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Rethinking Legal Aid an Independent Strategic Review

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Rethinking Legal Aid an Independent Strategic Review Rethinking Legal Aid An Independent Strategic Review Martyn Evans February 2018 b Rethinking Legal Aid | An independent strategic Review Contents Foreword 1 Acknowledgments 3 Visual executive summary 4 1 Approach and methodology 6 2 Background – a brief history of legal aid 8 3 Overview 10 4 A vision for publicly-funded legal assistance in Scotland: a citizen-focused approach 20 5 A mission for publicly-funded legal assistance 2018-2028 23 6 A clear outcome 25 Strategic Aim 1: Place the user voice and interest at the centre 26 Strategic Aim 2: Maintain the scope but simplify 37 Strategic Aim 3: Support and develop an effective delivery model 52 Strategic Aim 4: Create fair and sustainable payments and fees 66 Strategic Aim 5: Invest in service improvement and technological innovation 83 Strategic Aim 6: Establishing effective oversight 91 Appendix 1: Respondents to the call for evidence 97 Appendix 2: Organisations involved in discussions with the review 98 Appendix 3: Early resolution and advice programme (ERAP) 99 Appendix 4:Bibliography 101 Rethinking Legal Aid | An Independent Strategic Review 1 Foreword I was invited by Annabelle Ewing, Scottish Government Minister for Community Safety and Legal Affairs, to conduct this independent review in February, 2017. Establishing the review was seen as an opportunity to take a strategic, independent and long-term look at the legal aid service in Scotland to ensure that it is fit for purpose and fair, and that Scotland’s population can access legal assistance when they need it. I found, rather to my surprise, that the Scottish legal The recommendations I make are intended to aid service compares very well internationally. That lead to far more flexible processes and a step finding should not lead to any complacency. The change in innovative delivery that both recognise vision I suggest seeks to move Scotland towards and accommodate complexity. If public policy having one of the very best services in the world. can encourage this flexibility and innovation, I have no doubt Scotland is capable of making that there is a better chance that service providers move. I say that not least because of the quality and and funders can use their understanding and commitment of the people in the public, private insights to adjust and adapt to rapidly changing and third sector legal and advice services I met circumstances to produce viable solutions. The through this review. next 10 years will bring further extraordinary changes in the digital world that will have The wider publicly-funded legal assistance service significant consequences for people and in Scotland shares a key characteristic with other organisations in the field of publicly-funded legal important public services. It is complex, has assistance. A strategy that does not attempt to extraordinary reach, is delivered by multiple build in adaptability will not succeed. If publicly- providers and is under-researched. At the funded legal assistance can take an effective lead conclusion of my evidence gathering, I considered on technological innovation it can transform the four options for change. These were: experience and outcomes for people at times of great stress and worry in their lives. • retrench: reduce services; • restructure: organise services in a different way; In recommending simplifying aspects of the • reform: focus on improving delivery; or rules and regulations that surround publicly- • rethink: develop a completely new approach. funded legal assistance, I am aware of the recurring public policy dilemma. The dilemma I concluded, along with many of those who is that the ambitions of simplicity, flexibility and provided evidence, including the Law Society fairness are held in tension with each other. An of Scotland, that we need a fundamentally new increase in simplicity may well make a system less approach. We need to rethink legal aid and in responsive to the widest range of circumstance doing so, widen it to encompass the whole and therefore lead to reduced flexibility. Similarly, range of what I have called ‘publicly-funded legal increasing the fairness of the system may make assistance’. We must also place the interest of it more complex. Some see this dilemma as a users at the heart of this service. In my report, I reason not to change. I see the dilemma as the identify a vision, set out a mission, and develop six central modern challenge that effective change of strategic aims that are intended to start to change complex systems has to overcome. the existing system into the future service. 2 Rethinking Legal Aid | An independent strategic Review I cannot recommend all the changes suggested and advice workers. Together these will have a to me. The key one being a general increase profound and positive impact on the future delivery in legal aid fees, for which I could not find the of publicly-funded legal assistance. There is a crucial evidence to justify. However, I do recommend need for people in a range of different positions an evidence-led review of fees and income for and roles in publicly-funded legal assistance, who ‘judicare’ lawyers. That is no soft option. Such a understand the need for change and are willing to review carries a very significant risk for both the act on it. Good evidence is the second cornerstone Government and the profession. Both have to of successful systems. As an example, I hope commit, approve the ground rules and agree to that the digital case management process being abide by the outcome. developed by the Scottish Courts and Tribunal Service will increase the level of meaningful Building a persuasive and robust evidence base measurement and feedback mechanisms to provide for any increase in fees is important, but so some of the evidence that is vital for change. too is public trust. I became concerned during the review that in making the tactical case for Finally, I quote the past President of the Supreme increased fees for legal aid lawyers, in the ways Court of the United Kingdom Lord Neuberger they have done, the profession is losing the in my report on the responsibility of lawyers strategic argument with the public about the value and judges to not stand on the side-lines and of publicly-funded legal assistance to the rule of criticise. He said they have a heavy duty to do law and building a fairer Scotland. all they can to support and improve access to justice for ordinary citizens and small businesses. There is a strong tradition in Scotland, since the I found many stepping up to that challenge over publication of the 2007 National Performance the course of my review. And also, many in third Framework, to focus on outcomes. There is sector advice services and those administrating already a Scottish Government vision for a justice the courts system doing the same. I am convinced outcome. I have set that as the outcome for my that together they can deliver the vision, mission review’s recommendations. and outcomes of this review. We need to narrow the gap between policy design and implementation. This can be done by a combination of good evidence and welcoming the experience of practising solicitors, advocates Martyn Evans Rethinking Legal Aid | An Independent Strategic Review 3 Acknowledgments I wish to record my sincere thanks to all those who have contributed the work of my review. I would like to thank all those who responded to the • Lindsey McPhie call for evidence and who were willing to meet me • Jackie McRae to explain their work and share their thoughts. All • Janys M Scott QC their views and insights were invaluable and helped • Professor Fran Wasoff shape my review report and its recommendations. The expert panel played an important role. Their Professor Alan Paterson OBE was the International knowledge, experience and views have been an Legal Adviser to my review. He was an outstanding invaluable resource. However, the responsibility guide to the complexities of the justice system in for this report and the recommendations made in general and legal aid in particular. it are mine alone. I am grateful in particular for the advice of the I would also like to place on record my thanks expert panel: to the review secretariat led by Hazel Dalgard with Susan Bulloch. I, along with the secretariat, • Margaret Burns CBE undertook many meetings and discussions with • Colin Lancaster a very broad spectrum of interests. My final • DCC Iain Livingstone QPM thanks are to Jennifer Wallace, Douglas White, Liz • Brian McConnachie QC Macdonald and Alison Manson. Without all their • Alison McInnes OBE outstanding support and help this review would • Susan McPhee not have been possible. 4 Rethinking Legal Aid | An independent strategic Review Visual executive summary VISION STRATEGY Strategic Aim 1 Place the voice and interest of the user at Vision the centre Scotland is a global leader in supporting citizens defend their rights, resolve problems Strategic Aim 2 and settle disputes Maintain scope but simplify Strategic Aim 3 Support and develop an effective delivery model Mission Create and sustain public trust and provider confidence in publicly funded Strategic Aim 4 legal assistance Create fair and sustainable payments and fees Strategic Aim 5 Invest in service improvement, innovation and technology Strategic Aim 6 Establishing effective oversight Rethinking Legal Aid | An Independent Strategic Review 5 RECOMMENDATIONS OUTCOMES • Representatives of the third sector advice services criminal legal aid solicitors) should be established and local authorities should be formally involved to ensure their involvement in the court business in the strategic planning and delivery of justice planning. outcomes through membership of the Justice Board. • There should be targeted public legal education and • A consumer panel should be established to information programmes to improve the capability represent the interests of current, potential and of citizens to deal with justiciable problems.
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