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Legal aid review calls for "fundamentally new approach"
Sweeping proposals to reform the legal aid system in Scotland have been made in the report of the independent review under Martyn Evans, published today – but it turns away calls for an immediate overall increase in fees.
Instead, Government and the legal profession should commit to an evidence-led review, agreeing to observe the outcome – whatever that might bring.
The report contains a measure of praise for the present system, while asserting that there is much scope for improvement, focusing on the interests of users.
"I found, rather to my surprise, that the Scottish legal aid service compares very well internationally", Mr Evans writes in his foreword, while adding: "That finding should not lead to any complacency."
After considering four possible approaches – retrench and reduce services; restructure and organise services in a different way; reform and focus on improving delivery; or rethink and develop a completely new approach – he says he concluded, "along with many of those who provided evidence, including the Law Society of Scotland, that we need a fundamentally new approach".
"We need to rethink legal aid and in doing so, widen it to encompass the whole range of what I have called ‘publicly-funded legal assistance’. We must also place the interest of users at the heart of this service."
His message on fees poses a challenge. He "could not find the evidence to justify" a general increase in legal aid fees, but recommends "an evidence-led review of fees and income for ‘judicare’ lawyers". That, he says, "is no soft option. Such a review carries a very significant risk for both the Government and the profession. Both have to commit, approve the ground rules and agree to abide by the outcome".
While building a persuasive and robust evidence base for any increase in fees is important, so too is public trust, Mr Evans writes. "I became concerned during the review that in making the tactical case for increased fees for legal aid lawyers, in the ways they have done, the profession is losing the strategic argument with the public about the value of publicly-funded legal assistance to the rule of law and building a fairer Scotland."
The report sets out six strategic aims:
- placing the voice and interest of the user at the centre;
- maintaining scope but simplifying the system;
- supporting and developing an effective delivery model;
- creating fair and sustainable payments and fees;
- investing in service improvement, innovation and technology; and
- establishing effective oversight.
A total of 67 recommendations are made to meet one or other of these aims.
To meet the first aim, third sector advice sectors and local authorities should be included in strategic planning and delivery; a consumer panel should represent the interests of users; a solicitor reference group should be involved in court business planning; and public information programmes should be targeted at helping people deal with problems.
The second would involve balancing the rules on contributions and clawbacks more fairly between income and capital; a formal review of contact cases to consider how to resolve them within an reasonable time; availability of legal aid for group or multi-party actions; and looking at a "preferred supplier" list for outlays.
Public policy should meet effective delivery by a funded mix of demand led and targeted assistance delivery models, including funded solicitors "embedded within third sector organisations who have a significant civil case workload". Signposting services should be available to the public, and the in-court advice services extended across all sheriffdoms.
The fees review should include the actual incomes of legal aid lawyers and firms. Higher fees should be possible in designated geographical areas or types of law, in order to ensure access to services. Criminal fees should be a priority for review. Firms and advocates with a good track record of claims should be allowed quarterly payments in advance. Registered firms and advice services should be willing to take a minimum number of referrals. And Citizens Advice Scotland should be supported to provide an online service.
Savings achieved should be reinvested in service improvement and innovation, and all providers should be required to adopt an "any door will do" policy – referring callers to appropriate providers and offering to make an appointment.
Under the final heading, there should be a new Scottish Legal Assistance Authority with overall responsibility for delivery, and monitoring and quality assurance powers, as well as powers to adjust the delivery model. It should be required "to deliver changes to the system within a consultative, transparent and accountable process", and lead efforts to raise public awareness of the system.
Ministers have promised a formal response "in due course". In initial comments Legal Affairs Minister Annabelle Ewing said: "I am grateful to Martyn Evans and members of the independent review group for their work over the last year. This report provides a platform for further reforms of the legal aid system in Scotland and we will consider its recommendations in consultation with justice organisations, the legal profession and partners who have been tasked with change.
"Scotland’s legal aid system is world-leading but improvements are needed to ensure its sustainability and I will meet with the Scottish Legal Aid Board, Law Society of Scotland and Faculty of Advocates as a priority to discuss next steps."
Click here to view the report.