Ken Dalling: Review of legal aid system reached ‘questionable conclusions’

Ken Dalling

Dear Sir,

I read with interest the detail of your “strategic review” of legal aid now published. Whilst I understand that the Law Society of Scotland, amongst others, will provide detailed responses to your conclusions and recommendations, I think a number of points can be made regarding legal aid remuneration upon which I would ask you to reflect.

Civil society in Scotland is well served by the legal profession – both solicitors and advocates – and when it comes to legal aid the cost to the public purse is actually decreasing year on year. In the criminal sphere, if a person is accused of a crime or offence and cannot themselves afford to make payment for a solicitor, arrangements are in place for legal aid to foot the bill. An accused will be defended or represented by a member of the Law Society of Scotland. In appropriate cases and in the High Court arrangements can be made for an advocate or solicitor advocate to appear. As a member of the Society a solicitor will be held to certain professional standards and will be covered by professional indemnity insurance. Clients, universally, will have the protection of the Society’s Client Protection Fund – your suggestion at p 34 that “not all legal aid lawyers are covered by Client Protection Fund” is erroneous. A solicitor will either be a sole practitioner or a member of a larger firm, and in either case he or she will be supported by administrative staff (secretaries and cashroom). The solicitor will be remunerated in terms of a private business model, as this has been universally found to be the most efficient way in which legal aid services are delivered.

Questionable conclusions

You conclude that there is no evidence to justify a general increase in legal aid fees (p. 2). I find this conclusion surprising, and suggest that there is more to it than simply determining the matter of supply and demand and deciding that where there is no difficulty with supply, there is no need to acknowledge the value of the service. I note the reference you make to information provided to you by various focus groups. Whilst those who gave their time to input to your review should be commended, I respectfully suggest that ill-informed opinions should not inform policy – except regarding the need to educate the public.

The apparent adoption of the perception that criminal legal aid users “put themselves in that situation” is particularly unfortunate, as is the observation from one contributor: “I’ve never seen a poor lawyer.” Poor lawyers go out of business. Legal aid lawyers often require to be subsidised by the non-legal aid work which they or their firms undertake. Your concern about a general increase in legal aid rates being unlikely to find public support is, I feel, nothing to the point. Solicitors undertaking the valuable work required in a legal aid sphere should be fairly remunerated for the work that they do. It is surely a matter for the Government to approach this task objectively and determine what “reasonable remuneration” looks like.

You suggest that some legal aid lawyers are well remunerated. I wonder from where you draw this conclusion. The figures which you quote relate to gross payments to certain advocates and solicitors’ firms. Those figures will undoubtedly include value added tax which the firms simply pass directly to the UK Government. Although the profit which an advocate could expect to derive in any financial year may be closer to the general payment figure received, that will be far from the case in the context of a solicitor’s firm. The figures are in no way equivalent to a “wage”. I would have expected from you a basic understanding of the realities of business. You suggest that it is hard to justify a general increase in fees when “top earners” would also receive an increase. This again simply ignores the realities of a private practice delivery model: fees are paid to a firm which is responsible for the considerable business overheads that require to be met before there is any “profit”. Think rent/rates/mortgage, staff wages and pension contributions, heating and lighting, technology and cashroom costs, and of course practising certificate fees, professional indemnity premiums and SLCC/client protection dues.

Can I also suggest that, perhaps with the sole exception of VAT, the legal aid spend should be regarded as an investment, not only in the legal services industry of Scotland but also in access to justice and the rule of law. Additionally, as identified in recent independent research commissioned by the Law Society of Scotland (Rocket Science, November 2017, #DefendLegalAid), there is a significant beneficial return to the country for every pound so invested.

1992: still casting a shadow

You are dismissive of the Society’s arguments that there has been “no uprating since 1992”, and suggest that the 1992 rates relate to only 5 per cent of solicitors’ income. I note that you are careful not to suggest that this 5 per cent relates to solicitors’ time. It is undoubtedly the case that considerably more than 5 per cent of that would be required. You refer to a number of percentage increases in respect of figures no doubt provided by the Scottish Legal Aid Board. I would wish you to be clear on the following:

Criminal advice and assistance by way of representation (time and line matters), and indeed cases reduced to summary level from solemn, are still remunerated at a base rate of £10.55 per quarter hour and base advocacy rate of £54.80 an hour; these rates were fixed in 1992. This category includes the most serious cases to be prosecuted at summary level, as well as alleged breaches of court orders and Parole Board cases, which are of huge importance to the client.

Criminal advice and assistance has indeed been increased by 10 per cent to the sum of £11.60 per quarter hour during the 26 years since 1992, and civil advice and assistance has been increased from £10.55 to £12.75 during that period.

For solemn work involving the preparation of cases for sheriff and jury or High Court prosecution, remuneration is at the rate of £12.20 per quarter hour, increased from £10.55. Advocacy is remunerated at £72 per hour. Solemn rates were, in fact, higher until they were cut by the Legal Aid Board in order that other, previously unremunerated work could be covered.
The solemn fee increases, and the move to a hybrid system of block and time and line charges, were intended to generate an increase in remuneration and an increase in spend for the profession – which has never, in fact, materialised.

The block fees in summary cases to which you refer, and which themselves have been cut over time, were introduced at the time of summary justice reform to promote the early resolution of cases. Summary justice reform was itself successful, but none of the system savings have ever been reinvested into fees – despite that being the original intention of the Scottish Government.

Your strategic review was to be a once in a generation rethink of legal aid. It is disappointing that you have been so quick to dismiss the arguments which have been advanced for an increase in the remuneration of solicitors undertaking this work. If legal aid lawyers do “think they are the bottom of the barrel” (p. 82), this can only be because it is how they are treated by their paymasters. It is hard to accept that you were unable to identify the evidence clearly supportive of just that.

Yours sincerely,
Kenneth A R Dalling, solicitor

This letter first appeared in the Journal of the Law Society of Scotland.