Legal aid reform: consultation

Background to this consultation

The Legal Aid (Scotland) Act 1986 created the Scottish Legal Aid Board, established the legislative basis for SLAB's powers and duties, and provided the structure of the current legal aid system in Scotland. The Act, now in its fourth decade, pre-dates devolution, human rights legislation, and other major reforms to the justice system. Since its introduction the Act, and the secondary legislation supporting it, have been subject to frequent changes in response to emerging domestic and European law that added to the complexity of the system. Over this time, many publicly funded services have undergone significant reform to move towards user-focused systems that plan and deliver services with the user at the forefront of design decisions.

In 2016 the Scottish Government considered that the time was right to review the legal aid system in Scotland and highlighted in the Programme for Government commitment from that year:

"We will engage with the legal profession and others to identify during this year specific measures to reform Scotland's system of legal aid, maintaining access to public funding for legal advice and representation in both civil and criminal cases alongside measures to expand access to alternative methods of resolving disputes."

To further reforms, the Scottish Government established an independent review of legal aid in February 2017. That review was taken forward by an independent panel chaired by Martyn Evans, then CEO of Carnegie Trust UK, with the following remit:

"To consider the legal aid system in 21st century Scotland and how best to respond to the changing justice, social, economic, business and technological landscape within which a modern and flexible legal aid system should operate."

In February 2018 the report "Rethinking Legal Aid" was published, a culmination of 12 months of research and evidence gathering by the independent panel and its Chair, Martyn Evans. This report made 67 recommendations that were intended to lead to a modern, flexible and user-focused service.

The Scottish Government response to that report was published in November 2018. That response set out the short and medium term improvements that would be made to the current legal aid system. It also signalled our willingness to consult on ways in which a new statutory framework could be developed to deliver an improved and person-centred legal aid service for Scotland.

The focus of this consultation therefore is on reforms to design and deliver a legal aid service. For the purposes of this consultation, the term legal aid will be used to cover the range of advice and representation services that are met by the Legal Aid Fund. When grant funding monies (which are also paid through the Legal Aid Fund) are subject to separate consideration, this will be expressly stated. Legal aid is not to be confused with publicly funded legal assistance which covers all funding through the public sector including local authorities.

Legal aid is often a contentious issue, with a wide range of interests and perceptions on how it should operate, and for whom. That is evident in the Review and from the many views that have been expressed since publication. It is important to be clear that a functioning legal aid service is an important element in ensuring access to justice in guaranteeing rights under the European Convention on Human Rights, which is why the Scottish Government supports that the continuing availability of legal aid in a wide range of actions.

The public debate on legal aid often does not focus on the availability, quality or outcomes delivered by these services, but instead turns on issues related to payment to those providing legal services. Further to our commitment in the Scottish Government response we have now established an expert advisory panel to make proposals on an evidence based model to agree and review the structure of the legal aid payment framework. Members from the representative bodies of the legal profession and experts sit on this panel. Therefore, the issue of legal aid fees and the payment framework will be subject to separate and detailed consideration and will not form part of this consultation.

Responding to this consultation

We are inviting responses to this consultation by 19 September 2019.

Please respond to this consultation using the online platform 'Citizen Space' which can be found at: https://consult.gov.scot/justice/legal-aid-reform-in-scotland/. 

You can save and return to your responses whilst the consultation is still open. Please ensure that consultation responses are submitted before the closing date.

If you are unable to respond using 'Citizen Space', please send your views and comments either by email to: legalaidreform@gov.scot or by posting a paper copy to: Kieran Burke, Access to Justice Unit, Civil Law and Legal System Division, Justice Directorate, Rm GW 14, Saint Andrew's House, Edinburgh EH1 3DG

However you respond, please complete the Respondent Information Form (see 'Handling your response' below). Responses should reach us by 19 September 2019

Earlier responses would be welcome.

Handling your response

If you respond using 'Citizen Space', you will be automatically directed to the Respondent Information Form at the start of the questionnaire. This will let us know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public.

If you are unable to respond via 'Citizen Space', please complete and return the Respondent Information Form. This will ensure that we treat your response appropriately.

All respondents need to be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002(2) and would therefore have to consider any request made to it under the 2002 Act for information relating to responses made to this consultation exercise.

If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly. If the response comes from an organisation, we will indicate that the organisation has responded to the consultation.

Next steps in the process

Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, or offensive material, we will make responses available to the public at http://consult.scotland.gov.uk. If you use Citizen Space to respond, you will receive a copy of your response by email.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so.

Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them by email to legalaidreform@gov.scot or by hard copy to the address above.

Scottish Government consultation process

Consultation is an essential part of the policy-making process. We will consider the views expressed in response to this consultation along with other available evidence to help inform the Scottish Government's decisions. You can find Scottish Government consultations online: https://consult.scotland.gov.uk. Each consultation details the issues under consideration, as well as a way for you to give us your views.

Consultation may also involve seeking views in other ways, such as public meetings.

Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation.

Depending on the nature of the consultation exercise, the responses received may:

• indicate the need for policy development or review;
• inform the development of a particular policy;
• help decisions to be made between alternative policy proposals; and/or
• be used to finalise legislation before it is implemented.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.