AGM motion will debate 'crisis inaccess to justice'

FAMILY lawyers will seek the legal profession's backing this week for their demands that the Scottish Executive overhaul the rates paid for civil legal aid and avert what they say would be a crisis in access to justice.

The Family Law Association (FLA) will table a motion at the Law Society's Annual General Meeting in Edinburgh this Friday, calling for the Executive to review the block fee system. The move follows last year's bitter row between the profession and the Executive over rates paid for criminal legal aid work.

Helen Hughes, the chairwoman of the FLA, which represents more than 300 family lawyers, says solicitors are becoming increasingly concerned about the impact of the block fees, introduced in 2003.

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Hughes - who is a partner with McAuley, McCarthy & Co in Paisley - says the full impact of the new system only became apparent in the past 12 months, as family law cases usually run for around two years.

"Over the last year or so, family law solicitors have become more concerned, because it was probably only about the turn of 2006 that they began to finish cases and submit accounts to the [Scottish] Legal Aid Board (SLAB)," she says.

"Then, around Easter or into the summer of last year, they were realising just how stark the difference was between what a case would be paid at under the old system and what was being paid at under the new system."

Hughes says the FLA has commissioned a statistical analysis from law accountants, but anecdotal evidence already shows a dramatic difference in payments - vastly increasing the gulf in fees between legal aid and privately paid work and forcing many solicitors to stop doing legal aid work.

"In some of my cases, the difference is 100 per cent - the old system would have paid me double," she says. "When you then compare that with private rates, it then just becomes a phenomenal difference.

"Lawyers who do legal aid appreciate they are never going to be paid at private rates and that is not our expectation. But we feel that family law cases are a special case - they should be dealt with in a different way from other civil business."

SLAB has been monitoring the impact of the block fee system, and recently wrote to civil legal assistance practitioners to advise them of some changes, which chief executive Lindsay Montgomery says should add around 1 million a year in fees to solicitors.

Hughes concedes that the changes have addressed some problems, such as allowing payments for preparing for multiple child-welfare hearings. However, she adds: "The review they have undertaken and the new regulations they have introduced only scratch at the surface - they don't go far enough."

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The legal aid system needs to take account of the complexity of family law cases, Hughes says, as clients are often emotional and distressed, and the law can be difficult to interpret.

"As a family law solicitor, you are dealing with people who are in an emotional state, and that is why you have to spend an hour or an hour and a half going through it with them. That's why family-law solicitors feel that family-law cases are separate from other civil work.

"Family lawyers are having to get their heads around quite complex legal issues that have just been introduced in the last year, which give a very wide discretion to the sheriffs."

While SLAB is taking forward plans for the Civil Legal Assistance Office to plug gaps in legal aid provision, Hughes remains sceptical that this will be enough to ensure access to justice.

"That's not going to work Scotland-wide. For example, in a town like Paisley, where I practice, if you have an equivalent of the public defender there, there is a conflict of interest between a husband and a wife, so if one of them goes there, where does the other one go? The two of them can't go to the same place."

Hughes says she is "very confident" that FLA motion will receive the backing of the AGM.

She adds: "Family-law solicitors have become more vociferous. They are not by nature folk who kick up a fuss, but it is becoming apparent that the legal aid situation is becoming a crisis."

A Scottish Executive spokesman says new fees regulations were introduced in February to address concerns expressed by family lawyers, including increases to fees for summary cause cases and for detailed and contentious type cases. He adds: "Ministers have announced that civil legal aid fees and eligibility levels will be reviewed. The changes that recently came into effect will be monitored to see how the changes are working."

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The Law Society of Scotland's Annual General Meeting (AGM) is due to take place this Friday at the Royal Museum of Scotland, on Chambers Street, in Edinburgh The meeting is scheduled to begin at 10:30am.

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