WHEN Carnegie UK Trust chief executive Martyn Evans last week unveiled his much anticipated report into the future of legal aid it received broad support from institutions operating in the sector.

The Vice-Dean of the Faculty of Advocates, Angela Grahame QC, said the review “reinforces the scope and the merits of Scotland’s legal aid system” while Law Society of Scotland president Graham Matthews said the report was “no nonsense” and “common sense”.

The Scottish Legal Aid Board, which will be given wider responsibilities and become the Scottish Legal Assistance Authority if Mr Evans’s recommendations are implemented by the Scottish Government, noted that the report “recognises that Scotland has a legal aid system that is wide in scope, broad in eligibility, well-funded in international terms and supported by hundreds of committed and hard-working professionals”.

However, in proposing a shift away from a system of legal aid towards one of legal assistance, Mr Evans made it clear that he envisages a future where the public play a much more active role in asserting their legal rights.

“Giving individuals substantive legal rights is of little value if they lack the capacity and the means to enforce them or to participate effectively in the justice system. Assisting citizens to realise their legal rights contributes to a just and fair society,” he said.

Unsurprisingly, the main thrust of report - which Mr Evans was at pains to reiterate - was that he could find no justification to recommend a “general increase in legal aid fees”, despite significant lobbying from legal aid practitioners in favour of a rise.

“Fees for legal aid are a highly contentious issue and I heard many views on the topic,” Mr Evans said. “It proved impossible to find robust sources of persuasive evidence for a general increase in fees.”

This has not gone down well with legal aid lawyers, who have long argued that the fees they receive for doing publicly funded legal work have not increased since the 1990s.

“It’s extremely disappointing but not hugely surprising,” said William McIntyre of Falkirk firm Russel & Aitken. “When you hear that an increase in legal aid can’t be justified it’s hard not to compare that to other pay increases.

“Is there another profession paid by the Government that hasn’t seen an increase in income since 1992?

“I would like to know what would be required for an increase in legal aid to be justified.”

For Mr Evans, however, “the claim that there has been no uprating of legal aid fees since 1992” is “misleading as it relates only to detailed criminal fees set out in the 1992 regulations”.

“The 1992 rate applies to around five per cent of all income from criminal legal aid fees, and this will diminish further as criminal fee reforms are taken forward,” he said. “The remaining 95 per cent of fees have been subject to several changes since 2004.”

While he used this as justification for ruling out an across-the-board increase, Mr Evans conceded that “there may well be something in the case that some fees, in some circumstances and in some areas should be adjusted”.

To determine whether this is the case, Mr Evans is recommending a “strictly evidence-based” review of how fees are set. He noted that this would prove “highly intrusive” to private practice lawyers doing legal aid work as it would require them to make their full financial and workload data available for scrutiny.

Ian Moir, convenor of the Law Society of Scotland’s criminal legal aid committee, said this would be a price worth paying if it led to a system where fees, once set, were given the opportunity to then rise with inflation.

“I am disappointed that the review stopped short of recommending immediate increases on fee levels but am encouraged that an urgent independent review of fees is recommended,” he said.

“I believe the case for significant increases to reverse years of real terms cuts can readily be made.

“I also welcome the fact the review accepts my proposal of regular increases once a suitable increase has been put in place to avoid slipping back into similar difficulties in the future.”

For Leanne McQuillan, president of Edinburgh Bar Association, that review cannot come quickly enough because while Mr Evans could find no justification for raising fees she said the experience of EBA’s members paints a very different picture.

At the end of last year the association was the first in Scotland to withdraw from SLAB’s police station duty scheme, with many following suit in a protest over fee levels. Ms McQuillan said that if no action is taken members may decide to give up legal aid work altogether.

“It is of significant concern that, despite the resources and evidence available to Mr Evans, he could find nothing to persuade him that there should be an increase in legal aid fees,” she said.

“There are significant flaws in the methodology adopted by him and those flaws are readily identified. To give one example, whilst he has identified that 96 per cent of cases in the criminal courts are summary, he ignores the fact that, in real terms, solicitors now are compelled to work for little over half at best what they were paid at the time summary fixed fees were introduced.

“In less than a year since the Edinburgh Bar Association submitted its evidence to the review, a significant number of solicitors have left criminal defence altogether. Without immediate attention, that trend will continue.

“As an association, our numbers have reached such a depleted level that we will now be conducting an urgent review in order to determine whether we can continue to offer the breadth of service which we have done until now.”