More help delivered and payments increase - but justice-wide collaboration needed to reform system

Today, Wednesday 6 November, the Scottish Legal Aid Board (SLAB) have published their annual report for 2023-24, illustrating that more help is being provided to those with civil and criminal problems.

Combined with the impact of several fee increases over recent years and a surge in cases being finished, this has led to a rapid rise in fees paid.

As a result the total cost of legal aid increased 12% on the previous year to £151 million, 16% higher than the pre-pandemic year of 2019-20.

The funding allowed 176,000 grants of legal assistance to be made – up by 9,200 on the previous year. These covered civil, criminal and children’s hearings matters, ranging from one-off advice to representation by solicitors and counsel in long running and complex High Court trials.

Driving the increase in costs was a 17% increase in criminal expenditure to £90 million. In this area, grants of ABWOR (assistance by way of representation) increased by 19% to 25,300. Grants of summary criminal legal aid increased by 9% to 39,000. Grants of solemn criminal legal aid remained level at 12,100, which is 9% higher than the pre-pandemic year 2019-20.

The number of solicitors actively involved in criminal legal assistance has remained relatively stable at around 780 for the last four years, with activity heavily concentrated among the busier solicitors.

Grants of full civil legal aid increased by 5% to 13,800, while grants of civil (A&A) rose by 6% to 46,200. The number of children’s A&A grants decreased by 4% to 2,400 and grants of children’s ABWOR, decreased by 5% to 3,900. Grants of children’s legal aid cases decreased by 2% to 1,470.

The number of solicitors actively involved in civil and children’s legal assistance remains around 1,030 and 360 respectively.

Ian Moir, co-convener of the Society’s Legal Aid Committee, said: “The figures in this annual report show the long-term deterioration in Scotland’s legal aid system is continuing. Read in context, the only conclusion that can be drawn is that this crisis is getting worse, not better.

“Scotland’s courts are busier than they’ve ever been. On that basis, the long-term fall in the number of cases being funded through legal aid points to a shortage of solicitors to do this work, not a fall in the number of people who need help.

“Significant investment is urgently required, and every day of delay makes it harder to reverse this decline. The Law Society of Scotland remains ready to work with the Scottish government to identify and make the changes required.

“We need short-term and long-term action, to meet demand now and in the future. More needs to be done to attract young solicitors to work in this vital sector, and far more needs to be done to ensure that legal aid is a viable long-term career.”

Colin Lancaster, Chief Executive of the Scottish Legal Aid Board (SLAB), said the growth in legal aid spend showed no sign of slowing, with payments for the first half of the current year up by 9% compared to the same period last year.

He added: “We are reporting total expenditure of £151 million for 2023-24. As we move into 2024-25, based on current and anticipated volumes and case costs, we are estimating that expenditure for 2024-25 could be around £171 million which would be the highest ever recorded.

 “This represents a significant investment in legal aid and a substantial financial boost for the committed firms up and down the country who deliver this vital service.”

Mr Lancaster commented further that while the increased funding was to be welcomed it did not address the challenges for the existing legal aid system of adapting to a world not envisioned when it was created 40 years ago.

New legislation is needed for significant structural change, and the Scottish Government has confirmed this will not now be until at least 2026. This means there would be no immediate transformation in the system’s ability to harness new ways of designing, securing and delivering services to respond to evolving demands and user needs.

Mr Lancaster said that despite the delay in bringing forward legislation, cross-justice collaboration would continue to deliver efficiencies and simplification of the legal aid system and maximise its contribution to better individual outcomes and system performance.       

An example of this type of positive joint work between justice partners – SLAB, the legal profession, courts, judiciary, Crown and police - was the recently completed Summary Criminal Case Management pilots 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, and a substantial decrease in case backlogs.

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.

Alongside the profession, SLAB has also contributed to the Future of the Legal Profession Working Group, convened jointly by the Scottish Government, Law Society of Scotland and Faculty of Advocates.

Mr Lancaster said the evidence presented strongly suggested that the challenges described by legal aid solicitors are not only complex and multi-faceted but are also faced to a significant extent well beyond the legal aid sector, and indeed beyond the legal profession.

While much of the action needed to address those wider challenges would also lie outside the legal aid system, he said: “We fully support the need for regular reviews of legal aid payment mechanisms and levels and for progress with the research needed to underpin it.”

Chair of the SLAB Board Bill Moyes said: “Since joining SLAB as Chair in April I have been struck by the organisation’s clear focus on delivering excellent public service while identifying and implementing ways in which the operation of legal aid can be improved.

“The Board fully supports the clear plans the team at SLAB have for continuous review of policies and business processes to make the current system as efficient and accessible as possible.

“But we are equally clear that more significant reform is needed to deliver legal aid’s full transformative potential, and I look forward to working with the Scottish Government, the legal profession and other stakeholders to secure the legal aid system Scotland needs.”

The annual report and additional documents, including key statistics, are available on the SLAB website.