Legal aid reform: discussion paper

Ministerial Foreword

The independent strategic review of legal aid carried out by Martyn Evans in 2018 noted that Scotland is one of the leading jurisdictions in Europe in the provision of legal aid, judged by scope, eligibility and expenditure per capita. In almost all solemn criminal cases, the accused will get legal aid, and in civil cases the scope of legal aid is broader in Scotland than in very many other jurisdictions, with comparatively little excluded.

Scotland’s expenditure on legal aid is among the highest in Europe and spending on legal aid, and grants of legal aid, both increased in 2023-24. The Netherlands is the only other European jurisdiction which has an open-ended, uncapped, demand-led approach to its legal aid budget.

A demand led approach means that most people across Scotland will routinely be able to access financial help to defend their rights or to resolve disputes if they need it. We know, however, that there is scope for improvement and that funding for services does not in itself guarantee their provision. The public rightly expects that publicly funded services will be responsive, user-centred and accountable, and will work effectively.

Improvement is needed if the way we fund legal assistance services is to be capable of adapting to changes in the justice system and in society more widely. Knowing what services are needed and where, and being able to assess evidence so that unmet needs can be monitored and prioritised, are vitally important.

Our approach to developing a system which will achieve this is based on the four principles set out in our Vision for Justice, an approach: founded in equality and human rights; that puts people at the centre of what we do; informed by recognised, credible, and robust evidence; and taken forward through collaboration and partnership.

This paper sets out the three key strands of work we will be undertaking in order to improve legal aid. This will commence with immediate simplification of the judicare model of service delivery by bringing forward regulations to parliament in 2025-26. These changes will make it easier both for solicitors to work with legal aid funding, and for those who need legal assistance to access it. At the same time we will resume work to conduct research on, and implement reform of, legal aid fees. Thereafter we will work closely with stakeholders on the development of a reformed future legal assistance system.

We will consult during the course of the coming year on regulations to improve and simplify the judicare model through which the majority of legal aid funded services will continue to be provided. We will work with private firms, third sector organisations and, crucially, service users themselves to develop proposals for a flexible, responsive model of delivery able to meet the challenges of the 21^st century.

The Cabinet Secretary for Justice and Home Affairs announced on 23 January that she intends to bring forward legislation as soon as possible to ensure free non means-tested legal aid is available for bereaved families participating in deaths in custody FAIs. Ahead of that legislation, which will take time to develop and introduce, we are also considering whether there are ways to deliver this in the shorter term.

This is a separate commitment to this discussion paper which is on the medium to longer term reforms that are needed to the legal aid system, on which we will engage with stakeholders to discuss.