Scottish legal aid review ‘cannot recommend’ a general increase in fees

Martyn Evans - Image credit: Carnegie Trust UK

The Scottish legal aid review “cannot recommend” a general increase in fees for legal aid, review chair Martyn Evans said.

However the Carnegie UK Trust chief executive has advocated an evidence-led review of fees and income for legal aid lawyers, with the possibility of variations based on different legal or geographical areas.

This was "no soft option", Evans said, with both the Scottish Government and the legal profession having to agree at the outset to abide by the outcome.

There have been calls for an increase in legal aid fees, with the Law Society of Scotland telling Holyrood last year that some solicitors are not even making the minimum wage for legal aid work.

More recently, a number of solicitors have withdrawn from the police station duty scheme over concerns about workload and pay.

The independent review report makes 67 recommendations and sets out a 10-year plan that aims to make Scotland’s legal aid system simpler, more user-focused and more flexible, as well as sustainable and cost effective.

The recommendations include establishing a new arm-length body with responsibility for delivering, monitoring and raising awareness of of publicly funded legal assistance.

The report also recommends creating a consumer panel of current and future users to give input into the system and investing in public legal education.

Legal aid should be expanded too to cover appropriate group or multi-party actions, Evans says.

The review highlighted that Scotland’s current legal aid spend per head is the third highest in the European Union and has both the widest scope and eligibility.

Evans admitted he was surprised to find that Scotland’s legal aid system compared well internationally, but said that should not lead to complacency and he wished to make it “one of the very best services in the world”.

He said: “The current legal aid system in Scotland benchmarks very well against other countries. 

“However, we need to make the system simpler, more flexible and fairer for those who use it and those hard-working lawyers and advice workers who deliver it.

“This report sets out a ten-year timeframe to allow for short term impact as well as more ambitious, strategic improvements that will deliver a better public service for the people of Scotland.”

Welcoming the report, Legal Affairs Minister Annabelle Ewing said: “This report provides a platform for further reforms of the legal aid system in Scotland and we will consider its recommendations in consultation with justice organisations, the legal profession and partners who have been tasked with change.

She promised to meet with the Scottish Legal Aid Board, Law Society of Scotland and Faculty of Advocates as a priority to discuss next steps.

The findings of the legal aid review have been welcomed by the Law Society of Scotland and the Faculty of Advocates.

Angela Grahame QC, Vice-Dean of Faculty of Advocates, said: “Sight must never be lost of the fundamental importance of legal aid, and it is welcome that this review reinforces the scope and the merits of Scotland’s legal aid system.

“The review makes recommendations aimed at driving legal aid towards greater flexibility, but at the same time acknowledges the concerns of those who work hard at providing a service on a daily basis.

“There are opportunities here to be seized by all those engaged in making rights effective in a modern Scotland.

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The Faculty is keen to play its part in providing legal services of the future, and to work with the Scottish Government, the Law Society of Scotland and the proposed new Scottish Legal Assistance Authority to safeguard the place of legal aid in our country.”

Law Society of Scotland president Graham Matthews called the report "no-nonsense, common sense".

He said: “We strongly endorse his call to maintain the scope of legal aid, simplify the system and reinvest any savings to ensure access to justice for members of the public.

“His recommendation of an independent evidence-based pay review with a commitment to regular reviews, offers a solution to the current issue of providing fair and sustainable fees for hard-working solicitors providing legal aid work.”

The Law Society also welcomed the recommendation to introduce an independent review of legal aid fees and other suggestions such as advance payments to help solicitors with cash flow and higher fees for different geographical areas or areas of law.

Matthews said: “While today’s report has not called for any increase to the overall budget for legal aid, it clearly recognises that there is an urgent need to conduct regular, independent fee reviews, and a priority for criminal legal aid.

“We would very much welcome an evidence-based approach to setting fee levels and putting in place regular reviews to replace the current piecemeal approach.”

However, the Lib Dems said that the recommendations had not resolved the issue of funding legal aid.

Commenting on the report, Lib Dem justice spokesperson Liam McArthur said: “Recommendations to address delays in processing legal aid by simplifying the process and investing in service improvement, innovation and technology are welcome.

“However, the report fails to bring forward proposals to tackle some of the fundamental issues, not least the need to properly fund the legal aid system.

“Ministers will now need to decide how best to respond. 

“It is clear, however, that if legal aid is to work for all, these issues cannot simply be parked indefinitely.”