Meeting of the Parliament

Meeting date: Wednesday, February 1, 2017

Official Report 832KB pdf

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Legal Aid Review

The next item of business is a statement by Annabelle Ewing on a review of legal aid. The minister will take questions at the end of her statement; there should therefore be no interventions or interruptions.

14:41  

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.

I will allow about 20 minutes for the minister to take questions on the issues raised in her statement. Many members want to ask a question, but we will not get through them all unless there is a bit of brevity. I ask that front benchers set that example.

I thank the minister for advance sight of her statement.

Access to justice is one of the most important tenets of a civilised society, with the legal aid system fulfilling a crucial duty in that regard. However, it is a complex, outdated and, at times, inefficient system that would benefit from simplification and wider reform. In light of that, and to ensure that the most vulnerable in our society receive the legal assistance that they require, Scottish Conservatives called for a review of the legal aid system in our 2016 manifesto, so today’s announcement is certainly welcomed by members on the Conservative benches.

The minister mentioned the Law Society’s paper “Legal Assistance in Scotland: fit for the 21st century”. The document argues that the justice sector overall has kept track of inflation and other cost drivers, but that that has not been the case for legal assistance, meaning that law centres, the advice sector and other front-line services have funding challenges. In light of that, will the minister expand on the proposals for the fee reforms to which her statement briefly referred?

Further, I understand from the minister’s statement that the Scottish Government is finalising the review group’s panel members. We wish those appointed every success in their task. I am particularly pleased to welcome the involvement of Alison McInnes, who did great work in this chamber and has a wealth of knowledge and experience that will no doubt be beneficial to the group. Will any further additions to the panel be made? If so, what sectors will those extra members come from?

Finally, the minister mentioned a demand-led system in which everyone who is eligible for legal aid receives it. I have a constituent in Fochabers who is out of work and severely ill in hospital, and whose only income is through benefits. Will she explain why, despite that, his legal aid application for divorce proceedings has been denied, whereas the other party, who is in work, has been given legal aid? Such ambiguity and inconsistency in the current system cause concern. I would appreciate her response.

That was hardly brief, Mr Ross.

I will try to give brief answers.

In broad-brush terms, with regard to the Law Society of Scotland’s paper and the budgetary issues, it is important to say that the allocation of legal aid funding for the legal aid fund is the same in this year’s draft budget as it was last year. That allocation of £126.1 million has been made against a backdrop of continuing cuts in the Scottish budget from Westminster.

As far as the fee reform issue is concerned, the member will recall that I wrote to the Justice Committee on the matter in quite some detail. We intend to bring forward plans on that in the medium term. We have been working on the issue, and we will discuss with the legal profession our plans on some elements of criminal work and potential block fee arrangements.

When it comes to additional panel members, we have been working with Martyn Evans, the chair, and, in conjunction with him, announcements will be made shortly. We are absolutely committed to ensuring that there is a proper balance on the review panel to take into account all relevant interests.

With regard to the specific case in his region that the member mentioned, as a minister I obviously cannot comment on individual cases. I suggest that the member invites his constituent to contact the Scottish Legal Aid Board to find out whether there is anything that can be done.

I thank the minister for providing an advance copy of her statement.

A review of legal aid is welcome, and we wish Martyn Evans and the review panel well in the task ahead.

I understand the minister’s decision to highlight the difference between the scope of civil legal aid in Scotland and its scope in the rest of the United Kingdom, where significant cuts are having a serious impact on access to justice. However, there are serious concerns in Scotland about the sustainability of the current legal aid system, which the Law Society says is putting at risk the provision of legal services to some of the poorest and most vulnerable in our society. It says that gaps are developing in provision.

It would seem that, in order to address issues with the availability of legal aid, more resources need to go into its provision. Unless the option of more funding is available, there are concerns that the scope of legal aid could be limited. Are such options included in the review’s remit? Is the review restricted to the current budget parameters?

As I stated in answer to one of Mr Ross’s four questions, the funding allocation for the legal aid fund for the coming year is the same as it was last year—namely, £126.1 million. Of course, legal aid is demand led, so it is not a cash-limited budget. I have seen different figures in some Law Society documents; they include the administration budget for SLAB, which is a different element. When it comes to the draft budget—which we will be discussing further on Thursday—we are looking at the legal aid fund itself. Needless to say, if the budget is not agreed to, there will be no money for the legal aid fund.

We have committed to a wide scope for legal aid—I gave a flavour of that in my statement—and we will continue to be committed to that. It is vital that everyone in Scotland who needs support in the form of access to legal aid can get it.

The review that I have announced today is independent, and it will be up to the chair and his review panel to engage, to investigate and to discuss. They will do so without fear or favour. We are holding the review in 21st century Scotland, in 2017-18, and, as a Government, we are subject to significant financial constraints as far as our budgetary settlement from Westminster is concerned. I imagine that that will be known to every member of the panel.

The minister has given an overview of those who will form the review panel. In her response to Douglas Ross, she assured Parliament that its membership will cover a wide range of expertise and issues regarding legal aid. Will the membership of the panel include representation from those who work with people who rely on legal aid?

Yes. I announced the panel members, and the member will see that various interests are represented, including those of Citizens Advice Scotland. It is clear from the membership of the review panel that the breadth of the expertise and experience of its members is quite substantial. I am very grateful to all the panel members who have agreed to bring their expertise to bear on the important policy review that we have announced today.

I thank the minister for early sight of her statement.

The Scottish Green Party welcomes the review, and I am particularly delighted that former colleague Alison McInnes is involved. The party also supports greater use of alternative dispute resolution, which by avoiding litigation and prosecution can potentially reduce costs.

The phrase “access to justice” was peppered throughout the statement, and obviously applies to environmental law. The minister will know that in the previous session of Parliament the Scottish Government carried out a consultation entitled “Developments in environmental justice in Scotland”—

Can we get to the question, please, Mr Finnie?

Indeed. Will this review cover the Aarhus convention and remove any dubiety about Scotland’s compliance with it?

As I have said, the review is independent, and all members are encouraged to make their views known to the review panel.

On the Aarhus convention, we have taken on board all the elements of the convention in terms of access to environmental information, public participation and access to justice, where changes have been made to standing for judicial review in order to create a clear, broader entitlement to take a case to court, including for environmental non-governmental organisations.

On the introduction of an environment court, we have proceeded with a consultation, the analysis of which, I understand, is to be published shortly. I am sure that the member will have further comment to make at that time.

I, too, welcome the review that the minister has announced. Like her, I have an interest in the matter—in my case, as a practising advocate.

Those at the court-face, such as many of my colleagues in the Faculty of Advocates and others in the legal profession who deal in legal aid cases, may be surprised and disappointed—in view of the current state of legal aid in Scotland—to hear the negative comparison that has been made with the English system. Will the minister confirm that the review will not be a downwards-only review that further negatively affects the ability of the most vulnerable in Scottish society to obtain legal representation?

I felt that it was helpful in the statement to put the Scottish legal aid system in context. After all, it has been recognised by the International Legal Aid Group as one of the most generous in the world.

As for the comparisons with what the member’s party is doing down south on legal aid, there have been significant cuts to not only the budget but the scope of legal aid that is available to people there, with a 99 per cent reduction in the legal aid that is available for welfare benefit cases. That statistic is quite shocking.

The independent review panel will investigate matters, take in people’s views and submissions, reflect, discuss and formulate recommendations. I have total confidence that it will do that without fear or favour and bring its tremendous breadth of expertise to the table.

As the minister said, the current legislation is largely piecemeal, and the last substantive act was passed in 1986. Given that the world is now a very different place, with rapidly changing technology, does she expect any legislation that is created as a result of the review to reflect those changes in technology?

I thank the member for an important question. As I have said, the review’s remit includes looking at changes in the technological landscape in 21st century Scotland. That will be important, because I do not think that we have seen anything yet with regard to changes in technology.

The approach fits in with our justice digital strategy and SLAB’s increasing use of online platforms, including the ability to submit applications and treat online, and much more can be done to facilitate easier access to the system for users, simplify the process and maximise efficiency. On the technological front, it will be very interesting indeed to see what the review panel comes up with further to its engagement with wider stakeholders in Scotland.

I am grateful to the minister for early sight of her statement. She referred to

“proposals to streamline and modernise the system”

and went on to say that

“proposals on certain fee reforms for criminal legal assistance have been developed and will be taken to the profession in the near future.”

Will those fee reforms include civil legal assistance? If not, what is the timetable for looking at fee issues surrounding such assistance?

The fee reforms work to which I referred in my earlier answer follows from strands of work that were commissioned from SLAB by my predecessor, Paul Wheelhouse. One of those strands involves looking at the possibility of streamlining funding in some criminal cases. That work has continued apace, and I understand from officials that we are nearing the point at which we can have detailed discussions on that with the Law Society of Scotland. Obviously, we will keep the Justice Committee informed of that.

On the position of civil legal aid and the wider legal aid system, the review panel that has been set up is independent, and how it wishes to proceed and map out its focus will be up to it. It will, of course, be informed by the submissions that it receives from members and the public alike.

On assisting those who are most vulnerable, will the minister assure Parliament that the extra support that is provided to the Scottish women’s rights centre to provide legal information and advice to women who are affected by gender-based violence will continue for the duration of the review?

Yes—I am happy to do that. Last year, the Cabinet Secretary for Justice announced some £665,000 extra for the Scottish women’s rights centre to enable it to continue its excellent surgery work and its signposting for women in that position. I know that the centre hopes to extend north from its bases in Glasgow and Lanarkshire to Dundee and, I think, the Highlands. That is welcome. I confirm to Mr Macpherson that that funding will continue as per the cabinet secretary’s announcement.

I, too, thank the minister for early sight of her statement. Notwithstanding the now customary critique of what is happening elsewhere in the UK, the minister gave a fair assessment of why the review is needed. I very much welcome the establishment of the group and its members, not least my former colleague Alison McInnes.

What is the likely timeframe for the group to complete its work? Will the minister ensure that it takes account of any specific issues that relate to legal aid and access to justice more generally in rural and island areas?

The review will take up to 12 months.

Liam McArthur’s point about the particular position of rural and island communities was well made. I know—at least I assume—that the review panel and its chair will look at the statement and the ensuing question-and-answer session in the Official Report and that that point will be picked up.

At a time when, as the Scottish Parliament information centre has confirmed, the Scottish Government’s budget is increasing, many people will wonder why we are seeing a real-terms cut in legal aid. Rather than talking about what is happening in England and Wales, will the minister explain that?

It is clear that, between 2010-11 and 2019-20, Scotland’s budget will decrease by some 9.2 per cent, which is some £2.8 billion. Imagine what we could do with that. Instead of whingeing to the Scottish Government about the cuts from Westminster that his party is making, perhaps Oliver Mundell might wish to direct his comments to his colleagues in London.

In all such reviews, hearing from stakeholders and those with first-hand experience is vital. What steps will be taken to ensure that stakeholders have wide engagement in the review?

In my statement, I encouraged the widest possible engagement. I am conscious that we have set up an independent review; having done so, I do not want to unduly step on toes. However, I am sure that the review will seek evidence from wherever it can be submitted, as doing that will best inform it and how the recommendations are determined.

I call Rhoda Grant, and we might even manage to get Stuart McMillan in.

Further to Claire Baker’s question, legal aid has a stand-still budget this year. Will the review panel be able to recommend increasing the scope of payments that are made under legal aid? Will it look at how time and distance are taken into account in legal aid payments?

As I said, the review is independent, so the panel will take the review where it wants to go. I also said that we live in times of great budgetary restraint in 21st century Scotland, further to budget cuts from Westminster. That will be part and parcel of how people on the panel will approach the issue.

On the nuts and bolts issues—time, distance and so forth—that Rhoda Grant mentioned, I encourage her or her party to make submissions about the detail that she hopes that the review panel will address.

I ask for a final quick question and answer, please.

If the review recommends a change to legislation, will the Scottish Government accept that recommendation?

As with any review that the Scottish Government—present or past—has commissioned, we will await with interest the group’s recommendations and will carefully consider them. Having duly considered them, we will bring matters back to the Parliament at the appropriate time.