Legal Aid Reform: Consultation

Introduction

This consultation seeks views on proposals to reform legal aid and inform the development of a Legal Aid (Scotland) Bill, which the Scottish Government has committed to introduce in the first year of the current parliamentary session.

What is legal aid?

Legal aid in Scotland, governed by the Legal Aid (Scotland) Act 1986, is publicly funded legal assistance that helps individuals access advice and representation where they cannot afford to do so. It supports access to justice by enabling people to understand their rights, resolve disputes and participate effectively in legal processes.

Legal aid mainly funds work carried out by solicitors registered with the Scottish Legal Aid Board across areas such as family law, housing, debt, and criminal. Eligibility is not automatic. Access to legal aid is determined through statutory financial and merits tests, to ensure support is targeted at those most in need and that public funds are used effectively.

Funding is provided through the demand-led Scottish Legal Aid Fund, administered by the Scottish Legal Aid Board.

The legislation also enables the Scottish Legal Aid Board to employ solicitors to deliver legal assistance directly to the public, and to provide grants for targeted delivery of legal and advice services.

Further detail on the operation of legal aid in Scotland is contained at Annex A.

Vision for reform

Our vision is for a system in which legal aid services are shaped by a clear and robust understanding of need, with a stronger focus on people’s experiences and outcomes. This includes greater engagement with those who use legal aid services to embed the user voice into strategic decision making, strengthening how need is identified and addressed, and designing provision that is better aligned with the needs of people in Scotland.

For users, this will improve access through a more planned approach to delivery, including enabling the Scottish Legal Aid Board to direct provision where necessary. We will improve data-sharing to ease passporting (where entitlement to one benefit or scheme gives access to another), support earlier resolution of problems, reduce delays, and create a clearer, more transparent and user‑centred system aligned to need.

For those who provide legal aid services, the Bill aims to create a more sustainable and structured system. This includes providing a more secure funding basis and supporting the development of a clearer and more structured approach to the setting and review of fees. Work is already underway through the Independent Fee Review Mechanism Group, and the Bill will complement this by providing an appropriate statutory framework. The reforms will simplify processes, reduce administrative burden and duplication, and support quicker decision-making by addressing legislative constraints. They will also allow for a higher‑trust model, providing greater autonomy for accredited solicitors, alongside a clearer framework for delivery that supports the long-term sustainability of legal aid practice.

Our aim is to ensure that legal aid is planned, delivered and governed in a way that supports the rule of law, promotes access to justice, and meets the needs of people and communities, now and in the future.

A new Bill to deliver the vision

The proposed Legal Aid (Scotland) Bill will establish a modern statute for legal aid as a core public service, one that is better able to respond to changing patterns of legal need and the demands of a modern justice system. It will strengthen powers to undertake strategic planning, and support more flexible ways of delivering services. It will also place a stronger focus on transparency, accountability and the outcomes achieved through public funding.

These proposals align with the Scottish Government’s wider programme of Public Service Reform, with a focus on efficiency, value for money and improved outcomes through more streamlined and effective services.

The new legal aid system will be:

• Simpler, and more effective for users and providers of legal aid services.
• Proportionate, affordable, and sustainable.
• Adaptable to future emerging needs and priorities, including technological developments, while maintaining a clear statutory framework for the delivery of legal services.

Overview of proposals

The current system, largely based on detailed rules and individual funding decisions, has supported access to justice for many years by enabling people to participate in the justice system regardless of their financial circumstances. It primarily operates through a “judicare” model, in which funding decisions are made on a case‑by‑case basis once an individual has identified a solicitor willing to act.

However, our engagement with stakeholders has identified concerns about its ability to respond flexibly to changing demand, service delivery models and user needs, alongside calls for a simpler, more user-centred approach. We therefore propose a shift towards a modern public service model that is simpler to access, deliver and manage.

These principles underpin the proposals set out in the consultation:

• Legal aid should continue to be available across Scots law, subject to existing statutory exclusions and limitations.
• The scope of legal aid should continue broadly as at present.
• Legal aid should support those least able to pay for the help they need.
• Judicare legal aid will continue to be a demand-led budget; all those that meet the tests will be granted legal aid.
• Those that can afford to make a contribution to their legal aid costs should do so, as should those who win or keep property as result of their case.
• A range of services will be supported using a mix of funding tools, with judicare at the core, complemented by commissioned and directly employed services to meet specified strategic objectives.

While the Bill seeks to improve access to legal services, an affordable legal aid system cannot guarantee access to a solicitor or publicly funded legal assistance in all circumstances. Factors such as the nature and prospects of each particular case, the professional judgement of solicitors, and the availability of providers will continue to be relevant.

The Bill will not seek to:

• Specify in detail on the face of the Bill the types of cases for which legal aid may be made available;
• Define exhaustively the courts, tribunals or other forums in which legal aid may be used;
• Prescribe the specific proceedings or categories of work for which legal aid is payable.

Instead, these matters will continue to be determined through a combination of Ministerial policy and secondary legislation, within a clear statutory framework.

Including detailed provision of this nature on the face of the Bill would risk limiting the flexibility of the system and its ability to respond swiftly and effectively to changing needs, priorities and developments in the justice system (such as the creation of new courts or forums).

Overall, the reforms will shift the system from a reactive, process‑driven model to one that is more planned, efficient and focused on outcomes.

Engagement

This consultation seeks views from a broad range of stakeholders, including legal professionals, advice providers, third sector organisations, and people with lived experience of legal aid. Responses will inform further detailed policy development and the drafting of the Bill.

A programme of stakeholder engagement will run alongside this consultation, including workshops to gather views from users, practitioners and organisations. Those interested in participating are invited to contact: LegalAidReform@gov.scot

Questions

Q1.As set out above, to what extent do you agree with the Scottish Government’s proposed approach?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly disagree
• Other (Please specify)