How healthy is our legal aid system?

IN Scotland, if you’re sick, you have access to free and professional medical help. If you are of school age you get a free school education. If you can’t work for some reason or have caring responsibilities, you could be entitled to financial assistance from the state.

Whether facing unlawful eviction, resolving custody of our children, or defending a criminal charge, we should all be able to access expert legal advice, regardless of our financial position or status in society. Arguably, the fourth pillar of the welfare state is legal aid.

Legal aid as we know it was introduced in Scotland in 1950 for civil cases, with criminal proceedings being included in 1964. This paved the way for access to justice for the most vulnerable in society. The Law Society of Scotland still strongly believes that every person in Scotland should be able to access the legal advice they need and have equal protection under the law, regardless of their financial situation or social status.

Quite simply, access to justice through legal aid is a crucial element of our justice system. It is vital for not only the rule of law but also social justice.

Desertification?

However, a report commissioned by the Society into the financial health of law firms in Scotland carrying out legal aid raises serious concerns. The report suggests that there is a risk of legal aid “deserts”. That is, areas, particularly among rural communities, where local people will simply not be able to find a solicitor offering legal aid, potentially resulting in access to justice issues for the most vulnerable people in those communities.

Why? Because offering legal aid is increasingly becoming an unviable business option for many small firms.

But how can this be? After all, the legal aid spend in Scotland this year is still projected to be almost £140 million.

As the professional body for solicitors, the Society is concerned about fair pay for solicitors who are dedicated to providing this crucial professional service to those who are often in the weakest position in society.

Sold short

The hourly rates of pay are so low for some solicitors because, according to the figures, they are not even paid for all of the work they carry out on a legal aid case. The results show that civil legal aid solicitors are only paid for about two-thirds of the work they carry out, and criminal legal aid solicitors are paid for no more than three-quarters of their work.

The report suggests that many law firms carry out private client work to supplement their legal aid income. Yet many of the smaller firms find they just don’t have time to carry out enough private client work because of “undue bureaucracy and extreme micro-management performed by the Scottish Legal Aid Board” (SLAB), resulting in large amounts of administration for the solicitor – admin work that they simply don’t get paid for.

One respondent to the research wrote: “Legal aid rates for both civil and criminal work are so poor as to make it in many cases hardly worthwhile carrying out this type of work. My own firm has felt for some considerable time that other fields of work are subsidising the legal aid work carried out by the firm. As solicitors, we pride ourselves on providing the same standards of service to clients regardless of whether they are legally aided or private clients; however, that is simply not sustainable in the long term and it is frankly quite demoralising to be so poorly remunerated for legal aid work which invariably involves assisting clients who are particularly vulnerable and needy in terms of time and communication.”

These comments echo the views of many other members who contributed to the research, and those heard anecdotally in meetings with solicitors across Scotland.

Independent review

So what can be done? The Scottish Government has now announced the details of an independent review of the system in Scotland. The review is to be chaired by Martyn Evans, CEO of Carnegie Trust. We will actively engage with the review group and feed in our research findings as well as our members’ concerns about the future of legal aid.

Crucially, the review group will also include solicitors with strong experience of working at the front line of legal aid. Lindsey McPhie, solicitor advocate and immediate past president of the Glasgow Bar Association, and Jackie McRae, a registered social worker, solicitor accredited by the Society as a specialist in family law and a former member of the Society’s Council, will play a crucial role as members of the review group.

The Society will be using that review process to once again call on the Scottish Government and MSPs to #DefendLegalAid. It will be pressing for fair rates of pay for solicitors who carry out legal aid work in order to prevent legal aid deserts growing in Scotland.

The President of the Law Society of Scotland, Eilidh Wiseman, summed things up. She said: “Every person in Scotland should be able to access the legal advice they need and have equal protection under the law, regardless of financial situation or status in society. Access to justice through legal aid is crucial as it underpins not only the rule of law but also social justice. Our current legal aid system, all too often, is not delivering for those who depend on it.”

The diagnosis of this latest independent research is that the legal aid system in Scotland urgently needs reform to be fit for the 21st century.

What do you think? Whether you are a legal aid practitioner, in-house lawyer, private client solicitor or even if you aren’t a solicitor, show your support and give us your views using #DefendLegalAid on social media, or email legalaid@lawscot.org.uk

You can read the full report, The financial health of legal aid firms in Scotland, at www.lawscot.org.uk/legalaidreport