This is the full text of the initial Response by the Faculty of Advocates to the Scottish Government’s paper “A Sustainable Future for Legal Aid.




The Faculty of Advocates notes the recent publication of the Scottish Government’s paper “A Sustainable Future for Legal Aid” and recognises that, in times of a challenging economic climate, the Scottish Government must look to make savings across a range of public services, including within the justice system.

The Faculty is concerned, however, against the background of the stated policy aim to increase access to justice, to urge caution in circumstances where reduction in the levels of legal aid fees payable may ultimately bring about the unintended consequence of a reduction in the quality of representation available in serious civil and criminal cases both in the higher and the lower courts.

The Faculty applauds the fundamental aim of the legal aid system in Scotland which has always been to allow, to those who otherwise could not afford it, access to the highest quality of representation which the legal profession can provide. While the economic sustainability of such a system depends in large part upon providing a structure which encourages the efficient delivery of legal services, equally, the need for the maintenance of standards of high quality demands that there be in place sufficient incentives to attract and retain lawyers of high calibre to undertake legally aided work.

The Scottish Government’s paper raises general issues of concern in relation to proposals which would impact on representation by both solicitors and counsel. As regards proposals which would impact on the provision of representation by counsel, the Faculty would wish to take this opportunity, in advance of further consultation, to raise the following specific concerns. Four matters, in particular, arise:

Firstly, on the assumption that it is directed to any extent to the conduct of counsel, the Faculty would refute in the strongest possible terms the implicit assertion, contained in paragraph 26 of the paper, to the effect that cases are proactively and unnecessarily prolonged in order to maximise the possibilities of the existing feeing structure. The professional responsibilities of counsel are closely regulated and extend to duties both to the court and to the client, to the extent that any other interest is necessarily superseded. Counsel, as holders of the public office of Advocate, and as officers of the court, are required to, and do, conduct the cases in which they are instructed having regard only to the interests of justice. It is of course true that cases are delayed from time to time by adjournments or the need for further procedure, but such events occur only on the authority of the court and are generally caused by such circumstances as lack of court time, the unavailability of witnesses or late disclosure.

That being so, where the proper administration of justice requires that cases take the procedural course which is necessary, it is fallacious to suggest that practitioners, rather than the requirements of the court process, are responsible for the period which litigation, of whatever kind, requires to achieve a resolution. In any event, it should be borne in mind that, as matters stand, counsel’s fees require to be justified to the Scottish Legal Aid Board before payment is made.

The Faculty welcomes the Scottish Government’s recognition, in the same paragraph, that legally aided clients should not be disadvantaged compared to those who are in a position to meet the costs of legal representation privately or by other means. It is essential in any review of the legal aid system in Scotland, where meaningful access to justice is to be preserved, that nothing should disturb the clear and equitable requirement that there should be equality of arms as between opposing parties involved in litigation. That principle should apply as equally to representation as it does to the funding of expert witnesses. The review indicated at paragraph 43 would prejudice the aim of increasing access to justice if, as a result of significant fee reduction, legally aided clients were precluded from the benefit of the same quality of expert as is available to parties whose cases are funded differently.

Secondly, the Faculty is concerned that any proposed movement towards the introduction of contractual relationships between the Scottish Legal Aid Board and legal aid suppliers (paragraph 47) would operate to the detriment of the quality of legal services currently provided to legally aided clients. While the concept of a market where contracts are awarded to the lowest bidder, whether by a process of competitive tendering or otherwise, would no doubt reduce costs, the corollary must be that there would necessarily be an impact on the quality of provision of legal services. The effects of such an innovation would be detrimental in a small jurisdiction which is geographically diverse. The population resident outwith centres of population, currently well served by practitioners of quality, would, as the result of market forces, be denied meaningful access to justice at a local level. Further, the notion of a contractual relationship with other entities is inconsistent with the concept of an independent referral Bar which by its very nature is designed to maintain the values of independence and objectivity of representation valued by the courts. In that regard, any suggestion that the discretion of counsel, as to how a case should proceed in the best interests of the client, should be superseded by the requirements of the public funder could serve only to undermine the quality of representation which the people of Scotland currently enjoy.

Thirdly, in the context of paragraph 50, it appears to the Faculty that the intended review of the extent to which counsel are employed could not have content without implicit criticism of the professional discretion of solicitors to judge what is in the best interests of their clients. Such a perspective would be a matter of grave concern to the legal profession as a whole. Experienced solicitors are best placed to determine when the employment of counsel is appropriate. If the concept of access to justice for legally aided clients is to be afforded meaning, then it is essential that the opportunity of equality of arms as regards representation is protected.

Fourthly, the Faculty is concerned that the proposal, set out in paragraph 51, to review the level of fees paid to solicitors attending court in cases in which counsel are instructed, betrays a misunderstanding of the position. To characterise the function of the solicitor in that situation as merely “acting in a supporting role to counsel” is wrong. The professional roles of solicitor and counsel are not the same and are not interchangeable. Counsel is instructed by the solicitor who in turn has a contractual relationship with the client and must act on the instructions of his client. While the role of counsel is to present the case in the most persuasive light, consistent with the duty owed to the court, it is the solicitor who is most familiar with his client’s affairs and the surrounding facts of the case which may not immediately impact on the ongoing litigation. At any time in a case, as circumstances change, adjournments are avoided by the presence of the instructing solicitor, who is best placed to confirm unforeseen matters of fact and vary instruction as necessary in the full knowledge of his client’s interests. To introduce a feeing structure which had the effect of undermining the solicitor’s role in that respect, contrary to the professional responsibility owed to his client, would result in a restriction of counsel’s ability to present the case efficiently, reduce the extent to which the court can be assisted in resolving issues which arise and create delays in the conduct of cases which do not currently occur.

While it is, of course, appreciated that review is a requirement of the proper management of public funds, and that fiscal restraint is currently necessary, nevertheless the Faculty would urge the Scottish Government to consider that although there are changes which could be made in the provision of legal aid, the need to meet budgetary limits should not be achieved at the cost of imprudent interference with systems of practice which have developed and been refined over many years and which to date continue to serve the administration of justice in Scotland and the Scottish people well.