Legal aid in Scotland needs fundamental reform, and the Society has taken the initiative with a wide-ranging discussion paper containing proposals for both criminal and civil funding
The legal landscape has changed significantly over recent years. During that time, the Society has contributed constructively to efforts to modernise our justice and courts systems, highlighting where improvements could be made and challenges might arise. Given that ongoing process of change, the time is right for a root and branch reassessment of legal aid in Scotland.
Now almost 30 years old, the legal aid system has failed to keep pace with those wider reforms ñ it is now so complex that even highly experienced solicitors find it difficult to navigate ñ while the real-terms decline in funding of legal assistance is a matter of serious concern.
Although it has delivered high standards of advice to a wide section of the population, the current system is no longer fit for purpose. With that in mind, we should examine how to promote simplicity, efficiency, quality and sustainability, while also considering how savings could be reinvested to ensure that people obtain the best legal advice when they need it most, regardless of their status or wealth. That reinvestment could, in turn, deliver savings to the justice budget and benefit the wider economy. Those who provide this essential service must also be fairly paid, to ensure we maintain our high standards and encourage new entrants to the legal profession.
At the beginning of November, the Society published a discussion paper on ideas for reforming civil and criminal legal aid. This has been sent to legal aid practitioners, MSPs and other stakeholders, and is also available on the website. Proposals include: reinvesting savings made in the legal assistance system; creating a system to encourage early resolution of cases; streamlining the block fee system and introducing a single criminal legal assistance certificate; and offering affordable loans for civil cases to replace the current client contribution system administered by the Scottish Legal Aid Board.
Due to pressures on public spending, there are no easy solutions. But I am confident that a comprehensive analysis of the future of legal aid in Scotland, together with a passion for protecting access to justice, will encourage new ways of thinking, for the benefit of all.
Also in the past month, the Society submitted its response to the Smith Commission on the further devolution of powers to the Scottish Parliament. Enhanced devolution raises complex political and legal issues, which will require considerable thought and consultation.
Focusing on the legal and technical implications of further devolution of powers, the Society highlighted issues such as the relationship between Westminster and Holyrood, and the need for proper pre-legislative scrutiny in the Scottish Parliament if further powers are delivered. We also stressed that EU law should be properly brought into Scots law, and human rights must be adequately protected. The Society looked at the case for devolving some taxes, and other areas currently reserved to the UK Parliament such as data protection, partnership law, elements of consumer protection law, the process and procedure of the employment tribunal system, and health and safety law. Although the timetable for the Smith Commission is tight, proper debate and continued consultation remain vital if a sustainable settlement is to be reached.
In other initiatives, the Societyís innovative Street Law project is now underway, with schools in Glasgow and West Lothian piloting the legal education programme. The project, which aims to increase understanding of the law, democracy and human rights among young people, is a great example of the valuable work carried out by the Society in partnership with others. Everyone should have the opportunity to learn about how the law affects them in their everyday lives. The pilot has already generated a positive response from pupils and teachers alike, and a wider rollout of the project in schools across Scotland will hopefully be possible in the future.
Alistair Morris is President of the Law Society of Scotland