Independent review of legal aid in Scotland: our response

Strategic Aim 3: Support and develop an effective delivery model

The report reflected on the landscape for publicly-funded legal assistance and found it both complex and diverse. The result was a system in which various providers did not always consider themselves to be part of a whole system. The funding arrangements are varied; with a combination of private providers, employed solicitors, public and third sector organisations receiving public funds from the legal aid fund, central government and local government. This mixed model of provision has developed organically and now is the time to consider what further benefits could be achieved by planning delivery of services and greater cooperation between services.

The report recommended greater alignment of the providers, both from the perspective of the user and that of the provider. This greater alignment sat alongside simplicity and would enable the user and the provider to be clear about what services were available within a legal aid service, where these could be accessed and who would deliver these services, including agreed signposting and referral routes between services. Overall, the current system lacks any process for designing supply around demand. Delivery is organic and dependent on those willing to deliver services, or grant funding being available to support providers. There is little or no capacity to design around community need and user demand and this strategic aim looks to address that deficiency.

This aim builds on placing users of publicly funded legal assistance at the centre of the service, with a delivery model provided by a diverse range of private, public and third sector organisations, that work more closely together and will be supported by effective strategic planning. There is real value for both users and providers in achieving this aim; users can access appropriate interventions at the right time, and providers can better target their expertise to those who require it.

We recognise that currently there is a heavy reliance on private solicitors to provide legal advice within the judicare system. The ability to access this advice is therefore predicated on the willingness and ability of those private providers to offer such legal assistance. In areas such as housing there are few firms, outside of law centres, undertaking this work. During the review, and since, charities such as Shelter, with solicitors embedded in their hubs, have reported they also support these issues. They also support the continuation of a mixed funding model, as recommended by the report. We value the ongoing provision of advice and representation services by publicly funded private solicitors, and this will continue to be important in an improved service. However, the public should be able to access appropriate advice, at the right time, and the report reflects that a more strategic and integrated delivery model is required to improve access to appropriate legal services.

The report recognises the support provided, with funding from the legal aid fund, by the Early Resolution and Advice Programme, which provides direct assistance and representation for people facing a civil court action and information, advice and sign-posting for people with small claims and other civil court matters. This work often leads to alternative methods of resolution and earlier resolution, reducing anxiety in clients and reducing the burden on courts. It is a programme that the Scottish Government has funded for 6 years and we will be interested in taking views on its future role within a reformed legal aid service.

Related to this recommendation was a concern regarding the lack of advice and legal services in rural communities and how those could be improved. The report made recommendations regarding a new payment model which takes into account geographical difficulties and ensuring access to services akin to those covered in the recent GP contracts. There is an absence of powers within the current statutory framework to:

• direct and target legal services at legal and geographical areas of need, taking into account local provision
• actively design a legal aid service which meets the needs of communities and individuals, that would allow for the construction of the right mixed model of delivery agents, and
• facilitate a more flexible payment regime

The current legislation helps to underpin the fragmentation outlined in the report.

The report reflected on the benefits to the users and to the public of a more holistic service, and noted the work of local defence solicitors whom the Chair met during his commissioning of evidence. For example, he admired their dedication to their clients and desire to help them at their lowest. The Law Society of Scotland also spoke of the unsung pastoral work carried out by its members for their clients. There is much to commend to this vision, and indeed many solicitors in the third sector and the private sector will already operate informal referral and working relationships. We also recognise the role that local authorities and others have in the design and funding of local advice and other support services, and that local authorities have experience of funding services to operate in referral partnerships. It is not intended to impinge on the work done by other funders, but to develop a way which encourages working between services to obtain the best outcome for people.

Outside the criminal justice system there are many areas where people find themselves involved in the court process unnecessarily. Divorce proceedings, contact, and other family issues for example could be resolved through mediation, arbitration or even a very simple form filling exercise. Not all legal issues require legal representation and often involvement of the courts prolongs the process and creates animosity where little previously existed. The report suggests that a mixed model that supports and funds partnerships across the advice and public service landscape could have a significant impact on lives. Again, this is an issue that could feature in a reformed legal aid service and will be subject to public consultation. Meantime, Scottish Government will explore the potential for shorter term improvements.

Taking all of these points together, the report recommends that a future legal aid service should be reactive as well as proactive in delivering publicly funded legal assistance. The service will serve the needs of many; individuals seeking rights recourse, victims, accused, children and communities. The provider landscape is just as diverse, both at a local and national level. The recommendations are framed to propose that all of those with an interest in the service, directly and indirectly, should have the opportunity to design the service and comment on its performance.

While early work has been undertaken to analyse the potential scale of these recommendations, it is not possible to progress the ambition within the current statutory framework, therefore it will be consulted on to inform the development of a new legal aid service.