For over 500 years prior to the establishment of this formal legal aid system, people had been helped across Scotland through the Poor Roll, a roster of volunteer advocates and solicitors for cases in the sheriff and higher courts. One ambition of the post-war legal aid scheme was to extend the reach of free support, covering people of modest incomes. This was not uncontentious in that post-war period, with one commentator stating: “It is perfectly clear from this Bill that what Scotland has now to decide upon is whether we are going to have Karl Marx or Jesus Christ.”
There was neither revolution nor rapture, but careful stewardship of a scheme which, today, provides help in around 250,000 cases a year. The system has retained a broad scope, even through the financial challenges of the economic downturn, offering assistance across almost every area of Scots law, helping people deal with family separation, child custody, housing, employment, immigration and more, offering assistance at often the most difficult time in people’s lives.
Civil legal aid became available in 1950, though with some areas exempt from scope, such as defamation (it was suggested in the House of Commons, “Scots people were so confident of the good repute in which they stood that they could afford to ignore those who maliciously attacked them”) and actions for breach of promise of marriage. Criminal legal aid was included within the scheme in 1964. Further legislation in 1986 established a Scottish Legal Aid Board to administer the scheme in place of the Law Society. That revised scheme predated the recognition of human rights in domestic law, establishment of the Scottish Parliament and the devolution settlement that hardwires human rights into all public bodies. Yet the scheme has remained since, patched up by regulations dozens of times since 1986, growing incrementally more complex and bureaucratic.
We have long argued for a simpler, more straightforward system. There are a range of different types of legal aid, with different rules, different financial eligibility thresholds and different financial contributions from clients. The tables of fees for legal aid cases run to almost 60 pages. It is challenging for experienced practitioners, never mind legally aided clients. We argued for an independent review to address these issues, which was established, reporting in 2018.
It offered a large number of recommendations, many focused around how to ensure people receiving legal aid were more involved in the design and operation of the system, making it simpler and more transparent and involving technology more in the way legal aid is provided. That vision of how the legal aid system could be transformed is currently being consulted on by the Scottish Government and asking some significant, strategic questions. Should legal aid move towards online services rather than face-to-face ways of working? Should families of the bereaved be able to receive legal aid for fatal accident inquiries? The more people who respond – practitioners, people who have received legal aid or others with an interest – will be invaluable in informing future change.
One area not considered by the consultation is around how the legal aid system is funded. While a three percent increase was made to fees earlier this year, there is no periodic review mechanism and prior to this rise, most fees had remained unchanged for a decade and some for a generation.
This lack of certainty around sustainability of funding has hit firms across Scotland. Many no longer provide legal aid and some have closed as a result. The number of firms offering criminal legal aid, for instance, has declined by almost a quarter in the last five years. A payment framework review panel is looking at these issues and we hope that its work can arrest this decline.
Seventy years of legal aid is an anniversary to celebrate, as one of the pillars of the post-war welfare state. It is also an opportunity for us all to help shape legal aid for the future, making sure people who need help can continue to receive it.
Ian Moir and Mark Thorley are co-conveners of the Law Society of Scotland Legal Aid Committee