Independent review of legal aid in Scotland: our response

Strategic Aim 2: Maintain scope but simplify

The report considered the wide range of justiciable problems which fall within the scope of legal aid in Scotland. Against that context it also discussed the financial implications, particularly when high cost cases were supported. It noted that improved case management might lead to faster conclusion of long-running cases, and suggested that better use of other forms of resolution could be engaged, where appropriate. However, it was the complexity of the case-by-case funding of the system that was most striking to the Chair, and he considered this to be the most pressing aspect requiring change. Simplification of that system, in terms of eligibility criteria, contributions, clawback and the rules and regulations surrounding it, was vital.

The Scottish Government welcomes the recommendation that the current scope of legal aid be maintained. In taking forward reforms to the legal aid system we will seek to both maintain the current scope and improve access to legal services that it supports.

Simplicity is the central feature of this aim, and one which will be central to the design of a new legal aid service in future. However, there is scope for improvement within the current system. Since the publication of the review, the Scottish Legal Aid Board has been undertaking significant work to help bring about improvements within the current system. There is a major and ongoing project to make its online handbooks and associated guidance more user friendly, including a pilot of an approach to clarify the Scottish Legal Aid Board’s decision-making processes to aid the submission of relevant information by solicitors and applicants. A research project into civil contributions is also underway and the findings should be available at the end of the year. These work streams will help to address some of the issues raised in the report under this strategic aim, without legislative change.

In moving forward, there is a careful balance to be struck between simplicity, flexibility and fairness. While the tests around eligibility and the system of contributions may be considered burdensome, it must be kept in mind that the current system is underpinned by a desire to enable legal aid funding to be secured by those who would be unable to access legal services on a private fee paying basis. Complexity has been driven by fairness. Any adjustment to the current regimes of financial eligibility needs to be explored with this in mind. We do recognise that the administrative burden on both the profession and the Scottish Legal Aid Board is an area where more immediate improvements can be made. Prior to the summer recess, the Scottish Legal Aid Board and the Law Society of Scotland began working jointly to identify how best to tackle inconsistencies within the legal aid types, to streamline the application process to reduce the administrative burden and to consider the viability of a single legal aid type. This work with the Law Society of Scotland will form the basis of future advice from the Scottish Legal Aid Board to the Scottish Government on how a legal aid structure that balances simplicity, fairness and flexibility might be taken forward.

We have also identified options with regards to case related outlays, given recommendation 19 suggested that a preferred national and/or local supplier list be developed. There are a number of ways to help achieve greater surety and control over outlays; empowering the Scottish Legal Aid Board to fix a preferred supplier list and to set rates for commonly used experts is just one way to achieve more control. Notwithstanding, issues around cashflow associated with these costs are appreciated. In the interim, current judicare arrangements could be altered either to allow for direct payment of outlays by the Scottish Legal Aid Board, or to enable quicker reimbursement, although risks around clawback (for example) would need to be controlled in each scenario. The Scottish Legal Aid Board will explore this further with the legal profession and provide advice to Scottish Government on options for progress.

Work has begun on achieving progress on many of these recommendations within the current statutory framework; case management, other forms of resolution and funding, simplification. The public consultation will also inform how the recommendations might be delivered within a future reformed legal aid service.

We are mindful that some of proposals regarding case management under this aim are already under consideration as part of other initiatives. The recent Scottish Government review of Part 1 of the Children (Scotland) Act 1995 and the Scottish Civil Justice Council’s consultation on the Case Management of Family and Civil Partnership Actions in the Sheriff Court may also help inform how contact cases could be better dealt with. The availability of legal aid in group or multi-party actions was explored during the passage of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and this will be developed further as work on court rules develop.