Legal aid: a gap still to bridge

What next for legal aid? For a week or so after Lyndsey Barber’s video, Scottish ministers were either silent on the subject in the face of growing pressure to engage with the profession, or deflected questions regarding a crisis by referring to progress in tackling the court backlog.

Then on Friday 1 July Communities Minister Ash Regan released a letter to Society President Murray Etherington setting out a revised package, said in effect to be a final offer, but leaving it open how the £11 million total cost should be actually shared out. In view of the continuing questions, it is worth attempting a summary of where it leaves us.

The letter first records that in May the Society set out proposals agreed jointly with the Scottish Solicitors’ Bar Association, consisting of (a) an across the board 15% fee increase for criminal and civil legal aid, subject to (b) the summary criminal fee rising from £550 to £750 (36%), and (c) a s 76 fee of £1,135.58 (sheriff court) or £1,149.48 (High Court) – £43.16 is paid at present; and (d) commitment to a regular review, on a basis to be agreed. Ministers have costed this at £27 million per annum, a 22% rise in spending.

Capped proposals

After stressing the current pressures on public finances recently set out by the Finance Secretary, the letter states that ministers “cannot agree to increases in fees at the scale proposed by the profession”. However, they offer the following:

• increases to the s 76 fee as they have previously proposed, not detailed but costing £1.98 million;
• an 8.8% increase to summary criminal fees, that calculation including (it appears) reversal of the proposal that the fee should cover additional deferred sentence hearings, and reinstatement of the mileage costs provision;
• a possible further general uplift, but subject to the capped total cost; and
• an evidence based mechanism for ongoing review, to be developed in line with recommendations of the Payment Panel.

In addition (and outside the cap) the traineeship scheme would be extended for a further two years.

The potentially tricky point for the Society/the profession is that variations could be agreed to put more money on to the summary criminal fee – or to a general uplift – but always within a total cost of £11 million, so that any additional money for one type of work comes at the expense of others.

“This is a substantial and credible offer,” the minister declares. “I must emphasise that there is no scope for further immediate increases beyond this offer.”

It is also conditional on the two representative bodies seeking a cessation of disruptive action by members, such as the boycott of domestic abuse cases;

on active support for evidence gathering to support research into the appropriate level of fees; and on cooperation in continuing modernisation of the courts and the wider COVID recovery programme.

Reactions

Neither the Society nor the SSBA reacted positively, however. Highlighting that a generation of underfunding had left the legal aid system in crisis, Murray Etherington said: “This latest announcement from the Scottish Government may recognise a serious problem to be solved. However, it falls far short of the investment we have argued for and which we believe is necessary to retain solicitors in the legal aid system to ensure access to justice for all.”

SSBA President Julia McPartlin told the Journal: “The latest offer from the Scottish Government is not enough to redress the imbalance [in pay and conditions with publicly funded bodies], so we will continue to lose solicitors and struggle to attract new talent.

“We have asked the Scottish Government to provide a full breakdown of their figures and the proposed new table of fees so that we can consider the latest offer properly. Unfortunately, there remains a great deal of mistrust of the Scottish Government and we need to scrutinise the proposal carefully.

“It is also crucial to the future of the profession that an appropriate fee review mechanism is put in place. The Scottish Government has yet to make a detailed proposal for review.

“The SSBA will canvass our members’ views when we have this information. The boycott of Domestic Abuse (Scotland) Act 2018, s 1 cases will continue meantime.”

The Society is considering the proposals in detail, taking soundings from members and will issue a further response in due course.