The UK government is pushing forward with plans to (further) decimate the legal aid system. In the second of a series of blog posts on Legal Aid, NCADC volunteer Jacqueline gives an overview of the impact the changes have had and will have in Scotland.

Following our recent blog posts on the changes to legal aid and proposed further changes – ‘Where is Justice?‘ and  ‘Transforming Legal Aid‘ – and for the sake of clarity, it seems worth pointing out that the legal aid budget in Scotland is separate from England and Wales. Many of the changes which have taken place and which are proposed will not have any effect on Scottish legal aid policy expenditure. Over the last few years, the legal aid system in Scotland has had some changes, but they have not been nearly as drastic as those south of the border.

In 2011, the Scottish Legal Aid Board (SLAB) performed a best value review on legal aid as pertains to immigration and asylum cases. They found that expenditure had risen greatly since 2006 and concluded that some cuts needed to be made. Some changes have subsequently come into force. These include:

• more severity in abatements at the accounts stage (the stage at which lawyers submit an account to be able to claim legal aid for work done on a particular case);
• restriction on fees for travel (for instance, solicitors travelling to the detention centre at Dungavel to meet clients);
• reduced rates for interpreters;
• higher requirements for obtaining legal aid in Court of Session cases; and 
• greater scrutiny of clients’ financial verification.

Dungavel detention centre

The travel fee restriction could potentially make it less feasible for solicitors to physically see their clients. As problematic as this is, SLAB’s review is quite comprehensive in its explanation of why they believed this particular area of expenditure to have been over-used by a small minority of firms. It was found, apparently, that some solicitors were travelling far distances (one firm was based in Dundee) to meet clients when a phone call or e-mail would have served just as well – if this is the case then it would seem that this is a reasonable restriction as it is important that legal aid funds are spent efficiently.

On the other hand, it is not particularly clear whether the views of SLAB on what warrants a personal visit and what doesn’t would correlate with the majority of immigration solicitors’ experiences of what is necessary to ensure clients in detention are confident of the advice they are receiving. We would welcome any experiences or opinions on this, particularly from the legal profession.

Another significant consideration here is that, because most removal/deportation flights are from London airports, detainees in Scotland are likely to be moved to a detention centre nearer London prior to removal. Detainees who do not yet have a solicitor will find it more difficult to obtain legal aid. Solicitors already acting for someone in detention at Dungavel who is then moved can, in theory, continue working on the case. However, there is inevitable disruption caused to the case work if a solicitor is unable to visit their client due to time constraints (such as solicitors’ other workload and the short window in which an injunction to stop a removal/ deportation can be applied for) as well as the restriction on recoverable travel fees. Such disruption, particularly at such a critical time, will greatly prejudice clients facing removal/deportation.

The most objected to proposals by the Justice Minister, being the residency test, price-competitive tendering and the severe restriction on access to judicial review, are not to be in force in Scotland, but will still affect detainees kept at Dungavel as they are likely to be transferred to England at some point.

In Scotland there has been little news of any further domestic changes to legal aid. Hopefully, SLAB will continue to look at their options for saving money in a way which protects access to justice for the vulnerable, rather than taking inspiration from the increasingly restrictive English system. Even still, it is clear that the restrictions in England and Wales affect Scottish clients and this impact will worsen if the “Transforming Legal Aid” proposals come into force. For this reason, it is crucial that there is support from Scotland for the campaign to save legal aid in England and Wales.