Scottish legal aid system ‘needs urgent overhaul’



Eilidh Wiseman

People in Scotland relying on legal aid to help them may soon be unable to find a solicitor because many law firms simply can’t afford to carry out legal aid work. These are the findings of a new independent report, published today.

The report, The Financial Health of Legal Aid Firms in Scotland, is the first of its kind and presents a picture of a legal aid system under increasing pressure. The independent research, carried out by Otterburn Legal Consulting for the Law Society of Scotland, has shown that some of Scotland’s smallest legal aid law firms are carrying out legal aid work at a loss.

It highlights a significant risk of firms ceasing to offer legal aid funded advice because of the difficulties involved, making it harder for people to find a legal aid solicitor, especially in Scotland’s rural communities. In addition to the current level of legal aid rates, the report has highlighted the administrative and financial burden for firms caused by “undue bureaucracy” and “micro-management” by the Scottish Legal Aid Board.

The report findings indicate that:

  • Small firms offering legal aid (annual fees under £250,000) have difficulty creating a financially viable structure
  • Larger firms, particularly those with a turnover greater than £1 million, are more viable as a business
  • A third of the civil legal aid work and a quarter of criminal legal aid work undertaken by solicitors is unpaid
  • Private client fees are subsidising legal aid work at firms which do not specialise in legal aid.

Eilidh Wiseman, president of the Law Society of Scotland (pictured) said: “Access to justice through legal aid is a crucial element of our justice system, providing each of us with equal protection under the law regardless of our financial situation or status in society.“Whether facing unlawful eviction, resolving custody of our children, or defending a criminal charge, it is vital that people can access expert legal advice when they need it most. It should not depend simply on ability to pay.

“Parts of this report are extremely worrying and have made clear that reform of the current legal aid system is desperately needed.

“The research has shown that while economies of scale mean larger firms specialising in legal aid can make a modest profit, some legal aid solicitors at small firms are losing thousands of pounds a year. It has also highlighted the number of hours solicitors work without payment, with around a third of civil legal aid work and a quarter of criminal legal aid work unpaid. This is not a sustainable business model for solicitors working in small practices, many of which offer a vital service at the heart of their local community.

“The recent review of legal aid announced by the Scottish Government has presented a welcome and much needed opportunity to examine how we can improve upon the current system to ensure that it delivers for those who need it. Our report on the financial health of legal aid firms will make critical reading for the review group and those involved in the wider justice sector.”

Mark Thorley, co-convener (civil) of the Law Society’s legal aid committee, said: “The findings point to a legal aid system under increasing strain. We know that there are already gaps in legal aid provision, not just in rural areas but also in our cities and towns.

“If firms can’t afford to offer legal aid funded services, these gaps will widen and people, including the most vulnerable in our society, will simply not be able to find a local solicitor who can help even if they are entitled to legal aid funding. Leaving issues unresolved can lead to bigger problems further down the line which are even more costly to resolve both in human and financial terms.”

Ian Moir, co-convener (criminal) of the Law Society’s legal aid committee added: “The report confirms the difficulties that legal aid firms are going through. At a time when there are ongoing reforms to modernise the wider court and justice system, there is an opportunity to rethink the system, examine where efficiencies can be made and explore how savings made can be reinvested into the system to ensure its long term sustainability so that people can access the help they need when and where they need it.”

Two Law Society members, Lindsey McPhie, solicitor advocate and immediate past president of the Glasgow Bar Association, and Jackie McRae, a registered social worker, accredited specialist solicitor in family law and a former member of the Law Society of Scotland’s Council, will represent the solicitor profession as part of an independent review of legal aid, announced on 1 February by legal affairs minister Annabelle Ewing and which will be headed by Martyn Evans, CEO, Carnegie Trust.