Legal aid reform: discussion paper

Immediate Reform Actions 2025–2026

Simplification of Judicare

The current system can be complex to understand and bureaucratic for solicitors and users to navigate. Therefore, our immediate priority is to deliver improvements to the operation of the judicare system, to simplify it for users of legal assistance services and those who provide them.

Administrative controls governing legal aid are defined in the statutory framework. They are critical to ensuring public funds are used appropriately and directed towards those most in need. It is SLAB’s responsibility to administer and manage these controls. The controls cover:

• who is eligible and how that eligibility is assessed;
• what work can be done under specific grants of legal assistance;
• payment for work done.

Simplifying these controls, where appropriate and feasible, will facilitate an easier system for providers to understand and ultimately make providing legal assistance less administratively burdensome, whilst still retaining necessary public accountability.

In recent years, much has been done to improve the payment system, such as increased use of fixed or block fees and a simpler online-application process. These changes have led to a significant increase in the number of cases that can be paid in full without the need for further information or negotiation. Recently, the Scottish Government introduced a scheme, with a simplified process, whereby solicitors can apply for interim fees ahead of a case concluding. This has significantly reduced the steps needed to access and authorise the early payment of fees and supported much-improved solicitor cashflow.

We asked SLAB to review the current statutory framework to identify further opportunities for simplification of judicare controls. SLAB has identified a number of potential changes that could lead to a simpler, more accessible and more readily understandable system for users, providers and SLAB. These measures target specific aspects of legal aid across criminal, children's and civil issues aimed at improving accessibility, addressing changes to court procedure and supporting greater efficiency for the justice system as a whole.

Discussions are already taking place between SLAB and judicare stakeholders on these potential changes, with stakeholders providing important feedback on the feasibility and desirability of the options for change as well as further ideas for consideration. This process has helped to prioritise reform initiatives, support ongoing appraisal and identify considerations for implementation.

In 2025, following further discussions with stakeholders, we intend to introduce regulations for the following changes to judicare.

Criminal Legal Assistance

Replace Assistance by Way of Representation in summary proceedings with summary legal aid

We will make summary legal aid available for guilty pleas and cases continued with no plea in summary criminal prosecution cases. This will remove the need for solicitors to apply the different eligibility requirements for Assistance by Way of Representation (ABWOR) cases, which only operate in certain circumstances. The change will substantially simplify the process for solicitors and SLAB.

Solemn fees - first diet / trial diet differential

A new fee structure was introduced for solemn cases in 2023. These reforms have been successful in simplifying the process and better rewarding solicitors where cases resolve at the earliest opportunity. We now propose to align the fees payable in cases that resolve by way of a plea at first diet more closely with those that do so at trial diet. This will better reward the work needed to secure resolution in advance of trial, which benefits accused, victims, witnesses and the wider justice system, as well as the solicitor.

Civil Legal Assistance

Block fees for adults with incapacity cases in civil legal aid

Adults with Incapacity cases are the biggest single case type by volume for civil legal aid. These are all dealt with on a detailed fee basis, which means that solicitors need to account to SLAB for why each particular activity in a case has been carried out. Block fees will substantially reduce the administrative burden on both solicitors and SLAB, as well as providing more surety of payment and better cash flow for solicitors.

Introduce personal allowances to the civil legal aid financial eligibility test

In order to reflect household circumstances better whilst reducing administrative burdens, SLAB will use its discretion to introduce standard personal allowances to the financial eligibility test. This will replace the detailed assessment of individuals’ particular expenses that adds time, difficulty and uncertainty to the financial assessment process for applicants and for SLAB.

Children’s Legal Assistance

Extend the scope of a grant of ABWOR

Solicitors need to grant ABWOR for each new hearing at which they represent their client. We will extend the scope of a grant of ABWOR to last from an instigation hearing until a full compulsory supervision order (CSO) is made or the hearing is discharged (relevant to both subject children and relevant persons/deemed relevant persons). By instigation hearing we mean a S38 CPO application court hearing; a second working day hearing; a S48 application to vary or terminate CPO court hearing; 8th working day hearing or grounds hearing where no CSO is already in place.

This will result in a substantial reduction in administration for SLAB and solicitors. Clients will benefit from more certainty as to continuity of representation and a reduction in reassessment of their financial circumstances for each new grant of ABWOR that is currently required.

Raise the initial authorised expenditure limit for ABWOR

The current initial expenditure limit is £135. In practice, this limit is too low for routine work needed such as conducting hearings, meaning solicitors have to ask for increases in the expenditure limit, which are then almost always approved by SLAB. We will raise the limit to £550. This will reduce administration for solicitors and for SLAB.

Remove eligibility tests for all children in all cases before a Children’s Hearing

The current system was set up with limited automatic availability of legal representation for children in the Hearings System. With incorporation of the United Nations Convention on the Rights of the Child (UNCRC) we plan to make ABWOR available for all children without financial eligibility or merits testing. Very few ABWOR cases do not meet the merits test at present. We know through feedback to SLAB that children find financial eligibility tests designed for adults confusing and ill-fitting to their circumstances. Solicitors and SLAB, as well as affected children, will benefit from reduced administration.

Remuneration research and review

The Evans Review addressed a wide range of systemic and operational issues which inform our plans for immediate improvements and longer-term reform. One of the six strategic aims that the review identified was the creation of fair and sustainable payments and fees. That is why we established a Legal Aid Payment Review panel which met for the first time in 2019 and reported in 2021^[1].

The Panel considered a range of issues relating to the structure and level of fees paid to solicitors and advocates and published a report on its conclusions, which included that there was no “silver bullet” to be found in other jurisdictions that have a legal aid system, or other areas of public service. Each model had its disadvantages, and there were a number of aspects present in Scotland that the Panel agreed should be kept. The Panel also supported a mixed model of funding for legal assistance work, including grant funding and contracts, and recommended further consideration of how these could better be utilised.

The Panel also recommended that evidence should be gathered to inform a wholescale review of payment rates and methods that sit alongside the ambitions for a reformed and improved, user-centred, legal aid public service.

As a result of that report, it was agreed that the Scottish Government would support a review of fees to be informed by research into the way in which current fee levels impact the delivery of services. We worked with the profession to develop an agreed research specification for tender which was issued in December 2023. Expressions of interest were then requested in January 2024 through the Crown Commercial Service Framework, but this did not result in any responses. Unfortunately, therefore, it was not possible to contract the work.

We will progress with work to build the evidence base needed to review fees. This work will enable us to develop a regular review mechanism. The Minister for Victims and Community Safety wrote to the Law Society of Scotland and the Scottish Solicitors Bar Association inviting them to work with the Scottish Government to progress this issue in 2025. It was agreed that further options for developing this work are needed and the Government agreed to provide those within the first half of 2025.