Scottish Government consultation on Legal Aid reform

Our response

Summary

Consumer Scotland broadly supports the proposed reform of the legal aid system, particularly the intention to move from a reactive and process-driven model to a more planned, efficient model focused on outcomes. Measures to protect consumer access to legal advice and assistance under legal aid are overdue and there is an urgent need to make meaningful progress on reform of the legal aid system to meet the needs of consumers.

To meet the stated goal of providing legal aid to all those that meet the tests across all areas of law covered by legal aid, the availability of legal aid providers must meet demand. Legal aid funding must be rebalanced to support a wider range of models and locations across the country if all consumers across Scotland are to be able to access legal remedies.

To ensure the greatest consumer benefit from these proposed reforms, we recommend:

• Research should be carried out at the earliest opportunity to improve understanding of the extent and impact of unmet consumer need for legal assistance. A stronger evidence base on the availability and accessibility of legal services in Scotland is also required, taking into account the views of service providers and advice bodies.
• A targeted public legal education and information programme, as recommended by the 2018 Evans review, should be brought forward as soon as possible to improve consumer awareness of the routes available to them to seek legal remedies.
• An evaluation of where unmet legal need exists for consumers and a broader programme of measures to address this unmet need should be carried out.
• The Scottish Government and Scottish Legal Aid Board must have regard for the Consumer Duty in the formation of any future policies.
• Particular attention needs to be directed towards the provision of legal advice for consumers in vulnerable circumstances in future policy and design choices.
• User-centred decision making and effective service design will be important and user voices should embedded as an immediate priority to inform service design.
• While we broadly welcome the introduction of a high-trust model for practitioners to reduce bureaucracy, we have some concerns over how this is communicated to consumers and care should be taken to ensure this does not lead to a two-tier structure.
• The Scottish Government should actively facilitate discussions with third sector partners and advice bodies on how to take forward proposed reforms designed to deliver more diverse delivery models for the provision of legally-aided advice and assistance. 

Introduction

Q1. As set out in the Overview section, to what extent do you agree with the Scottish Government’s proposed approach?

Consumer Scotland agrees.

Consumer Scotland is the statutory body for consumers in Scotland, established by the Consumer Scotland Act 2020. We use data, research and analysis to inform our work on the key issues facing consumers in Scotland. In conjunction with that evidence base we seek a consumer perspective through the application of the consumer principles of access, choice, safety, information, fairness, representation, and redress. This consultation is particularly relevant to the principles of access, fairness, representation, and redress.

Our purpose is to improve outcomes for current and future consumers, with a particular focus on affordability, consumers in vulnerable circumstances, and climate change mitigation. As a consumer advocacy body, we have responded to the consultation questions that are relevant to accessing and using the legal system in general, with a focus on the provision of civil legal assistance in particular.

Consumer Scotland has played an active role in consideration of consumer engagement with legal services markets, including engagement at all Stages of the Regulation of Legal Services (Scotland) Act 2025 and its subsequent implementation, as well as the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee inquiry into civil legal assistance in the previous Session. Consumer Scotland has seats on both the Scottish Legal Complaints Commission’s Independent Consumer Panel and the Independent Fee Review Mechanism Group.

Consumer Scotland broadly supports the Scottish Government’s approach, particularly the intention to move from a reactive and process-driven model to a more planned, efficient model focused on outcomes.

Consumer access to legal aid providers and services varies widely by region. The Civil Legal Support Index and Scotland Mismatch Index, proposed by Dr Mustapha Douch find provision is concentrated in Glasgow and Edinburgh, and “several island and commuter-belt councils have little or no local cover” and “market forces alone have not corrected geographic inequalities”.[i] The provision of grant-funded services is currently limited to specific regions and areas of law, generally including housing eviction and debt advice and a single national project on gender-based violence.[ii]

Evidence demonstrates a need to widen the scope and improve access to civil legal aid in housing cases. Consumer Scotland research with private renters and advisers (2025) found that private renters can find the Tribunal system very challenging to navigate without ongoing support, but free advice services are generally unable to provide legal assistance.[iii] Advisers in the research told us that they sometimes feel compelled to advise against initiating a Tribunal application, when they know the required legal aid is unavailable and the inability to recover costs negates any potential reward. Furthermore, the Tribunal itself suggested in its 2024/25 report that renters “may be unable to obtain legal representation despite having approached a number of legal firms, as some firms no longer provide representation in housing cases under legal aid.”[iv] In line with the existing power imbalance between renters and landlords, the Tribunal also noted that in 2024/25 landlords remained significantly more likely to be represented, at 53% of landlords vs only 4% of renters.

These findings suggest that private renters in Scotland may be missing out on a resolution when they cannot afford legal support. While we have made recommendations to help improve the navigability of the system, this shows why it is important that this review results in an increased ability for renters to access and complete the Tribunal process with civil legal aid.  

To meet the stated goal of providing legal aid to all those that meet the tests across all areas of law covered by legal aid, the availability of legal aid providers must meet demand. Legal aid funding must be rebalanced to support a wider range of models and locations across the country if all consumers across Scotland are to be able to access legal remedies.

Consumers often find it difficult or impossible to find a firm or grant-funded service able to provide the advice, assistance and representation they require. Data from the Law Society of Scotland[v] strongly suggests a demographic challenge in private-sector providers of legal advice and assistance offered under legal aid funding, with fewer entrants to legal aid and an ageing population of existing legal aid providers creating succession issues for firms and for provision as a whole.

As legal aid services are predominantly provided by smaller firms[vi] these succession issues risk further decline in provision and restriction in the ability of consumers to receive support under legal aid. The continuation of funding for legal aid apprenticeships may go some way towards encouraging entrants to the field, but there is limited evidence to suggest that this is reversing the decline in providers at mid-career stage and creating a sustainable provision in the medium- to long-term. There is a need for further evaluation of efforts to encourage new entrants and retention of existing providers if the private sector is to remain the primary provider of civil legal aid services, or the setting of a clear direction of travel towards other methods of delivery including grant-funded services or direct public provision.

Consultation and policy development in this area has been ongoing for several years with a view to improving access for consumers, including future consumers who could be using legal aid. Eight years ago, the Independent Strategic Review chaired by Martyn Evans published a 10-year strategic mission geared towards six strategic aims, underpinned by 67 recommendations[vii]. One of its aims was to help the legal aid system in Scotland respond to changes in 2018 – 2028, but we note the findings of the Equalities, Human Rights and Civil Justice Committee’s inquiry in the last Parliamentary Session into civil legal assistance which reported that little progress has been made[viii]. We agree with the Inquiry’s finding that there is now an urgent need to make meaningful progress on reform of the legal aid system to meet the needs of consumers.

We note that the proposed Bill is the first major overhaul of the Scottish Legal Aid system for many years and presents a rare opportunity to address barriers to access, particularly in the provision of civil legal aid. However, while it may simplify the system and go some way towards providing financial sustainability of the legal aid budget in future years, the approach set out in the consultation document does not in our view fully take into account the decline in availability of legal aid. This particularly concerns the matter of civil legal aid provided under the judicare model for consumers since the system was last subject to a review of this magnitude.

Consumers’ ability to seek legal remedies is subject to a number of barriers of which the availability of legal aid providers is only one factor. Research by Consumer Scotland has found that over a third (37%) of adults in Scotland have low levels of legal confidence. In addition, 24% of adults perceive the justice system in Scotland as being not very accessible[ix]. Recent research[x] for the Scottish Parliament Information Centre (SPICe) noted that a “substantial proportion of individuals with civil justice problems take no formal action, suggesting persistent unmet legal need, particularly among vulnerable groups”. Addressing this low level of legal confidence via a wider programme of public legal education to assist consumers in understanding and exercising their rights would further enhance access. More research should therefore be carried out to improve understanding of the extent and impact of unmet consumer need for legal assistance.

We consider that without measures to better evaluate where unmet legal need exists for consumers and a broader programme of measures to address this unmet need, the Scottish Government’s approach will address a very limited set of barriers to consumer access to effective legal advice and assistance under legal aid. It will be important that any reform of the system aims to not only halt the decline in the ability of consumers to seek legal remedies with legal aid support, but to stimulate growth in the provider market, whether delivered privately, through grant-funded projects or directly, and to improve consumer awareness of the routes available to them to seek legal remedies.

Section 1: Purpose, Priorities and Objectives

Q2. Do you think it would be beneficial for Scottish Ministers to continue to set a clear purpose for the legal aid system, supported by periodically updated objectives for the Scottish Legal Aid Board?

Consumer Scotland agrees with both the purpose and objectives

Q3. What principles, if any, should inform the purpose and objectives? Principles are the high-level considerations that guide how decisions are made (e.g. user-centred or evidence-based). “Purpose” describes the overarching aim of the system, and “objectives” set out the specific outcomes needed to deliver that aim.

We note in answering this question that Scottish Ministers and the Scottish Legal Aid Board are subject to the Consumer Duty. As such, when making decisions of a strategic nature they must have regard to the impact of those decisions on consumers in Scotland and the desirability of reducing harm to consumers in Scotland.

On the issue of which principles should inform the purpose and objectives, we draw attention to the Consumer Principles, a set of principles developed by consumer organisations in the UK and overseas. Consumer Scotland uses the Consumer Principles as a framework through which to analyse the evidence on markets and related issues from a consumer perspective. The principles are also embedded in the Consumer Duty Guidance published by Consumer Scotland.

The Consumer Principles are access, choice, safety, information, fairness, representation, and redress. In this particular case, key questions that might guide the Scottish Government in user-focussed system design are:

• Access: Can eligible consumers access legal aid when and how they need it?
• Fairness: Are some consumers or groups of consumers experiencing more difficulties accessing and using the legal aid system than others?

Particular attention needs to be directed towards the provision of legal advice for consumers in vulnerable circumstances. We note however that research for the Legal Services Board in England and Wales has highlighted how anyone can be “inherently vulnerable” when engaging with legal services and systems[xi]. Consumers who use legal services are often dealing with difficult or stressful circumstances. They can experience “situational vulnerability”, i.e. being served with an eviction notice or experiencing a bereavement, or there may be issues with their capacity to engage with systems due to illness or disability. Consumers also experience vulnerability in how they interact with legal services, due to the technical nature of legal information and the language and structures of the legal system. Vulnerabilities can also intersect and be compounded, i.e. when a person who has lost their employment is in poor health due to stress.

• Representation: Do consumers have a say in how legal aid services are provided? 

We welcome the inclusion of the principles of user-centred decision making and effective service design on the face of the consultation document. Embedding the user voice should be an immediate priority to help inform reform in service design and we note the parallels with the ongoing Public Service Reform programme. We would welcome more detail on when and how the Scottish Government intends to engage with consumers and whether such engagement will include an additional focus on consumers in vulnerable circumstances, such as disabled or low-income consumers or those in legal aid ‘not spots’. Such engagement would allow the new system to be designed in a way that is more universally accessible to all consumers, rather than having specific mitigations being added as ‘work arounds’ at a later point, risking the addition of further complexity to the system. Consultation should include potential, current and previous service users, as well as legal assistance providers. Consideration should also be given to ensuring a wide range of providers, and consumer voices, are represented in governance arrangements for legal aid. Consumer Scotland would be pleased to explore these matters further with the Scottish Government, if that would be helpful.

We also note that the definition of a consumer within the Consumer Scotland Act 2020 includes both existing and potential consumers, including future consumers[xii]. It is therefore important that any reform has the future sustainability of consumer access to legal advice and assistance at its core.

Beyond the consumer principles, we consider the legal aid system should be informed by equality and human rights principles and should embed person-centred and trauma informed practices, through collaboration and partnership. 

Q4. Do you think these principles should be subject to Parliamentary scrutiny?

Consumer Scotland agrees

Section 2: Simplifying processes

Q5. Which of the following benefits, if any, do you think simplification would provide? (Select all that apply)

While we consider the proposed approach will contribute to all of the above factors in some measure, we again highlight the need to improve the consumer experience through user-centred design, better education and understanding of the legal aid system, and supporting a wider range of service delivery models.

As a consumer advocacy body we focus our views on the potential impact for consumers. We consider that providing easier access to services delivered under legal aid must be a clear priority given the current challenges faced by consumers in need.

Q6. To what extent do you agree with the proposal to consolidate or streamline, where possible, the current range of separate aid types?

Consumer Scotland agrees

Q7. To what extent do you agree or disagree that contributions and repayment arrangements should be simplified?

Consumer Scotland agrees.

Q8. To what extent do you agree or disagree that contributions and repayment arrangements should be made more consistent across all types of legal aid?

Consumer Scotland agrees.

Q9. What changes, if any, should be made to contributions and repayment arrangements? (Select all that apply)

We agree with the findings of the 2018 Evans Review[xiii] that the current range of contribution arrangements across different areas of legal aid creates uncertainty and inconsistency for consumers. Greater transparency and consistency has the potential to help demystify the system for consumers and is welcome.

Q10. Do you agree that eligibility for legal aid should be clearly separated from the assessment of what a person is required to contribute?

Consumer Scotland agrees

Q11. To what extent do you agree or disagree that the Scottish Legal Aid Board should have a bi-annual statutory duty to review and advise on contribution thresholds and arrangements?

In answering this question we note our membership of the Independent Fee Review Mechanism Group.

The creation of such a duty would provide welcome opportunity for scrutiny of how the contribution thresholds and arrangements are operating. We note as above our comments on SLAB and Scottish Ministers being subject to the Consumer Duty for strategic decision making and would recommend the consumer principles, as set out in the Consumer Duty guidance, are taken into account in any future decisions on amending thresholds and arrangements to ensure they are user-centred, clearly understandable and do not create an unnecessary barrier to access.

Q12. Are you in favour of a higher trust model for accredited providers?

While we welcome the potential for accredited practitioners to access a model which would “reduce delay, remove unnecessary procedural steps and support more efficient case progression”, it should be stressed that this must be the goal of the simplification processes set out across the reform process for both accredited practitioners and those without accreditation.

The existing abatements process is a particular source of complaint among legal aid practitioners[xiv] and acts as a disincentive for firms to provide services under legal aid. The broader simplification proposals will only succeed if they result in improvements in this process and the volume of abatements, which is frustrating for practitioners, confusing for consumers and an inefficient use of public funds.

As a consumer organisation, our priority for reform of the legal aid market is to improve access to legally aided advice and assistance, whether by creating a sustainable market for private provision or increasing provision via grant funded or direct provision. The higher trust model is welcome in principle therefore, but the effectiveness of its operation will depend on the requirements for practitioners to apply for accreditation; the degree to which accredited practitioners experience application rejections or abatements after services have been provided; and whether this will in effect create two separate classes of practitioner – those accredited who carry out a high volume of legal aid work and those not accredited who carry out only a small proportion of their work under legal aid. Without improvements to the volume of application rejections and abatements, which will only occur should the simplification process be successful, those not accredited may be further dissuaded from entering or remaining within the market once the conditions for accreditation become apparent.

Analysis from the Law Society of Scotland[xv] demonstrates that for most solicitors and firms providing services funded by legal aid, this work represents only a small percentage of their overall turnover and caseload. If the requirements to qualify for the higher-trust model are too onerous relatively few practitioners may choose to apply, limiting the effectiveness of this proposed measure on improving the current barriers to consumers being able to receive services under legal aid funding. A high-trust model will only be a success if it does not act as a disincentive for those practitioners who take on a relatively small number of legally-aided cases to continue to do so.

If a high-trust model is to be introduced, attention should therefore be given to how this model is clearly communicated to potential consumers. There will be a need to guard against the perception that a two-tier system is in operation, with consumers encouraged to seek out those operating under the high-trust model where firms who carry out a relatively small amount of legal aid work, and therefore may not see the commercial benefits of registering for the high-trust model, would be just as able to carry out the work required.

Q13. Are you in favour of data sharing between organisations (such as the Scottish Legal Aid Board and Social Security Scotland) to ease the passporting of benefits?

Consumer Scotland agrees.

Section 3: Diversifying Delivery

Q14. Which funding models do you think should be used more in future? (Select all that apply)

We support the Scottish Government’s aim for funding to support a diverse and sustainable mix of private, public and third sector delivery, which can respond to legal aid users’ needs.

The Scottish Government should not only seek to ensure the continued provision of judicare; it should also invest in civil legal assistance provided by not-for-profit services, such as law centres and Citizens Advice Bureaux. Longer-term funding may lead to more stability, increased geographical coverage, and better levels of awareness and uptake of advice by service users, allowing for earlier resolution of disputes. We note that the Legal Aid Payment Review panel supported a mixed model of funding for legal assistance work, including grant funding and contracts[xvi], and recommended further consideration of how these could better be utilised. System design should be informed by the experiences of those who deliver it (incorporating advice services, directly funded and grant funded bodies as well as solicitors) and by those who use it. We consider the reform proposals put forward in this consultation to provide an opportunity for this exploratory work to be taken forward.

The Equalities, Human Rights and Civil Justice Committee’s report on Civil Legal Assistance in Scotland[xvii] noted evidence from a wide range of stakeholders on the existence of “legal aid deserts” and warned “the extent of this problem is very alarming”. There is currently no definitive evidence base to demonstrate the extent of unmet need and we agree with the Committee’s call for the development of an improved evidence base.

SLAB’s most recent annual report[xviii] notes frustration with the lack of mechanisms to direct resources towards particular areas of need and argues that “instead of strategic decisions on funding that shape how stated outcomes will be delivered over a period of years, the system is driven by hundreds of thousands of micro-decisions every year”. Clearly there is a need for more strategic oversight of delivery and the ability of those scrutinising delivery against objectives to be able to identify areas where services require improvement to meet the stated goal of providing legal aid to all those that meet the tests across all areas of law covered by legal aid.

As a consumer body, we consider the user-centred approach to reforming and shaping the legal aid system as a key strength of the recommendations made in the Independent Review[xix]. We also consider that the diversity of its suggested approach to provision, with a number of different models suggested, is more likely to meet the needs of consumers who may choose to access the system in a variety of ways. It will be necessary for the Scottish Government, other funders and the third sector and advice bodies to work together at pace to take forward these reforms and ensure that consumers can benefit. We encourage the Scottish Government to actively facilitate these discussions at the earliest opportunity.

One area which we would encourage early consideration of is longer-term funding settlements for in-court advice services, which provide support largely to people who have not secured legal representation due to the costs involved, lack of availability of practitioners willing and able to take on a case under legal aid, or for simple procedure cases where fees may be prohibitive. These services are not available at all courts, creating a geographical variation in support service available to consumers. Citizens’ Advice Scotland has argued that late confirmation of funding for future financial years “negatively impacts on retention of experienced, key in-court advisors”[xx].

To achieve the stated objectives of the Bill of creating a system that is simpler for users and providers to navigate, we encourage the Scottish Government to ensure the system is informed by an improved evidence base, including the experiences of users as well as those who deliver advice and assistance. We also consider that the Scottish Government should work with partners to explore how the system can be subject to effective strategic oversight by the appropriate bodies to help monitor, evaluate, and identify opportunities for improvement.

Q15. Are you in favour of services being commissioned directly in line with the approach set out, for example through grants/contracts or direct employment?

Consumer Scotland agrees.

Q16. Do you consider that the scope of legal aid in Scotland should continue to be focused primarily on individuals, or are there circumstances in which non-natural persons should be eligible for support?

We have no comment to make on this proposal.

Section 4: How the new system would work

Q17. To what extent do you agree with the split of duties between the Scottish Parliament, Scottish Ministers and the Scottish Legal Aid Board?

Consumer Scotland agrees.

We broadly support the proposed delivery mechanism set out, which should provide for clearer routes of scrutiny of the effectiveness of the reforms, the performance of the legal aid system more generally and the impact on consumers.

The requirement to engage and consult with those experiencing legal problems and service users is a welcome addition to the proposed responsibilities for SLAB. It will be important that SLAB considers the needs of consumers of legal services as well as its own ‘users’, as in many cases SLAB’s relationship has historically been largely with the solicitor acting on the consumer’s behalf and not directly with the consumer of legal services themselves.

We firmly encourage active engagement with the legal profession, advice services and all bodies who provide legal advice and assistance to design services which meet consumer need. We also emphasise the need for robust research to identify areas of the country or areas of law which remain underserved in order to consider alternative means of provision.

Q18. Which of the following planning and reporting requirements do you think should apply to the Scottish Legal Aid Board under any new scheme? (Select all that apply)

We take no position on the proposed planning and reporting requirements which should apply to SLAB under any new scheme. We reiterate our previous comments on the application of the Consumer Duty for strategic decisions and the need for a user-centred approach to reforming the delivery of legal services delivered with legal aid funding.

We also reiterate our view that any analysis of service provision must take into account broader questions over how to effectively assess unmet legal need for consumers. As previously noted, we support the Equalities, Human Rights and Civil Justice Committee’s report on Civil Legal Assistance in Scotland[xxi] noting evidence from a wide range of stakeholders on the existence of “legal aid deserts” and warning that “the extent of this problem is very alarming”.

Since the passage of the Legal Services (Scotland) Act 2010, SLAB has been granted a function to monitor the availability and accessibility of legal services in Scotland and that is able to seek the views of stakeholders including those representing service users as well as the professional bodies. Over this period, the issue of there being no definitive evidence base to demonstrate the extent of unmet need is a continuing concern, and we encourage Ministers to set out whether they will fund this work directly or direct SLAB or an independent third party to carry out this research at the earliest practical opportunity to ensure legal aid funding is effectively targeted.

Q19. Do you think there should be powers to act if the Scottish Legal Aid Board is not able to deliver the objectives of the legal aid system?

Consumr Scotland agrees.

Q20. Who should have powers to act if the objectives of the legal aid system are not being delivered? (Select all that apply)

We take no position on where powers should lie on whether to act if the objectives of the legal aid system are not being delivered, but make the following comments on the broader issue raised:

For Scottish Ministers to take action to address a failure to meet the objectives of the legal aid system many factors will need to be taken into account to determine causes, including:

• the sustainability of private provision and the impact of both fee rates and retention of practitioners
• the effectiveness and availability of grant-funded and direct provision
• the effectiveness of the proposed ‘high-trust’ model
• the effectiveness of the simplification process

Ministers can and should act on any barriers for consumers to access legal remedies, whether directly or by directing a delivery body such as SLAB to take action, and Parliament will have a role in scrutinising progress. We would therefore welcome greater clarity on where responsibility will lie to assess the operation of the legal aid system and of the broader objective of evaluating and addressing where unmet legal needs exist for consumers. It should be noted that gaps in service provision may be a result of operational delivery issues, the impact of wider strategic policy decisions, or a combination of the two. This will also need to be taken into account when considering where responsibility lies for any objectives set by Ministers not having been met.

We also note that existing grant funding awards from the Scottish Government have largely been prescriptive and targeted at single issues. The simplification and reform process will have the greatest success if grant funding enables projects to fill gaps in provision over a sustained period and that successful projects such as in-court advice are not curtailed in order to fund other schemes where this will lead to further consumer detriment. To ensure this is not the case, we would again reiterate the importance of the Consumer Duty for both SLAB and Scottish Government when making any future strategic decisions.

Q21. What types of powers should be available? (Select all that apply)

We do not take a position on the specific powers which should be available. As stated in our answer to Question 20, there may be many factors at play, not all of which will be under the direct control of SLAB. Greater clarity is required therefore on both how the effectiveness of the legal aid system as a whole, and progress towards the goal of meeting broader unmet legal needs in particular, will be assessed.

Section 5: Overall Impact

Q22. Overall, how would you characterise the likely impact of the proposed reforms? Please explain your answer, including any key benefits, risks, trade-offs or unintended consequences. Please also use this space to provide any additional comments on the proposals set out in this consultation.

Consumer Scotland thikins this is likely to have a positive overall impact.

Overall we welcome reform of the legal aid system and consider the proposals to have the potential to address some of the issues faced by consumers in accessing legal advice and assistance.

However, as referred to in our previous answers, along with the barriers currently presented by declining provision of civil legal aid providers, consumer awareness of their rights and available remedies requires attention. We note the Independent Review[xxii] recommended a targeted public legal education and information programme. Eight years on from publication there has been very limited progress in delivering on this recommendation.

The Scottish Human Rights Commission[xxiii] highlights that consumers need to know about their rights, and the processes available to claim those rights, before being able to seek access to justice. They also note that a key opportunity for enhancing access to justice is through raising awareness, education, and capacity building to empower consumers.

We recognise that simplification of the legal aid system and a greater degree of flexibility in how it is delivered has the potential to address the decline in consumers’ ability to access legal redress. Progress however will require a far greater understanding of the degree to which consumers understand how to access the legal system, where to seek advice and how to receive assistance.

Endnotes