Thursday, 25 August 2011

Do the Scots beat the English and Welsh at providing legal aid?

Scottish Legal Aid Board Link to LSC home pageLogo of Community Legal ServiceLogo of Criminal Defence Service

The Scots seem content with retaining the old picnic table brand for legal aid, while the English and Welsh have dropped this and replaced it with three logos!

Over the last few months the government has grown fond of making comparisons with other countries to try and justify its planned legal aid cuts. Comparisons are difficult to make as the British adversarial system is very different to the inquisitorial systems that predominate in the rest of Europe. However, somewhat nearer to home a legal aid system can provide some pointers to where the system in England and Wales might be going wrong. In Scotland, while its legal aid system shares the same origins, it seems to have worked out how to provide a system that costs less, but is more extensive, than the one south of the border.

A big difference between the two systems is that personal injury cases are still covered in Scotland. In England and Wales the Access to Justice Act 1999 ended this and introduced changes to the law on recovery of costs in damages cases. The Scottish legal system does not allow costs for insurance and success fees to be charged to the losing side. There are other differences in the scope of legal aid, for example, representation in employment tribunal cases is covered by legal aid in Scotland.

Colin Lancaster, director of policy and development at the Scottish Legal Aid Board (SLAB) said: 'SLAB and the Scottish government see the use of legal aid in personal injury and other damages-based cases as a worthwhile social investment.' He pointed out that over 80 per cent of the fees paid out in such cases are recovered. This is the same as what used to happen in England and Wales.

By not going for radical change and adopting a more gradual approach to legal aid reform and by having stable management at the top of the SLAB, the Scots seem to have been more successful in delivering their legal aid system than England and Wales. Perhaps the government needs to learn from this rather than rushing to slash entitlement to legal aid as it plans to?

An article on the Scottish legal aid system will appear in the September issue of Legal Action journal.

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