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Chapter 1: Background to the Consultation
The Consultation
The consultation "Advice for All: Publicly Funded Legal Assistance in Scotland - The Way Forward" was launched by the Deputy Minister for Justice on 17 June 2005. Over 300 copies of the consultation paper were distributed to a wide range of interested parties in the legal profession and the public and voluntary sectors, including user representative organisations. 1 The consultation paper set out the Scottish Executive's proposals for the way forward in publicly funded legal assistance in Scotland. It dealt with publicly funded advice and services provided by lawyers and advice by non-lawyers in the public and voluntary sectors. 2
The consultation period ran from 17 June 2005 until 9 September 2005 although this closing date was subsequently extended until the beginning of October to allow for late responses.
A press release helped to publicise the consultation paper. In announcing the consultation the Deputy Minister for Justice said:
"The Strategic Review of the Delivery of Legal Aid, Advice and Information reported to Scottish Ministers in June 2004. It found that the current system of publicly funded legal assistance in Scotland does provide valued services to a wide range of people but it is in need of reform and development.
The review made a number of recommendations for change in the system of legal aid and advice services and that's why we are today seeking views on proposals to improve and modernise the system, and ensure better, fairer access to support and advice.
In particular, we recognise that the upper limit for civil legal aid can appear very arbitrary for those just above that amount. That's why - as part of the considerable range of options in this consultation - we're asking if it would be preferable to change the system so that more Scots who deserve legal aid and assistance can benefit from it.
Efficient and effective justice services founded on the basic principles of fairness and equality are central to delivering the peaceful, prosperous Scotland we all want to live in.
But I also believe that we need to be very clear on the purposes of legal aid and about why taxpayers' money is spent - and that's what this consultation asks respondents to consider.
Value for money needs to be foremost in our minds when taking forward modernisation of our legal aid system.
Only if we drive efficiencies through the system through a more effective management of publicly funded legal advice will we be able to meet our goals, whether promoting access to justice or ensuring a fair reward for those who deliver legal services funded by legal aid.
Working together we must remain focused on the purposes for public expenditure in this area, and we must work to build a system that meets all our expectations: clients, practitioners and the taxpayer. We have made progress already but much more can be done."
The consultation was also publicised on the websites of the Scottish Executive, the Scottish Legal Aid Board and the Law Society of Scotland. It was supported by a debate in Parliament. Four consultation "events" were hosted by Scottish Executive officials across Scotland in early September aimed at allowing interested individuals and organisations to discuss and ask questions about particular issues raised by the consultation. In addition, the Head of the Scottish Executive Strategic Review Team spoke at an event organised by the Legal Services Agency, (a Law Centre based in Glasgow), aimed at introducing advice providers to the consultation and its main themes. Workshops held by Citizens Advice Scotland and by CoSLA respectively provided other opportunities for formal discussions on the consultation topics.
The consultation paper highlighted far reaching options for reforming the present system including a new structure to allow more people to benefit from civil legal aid and assistance in Scotland. Other key proposals were:
- Providing people on moderate incomes, but earning more than the current threshold of eligibility for legal aid, with some financial support to pursue their cases;
- Allowing the Scottish Legal Aid Board additional powers to improve delivery of civil publicly funded legal assistance and to ensure adequate provision by a range of methods, including the ability to fund non-solicitors;
- Transferring the granting of solemn criminal legal aid from the courts to the Scottish Legal Aid Board to ensure better transparency and consistency and ensure better value for money for the public purse;
- Considering the introduction of means tested contributions in criminal publicly funded legal assistance with the aim of making sure that those who can afford to pay towards their own defence should do so.
Because of the relatively complex and often technical content of the consultation paper, a decision was taken to engage members of the public in consideration of the topics by way of focus groups. A series of 8 such groups was held across Scotland with a wide range of people. A separate report of the findings from these focus groups is available. 3 An overview of the 2 studies is also available. 4
With respect to the written consultation, consultees were invited to comment in writing on the proposals and other suggestions for reform of the system including both non-legislative proposals and others that would require Parliamentary legislation.
By the final cut-off date for receipt of responses, 65 submissions had been made and have been included in this analysis. 5 This report presents an analysis of these 65 responses.
The findings will inform the development of reforms aimed at ensuring appropriate access to civil and criminal justice in Scotland, and the tackling of key issues such as rising trends in expenditure on criminal legal aid and the possible unmet need for legal advice and help on civil matters.
Context
The process of reforming and modernising legal aid in Scotland began with the deliberations and report of the Justice 1 Committee in the first session of the Scottish Parliament (Nov 2001) and subsequent reform of the detailed arrangements for civil legal aid. In 2003/4 a team of representatives of the Scottish Executive Justice Department along with members of the Scottish Legal Aid Board ( SLAB) conducted a Strategic Review of the Delivery of Legal Aid, Advice and Information. This was the first comprehensive review of the operation of the 1986 Legal Aid Act. The group made a number of recommendations for changes in the system of legal aid and advice and related arrangements for the provision of a wide range of advice. One aim was to ensure better co-ordination of different advice services.
The 2003-4 expenditure for civil legal aid was £51.25 million, with the respective spend on criminal legal aid standing at £102.22 million. Over 400,000 applications for legal aid are received by SLAB every year.
The written consultation paper contained proposals for strategic reforms, based upon the deliberations of the Strategic Review Group, including fundamental changes to the ways in which publicly funded legal assistance is provided, as well as technical and administrative improvements to the existing legal aid system.
The responses to the consultation have been made publicly available in the Scottish Executive library unless the respondent has specifically requested otherwise.
The remainder of the report presents the "story" of the consultation, - the consultation process (Chapter 2), general comments on the consultation process and content (Chapter 3), and the findings of the analysis (Chapters 4-13).
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