Faculty warns on legal aid “race to bottom”

 

Scotland risks a “race to the bottom” in the standard of legal representation for people accused of the most serious crimes unless the legal aid system is improved, the Faculty has suggested.

In written evidence to the Independent Review of Legal Aid, the Faculty said criminal legal aid might not be a “vote winner”, but it was fundamental in a democratic society and allowed the poorest and most vulnerable to be represented by highly skilled advocates.

However, that representation was under threat. In real terms, payment for legal aid work had fallen significantly in the last decade, added the Faculty.

“The new fee structure, established in 2006, was intended to undergo triennial review, but this has not occurred to date, in the face of continuing budgetary constraints,” the Faculty stated.

“Unless this matter is addressed with urgency, the consequence over time will be a diminution in the quality of representation generally and, potentially, the eventual disappearance of advocates as pleaders in the most serious cases. No one can take any pride in presiding over a ‘race to the bottom’…the standard of representation is high but will only remain so if the commitment to support that representation is maintained and financial arrangements are improved.

“There is a strong ethos among advocates of ‘serving the public’ in the practice of criminal defence at the highest level. It is a service which should not be taken for granted.”

Generally, the Faculty said it shared the Scottish Government’s objective in relation to legal aid of ensuring that rights were made effective for all members of Scottish society.

“Legal aid allows us to provide services to those who cannot employ an advocate from their own resources. Without our assistance, vulnerable members of society would be facing serious personal and social issues without the benefit of skilled advice and representation.”

Highlighting family law, the Faculty said there were problems with delays in granting legal aid, and in granting sanction for counsel and for experts. However, cases under the Hague Convention on child abduction were generally heard within six weeks, showing that matters could be speeded up.

“We consider it is important that legal aid continues to be available for the instruction of counsel in all cases where the State seeks to ‘interfere’ in the family lives of socially vulnerable people, in order to ensure protection of one of the most basic human rights, the right to respect for family life.

“We would hope that the availability of legal aid in a wide range of cases will continue, and consider that if the system of legal aid is flexible enough to respond to changes in the way the law is practised (by, for example, the front loading of family cases) to ensure that counsel (and solicitors) are adequately remunerated for the work they do, then there remains much to commend the current system of legal aid.”