Re-Solving Legal Aid…

…or how I developed a new respect for the Law Society.


Last November the Law Society of Scotland (or ‘LSoS’) released it’s Discussion Paper on the Future of Legal Aid in Scotland, setting out what changes it felt could be made. At the time I, amongst others, came out pretty resolutely against many of the reforms they suggested, since I felt they would damage the ability for the most vulnerable in society to access the legal system. As it happened, I was told by a reliable source that the high heid yins in LSoS’s Legal Aid department actually saw the post and considered it in response to the discussion paper.
Last week (the day before the General Election nonetheless), LSoS released their Final Recommendations based on the responses (and blog posts) they received. I’ve read it and it was a really positive shift from 6 months ago.

Criminal-wise, LSoS propose a system of block fees, to take account of the fact that since Legal Aid was last reformed, we have entered the post-Cadder age, where lawyers available at all hours of the day. With ‘telephone advice’ becoming a separate block, this will help simplify the system. There would then be a clear compartmentalisation of each additional “kind” of work required as is needed. This system has the great advantage of all knowing both the Legal Aid Board and solicitors to know ahead of time, what they can expect, instead of having to get Legal Aid certificates renewed every time. This is very similar to the current system, but tightens it up around the edges and makes it even clearer what can be expected when. Good work all round.

But it’s the massive changes with regards to Civil Legal Aid which have got me excited. My biggest problem with the discussion paper was LSoS suggesting that certain areas of law should be taken out of the scope of Civil legal Aid entirely. Those areas (including breach of contract; debt; employment issues; and housing) were the ones that vulnerable and disadvantaged were most affected by, and so it would be those groups that would feel the brunt of the Legal Aid cuts most keenly. However, I was pleased to see that LSoS have dropped the awful proposals. This genuinely made me smile when I read it, because it means those most in need of access to the justice system can still get their foot in the door.
The idea of Legal Aid Loans  (which will be paid back over a certain length of time based on financial means) is still not sitting 100% with me, but restricting them to the richest qualifiers as a kind of ‘top-up’ should lessen the worst aspects of the system. As long as free support is there for those most in need of it, top-up style loans will have a place in the system going forward.
Finally, it’s great that there’s a commitment to work with the voluntary sector to see how the professional legal sector  can work alongside it. However, and I accept that this is perhaps slightly outwith LSoS’s remit, the funding issues faced by law centres and advice bureau mean that, unless they are explored and resolved in a serious way, no long-term answers will be found. One possible step may be linking law firms and 3rd sector organisations, but this could only really be made viable through alternative business structures, which aren’t coming into Scotland as quickly as was anticipated only a few years ago.

In short, the Final Report is a massive improvement on what LSoS originally put out for discussion, so the Society should be proud. It has really listened to the responses it received – and that gives me great comfort as I enter the profession. The real way to solve this problem, of course, is to increase funding to Legal Aid and treat it as the important issue it is. You can have all the rights in the world, but if you are unable to enforce them in court, they are worthless. The idea that the only people who benefit from Legal Aid are fat-cat lawyers is, unfortunately, still keenly in the zeitgeist, which is a challenge for the profession – but the challenge for everyone is to defend the right a defence.


Given the recent discussion around Human Rights and all that surrounds them, it’s also worth highlighting that the right to proper representation has been accepted as being part of Article 6. So far in that debate, both the Scottish Government  and the Scottish Parliament has stated it will be a fierce defender of Human Rights in Scotland. By ensuring Legal Aid is sustainable and accessible in the long-term (which includes ensuring it has proper funding), they would be able to show that they will be.

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