Criminal legal aid and the Sheriff Appeal Court

In the week that Scotland’s new Sheriff Appeal Court held its first sitting, Matthew Thomson, solicitor and legal aid policy officer at the Society looks at fee arrangements for legal aid work at the new court and elsewhere and the impact on solicitors, their clients and wider society.

Is there any one thing we can all agree on when it comes to the principles of legal aid?  Any value judgement we can all get behind? 

Sure, most people believe in justice and fairness. But on top of that, the one thing that would be widely accepted is the idea that providing financial support to those who need it so they can access legal help is essentially a good idea and something that is well worth fighting for.

This premise was brought into full focus again during the recent debate on criminal legal aid arrangements for the Sheriff Appeal Court.  An original set of proposed regulations was rejected by the Scottish Parliament Justice Committee and replaced with a new set. Ultimately, the Committee took the view that “there was a real risk that the (original) Regulations might deprive people on low incomes of access to justice in the new Court.” 

The fee rates

Some of the concerns were around the proposal to adopt a particular set of fee rates for this work.  The rates are now widely referred to as “the 1992 rates.”  They are contained in Part 1 of Schedule 1 to the Criminal Legal Aid (Scotland) Fees Regulations and were last revised in 1992.  I was 11 years old at the time.  Ravenscraig steelworks was closing.  Alan Shearer had become Britain's most expensive footballer.  Right Said Fred was getting Deeply Dippy.  And these fee rates were being revised.

Since then, the fees have been fixed at the same level.  This means that, on an inflation adjusted basis, the fees have been reduced by around 47.8% in real terms.  If left unchanged, they will soon have been frozen for an astonishing quarter of a century.  That is, frankly, unjustifiable.

Other areas of the legal aid fee structure have also been cut significantly.  Take travel fees, for instance.  These were halved in 2011.  Then there’s the core summary fees - cut significantly in 2011 and left to reduce in real terms since.  These reductions mean that, as criminal procedure and investigation becomes more and more complex, defence agents have to carry out more and more work for less and less remuneration. 

It’s no surprise that solicitors are dismayed and demoralised by the cuts.  But the effects go much deeper.  Legal aid is a safety net for the poorest in society.  It ensures that people who are in trouble – real, serious trouble – can get help.  That is the point.  Why should the rich and powerful have the monopoly on justice?  A cut to legal aid funding, whether in real terms or cash terms, is a cut in the financial support available for some of the most vulnerable members of our society.  As Gandhi put it: “A nation's greatness is measured by how it treats its weakest members." 

The next stage

This brings us back to the Sheriff Appeal Court, which held its first sitting earlier this week.  We should be grateful to the Justice Committee for reaching such a sensible view.  In my opinion, this is evidence of the parliamentary committee system working as intended.  The Government has now introduced transitional arrangements to allow solicitors to instruct an advocate or solicitor advocate without seeking prior approval from the Scottish Legal Aid Board. 

It is not the end of the story. Solicitors are still restricted to the 1992 fee levels for summary appeals in the Sheriff Appeal Court. This makes it problematic (to put it mildly) for them to act on behalf of legal aid clients unless they instruct advocates or solicitor advocates.

The interim arrangements are in place while agreement is reached on an alternative structure for the new court.  Whatever the outcome, it should not be to limit funding to the 1992 rates.  This would restrict representatives to, for example, £27.40 for a half-hour in court, arguing that a client has been found unfairly convicted in a summary case and should not have been sent to prison.  You can pay more for a haircut.  The public is in need of more protection than that.

The legal aid budget

The legal aid fund is demand-led and the Government consistently sets its budget below forecast expenditure.  The Government has increased the budget for the fund, but has ensured that it remains at below-expenditure level.  This allows the Government to argue that it is increasing the budget whilst, in reality, making funding reductions, year on year. 

The truth is that legal aid is a tiny part of the overall justice budget.  Additional investment in the legal aid fund would cost the Government next to nothing in the context of overall public expenditure.  Why does it choose not to invest?  Given the social and financial benefits of such a move (legal aid is a preventative spend that saves money elsewhere in the system), we should all be asking that question.  Many years ago, administrations recognised the importance of investment in legal aid, particularly in the context of social justice and equality.

 It is unlikely to be the main point of contention in the Scottish elections next year – the focus will likely be on funding for schools, the health service and other matters. The financial support for the poor and vulnerable in accessing legal help is important, though, and we will make that argument forcefully. Let us hope that whoever governs Scotland for the next five years will see the value of investing in legal aid.