Date lodged: 5 December 2018
To ask the Scottish Government what action it is taking in response to the reported shortage of lawyers accepting legal aid.
Answered by: Ash Denham 13 December 2018
A strong legal system is critical to the rule of law and upholding human rights. Any instability of that system would be a concern for the Scottish Government. However the Scottish Government disagrees that there is a shortage of legal aid providers and the evidence supports this position.
The Legal Services (Scotland) Act 2010 gave the Scottish Legal Aid Board the function of monitoring the availability and accessibility of legal services in Scotland, with reference to relevant factors relating to urban and rural areas. SLAB has arrangements in place to monitor legal services by analysing its data on trends in legal assistance and supply, and supplementing this with other sources of data about legal services, such as information from the Law Society of Scotland and the Scottish Courts and Tribunals Service. This data analysis is complemented with stakeholder engagement where possible. To date, SLAB has produced five reports on its monitoring work which cover civil legal issues. The reports have concluded that, for the areas of law covered, there is no evidence of systemic problems with supply.
SLAB also supports provision of publically funded legal advice throughout Scotland through the Civil Legal Assistance Office (CLAO), Public Defence Solicitors’ Office (PDSO), and the Solicitor Contact Line (SCL). CLAO has 4 hubs offering a different mix of casework in response to local conditions and assessment of other advice and legal providers within geographical area. Through PDSO and SCL legal advice on criminal matters can be accessed 24 hours a day whether the individual is located in Gretna or Lerwick. There is no evidence of systemic failures in criminal legal advice provision and this includes the police station duty advice scheme where the Solicitor Contact Line, Public Defence Solicitors Office and private firms have met any request for advice.
Solicitors in all parts of Scotland are able to access funding for work carried out under the legal assistance schemes. The schemes are also flexible enough to allow solicitors to travel to rural and remote parts of the country to carry out work should it not be possible to instruct a local agent.
Under the current legal aid system the Scottish Government cannot directly regulate the amount of legal aid work private solicitor firms undertake. Put plainly the Scottish Government cannot insist that a private solicitor take on a client. This is a private business decision which the Scottish Government cannot interfere with.
Any changes made to the legal aid system via primary or secondary legislation are subject to a Business Regulatory Impact Assessment. The Independent Strategic Review of Legal Aid published in February this year made recommendations on securing legal advice supply in areas of law/geography and this will be consulted upon in 2019.
The legal aid budget in Scotland is demand led. Those who meet the eligibility criteria for both civil and criminal legal aid will have access to it. Despite cuts to the Scottish Budget from Westminster, Scottish Ministers have maintained the scope of legal aid and have not cut its availability; all who are eligible for assistance will continue to benefit from it.
Applications for legal aid are falling and the business for criminal defence agents has reduced (by 42% since 2006-07), however, the number of solicitors has not reduced proportionately, indicating sufficient capacity in the sector. Therefore legal aid expenditure has been reducing over several years due to a reduction in clients rather than providers not because of “cuts”.
In acknowledgement of the financial challenges being faced by the legal profession in face of falling volumes of business, changes in court processes and levels of fees, the Scottish Government announced that all legal aid providers in Scotland will benefit from a 3% uplift in legal aid fees from April. This includes police station attendance fees which have been in place for less than a year. This is in direct contrast to the position in England and Wales where a 1% uplift has been agreed for barristers only.
In addition to this, the Scottish Government response to the Independent Review of Legal Aid published on 29 November 2018 recognised that there is an opportunity to develop a new statutory framework for a modern, forward-looking and user-centred legal aid service for Scotland. The response signalled the Scottish Government’s willingness to take forward supported recommendations that will deliver an enhanced system of legal aid across Scotland and the ambition that publicly funded legal assistance continues to be recognised as an invaluable public service.
There is real value for both users and providers in achieving a user-focused and diverse delivery model; users can access appropriate interventions at the right time, and providers can better target their expertise to those who require it. The Scottish Government will consult on this in 2019 and will seek views on how to deliver this.
The response also included a commitment to take forward the recommendations under Strategic Aim 4 and establish a payment review panel who will consider how this can be achieved. This will include consideration of methods of provision when areas of law/geography are not currently available.
This should signal to all that the Scottish Government is committed to developing a fair, sustainable, user-centred, legal aid service.