Rethinking Legal Aid: a lesson from Scotland

The Scottish Government has published an independent strategic review on legal aid. The truly truly shocking thing for an English reviewer is that it is the kind of document that is now impossible to conceive south of the border in England and Wales. The Scottish Government had the confidence to give the task to a non-lawyer with a background in the NGO sector and to draft a brief that required a comprehensive view, concerned but not obsessed with finance. To read it is to realise the intellectual and political bankruptcy of policy-making at the Ministry of Justice in London.

The author, Martyn Evans, calls for six ‘strategic aims’. Some of these somewhat gloss over difficult issues and have, thus, resulted in praise from all sides – which may not be sustained in the length. What vested interest, for example, could possibly object to the strategic aim  to ‘create fair and sustainable payments and fees’? Certainly not the Law Society of Scotland which ‘strongly welcomed’ this proposal and, to be fair, also found that ‘there is much to support in this report’.

The great value for non-Scots of Mr Evans’ report is that he places legal aid within its wider context – both in the sense of seeing legal aid as furthering access to justice, human rights, a fair society and (in a nod to the UN unlikely in the insular jurisdiction south of the border) sustainable development goals. But, he also sees legal aid within ‘the wider policy context’ of a ‘citizen-focused approach’ that should encourage bringing together all the elements involved in providing access to justice – from voluntary sector advice outside of the legal aid scheme to the courts. It should actually set a global benchmark for how a legal aid review should be conducted.

His broad approach allows Mr Evans to consider the role of technology within a wide context. And, administratively, it opens up a role for the new body which he proposes to replace the Scottish Legal Aid Board – the Scottish Legal Assistance Authority. This ‘should have greater strategic responsibility for support and improve the quality and effectiveness of the mixed model of service provision, including the third-sector advice services. In delivering the new responsibilities, the new Authority should also operate as a facilitator, drawing together the various interests across the advice and information provider services to create a shared vision and shared ownership of the new legal assistance service. Working collaboratively can only strengthen the positions of all involved in the system and drive up the public trust of the system.’

From a technology point of view, the great advantage of such an approach is that it gives a basis for the strategic aim of investing ‘in service improvement and technological innovation’. The section on this topic (which runs from page 83) is particularly merits praise here because so much of it is based on the work of the Legal Education Foundation and the content of this website. And, in taking an international approach, Mr Evans has been encouraged to make reference to overseas developments including those in Ontario, British Columbia, Kenya – and, indeed, England and Wales (in relation to virtual law firms rather than legal aid policy).

Mr Evans’ overall finding is that ‘significant change management support is required for the publicly-funded legal assistance service. The challenges of the near future will require all of those currently involved in the system to innovate and for innovation to be funded and rewarded. That should be done through an allocation of funds that will help provide seed funding to develop innovative approaches to service delivery through support for service providers.’

So, well done the Scottish Government for being confident enough to back such an independent approach which recommends that nothing should be done to reduce the scope of legal aid (which has been drastically reduced south of the border); costs should continue to be controlled by strong management (which they have been); and promotes a broad vision of access to justice.

Leave a Reply