History of legal aid
Legal aid along the lines we now think of it was first introduced in Scotland in October 1950. At first, this was only for civil cases in the Court of Session and the sheriff courts. In 1964, legal aid for criminal proceedings followed.
Before 1950, solicitors and advocates voluntarily gave free legal assistance to people admitted to the “Poor’s Roll”, which came into being in 1424.
“and gif there bee onie pure creature, for faulte of cunning, or expenses, that cannot, nor may not follow his cause, the King for the love of GOD, sall ordain the judge to purwey and get a leill and a wise Advocate, to follow sik pure creatures causes”
In 1587, the Scots Parliament passed an Act that gave
“quhatsumever lieges of this Realme accused of treason, or for quatsumever crime… full libertie to provide himselfe of Advocates and Praeloquutoures, in competent numbers to defend his life, honour and land, against quhatsumever accusation”.
The legal profession accepted this as a duty to poor prisoners.
The Poor’s Roll remained the basis for providing free legal assistance, with various refinements over the centuries, until the 20 th century.
In 1937, the “Committee on Poor Persons’ Representation in Scotland” recommended, among other things, that
- legal aid become the responsibility of the General Council of Solicitors, with a grant from the state
- there should be a “Public Defensor” in the police courts
- sheriffs and judges should grant legal aid in the criminal courts.
It was some time before anything came of these recommendations.
By 1950, major changes in social conditions following the two world wars meant there was a lot more business in the courts. The Poor’s Roll arrangements were no longer satisfactory, and the system needed overhauling. There had been changes to the arrangements in England and a committee was appointed to set up a similar scheme in Scotland.
As a result, the Legal Aid and Solicitors (Scotland) Act 1949 became law. It introduced
- civil legal aid schemes in the sheriff courts and Court of Session
- criminal legal aid (although introducing this met with problems in practice, and it was delayed until 1964)
- the advice and assistance schemes (although again, these only came about some years later).
Civil legal aid came first. Under the Act, the Law Society was responsible for setting up a central committee to manage the civil legal aid scheme. Twenty-one local committees were to deal with applications arising in their areas, and a separate Supreme Court Committee was to deal with cases in the Court of Session. They had to decide whether applicants had a legal basis for their cases, and it was reasonable to give them legal aid – that is, for them to receive public funds to raise or defend court proceedings.
The National Assistance Board assessed whether applicants were financially eligible. Then, legal aid was free to anyone whose income, after allowing for various living costs, was £156 or less a year - £3 a week. That limit is now £2,902 – about £56 a week.
Solicitors and counsel received 85% of the fees fixed by the auditor of the relevant court for their legal aid work. This meant they were subsidising the scheme by 15% - this later went down to 10%. The Government abolished this automatic deduction in 1984, but introduced new rates of pay for legal aid cases, which were about 10% lower than the rates for privately funded cases.
In 1964, under the Criminal Justice (Scotland) Act 1963, criminal legal aid became available in the High Court and sheriff courts. Then in 1975, further legislation extended it to the district courts.
In 1972, the Legal Advice and Assistance Act 1972 introduced a new comprehensive scheme of advice and assistance for matters of Scots law.
The Law Society continued to be responsible for managing legal aid for 37 years. In April 1987, the Scottish Legal Aid Board came into being, and took over responsibility for
- deciding whether to grant civil and criminal legal aid applications
- examining and paying accounts
- advising the Secretary of State for Scotland
- a new scheme of assistance by way of representation ( ABWOR).
The courts remained responsible for granting solemn criminal legal aid applications
Since then, there have been further changes, some of the most significant being
- the introduction, in 1998, of a code of practice for criminal legal assistance, and registration for solicitors carrying out that work
- a pilot scheme of public defence solicitors, initially in Edinburgh but extending in 2004 to Glasgow and Inverness
- a quality assurance scheme for civil legal aid, incorporating registration and a “peer review” of solicitors’ files to ensure that they are meeting quality standards
- pilot schemes to look at and test different models for delivering and planning advice services.
The outcomes of a strategic review of legal aid have just been published, and more changes are likely to follow.
A few facts and figures
In the first full year of the legal aid scheme (1952), the Law Society made about 4,400 grants of civil legal assistance.
- In 1976, they granted 14,426 civil legal aid applications, and 25,825 grants of criminal legal aid, and 46,657 grants of advice and assistance were made. (Figures for civil legal aid include “emergency” applications; the figures for grants made after 1987 do not.)
- By 1987 (the last year the Society ran the scheme) this had risen to 19,629 civil cases, 67,460 criminal cases, and 170,596 grants of advice and assistance.
- In 2004, SLAB granted 12,322 civil legal aid applications, grants of criminal legal aid reached 87,955, and solicitors granted advice and assistance in 303,019 cases.
In 1952, just under £ 80,000 was spent on legal aid.
- By 1976, spending had risen to nearly £5 million.
- By 1987, it was over £47 million.
- By 2004, it had risen to £146 million.