Facing hard choices

Baroness Scotland has some tough decisions to make in her wide brief, which covers legal aid and civil justice.

She gives her first major interview since joining the Lord Chancellor's Department to Neil Rose

Baroness Patricia Scotland QC is the acceptable face of the Lord Chancellor.

Which is just as well, some might say.

While Lord Irvine rarely descends from his eyrie, it is left to his parliamentary secretary to give solicitors the hard facts about legal aid pay.

As the only one of the three junior Lord Chancellor's Department (LCD) ministers to be legally qualified, it is hardly a surprise that Baroness Scotland has the lengthiest and toughest set of briefs, with legal aid, civil justice and the all-embracing domestic legal services being three of them.

Remarkably though, since she joined the LCD after the 2001 election - having previously spent two years at the Foreign Office - nobody has got around to interviewing her across these many subjects.

But this does not mean that she has not been putting herself about.

Observers consider her a personable and hard-working minister, and few people have anything bad to say about her.

Yet the message for legal aid practitioners is not encouraging.

Her core argument is that the LCD and the Legal Services Commission (LSC) do the best they can with what they have, but that money is tight.

Legal aid solicitors are paid to the maximum that the public can afford.

If you have a problem, take it up with Gordon Brown.

'The hard fact is that if most of us were asked to choose, would we put money into children, into education, into roads, into health or into lawyers?' she asks.

'That is the reality of the situation.'

Baroness Scotland says she and Lord Irvine are 'totally committed to making sure we have a robust system and that it's properly supported', and argues that currently the situation is fine.

Many might disagree; indeed, LSC chief executive Steve Orchard took the unprecedented step earlier this year of publicly expressing his concern about the effect the latest pay freeze could have.

She responds: 'Of course we're concerned and that's why the LCD has kept this issue under constant review.

Concerned in terms of making sure the system continues to work in the way that we would wish and I think we have made funding available to the extent that we have money to give out.'

And here is one advantage of having a lawyer put the case.

Baroness Scotland says there is more to the job than money - although she recognises the need for a 'living wage' - and can point to her own experience in practice (she was called to the bar in 1977 and became a QC in 1991).

'We all have choices to make as to what sort of work we will do and want to do,' she says.

'I could have done tax and earned a lot of money doing it.

I was quite good at tax.

I didn't want to do it.

'I wanted to do family, mental incapacity, and child abduction work because that's what I felt my contribution should be.'

Speaking ahead of this year's spending round, she says that rather than base the LCD's bid to the Treasury on anecdotal evidence, the department has collated empirical information about the situation in the trenches with the help of the Law Society and the Bar Council.

'The Lord Chancellor is very robust,' she says.

'He is seized of this issue.

He is a very fine advocate and I'm sure he will use everything available to him to make sure a proper understanding of the difficulties are appreciated.

But it is not within our gift.'

The minister maintains that the profession could do its bit too.

'In the past, lawyers have been insufficiently vocal about the contribution we make generally to social exclusion.'

She says research shows that if individuals get advice early, you can 'snuff out' the downward spiral that often happens with disadvantaged people, who lose their jobs and then their families and so on.

The point the LCD was trying to make is that 'we're not just saying "Give us money because we're lawyers", we're saying we actually do a vital job to assist in delivering social inclusion as opposed to social exclusion'.

One area where there is a definite difference of opinion is the supposed recruitment crisis facing many legal aid firms.

Recent surveys by both the Gazette and the Law Society, together with much anecdotal evidence, point to a major problem.

However, the LCD and LSC do not officially accept this.

'At the moment, there is satisfactory coverage all over the country,' Baroness Scotland insists, a statement she says is backed up by data from the LSC.

Yet the recent LSC proposals to fund 100 law students and 100 trainee solicitors indicates a recognition that there is, at least, a problem brewing.

'We are obviously looking at the long-term development.

We're looking at how the profession will grow and we want to take the steps necessary to make sure that is supported,' she says.

Another area of some dispute is Community Legal Service Partnerships (CLSPs), which many - though not all - solicitors see as little more than talking shops.

LCD-commissioned research earlier this year warned that the involvement of solicitors in some CLSPs was 'low and diminishing'.

Not according to the minister, however.

She says she has visited many CLSPs around the country, and 'the local solicitors and barristers have been fully engaged'.

She argues that CLSPs have played a major role in making needs assessments and auditing service provision in local areas, clarifying what previously had either been a maze or a desert.

But what of the argument made by hard-pressed legal aid lawyers that the existence of the CLSPs means they end up doing unpaid voluntary work for the LSC?

'I hear what you say on that, but one of the other benefits is that they themselves are making connections and opportunities.

Some would say it's free advertising for them.

It's a way of getting to know local authorities, non-governmental organisations and other bodies.

'And if you are involved in the CLSPs, those people get to know the level of your expertise and the work you do.

Some lawyers are finding it one of the most effective and cheapest forms of public relations.

It doesn't cost them any money, but it does cost them time, effort and commitment.'

On civil justice, litigators looking for concessions of government shortcomings over the system will be similarly disappointed.

The much sought-after abolition of the indemnity principle seems as far off as ever.

The LCD, which supports abolition, has long maintained that it is a matter for the rules committee; the committee argues that it requires primary legislation.

Baroness Scotland - while dismissing the suspicion that it is a small clutch of senior judges who are holding up abolition of the principle - gives little hope that this impasse is about to end.

But if it does require legislation, then, in effect, forget it.

'If we're looking for legislative time, the reality is that there is very little of it, especially when it is not a core or fundamental piece of legislation.' The same is true of any legislation to permit multi-disciplinary partnerships.

The LCD has yet to form a view on fixed costs for fast-track cases, and is not about to take responsibility for the costs chaos choking up the courts.

The minister predicts that the House of Lords ruling in Callery v Gray earlier this month should unblock some of this.

And as to Lord Hoffman's contention that it will take legislation to sort out the problem? 'I hear what he says.'

She does, however, express concern about what she views as an anxiety on some sides to construe the activities of claimant lawyers as an abuse of the system.

'There's always a potential for abuse.

We do have to look at these issues very carefully, we do have to monitor them, we do have to ensure that the potential for abuse is severely restricted.

Will we be able to get all practitioners behaving in an exemplary way? No.'

The Legal Services Ombudsman's report on complaints handling in the profession was due out shortly after she spoke to the Gazette (see [2002] Gazette, 11 July, 1), and the minister says the Law Society still has progress to make.

'We are very disappointed at the level of complaints and the speed with which they're being dealt with,' she says, although she acknowledges the 'great efforts' the Society has been making.

'We want an open and robust conversation with the Law Society about the Office for the Supervision of Solicitors.'

And what of the ombudsman's call for an independent regulator of the entire profession? Baroness Scotland says that self-regulation is the preferred option so long as it is in the public interest.

'If self-regulation does not provide a robust system, we will look again,' she warns.

'It is is privilege, not a right.'