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Social Justice By Civil Means: Protecting Legal Aid

This article written by Paul Cruikshank, Professional Diploma in Legal Practice, discusses the importance of legal aid.

Scotland in 2014 is not a good place to be poor. The UK Government’s welfare reform program has had a devastating effect on those who rely on social security to survive. The ‘under-occupancy charge’ (also known as the ‘Bedroom Tax’) has led to mounting rent arrears in Scotland, with tenants and housing associations suffering to the tune of £5.4 million.[1] The Scottish Government did nothing for a long time, and any support they have provided is due to run out in April 2015.

This initial inaction, and the uncertainty over future support, leaves a question mark over social housing provision in Scotland in the coming years. For those relying on housing benefit to meet their rent, mounting rent arrears, and so eviction, become very real threats. The most disadvantaged in society have become the most attacked, and they are those most in need of legal representation to protect their rights.

Yet, the nature of these things is that those most in need of a solicitor are those least able to afford one. While advice agencies (such as Citizens’ Advice Bureaux) can help some, sometimes there is no choice but to go to court. Scotland has had a system of legal aid in place for decades to ensure that everyone is able to fight for their rights, ensuring that the strength of your case, and not your size of your wallet, determines success.[2] However, we are now seeing the biggest threat to the Scottish system of legal aid for years.

In 2011, the Scottish Government launched a review of Scottish Legal Aid in the context of stretched budgets, the need for ‘efficiency’, and a reduction in the Scottish Legal Aid Board’s budget that year.[3] In November 2014, The Law Society of Scotland (hereafter ‘LSoS’) released its discussion paper to set out its view on how the system should change.[4] The LSoS suggested in their report that:

...the following areas being removed from the scope of civil legal assistance:
- Breach of contract
- Debt
- Employment law
- Financial only divorce
- Housing/heritable property
- Personal injury (with the exception of medical negligence)[5]

This proposal by the Scottish regulatory body should be disturbing to all those who hope to enter the profession. These changes would create major obstacles to the most vulnerable in our society accessing the court system and making their case effectively.

Consider the case I set out above: if civil legal aid was not available to those facing homelessness, who would be there to make their case? What about an expectant single-mother whose hours have been cut at just the right time so her employer doesn't have to pay her full Statutory Maternity Pay? Who represents her at the tribunal when she cannot afford to pay, and her knowledge of the law is not enough for her to go on? These are not academic hypotheticals, but real examples taken from my experiences as a CAB adviser. Both these cases would be removed from civil legal aid under the LSoS proposals. Those facing eviction; those seeking protection in the workplace; those fighting unfair debts (such as payday loans) could no longer expect support in finding a professional to fight their case if the LSoS proposal was adopted. How can this be a positive thing for Scottish justice? How can the LSoS justify this when they have a duty to promote fair access to justice?

According to the LSoS, legal provision in these areas could be:

‘…easily and properly be provided either by the advice sector

or on a private client basis through a range of funding options

including speculative fee agreements, loans for legal services,

and payment plans involving deferral or instalments.’[6]

This suggestion, while theoretically viable, ignores many practical issues that make these suggestions unworkable. Foremost among these is that the advice sector is already underfunded and overworked as it is.[7] Attempting to increase the scale of its representation work could break it. This ‘solution’ also overlooks the reality that law centres, which provide legal assistance to the most vulnerable, are already working on a shoestring budget, and speculative fee agreements (‘No win, no fee’) could decimate the already empty landscape.

With fees for Employment Tribunals and remission thresholds becoming harder and harder to meet, basic access to justice is hard enough for the least well-off in society. LSoS’s proposal to reduce this even further, extensively restricting the scope of civil legal aid will prevent all those unable to pay for their own lawyer being able to effectively make their case in court. It is also notable that it is those areas that affect the disadvantaged most (Housing, Employment, Debt etc.) that have entered the LSoS’s cuts-crosshairs. Whether by design or by oversight, these suggested cutbacks would disproportionately affect the poorest, those who should be supported most.

I am yet to enter the profession, but when I do, I want to fight for those who need someone to fight for them. But the work of Law Centres and the LSA can only go on if the funds are there to let it. Social Justice is neither easy nor cheap, but it is a cornerstone of the legal profession. Unless the future of Civil Legal Aid can be protected, the Civil Justice System in Scotland will become an unfair, unjust place for those without money - and it is the job of the profession, future lawyers (such as myself), and LSoS itself to make sure that does not happen.


[1], ‘Rent Arrears caused by Bedroom Tax up to £5.4m’, 11th April 2014. Available at: (last accessed: 2/10/2014).

[2] This system is currently established and regulated under the Legal Aid (Scotland) Act 1987 and Legal Professional and Legal Aid (Scotland) Act 2007.

[3] Scottish Government, ‘A Sustainable Future for Legal Aid’ (Edinburgh, 2011); Available at:  (last accessed: 2/10/2014).

[4] Law Society of Scotland, ‘Legal Assistance in Scotland: Fit for the 21st Century - Discussion Paper’, Available at: (last accessed: 2/10/2014).

[5] Ibid. 39.

[6] Ibid.

[7] Third Force News, ‘Citizens Advice Scotland Tackling 1million Issues A Year’ (17th April 2017) available at: (last accessed: 2/10/2014).

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