Publication - Consultation paper

Legal aid reform: consultation

Published: 27 Jun 2019
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781787819573

This document is the basis of a 12 week public consultation on legal aid reform in Scotland.

68 page PDF

531.1 kB

68 page PDF

531.1 kB

Contents
Legal aid reform: consultation
Part 2: The Change Agenda

68 page PDF

531.1 kB

Part 2: The Change Agenda

i) Scope and oversight

Part of informing the change agenda is identifying key components of the legal aid system that should be retained. Two features of the existing system are the wide scope of justiciable actions that can be covered by legal aid, and administration and oversight by SLAB.

The Review commended the wide scope of legal aid in Scotland and recognised how favourably this compared to other jurisdictions, most notably England and Wales, where certain categories of case are no longer covered by the legal aid schemes there. During its stakeholder engagement, the Review panel found there to be little support to reduce scope.

We welcomed the recommendation that the current scope of legal aid be maintained and in our response committed to legal aid being available for as wide a range of actions as possible. For the purposes of this question scope refers only to justiciable issues, not financial eligibility.

Questions:

  • Are there actions that could be taken by the Scottish Government to help maintain or strengthen the current scope of legal aid?

Yes / No / Unsure

Please give reasons for your choice

  • Are there any other aspects of the current scope of legal aid that you think should be reformed?

Yes / No / Unsure

Please give reasons for your choice

The Review recognised the effectiveness and value of the work undertaken by SLAB within the restrictive framework in which it operates, but recommended that a new type of public body be established, with much more strategic powers to drive legal aid provision that meets user need.

We consider that the cost and resource involved in setting up a new organisation could be better directed to achieve improvements in responsiveness and oversight that would help deliver an improved and user focused legal aid service. In our response we stated that such change could be achieved by introducing a new statutory framework within which SLAB would have enhanced powers and duties.

Question:

Are there actions that should be taken by the Scottish Government to help support and strengthen the work of SLAB?

Yes / No / Unsure

Please give reasons for your choice

ii) Improving access and targeted interventions

The wide scope of legal aid is important, but equally as important is facilitating access to services for those who need assistance. The Review recommended that limited financial means, geography, disability or capacity should not be barriers to receiving appropriate assistance and that legal aid be centred around and responsive to the needs of users. In Part 1 we discussed the existing reliance upon judicare provision; here we want to consider what changes could improve that model as well as what changes would enable targeted interventions to be used to best effect.

As discussed elsewhere, one of the key characteristics of judicare is that the solicitor is free to deliver services where they want, to client groups they choose to serve and case types they choose to deal with. It can adapt to emerging demand for specific services at a local level, if providers are able and willing to respond to those demands; however, it does not provide a secure basis for consistency of accessing services across geography or areas of law, nor support a public service model designed and delivered around the needs of users.

The Review recommended establishing clear memoranda of understanding between solicitor firms and SLAB, as an integral part of the relationship between the public funder and solicitor firm providing legally aided services, to assist with the identification of judicare availability and reliability of supply.

The agreement could seek a commitment to take on specific types of cases, serve particular communities, and/or take a minimum number of referrals from a direct referral service. The agreement could also set out what solicitor firms should expect by way of service level standards in return for providing valued work, at times with limited resource. The Review envisaged that such a Memorandum would be a requirement for access to public funding from the Legal Aid Fund.

Judicare is not the only means of delivering legal aid. The current statutory framework does provide a range of targeted interventions which SLAB can use, under certain conditions, to help address potential barriers to receiving assistance. The power to intervene varies across civil, criminal and children's legal assistance and some powers are still to be introduced, such as advice and assistance to be provided by advice agencies. Currently the interventions available depend on how the legal assistance to be provided is classified, and are not standard across all aid types. In some instances, such as direct employment of solicitors, SLAB can target all types of assistance, whereas in others such as grant funding, powers are restricted to civil and children's advice, assistance and representation. There is variation as to who can access funding under different mechanisms, in terms of solicitors and lay advisers, and also in terms of what can be paid for. Grant funding, for example, can cover both direct advice delivery and also infrastructure grants or funds for training which support delivery of civil assistance.

If there was consistency in the powers available to SLAB to respond to emerging needs and/or to Scottish Government policy priorities, this could allow for flexibility in the future delivery of legal aid services. For example, the National Advisory Council for Women and Girls made a recommendation 'to ensure that women experiencing domestic abuse have sufficient access to expert legal advice and legal aid‎'. Should access issues be identified for certain user groups, or groups with protected characteristics, then having a broad range targeted interventions available could help to address this, and deliver Government objectives.

Improving the powers available could also allow for more innovation in service delivery. In other jurisdictions legal aid bodies have arrangements to actively provide basic information and advice (including direct referral services) using employed staff, by way of a telephone triage system, with national coverage. This could help address difficulties in securing access to advice experienced by certain user groups and aid early resolution of disputes. In Scotland, a national telephone service for solicitor services already exists to provide free legal advice to persons in police custody, in the form of the SCL; although other helplines are supported by the public sector, this model for large scale provision of legal advice by solicitors has not been replicated.

Amending the statutory framework to achieve consistency and encourage innovation in delivering legal aid could improve access and provide for the potential of a range of targeted interventions. It could also complement the "channel-shift" referenced in the Review, to enable members of the public to be better equipped to resolve issues themselves through reliance upon a trusted medium of advice provision.

Examples of better planned and co-ordinated service provision could encompass:

a. Consolidation and review of online advice to ensure up-to-date and quality guidance is available;

b. Triage telephone services to encourage early intervention and appropriate signposting to advice services or referrals to solicitors;

c. Co-ordinated and targeted funding with providers of formal alternative dispute resolution processes;

d. Linking or embedding legal resource within the wider third sector; and

e. The Framework for Public Funding of Advice in Scotland sets out a series of key principles designed to improve the quality of service and positive outcomes experienced by users of advice services, whilst seeking to make best use of resources across the public sector. This is a voluntary code but more formal use of the Framework could be used as a basis for improved co-ordination.

Better planned intervention could also mean exclusive funding arrangements are made available for advisers or solicitors for a specific range of advice for targeted groups or geographical area, for example by way of grant or contract. Exclusive funding arrangements would restrict access to judicare for case types or geographical areas which are covered by a grant or a contract to deliver specified services. In these circumstances funding could be limited to a grant term. Likewise, panel arrangements could support that solicitors need to be registered to provide assistance in certain categories of case, and possibly with particular competence requirements and referral arrangements.

The Review considered that targeted interventions could also help to address the recommendation of the Review to promote the use of mediation by SLAB (and by the legal profession) in family cases, where appropriate to do so. The current low take up of mediation as an option for resolving family disputes, was perceived by the Review to be caused, in part, by variable advice from solicitors and variable levels of mediation service being available.

The Scottish Government recently consulted on whether it should promote ADR in its Review of Part 1 of the Children (Scotland) Act 1995 and creation of a Family Justice Modernisation Strategy. Of the respondents 42% were in favour of introducing mediation information and assessment meetings; 35% in favour of better signposting and guidance; 16% suggested other; 9% in favour of no further action and 29% didn't answer the question. There does appear to be support for enhanced provision of information around the availability of mediation, and in light of these findings it is not thought necessary to consult further on the promotion of mediation at this time.

Questions:

  • A more structured relationship between SLAB and legal aid providers could be facilitated by way of a formalised agreement. Do you support a Memorandum of Understanding between solicitor firms and the Scottish Legal Aid Board being a prerequisite for doing legal aided work?

Yes / No / Unsure

Please give reasons for your answer

  • What should be contained in a Memorandum of Understanding to strengthen consistency of service and user centred design?
  • What risks might a Memorandum of Understanding system have in relation to the legal sector's ability to respond to emerging legal need, if any?
  • In principle, do you support a change whereby SLAB would have a standardised range of intervention powers, in statute, across all legal aid types?

Yes / No / Unsure

Please give reasons for your answer

  • Should lay advisers be able to access funding through legal aid to provide advice?

Yes / No / Unsure

Please give reasons for your answer

  • What are your views on solicitors providing publicly funded legal assistance being located within third sector organisations that have service users with civil legal issues e.g domestic violence, minority groups or disabled groups?
  • SLAB could directly employ lay advisers for tasks such as assisting with information and advice provision to aid early resolution, signposting people to information or services, or referring them to services that will meet their needs. Would you support SLAB being allowed to directly employ lay advisers for such purposes?

Yes / No / Unsure

Please give reasons for your answer

  • Do you think there would be benefits to having a telephone triage service that provided basic advice and referral assistance?

Yes / No / Unsure

Please give reasons for your answer

  • If such a telephone triage service were implemented, what criteria should be used to identify the most appropriate organisation to deliver this service?
  • The Review supported a "channel-shift" in signposting, referrals, advice and information from face-to face and telephone to on-line, while ensuring that face-to-face remains for vulnerable groups or those who struggle to access digital technology. Do you agree that such a channel shift should be promoted?

Yes / No / Unsure

Please give reasons for your answer

  • Planned intervention could mean exclusive funding using grants for specific advice or geographical areas. Should grants and/or contracts facilitate exclusive funding arrangements to target a specific identified need?

Yes / No / Unsure

Please give reasons for your answer

  • Should grants and/or contracts be able to cover all aid types?

Yes / No / Unsure

Please give reasons for your answer

iii) Simplicity and Fairness

The Review highlighted the complexity of the case-by-case funding system and its inconsistent and complicated rules on eligibility, contributions requirements and clawback arrangements. These rules provide the levers for scope (both means and merits tests) and act as the control mechanisms in a demand led system.

The current system is prescriptive, but it was developed to offer protection against arbitrary decision-making and outside interference and to ensure spending is aligned with Parliament's intentions. In many respects complexity has been driven by a desire to achieve fairness. This adds costs of compliance, inflexibility and at times frustrations for those involved in the process, whether the users of legal services or the providers.

We want to make the processes around the judicare model simpler and more transparent for both the users and the providers of legal services. This can be achieved by simplifying the processes around judicare and/or constructing alternative controls and means for embedding accountability for use of public funds in a way that makes it easier to use. Simplification needs to be underpinned by such controls to minimise the risk of the Legal Aid Fund being spent inappropriately and ultimately compromising affordability of the legal aid system.

One way identified by the Review to achieve simplification is the introduction of a single aid type as part of a new statutory framework, with financial eligibility requirements that are consistent and clear. In our response we advised that SLAB and the Law Society of Scotland were working jointly to consider the viability of this recommendation. This work continues and is expected to provide options for the Scottish Government to consider on a single aid type, or a single grant of legal aid, which applies a simplified test when a person first seeks legal aid services.

Underpinning the current aid types are differing financial eligibility tests and merits tests tailored to the type of justiciable issue, the extent of service to be provided and the forum for resolution of that problem. Some aid types are granted by a solicitor and others require SLAB to take decisions on both financial eligibility and whether the circumstances of the case merit public funding.

We envisage a new statutory framework remaining subject to mean and merits tests but for these tests to be simplified and standardised where appropriate. Aligned to this, we support the Review recommendations that the statutory framework should enable consistent and clear criteria for eligibility and fairer rules on contributions and clawback.

Questions:

  • Do you agree that the judicare system should be simplified?

Yes / No / Unsure

Please give reasons for your answer

  • Should SLAB have more flexibility in operating the system?

Yes / No / Unsure

Please give reasons for your answer

  • Flexibility and fairness can trade off against one another. With this in mind:

In which areas do you think it is most important to maintain consistency?

In which areas do you think it is most important to allow more flexibility?

Financial eligibility

Financial eligibility depends on the type of case that is to be funded and the aid type, with evidence required to support the information provided in all cases. To highlight the complexity and variation in the system, detail on the current thresholds and allowances is provided at Annex D for context.

It is against this background that we must consider how the Review recommendations can be achieved on consistency in financial eligibility criteria, and for the process of establishing financial eligibility to be as straightforward as possible in the majority of circumstances.

In moving towards a user centred service, predictability of eligibility and transparency of likely cost to the user are key components. Information on means testing is currently publicly available but does not provide a predictable guide to eligibility. One of the benefits sought from a new system could be a single assessment of eligibility, which recognises that most applicants have straightforward financial circumstances, with fixed incomes and easily ascertained savings. There would not be different tests for casework carried out under advice and assistance and civil legal aid, for example.

It would be possible to design a simplified system of checking financial eligibility. Examples of how this could be achieved operationally include substituting actual expenditure with standard allowances relative to the situation of the potential assisted person, or basing eligibility on a simple gross income cap. In both of these examples, verification may only be required for income, and not for expenditure. Rather than retain different financial eligibility tests across different aid types, there could be a simplified financial test for access to advice at first point of contact with a solicitor, with the user then able to access advice, assistance and representation in tribunal, court and/or appeal courts without further financial eligibility tests.

If financial eligibility is simplified, some people who are currently eligible may not be in future, whilst others may benefit by sitting within the financial threshold and find it easier to establish eligibility. In civil legal assistance a broader eligibility could increase the population of people who are able to access advice and assistance, and so obtain early advice, but remove higher earners from the scope of civil legal aid. In addition, if the eligibility for current advice and assistance was to increase markedly under a new system of financial tests, and/or contributions and clawback were amended, there is a risk that the overall cost of the Legal Aid Fund could become unaffordable.

Fatal Accident Inquiries

Where family members of a deceased person seek their own legal representation to participate as a party to a Fatal Accident Inquiry, civil legal is available subject to the same statutory tests as applications for other types of case. Consideration was given to increasing financial eligibility limits, and removing the reasonableness test for FAI applications, during the passage through Parliament of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

However, extending assistance to persons eligible, but with a contribution toward legal fees, was not considered consistent with maintaining the wide scope of matters for which legal aid is available in order to protect access to justice, in times of considerable strain on public funds. There was also concern that such change would mean legal representation at FAIs would become universal, and would consequently become more adversarial, longer and, potentially, more costly.

Recent high profile cases, including the Clutha FAI, and the Review have given cause to re-examine the current legislation with regard to eligibility for families involved in FAIs, and a commitment to do so in this consultation was made.

The balance of issues to be considered are how to support greater equity of engagement in FAIs without having a negative impact on the process itself. A Fatal Accident Inquiry is intended to be a non-adversarial consideration of the facts that led to fatal accident or accidents. A greater number of individual participants and legal representatives would undoubtedly change the nature of FAIs, as was the view taken by Parliament and referenced above. There is also the possibility that a greater number of participants would affect the timescale for holding a Fatal Accident Inquiry.

The impact of the availability of legal aid on the level of participation is a key factor. Currently, eligibility to some forms of legal aid may be constrained where a person has a joint interest with another person as it is assessed on an individual basis. Legal aid in its current form does not allow for the funding of a group of participants who have a common interest in a particular case. For example in Fatal Accident Inquiries, where there may be a number of interested parties, each party may have their own solicitors, be eligible for legal aid, and be required to pay contributions. The current system does not allow legal aid to manage the public investment (and the cost of any contributions) in such a case by offering or agreeing group coverage to those who have a common interest. This approach may address some of the potential adverse consequences of individual interests being represented separately during a FAI, while allowing interested parties a greater opportunity to have their perspectives represented in the hearing.

It may therefore be proportionate and affordable to put in place arrangements where legal aid for FAIs could be made available on an individual basis when that is appropriate and on a group basis when that is appropriate.

There is also the question of whether financial contributions should be sought for legal aid for FAIs. For the reasons set above, in respect of affordability of a functioning and accessible legal aid system, financial means testing would still be a feature of legal aid for FAIs in the future, either on an individual or group basis. This approach also upholds the principle that those who can afford to contribute to their legal costs should do so.

Questions:

  • Do you support a single eligibility assessment at the earliest point in the application process?

Yes / No / Unsure

Please give reasons for your answer

  • Are there situations when the continuation of more complex financial calculations would be required?

Yes / No / Unsure

Please give reasons for your answer and identify the situations in which you think this would be necessary (if any).

  • Should there be more strictly defined financial thresholds for eligibility?

Yes / No / Unsure

Please give reasons for your answer

  • Would you support the availability of funding to those with a common interest in legal proceedings, such as Fatal Accident Inquiries?

Yes / No / Unsure

Please give reasons for your answer, and if you answered 'Yes' provide any views on how this could be managed?

Contributions and Clawback

The cost of legal assistance supported by the Legal Aid Fund can be offset in three ways. The cost of a case may be met, in whole or in part, by an award of expenses in favour of a successful legally aided party. Secondly, further to a financial eligibility assessment, if a person has income or capital over set thresholds, they will be liable to pay a contribution towards the cost of their case. In the third scenario, part or all of any money or property won or kept in a dispute may be taken into account at the end of the case to meet the cost of the legal services provided by the public purse, and this is known as "clawback".

The operation of contributions and clawback supports Scottish Government legal aid policy that those who can afford to pay towards the costs of their legal services should do so. In order to help maintain wide scope and to ensure fairness, we intend to retain this policy. The Review was broadly supportive of this principle and indeed recommended that the system of contributions for criminal legal assistance should be brought into force.

Contributions

Currently contributions are collected by SLAB in civil and children's legal aid. The upper limit of those contributions is either the cost of the person's case or the amount they are assessed as able to pay, calculated in accordance with the statutory rules.

The current contributions system can help support a broad eligibility regime, but the calculation of contributions is complex and finely tuned to individual circumstances. Applicants with superficially similar circumstances, but who might have very different abilities to pay, would therefore have different contributions. In order to reach these decisions, many applicants are required to provide comprehensive financial information and proof of income and outgoings. There are also trade-offs in terms of the cost of administering the system, predictability and perceived fairness. The assessment of financial eligibility and calculation of contributions go hand in hand in the current system. A simpler and more transparent financial eligibility system, as discussed above, could also enable a simpler contributions system. For example, a contributions regime based on gross income rather than disposable income, but accompanied by a higher personal allowance than at present.

Clawback

There are some inconsistencies in the statutory provisions governing the operation of clawback. If property is recovered as a result of a process of negotiation funded by advice & assistance, SLAB has a discretion as to whether clawback is applied. If the property is recovered because of an award or settlement in a court case funded by legal aid, there is no such discretion.

We recognise the complexity around clawback provisions as identified by the Review and its finding that on occasions applying clawback could be considered unfair. Employment Tribunal cases were expressly identified as an example of this. The Review considered that a test could be introduced as to whether clawback should be applied, possibly based on reasonableness and that could take the form of a means or hardship test. We would welcome views on how future provisions could be made simpler and more certainty for clients, solicitors and SLAB.

Questions:

  • Do you agree that those who can afford to do so should pay a contribution?

Yes / No / Unsure

Please give reasons for your answer

  • Would you support the implementation of contributions in criminal legal assistance for those who can afford to pay?

Yes / No / Unsure

Please give reasons for your answer

  • The existing contributions regime is complex but highly personalised. Would you support a simplified, more transparent and more accessible contributions system, even if this might risk some of benefits of this personalisation?

Yes / No / Unsure

Please give reasons for your answer

  • There are inconsistencies in the operation of clawback. Would you support addressing this by removing discretion to create a more transparent system, even if this might risk some benefits of the flexibility this discretion allows?

Yes / No / Unsure

Please give reasons for your answer

  • Would you a support that there be a test on whether clawback should apply?

Yes / No / Unsure

Please give reasons for your answer

  • Do you hold any other views on how the current system of contributions and clawback could be improved?

Merits test

The merits tests are used to determine if it is reasonable that public funding be granted to someone seeking legal assistance. We consider that the merits tests in place for cases seeking funding through judicare legal aid are broadly set at the correct level, without introducing undue complexity to the system. The Review recommended statutory codification of the merits tests, meaning any changes thereafter would need to be subject to Ministerial approval. SLAB currently publishes detailed and case specific on-line guidance on how the merits tests should be addressed. This achieves flexibility and transparency in the current system which codification may hinder somewhat, however, we welcome views on how any tests could be better aligned or streamlined, whilst maintaining the assurance that funding is directed at appropriate cases.

Within the current system some grants can be made by solicitors, under advice and assistance and ABWOR, whereas other grants are authorised by SLAB, for civil and criminal legal aid. The grant is a gateway into a system that is supported by further controls such as authorised expenditure limits, the need to obtain sanction to incur outlays in certain circumstances, and checks post completion of work when accounts are submitted for payment.

Questions:

  • Do you consider the merits tests appropriate and transparent?

Yes / No / Unsure

Please give reasons for your answer

  • Merits tests could be applied at defined stages during the lifetime of a grant of legal aid. For example before an appearance is made in civil court proceedings, or on receipt of summary complaint and any following appeal. In principle, do you support the application of a merits test at defined stages during the lifetime of a grant of legal aid?

Yes / No / Unsure

Please give reasons for your answer

  • We are aware that in other jurisdictions, such as the Netherlands, applications are submitted under a high trust model and automatically granted, subject only to financial eligibility checks. What are your views on the current balance between a solicitor's ability to grant advice and assistance and the need to seek prior approval from SLAB for funding in other aid types?

Do you think this balance should be shifted, and if so in what direction?

  • In general, what controls do you think should be put in place to protect the Legal Aid Fund from inappropriate use?
  • Would you support the introduction of any merits test on what is currently the advice and assistance scheme?

Enhanced Statutory Powers and Best Value

The Review recommended that a more flexible and permissive service be developed through a new statutory framework. Such a framework would allow SLAB to respond to changes in needs, changes in the justice system and changes in wider society. However, in a public service this would need to be supported by responsible spending that can demonstrate best value through high standards and quality assured delivery mechanisms.

Delivering such a service could, in part, be achieved by empowering SLAB to operate more strategically. At present, SLAB can advise Ministers on the availability and accessibility of legal services, but the decision on whether any identified problems require legally aided service provision rests with the Scottish Government.

An alternative approach, as outlined in the Review, would be to devolve that decision to SLAB and to local authorities, for example through jointly agreed local action plans subject to statutory guidance and/or requiring Ministerial agreement. Further provision could be made for SLAB to identify advice needs and validate these through an agreed engagement and consultation process, with SLAB having the ability to make use of targeted interventions once the outcome of this process was known, without the need to obtain the agreement of either national or local government.

Any of these options could be supplemented by changes to the composition and structure of SLAB's Board, for example to stipulate the inclusion of consumer, advice sector or local authority representation, whilst all board members would continue to be appointed under public appointment rules.

In considering how to make the system flexible enough to respond to external developments, the Scottish Government will also think about how this can be provided for in a statutory framework, which includes primary legislation and the extent to which this could be provided for in any regulation making powers in secondary legislation. Currently, for example, changes to what can be paid into or out of the Legal Aid Fund requires primary legislative change, whereas others such as such change to court processes or forums that impact on case management may require either primary or secondary legislative change.

Best Value is underpinned by the quality of services that are publicly funded. The existing statutory framework does not provide for a uniform approach to quality assurance; currently there are two public sector systems of quality assurance systems covering services which can be funded by the Legal Aid Fund. The peer review schemes for solicitors focuses on the quality of solicitor work in legally aided cases, and the Scottish National Standards for Information and Advice Providers (SNSIAP) covers advice organisations, across any funding stream, reviewing both the quality of an individual's work and the organisational structures that should support its delivery.

A unified system could embed a user focus through enhanced measures to assure the quality of services, an issue highlighted in the Review. Consumer considerations could take into account the particular service delivery structures required for the funding model used and give a more rounded view beyond technical accuracy of the advice provided and compliance with legal aid requirements. Under enhanced powers, SLAB could be provided with the ability to register and quality assure all those providing legally aided advice and representation, to give effect to the embedding of the consumer voice and best value considerations. This could be complemented by SLAB having powers to adjust the delivery model of legal aid services in response to quality assurance, not just to facilitate access to services. For example, SLAB could engage high scoring providers to deliver legally aided assistance to address an emerging priority need.

Whereas quality assurance can be determined on a cyclical basis, Best Value should be a continuous driver in the delivery of any public service. Therefore other measures that may help to embed Best Value into legal aid should be considered. These include requirements for any organisation that receives payment from the Legal Aid Fund to enter into a service level agreement. This agreement could set out the extent of the service to be offered, express a willingness to take a minimum number of appropriate referrals, make commitments to engaging and working in partnership with stakeholders and the local bar.

Outlays

Outlays also engage Best Value considerations. Case related outlays, which meet the fees for expert witnesses and reports, that are necessary to progress a case, represent a significant cost to the Legal Aid Fund. On average outlays account for around 13% of total payments made by SLAB, and in 2017/18 cost £17,844.00.

Outlays will cover the cost of a range of payments required to progress a case from travel expenses, shorthand writers, sheriff officers and expert witness reports and other specialist reports. Some of these are already standard payments.

Outlay costs are incurred by legal aid providers and are reimbursed by SLAB. This may not occur for some time after an outlay has been met, and can cause cash-flow issues for firms. There are different rules for reimbursement depending on the type of case. The Legal Aid Fund bears the cost of outlays, but each transaction incurred is managed by the solicitor handling the case, subject to controls applied by SLAB. SLAB is a funder of expert witnesses' services and is not a purchaser of services.

The consequence of this is that the controls that are required to engage best value are applied on a case by case basis, and engage consideration of the varied costs for some scarce expert types and others where there is a thriving market and competition between suppliers which can reduce the cost to the public purse.

Outlays can also include payments to others that are not expert witnesses, for example payments to GPs for medical reports. This type of report may be more susceptible to standardised payment rates.

Acknowledging that in the current system, SLAB does not purchase services, the review recommended that a preferred suppliers list should be established which would add further controls to manage quality and expenditure but still allow solicitors to choose which of the preferred suppliers to approach.

Questions:

  • SLAB could have statutory powers to operate more strategically. Do you support there being statutory processes that allow SLAB to facilitate legal aid delivery in a more flexible and permissive way?

Yes / No / Unsure

Please give reasons for your answer

  • What checks or controls would you consider necessary if SLAB had statutory powers to operate more strategically?
  • Do you consider changes to the composition and structure of SLAB's Board necessary to help support a more strategic role?

Yes / No / Unsure

Please give reasons for your answer

  • Do you support that SLAB should register and quality assure all those providing services paid by the Legal Aid Fund?

Yes / No / Unsure

Please give reasons for your answer

  • Do you agree with the Review recommendation that all quality assurance reviews and reports on both lawyers and third sector advice services be published?

Yes / No / Unsure

Please give reasons for your answer

  • There are a number of approaches that could achieve greater surety and control over outlays. How desirable on a scale of 1 – 5 (1 being very undesirable and 5 being very desirable) do you find the idea of the statutory framework to give SLAB powers to:

1. fix a preferred supplier list and to set rates for commonly used experts;

2. deal directly with the experts to arrange payment;

3. make payment on the basis of a fixed tables of fees for experts, which must be agreed to when accepting instructions relating to a legal aid client

  • Are there types of expert reports and other reports which could be subject to more control than others?

Yes / No / Unsure

Please give reasons for your answer. If yes, what controls should be put in place?


Contact

Email: legalaidreform@gov.scot