Serious concerns voiced over legal aid in new court set-up

Serious concerns have been expressed by the Law Society of Scotland over the impact on courts and convicted persons of the legal aid rates prescribed in new Scottish Government regulations for the reformed Scottish court structure in operation from September.

The regulations have been laid before the Scottish Parliament, and will be considered by the Justice Committee, to which representations can be made.

In a report posted to the Society's website, Ian Moir, convener of the negotiating team for criminal legal aid, says the Society is "disappointed and frustrated that the Scottish Government was unwilling to make any amendments to the draft regulations" in the light of the Society's representations.

Under the court reforms, appeals from the sheriff court in criminal cases will be to the new Sheriff Appeal Court rather than the High Court, with the result that unless sanction for counsel is granted, an accused will be represented by a solicitor only, rather than solicitor and counsel. Yet all work in connection with these appeals will be paid at the same rates as a JP or sheriff court trial where the solicitor opts out of the block fee, and no block fee will be available for summary appeals against conviction or sentence in the Sheriff Appeal Court.

When the regulations were in draft, the Society made representations that the proposed fees were "wholly inadequate" and would not reflect the amount of work actually undertaken, the additional responsibility, or the preparation that would be required for a hearing involving a review of a judicial decision, "particularly considering that SLAB consistently abate preparation fees".

"There does not appear to have been any consideration given to the fact that this work is a specialist area", Mr Moir comments.

"The low level of rates could discourage solicitors from carrying out appeals against conviction or sentence, creating access to justice issues. We are concerned that people who might be wrongfully convicted or sentenced might have difficulties exercising their legitimate right of appeal.

"The High Court rate that is currently paid to junior counsel for conducting appeals could be adopted for this work. Such an approach would still make savings for the Government as there would be only one legal representative being funded."

Ministers have also failed to amend the regulations to correct an anomaly affecting solicitor advocates that means that even where sanction for a solicitor advocate has been granted, they will be unable to charge more than a solicitor's fee when appearing in the Sheriff Appeal Court.

In relation to the new procedures for judicial review hearings, the post also points out that only a motion fee is being allowed for the new hearings for permission to bring a judicial review, although these hearings are expected to be significantly more complex than the previous motions for first orders.

"The low fee levels, in particular when viewed in the context of other changes to judicial review (such as time limits) and the increasing complexity and difficulty of judicial reviews generally, are likely to lead to access to justice concerns", Mr Moir states.

"We outlined to the Government that judicial review is a crucial procedure in preserving the rule of law and protecting human rights, and it is important that legal aid remains effective in this area."

He concludes: "We sympathise with colleagues who carry out this important work and appreciate the difficulties that will be brought about by these regulations. We have serious concerns about the impact on the courts and on convicted persons, not least because of the potential gap in provision in the Sheriff Appeal Court."

The Society will submit a formal response to the Justice Committee and solicitors are invited to send additional comments. Views should be emailed to legalaid@lawscot.org.uk.