Legal Aid Reform: Consultation

Section 4: How the new system would work

This section sets out the new duties, powers and responsibilities of Parliament, Scottish Ministers, the Scottish Legal Aid Board and providers of legal aid services needed to deliver this planned and strategic approach and ensure its effective operation.

The Scottish Government’s proposed approach is for a mechanism that provides for periodic setting of priorities, objectives, resource allocations and strategic outcomes to inform the development by the Scottish Legal Aid Board of delivery plans.

These plans will set out the Scottish Legal Aid Board’s proposals for the design, funding and delivery of services to meet Minister’s priorities, in line with the allocated budget and having regard to the principles established by Ministers as outlined in section 1. Ministers will approve these plans with or without modifications and then lay them before Parliament for approval.

Alongside its corporate plan, the approved strategic delivery plan will form the basis of objectives for the Scottish Legal Aid Board to be reflected in regular updates to the Framework Agreement between Scottish Ministers and the Scottish Legal Aid Board. The Scottish Legal Aid Board will continue to report annually on progress to Ministers.

The Scottish Legal Aid Board’s discharge of its powers and functions, including its delivery of its strategic plans, would be subject to oversight by Scottish Ministers and the Scottish Parliament in line with established arrangements for the scrutiny and accountability of all non-departmental public bodies.

This approach would be complemented by clearer provisions for Ministers or Parliament to intervene where there are concerns about delivery or performance.

While intervention powers already exist, any new powers would specifically relate to how the Scottish Legal Aid Board is meeting its set purpose and periodically set objectives.

Key responsibilities in the proposed system will include:

• Setting budgets, priorities and specifying strategic outcomes to be delivered by the legal aid system.
• Identifying user needs, both in terms of problem types and service design, through robust engagement and consultation with those experiencing legal problems, service users and service providers.
• By reference to a specified purpose and priorities, determining what is needed, where, and for and by whom.
• Assessing the availability of suitable services and their ability to meet identified needs.
• Selecting and implementing the most appropriate ways of securing the services needed, including methods of provision and funding.
• Evaluating the impact of funded services and their adequacy in meeting identified needs and delivering specified outcomes.
• Simplifying access to legal aid for clients and legal services providers, reducing bureaucratic burdens and increasing efficiency.

We propose the broad allocation of these new roles would be as follows:

Scottish Ministers

• Set the purpose, priorities and objectives to be delivered by the legal aid system.
• Allocate resources aligned to these priorities and purpose.
• Approve service delivery plans prepared by the Scottish Legal Aid Board, as submitted or with amendments by Ministers.
• Monitor delivery by the Scottish Legal Aid Board against those plans.
• Monitor the effective administration of the legal aid fund.
• Consider advice provided by the Scottish Legal Aid Board, including as to the adequacy of resources relative to assessed needs, Ministerial priorities and approved plans.
• Set the level of fees payable for legal aid services.
• Accountable to the Scottish Parliament on the effective operation of the legal aid system in Scotland.

Scottish Parliament

• Approve any changes to eligibility and contributions for legal aid.
• Approve the proposed objectives by Scottish Ministers.
• Review the annual reports submitted by the Scottish Legal Aid Board.

Scottish Legal Aid Board

• Submit a strategic delivery plan to Scottish Ministers setting out how the Scottish Legal Aid Board intends to design, fund and deliver legal aid services to align with the purpose, priorities, objectives and budget set by Scottish Ministers.
• Provide advice to Scottish Ministers on the effectiveness of the legal aid system.
• Report annually to the Scottish Parliament and Scottish Ministers on eligibility and contributions for legal aid.
• Work with stakeholders to review the operation of the legal aid system and identify emerging needs.
• Work with stakeholders to take views on their experience of the legal aid system.
• Work with the legal profession and advice services to design services that meet identified needs.
• Enter into funding agreements with service providers and employ solicitors to deliver the services set out in delivery plans.
• Monitor the quality and impact of the delivery of all legal aid funded services.
• Ensure the continued simplification of the legal aid system and the use of technology to aid efficiency and effectiveness.
• Operate the legal aid system efficiently and effectively, reporting annually to the Scottish Parliament.

Providers of legal aid funded services

• Collaborate and participate in the processes developed by the Scottish Legal Aid Board to assess need, monitor supply and design services.
• Information sharing.
• Comply with agreements on the provision of advice and legal services.
• Comply with monitoring requirements set by the Scottish Legal Aid Board.

Planning, Reporting and Accountability

Questions

Q17. To what extent do you agree with the split of duties between the Scottish Parliament, Scottish Ministers and the Scottish Legal Aid Board?

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

Q18. Which of the following planning and reporting requirements do you think should apply to the Scottish Legal Aid Board under any new scheme? (Select all that apply)

• Approval by Ministers of strategic service delivery plans
• Reporting regularly to the Scottish Government and the Scottish Parliament on performance and outcomes of the legal aid system
• No significant change from current annual reporting to the Scottish Parliament
• Other (please specify)

Q19. Do you think there should be powers to act if the Scottish Legal Aid Board is not able to deliver the objectives of the legal aid system?

• Yes
• No
• Don’t know

Q20. Who should have powers to act if the objectives of the legal aid system are not being delivered?

(Select all that apply)

• Scottish Ministers
• Scottish Parliament
• Both Scottish Ministers and the Scottish Parliament
• An independent body
• No formal powers
• Other (please specify)

Q21. What types of powers should be available? (Select all that apply)

• Direct the Scottish Legal Aid Board to take action
• Set or change performance targets
• Commission independent reviews
• Change governance arrangements
• Other (please specify)