Review of legal aid: speech to Scottish Parliament, February 2017

Presiding Officer, I am grateful for the opportunity to inform Parliament today of action this Government is taking in respect of the legal aid system in Scotland.

In the Programme for Government we made a commitment to commence engagement this year, with the legal profession and others, to identify specific measures to reform Scotland's system of legal aid, maintaining access to public funding for legal advice and representation in both civil and criminal cases alongside measures to expand access to alternative methods of resolving disputes.

Presiding Officer, publicly funded legal assistance plays an absolutely vital role in providing citizens with the ability to enforce their rights and in upholding social justice.

In Scotland, we have maintained wide access to legal assistance across both criminal and civil cases, notwithstanding budgetary pressures. We have a demand led system with a high eligibility rate meaning that all who apply and are eligible will receive publicly funded legal assistance.

The system is founded on the Legal Aid (Scotland) Act 1986, a statute that pre-dates devolution, human rights legislation and other major reforms to the justice system and which is now over 30 years old. It has, appropriately, been subject to 30 years of updating to ensure it reflects current needs, both in human rights terms and to meet the social justice ambitions of government.

Legal aid adjustments are a regular feature of the Justice Committee workload, and I would like to thank members of that committee past and present for their engagement and in ensuring that we maintain a strong legal aid system. However, as a result we have a rather complex web of regulations that can be difficult even for seasoned legal professionals to navigate at times.

The commitment in the Programme for Government reflects our view that the time is right to review the legal aid system in Scotland, with a view to taking forward a programme of future reforms of the system.

As I mentioned earlier, publicly funded legal assistance is an important aspect of improving lives, and tackling inequalities. There are a range of perspectives in how the legal aid system might be improved, for those that need this public service and for those who deliver it.

Therefore, I think it is important that the wide range of interests in the legal aid system play a part in shaping future reforms. I therefore intend to establish an Independent Review Group to consider the legal aid system in 21st century Scotland and how best to respond to the changing justice, social, economic, business and technogical landscape within which a modern and flexible legal aid system should operate.

Indeed, the programme of justice reform in Scotland in the last few years has been significant and is shaping a much more modern and progressive civil and criminal justice system. Importantly, this includes a greater focus on the needs of individuals engaging with the justice system. Hence, the legal aid system must keep pace with the reforms and developments in the justice sector.

So a review of legal aid is timely and I note that both the Law Society of Scotland and the Faculty of Advocates are supportive of a review being taken forward.

I note too that some of the parties represented here today also had a manifesto commitment to look at our system of legal aid and so I hope that our planned review will be welcomed by members from across this chamber today.

Legal aid is a complex and technical subject, but it matters to individuals, especially those who are most vulnerable. Therefore, it is vital that the direction and leadership of the independent review reflects that.

Presiding Officer, I am delighted to announce today that Martyn Evans, Chief Executive of the Carnegie Trust, has agreed to chair the review. He brings a wealth of experience having previously been the CEO of Citizens Advice Scotland, a Director of the Scottish Consumer Council and Consumer Focus Scotland, and a Director of Shelter.

He will be assisted by an expert adviser, Alan Paterson, Professor of Law at Strathclyde University and Director of the Centre for Professional Legal Studies. Professor Paterson has extensive knowledge of legal aid systems in different jurisdictions around the world.

Martyn Evans will also be assisted by a review panel. We are finalising the panel with the Chair and I am delighted to confirm the following panel members:

• Colin Lancaster – Chief Executive of the Scottish Legal Aid Board.
• Janys Scott, QC – a highly respected QC with interests in all forms of child law and Chair of the Faculty of Advocates Family Law Association.
• Brian McConnachie QC – who has conducted many high profile trials and appeals during his time as Principal Advocate Depute and now is involved in a wide range of serious and regulatory crime cases.
• Lindsey McPhie – who is a criminal defence solicitor advocate and past president of the Glasgow Bar Association.
• Jackie McRae – who is a civil legal aid lawyer specialising in family law and a former member of the Council of the Law Society of Scotland.
• Susan McPhee is Head of Policy and Public Affairs at Citizens Advice Scotland.
• Deputy Chief Constable Iain Livingstone, Police Scotland, works across the justice sector. He currently sits on the Scottish Sentencing Council and was a member of Lord Bonomy's Post-corroboration Safeguards Review.
• Professor Fran Wasoff is Professor of Family Policies, University of Edinburgh and is a member of the Scottish Civil Justice Council's Access to Justice Committee.
• Alison McInness OBE is a former MSP and Justice spokesperson and has an extensive knowledge of the governance of Scotland and its public and third sectors, and was awarded an OBE for public service in 2013.

I hope members will agree that the review panel represents the broad range of interests needed to review the legal aid system.

The Review will have the following high level remit: 'legal aid in the twenty-first century: how best to respond to the changing justice, social, economic, business and technological landscape'.

The review needs to consider those engaging with the system – both the end users and the solicitors and advocates providing their services. At the same time it is clear that the legal aid system should be efficient and comply with the principles of best value and public service reform.

It will be for the review group to set out its full programme of activities and the Chair has already begun preliminary work to do so.

I anticipate that work will include engagement with a full range of stakeholders with an interest in this work; and indeed I would encourage everyone who is involved with the legal aid system to engage with the review at every opportunity.

The independent chair will lead the review and present his final report to Ministers within a year. Ministers will respond to the review's recommendations in due course.

Presiding Officer, in establishing the review, I think it is important to recognise that the legal aid system in Scotland has many strengths.

We have maintained the wide range of scope of civil legal aid in Scotland, despite a challenging financial context, a fact that is applauded by our international legal aid colleagues.

We have maintained generous eligibility criteria. We continue to operate a demand-led system and everyone who is eligible for legal aid will receive it. Therefore, regardless of budget constraints, no-one is turned away.

This is in stark contrast to the position in England and Wales where, regrettably, the amount of civil representation funded through legal aid has fallen by about a third since the commencement of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Indeed, a recent Amnesty International report published in October 2016 and entitled, 'Cuts that Hurt: the impact of legal aid cuts in England on access to justice', evidenced that, in the area of social welfare law, there had been a 99% reduction in the number of welfare benefits cases in receipt of legal aid funding since the introduction of that legislation.

At the same time, legal assistance is no longer available for certain types of family, housing and other non-family problems such as welfare reforms.

In Scotland, however, I would wish to point out that legal assistance for family, housing, welfare and other non-family problems has been maintained.

For example we have maintained access to publicly funded legal assistance for people pursuing contact and residence cases in Scotland – assistance which has in many cases been removed in England and Wales.

Presiding Officer, in outlining our proposals for a review today, I think it is important to also assure colleagues that updates and improvements in the day to day operation of the legal aid system will continue to be put forward to ensure the proper functioning of the system.

In that regard, I wrote to the Justice Committee on 27 October 2016 detailing my short, medium and long term plans to improve the legal aid system.

In the short term, we will focus on making essential provision for legal aid by means of Scottish statutory instruments in response to new developments, as we did for example with respect to the introduction of simple procedure

In the medium term, we are developing proposals to streamline and modernise the current system, particularly for those who provide advice, assistance and representation. This responds to proposals set out in the Law Society paper, 'Legal Assistance in Scotland – Fit for the 21st century'. For example, proposals on certain fee reforms as regards criminal legal assistance have been developed and will be taken to the profession in the near future.

These proposals will seek to adjust the way in which fees are structured to more appropriately reflect the services provided by lawyers, and simplify the way in which fees can be paid. I look forward to engaging with the profession on this.

The review I have announced today will take a long term, independent and strategic look at the system of legal aid including its purpose and the outcomes we as a Society want it to achieve.

In conclusion Presiding Officer, the review of legal aid that I have announced today offers a timely opportunity to take a strategic, independent and long term look at our legal aid system to ensure that it is fit for purpose, that it is fair and that Scotland's population can continue to access support when they need it most.