Collaboration and innovation are key to progress

Written by William Moyes, Chair, Scottish Legal Aid Board 

Each year, legal aid supports an extensive network of committed providers to deliver help across Scotland to thousands of people facing a wide range of problems. But that does not mean that all needs are being met, or that the system operates as smoothly as it could.

As 2025 gets underway, most involved with the legal aid system in Scotland will agree that it is facing challenges adapting to a world not envisioned when it was created in its current form almost 40 years ago.

There may be different views on how best to address these challenges, but we share a common goal: a system that meets the needs of the people of Scotland in the 21st century.

System requiring change

Looking back at the figures for the past year it might not be immediately obvious to a casual observer that it is indeed a system requiring significant structural change.

In 2023-24, there were more than 176,000 grants of legal assistance, with payments of £151m. Spending is on track to be more than £170m both this year and next – its highest ever level.

The provision of civil advice and representation has shifted over time, and our data shows there are now fewer family cases, and fewer solicitors doing this work, but more work in relation to guardianships, mental health, immigration and asylum.

On the criminal side, after many years of falling payments and practitioner numbers due to reducing crime and fewer prosecutions, the number of active criminal practitioners is now fairly stable.

Payments per active solicitor are now more than 20% higher in real terms than they were six or seven years ago and are set to grow further. Law Society of Scotland data suggests that the number of younger solicitors working in criminal law has almost trebled over the same period.

Despite these positive indications as to the health of the system, the position of the Scottish Legal Aid Board (SLAB) is clear: change is both necessary and overdue.

Current system limitations

The current system is complex and hard to navigate. It isn’t person centred. There is no mechanism for connecting those in need with solicitors or advice agencies that can help them, and no guarantee that services with sufficient resources will be available to provide help.

Equally, the current system has limited scope for targeting resources at priority issues or securing services in any given place or for a particular type of problem.

Add these weaknesses to the challenge of ensuring that delivering legal aid-funded services remains a sustainable economic prospect for providers, and change is undoubtedly needed.

The Minister for Victims and Community Safety, Siobhian Brown, confirmed to the Scottish Parliament that the new legislation needed for significant structural change will not now be introduced in this parliamentary term – but she has committed to legal aid reform within the next 18 months.

While the timing of any significant legislation is unpredictable, SLAB will continue to make the case for substantial change to the current legislative framework.

The delay means there can be no immediate transformation in how the system designs, secures and delivers services, but it does not mean the system stands still.

Making improvements in 2025

In 2025, SLAB will continue its collaborative work with solicitors, counsel, third-sector providers and other stakeholders to develop proposals for the Scottish Government to make short-term changes by regulations, to bring efficiencies and simplify the current system for everyone involved.

For example, reducing the number of ABWOR (assistance by way of representation) applications required in children’s hearings procedure; and removing the complications caused by the distinction between ABWOR for guilty pleas and summary criminal legal aid for not-guilty pleas, by using summary criminal legal aid for both.

The aim of this cross-justice collaboration is to deliver better individual outcomes and system performance, while improving profitability for those delivering services, by reducing administration and system delay.        

Benefits of joint work in 2024

The benefits of such collaboration have been seen in several ways over the past couple of years. One example of this positive joint work between justice partners – SLAB, the legal profession, courts, judiciary, Crown and police – was the Summary Criminal Case Management pilot completed last year in Dundee, Hamilton, Paisley and Glasgow.

The Scottish Government made changes to legal aid to support the pilot, which has the potential to transform summary justice across Scotland by bringing early resolution for accused, victims and witnesses; a reduction in police officers attending court; a substantial decrease in case backlogs; faster payment; and fewer unnecessary court attendances for solicitors.

The consequence for criminal legal aid was a move from summary legal aid to ABWOR, which was one factor in grants of ABWOR increasing by 19% to 25,300.

Another example is one designed to aid solicitors’ cashflow. New processes for interim fees in most types of case mean that solicitors can now submit claims for 100% of the fees incurred for the period covering each claim, without having to wait until the end of the case or submit an account at the interim stage. This now also includes interim claims for fees or outlays in cases where there is a potential for clawback.

SLAB will be continuing this collaborative approach in 2025 to explore ways of linking the way legal assistance is planned, delivered and funded with user needs and changes in the wider justice system.

Making a vision a reality

At SLAB, we don’t believe that in its current form the system does – or can – deliver what the public rightly expects of a modern, accessible public service.

Scotland needs a system that can adapt depending on the issues people are facing now and in the future. It has to provide services designed with peoples’ needs at the forefront and clearly focused on delivering stated outcomes.

And it must do so in a way that minimises administrative burdens, maximises certainty of payment and so ensures the continued profitability and therefore involvement of those providing the service. Being clearer about what the public can expect also helps hold the system to account should it fall short of those expectations.

These kinds of change can’t all be delivered overnight, but collaboration is key not only to identifying short-term improvements but also to developing proposals for the primary legislation needed to deliver a system redesigned to meet the needs of the people of Scotland for decades to come.

We at SLAB look forward to working with the solicitor profession in 2025 and beyond to help make this vision a reality.

Written by William Moyes, Chair, Scottish Legal Aid Board