Scotland's Legal Aid system could completely collapse within 10 years

PA

The Scottish legal aid system is nearing its breaking point. Our recent survey of smaller firms has revealed 41 per cent are either planning to stop legal aid work within two years or are unsure whether they will continue.

These responses add to our concern at the estimated one-third of criminal legal aid lawyers due to retire within the next decade, further reducing the number of solicitors helping people access justice.

The survey was conducted as the Scottish Government and Scottish Legal Aid Board have been asking us for evidence of our concerns that solicitors are leaving legal aid in droves, as part of ongoing conversations with them. Their own data shows legal aid solicitor numbers have declined sharply in recent years and our survey suggests that concerning pattern is likely to continue or even accelerate.

As part of the evidence we’ve been asked to provide, I spoke at the Civil Legal Aid inquiry on 13 May of this year, alongside representatives from the Scottish Association of Law Centres, Shelter Scotland, Citizens Advice Scotland and JustRight Scotland. The range of voices present showed that concern over legal aid services is widespread.

Each of us told the committee that the biggest barrier to people finding legal aid is finding a solicitor. That’s extremely worrying, as many people will either drop the case or try to represent themselves and because most people who need legal aid are vulnerable. They are victims of domestic abuse, or facing eviction, and often have issues with incapacity. If they drop the case, they won’t get the justice they are due, and if they represent themselves, they’re also much less likely to get a just outcome. Research shows that accused people who represent themselves are more likely to be convicted and face harsher penalties.

The situation has become so dire that some people have been driven to crowdsource funding; earlier this year there was a high-profile news story about a woman in the Highlands who was a victim of domestic abuse seeking a divorce. She contacted more than 116 law firms in an attempt to find a legal aid solicitor to represent her case but eventually had to turn to donations to pay for a private lawyer.

Another topic of conversation at the inquiry was the urgent need for additional funding and the administrative burdens solicitors face. We’ve repeatedly heard from solicitors that the current process for seeking payment from the Legal Aid Board is cumbersome and unclear. The Legal Aid Act is quite old - it was passed in 1986 and amendments have been bolted onto it over the years. As a result, it’s become somewhat incomprehensible; we provided the inquiry with a glossary that amounted to nearly two pages of terms specific to legal aid.

It’s a lot for solicitors to wade through, especially if they’re not getting paid appropriately for it: even when a case is approved, payment requests may get bounced back and delayed or rejected on technical grounds. This makes the work financially precarious and professionally frustrating.

These challenges are heightened by payment disparities between legal aid and private practice. Seniority and experience impact pay in private firms, but an experienced legal aid solicitor is paid the same as a newly qualified one. And while private practitioners are compensated for mentoring trainees, legal aid solicitors must do so voluntarily.

It’s no wonder that trainee numbers are low and so many people plan to leave the sector. As with any other profession, legal aid lawyers deserve fair pay for the work they do.

Solicitors have told us that legal aid work negatively impacts their wellbeing due to high stress and effort in exchange for low pay. It’s no huge surprise then that our survey found many of those who offer legal aid do so out of moral obligation. A running theme was the idea that, “If I don’t do this, who will?”

This sense of social responsibility is noble, but putting this type of pressure on solicitors is both unreasonable and unsustainable.

An analysis of our member records alongside data from the Scottish Legal Aid Board shows that 90 per cent of legal aid work is handled by firms with fewer than 10 solicitors. Nearly half of criminal legal aid cases are managed by firms with only one or two solicitors.

These small firms are particularly vulnerable to the financial strain imparted by taking on legal aid cases, but also to closures due to staff illness and retirement. While this is a significant issue on a national scale, it’s even more worrying in legal aid deserts, where there may be only one or two legal aid firms. Any closure, even if temporary, could leave entire communities without any local legal aid representation.

As it stands, there is a very real possibility the system will completely collapse within 10 years. We know the government has said they fully appreciate the Legal Aid Act needs to be reformed, which is a good start. But they’ve also said they don’t intend to do that this term, or any time before the election next year. For the time being, they’re only willing to make small changes and amendments to the Act - but that isn’t enough.

This is a moment of decision, a time for action. If we want a fair and equal society, access to justice cannot be left to the goodwill of overstretched solicitors.

Legal Aid Matters. It matters to people in crisis, to families in dispute. It matters to everyone who believes in justice. Now is the time to ensure it is protected.

Pat Thom, President of the Law Society of Scotland