TRYING to make a living from legal aid made solicitor Alan Watt feel like the Sisyphus of Greek legend – condemned for eternity to push a rock up a hill only for it to roll back down again.
Around 80% of his Cumbernauld practice is legal aid work but now he has decided to give it up and hire himself out as a consultant instead.
He is just one of the increasing number of solicitors who are turning their backs on legal aid, claiming the system is now in crisis because the payments are so low.
Scotland is already full of “legal aid deserts” according to lawyers’ organisations like the Law Society of Scotland. The only legal aid solicitor in Orkney retires next month, Shetland is already without any solicitors who cover civil legal aid cases, while Campbeltown has no criminal legal aid solicitor.
Although the problem is hitting rural areas hardest, the Central Belt is also feeling the pinch, with lawyers abandoning legal aid work “in droves”.
However, legal aid is not high on the list of voters’ priorities, even though it affects issues like divorce, child custody and minor infringements of the law as well as high-profile criminal cases.
Legal aid money does not go into the pockets of those assisted – as some of the more lurid media reports imply – but is used to ensure justice is carried out as fairly, efficiently and as speedily as possible, says Watt.
Explaining why he decided to abandon legal aid work, he pointed to one recent criminal case when he was paid a total of £550.76 although it dragged on for 18 months.
On two occasions during that period, he turned up to court to find the procurator fiscal was ill, meaning that no evidence was led so he wasn’t paid for his time.
“There is a misconception that legal aid lawyers make a significant amount of money,” said Watt. “If I am ill, I don’t get paid, and the last time I was on holiday was in April 2018. When you do legal aid, there are a lot of things you don’t get paid for.”
When he set up his practice in 2011, his intention was to take on other solicitors but he found he could not expand because of the low level of legal aid fees.
“I was going round and round in circles,” he said. “I like to think I am passionate about law and not a bad lawyer, but the reality of running a small one-man band principally on legal aid is a non-starter.
“If I told you how much money I put in over the years into the business it would make your toes curl. You think things might get better but they don’t.”
The Scottish Government has agreed to put up legal fees by 10.1% in April but the profession argues this is not enough as the rate has been too low for many years and does not even cover inflation.
“The rise is ineffectual when you compare it to real costs,” said Watt. “I have got to pay for heating, lighting and rent and all these fixed factors are going up all the time. I sometimes think I am Sisyphus pushing the rock up to the top for it just to fall down.”
The Law Society of Scotland’s Criminal Legal Aid Committee convener Ian Moir said the coming increase didn’t change the reality of a “system in crisis” where solicitors are leaving the legal aid system “in droves”.
“Access to justice is the cornerstone of a fair and just Scottish society – however, our network of legal aid support is diminishing, while the demand for help is increasing,” he said.
“You would struggle to get a lawyer to do a divorce case on civil legal aid now, or to arrange contact with your kids.
“More money has to be a solution or, very simply, there won’t be enough people left to do it.”
While fees need to improve in the short term to prevent people from abandoning legal aid, the profession and the Government agree the whole system needs an overhaul but there is no plan on how this should be tackled.
Moir, who was an expert on the fee review panel in 2018, pointed out that none of the work it recommended had even started “We really can’t wait, so the short-term solution is more money, otherwise you won’t have a proper system of access to justice,” he said.
“Without being overly dramatic, you will have more people having to represent themselves in criminal court and more people trying to represent themselves when the best interests of a child are at stake. It doesn’t bear thinking about. The courts will grind to a halt because everything will take so much longer.”
Julia McPartlin, president of the Scottish Solicitors Bar Association, said the low payments meant the profession was struggling to recruit new members as well as retain staff.
“We are starting from a position where there has been so little in the way of increases over a couple of decades that we are quite far behind,” she said.
The problem has been exacerbated by the Crown Office and Procurator Fiscal recruitment drive to cope ith the backlog of cases caused by Covid – which McPartlin said was resulting in more senior solicitors leaving legal aid behind for a more attractive salary.
“We need a significant increase in legal aid rates because there are fewer of us doing more work and the work is becoming more complex,” she said.
“We are nobody’s priority as far as the public is concerned but if we are not there then the justice system would grind to a halt pretty quickly. It is in everyone’s interest that we have a functioning system of justice.”
A Scottish Government spokesperson said: “Further to engagement with representative bodies for solicitors, the Scottish Government has agreed to deliver an £11 million package that increases fees for legal aid lawyers in Scotland and supports the country’s court recovery programme.
“The package also includes support for independent research aimed at agreeing regular, evidence-based fee reviews.
“The package will help secure continued legal aid support for criminal and domestic abuse cases and brings the total additional funding to legal aid providers to £31m since April 2021.”
