition to seeking advice. It therefore can act as a
back up to those who do make use of available legal or advice
services.
• Public legal education can provide people with the help they need to
help themselves without the need to involve a lawyer.
• Having access to information about the law and how to access legal
and social resources in the community can be especially important
to people who are disadvantaged because of language, physical or
economic well being, discrimination or other reasons. It helps
empower people. This helps individuals and communities become
effective agents for change and helps contribute to a more effective
and inclusive society.
Legal Education
Department of Justice, Canada:
“The main goal of public legal education
and information (PLEI) organizations is to
create an informed citizenry that is
knowledgeable about the law, able to
recognize and exercise their lawful rights,
fulfill their legal obligations, and perform
their duties as participants in a democratic
society.”
Examples of Legal Education in
Practice
• Print and audio-visual materials about specific legal issues, such as
divorce, child support and tenant rights. A good example in Scotland
is the publication of materials under the Vulnerable Witnesses
(Scotland) Act 2004.
• Phone lines staffed by people who provide legal information. These
people would not provide advice on a particular legal problem, but
could provide information in relation to the legal system and could
direct people to places to go to get particular help.
• Taped legal information available by telephone. In Canada there is
a "Dial-a-law" and Téléphone Juridique service.
• Speakers, seminars and workshops on specific legal topics aimed at
the public, offered through adult education courses or as part of a
public legal education and information service.
Examples of Legal Education in
Practice
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School-based law courses - could be fitted into the curriculum as an Intermediate 1 or
Intermediate 2 course offered as an option for fifth (or sixth) year pupils [these
courses are sometimes studied by third/fourth years as well] - but there's also a need
for it to be more generally taught to everyone, possibly as sections within social
education between the ages of 14 - 16.
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Schools take part in national mooting competitions. For several years members of
the Faculty of Advocates have organised MiniTrials for pupils at secondary schools in
Kilmarnock and Edinburgh, where pupils take on the role of lawyers, court staff,
witnesses and jurors. Builds on skills learnt in school to develop, gather, organise and
analyse information and then apply those skills in a novel situation. Also get an
insight into the legal system and how it works. Organised as a direct response to the
finding in the Paths to Justice Scotland research about the widespread lack of
knowledge amongst the public about the civil and criminal justice systems.
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Electronic access to legal information.
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Interactive learning modules.
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Television and radio programmes with strong and accurate legal content.
SCOTTISH LEGAL
ACTION GROUP
Working to explain and improve the law
and legal services
www.scolag.org