The Scottish Government

Modernising Legal Aid

Modernising Legal Aid, Advice and Information

Keynote address by Minister for Justice to joint SLAB/Law Society Conference

October 24, Dunblane

I am please to be have the chance to speak to you today. I want to talk about modernisation - modernising our justice system - and as an essential part of that, modernising legal aid.

As an Executive, we have set out in our Partnership Agreement an ambitious programme for the next four years. It sets out the building blocks towards our long term goal of a safer and stronger Scotland, confident and prosperous communities, and excellent public services.

The justice system, and every individual and institution involved in it has a key role in delivering on this commitment.

An effective, efficient and fair public justice service is absolutely vital for creating that stronger, safer Scotland. And I am equally clear that our justice system needs to be based on firm principles of fairness and equality.

When I talk about modernisation I'm talking about adapting our justice system and its institutions to the current times. And in times where the confidence of ordinary families in law enforcement, in our courts, and in the effectiveness of sentencing is far too low, and where there is widespread cynicism about the ability of the system to deliver fair and prompt solutions to everyday problems, we have to make changes where they are needed.

• Changes that will ensure our justice system, both criminal and civil:
  
  • is effective and efficient in handling the ever growing volume of business
  • is accessible and user-friendly for those who have to use the system
  • is fair where it most needs to be fair - fair for the vulnerable, fair for ordinary, honest, hardworking people, fair for communities trying to fight their way out of deprivation
  • is relevant to Scottish society in the 21st century
  • but above all inspires public confidence and a sense of ownership.

I know these are ambitious goals. Ambitious because of the scale of change that they imply. Radical and comprehensive reform, finding Scottish solutions for Scottish problems.

And we need to find solutions together. Because the change and improvement I envisage cannot be achieved without the sustained and committed effort of all involved.

Because all of us have a responsibility for improving the effectiveness and fairness of our justice system. For making it work for the people who need it.

The goals I have set for modernisation are the right goals. They are the goals that shape our work on court reform, where the Bill enacting the main provisions of Lord Bonomy's report has now been introduced to Parliament.

And we are already preparing for the next stage of the court reform process.

An equally wide ranging review of the summary justice system, chaired by Sheriff Principal McInnes, is under way, and we should receive recommendations by the end of the year.

We must restore public trust and confidence in the criminal justice system - a public service which exists on the basis of our shared values.

So we are setting up a Sentencing Commission, chaired by Lord MacLean, to look at the consistency and effectiveness of sentencing, and the use of fines, bail and remand.

And we will publish proposals for consultation for a single agency to deliver custodial and non-custodial sentences, with the aim of reducing re-offending rates.

And the goals of fairness and accessibility, of effectiveness and efficiency, all relevant to our 21st century society, must equally shape our work in the civil arena.

Scotland at the beginning of the 21st century is a land of many cultures, beliefs and lifestyles, all of which contribute to our society and have helped to make it what it is today.

To serve this society well we need to develop modern laws, based on modern Scottish values of tolerance, equality and opportunity, to deal with the complexities of modern life.

Laws which ensure fair and prompt solutions for problems that people and businesses encounter in their everyday lives.

And - and this is crucial - we need to ensure that those who need the law will not be excluded from using it, whether due to prohibitive costs, lack of knowledge or lack of help.

Let me now set out how we will take forward our modernising work in both civil and criminal legal aid, and what the underpinning principles will be.

(Legal aid)

I have no doubt that legal aid, in fact all kinds of legal information, advice and representation are fundamental to an effective, efficient and fair justice system.

In Scotland we have much to be proud of when it comes to legal aid.

Our system, in part, provided the original model for some of the most developed legal aid systems throughout the world. Indeed, in its scope, coverage and level of expenditure it still deserves to be the envy of many.

The range of issues on which a person can get assistance, the level of help available, the accessibility of legal aid practitioners spread across the whole of the country, are things we may take for granted, but that also set a standard of what is possible for others.

But here, as elsewhere in the justice system, we need to move with the times - modernise, adapt to current needs and circumstances. We need to recognise that while many other legal aid systems have developed and evolved over the years, legal aid in Scotland has not changed where perhaps it should have and could have.

On one level change is continuous, never ending it may well seem to many of you. New Regulations come through all the time, mostly necessary as a result of legislative change elsewhere, or to make incremental improvements to the operation of the system.

Of course in the last two decades we have seen some significant changes - the establishment of the Scottish Legal Aid Board itself, the introduction of fixed payments in summary criminal legal aid, and, very recently indeed, the reform of civil legal aid.

Yet where other jurisdictions have looked at the pressures and problems in their legal aid systems, have assessed their priorities and found solutions in many different - and sometimes radical - ways over the past two decades, our system, in many respects, has fundamentally remained unchanged.

Modernising legal aid should not just be about making new rules. It has to be more than that, do much more than that.

We need to think afresh about what publicly funded legal services are for, and whether the current legal aid arrangements deliver on what we want.

So I want to go back just for a moment to first principles: What is legal aid for? Why do we spend public money - large amounts of public money - on making legal advice available for those who cannot afford it?

The Scottish spending on legal aid alone comes to £140-£150 million a year. £150 million a year is more than what we spend on the entire Scottish Ambulance Service!

And legal aid is not the only public money being spent on providing advice on legal matters. Do not forget the public money being spent on advice agencies by local and central government. And on advice services provided by local authorities themselves.

So why spend this money? What does it achieve?

I firmly believe that publicly funded legal advice, especially for those who cannot afford to pay for it, is an essential part of any modern justice system in a democratic society.

The law and the legal system are the guardians of individual rights and safety, as well as of our collective values.

It cannot, and must not be the case in a Scotland where we want a justice system rooted in the principles of equality and fairness, that only some can use the law and access the legal system, whether it is to find the protection that they need, the redress that they seek, or to defend themselves in the criminal court.

The importance of this cannot be overstated. We cannot allow our society to be one where many people have little faith in the law and the legal system, have fear of using it, and are very cynical about its ability to deliver fair solutions. Such cynicism undermines the very fundamentals of democratic society.

So as well as restoring public confidence in the effectiveness and fairness of our criminal justice service, we must ensure that ordinary people with everyday problems can feel confident that they can use the law and get access to the legal system.

And growing European integration and the removal of borders, gives an ever more complex dimension to our everyday legal affairs, and can make any problems even more difficult to resolve.

I therefore welcome the European Day of Civil Justice, which will be held tomorrow across the European Union, to raise the profile of this international dimension.

If everyday legal problems are identified and tackled early and promptly, society benefits in many ways.

As you all well know, problems seldom come alone - they come in clusters, and problems are exacerbated when no action is taken to resolve them. The downward spiral of one problem leading to another can lead to social marginalisation and exclusion - at a huge social and financial cost to individuals and society.

If we can help people become better aware of and better understand their rights and their responsibilities, help them understand how they may be able to use the law and the legal system if they need to, we will strengthen our communities and society as a whole, restore a sense of ownership in the justice system and we help stop the erosive trend of alienation.

As I have said, modernising legal aid, must be more than just making new rules. We need to be open-minded and look at all our practices, our institutions, our roles and our goals in delivering legal advice paid for by the public purse.

We need to look beyond the confines of what is legal aid in Scotland has been in the past and consider how in future we can best deliver publicly funded legal information, advice and representation, both on criminal and civil matters, aimed at those who cannot afford to pay for it.

(Civil)

So what happens when people have civil legal problems, or, to put it differently, when they have a problem for which a legal remedy exists?

Recent research confirms what many already knew: solicitors are by no means the only source of advice and information on legal matters.

The 'Paths to Justice' Research (well known to some of you, I am sure), undertaken by Professors Alan Paterson and Hazel Genn a few years ago, looked at what people in Scotland do about going to law.

It showed that when people want advice on legal problems they use a very wide variety of sources. The most common first point of contact is indeed a solicitor, with three in ten people going there first. The next most common source of advice is the Citizens Advice Bureaux, where just under one in five people went first of all for advice.

After these two major advice sources, accounting for just under 50%, there is wide variety of advice providers, ranging from the police to trade unions, local authority departments, housing associations, insurance companies, advice agencies, welfare rights and trading standards officers. The list is long.

Legal advice, information and representation are provided by a huge range of agencies and organisations, many of which are not traditionally recognised as doing so. The choices people make will be determined by a number of factors - what's available to them locally, who do they feel comfortable approaching, who do they trust.

When modernising the civil side of legal aid we need to take account of this reality.

We need to look at the roles being played by all who are involved in providing advice and help to people on legal matters, all who are involved in the provision of publicly funded legal advice and information, assistance and representation.

We need to think about who does what, and ask ourselves who may do what best. We need look at what people actually do and where they go to seek help, - not in order to change what people do, but to work with it, and to ensure that good quality legal advice is accessible where and when people look for it.

I'm very clear about the objectives of modernising civil legal aid, and provision of legal advice and information:

• I want better access to legal information, advice and representation - people need to be able to get legal advice when they need it, wherever they may live and whatever their particular needs might be;

• I want to be sure that high quality advice is provided, across the board, from all providers, and that the public can be assured that the advice they get is good - bad advice, after all, is often worse than no advice;

• And I want to be sure that we get the best possible value for the public money we invest.

To deliver on these objectives there needs to be a national strategy and a planning framework. I am well aware, we do not have these at present. The provision of publicly funded legal advice, across the sectors, is largely demand led, and not based in any consistent assessment of priorities and needs. This needs to change.

(Next steps)

So much for the principles, the intentions and the objectives, you may say, but what will I be doing?

First of all, over the next six months we will carry out a strategic review of the delivery of legal aid, in its many forms.

The Board has shown its ability to turn around and improve its business performance in the past few years, and I am sure you will all recognise that great improvements have been made.

The review process is a regular aspect of public sector business and it is coming around at a very opportune time, giving us the ideal opportunity to look more strategically at how we deliver legal aid. We will consider the role, functions and powers of the Board, as well as the roles of all of those involved in the delivery of publicly funded legal advice.

We will look at how these may need to be changed in the light of the policy to modernise legal aid and the objective to deliver a national framework for legal advice, information and representation.

The review will also look closely at promoting effectiveness and efficiency in the delivery of legal aid, especially criminal legal aid.

Secondly, we will work closely with local authorities in Scotland to increase awareness of their role in funding and providing advice and information on legal matters.

There are strong arguments for local authorities to review their role and activity in this area systematically and strategically and to look at how they may provide better joined-up, client-centred advice and information to their communities. In particular we will look at how existing processes, such as Community Planning and Best Value reviews can be used.

Thirdly, we will develop a generic quality assurance scheme for legal advice and information, which will underpin the future framework for legal information, advice and representation. We must create a system that is applicable to all the various bodies that deliver advice.

If we truly want to include providers across all sectors in a framework for publicly funded legal advice, we need to be serious about developing a common language and common standards.

We have come a long way already on quality assurance - not least in the context of legal aid. Most will accept its principles. Now we have to consider going all the way - work towards shared standards and comparable systems for all advice provision.

And finally, our research and pilot activity will continue A large scale research project which aims to develop tools for assessing relevant and absolute priorities for legal advice provision is nearing its conclusion. In addition we have four pilot partnerships working towards the development of local strategic plans for advice provision, and the four Part V pilots coordinated by the Board are also continuing.

Today we publish the Research Findings of the Review of Evidence, which you will find in your conference packs. This research, undertaken to inform further work on developing legal information and advice provision, highlights some of the strengths and weaknesses in the situation in Scotland. It has identified some key challenges for us, for example:

• how to improve strategic planning and the coordinated delivery of services,

• how the ensure we maximise the use of existing services and structures before we create new ones

• the need to clarify the role of lawyers and non-lawyers in the provision of legal advice and information.

Research like this, and our pilot activity, is immensely valuable to help us structure our priorities for improving existing services much more effectively, and I welcome this contribution.

(Criminal legal aid)

Before closing, let me say a few words on modernising criminal legal aid - which I know will be of interest to many of you.

In Criminal Legal aid, efficiency and effectiveness are great drivers for modernisation. As you may well be aware, it accounts for 70% of the Scottish legal aid budget, nearly £100 million a year.

We are starting to look at how we can measure the outcomes we achieve for this money (another strand to our research activity). This is no easy matter. Yet measuring outcomes for both practitioners and individuals using the legal aid system is crucial to find out where improvements can be made. And given the level of expenditure, this must include assessing value for money.

We cannot ignore the value for money question, because justice, is a public service its funding comes from the public purse and there are competing demands on that purse.

The importance of the principle of criminal legal aid in a mature democratic society is without question, and I have already set out the importance I attach to both criminal and civil justice being fair, accessible, and based in the principles of equality.

Yet it is equally important that other public services such as health care, education and housing are underpinned by values of fairness, equality and accessibility. As with other public services, fairness and democracy in justice cannot be pursued with no conditions attached.

Some people have taken the view that 'you cannot put a price on justice'. I don't subscribe to that view. We can, we do, (you all do in one way or another!) and we should. We really have little choice!

The real question, the difficult question for all of us is what priority and shape to give to our quest for efficiency. This is the question at the heart of modernising criminal legal aid.

How can we ensure that the principle of the availability of criminal legal aid is maintained? That the professionals - you - are paid a fair price for the work you do - the reward the work deserves - whilst, at the same time, showing, achieving, and maintaining maximum efficiency under ever growing pressures on public spending?

I may well now disappoint you by saying that I'm not going to give you answers to this question here today. But that's because I want ask you to think with us about this.

Should we, - can we - move the solemn criminal legal aid system from a system that still deals with a multitude of small payments in each case to one that rewards efficiency, skills, and effectiveness? Are there opportunities to create further efficiencies in administration, streamlining processes for all parties?

I know that all sounds like more pressure on solicitors, with no reward. I am aware that the Society has flagged up the need to look at solemn criminal fees; I agree and look forward to discussing this with them.

And at the same time I want to look at how quality assurance can contribute to greater efficiency and effectiveness in criminal legal aid. Because quality assurance is not only relevant in the civil arena - it is equally important in criminal legal aid.

The Board already operates a registration scheme for criminal legal assistance, based on compliance with the Code of Practice. This focuses largely on administrative matters which, although important in quality assurance, are far from the full story. I am keen to see a real measure of quality assurance introduced for criminal work. With this in mind the Executive will be working with the Society, the Faculty and the Board to develop appropriate systems.

And let's remember that progress has already been made with the introduction of fixed payments, and the PDSO. Two more pilot PDSO offices will soon be set up in Glasgow and Inverness.

Let's be clear. This does not mean that the Executive has now decided that the PDSO is the way ahead; the "jury is still out" and that is why I want to run more pilots. We need to give these pilots time to settle down and generate their own business. Only then will we be able to make final decisions.

And the criminal process itself has an impact on the efficiency, or otherwise, of legal aid expenditure, which is recognised in our work on reform there.

As I said earlier, we have now introduced the Bill setting out changes to the procedure and practice of the High Court. These may result in extra demands on criminal legal aid for preliminary hearings, but at the same time there are real opportunities here to improve efficiency - for example through fixed trial diets and the judicial management of trials.

And most of those with experience of the summary justice system would agree that it does not work as quickly as we would like. And it is clear that the arrangements for the provision of legal aid have a key part to play in designing an effective system.

We will make sure that summary criminal legal aid arrangements move forward in parallel with other changes identified by the McInnes review. The Board is already reviewing the "Interests of Justice Test" for summary criminal legal, and will look at developing a new integrated approach to criminal advice, assistance and representation.

The Strategic Review of legal aid, which I announced earlier will consider how to take these questions of efficiency and effectiveness forward. I hope you will take the opportunity to contribute

(Close)

What I have set out today, how we see modernising legal aid shaping up, is not a quick fix. We are at the start of developing a long term strategy for the delivery of legal services. It will take many years to finally come to fruition but we cannot delay making changes any longer.

In the short term we have a big programme of work, and I know that I can rely on the profession - as they always do - to contribute constructively to this process.

And if I want to leave one message with you today, it is that we must all focus firmly on what is best for people who need legal advice, help, representation, on the needs of ordinary people who need to use the legal system.

That is what drives me, I'm sure it is what drove you to enter the profession and that is what I invite you to work with me on.

Thank you.