Legal Aid Reform: Consultation

Section 2: Simplifying processes

This section seeks views on how legal aid can achieve a defined purpose and be delivered and funded more flexibly, effectively and efficiently through a simpler, more coherent and user‑focused system.

At present, the legal aid system is characterised by structural complexity and a largely transactional relationship between the Scottish Legal Aid Board, which manages the legal aid fund, and solicitors acting on behalf of clients. The system 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. Different rules can apply depending on the type of case or assistance required.

While this approach provides flexibility, it can create barriers in practice. Individuals may struggle to find a solicitor, particularly in certain geographic areas or for specific case types. The requirement for multiple applications, approvals and reassessments can also lead to delay, duplication and unnecessary administrative burden. Taken together, these factors can make the system difficult to navigate and limit its ability to respond effectively to need.

The proposals set out in this section are intended to create a simpler and more flexible system that reduces administrative burden, improves access to services, and enables legal aid to be delivered in a more responsive and sustainable way.

Simplifying the structure of legal aid

A central element of reform is the simplification of legal aid types and processes, eliminating unnecessary duplication or inconsistency. This includes revisiting the current distinctions between advice and assistance, assistance by way of representation and full legal aid, identifying the scope for consolidation or streamlining, to allow cases to progress more smoothly without unnecessary re‑application or reassessment. Subject to the need to accommodate varying circumstances and while ensuring proportionate stewardship of public funds, the aim is to align key processes such as eligibility and case management, reduce duplication, and treat the person, their problem and the steps required to resolve it as part of a single, coherent pathway wherever possible.

Cost of legal aid

The independent strategic review of legal aid led by Martyn Evans in 2018 noted that Scotland is one of the leading jurisdictions in Europe in the provision of legal aid, judged by scope, eligibility and expenditure per capita.

The cost of the legal aid system is significant and continues to grow. While the number of legal aid cases has fallen compared to earlier years from around 203,000 grants in 2017–18, the overall cost of the system has increased significantly. In 2024–25, around 170,000 grants of legal assistance were made at a total cost of £169 million, the highest level recorded. Total expenditure has risen from around £135–£140 million a decade ago to £169 million in 2024–25.

As a demand-led system, costs can rise with increases in case volumes, complexity or scope. Expanding eligibility or provision would have significant financial implications. Reform must therefore balance improving access to justice with ensuring long-term affordability, effective targeting of resources, and efficient delivery.

It is therefore essential that funding is targeted at those most in need. There are therefore no plans to use the Bill to extend non‑means tested legal aid to additional areas of law, as this would be unaffordable and would risk the sustainability of the current system. However, the new statutory framework would allow for these decisions to be taken in future.

Contributions

The principle that individuals should make a contribution towards their legal aid costs, where it is affordable, will continue. However, the current system applies different contribution arrangements across different types of legal aid. As identified by the Evans review, this variation introduces unnecessary complexity and inconsistency. Individuals in similar financial circumstances may be required to make different levels of contribution depending on the type of assistance they receive.

Reform will focus on simplifying and improving the consistency of contributions across the system. This may include introducing clearer, more consistent and more transparent contribution structures, alongside a stronger separation between the assessment of financial eligibility and the assessment of what an eligible individual should contribute.

To support this, the Bill will provide for a more structured and regular approach to reviewing contribution criteria. In particular, it is proposed that the Bill places a bi‑annual statutory duty on the Scottish Legal Aid Board to review and advise Scottish Ministers on contribution thresholds and arrangements. This would help ensure that contribution levels are clear, remain fair and proportionate, responsive to changes in economic conditions, and aligned with the overall sustainability of the system.

Repayment

Repayment – often referred to as “clawback” – is a long‑standing feature of the legal aid system. Where an individual benefits financially from legal proceedings supported by public funding, it is appropriate, where reasonable, for some or all of those costs to be repaid. This supports value for money and the effective use of public resources.

However, current statutory repayment arrangements vary across different types of legal aid, reflecting incremental policy development rather than a clear and consistent framework. There is no repayment requirement in criminal legal aid, while in civil cases the rules around repayment depend on the type of assistance provided. In some cases, the full cost of legal aid may be recovered from money or property preserved or recovered; in others, no repayment may be required.

There are also differences in how protections are applied. For example, hardship provisions may allow repayment of advice and assistance costs to be waived in certain circumstances, but this protection is not available under civil legal aid.

These variations can make the system difficult to understand, can seem unfair and may, in some cases, discourage individuals from seeking assistance or resolving issues at an early stage.

The proposed Bill provides an opportunity to establish a clearer, fairer and more consistent framework for repayment. Reform could support greater transparency in how repayment arrangements operate, and a more consistent approach across different types of legal aid, while maintaining appropriate safeguards to protect both public funds and access to justice.

Streamlining decision‑making (“high‑trust” model)

Simplified structures also create opportunities for shifting the balance of decision-making between providers and the Scottish Legal Aid Board. The current legislative framework means that many aspects of legal aid provision require prior approval from the Scottish Legal Aid Board, supported by detailed applications and documentation. This can slow progress and increase administrative burden for both providers and users.

The Scottish Government therefore proposes to introduce powers that will enable a more proportionate and streamlined model that rebalances the responsibilities for applying statutory controls between providers and the Scottish Legal Aid Board in appropriate circumstances. With simpler, more consistent tests, supported by clear guidance prepared by the Scottish Legal Aid Board, accredited solicitors would be given greater freedom to progress cases without repeated approvals at different stages.

Solicitors will be able to apply for accreditation. For those who do not apply for, or obtain, accreditation, the current legal aid application and assessment process will remain unchanged. Solicitors who are accredited will have access to a

“high trust” model of legal aid, across all aid types, that would reduce delay, remove unnecessary procedural steps and support more efficient case progression. The Scottish Legal Aid Board’s role would focus less on upfront checks in every case and more on ensuring consistent and appropriate application of the tests by providers through robust monitoring arrangements. These will be backed by appropriate safeguards to protect taxpayers and the justice system where providers do not properly apply the rules or abuse the trust placed in them.

Enabling efficiencies and supporting access

The Bill will also support more efficient processes by providing improved data sharing capabilities between the Scottish Legal Aid Board and other public bodies, helping to streamline application processes and ease the use of measures such as passporting.

Questions

Q5. Which of the following benefits, if any, do you think simplification would provide? (Select all that apply)

• Easier access for users
• Reduced administrative burden for providers and the Scottish Legal Aid Board
• Faster decision-making
• Improved consistency
• Better use of public funds
• Ability to support a wider range of service delivery models
• Ability to support innovation and service improvement
• Ability to support providers in different ways e.g. technology or training
• None
• Other (please specify)

Q6. To what extent do you agree with the proposal to consolidate or streamline, where possible, the current range of separate aid types?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly disagree

Q7. To what extent do you agree or disagree that contributions and repayment arrangements should be simplified?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly disagree

Q8. To what extent do you agree or disagree that contributions and repayment arrangements should be made more consistent across all types of legal aid?

• Strongly agree
• Agree
• Neutral
• Disagree
• Strongly disagree

Q9. What changes, if any, should be made to contributions and repayment arrangements? (Select all that apply)

• Clear and consistent rules
• Transparent calculations
• Simpler assessments
• Published guidance
• Safeguards for low incomes
• Flexibility in exceptional cases
• Other (please specify)

Q10. Do you agree that eligibility for legal aid should be clearly separated from the assessment of what a person is required to contribute?

• Yes
• No
• Unsure

Q11. To what extent do you agree or disagree that the Scottish Legal Aid Board should have a bi‑annual statutory duty to review and advise on contribution thresholds and arrangements?

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

Q12. Are you in favour of a higher trust model for accredited providers?

• Yes
• No
• Don’t know (please specify)

Q13. Are you in favour of data sharing between organisations (such as the Scottish Legal Aid Board and Social Security Scotland) to ease the passporting of benefits?

• Yes
• No
• Don’t know (please specify)