The Scottish Government’s independent Review of legal aid reported at the end of February. It advocates for an improved and simplified system, with the user – the citizen in need of advice – at its centre. The main changes it recommends are discussed below.
The current legal aid system
Legal aid provides help towards the costs of legal advice and representation for those on low to moderate incomes. The SPICe briefing Legal Aid (2011) contains more information about how the current system works.
The graph below looks at Scottish Government expenditure on legal aid over the past seven years. The costs are net, so after things like financial contributions from recipients are deducted. It does not include the Scottish Legal Aid Board’s own administrative costs.
The “other” category includes grant funding by the Scottish Legal Aid Board.
The overall trend is for reducing expenditure. This is partly as a result of efficiency savings, driven by the Scottish Government and the Scottish Legal Aid Board. However, it also reflects a general trend of decreasing use of the courts system, for both criminal and civil matters. This reduces demand for legal aid.
The Review’s recommendations
Legal aid should be focussed on the needs of the user
The fundamental change proposed by the Review is that legal aid should be focussed on the needs of the user. From this, all other recommendations follow.
The Review argues for a system where users can voice their needs and which responds flexibly to those needs. In contrast, the current system is seen as designed round the needs of administrators (the Scottish Legal Aid Board) and providers (lawyers).
The Review sees the need for parliamentary approval for changes to the rules and regulations which govern legal aid as a barrier, limiting responsiveness and innovation. This makes the current system unsuitable for the rapid technological changes which are expected in the sector.
Legal aid should encompass all advice services
The Review considers that what it calls “publicly-funded legal assistance” should be available to a wider range of providers than lawyers. It notes the important role advice agencies play in diagnosing problems, and preventing them from escalating.
It also argues that better outcomes could be achieved for service users if providers work together to co-ordinate support, maybe across several different issues.
To achieve this, it proposes linking advice provision into the existing community planning framework. Analysing provision through local advice action plans would allow providers and funders to identify areas of need.
However, the Review does not recommend that the Scottish Government takes on the funding of all advice services. Instead, it envisages better co-ordination between existing funders. Local authorities provide the bulk of funding for local advice services.
Legal aid rules should be simplified
The Review recommends that, over time, we should move from four to one type of legal aid. This would cover all criminal and civil issues. A financial eligibility test would remain, but this should be simplified.
Controversially, the Review recommends that those receiving legal aid for criminal matters should have their ability to make a financial contribution towards this service assessed. This reflects the system already in place for legal aid for civil justice issues.
The Scottish Parliament has already passed legislation (the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013) which would achieve this. However, the relevant provisions have not yet been brought into force due to opposition from the legal profession.
The system should be able to adapt to technological change and user need
The Review highlights that the delivery of advice services is likely to change radically in the coming years. In particular, it champions the development of interactive, online advice platforms.
Any system will have to be flexible, and not afraid of experimentation, to make the most of technological advances. The Review recognises that this will be difficult to achieve in the public sector, and will require a much less rigid legal framework.
A new body – the Scottish Legal Assistance Authority – to deliver legal aid
The Review recommends that a new body should be set up to replace the Scottish Legal Aid Board. Unlike the Scottish Legal Aid Board, it would have responsibility for policy, as well as delivery of publicly funded legal assistance.
The Scottish Legal Assistance Authority would be able to adjust the way the service is delivered in order to meet changing needs. This would provide the flexibility argued for above.
The new body would operate at arm’s length from the Scottish Government. However, it would still rely on the Scottish Government for its funding.
An “evidence-based” system for setting solicitors’ fees
Right up at the front of the report, the Review’s chair concludes that he “could not find the evidence to justify” recommending a general increase in legal aid fees.
This will be a blow to the legal profession, who have been arguing for years that legal aid work does not pay well enough to make it viable. For example, there is an ongoing dispute over provision of advice at police stations, which has resulted in some solicitors in private practice withdrawing their services.
However, the Review does accept that fees may need to increase in some areas of legal aid provision. It also notes that the issue of fees is a huge source of tension between solicitors, the Scottish Legal Aid Board and the Scottish Government.
The Review calls on the Law Society of Scotland (representing solicitors) and the Scottish Government to agree on a set process for reviewing fees. Re-evaluations using this process should take place regularly, with the results binding on both sides.
About the Review
The Review was chaired by Martyn Evans, chief executive of the Carnegie Trust. He was assisted by an expert panel. He expects the changes he recommends to be delivered over a 10 year period.
For more information, read the Review’s final report – Rethinking Legal Aid – an Independent Strategic Review (2018).
Abigail Bremner, Senior Researcher, Civil Justice