by the University of Strathclyde Law Clinic’s Legal Aid Working Group

The University of Strathclyde Law Clinic exists to plug gaps in legal aid and provide a source of legal advice and representation for those in the community who cannot otherwise access it. We are finding that this pool of people is increasing year on year, and there is certainly no shortage of demand for our service. This results in us turning clients and cases away when we do not have capacity. Third sector and voluntary agencies providing legal services across Scotland find themselves in a similar position.

As the Law Society of Scotland launched its Legal Aid Matters campaign, it stated that:

“Scotland’s legal aid system is under threat, and with access to justice being the cornerstone of a fair society, something needs to be done” 

It is well documented that the number of legal aid solicitors is shrinking year on year, and shockingly, nearly one-third of practitioners are set to retire within the next decade. This decline puts the most vulnerable citizens in our society at an even greater risk. The Society has recognised that without urgent action, there is a real possibility of a complete collapse of the system within 10 years. Here at the Clinic, our students are committed to the idea that the justice system should be available to everyone, not just those with deep pockets. They share their thoughts below:

Human Rights

Student A “Legal aid has been a hot topic in Scottish news in recent months, particularly following reports of a woman who had contacted over 100 law firms but was unable to get legal aid support for divorcing her husband who had assaulted her. This is one of several cases across Scotland demonstrating legal aid’s inaccessibility. This has put Scotland into a sector-wide legal aid crisis, requiring extensive reforms. Legal aid is the foundation of access to justice. Without it, justice risks becoming inaccessible to the poorest and most marginalised members of society. Article 6 of the European Convention on Human Rights states that everyone has the right to a fair and public hearing. However, without the support of a solicitor, how can an individual have a fair hearing when they cannot afford legal support, especially if the opposing party is legally represented?”

Employment Law

Student B: “I think that one overlooked issue is the lack of legal aid support for employment tribunal claims. Claimants are often unrepresented against the opposing party, who is normally represented by an experienced solicitor or advocate. Tribunals were originally designed to be accessible to members of the public who had no legal knowledge. However, over time, the tribunal process has become increasingly complex and adversarial making access to advice and representation for both parties essential. The ‘overriding objective’ set out in Rule 3 of the Employment Tribunal Rules provides that parties should be on an ‘equal footing’ and that proceedings should avoid unnecessary formality. However, when employers are represented by solicitors or advocates and the claimant is not represented at all, how can that balance be maintained? This can be overwhelming for claimants.

Now is the time to consider what support can be given to those going through employment tribunal claims. Unrepresented claimants will often not know how to prepare for a hearing. They may also have difficulty calculating their losses or knowing what questions should be asked. These are real issues that can directly affect the fairness and outcomes of claims. Extending legal aid in a meaningful way to adequately cover this type of action would be a significant step in ensuring access to justice is upheld and that parties are placed on an equal footing. Employer/employee relationships are inherently imbalanced. However, this imbalance should be removed from the employment tribunal process through a robust and accessible legal aid system.”

Simple Procedure and Ordinary Cause

Student C: “At the Law Clinic, we see many people struggling with the Simple Procedure process. Simple Procedure is meant to provide lay members of the public with a more accessible method of resolving lower-value civil claims. However, the process is still challenging for many. The Law Clinic’s Online Project is valuable in this regard as it provides one-off written advice letters to clients going through or wishing to understand the Simple Procedure process. We use our online service to give clients advice on a range of procedural concerns about the process, as well as advising them on administrative issues, and responding to queries about the practicalities of self-representation.

Beyond this, however, many clients have claims that are valued well over the £5,000 limit for Simple Procedure. This means that if they pursue their claim, then they must do so under Ordinary Cause. Ordinary Cause is more complicated than Simple Procedure. Whilst technically clients can represent themselves, the process can be incredibly complex for those who do not have legal experience. Unfortunately, the Law Clinic is not able to offer representation or assistance with Ordinary Cause cases. This has resulted in us having to turn clients away or offer only very limited advice.”

Gender-based Violence

Student D “The Scottish Women’s Rights Centre (SWRC) is a collaboration between Strathclyde Law Clinic, Rape Crisis Scotland and Just Right Scotland. The centre provides access to justice for women experiencing gender-based violence. These essential services are funded by the Scottish Government and administered by the Scottish Legal Aid Board.  

A report published by the organisation last year explored, amongst other things, the impact of the legal aid crisis on SWRC service-users. It found an increasing number of survivors of gender-based violence are unable to find solicitors to take on their case, with some having to contact up to 50 solicitors. The organisation noted an increase in self-representation in civil cases as a result.

Where legal aid is not available, victims can privately fund legal representation. However, the cost of doing so is prohibitive. This means that many will opt for self-representation. Self-representation is very challenging due to the nature, complexity and duration of such cases.

The means-tested requirement for financial eligibility determines whether someone qualifies for legal aid. In Scotland, the individual must provide evidence of their income, savings and assets to prove they cannot meet private fees of solicitors. However, if an individual exceeds slightly by even one pound, they do not qualify. If they do qualify, they still need to find a solicitor who will accept legal aid, which is becoming increasingly difficult.”

You can read the SWRC report here.

Help the Law Society of Scotland protect the rights of the most disadvantaged and keep legal aid on the political agenda by supporting the #LegalAidMatters campaign.

You can show support by signing the pledge or by downloading the asset pack to share on social media. You can also speak up by using the ready-to-go template to send a letter to your MSP and urge them to prioritise legal aid here.htts://www.lawscot.org.uk/members/journal-hub/articles/legal-aid-matters/