Exclusive:'Dire' shortage of defence lawyers in Scotland impeding justice recovery

Simon Brown, president of the Scottish Solicitors Bar Association, warned there was an “urgent” need to significantly increase legal aid rates to reverse the shortfall of solicitors throughout the country. He called for the establishment of a new review mechanism to ensure the system was fit for purpose.

Concerns over the lack of defence lawyers have been mounting in recent years as the criminal justice system wrestles with disruption exacerbated by the pandemic. Prior to their retirement earlier this month, Scotland’s two most senior judges, Lord Carloway and Lady Dorrian, warned the issue would cause further delays in a system that is already under pressure.

Mr Brown said around half of legal aid work across the country was carried out by a group of around 150 experienced solicitors, a cohort he stressed was “too small”, with a lack of younger people entering the profession.

Speaking to The Scotsman as part of its Justice Denied series, he said: “The Government will say that the numbers of solicitors registered to provide criminal legal aid has remained constant at around 800 for the last four years. That is true, but the figures bear a closer examination.

“Of that 800, only 450 or so were able to have their work peer reviewed by the Scottish Legal Aid Board. The minimum criteria for peer review is eight cases in a 12-month period, so nearly half the available solicitors are doing minimal levels of work, if any.”

Mr Brown added: “Drill down further and you will find that of that 450 or so that you could consider active in the field, over 50 per cent of the total work paid for by legal aid is done by a group of around 150 experienced solicitors. That is clearly not enough.”

Tony Lenehan, vice-dean of the Faculty of Advocates, said the professions of both solicitors and advocates were “two decades deep into a cycle of real world pay cuts”, with the pressures on the former directly impacting on the number of advocates.

“For solicitors it is particularly acute,” he said. “Crown salaries have risen a great deal in recent years, which makes recruitment and retention of defence lawyers ever harder. The reduction in entrants to the criminal defence solicitor ranks has a consequent negative impact on numbers progressing through to the bar.

“The real-terms decline in pay is now so deep and so impactful that a major and immediate increase in the rates legal aid solicitors are paid seems the only answer.”

Mr Brown agreed, adding: “Legal aid rates have to increase significantly and urgently, and a review mechanism has to be put in place to ensure they don’t continue to stagnate.”

The Law Society of Scotland has warned an “alarming shortage” of legal aid lawyers risked jeopardising the “fundamental right” of ensuring everyone has access to justice, with one third of practitioners set to reach retirement age in the next decade, and a shortage of trainees to take their place.

The shortfall in legal aid provision is an issue that is causing particular concern amongst organisations that help victims and survivors of crime. Dr Marsha Scott, chief executive of Scottish Women’s Aid, said it was not uncommon for the charity’s workers to make scores of calls when trying to secure legal representation for their clients.

“There is a real shortage of legal aid solicitors available for women who need a lawyer, either because they have been inappropriately accused of domestic abuse themselves, which is a very common tactic, or they are engaged in civil hearings around child contact,” she said.

“We have cases where staff in our services have made upwards of 40 or 50 calls trying to find a solicitor for a civil case, and not just one who’ll work on legal aid. It’s a really, really dire situation.”

“Even if the legal aid system were functioning optimally, it’s not appropriate for domestic abuse cases. It doesn’t produce competent legal aid representation, and it’s particularly dire in rural areas, where you might have one or two legal aid firms, who are already representing a perpetrator.”

The Scottish Legal Aid Board (SLAB) said it was working with the Scottish Government, the legal profession and the advice sector to propose reforms to deliver new ways of designing, securing and providing services. It pointed to a referral pilot it was running for Scottish Women’s Aid clients, which had dealt with 219 legal cases, 139 of which were successfully referred to a solicitor.

“Change is undoubtedly needed as the current system has limited scope for targeting resources at priority issues or securing services in any given place or for a particular type of problem,” a spokesman said.

Victims Minister Siobhian Brown said: “The number of solicitors actively involved in criminal legal assistance has remained relatively stable at around 780 for the last four years. We want to improve that position and attract more people into the profession, including defence. I recognise that reform and improvement is needed to the legal aid system and we are currently developing an action plan for reform, which will be published shortly.

“Despite extremely challenging financial circumstances, the Scottish Government continues to meet all legal aid costs in full, with the draft budget proposing an increase of £14.2 million to £155m to meet the rising cost of legal aid. In addition, an £11m package that increased fees for legal aid lawyers was implemented in April 2023, bringing the total additional funding to legal aid providers to £31m since April 2021.”