Meeting of the Parliament 01 February 2017
I draw members’ attention to my entry in the register of members’ interests, where they will find that I am a solicitor by profession and hold a current practising certificate—albeit that I do not currently practise.
I am grateful for the opportunity to inform Parliament today of action that the Government is taking in respect of the legal aid system. In the programme for government, we made a commitment to commence this year engagement with the legal profession and others in order to identify specific measures to reform Scotland’s system of legal aid while maintaining access to public funding for legal advice and representation in civil and criminal cases, alongside measures to expand access to alternative methods of resolving disputes.
Publicly funded legal assistance plays a vital role in providing citizens with the ability to enforce their rights and in upholding social justice. In Scotland, we have, notwithstanding budgetary pressures, maintained wide access to legal assistance across criminal and civil cases. We have a demand-led system that has a high eligibility rate, which means that all those who apply and are eligible 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 more than 30 years old. The 1986 act has, appropriately, been updated over those 30 years to ensure that it has reflected current needs in relation to human rights, and that it has met Governments’ social justice ambitions.
Legal aid adjustments are a regular feature of the Justice Committee’s workload. I thank members of that committee, past and present, for their engagement and for ensuring that we have maintained a strong legal aid system. As a result of regular adjustments, however, we have a rather complex web of regulations, which can at times be difficult to navigate, even for seasoned legal practitioners.
The commitment in the programme for government reflects our view that the time is right to review the legal aid system, with a view to implementing a programme of future reforms of the system. As I said, publicly funded legal assistance is an important aspect of improving lives and tackling inequalities.
There is a range of perspectives on how the legal aid system might be improved for those who need that public service and those who deliver it. 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 technological landscape within which a modern and flexible legal aid system must operate.
The programme of justice reform in the past few years has been significant and is shaping a much more modern and progressive civil and criminal justice system, which includes, importantly, greater focus on the needs of individuals who engage with the justice system. Hence, the legal aid system must keep pace with the reforms and developments in the justice sector. 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 undertaken. I note, too, that some of the parties that are represented in Parliament had manifesto commitments to examine the legal aid system, so I hope that our planned review will be welcomed by members from across the chamber.
Legal aid is a complex and technical subject, but it matters to individuals—especially those who are most vulnerable. It is vital, therefore, that the direction and leadership of the independent review reflect that. I am delighted to announce that Martyn Evans, who is the chief executive of the Carnegie Trust for the Universities of Scotland, has agreed to chair the review. He brings a wealth of experience, having previously been the chief executive officer of Citizens Advice Scotland and a director of the Scottish Consumer Council, Consumer Focus Scotland and Shelter. He will be assisted by an expert adviser, Alan Paterson, who is a professor of law at the University of Strathclyde and director of its centre for professional legal studies. Professor Paterson has extensive knowledge of legal aid systems in jurisdictions around the world.
Martyn Evans will also be assisted by a review panel. We are finalising the panel with the chair, but I am delighted to confirm the following people as panel members. Colin Lancaster is the chief executive of the Scottish Legal Aid Board. Janys Scott QC is a highly respected Queen’s counsel with interests in all forms of child law, and is the chair of the Faculty of Advocates Family Law Association. Brian McConnachie QC has conducted many high-profile trials and appeals during his time as principal advocate depute, and is now involved in a wide range of serious crime and regulatory crime cases. Lindsey McPhie is a criminal defence solicitor advocate and past president of the Glasgow Bar Association. Jackie McRae is a civil legal aid lawyer specialising in family law, and is 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, of 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 at the University of Edinburgh and a member of the Scottish Civil Justice Council’s access to justice committee. Alison McInnes OBE is a former MSP and justice spokesperson who has an extensive knowledge of the governance of Scotland and its public and third sectors. She was awarded an OBE for public service in 2013. I hope that members will agree that the review panel represents the broad range of interests that are 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 the people who engage with the system—both the end users and the solicitors and advocates who provide their services. It is also 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; its chair has already begun preliminary work to do so. I anticipate that that work will include engagement with the full range of stakeholders who have an interest in the work. I 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, and ministers will respond to the review’s recommendations in due course.
In establishing the review, it is important to recognise that the legal aid system has many strengths. We have maintained the wide scope of civil legal aid 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.
That is in stark contrast to the position in England and Wales where, regrettably, the amount of civil representation that is 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, an Amnesty International report called “Cuts that hurt: the impact of legal aid cuts in England on access to justice”, which was published in October 2016, evidenced that in the area of social welfare law, there had been a 99 per cent reduction in the number of welfare benefits cases that were in receipt of legal aid funding since the introduction of that legislation.
In England and Wales, legal assistance is also no longer available for certain types of family, housing and other non-family problems, including those relating to welfare reform. I point out that in Scotland, however, legal assistance for family, housing, welfare and other non-family problems has been maintained. We have, for example, maintained access to publicly funded legal assistance for people pursuing contact and residence cases—assistance that has, in many cases, been removed in England and Wales.
It is important that while outlining our proposals for a review today, I also assure colleagues that updates to and improvements in the day-to-day operation of the legal aid system will continue to be made in order to ensure the system’s proper functioning. In that regard, I wrote to the Justice Committee on 27 October 2016 detailing my short-term, medium-term and long-term plans to improve the legal aid system.
In the short term, we will, by means of Scottish statutory instruments, focus on making essential provision for legal aid in response to new developments, as we did, for example, with respect to the introduction of simple procedure.
For the medium term, we are developing proposals to streamline and modernise the system, particularly for people who provide advice, assistance and representation. That responds to the proposals that are set out in the Law Society of Scotland’s paper called “Legal Assistance in Scotland: fit for the 21st century”. For example, proposals on certain fee reforms for criminal legal assistance have been developed and will be taken to the profession in the near future. The proposals will seek to adjust how fees are structured to reflect more appropriately the services that are provided by lawyers, and to simplify how fees can be paid. I look forward to engaging with the profession on that matter.
The review will take a long-term, independent and strategic look at the legal aid system, including its purpose and the outcomes that we, as a society, want it to achieve. In conclusion, I say that the review offers a timely opportunity to take that strategic, independent and long-term look at our legal aid system to ensure that it is fit for purpose and fair, and that Scotland’s population can continue to access support when they need it most.