Access to justice has become illusionary for too many

The Herald reported the harsh reality that year on year, more solicitors choose not to undertake legal aid work for economic reasons.

Many parts of the country now have few, if any, firms prepared to take on legal aid cases.

The Scottish Legal Aid Board (SLAB) say there were 780 solicitors undertaking criminal legal aid work, however, the Scottish Bar Association confirm only 484 lawyers will be doing work at a “meaningful level”.

For civil legal aid, SLAB say just over 1,000 solicitors are registered to undertake civil legal aid work. Yet we know only 596 solicitor firms submitted at least one legal aid application in 2023-24, down from 621 the previous year.

Work is concentrated amongst a smaller number of lawyers.

We know, for example, that many women experiencing domestic abuse find it impossible to secure a lawyer because legal aid rates of pay are not financially viable.

This problem is set to worsen as a third of legal aid practitioners are likely to retire in the next decade. Younger lawyers are attracted to working for the state (Crown Office and Procurator Fiscal Service) or public bodies (local councils and quangos).

We have the invidious and Pythonesque position that even SLAB pays its own solicitors more than you could earn doing legal aid; with gold-plated pension pots. How did we get in such a mess?

A lack of political leadership as the Holyrood bubble represents the only growth industry in Scotland. Is it any wonder we have legislation that would give the police and courts more powers to protect people at risk of domestic abuse sitting moribund on the statute book?

The 2021 Domestic Abuse (Protection) (Scotland) Act has been waiting for a commencement order for over 3 years now. To say that justice isn’t being well served is an understatement.

Another area of concern is where the state or public bodies act unlawfully and oppress the individual rights of citizens. This can arise in all manner of ways – from being denied homelessness assistance to being deprived of a local community facility or benefit.

Often the applicable remedy is judicial review. This is where a judge in the Court of Session in Edinburgh assesses the lawfulness of a decision, action or inaction by a public body.

Ensuring that government and public bodies act in accordance with the rule of law is an essential feature of our democracy.

In Scotland, the 2014 Courts Reform (Scotland) Act introduced a strict time limit to raise proceedings; three months from the date that the grounds giving rise to the application for judicial review arose. It also introduced a “permission to proceed” test for cases.

This frequently means a significant amount of work has to be undertaken as a matter of urgency to be able to raise a complex petition within time and with the ability to persuade the court it has a real prospect of success.

It’s not unusual to take three days to draft a difficult petition but legal aid rates allow for £397.46 no matter how time-consuming. Out of that £19 per hour comes wages, rent, regulatory costs and other overheads. It’s not viable.

Which is why access to justice has become illusionary for too many people in Scotland.