Robert E. More

The Scottish government has recently released the response to its consultation on legal aid reform. The consultation was commissioned in light of the Independent Strategic Review by Martyn Evans which was published in February 2018. As a legal aid lawyer practising exclusively in criminal defence I read the latest document to emanate from the Scottish government on the subject of legal aid with a familiar resignation. It is obvious to me that neither it nor the discussion which it hopes to provoke will do anything to arrest the decline in the criminal legal aid sector which has been gathering speed in recent years.

That the profession is in a state of free fall is undeniable. The number of criminal solicitors registered to provide legal aid has fallen by a more than a quarter over the last decade. Whilst the Evans Review was presumably intended to revitalise the profession, an astonishing 12 per cent have given up legal aid work since its publication alone. Those who operate in the sector have been aware for some time of a chronic undersupply of lawyers. However, when one considers that over the same two-year period the number of High Court indictments has risen by almost 50 per cent, it is plain that the statistics now confirm what we have long known.

However awful the plight of the criminal legal aid sector has become, in all likelihood it will get significantly worse in the coming months. In Edinburgh, approximately a third of criminal solicitors have been furloughed since the national lockdown began. As the job retention scheme comes to an end, many jobs are likely to be lost altogether for a simple reason: the margins involved in legal aid work are so slender that a resumption of the system at anything less than the levels prior to lockdown will mean that the positions cannot be afforded.

Any claim therefore that the demise of the criminal legal aid sector is unconnected with funding is completely delusional. Whilst the government might attempt to deflect such criticism by referring to its establishment of the Payment Review Panel, that will simply not wash. The panel had been meeting for a year even before the lockdown began and still has failed to produce a single proposal. One might think it obvious that there requires to be a significant and immediate increase in rates of pay as some compensation for three decades of conscious underfunding. Even that most basic truism appears to be beyond the panel, however.

An alternative attempt to counter the prediction of ever greater hardship might be to cite the procedures which have recently been put in place for the payment of fees on an interim basis. The basic fact, however, is that these have not added a single penny to a legal aid fund which has been cut by 31 per cent in less than a decade. The money which is paid now is exactly the same money as would have been paid later.

The well-founded consensus is that it will be several months – if not years – until levels of court business return to what they were prior to the pandemic. Whatever their merits, the anticipated emphasis on written submissions and preparation will serve to place a further burden on an exhausted profession and reduce the value of what the solicitor is paid even more.

What is likely to be a huge backlog of cases cannot be cleared without the lawyers to service it. That the backlog continues to grow is incapable of being reconciled with a legal aid sector which dwindles with each passing month. If the Scottish government’s continuing refusal to adequately fund the criminal legal aid sector ultimately means that clearing the backlog takes even longer, it will not be able to say that it was not warned.