Legal aid reform: consultation analysis

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.