Independent review of legal aid in Scotland: our response

Strategic Aim 4: Create fair and sustainable payments and fees

The report recognised that fees for solicitors providing legal aid was a contentious issue and that the tension created by debate on the level of fees contributed to some of the negative reporting on legal aid which in turn impacted on public support. There was an impact on levels of morale within the solicitor profession who undertake legally aided work and the report makes recommendations on addressing these morale issues. The report concluded that there was insufficient evidence to support a recommendation for an overall uplift in fees, but that an independent, evidence-based process should be established with the aim of creating fair and sustainable fees. There were also recommendations on the payment framework in the form of memorandums of agreement to cover levels of service and engagement in wider planning and for variable fee models to improve access to legal services in some areas of law and geographic areas.

The Scottish Government is determined that future payment frameworks must be fair to both the taxpayer and the provider; and that they are transparent, flexible, supportive of innovation and increased efficiencies, and include some accountability for service delivery. Payment frameworks should ensure that a valued public service be delivered sustainably. Equally we acknowledge the financial challenges being faced by the legal profession in face of falling volumes of business, changes in court processes and levels of fees.

We agree that an evidence based model for agreeing levels of fees should be developed, and are committed to working with the profession to achieve that aim. We also agree that the broader framework within which fees sit should be reviewed, and that this should be done with the legal profession. However, we also recognise that this will be a challenging and potentially time consuming recommendation to deliver in an impactful way; while the report makes suggestions on how this might be achieved, we consider it would be more beneficial to agree the methodology for such a model in dialogue with the legal profession. This will take some time and we intend to establish a working group to agree that model. The group will consider options for data and evidence collection and how these will be used. That work will inform the gathering of the agreed data and evidence to determine a fair and sustainable fee regime, which again will be subject to agreement by the legal profession. We will work with the profession to agree the membership and remit of a group early in 2019 and ensure the progress is being communicated to those with an interest.

Given that an evidence based approach is unlikely to lead to a short term solution on fees and in recognition of our commitment to ensuring access to justice, the Scottish Government intends to implement a 3% uplift to all legal aid fees with effect from April 2019. We value the professionals who deliver legal aid and trust this increase will encourage collaborative and constructive partnership working on a long term proposal around fee reform and shorter term improvements to the fee structure.

In the new year we will be taking forward consultation around fee reform with both the Faculty of Advocates and the negotiating team from the Law Society of Scotland. We have identified areas where simplification of fees can be undertaken in the short term which could deliver the following benefits:

• Facilitating the early resolution of cases
• Reducing the need for costly preparation of accounts and the need to review and re-negotiate solicitor accounts
• Providing faster and more certain payment to solicitors
• Reducing administrative costs to the profession
• Minimising the risk of payment for unnecessary or excessive items of work

In addition to consulting on simplification to the criminal fee system we will work with civil practitioners to identify areas for improvement.

The report considered payment for services outwith the case-by-case solicitor fee arrangements, by way of grant funding, and made a recommendation that the existing funding cycle be moved from a single year budget to a three yearly cycle. The rationale for so doing was echoed recently by Community Justice Scotland’s pre-budget evidence to the Justice Committee; the Scottish Government hopes that the next UK Spending Review in 2019 will offer sufficient multi-year budget information to provide the Scottish Government with the opportunity to develop a multi-year approach to the development of its budgets.