Legal aid reform: consultation

Part 1: Foundations for Change

The Review found that the system of legal aid currently operating in Scotland compares very well internationally. Scotland's expenditure on legal aid exceeded €30 per capita (Council of Europe, 2016). In comparison, the average for European countries is €9 and the median is €2 per capita. This makes Scotland one of the highest spending jurisdictions in Europe. The legal aid system in Scotland also maintains a wide scope of eligibility for legal aid in both criminal and civil cases, with very few exclusions in terms of area of law. Most legal aid systems operate with clear budget caps and explicit rationing. In Europe, only Scotland and the Netherlands have an open-ended, uncapped, demand-led provision. Whilst these findings are welcomed by the Scottish Government, it in no way dampens our aspiration to introduce ambitious and positive change.

The Review sets out a long term vision for a citizen-focused service in Scotland, underpinned by a mission to create and sustain public trust and provider confidence in legal aid. It identified that legal aid is often not seen as being a public service. The current system and its legislative framework focuses on what the providers of legally aided services need to do to obtain funding for a case, rather than being a framework which allows for the design and delivery of services which are responsive and flexible to the needs of the user, and provides a means to manage the availability of these services.

The current legal aid system comprises of three components – judicare, grant funded advice services (which can include solicitor services), and directly employed solicitors in SLAB's services delivered via PDSO, SCL and CLAO. Both grant funding and direct services are designed to meet particular needs and deliver outcomes aligned to Government priorities. The vast bulk of the legal aid budget is used to support demand led services delivered by way of judicare through solicitors and, when necessary, the employment of advocates.

The judicare model inserts a third party funder (SLAB) into an existing solicitor/client relationship and controls access to public funds via a range of eligibility tests, pre-approval requirements and tests for payment. It is designed to support the traditional private sector delivery model: the solicitor is free to deliver services where they want, to client groups they choose to serve and case types they choose to deal with.

The Scottish Government supports having a valued public service with the user at its centre. This is, however, a fundamental shift from how legal aid is currently designed, perceived and delivered. Such a shift is consistent with wider developments regarding publicly funded services following the report by the Commission on the future delivery of public services chaired by Dr Campbell Christie, and its recommendations that public services are built around people and communities, their needs, aspirations, capacities and skills.

In this section of the consultation we will consider the general principles that will inform the change agenda to support the vision set out above, namely that legal aid:

i) has the user voice at its centre;

ii) has flexibility to address and adapt to user need; and

iii) should be regarded as a public service.

i) legal aid has the user voice at its centre

The focus of the statutory framework through which legal aid is delivered is on the structures for each aid type and the associated fees. The framework controls access to the legal services that are publicly funded and sets the basis for payment for providing these. In many respects it is possible to consider that the users of the existing system are in fact the legal professionals delivering legally aided services. The Act is principally a vehicle for interaction between solicitors and SLAB; generally the onus is on the solicitor who has decided to progress a case to seek appropriate cover and then for SLAB to be reactive to requests for funding to provide these services. We welcome the opportunity to refocus the statutory framework on the delivery of the needs of those seeking legally aided services; rather than unmanaged and unplanned decisions that are dependent on the providers.

The Review cautioned that there is a lack of direct engagement with user representatives in the policy making process around legal aid, and made specific reference to the lack of engagement by strategic third sector organisations as part of its call for evidence. This is perhaps symptomatic of the user voice being lost in the current system, and supports the need to refocus the approach in legislation to embed this voice and to reflect that it is the needs of those requiring advice and representation that are at the centre of a legal aid service.

This will be a challenge. There is not a unified user voice. Instead, there are a wide range of justiciable issues covered by legal aid and a wide and, at times, disparate geographical spread of service providers. It is not just the voice of current users, but also the voice of potential users or those who have not yet accessed services, that needs to be captured. We recognise that an absence of certain duties, powers and functions within the current statutory framework has resulted in the user voice not being heard and taken into account in the design and delivery of services.

We consider it is important to redress this to help:

1. Identify advice and representation needs of communities, specific groups (including those suffering domestic violence, disabled and ethnic minorities) and individuals, which we would expect to be supported by legally aided services, and that legal aid funding is available to meet these;

2. Direct and target legal services at legal and geographical areas, in line with established priorities, taking into account local provision; and

3. Respond appropriately to external developments and emerging situations.

There are a number of ways in which the user voice can be captured and contribute to delivery and improvement of the service.

Directly

Consumers of legal aid services could be directly engaged through enhanced approaches to quality assurance. Primary legislation could establish a unified system for quality assurance across legally aided solicitor and advice sector services, and focus on incorporating consumer considerations such as taking into account the particular service delivery structures. This would give a more rounded view of the standard of service beyond the technical accuracy of the advice provided and compliance with legal aid process requirements. This could be complemented by the recommendation in the Review that third sector organisations consider endorsing publicly funded legal assistance services which provide a good level of service to their beneficiaries.

Indirectly

Sustained engagement through consumer representatives could also help ensure the user voice is captured and reflected in the delivery of a legal aid service. The Review supported the use of consumer panels and recommended that a consumer interest panel should be established which could enable the user voice to have an input into legal aid governance.

Collaboratively

Better connectivity within the landscape for publicly funded legal assistance may also help to achieve more of a user focus. Currently this is both complex and diverse, with funding arrangements varied and focused on the providers. There is a combination of private providers, employed solicitors, public and third sector organisations receiving public funds from legal aid, central government and local government to provide advice.

The Review sets out a vision for a more integrated service incorporating all forms of publicly funded legal assistance to better address user needs, bolstered by a desire that the private, public and third-sector providers work together and learn from each other at a local level. The Review recommended that representatives of the third-sector advice services and local authorities should be formally involved in the strategic planning and delivery of justice outcomes through membership of the Justice Board, and also recommended that both civil and criminal publicly funded legal services should be based on a local action plan created in partnership with each Community Planning Partnership (CPPs). CPPs rely on the resources and commitment of their partner bodies, such as local authorities, Police Scotland, etc. to deliver on agreed commitments.

We support partnership working and the potential benefits of the above recommendation, but recognise these aspirations may take longer to deliver as the drivers, mechanisms and intended outcomes of funding and service delivery widely vary between both funders and providers.

Questions

• The Review recommends the voice and interest of the user be at the centre of the legal aid system. Do you agree?

Yes / No / Unsure

Please give reasons for your answer.

• How desirable are each of the following ways of embedding the user voice and experience into the design and delivery of a legal aid service, on a scale of 1 – 5 (1 being very undesirable and 5 being very desirable ).

1. Direct engagement through enhanced approaches to quality assurance

2. Indirect engagement through consumer panels

3. Collaborative engagement by connectivity across the publicly funded legal assistance landscape.

Please give reasons for your answer

• Partnership working and Community Planning Partnerships (CPPs) help provide local context to user needs. Would you support placing duties on a prescribed list of public sector organisations, to work together in order to help CPPs achieve their goals?

Yes / No / Unsure

Please give reasons for your answer

ii) legal aid has flexibility to address and adapt to user need

The current legal aid system is reliant mainly on the provision of what is known as judicare services by private solicitor firms. In some cases it will be necessary for firms to employ the services of advocates to progress legally aided cases. The strengths of judicare are that it enables a very wide range of access points across the country, covering a broad range of areas of law, and it is able to respond quickly to shifts in expressed user need. However, it has limitations insofar as the services are not consistently available: firms or individual solicitors may, for whatever reason, decide not to take on a particular case or class of cases, or cases in certain geographical areas. Conversely in other areas there may be an oversupply. Capacity in this system is augmented by directly employed PDSO and CLAO solicitors, operating within both criminal and civil law respectively, and grant funding which currently can only target civil and children's legal and advice related services.

The Review recommended that it should be public policy to maintain and fund a mixed model for legal aid - whereby private solicitors would still be engaged - but supported the ability to fund more flexibly and with agility. A range of new, flexible powers to direct and target legal aid services at specific legal and geographical areas of need were set out. These could be used in response to the unmet needs of individuals and communities, where it would be expected that these be met by legal aid funding. Retaining the availability of private solicitors to carry out legal aided work will remain important, even if this engagement will, at times, require to be facilitated in a different way to the current judicare structure.

The mixed model of funding considered included:

• a mix of demand led and targeted funding by way of judicare, public direct employment and grant aided ;
• a mix of solicitor and lay assistance including options for solicitors being embedded within lay advice providers; and
• a mix of method of delivery to include online and telephone as well as direct advice delivery

Where consistency of access is important and not being delivered, other means of funding legal services include grant or contract. The main strengths of a targeted funding model are that this approach has greater scope to provide consistency of access to help for a defined set of problems.

We recognise that the current legal aid statutory framework provides a range of targeted interventions which SLAB can use, under certain conditions, and which vary across civil, criminal and children's legal assistance (some of which that are still to come into force). However, there is an inherent lack of flexibility in the current model to adjust and respond to user needs quickly, and we would welcome views on how best to adapt this.

Questions:

• The Scottish Government supports the recommendation in the Review that provision by publicly-funded private solicitors should continue. Do you consider that there are ways in which the mixed model can be strengthened?

Yes / No / Unsure

Please give reasons for your answer

• Are there specific areas of law, eg domestic violence or disability issues, that the current judicare funding arrangements are serving less well?

Yes / No / Unsure

Please specify which areas and give reasons for your answer

• Are there specific areas of law that might benefit from a more targeted approach to funding solicitor services?

Yes / No / Unsure

Please specify which areas and give reasons for your answer

• Are there certain groups that when accessing legal aid might benefit from a more targeted approach to funding solicitor services?

Yes / No / Unsure

Please specify which groups and give reasons for your answer

• Do you support building additional flexibility into the delivery of legal aid?

Yes / No / Unsure

Please give reasons for your answer

iii) Legal aid as a public service

Legal aid, as a public service, should enable that those who find themselves with justiciable problems can access appropriate advice services and representation if and when required. The availability of such assistance to uphold the rule of law and individual rights benefits all of society, not just those who directly access that assistance. This is recognised by the reference to criminal legal aid in Article 6(3) of the ECHR and in the context of the right to a fair trial in the civil context.

Legal aid is currently reliant on a system in which advice and representation services are delivered primarily by private law firms registered to be paid for work by way of public funds; also by a small number of solicitors employed directly by SLAB; and by a mix of lay advisers and solicitors employed in projects whose associated costs are met by way of grant funding monies administered by SLAB.

There is a predominance of private providers in the system, but it should be borne in mind that not all public services are delivered by public servants. A system that engages with private providers, such as firms of solicitors, is a recognisable model for the delivery of public services, such as GP and dental services, which have high public value. Unlike GP or dental services, the current model of judicare is characterised by an ad-hoc and transaction based relationship between solicitor firms and the funder (SLAB), with no requirement for a solicitor to commit to deliver an agreed level of legally aided services to the public. This model does not lend itself to planning or designing services that respond to emerging needs or to address specific user needs, as would be expected in a public service.

We recognise that those solicitors and advocates who provide legally aided services are undertaking important work: work that facilitates access to justice and helps citizens have opportunities to effectively challenge the state and to seek to uphold their rights. Often legal aid is used to support the most vulnerable members of society and persons at a point of crisis in their lives. Not only is there a personal benefit for those receiving the service, but a real societal and therefore public value to this work in helping to address issues such as homelessness, debt and family breakdown.

The Review recommended that the legal aid system should be considered a public service. This could address some of the negative public perception and media reporting on this essential part of a rights-based society. While only 2% of the population has been likely to access case by case funding via the Legal Aid Fund in any given year, the availability of legal aid supports the delivery of access to justice and the rule of law, therefore benefiting social cohesion in Scotland as a whole. We agree with the conclusion of the Review that for our legal aid system to achieve its full potential, we must build on its current strengths and recast it as a public service. Re-setting the legal aid system as a public service would help to achieve a better appreciation of its important role to living in a rights-based society.

Building on the conclusions of the Christie Commission^[1] and the analysis, findings and recommendations in the Review, we support changes recommended that can move legal aid closer to the public service model. These include:

• A clear focus on the needs of all user groups in the design and delivery of services, including transparency of availability and eligibility;
• A consistency of service across geography and in terms of quality that does not vary over time, except in line with an agreed and managed change process;
• Governance structures that are accountable, transparent, cost-effective, streamlined and efficient;
• A whole system approach, involving cooperation and collaboration where possible across boundaries to achieve stated outcomes; and,
• Includes accessible digital services.

If legal aid is deemed to be a public service then Best Value considerations are engaged, which brings more accountability of the service and outcomes and drive continuous improvement. The Scottish Government wants the wide scope of legal aid to remain available but needs this to be sustainable and therefore Best Value drivers could assist. The current structures do not easily lend themselves to such an approach, but a more user centred and flexible system could.

Questions

• As currently structured and delivered, do you consider legal aid a public service?

Yes / No / Unsure

Please give reasons for your choice

• Are there changes that you consider would make legal aid function more as a public service ?

Yes / No / Unsure

Please give reasons for your answer

• Are there potential risks to looking at the delivery of legal aid as a public service?

Yes / No / Unsure

Please give reasons for your answer