It is no secret that Scotland’s legal aid system is in urgent need of reform. With the increase in legal aid deserts caused by an ever-diminishing number of firms carrying out this work, access to justice is at crisis point.

With the 2018 independent review of legal aid, chaired by Martyn Evans, becoming a distant memory, comprehensive reform has unfortunately again been pushed back until after the Scottish Parliament elections next year. 

For the time-being, proposals have been made for four draft Scottish statutory instruments in the areas of criminal, civil and children’s legal aid.

The broad concepts for these were first introduced in Legal Aid Reform: A Discussion Paper in February this year. On 20 October 2025, some further details of the proposals were circulated to some members of the profession, with an online consultation open until 9 November 2025. It is understood that draft Regulations are planned to be laid before Parliament this December. 

Govan Law Centre is extremely concerned in respect of the potential wider impact of one of those proposals: to replace detailed fees with block fees for Adults with Incapacity (AWI) cases. ​Our consultation response is published in full on our website.

Broadly, our concerns are that the proposals are rushed, ill-thought out, and lacking sufficient detail. 

The level of fees proposed do not reflect the reality of the work involved in such cases, and the proposals overly simplify an area of work which is increasingly becoming more complex. A feeing system which encourages lower quality advice and representation can only be a negative thing.

We would support a proposal which eased the administrative burden of feeing such cases, whilst also fairly remunerating solicitors, but these proposals completely miss the mark.

Some of the complexities that Govan Law Centre is now seeing in guardianship cases demonstrate why a block fee system will not work.

In response to recent case law, we are seeing far more safeguarders being appointed to cases, which adds significant extra work for solicitors and extends how long cases take. More recently, we have been ordered by a sheriff to produce a financial report in a guardianship application seeking both welfare and financial powers for a young adult whose only income was benefits with very little savings. 

In terms of the legislation, financial reports are only required for applications seeking financial powers alone, but each sheriffdom has its own requirements, which can even vary greatly from one sheriff to another. Applications have varying numbers of applicants and interested parties. It is not one-size-fits-all as the proposed block feeing system would suggest.

Our biggest concern is that if current proposals are implemented, further firms may be deterred from taking on AWI work, exacerbating current access to justice issues.

It is so important that the rights of the most vulnerable members of our society are safeguarded. In an ageing population, this is demonstrated by the fact that AWI work is already the largest case type by volume for civil legal aid. 

Despite this, many already report difficulty with finding legal representation willing to take on their case with legal aid funding. Govan Law Centre is concerned that this will only worsen should the proposals proceed. We have seen nothing to indicate that these wider implications have been considered, or that the members of our society whom these changes are likely to affect have been consulted. 

At the same time, guardianships are increasingly being granted for shorter periods, for example, just one year, when previously we would have had no difficulty in having a case under similar circumstances being granted for five years. Cases that would once have been granted indefinitely, such as an elderly adult with a life-limiting illness, are now unheard of.

This means applicants must return to court far more frequently, and so the demand for solicitors who undertake AWI work is only set to increase. If fewer solicitors agree to do so under legal aid, then a significant proportion of society will be unable to afford to pay the private fees required.

If a private individual is unable to afford representation to seek guardianship of an incapable family member or friend, and a guardianship order is necessary, the Adults with Incapacity (Scotland) Act 2000 provides that the local authority must make an application. We have major concerns about the potential burden of an increase in applications on already stretched local authorities. 

We note that increased state intervention, where an adult or those close to them cannot access justice, is unlikely to be compliant with the European Convention on Human Rights. Delays in the current system already have profound consequences for vulnerable individuals and wider society, such as bed-blocking in hospitals. We cannot support a proposal which is only likely to exacerbate these delays.

We do hope that ministers will heed the warnings of the sector contained within the consultation responses when considering any draft regulations in respect of a move to block fees for AWI work. We are aware that other AWI practitioners have also expressed similar concerns about these proposals. 

We would hope that the current proposals will not go-ahead at this time, and we call for greater engagement, detail and transparency in respect of any future proposals.

Whilst urgent reform is needed, any changes should be properly considered and should make improvements to an already struggling legal aid sector, not further impair it.

Laura Simpson and Christine McKellar are senior solicitors at Govan Law Centre