Legal aid reform: discussion paper

Developing a Future Legal Aid System – 2025 Onwards

The Scottish Government’s Vision for Justice^[2] set out in 2022 a transformative vision for the justice sector. It established five aims, spanning criminal, civil and administrative justice, with a focus on creating safer communities and shifting societal attitudes and circumstances which perpetuate crime and harm. It is underpinned by four principles for how change should be delivered, namely that it be:

• founded in equality and human rights;
• evidence-based;
• embedding person-centred and trauma informed practices; and,
• through collaboration and partnership.

Our programme of legal aid reform commits to these principles.

In addition to the proposed programme of regulatory reform set out above we will discuss the more fundamental changes to the structure, funding and delivery of legal assistance that are needed to build a system fit for the future. This system must be capable of adapting to changes in the wider social and justice environments and offering those in need of legal help and those who provide that help with a better system in which to operate. This will inform the development of primary legislation for a future parliamentary session.

Diversifying funding and delivery methods

Our vision is that the delivery of legal aid in all its possible forms is shaped by an evidence informed approach to assessing need, embedding the user voice, and designing services to focus on the effective delivery of outcomes.

Scotland’s legal assistance system already funds service delivery in a range of ways: through judicare, grants, and services delivered by SLAB employed solicitors.

These tools offer different opportunities, and potentially different outcomes, for providers and those seeking help.

We want to improve the way these tools work, both individually and in combination. By doing so we can make sure that they can be used flexibly to ensure public funding for legal assistance is effective in supporting the rule of law and responding to the social and justice needs of the population. When the legal needs of the public change or new justice priorities are set, different tools also offer the opportunity to address challenges more directly and in a responsive, targeted way.

Judicare provides flexibility and choice as to the type, amount and range of work providers can do, enabling them to respond in an agile way to emerging needs and their own business priorities. For people facing legal problems, they can access services on a very wide range of subjects but can face uncertainty as to where to seek help and there is no guarantee that any provider will be able and willing to help them.

SLAB has powers under the 1986 Act to make grants of funding for civil and children’s legal assistance and it can also employ solicitors to carry out criminal, civil and children’s legal assistance and related work. There are also provisions in the Act enabling SLAB to enter into contracts for criminal and children’s legal assistance service provision. To implement these, new regulations would be needed.

Grants and contracts offer different opportunities for securing and supporting services in comparison with judicare funding and we intend to expand their role in the future of legal aid. They provide a means of committing resources and focusing service delivery and access to advice and representation on specific subjects in specified locations. This includes being able to offer opportunities to providers to test or pilot different approaches to service delivery and wider opportunities for business and professional development and growth.

SLAB employed solicitors currently play a key role in ensuring delivery of essential services, complementing judicare and commissioned services and providing similar opportunities for testing methods of delivery and supporting wider legal aid workforce development through alternative training and career paths.

Greater and more strategic use of the full suite of available tools could create a broader, more collaborative range of funder/provider relationships. Judicare has traditionally involved tests and controls applied at the individual case and payment levels. Grant or contract-based mechanisms, such as licensing or the Dutch model, could offer opportunities to test and explore a different balance of checks and controls for all involved. When the legal needs of the public change or new justice priorities are set, different tools also offer the opportunity to address challenges more directly and in a responsive, targeted way.

By using our full suite of funding tools, we will be able to deliver a system where:

• Funding can support a diverse and sustainable mix of private, public and third sector delivery;
• A different balance of checks and controls can be applied in certain circumstances, to reduce administration for providers;
• Legal aid users’ needs can be responded to appropriately;
• Delivery can be adaptable to changes in patterns of demand over time;
• Providers are given greater choice in how they engage with legal aid service delivery.

To improve the operation of the current system and to inform the longer-term work to develop new legislation, we will, in 2025, explore with stakeholders the use of existing funding tools to test and learn how a mixed model can better meet users’ needs and support a varied, thriving and sustainable network of providers.

Embedding the User Voice

The Evans Review noted that, unlike in other public policy and service areas, user representatives rarely engage directly in the legal aid policy making process. Where this does happen, it is often through specific interest groups and focuses on addressing service failure rather than proactively improving planning or co-production of services. This was reflected in the limited level of engagement by the wider third sector with the Review’s call for evidence, despite the potential role of publicly funded legal assistance in tackling inequality, upholding rights and supporting communities.

The Review further noted that, if legal aid is to be re-established as a public service which puts users at the centre of its design and delivery, then the voice, interests and experience of the user in re-design, maintenance and continuous improvement is critical.

We will establish a robust framework for sustained credible user engagement in legal aid. This framework will provide regular opportunities for users and user representatives to reflect on their experiences, and on the extent to which legal aid funded services meet their needs. It will also provide opportunities to have an input into the continuous improvement of the system.

Our aim is to develop a system where feedback, evidence and research is gathered from a wide range of sources, including the legal profession and users of the legal aid system; and that feedback is considered in the context of a system where purpose, outcomes and activity are aligned in an accountable and transparent public service.

The more formal embedding of a user voice and evidence-informed approach aligns with our stated intention that reform will lead to a system whereby legal aid has the user voice at its centre. It is intended to influence priority setting and needs assessment. There are a range of ways in which the user voice can be embedded more effectively into the legal aid system. These include:

• gaining more insight from all providers of publicly funded legal assistance to better understand users’ (and potential users’) needs or the impact of changes in SLAB’s policies and practices;
• engaging with organisations both in and beyond the legal and advice sector, including representative and advocacy bodies to gain an understanding of issues affecting users and communities;
• broadening SLAB’s user research to align with reform priorities;
• widening consultation on codes of practice to build in users’ and wider stakeholders’ views.

To address these issues, we will discuss and agree options with stakeholders for embedding users’ voices. We will develop approaches for implementing the agreed options and set out a plan which will deliver against strategic priorities. We will ensure that third sector organisations and local government can participate fully in this process.

We will put needs assessment and prioritisation onto a statutory footing in the forthcoming Bill. This will help us address current concerns around access to legal aid, either geographically or in respect of some aspects of law.