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Legal Aid Reform in Scotland

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Legal Aid Reform in Scotland Legal Aid Reform in Scotland Consultation The Scottish Government Analysis June 2020 1. The Consultation Exercise 1.1. Why did we consult? The Scottish Government is committed to improving legal aid in Scotland. The Independent Strategic Review of Legal Aid, chaired by Martyn Evans, had provided a ten year vision of a citizen-focused legal aid and advice service in Scotland, underpinned by 67 recommendations. The Scottish Government has kept open its view on how best to deliver the longer term aims, and in its response to the Review signalled its willingness to take forward supported recommendations that would deliver an enhanced system of legal aid. The Scottish Government Response also contained a commitment to consult on reform. Consultation is an essential part of the policy making process, and to assist with the development of appropriate legal aid reforms, a public consultation ran between 27 June and 19 September 2019. This consultation sought views to help inform the development of legislation that will achieve the Scottish Government’s long term vision of Scotland as a global leader in supporting citizens to defend their rights, resolve problems and settle disputes while creating and sustaining public trust and provider confidence in legal aid. 1.2. What did the consultation ask? The consultation was intentionally broadly set to capture the fullest range of views on the recommendations and what level of reform is supported. In particular views were invited on how best to develop a public service that has the user at its centre, with sufficient flexibility to address and adapt to user need. These areas were identified as the foundations for change to the existing system, in Part 1 of the consultation. Such change would promote a major shift in how legal aid policy is formulated, how legal aid services can be delivered, and how legal aid is perceived. The consultation then invited more in-depth consideration around how the change agenda could be delivered, in Part 2 of the consultation. The key themes were scope and oversight; improving access and targeted interventions; simplicity and fairness and enhanced powers and best value. The consultation recognised the importance of facilitating access to advice and representation, in addition to retaining that legal aid be available for a wide scope of actions. Therefore, under “scope and oversight” it reaffirmed that the Scottish Government has no intention to reduce the wide scope of actions for which legal aid is available. It also stated that there was no intention to abolish the Scottish Legal Aid Board and set up a new public body to deliver a reformed legal aid system. The section “Improving access and targeted interventions” examined how best legal aid can facilitate advice and representation needs be met in a flexible, planned and responsive manner. The premise here was that it is not enough to have a service that is available without considering how those who need it can access it. ‘Simplicity and fairness’ recognised the inherent tension between making access to services more simple and transparent against trade-offs such as potentially changing the demographic of assisted persons if aspects of the existing eligibility models are removed. ‘Enhanced powers and Best Value’ invited views on what changes would be necessary to empower the Scottish Legal Aid Board to capture the user voice and to oversee delivery of a public service in a way that engages with Best Value. The consultation expressly set aside the issue of payment in respect of legal aid fees, on the basis that this was subject to separate consideration by an advisory expert panel, chaired by the Scottish Government. 1.3. How did we consult? Responses could be provided online through the Scottish Government’s consultation hub, or submitted by email. In addition to the written consultation, the Scottish Government supported a conference on the consultation, hosted by the Legal Services Agency in Glasgow, to seek views and feedback on the main themes for change. Results from this event are not included within this report. Officials also offered to meet with each of the key stakeholders to discuss the consultation following its publication. 2. Methodology 2.1. The respondents 43 responses to the consultation were received. A further 18 emails were received from individuals from the legal profession simply endorsing either the response of the Edinburgh Bar Association (EBA) or Glasgow Bar Association (GBA), or on occasion both despite those responses taking differing views in some areas. All key stakeholders from the legal profession and third sector responded, however only one local authority submitted a response. The respondents can be categorised based on organisation type, with the numbers of respondents in each category detailed below. Number Percentage1 Third Sector 11 18% Individual 10 16.5% Charity 2 3.5% Legal Profession 28 46% Local Authority 1 1.5% NDPB 1 1.5% Not-for-profit 3 5% Public Body 5 8% 2.2. Responses All questions were answered by at least one respondent. Responses were read and logged into a database, and all were screened to ensure that they were appropriate/valid. None were removed for analysis purposes. Although some responses to individual questions did not directly address what was being asked, all feedback was analysed and is presented under the appropriate sections below. 1 Rounded to the nearest .5 for clarity. This is the case for all percentages within this document. Closed question responses were quantified and the number of respondents who agreed/disagreed with each proposal is reported below. To provide an element of weighting to this exercise, where appropriate, responses are reported with reference to numbers that include and do not include those respondents who were simply endorsing the response of a representative body. For most of the questions, respondents were also asked to state the reasons for their views, or to explain their answers. The main reasons presented by respondents both for and against the proposals set out across the consultation were reviewed, alongside specific examples or explanations, alternative suggestions, caveats to support, and other related comments Respondents to consultation document completed a Respondent Information Form (RIF) which allowed them to specify their publishing preferences. Respondents who choose to email their views and did not complete the RIF were contacted to ascertain their publishing preferences. Only extracts where the respondent indicated that they were content for their response to be published were referenced. 3. Key findings from the analysis of responses 3.1. General Views were often split depending on whether the respondent was from the legal profession, third sector, etc. Questions on enhanced powers for the Scottish Legal Aid Board were answered almost solely by the profession. This divergence in views is highlighted by showing the respondent figures with reference to the inclusion of those who were endorsing the views stated in the responses of the Edinburgh Bar Association and the Glasgow Bar Association 3.2 Part 1 of the consultation There are areas of broad consensus with the main principals of reform well supported, however there are very mixed views on how to implement the change agenda. The majority of respondents supported that the user should be at the centre of the legal aid system. Only two individual respondents did not support this. A further two were unsure. The majority of respondents agreed that the current model of provision could be strengthened. Most felt that increased targeting of specific areas of law and geography would enhance flexibility and provision of services. However there was no clear consensus on how to achieve this. The third sector and law centres were supportive of targeted grant funding and contracts to achieve this. The legal profession considered increased payment levels to be key here. Most respondents agreed that legal aid did not currently operate as a public service and would support a move towards this. They considered that this would increase accessibility and accountability, and as a public service there would be expectations of delivery and outcomes from providers. There was concern that a move to being a public service could lead to rationing or have the unintended consequence of reducing the number of providers of legal aid. 3.3. Part 2 of the consultation Overwhelmingly respondents supported not only retaining the current scope of legal aid but also widening it, specifically legal aid provision for group actions, tribunals and issues related to Human Rights. The majority of respondents agreed that there was action which could be taken to support and enhance the work of SLAB including better training, more consistency in decision making, and enhanced information sharing between organisations. Most respondents supported more flexibility in the system to respond to changes in legal procedure or an emerging need, and supported the ability of SLAB to use grants and exclusive contracts to target services. This view was not echoed by the legal profession. The proposal to introduce a Memorandum of Understanding between legal aid providers and the Scottish Legal Aid Board polarised views. Law centres, clinics and third sector organisations were more supportive of this proposal, and have experience of receiving funding subject to certain agreements and standards requirements. The professional bodies are uniformly against this, voicing concern that the relationship would be one sided in favour of the Scottish Legal Aid Board, and that any compulsion for firms to take on work deemed to financially unsustainable could reduce the number of legal aid providers. The majority of respondents supported a single eligibility assessment at the beginning of the process whilst retaining the ability for more complex calculations when necessary, and having a simplified system of contributions in civil matters for those who can afford to pay, as long as thresholds were set at an appropriate level and took into account individual circumstances.
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