Asymina, Matthew and Michael were law student scholars, participating in the WS Society Summer Scholarship programme during July 2023. This article summarises their research and presentation.
Scotland has had a long history of ensuring access to justice through publicly funded legal aid. Statutes from 1424 and 1535 provided minimum levels of funding for those who could not afford representation. In 1784, what can be described as a “means and merit test” was adopted to provide legal assistance and was introduced for civil cases before the Court of Session. Agents representing the poor in civil and criminal cases were formally recognised in 1825. Scotland has continued to uphold this legal tradition in the modern era and ensure that its inhabitants are provided with a legal aid system.
The contemporary provision of legal aid is governed by the Legal Aid (Scotland) Act 1986. The Act provides the following types of legal aid: (1) Advice and assistance; (2) Advice by way of representation; (3) Civil and criminal legal aid; and (4) Children’s legal aid.
The Act also established the Scottish Legal Aid Board (SLAB) and the Scottish Legal Aid Fund to provide legal aid, advice, and assistance in Scotland. SLAB replaced the Law Society of Scotland as the administrator of the legal aid system to avoid the conflict of interest between the profession both administering the legal aid fund and paying fees to its members.
The current legal aid framework has been subject to various reviews, the most extensive being ‘Rethinking Legal Aid,’ a 2018 Review by Martyn Evans. Recurring criticisms of the current legal aid system note its complexity, potential to contribute to unmet legal needs, and the tensions it creates between legal practitioners, SLAB and the Scottish Government.
This article will briefly compare the legal aid systems across the United Kingdom’s three jurisdictions. It will then build upon this to explore the criticisms of the current legal aid framework, discuss the potential impacts of raising practitioners’ legal aid fees, and conclude with the practical implications of such a reform with a view to cost.
Comparative Jurisdictions
The scope of legal aid differs significantly between the UK’s three jurisdictions, as each has its own regulatory framework governing the provision of legal aid. In Scotland, as outlined above, legal aid is governed by the Legal Aid (Scotland) Act 1986 and the Legal Aid (Scotland) Regulations 2002. In England, legal aid is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO), and lastly, in Northern Ireland, legal aid is governed by the Legal Aid and Coroners’ Courts Act (Northern Ireland) 2014 and the Access to Justice (Northern Ireland) Order 2003.
Scope of Legal Aid in the UK
The eligibility criteria vary appreciably for civil legal aid, of which the financial criteria prove to be the decisive factor shaping the scope of legal aid. In England, an applicant must have less than £8796 of disposable income per annum (£733 per month); in Northern Ireland, an applicant must have less than £9937 of disposable income. While in Scotland, this is more than double at £26239.2. In practical terms, this effect is evidenced when considering what percentage of the population is eligible for legal aid. In England and Wales, for instance, 25% of the population is eligible to receive legal aid, in contrast to Scotland, whereby 75% of the population is eligible to receive legal aid. All three jurisdictions enforce a merits test in addition to the means-based test, which are broadly similar. In brief, they examine whether an applicant has a ‘reasonable’ chance of winning the case. Aside from the financial eligibility criteria, another significant difference between the provision of legal aid in Scotland and their southern neighbours is that LAPSO excludes a much wider array of cases based on area. For instance, LAPSO does not grant civil legal aid for cases concerned with conveyancing, personal injury, damage to property, trust law, wills, social security claims at first instance, company/ partnership law, defamation, claims in tort for negligence, trespass, assault, and breaches of statutory duty, as well as judicial review cases. In contrast, legal aid in Scotland excludes only defamation cases, simple divorce proceedings, and petitions by a debtor for his own sequestration.
LAPSO has been criticised for restricting access to legal aid in England and Wales by lowering the threshold for financial eligibility and reducing the types of cases for which legal aid is available. Equally though, the Scottish system has equally been criticised by practitioners for stretching existing resources far too thin. Respondents to a Scottish Government consultation on legal aid reform in 2020 emphasised that practice areas such as housing, debt, employment, domestic abuse, immigration and asylum were grievously underserved by private providers due to underfunding, resulting in excessive burdens on overstretched third sector providers, such as citizens’ advice bureaus.
Criticisms of the Current Framework
Complexity
“ A central criticism of Scotland’s current legal aid framework is that it is too complicated for service users to navigate efficiently”
The system of eligibility and contributions for the various types of legal aid can be challenging to understand, as are the supplementary orders and regulations to the 1986 Act. This complexity creates confusion for service users and adds to the workload of those who deliver legal aid services, resulting in time-consuming applications that foster tensions between the legal practitioners and SLAB.
This criticism extends to attempted reforms of the legal aid framework. It has been suggested that the 1986 Act created an overly rigid legal aid framework, the consequences of which have been that the legal aid system has been unable to swiftly adapt to changes, innovate or improve. For example, it was noted that legal aid payments are too focused on funding court appearances rather than on preparation and settlement work which are key features of modern litigation. Any substantial reform of the legal aid framework - beyond minor changes which can be achieved by secondary legislation - will require a process of review and approval of the Scottish Parliament, which under any circumstance is a time-consuming and resource-intensive process.
Unmet Legal Need
The current legal aid framework contributes to the issue of unmet legal needs. Unmet legal needs are evident in rural areas where registered legal aid solicitors often decline to take on legal aid cases where they prove to be less profitable than privately funded cases. Geographical difficulties also prove to be a major consideration for practitioners, especially when practitioners must consider the cost and time of travelling to rural areas.
The 2018 Review highlighted that the current fee system often results in the needs of disabled clients not being met because fees for advice and assistance fail to reflect the extra time needed by a solicitor to comprehensively address the legal issues faced by disabled individuals. This point is pressing, as disabled individuals are statistically more likely to be involved in civil disputes than other demographic groups.
Financial Problems
The current payment system causes cashflow difficulties for legal service providers because the system administers payment following the conclusion of a case. The consequences of this approach are that high costs are incurred, and service providers undertake a large volume of work without receiving payment for long periods (which are often subject to substantial abatements).
Sustainability of Funding Increases
There is a concerning trend in Law Schools across Scotland: limited exposure to classes discussing legal aid. This reality reflects the broader challenges young lawyers face when considering a career in legal aid. With private practice firms offering significantly higher earnings, it is no surprise that newly qualified solicitors are unlikely to consider a career in legal aid work.
The Law Society of Scotland has recognised this issue and has called for fee increases, aiming to prevent further attrition of solicitors from pursuing legal aid work. However, it has been argued by the Scottish Solicitor’s Bar Association (SSBA) that increasing solicitors’ fees may only serve as a short-term solution. A boost in the budget is not enough to fix the systemic issues ingrained within the legal aid system.
One of the principal issues contributing to inadequate funding for legal aid services in Scotland is the Scottish government’s approach to investment. In 2022, the government supplemented legal aid funding by £11 million – an increase which should be acknowledged. Nonetheless, it evidences the government’s limited commitment to sustainably improve legal aid services at a systemic level. The President of the SSBA, Ms Julia McPartlin, expressed how there remains
“…a great deal of mistrust in the Scottish Government”
To bridge this divide, substantial efforts must be made to restore confidence in the legal aid system in Scotland.
It is important to note that increasing civil legal aid fees would mean increased client contributions. The Scottish Government’s hesitation towards allocating more funding stems from the findings of the 2018 Review, which concluded that a general increase in legal aid fees was not warranted. Arguably though, the Report can be said to have reached this conclusion through an overreliance on the high earnings of a few select legal aid practitioners while failing to take into account the submissions made to them by the Law Society of Scotland, which highlighted that often practitioners are paid less than minimum wage for the hours of work they spend on legal aid cases. The Report called for increased transparency by establishing an Independent Legal Aid Fee Review Board.
In pursuing long-term sustainability for firms specialising in legal aid, the current fee mechanism must be updated. Taking a blanket sector-wide approach when calculating possible fee increases could paint a misleading picture, which would disproportionately impact legal aid firms because the inclusion of marginal legal aid operators could make it more difficult to evaluate what a fair fee should be for firms who carry out large volumes of legal aid work. Marginal legal aid firms largely generate revenue through private practice but carry out small amounts of legal aid work. To include these firms on the same par as firms who take on high volumes of legal aid work could give the impression that they are well funded when that is not the case.
Therefore, it is submitted that an effective strategy should involve increasing fees for select firms in geographically remote places, which would be more effective than implementing a nationwide increase. This would help meet unmet legal needs and encourage solicitors to practice in rural areas. Additionally, from a political standpoint, increased investment in vulnerable communities throughout Scotland could improve public relations and spur the Government to act.
Increasing funding for legal aid would require the Scottish Government to make potentially difficult financial decisions, such as increases in taxation or redirecting available funds. A circular paradox would arise if future increases were to be sourced through additional taxation. The requirement for increased funding to support those eligible for legal aid is at odds with the fact that taxes must increase to meet this need, which, while improving the service of legal aid, places a greater burden on the taxpayer. Nonetheless, it is important to note that in Scotland, 75% of the population is eligible for legal aid. Thus, the benefits of investing further in the system would be felt by a large portion of Scotland's inhabitants. Despite these challenges, they cannot be relied on as a justification for withholding essential investment in legal aid in Scotland.
To address the funding disparity, reconsidering how resources are allocated is paramount. Increasingly, cases find resolution through alternative methods. Additional funding should be designated for early intervention and preventative approaches provided by advice agencies. At present, only solicitors can claim legal aid fees. However, there are growing arguments for reforms to allow advice agencies to seek reimbursement for their valuable and informative services. Expanding the scope of legal aid in this way could alleviate solicitors' workload but raises questions about the scope of services that could be funded through legal aid in Scotland.
In summary, while increasing solicitors' fees may seem like a viable solution to attract and retain legal aid solicitors, it is crucial to recognise the limitations of such an approach. A comprehensive strategy involving increased government investment, sector-specific fee adjustments, and a reimagining of funding allocation is necessary to address the complex challenges plaguing the Scottish legal aid system. These steps can pave the way for a fairer and more accessible justice system for all.