Legal aid reform: consultation analysis

Analysis of the responses to the public consultation on reform of legal aid in Scotland which ran between 27 June and 19 September 2019.

3. Key findings from the analysis of responses

3.1. General

Views were often split depending on whether the respondent was from the legal profession, third sector, etc. Questions on enhanced powers for the Scottish Legal Aid Board were answered almost solely by the profession.

This divergence in views is highlighted by showing the respondent figures with reference to the inclusion of those who were endorsing the views stated in the responses of the Edinburgh Bar Association and the Glasgow Bar Association

3.2 Part 1 of the consultation

There are areas of broad consensus with the main principals of reform well supported, however there are very mixed views on how to implement the change agenda.

The majority of respondents supported that the user should be at the centre of the legal aid system. Only two individual respondents did not support this. A further two were unsure.

The majority of respondents agreed that the current model of provision could be strengthened. Most felt that increased targeting of specific areas of law and geography would enhance flexibility and provision of services. However there was no clear consensus on how to achieve this. The third sector and law centres were supportive of targeted grant funding and contracts to achieve this. The legal profession considered increased payment levels to be key here.

Most respondents agreed that legal aid did not currently operate as a public service and would support a move towards this. They considered that this would increase accessibility and accountability, and as a public service there would be expectations of delivery and outcomes from providers. There was concern that a move to being a public service could lead to rationing or have the unintended consequence of reducing the number of providers of legal aid.

3.3. Part 2 of the consultation

Overwhelmingly respondents supported not only retaining the current scope of legal aid but also widening it, specifically legal aid provision for group actions, tribunals and issues related to Human Rights.

The majority of respondents agreed that there was action which could be taken to support and enhance the work of SLAB including better training, more consistency in decision making, and enhanced information sharing between organisations.

Most respondents supported more flexibility in the system to respond to changes in legal procedure or an emerging need, and supported the ability of SLAB to use grants and exclusive contracts to target services. This view was not echoed by the legal profession.

The proposal to introduce a Memorandum of Understanding between legal aid providers and the Scottish Legal Aid Board polarised views. Law centres, clinics and third sector organisations were more supportive of this proposal, and have experience of receiving funding subject to certain agreements and standards requirements. The professional bodies are uniformly against this, voicing concern that the relationship would be one sided in favour of the Scottish Legal Aid Board, and that any compulsion for firms to take on work deemed to financially unsustainable could reduce the number of legal aid providers.

The majority of respondents supported a single eligibility assessment at the beginning of the process whilst retaining the ability for more complex calculations when necessary, and having a simplified system of contributions in civil matters for those who can afford to pay, as long as thresholds were set at an appropriate level and took into account individual circumstances. Fairness was key to all respondents.

A small majority of respondents favoured grants or contracts to facilitate exclusive funding arrangements. It was considered that this would assist with access for particular groups such as women affected by domestic abuse, people with disabilities, care experienced children, and those with mental health issues. Most respondents also agreed that this should be available across all legal aid types. The legal profession were opposed to this, particularly for criminal and children's legal aid.

A move to a High Trust Model received significant support.



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