Justice denied? Rural clients and high-street firms squeezed by failing legal aid

With fees stagnating, funding decreasing and law firms reluctant to take on cases, legal aid is reaching tipping point, as Gordon Cairns explains.

Since the passing of the Legal Aid (Scotland) Act almost four decades ago, our country’s most in need have relied on small high-street firms to provide access to justice when they have required it most. Yet as an almost perfect storm of external forces combine against a system already on its knees, many fear even fewer will have the legal representation they have the right to receive unless there is a complete overhaul of legal aid.

Traditionally, the Scottish Legal Aid Board (SLAB) has relied on smaller practices to carry out the vast bulk of the work, covering nine out of 10 legal aid cases. The vast majority of these small firms are in the city, leaving those seeking legal representation in rural areas who would qualify for these payments struggling to get access to justice. Furthermore, worrying research commissioned by the Law Society of Scotland and published this summer has found that a significant proportion of these firms have decided that continuing to offer legal aid is simply unsustainable, with 20% of the survey’s respondents admitting they will not continue to take on these cases and a further 20% unsure if they will. This comes against the backdrop of already falling numbers. There are currently just over 900 solicitors registered for legal aid, 16% less than in 2020. However, even the current figure could be an inflation of what is happening in reality, as the Scottish Solicitors Bar Association believes just 484 lawyers will actually be carrying out criminal work at a ‘meaningful level’. 

Demographic shift

Patricia Thom, President of the Law Society of Scotland, finds the current situation ‘disturbing’ to say the least. She believes part of the problem is the changing demographic in the profession. There are currently twice the number of solicitors registered for legal aid aged over 40 than under. She explains: “When I was doing legal aid cases, it required working six days a week. Now, especially after Covid-19, work-life balance is becoming increasingly important to younger solicitors; that feeds into the recruitment issue for small firms trying to find young lawyers prepared to do this work.”   

She believes the Government has exploited the moral obligation felt by older solicitors by not increasing the fees adequately. She says: “The Scottish Legal Aid Board has capitalised on the fact that people were prepared to work on the weekends and beyond nine-to-five, and quite enjoy what they do.

“But there comes a point where you need to pay your mortgage, your staff and have a business that’s functional. I suppose the people coming into the profession imagine that they’re going to be court lawyers, helping the man on the street. But when they realise that what it’s going to cost them and what it’s going to involve, they start moving into other areas of law.”

Unsurprisingly, a key factor in lawyers turning their back on legal aid cases is financial, or lack of financial incentive. Fees have stagnated: the 10% rise in 2023 being swallowed by a cumulative inflation of nearly 16% across that time. In complex cases, legal aid lawyers can find themselves earning less than the minimum wage due to the workload involved. Matthew McGovern, a partner at McGovern Reid Court Lawyers, points out that the flat rate of £572 is paid regardless of whether the case is a straightforward ‘breach of the peace for shouting at two cops’ or a case requiring a lot of preparation, trawling through years of mobile phone records and text messages. While still offering legal aid, his high-street firm has to turn away three or four potential clients every week if the case involves sexual offences, offences that involve child witnesses or prosecutions under section 1 of the Domestic Abuse (Scotland) Act. He adds: “We will simply not do these cases for legal aid. We will clearly say to potential clients: ‘We don’t think the legal aid scheme can safeguard your right to a fair trial due to the complexity of this type of prosecution.’

“If we can’t offer a fair trial, we are not going to be complicit in an unfair trial.”

Funding farce

This fall in numbers is creating a backlog in the court system as defendants search for representation – one woman seeking a divorce from a violent husband approached 116 lawyers without success, impacting every party involved in the case. Matthew says: “Because of the underfunding of the legal aid scheme, the Government is delaying and therefore denying access to justice for victims of crime.

“Its approach is paradoxical. On the one hand it is saying it is supporting victims and want to make justice less traumatising, on the other hand it denies the funding to achieve those aims. It is not only failing our democracy, but failing the victims of crime as well.”

And while the fees have barely increased in the 32-year-old’s lifetime, overall funding has increased with the Crown now receiving the lion’s share. In 2013-14 the Crown received £110m, legal aid £92m. Last year, the difference was £201m to £85m. He comments: “Ten years on, legal aid is lower in cash terms now than it was then, while the Crown’s budget has not far off doubled. This shows you what the Government values and what it doesn’t.”

His view is backed by Andrew Sirel, legal director and partner at JustRight Scotland. He explains the income level that makes someone eligible for legal aid hasn’t risen in 14 years, while the majority of calls Citizen’s Advice receive concerning the law are callers looking for a legal aid lawyer rather than for legal advice. “All of this frankly plays into the hands of the state in terms of decisions that it makes, whether it’s pursuing debt arrears, evictions or acts of potential disability discrimination. If the individuals are not able to fight their corner, those acts of state will be unaccountable,” he says.

While improving the fee given to solicitors seems an obvious solution, the three lawyers all identified other ways of making legal aid a more attractive proposition, including streamlining the administrative element. JustRight Scotland has to employ staff who simply log the level of detail required by SLAB, including the start and finish time of every single phone call made with a client. Patricia says: “The process is so cumbersome and takes up so much time. It’s such a disheartening experience you just feel ‘I can’t do this anymore’.”

And yet, despite the myriad issues, carrying out legal aid work can be a satisfying way to practice law. Patricia, who worked as a civil lawyer before becoming head of the Law Society, says: “Working in a small firm in a rural area doing legal aid work is actually quite gratifying. Despite those extra problems of not being paid enough and working in a cumbersome system, I think there are a lot of pluses to it”