Stop doing legal aid work: it’s the only way to force an increase to derisory rates - Andrew Stevenson

To the public, lawyers’ grievances about legal aid rates can seem as tedious as a twice-told tale. Yet our citizens are probably unaware of how lamentable are the fees paid under the Scottish Legal Aid Board’s schemes of legal aid and especially advice and assistance.

Andrew Stevenson is Secretary, Scottish Law Agents Society

This latter regime covers solicitors assisting the impecunious with problems that fall outwith the courtroom. The rates of remuneration for providing this service are dismal; £7.50 for a letter (under £3 if it is formal) including the price of a stamp. Time is paid at a basic hourly rate of £52, probably a quarter of what would be charged at private rates.

Contrary to a common misconception, these funds do not go straight into the solicitor’s own pocket. Office overheads remain substantially the same whether the business be privately funded or dependent on Board funding. Legal aid practices are not charities. There are no tax breaks. Staff expect to be paid the going rate. Rent and utilities need to be met. Although the Board has largely ignored inflation, ScottishPower certainly has not.

For this pittance, the legal aid lawyer takes on all the risks and hazards now attendant on acting for any client, such as the danger of a malicious complaint to the SLCC with all the administrative time and inconvenience that that entails. However, in addition, such a lawyer requires to comply with extra regulatory rules, imposed by the Board, and to undergo “quality assurance” review and, for criminal practitioners, time recording.

It is puzzling that anyone in their right mind would work under this regime. Perhaps some can set up a viable business model using IT, paralegals, trainees and newly qualified solicitors. However, one sees many colleagues struggling valiantly on, trying to make a living from legal aid and suffering stress caused by long hours and inadequate income.

Often, lawyers have argued these derisory rates are unfair because they have barely moved in decades, diminished by inflation; since the table of fees was considered reasonable 25 years ago it stands to reason that unless two-and-a-half decades of increases are applied to neutralise that inflationary effect, they cannot be reasonable now.

Logically, of course, the Board could argue the rates were too high before. But there is a more fundamental point. The Board has two objectives, both perfectly legitimate; to make legal assistance available for the poor, but to do this for as little money as possible. After all, the Board is entrusted with the Legal Aid Fund, comprising taxpayers’ money, so why pay a lawyer £700 to conduct a summary trial when he or she will do it for £500? One cannot criticise SLAB for not paying more than it needs to. It is simply applying the principles of supply and demand. If there are enough solicitors willing to provide their skill, experience and labour for buttons, then the Board’s remit is met. Similarly, if teachers or police officers were agreeable to working for say, 20 per cent less pay, that is what they would get.

Lawyers can be their own worst enemy; by doing work for washers, they have set their own market rate at that very same currency. Also, solicitors sometimes appear to cry wolf. They warn that unless legal aid rates are increased they will stop doing the work; but too many don’t.

The legal profession often helps the vulnerable and troubled, thereby assisting in the administration of justice, often in stressful and thankless circumstances. However, pointing to these worthy endeavours and appealing to the government’s conscience that lawyers deserve more cash is an exercise in futility. It has been tried already, with negligible success.

Strikes and boycotts are not enough; legal aid lawyers have the worst of both worlds in that although they receive public funding they are not public sector workers with trade union backing. Also, unlike, for example, the fire service, they are competitors, with a fear of losing business to the rival across the street.

The solution must be that more lawyers have to be more ambitious and imaginative and to switch from legal aid into private work. Only a lack of solicitors willing to do legal aid will compel the government to fund it properly.

Andrew Stevenson is Secretary, Scottish Law Agents Society