John Mulholland

John Mulholland, president of the Law Society of Scotland, said the regulatory body “[doesn’t] believe the overall drop in legal aid spending this year correlates with a drop in legal need”.

The slight decrease recorded in the Scottish Legal Aid Board’s (SLAB) annual report masks some significant changes, such as the continuing fall in non-jury criminal legal aid applications - down by a further 5,500 on 2017-18 and costs down £2.1m.

The uptake of criminal legal aid for jury cases on the other hand increased, with an additional 950 applications received compared to the previous year.

The Legal Aid Board said the longer timescale for jury cases means that it will take some time for last year’s rise in demand to result in increased expenditure.

Colin Lancaster, SLAB’s chief executive, said the changes highlighted the importance of the Scottish Government’s Expert Payment Advisory Panel and its recent consultation into what sort of legal aid system Scotland should have for the future.

“Publicly funded legal aid services assist around two per cent of the Scottish population each year. This means that our existing legal aid system helps many thousands of people each year deal with a wide range of legal problems.

“The important work that solicitors and advocates do for each individual they assist has a significant positive impact not only for their clients but also for the wider justice system and Scottish society.”

The government’s consultation asks whether and how legal aid should be reshaped into a user focused public service.

Mr Lancaster said the bulk of services legal aid supports – 93 per cent - are funded on a case by case basis, which means they are unplanned and untargeted. A more flexible system could help deliver services designed around user need and focused on achieving defined public policy outcomes.

“Our current mixed model legal aid system has considerable strengths on which to build. It combines untargeted, privately provided casework with targeted services that can be directed at areas that are less well served or which funders want to prioritise,” he said.

“If the Scottish Government wish to move towards more of a public service model, the current mixed model could be strengthened so that the public could rely on each part working more closely together in a complementary way.

“Then people could draw on the most appropriate help and be referred, signposted or move between different types of providers and services as suits their needs.”

However, speaking on behalf of the Law Society, Mr Mulholland said: “While it is positive to see a rise in spending on civil legal aid in Scotland, we don’t believe the overall drop in legal aid spending this year correlates with a drop in legal need. We remain concerned that a continued lack of investment is eroding access to justice for communities across Scotland. It remains the case that fewer law firms in our towns and cities can afford to take on legal aid cases, which can be highly complex and time-consuming, at the current fee rates.

“Building a fairer and simpler legal aid system is essential and in our recent response to the Scottish Government consultation on legal aid reform, we highlighted the importance of making the legal aid system more efficient and easier to navigate for members of the public and solicitors alike.

“We were pleased to see the government’s proposals included developing simpler systems and a coordinated approach to outlays. The increasing proportion of expenditure on outlays, such as sheriff officer and expert fees, is a concern. For civil legal aid, while fees to solicitors have reduced by 8% since 2014-15, fees for outlays have increased by 11%. We have consistently highlighted the need to reform the way in which these outlays are treated. This would not require new legislation and should be taken forward as soon as possible.

“We recognise that SLAB has taken steps to improve its processes, but we continue to have concerns around the sustainability of funding over the long term, which will be critical to the success of any future reforms. We will continue to work with SLAB on simplifying and streamlining the legal aid system and making best use of technology. Having an efficient and effective legal aid system is a key factor in ensuring we have an effective justice system that serves the Scottish public well.”

Angela Grahame QC, vice-dean of the Faculty of Advocates, added: “Legal aid is a fundamental pillar of ensuring access to justice. The ongoing commitment by the Scottish Government to the scope of legal aid in Scotland is reassuring. The Faculty is fully engaged with the review of legal aid, and individual members will continue to commit their talents to those who are most in need of legal advice and representation in the civil and criminal courts.”