OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

President’s
REPORT
Journal
Viewpoint
Ensuring the highest quality of legal aid is a common purpose of the Society, SLAB and Executive,
writes Martin McAllister
I have written before about concerns I have about
access to justice.
Progress in Civil Legal Aid
Access to justice is a prime concern in Civil Legal
Aid. The Society has been working hard to
improve a situation where fees for Civil legallyaided
work have not been increased for ten years.
Such a situation can only lead to potential and real
problems of access to justice for people in
Scotland.
A Civil Legal Aid Fees Working Party headed by
Michael Scanlan reported its findings over a year
ago and presented them to the Scottish
Executive. The Report showed the erosion of the
real value of fees and gave a detailed analysis of
comparative Legal Aid fees in England and Wales.
TheTripartite Group, which was set up by the
Society, the Scottish Executive and SLAB, to
discuss and progress Legal Aid issues, considered
the report and the Executive indicated that
without a fresh approach to Civil Legal Aid
procedures and issues, no money would be
available. The Society was faced with a potentially
worsening situation where any improvements in
the provision of Legal Aid services in Scotland
seemed unlikely in the near
future.
SLAB then indicated it
would consider
supporting proposals
for an increase in fees
if concurrent changes
to procedures were
adopted. The
Martin McAllister
Executive indicated that if proposals were
presented to it which were acceptable to both
the Society and SLAB then it would give
consideration to them. Ian Smart (Convener),
David Lyons and Oliver Adair (Vice-Conveners)
and the members of the Society’s Legal Aid
Committee have worked on this initiative for six
months and the resulting draft proposals will be
considered at the December Council meeting.
The committee’s work has involved considerable
detail and short timescales which have not
allowed for exacting consultation but have put
heavy demands on committee members and I
commend them for their commitment. The
opportunities for discussion and consultation with
the profession have been taken whenever
possible. I have been able to advise solicitors
attending Faculty visits of the general thrust of the
work being undertaken by the Committee and a
significant part of a meeting of Deans of Faculties
in September was devoted to discussing Legal Aid
matters. Ian Smart gave a full report on the work
in progress, which your Dean will no doubt have
reported back to you.
I hope that the Society’s pro-active approach
leads to several improvements and welcome the
fact that SLAB and the Society have worked
together on this very important issue. We have,
after all, a common purpose – ensuring that the
highest possible quality of Legal Aid provision for
clients not only survives but flourishes in the
coming year.
Personal Injuries and Summary Cause Actions
Access to justice for clients must not only be
available, it must be in the right forum. In the last
few weeks Personal Injuries and Summary Cause
actions have come to the fore. In November the
Scottish Parliament’s Justice 2 Committee
considered the Executive’s proposals to change
the privative jurisdiction of the Court of Session.
The Society supports the proposal that personal
injury actions for under £5,000 should be raised
in the Sheriff Court. It comes as a surprise to
many who do not practise in the Courts that a
pursuer can take an action for £3,000 or
£4,000 to the Supreme Court.
The Executive’s proposals went beyond the
level of action raised to include the extension
of summary cause procedure for actions up to
£5,000. When these proposals were first made a
after consultation in 1998, the Society was very
concerned that summary cause fees would be
inadequate for some actions and lead to
restricted access to justice. The then Deputy
Justice Minister gave an undertaking to the
Committee in November that parties should be
able to recover the costs of an action. The
Executive has withdrawn the proposals for more
consultation. If the Summary Cause Rules are
changed and fees reflect the true cost of an action
then it seems reasonable that damages actions
under £5,000 should be dealt with under
Summary Cause procedure.
All change
I wish Lord President Cullen and Lord Justice
Clerk Gill every success in their new roles. I would
also like to congratulate Elish Angiolini, the new
Solicitor General, on her appointment. She is the
first solicitor and former procurator fiscal to be
appointed to the post and is a credit to the
solicitors’ profession.
The announcement that Lord Bonomy is heading
an investigation into the workings of the High Court
is most welcome as is the current atmosphere of
change. I hope that a root and branch review of the
civil justice system long advocated by the Society
proceeds before public confidence in the whole
Scottish Court system is lost.
Encouraging debate
The Society’s schools debating competition,
renamed the Donald Dewar Debating
Competition last year, is proving an even greater
success than the past three tournaments. Open to
every secondary school in Scotland, there have
been more entrants than ever before and the
second round is already under way.The Debating
Competition is a fun thing for schools to be
involved in but it is also an opportunity for the
Society, the law and issues such as Access to
Justice to be recognised and debated amongst
school pupils. Other countries have citizens
classes in schools and the Society is considering
various other initiatives which would increase
young people’s awareness of the law and legal
processes.
I would like to wish readers an enjoyable break
over the festive period and a happy and blessed
Christmas.