Criminal legal aid contracting

Research

We have published a second research paper on contracting, focusing on the legal and economic framework for contracting. In particular, the suggested requirement for public sector equality duties to be included in contracts is considered, along with the current legislative requirements and professional standards required of firms and solicitors. Any contracting model is likely to engage the public procurement framework and the broad requirements arising from this, the changing legislative and regulatory landscape, and the experience of procurement for legal aid contracts in England and Wales are examined. Last, some of the ways in which competitive markets operate are outlined: competitive neutrality, for instance, which requires a 'level playing field' regardless of ownership, unrealistic or irrational bids and how to prevent these.

The aim of this paper is to help inform members on the broad context of contracting as a proposal, ahead of the publication of a Scottish Government consultation paper on contracting, expected shortly. Once that paper has been published, we will be electronically surveying members to find out as accurately as possible what the views are on this key strategic issue.

A short video from The Law Society of Scotland on Vimeo

The Law Society's Legal Aid Coordinator, Matthew Thomson, talks about changes to legal aid and the upcoming proposals on contracting for criminal legal aid work.

Background

In 2011, the Scottish Government published its paper A Sustainable Future for Legal Aid. The document states that the government proposes to lay regulations which would allow the Scottish Legal Aid Board (SLAB) to move towards a contractual relationship with criminal legal aid suppliers. The objectives for contracting are outlined in the paper and these are to:

  1. Deliver substantial savings of in excess of £3 million by 2014/15;
  2. Encourage firms to create efficient business models to deliver services;
  3. Ensure that the market operates efficiently;
  4. Improve consistent and equitable access to justice, allowing for better planning of service delivery in relation to need; and
  5. Set out the requirements for specific types of work, for example, by ensuring public sector service level requirements are met (including public sector equality duties).

Timetable

In May 2013, the Scottish Government published a timetable for its proposals for the introduction of criminal legal aid contracting. The consultation process involves an informal engagement by the SLAB from June to August 2013; the SLAB providing possible options to the government in October; and a formal consultation issued by end of December; contracting proposals to be brought forward in 2014; and contracts to 'go live' in 2015.

June to September 2013

Informal engagement by SLAB, which involved SLAB discussing the background to contracting for criminal legal assistance, the current economic context and elements of some models for contracting with the profession and others.

The informal engagement also involved four dialogue events. We have prepared notes on each of these - Dumfries, Perth, Edinburgh and Glasgow, which can be downloaded from this page. These notes are not transcripts. We took care and attention to note these events accurately but if there are any comments on the texts, please send them to legalaid@lawscot.org.uk.

SLAB has published further information on the dialogue events, including an edited version of the final presentation delivered at Glasgow. The presentation has been edited to take out local data and insert links to data for each area.

October to November 2013 

Following the informal consultation process SLAB advised us that it had provided advice on options for contracting to the Scottish Government in October 2013. We expected to receive a formal consultation document before the end of the year.

December 2013 to date

In December 2013, the Scottish Government confirmed its consultation document on the possible introduction of contracting had been delayed. Since then, the Scottish Government has not issued a revised timetable for the publication of the consultation document. 

England and Wales

We are aware that the UK Government is proposing to make significant changes to the contracting regime in England and Wales. We are monitoring the developments taking place south of the border closely.

Members of the Criminal Legal Aid Negotiating Team have met with representatives from the Ministry of Justice (MOJ), the Legal Aid Agency and the Law Society of England and Wales. The team had useful discussions about how the contractual arrangements have developed south of the border. In Scotland, many of the issues are quite different to those of the English system. There are radical differences not only between the legal aid systems in Scotland and England and Wales, but also the distinctions in the respective criminal justice systems. However, we face the same challenges in that both the Westminster and Scottish Governments have made commitments to reduce legal aid expenditure.

Research

Proposals for contracting have not been discussed with government or with the SLAB. However, the experience of legal aid contracting in other jurisdictions and the legal and economic framework within which contracting would operate have been considered.

We have examined the history, development, and operation of contracting models in the legal aid systems of the United States, Canada, and England and Wales. We have published this internal research as part of the educational process in the run up to receiving proposals on the introduction of contracting for legal aid in Scotland. A copy of the research can be downloaded from this page.

Current position

Contracting would be a sea-change to the way in which legal aid is delivered in Scotland. It has been suggested that this change would result in savings of £3 million and improve the sustainability of the system for the future. Given all of the factors raised in our research, any proposals for contracting of legal aid services in Scotland will require careful consideration to take into account the lessons from other jurisdictions.

At this stage we do not have a set view on whether a move to any contracting model is necessary or desirable. No proposals have yet been received on any potential contracting models for Scotland.

In December 2013 the Scottish Government confirmed its consultation document on the possible introduction of contracting had been delayed.  The Scottish Government has not issued a revised timetable for the publication of the consultation document.

When proposals are received, we will engage in a full consultation exercise with members and we encourage you to keep in touch throughout the process. In the meantime, please feel free to contact us with any questions or comments by emailing legalaid@lawscot.org.uk.

To find out more about the Law Society's wider work on legal aid and access to justice, please contact Andrew Alexander or call 0131 226 8886.