First published by The Herald on 13 November 2018
NO MATTER which way you look at it, the Scottish legal aid system is in crisis.
For the best part of the past 12 months lawyers across the country have been gradually cutting back on the publicly funded services they are willing to offer, kicking off with a mass walkout from the Scottish Legal Aid Board’s (SLAB) police station duty scheme at the beginning of the year. More recently members of the Edinburgh Bar Association have withdrawn from SLAB’s Justice of the Peace rota and, just last week, took the decision to no longer accept court appointments in cases, such as those involving domestic abuse or sexual assault, where the accused is barred from questioning the witness.
The reason? The level of fees that the Scottish Government is willing to pay to solicitors engaged in criminal defence work.
Their protests are justified. Though there have been some revisions to fee levels over the years, the amount the Legal Aid Fund pays for court-appointed work, for example, has remained unchanged at £42.20 an hour since 1992. While that may seem high by most workers’ standards, the sum, which would sit at £84.82 if it had risen in line with inflation in the intervening years, is far from a net-pay figure and is soon eroded when the cost of getting to court, paying for expert opinions and generally running a business are factored in.
Against this backdrop it is no surprise that law schools across the country are advising students against considering a career in criminal defence, with the ability to either make a decent living or have a work-life balance chipping away at even the most socially conscious student’s desire to make a difference. Those who ignore the advice and attempt to forge a career in the sector are finding their progress is stymied at the first hurdle, with the stagnation in fees making it harder for the current crop of practitioners to justify the expense of taking on trainees or juniors. In rural areas in particular they simply don’t, meaning that individual lawyers are having to juggle their firm’s workload themselves, in some instances answering duty calls throughout the night before going on to represent clients during the day. As the exodus from the police duty scheme highlighted, that practice is both undesirable and unsustainable.
Nor does it look like the situation is likely to change any time soon. While the legal aid budget was as high as £161.4 million in 2010/11 – £104m of which was spent on criminal defence work – it has been falling ever since and for the past three years has been set at £126.1m. That is just slightly above the 1993/94 figure of £124.4m, which would be £246m in today’s money. Though the Scottish Government recognises that all is not well in the system, it seems unlikely that it will make more money available, with a review carried out by Carnegie UK Trust chief executive Martyn Evans reporting earlier this year that it could “not find the evidence to justify” an increase to fee rates.
The problem is that for those operating in the sector there is no justification not to increase legal aid fees, with many giving up publicly funded work altogether rather than continue propping up a system that to all intents and purposes is biased against them. That is bad news for all of us.
Indeed, while too much of the debate around legal aid focuses on how it enriches already wealthy people – and we’ve all heard the one about never seeing a hard-up lawyer – too little of it focuses on the vital role the system plays in society. You may not like the idea of your taxes being spent defending this rapist or that murderer against what would appear to be the indefensible. But given that the mark of a civilised society is that even those guilty of the worst crimes have the right to a fair trial, surely it is better than the alternative; that a guilty person walks free because they were denied that right.
While legal aid is supposed to ensure we are all protected from that eventuality, it is also designed to enable the most vulnerable in society – the poor, the drug addicted, the mentally ill – to access the same rights as the most privileged. From mounting a defence against false accusations to using the courts to resolve life-altering disputes, having access to justice is as fundamental as having access to education or health services. And just as no one would expect a teacher or doctor to survive on the same rates they were being paid two and a half decades ago, neither should lawyers be expected to – regardless of whether some can, and do, top up their earnings by doing work in other areas.
When she announced the launch of the Evans review last February, then Minister for Legal Affairs Annabelle Ewing said the aim was to ensure that Scotland has a legal aid system “that it is fit for purpose, that it is fair and that Scotland’s population can continue to access when they need it most”.
As the Government gets ready to issue its response to Mr Evans’s recommendations it must surely be aware that without proper funding the legal aid system can be none of those things and it is society – not supposedly rich lawyers – that will suffer as a consequence.