Tag Archives: Civil Legal Aid

#DefendLegalAid

I have spoken a few times before about how important I know Legal Aid is to people. I have no intention, at the moment, to retread that ground.

I have spoken also, about the cuts made to tLegal Aid and how much more difficult it will make Access to Justice for those mos tin need of it.

That’s why today, I’m very proud that the Law Society of Scotland has launched its #DefendLegalAid campaign.

I hope that Lawyers form all across Scotland, and politicians from all parties, can get behind this campaign, work to fix the Legal Aid System in Scotland, and ensure that we protect Access to Justice for those in the country who need it most.

 

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Re-Solving Legal Aid…

…or how I developed a new respect for the Law Society.


Last November the Law Society of Scotland (or ‘LSoS’) released it’s Discussion Paper on the Future of Legal Aid in Scotland, setting out what changes it felt could be made. At the time I, amongst others, came out pretty resolutely against many of the reforms they suggested, since I felt they would damage the ability for the most vulnerable in society to access the legal system. As it happened, I was told by a reliable source that the high heid yins in LSoS’s Legal Aid department actually saw the post and considered it in response to the discussion paper.
Last week (the day before the General Election nonetheless), LSoS released their Final Recommendations based on the responses (and blog posts) they received. I’ve read it and it was a really positive shift from 6 months ago.

Criminal-wise, LSoS propose a system of block fees, to take account of the fact that since Legal Aid was last reformed, we have entered the post-Cadder age, where lawyers available at all hours of the day. With ‘telephone advice’ becoming a separate block, this will help simplify the system. There would then be a clear compartmentalisation of each additional “kind” of work required as is needed. This system has the great advantage of all knowing both the Legal Aid Board and solicitors to know ahead of time, what they can expect, instead of having to get Legal Aid certificates renewed every time. This is very similar to the current system, but tightens it up around the edges and makes it even clearer what can be expected when. Good work all round.

But it’s the massive changes with regards to Civil Legal Aid which have got me excited. My biggest problem with the discussion paper was LSoS suggesting that certain areas of law should be taken out of the scope of Civil legal Aid entirely. Those areas (including breach of contract; debt; employment issues; and housing) were the ones that vulnerable and disadvantaged were most affected by, and so it would be those groups that would feel the brunt of the Legal Aid cuts most keenly. However, I was pleased to see that LSoS have dropped the awful proposals. This genuinely made me smile when I read it, because it means those most in need of access to the justice system can still get their foot in the door.
The idea of Legal Aid Loans  (which will be paid back over a certain length of time based on financial means) is still not sitting 100% with me, but restricting them to the richest qualifiers as a kind of ‘top-up’ should lessen the worst aspects of the system. As long as free support is there for those most in need of it, top-up style loans will have a place in the system going forward.
Finally, it’s great that there’s a commitment to work with the voluntary sector to see how the professional legal sector  can work alongside it. However, and I accept that this is perhaps slightly outwith LSoS’s remit, the funding issues faced by law centres and advice bureau mean that, unless they are explored and resolved in a serious way, no long-term answers will be found. One possible step may be linking law firms and 3rd sector organisations, but this could only really be made viable through alternative business structures, which aren’t coming into Scotland as quickly as was anticipated only a few years ago.

In short, the Final Report is a massive improvement on what LSoS originally put out for discussion, so the Society should be proud. It has really listened to the responses it received – and that gives me great comfort as I enter the profession. The real way to solve this problem, of course, is to increase funding to Legal Aid and treat it as the important issue it is. You can have all the rights in the world, but if you are unable to enforce them in court, they are worthless. The idea that the only people who benefit from Legal Aid are fat-cat lawyers is, unfortunately, still keenly in the zeitgeist, which is a challenge for the profession – but the challenge for everyone is to defend the right a defence.


Given the recent discussion around Human Rights and all that surrounds them, it’s also worth highlighting that the right to proper representation has been accepted as being part of Article 6. So far in that debate, both the Scottish Government  and the Scottish Parliament has stated it will be a fierce defender of Human Rights in Scotland. By ensuring Legal Aid is sustainable and accessible in the long-term (which includes ensuring it has proper funding), they would be able to show that they will be.

Solving Legal Aid…

…or why I don’t know why I chose to study law, but know why I want to be a Lawyer.


I can’t remember why I wanted to study law. I know I’ve wanted to be a lawyer since 10 or 11, but I have never been able to remember that moment when I went, “I, Paul Cruikshank, want to put on a wig and a cape and argue why I’m right”. When I qualify, I’ll be the first lawyer in my extended family, so it wasn’t a case of ‘…my father before me, his father before him…’. It just, happened. My parents don’t remember either. They’ve not been able to point to the terrible playground injustice that ignited the fire in my belly. As unsatisfying a chapter in my memoirs that story will be, it’s the truth.
But I still chose to study law come my Sixth Year at school because law was what I wanted to do…for whatever reason I wanted to do it. I figured that, since there was a reason once upon a time, I would eventually re-discover it, so it’d be fine. But being honest, I don’t think I have. I don’t think I did find the spark that lit the legal flame in the pre-pubescent me in the delict lectures or company law tutorials.

I suppose the reason you start doing something is less important to the reason you keep doing it. At the start of 2nd year. I started volunteering with Drumchapel Citizen’s Advice Bureau, and whatever reason I had for deciding to study law, I had a reason to become a lawyer. For the first time, I experienced first-hand what I was taught in school. I saw people who had nothing and were being asked to live on less.
And then it got worse. The Under-occupancy charge (or the Bedroom Tax) was introduced, meaning people didn’t receive full housing benefit if they had a ‘spare room’ (which wasn’t always ‘spare’). This meant they couldn’t pay their rent since, inevitably, they had no other income, and finding one wasn’t an option. The UK government introduced a manifestly unfair policy and, until very recently, the Scottish Government  – while having the power to mitigate these effects – did nothing. This inaction led to mounting rent arrears and so eviction became a very real threat. This, I knew, was just plain wrong, and I realised that I wanted to work to make the system fair and just. I to use what I knew as a lawyer to help everyone who found themselves in these situations.

The issue is that I can’t do this for free. I need money to live and, most people who have to rely on social security payments to survive are unlikely to be able to afford a lawyer. But that’s why we have Legal Aid; to make sure that everyone has access to the justice system. But, like all government funded projects, Legal Aid is facing severe financial pressures. In 2011, the Scottish Government began a review of Scottish Legal aid and just this month, The Law Society of Scotland (LSoS) released its discussion paper to set out is view on how the system should change. It is deeply concerning.
The LSoS suggested in their report that:

…the following areas being removed from the scope of civil legal assistance:
– Breach of contract
– Debt
– Employment law
– Financial only divorce
– Housing/heritable property
– Personal injury (with the exception of medical negligence)

These changes would create major obstacles to the most vulnerable in our society accessing the court system and making their case effectively. Consider the case I set out above. If Civil Legal Aid wasn’t available to those facing homelessness, who would be there to make their case? What about the expectant single-mother who’s hours have been cut at just the right time so her employer doesn’t have to pay her full Statutory Maternity Pay? Who represents her at the tribunal when she can’t afford to pay, and her knowledge of the law isn’t enough for her to go on? Both these cases (taken form my own experiences) would be removed from civil Legal Aid under the LSoS proposals.

According to the LSoS, these areas can be:

easily and properly be provided either by the advice sector or on a private client basis through a range of funding options including speculative fee agreements, loans for legal services, and payment plans involving deferral or instalments.

This suggestion, while theoretically viable, ignore many practical issues that make these suggestions unworkable. Foremost among these is the fact that the advice sector is already underfunded and overworked as it is. Attempting to increase the scale of its representation work could break it. The other funding options also overlook the reality that Law Centres, which provide legal assistance to the most vulnerable, are already working on a shoestring budget, and speculative fee agreements (No win, No fee) could decimate the already empty landscape.
My fear is that the LSoS proposals would make the system of access to the Civil Justice System fundamentally unfair in two ways. Directly, it would remove support to the most vulnerable, who overwhelmingly use the justice system to prevent their homelessness, protect their rights as workers and seek a fair deal with their creditors. This means that these people will be failed by our justice system and will be denied a rightfully deserved day in court. Indirectly, this proposed system would stretch already thinly-spread resources, meaning the gaping hole left by the “Legal Aid Gap” cannot be filled. Even those that try and make it smaller will struggle, because the alternative funding options just can’t work in the’free’ Legal Advice sector without draining already scarce resources.

If LSoS’s proposed Civil Legal Aid structure were adopted, making sure the most-disadvantaged in society could access justice would be harder than ever (and it’s not a walk in the park just now). Last week, the Scottish Association of Law Centres, led by Govan Law Centre’s Mike Dailly,  published their response to the Discussion Paper. My concerns about the proposed system are their concerns. I’m not a solicitor yet, but I still strongly support the position the SALC takes in its letter – because we must ensure their is fair access to justice for all.

I know why I want to become a lawyer – to help those that need it and to fight for Social Justice through the legal profession. The only way to do that is to make sure that its not just those who can afford a lawyer can enforce their rights. For them, justice in enforcement of a debt. For the least well off, it may well be a matter of staving off homelessness. Unless the future of Civil Legal Aid can be protected, the Civil Justice System in Scotland will become an unfair, unjust place for those without money – and it is the job of the profession, future lawyers (like me), and LSoS itself to make sure that doesn’t happen.