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Simplicity and funding top Society concerns in legal aid response

19 September 2019

Making the legal aid system easier to navigate for solicitors and members of the public, and concerns about the sustainability of funding for the service, come top of the Law Society of Scotland's priorities for the system in its response to the Scottish Government consultation on legal aid reform.

The consultation follows the 2018 review led by Martyn Evans and sought views on how access to legal aid could be improved to make it more flexible and reduce complexity, as well as how to maintain and strengthen its scope. However, it did not include the issue of fees, which is under consideration by an expert panel.

Among its responses to specific questions, the Society:

  • doubts the suitability of legal aid for local arrangements under the community planning partnerships model;
  • emphasises that "Any targeted approach to funding must take into account the need to preserve the independence of the legal profession and access to a solicitor of choice";
  • highlights "structural challenges" in considering legal aid as a public service in some areas of law, particularly those in which the decision of a public body is being challenged;
  • calls for openness and accountability of, and proper resourcing for, the Scottish Legal Aid Board;
  • opposes any memorandum of understanding being introduced between SLAB and individual providers of legal aid, as any service standards should be embedded in the legal aid scheme itself;
  • does not believe SLAB needs additional intervention powers;
  • believes that it may be appropriate to allow solicitors working in-house for organisations dealing with issues such as domestic violence or disability to provide publicly funded assistance;
  • has concerns around the suggestion of a telephone triage service to provide basic advice and referral assistance;
  • does not support extending the civil legal aid grant funding model to criminal or children's legal aid;
  • supports a single eligibility assessment at the earliest point in the application process;
  • supports a consultation being held into how funding should be made available to those interested in fatal accident inquiries;
  • has "significant concerns about contributions in criminal legal aid cases";
  • strongly supports reforming the way that outlays are managed.

Mark Thorley, co-convener (civil) of the Society's Legal Aid Committee, commented: "The consultation is welcome as it provides the opportunity to create a fairer and simpler legal aid system, and we support many of the proposals put forward, including enhancing the user voice in the legal aid system, developing simpler systems and a coordinated approach to outlays.

"We have highlighted the importance of having a strong network of legal aid firms and practitioners across the country who can assist in a wide range of areas of law including helping people deal with family separation, child custody, housing, employment, immigration and more. One of the great strengths of the current legal aid scheme is that it accesses the network of solicitors across Scotland, with the capacity to match the breadth of the scope of legal issues. However the number of legal aid providers is rapidly declining, mainly due to the bureaucracy and complexity of the system and the unsustainability of how the legal aid system is funded."

While consideration of fees did not form part of the consultation, the sustainability of funding would be "critical to the success of any legal aid reform".

Ian Moir, the committee's co-convener (criminal), added: "Reforming the legal aid system so it works better for everyone in the legal aid sector is vital, and it is also important for those considering entering the profession too. As set out in our consultation response, access to justice is a fundamental right with legal aid crucial in providing that access to people who are otherwise unable to afford it. The lack of means should not prevent a person from enforcing their rights and legal aid provides access to justice across Scotland, protecting human rights and helping people during some of the most difficult periods in their lives.

"The current legal aid system is complex and difficult to navigate, both for solicitors and members of the public. Present arrangements do not best serve the purposes of the legal aid system and simplification is essential. Improvements including abolishing the categories and creating a single continuous grant of legal aid would make the system easier to navigate and more able to adapt to the individual needs and circumstances of clients and solicitors, resulting in less delay and confusion."

Click here to view the full response.


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