Independent review of legal aid in Scotland: our response

Context for Change

Around 2% of the population of Scotland makes use of legal aid provision annually. This leads to a perception that it is not truly a public service, like health care or education for instance. The majority of us will not have occasion to access the legal aid fund but there will be some who will find themselves in need of advice whether civil or criminal and it is vital that our citizens are aware of their rights to advice and representation and obtain support appropriate to the method of dispute resolution that best addresses their needs. Legal aid, as a public service, should ensure that those who find themselves with justiciable problems can access appropriate advice services and representation if and when required. The availability of publicly funded assistance to uphold the Rule of Law and individual rights benefits all of society, not just those who directly access that assistance.

The current legal aid system is not always held in high esteem. It is often not widely appreciated that legal aid supports crucial services delivered by private solicitors, law centres, public sector lawyers, local authorities and third sector advice services, who carry out work with a high but largely unseen social value; work that keeps people in their homes, in contact with their families and protects rights in the criminal justice system and employee rights, to name but a few. In doing so, legal aid supports an individual’s wellbeing, promotes their continued contribution to society, and helps to prevent an escalation of problems and potential entry into other parts of the justice system. Those who provide legal assistance are carrying out important work, often supporting the most vulnerable members of society, and this should be recognised in the way we design and deliver services.

Some may query why radical change is required when the report held the current system in such high regard. Put simply, much about the current system is good, but we can make it better. The current statutory framework supporting the provision of legal assistance is found in the Legal Aid (Scotland) Act 1986, which established the Scottish Legal Aid Fund and the Scottish Legal Aid Board, and the many regulations made under this Act. This framework has undergone myriad amendments and additions to reflect changes in domestic and ECHR law and court practice. Consequently, substantial subordinate legislation exists, which frequently requires to be updated or amended, often by the affirmative parliamentary procedure; the discretionary Ministerial determination power may be used to direct that other payments be met from the Fund. This can cause delays for those needing help from a system that can appear overly complex and difficult to navigate. It is not always an effective use of the resources of the Scottish Government, Parliament and the Scottish Legal Aid Board. Furthermore, it is often not an effective use of the resources of those providing legal assistance, as it can be difficult to keep abreast of changes to the rules and regulations has led to account abatements and disputes over interpretation.

Instead of continually adjusting what is currently in place we have an opportunity to look at what we want to achieve and the legislation and structures needed to be in place to get there. Making no change may retain a good system by international standards, however it is still vulnerable to the impact of societal changes or court rulings and unable to quickly respond to emerging needs of individuals. To ensure legal aid is a valued public service, more user-centred legislation which is flexible and better able to react to changes in the justice system should be put in place.

The ultimate outcome is for a service that provides assistance to the people of Scotland to resolve their justiciable problems. This requires improved powers to design the providers framework and support providers. It will increase the general public’s knowledge of their rights and responsibilities and that will empower them to resolve issues through the most appropriate route. A service provided by better integrated delivery of publicly funded legal assistance services should mean that areas of difficulty in accessing advice can be more readily identified and targeted. Being able to identify and triage in this way, with more flexible legislation, will allow the Scottish Legal Aid Board to take more proactive steps to address advice needs. This will lessen the burden currently felt by legal service providers and the courts. It will also have benefits in other social policy areas such as health, housing, and criminal justice.

Importantly, this aspiration aligns with the Scottish Government National Performance Framework outcomes:

• We live in communities that are inclusive, empowered, resilient and safe

• We respect, protect and fulfil human rights and live free from discrimination
• We are a society which treats all our people with kindness, dignity and compassion, respects the rule of law, and acts in an open and transparent way
• We tackle poverty by sharing opportunities, wealth and power more equally
• We have thriving and innovative businesses, with quality jobs and fair work for everyone

They also align with the outcomes set out in the Justice for Scotland: Vision and Priorities document (2017):

• We live in safe, cohesive and resilient communities
• Prevention and early intervention improve wellbeing and life chances
• Our system and interventions are proportionate, fair and effective
• We deliver person-centred, modern and affordable public services