Independent review of legal aid in Scotland: our response

Ministerial Foreword

In February 2017 the former Minister for Community Safety and Legal Affairs, Annabelle Ewing, invited Martyn Evans, CEO of the Carnegie Trust, to chair an Independent Strategic Review of Legal Aid in Scotland. Over the following year Martyn Evans, supported by a review group made up of legal and consumer professionals and academics, engaged with a wide-range of stakeholders, including members of the legal profession, representative bodies, the third sector and the public before producing his report and recommendations to Scottish Ministers. The Chair’s report, “Rethinking Legal Aid”, sets out a long term vision of a citizen-focused legal aid and advice service in Scotland for all forms of publicly funded legal assistance. That vision is underpinned by a mission to create and sustain public trust and provider confidence in the legal aid system. The report identifies six strategic aims, and consequently 67 recommendations on how that vision could be achieved and how shorter term improvements might be made.

In making these recommendations, the report was clear that the Scottish legal aid system compares very well internationally, and that these recommendations could move it towards being one of the best in the world.

This report was one of the first things I considered when I took up post as Minister for Community Safety, and I found it a very positive report; its vision and support for the legal aid system in Scotland is clear, as is the frustration at the lack of public awareness and appreciation of the current system. I have since met with a number of stakeholders with a keen interest in the report and recommendations, some with firm views about what should, and should not, be taken forward.

The vision sets out a 10-year reform strategy, but it will not take 10 years for change to happen. Some of the recommendations can be taken forward in the shorter term, and that is already happening. Some require a new statutory framework to replace the existing outdated Legal Aid (Scotland) Act 1986.

Legal aid is often a contentious issue, with wide range of interests and perceptions on how it should operate, and for whom. That is evident in the report and from the many views that have been expressed since publication.

I am clear that the wide scope of actions for which legal aid is available should continue. I support the development of a new legal aid system in Scotland that is user-focused and has the flexibility to adapt according to emerging situations and developments.

While I recognise the intention, I am not persuaded that we need a new public body to replace the Scottish Legal Aid Board to deliver reforms to the legal aid system in Scotland. Effort and resource will be directed towards the design and delivery of a new system of legal aid, rather than a new public body.

I know that many in the legal profession were disappointed in the report’s view that there was no clear evidence to support an immediate general increase in fees for legal aid work. It will be vital for key stakeholders to work together to agree an evidence based process for setting fees for legal aid and what kinds of evidence that could be used. I consider that this is likely to be a longer term project and one which will run in parallel to the package of future reforms of the legal aid system. This Government values the professionals who undertake legal aid work, often for the most vulnerable in our society, and with this in mind I will implement a 3% increase in all legal aid fees with effect from April 2019. This responds to the challenges that have been described to me by the legal profession and their representatives.

Additional short term improvements to the fee payment system including simplification and further block fees will be consulted on in the new year.

Further shorter term improvements that will simplify the legal aid system, and can be implemented without a need for primary legislation, will be proposed. We will work closely with the legal profession in delivering these further improvements and hope that constructive joint working can lead to a better system for all involved.

In the longer term, the report provides us with an opportunity to develop a new statutory framework for a modern, forward-looking and person-centred legal aid service for Scotland. I will issue a public consultation next year that will inform the design of that new system with a view, subject to the responses, to introducing a legal aid bill to Parliament to make necessary changes to primary legislation.

I would like to record my thanks to Martyn Evans for his report. His achievement was aided by a strong review group which both informed and challenged him, the many stakeholders who met with and wrote to the review, and by Professor Alan Paterson OBE who provided advice on the international legal aid landscape.

This report provides the Scottish Government’s response to the recommendations made in Rethinking Legal Aid and confirms our commitment to a modern and effective system of publicly funded legal assistance.

Ash Denham
Minister for Community Safety