Law Society president Christine McLintock: Political parties must address 'disastrous' legal aid situation

Barely a week passes without legal aid making headlines, often the result of a few decisions that are considered unpalatable. With over 212,000 initial applications in 2014-15 alone, it is perhaps unsurprising that certain awards are not always popular.

That, however, is the price of a justice system premised on access to justice. The cost has become the thornier issue of late, though, after the Scottish Government set out plans to reduce the annual legal aid budget by £10m from the beginning of April.

“The whole legal aid issue is looked at as being money for lawyers – it’s not,” insists Christine McLintock, president of the Law Society of Scotland. “It’s the cost of access to justice for those in need and the system is straining having had cuts after cuts after cuts.”

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Finance Secretary John Swinney announced in December that the budget allocation for legal aid would be £126.1m for 2016-17, a reduction of over seven per cent on this year and lower than the total expenditure on legal assistance in 1994-95.

“That is going to cause enormous challenges, for example, in civil legal aid,” says McLintock. “Already there are a number of areas in Scotland where there are not enough people providing civil legal aid to meet the demand because practitioners just can’t afford to do it. That’s disastrous and it needs to be looked at.

"Even though they want to, in order to keep their business running, a lot of them are having to take a decision not to do legal aid anymore. Others do it and to some extent, the work is subsidised by other work the firm does.

“Two weeks ago I was in Oban, Lochgilphead and Fort William on faculty visits and in Lochgilphead the Scottish Legal Aid Board have had to appoint a civil legal assistance solicitor to provide some legal aid in those areas because there aren’t enough practitioners available to do it.

"We’ve got civil legal assistance offices now to plug a gap in provision… but certainly in the north, we’re seeing a real problem.”

The demand-led nature of the legal aid system means that extreme situations such as in 2013-14, when the total cost of legal aid exceeded the government’s budget allocation by £12.4m, can and do arise. In theory, if applications are made and accepted then legal aid must be provided.

“But if there aren’t any lawyers around to give the help then that is a problem in itself,” counters McLintock.

“And are people going to get the help that they need if there are no advisers? In the 15th century, Scotland introduced a statute to say that if you couldn’t afford legal advice that you would be given it. We were the first statutory authority in the world to do so. That’s a proud tradition so it needs to be sustained. And to be sustained, it has to be funded properly.”

It is unsurprising, then, that access to justice – and legal aid in particular – has been given top billing in the five priority areas the professional body has urged the next government to take action on. Unlike England and Wales, where reforms have seen the scope of civil legal aid significantly narrowed, Scotland has sought to retain its broad scope.

A Law Society discussion paper previously set out a number of options, one of which was to exempt the likes of housing and employment from civil legal assistance with a “properly funded and widely available advice network” instead. However, it quickly became clear that “cherry-picking what’s important and what is not important” was neither fair nor popular, says McLintock.  

“If you look at what has happened in England and Wales, almost all family law issues have been taken out of the scope of legal aid unless there is domestic abuse involved, as a result of which the courts are now almost grinding to a halt because almost every case is a party litigant without any legal help, which is causing problems in itself.

"There was no support amongst our own membership for cutting scope and certainly just looking at what is happening elsewhere, we wouldn’t support that.”

Concerns over access are not only restricted to those seeking help but those who offer it. Earlier this month, the Law Society announced plans to launch a new charity that will offer financial assistance and mentoring support to students from less advantaged backgrounds.

The intention is to help those studying at university for a law degree or the diploma of professional legal practice, a postgraduate requirement to practise law and become enrolled as a solicitor. The project follows a call for political parties vying for votes this May to consider how access to university can be made fairer.

“You can only help so many people through this type of initiative,” adds McLintock, reiterating the need for a review of postgraduate funding.

Meanwhile, latest statistics show there are now more female solicitors than male for the first time. “It has taken 30 years for that to happen,” she stresses. “A lot of our work now in terms of gender equality is around the gender pay gap, which is still a huge issue.”

Of solicitors under the age of 45, over 60 per cent are female. Two-thirds of those admitted to the profession last year were women. This trend has led to questions beginning to be asked about the comparative lack of men coming through. “Ideally we want to see a balance across the profession which reflects wider society,” says McLintock. 

As for the framework surrounding the Scottish legal profession, the Law Society has branded it a “patchwork of legislation” given the central piece of regulatory legislation is now over 30 years old.

With more cross-border firms, growing internationalisation of legal services and the rise of alternative business models, McLintock and her colleagues are keen to see the law modernised to offer a “modern, fit-for-purpose framework for legal services” north of the border.

That said, legislation can and will only go so far. Arguably, shifting attitudes remains the trickier task – despite polling pointing to high satisfaction and trustworthiness in Scottish solicitors.

“There is a concern sometimes that members of the Scottish Parliament have very little day-to-day access to lawyers working away doing a fantastic job and may rarely hear the good news stories.

"It may be that the only time they hear about solicitors is in a negative way when constituents are knocking on the office door because something has gone wrong or they are not happy about the outcome. But, actually, that is a tiny percentage of all the transactions and cases that go on every year.”