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Advice for All: Publicly Funded Legal Assistance in Scotland ? The Way Forward - a Consultation

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Background

The process of modernising legal aid in Scotland began during the first session of the Scottish Parliament and resulted in some notable achievements, such as the reform of the detailed arrangements for civil legal aid. Further developments however now need to review the system in greater depth, and to be linked to modernisation initiatives elsewhere, in particular in the criminal justice system, in order to reflect a clear vision for publicly funded legal assistance in the future. In 2003, therefore, a Strategic Review of the Delivery of Legal Aid, Advice and Information was undertaken by a team comprising representatives of the Scottish Executive Justice Department and the Scottish Legal Aid Board ( SLAB). The Review focused specifically on:

  • The steps 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 SLAB within that;
  • The respective responsibilities and working arrangements between the Scottish Executive Justice Department and SLAB, 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; and
  • The development of SLAB's operations, and resources and powers SLAB need to deliver future priorities in the light of Best Value principles.

The full Report, a summary and background information to the Strategic Review can be accessed on the Scottish Executive website. 1 These documents discuss extensively the issues on which your views are sought in this consultation. In most instances, therefore, only a brief discussion will be included here. If you are not able to access these documents on the website addresses above, you can request a hard copy from the Strategic Review Team, Access to Justice Division, 2 West, St Andrew's House, Regent Road, Edinburgh, EH1 3DG. Tel: 0131 244 2845.

This Consultation

Scottish Ministers are seeking your views on a number of the recommendations from the Review in order to establish how we may in future ensure that appropriate access to justice on civil and criminal matters will be available for the Scottish people and how we should address significant strategic issues, such as the rising trends in expenditure on criminal legal aid and the possible unmet need for legal advice and help on civil matters.

This paper sets out separately, in Parts 1 and 2 respectively, proposals for publicly funded legal advice on civil matters and on criminal matters.

Some of the issues covered by the report of the Strategic Review are not dealt with in any depth in this paper, because a number of matters have been progressed by the Executive or by SLAB since the Report was completed. The table opposite shows, for civil and criminal publicly funded legal assistance ( PFLA) respectively, where significant progress on modernisation and strategic change has already been or is being made. It also shows the key proposals for further change that we are seeking your views on through this consultation.

CIVIL publicly funded legal assistanceCRIMINAL publicly funded legal assistance

Recent or current change

  • Civil legal aid reform, including:

- Introduction of quality assurance through peer review for all civil legal assistance; and
- First stage of civil advice and assistance reform consulted on and implementation in progress.

Recent or current change

  • SLAB has consulted on its proposals for summary criminal legal assistance reform;
  • Issues surrounding fees for solicitors and Counsel have been or are being dealt with separately; and
  • Quality assurance of criminal legal assistance is being developed.

Proposals for further change - short to medium term

  • Make specific provision in short to medium term to give SLAB additional powers to improve delivery of civil PFLA and to secure provision by a range of methods, including grant funding provision by non-solicitors;
  • SE and SLAB to work with local authorities to develop their role in provision of civil PFLA, and encourage greater planning and co-ordination; and
  • Relax the severe hardship test in section 19 of the Legal Aid (Scotland) Act 1986.

Proposals for further change - short to medium term

  • Give SLAB more flexible powers to secure and fund the provision of criminal PFLA, including a greater use of the PDSO (Public Defence Solicitors' Office) where necessary and appropriate;
  • Transfer the granting of solemn criminal legal aid from the courts to SLAB; and
  • Introduce clear and fixed financial eligibility criteria for all criminal legal aid.

Proposals for further change - longer term

  • Establish a national co-ordinating body for both civil and criminal PFLA; and
  • Consider introduction of extended, tapered financial eligibility for civil legal aid.

Proposals for further change - longer term

  • Establish a national co-ordinating body for both civil and criminal PFLA; and
  • Consider introduction of means tested contributions in criminal PFLA.

Table 1: Table summarising recent, current and proposed changes to publicly funded legal assistance in Scotland.

Proposals that can be pursued in the short to medium term require only administrative or regulatory change, or can be brought in by amendment to the current legislation, which would be intended for introduction in the Scottish Parliament in the current Parliamentary Session. However, the scope of change involved in some of the proposals requires more research and development of detailed options, for which that timescale does not allow, or would require a new and fundamentally different legislative framework, which would need to be considered in the next Parliamentary Session.

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Page updated: Thursday, June 16, 2005