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STRATEGIC REVIEW ON THE DELIVERY OF LEGAL AID, ADVICE AND INFORMATION - REPORT TO MINISTERS AND THE SCOTTISH LEGAL AID BOARD
Chapter 1 - Introduction
1A Why a Strategic Review
1.1 The Review was announced by the Minister for Justice at the joint Scottish Legal Aid Board (SLAB) and Law Society of Scotland Conference on 24 October 2003.
1.2 Four separate drivers can be identified for the need to take a strategic overview at this point in time of how legal aid and other forms of legal advice and information are delivered in Scotland:
1.3 The Executive's Partnership Agreement commitment to continue to modernise legal aid.
The process of modernising legal aid had started during the first session of the Scottish Parliament, and the Partnership Agreement of May 2003 makes a commitment to continue this process. Early modernisation had already resulted in some notable achievements, such as the reform of civil legal aid. Now it was considered essential however that further modernisation should be clearly linked to other modernisation activity elsewhere, in particular in the criminal justice system, and should also reflect a clear vision for the role and shape of legal aid in the future.
1.4 Recommendations of the Justice 1 Committee report on its inquiry into legal aid.
Since the publication of the Justice 1 Committee report in November 2001 many of the recommendations have been taken forward by the Scottish Executive and the Scottish Legal Aid Board. There were still a number of outstanding recommendations, most of which, due to the extent of change they would involve, could only be taken forward in the context of a strategic consideration of the future development of legal aid and advice provision.
1.5 The wider policy developments on legal advice and information.
Since the publication of the 'Review of Legal Information and Advice Provision in Scotland' (ROLIAPS Report) in November 2001, which examined how a community legal service may be developed in Scotland, the recommended development and research work was drawing to a conclusion. Any further policy development needed to be set in a wider strategic framework for legal aid and advice in Scotland, and should be linked to the modernisation of legal aid.
1.6 The Scottish Legal Aid Board was due for its quinquennial Policy and Financial Management Review. (PFMR)
In 2002 the PFMR of SLAB had been postponed (for operational reasons) with agreement from the Deputy First Minister and Minister for Finance and Public Services. The scope of this Strategic Review is wider than a PFMR of the Scottish Legal Aid Board only. The traditional scope of a PFMR, with a heavy internal focus, was considered not to be appropriate at a time when major policy developments - modernising legal aid - were under discussion. The agreed terms of reference of this Strategic Review encompass the key elements of a PFMR review.
1B Policy context and objectives of modernisation
1.7 This Strategic Review of the delivery of legal aid, advice and information needs to be set and seen in the context of the wider policy to modernise justice in Scotland.
1.8 The Executive's Partnership Agreement (May 2003) makes two specific commitments relevant in this context:
- 'to continue to modernise the law and the legal system to protect individual rights'
- 'to continue to modernise legal aid'.
1.9 The Minister for Justice has, in a number of speeches, interviews and articles expanded on the high level drivers and objectives for modernisation and improvement. The Executive is working towards a 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 the system, has a key role in delivering on this commitment. In doing so the justice system needs to be based on firm principles of fairness and equality.
1.10 The vision set out by the Minister is that modernisation needs to result in a justice system that is in all its facets:
- effective and efficient in handling the growing volume of business
- accessible and user-friendly for those who have to use the system
- fair where it most needs to be fair - fair for the vulnerable in our society, fair for ordinary, honest, hardworking people, fair for communities trying to fight their way out of deprivation
- relevant to Scottish society in the 21 st century
Above all modernisation needs to inspire public confidence and a sense of ownership in the justice system.
1.11 Within that, modernisation of legal aid has to be based on the three core principles of:
- fair reward for work done by those that deliver the service
- the introduction of quality assurance where this is not already in place, and
- the best possible value for the public money invested.
1.12 In addition to these core principles for modernisation of legal aid, the Minister has also indicated that modernisation should result in better access to legal advice, representation and information, so that people are able to get legal advice when they need it, wherever they may live and whatever their particular needs might be, and should focus on the needs of ordinary people who need to use the legal system.
1C Terms of reference
1.13 The terms of reference for this Strategic Review were as follows:
'To carry out a Strategic Review of the delivery of legal aid, advice and information in Scotland, including the role of the Scottish Legal Aid Board, in the context of Scottish Ministers' commitment to modernise legal aid, streamline criminal justice and pursue an active access to justice agenda for the benefit of the citizen, and taking into account the report of the inquiry on legal aid of the Justice 1 Committee.
1.14 The Review will focus on:
- the purposes and objectives of legal aid, advice and information in the context of the modernising justice agenda, and the roles, responsibilities of and relationships between the various stakeholders
- the steps that are necessary to implement the Minister for Justice's policy to modernise legal aid and deliver a national framework for legal advice and assistance, and the role of the Scottish Legal Aid Board within that
- the respective responsibilities and working arrangements between the Scottish Executive Justice Department and the Scottish Legal Aid Board, focusing on strategic leadership and governance, and financial and other accountability, as well as links to other relevant parts of the Scottish Executive and the wider public sector
- the steps necessary for all parties to promote best value in the delivery of legal aid, with a particular focus on current pressures on criminal legal aid
- the scope for streamlining legal aid legislation
- the development of the Board's operations, and the resourcing and powers of the Board needed to deliver future priorities in the light of Best Value principles. '
1.15 The Review was to make recommendations to Scottish Ministers and the Scottish Legal Aid Board. The Review period ran from December 2003 to May 2004, and the Review Team reported to Scottish Ministers and the Scottish Legal Aid Board on 30 June 2004.
1D Process
Reference group
1.16 The Review was advised by a Reference Group 1 whose role it was to provide advice and guidance to the review team and maintain a focus on the terms of reference. This was a well focused but broadly based group, with representation from those most immediately involved in the Review (the Scottish Executive and the Scottish Legal Aid Board), as well as practitioner, independent and expert input.
1.17 The Reference Group membership was drawn from a range of bodies involved in legal aid and information and as such could provide expert guidance to the review. Its members were asked to contribute from their individual experience and were not asked to represent their organisations in the review process. The Reference group met 5 times during the review process.
Review team
1.18 The Review was carried out by a team from the Scottish Executive Justice Department and Scottish Legal Aid Board, headed up by Marieke Dwarshuis (SEJD) and Colin Lancaster (SLAB). Other team members were Alessia Morris, Philip Shearer and Janet Nixon. A specific short-term contribution to the process was made by Colin Brown from the Changing to Deliver Division at the Scottish Executive on the analysis of the relationship and interaction between SLAB and the Scottish Executive. Additional assistance was also given by Debbie Headrick of the Legal Studies Research Branch at the Scottish Executive.
Process
1.19 The Review was undertaken in a four-stage process, in which involvement with a wide range of stakeholders was of primary importance:
Stage 1 PLANNING
Stage 2 FACT FINDING
Stage 3 DEVELOPING OPTIONS FOR CHANGE
Stage 4 WRITING REPORT
1.20 At the start of the Review process a very wide range of organisations were contacted and informed of the review 2. In Stage 2 stakeholders were asked to give their views on the current situation, the key issues and problems, and to explore the various roles and responsibilities. Initial views on what should be improved or changed were also sought. The Review Team then analysed this information, alongside a wealth of written information from internal (Scottish Executive and SLAB) and external sources. Broad options for change and improvements were then developed, which formed the basis for a second, smaller round of discussion with stakeholders. A draft report and recommendations were discussed by the Reference Group at its 5 th and last meeting.
1E WHAT IS 'LEGAL' INFORMATION AND ADVICE?
1.21 It is important to be clear about the boundaries of what we mean when speaking about publicly funded legal advice, as this determines the scope of what will be considered in the context of this Strategic Review. Using the term 'legal' advice to many suggests a more restrictive interpretation than is intended.
1.22 The working description of legal advice that will be used is:
' advice on justiciable problems',
or, in other words,
'advice on matters that raise a legal issue or on matters that, if not resolved earlier, could ultimately result in court action or some other form of legal procedure (e.g. tribunals) being initiated'.3
1.23 This therefore includes information and advice about the law and alternative means of resolving legal problems, help in preventing or resolving disputes about legal rights and obligations, and help in enforcing decisions. It also includes advice which is often not described as 'legal advice', but may be talked of for example as welfare rights advice, money and debt advice, housing advice, consumer advice, etc.
Providers of legal advice and information
Civil
1.24 When the description of legal advice as above is used in the context of advice on civil matters, it quickly becomes clear that this encompasses not only a very broad scope of advice, but also a very broad range of advisers.
1.25 Legal advice, information and representation on civil matters are provided by a huge range of agencies and organisations, many of which are not necessarily recognised as doing so. The choices people make will be determined by a number of factors - such as what is available to them locally, who they feel comfortable in approaching, who they trust, and the type of assistance they require.
1.26 Research 4 tells us that the most common sources of advice are solicitors and Citizens Advice Bureaux. However, there is a wide variety of other sources of advice being used, ranging from the police to trade unions, local authority departments, housing associations, insurance companies, advice agencies, welfare rights and trading standards officers, law centres, voluntary organisations and interest groups, social workers, and court staff.
1.27 In this Strategic Review we consider publicly funded legal assistance. Where people get assistance from a solicitor, and this is supported through public funding, this will in the vast majority of cases be under legal aid. We therefore deal with legal aid, as a form of publicly funded legal assistance, in detail in this Review. The great variety of other forms of publicly funded legal assistance on civil matters is also considered throughout.
Criminal
1.28 In contrast to the wide range of providers who may assist with a range of civil justiciable problems, legal assistance with criminal matters is only available through a solicitor. Only a solicitor or, where appropriate, counsel, may represent a client in the criminal courts.
1.29 Criminal legal assistance supported from public funds is paid out of the Scottish Legal Aid Fund, and may only be provided by solicitors who are registered with the Scottish Legal Aid Board to provide criminal legal assistance. The vast majority of these solicitors are private practice. The creation of the Public Defence Solicitor's Office, staffed by solicitors who are employees of the Scottish Legal Aid Board, has created the beginnings of an alternative method of delivery of criminal legal assistance.
1F Background information
1.30 To keep the size of this report manageable a full description of the current provision of publicly funded legal assistance has not been included here. This can be accessed at http://www.scotland.gov.uk/stratreviewlegalaidbackground . An overview of recent development and ongoing modernisation work in the area of publicly funded legal assistance can also be found there.
1.31 Alternatively, hard copies of this information can be requested from:
Legal Aid Strategic Review and Sponsorship Team
2 West
St Andrews House
Regent Road
Edinburgh EH1 3DG
Tel: 0131 - 244 2845
Footnotes
1 For composition of the Reference Group see Annex 1
2 The list of stakeholders contacted at the start of the review process can be found at Annex 2A. During Stage 2 and 3 a number of stakeholders were interviewed as part of the review process. These are listed at Annex 2B.
3 This is working definition is based on the term 'Justiciable event' used by Prof. Hazel Genn and Prof. Alan Paterson in their 'Paths to Justice Scotland' research. Genn and Paterson defined 'justiciable event' as 'a matter experienced by a (person) which raised legal issues, whether or not it was recognised by the (person) as being 'legal' and whether or not any action taken by the (person) to deal with the event involved the use of any part of the civil justice system'
4 'Paths to Justice Scotland', Hazel Genn and Alan Paterson, Hart Publising, Oxford, 2001
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