"Race to the bottom" warning by Faculty over legal aid

Scotland risks a “race to the bottom” in the quality of legal representation for people accused of serious crimes, and in civil cases where basic rights are at stake, without urgent action to improve the legal aid system, the Faculty of Advocates claimed today.

Publishing its written evidence to the Independent Review of Legal Aid, commissioned by the Scottish Government and chaired by Martyn Evans, Faculty said that criminal legal aid might not be a “vote winner”, but it was fundamental in a democratic society and allowed the poorest and most vulnerable to be represented by highly skilled advocates.

With civil claims, it maintained, "Without our assistance, vulnerable members of society would be facing serious personal and social issues without the benefit of skilled advice and representation.”

In criminal cases, Faculty claims, that representation is under threat. In real terms, payment for legal aid work had fallen significantly in the last decade.

"The new fee structure, established in 2006, was intended to undergo triennial review, but this has not occurred to date, in the face of continuing budgetary constraints”, Faculty states in its paper.

“Unless this matter is addressed with urgency, the consequence over time will be a diminution in the quality of representation generally and, potentially, the eventual disappearance of advocates as pleaders in the most serious cases. No one can take any pride in presiding over a ‘race to the bottom’… the standard of representation is high but will only remain so if the commitment to support that representation is maintained and financial arrangements are improved."

According to the submission, junior counsel are now disinclined to seek appointment as Queen's Counsel because of the limiting of cases in which senior counsel is sanctioned. Further, "No proper and consistent remuneration has been allocated" for important preparatory work that is increasingly required, such as watching and listening to joint investigative interviews of child witnesses in controlled environments which will represent the entire evidence-in-chief of the witness.

“There is a strong ethos among advocates of ‘serving the public’ in the practice of criminal defence at the highest level. It is a service which should not be taken for granted.”

Generally, Faculty says it shares the Scottish Government’s objective in relation to legal aid of ensuring that rights were made effective for all members of Scottish society. But it argues that the system is inefficient, and while it appreciates the comtinued availability of legal aid on demand, the process of explaining why a case is complex or serious enough to justify the involvement of an advocate could be streamlined.

"It is also a source of frustration that the fee structure for legal aid does not always match the court process, leaving us justifying remuneration for work required by the court", the paper continues. "There is a disconnect between modern litigation, which is loaded towards advance preparation and settlement, and the legal aid remuneration structure which is geared towards appearance in court. A structure that placed greater weight on preparation and resolution would suit both litigants and advocates, and would reward efficiency."

It further observes: "The principles upon which the Scottish Legal Aid Board administers public funds to remunerate the legal representatives of litigants and persons accused of crimes are unquestionably sound. The way in which that function is carried out is often cumbersome and subject to delay."

Highlighting family law, it claims that there are problems with delays in granting legal aid, and in granting sanction for counsel and for experts. However, cases under the Hague Convention on child abduction are generally heard within six weeks, which shows that matters could be speeded up.

“We consider it is important that legal aid continues to be available for the instruction of counsel in all cases where the state seeks to ‘interfere’ in the family lives of socially vulnerable people, in order to ensure protection of one of the most basic human rights, the right to respect for family life", the paper continues.

More flexible arrangements are needed to keep payments in line with the "front loading" of court procedure – requiring early preparation in order to narrow the areas of dispute and possibly achieve a settlement – especially in child law and judicial review. Rewards are much greater in cases that go to proof. Similar considerations apply to work carried out under case management orders. 

But Faculty believes the system is capable of reform: “We would hope that the availability of legal aid in a wide range of cases will continue, and consider that if the system of legal aid is flexible enough to respond to changes in the way the law is practised (by, for example, the front loading of family cases) to ensure that counsel (and solicitors) are adequately remunerated for the work they do, then there remains much to commend the current system of legal aid.”

Click here to view the full submission.