Legal aid is help towards the costs of legal advice and representation, for those who qualify, paid for out of public funds. It is designed to help individuals on low and modest incomes gain access to the legal system.
Legal aid may be free, or someone may have to pay towards the cost of their case, for example through paying a contribution or from the money or property that they win or keep as a result of their legal action. Legal aid is accessed through a solicitor.
There are two main types of legal aid help: advice and assistance and legal aid. Together these are called legal assistance.
- Advice and assistance covers a wide range of matters, so long as they are matters of Scots law. It pays for advice from a solicitor, but apart from a few exceptions under assistance by way of representation (ABWOR), it will not cover “representation” – that is, putting the case in court.
- Legal aid provides funding for a solicitor to put the case in court and some tribunals. It covers the preparation work, as well as the hearing itself, and can provide funding for advocates, experts and other costs. (Cases often begin with advice and assistance, and legal aid may be the next step if necessary).
The main types of case that advice and assistance and legal aid can help with are:
- Civil cases – such as divorce and other matters affecting family and children, or actions for compensation after an accident or medical negligence.
- Criminal cases – help, advice and representation for someone charged with a criminal offence or needing advice about a criminal matter.
- Children’s cases - under the Children (Scotland) Act 1995, which helps to make sure children are protected and supervised. Legal aid also funds appeals against decisions of children’s hearings.
Providing free legal assistance in Scotland is based on the Poor’s Roll of 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” This was reinforced by an 1587 Act of the Scots Parliament: “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 history of legal aid in ScotlandEdit
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, the Board 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.
NFORMATION FOR THE PUBLIC
For information on applying for legal aid, visit our section getting legal help. The links below will take you to pdf versions of our leaflets.
- 1 Guidance for opponents in civil legal aid cases
- 2 A guide to civil legal aid - (Version effective 12th April 2010. This version is only available as a pdf on our website, not as a printed copy. A new version available in print will be made avaialble shortly.)
- 3 Criminal legal assistance if you are in custody
- 4 Criminal legal assistance if you are not in custody
- 5 Civil legal aid – what you may have to pay (Version effective 12th April 2010. This version is only available as a pdf on our website, not as a printed copy. A new version available in print will be made avaialble shortly.)
- Legal aid for children - for cases involving civil, criminal or children's legal assistance
- Complaints and comments about the Scottish Legal Aid Board
- Civil legal aid - information for applicants (Version effective 12th April 2010. This version is only available as a pdf on our website, not as a printed copy. A new version available in print will be made avaialble shortly.)
- Access to information
- If you would like the leaflet in another language or format, please give us details.
- Our service standards tell you the level of service you can expect from us, including how long it will take us to do things.
INFORMATION ABOUT THE BOARD - CORPORATE PUBLICATIONS
- Read our Annual Reports, including full annual accounts.
- Also read our Corporate Plan 2010-2011(pdf) or visit the Corporate Plan archive listing.
- Find out about our Equality work
- We also publish a wide range of other information about our work. You can easily access this in our Access to Information section, by using our A - Z listing of published information.
Logos: These are in the highest resolution formats available. Please note that there are two types of logo. Solicitor firms should use the "Legal aid" logos only. Partner organisations may require the "Board logo" types.
- Board logo colour v1
- Board logo colour v2
- Board logo - black and white
- Legal aid logo v1
- Legal aid logo v2
MATERIALS FOR THE LEGAL PROFESSION
- Scottish Legal Aid Handbook
- Keycard, category codes card, equality card
- The Recorder
- Briefing note for sheriffs on children's legal aid
- Archive materials
ORDERING PRINTED PUBLICATIONS
You can get FREE supplies of printed copies of our leaflets, from our printers Stewarts. (Access to information and Our service standards are only available from our website to download). Stewarts' contact details are: Fax: 01506 460 129 Tel: 01506 405 480
Postal address: 1 Lister Road, Kirkton Campus, Livingston EH54 7BL.
Please print off the order form in the link, fill it out and fax direct to our printers ORDER FORM.
If you want a single printed copy of any of our leaflets, phone our Legal Aid Helpline on 0845 122 8686. It is open 7 days a week 7am to 11pm.
If you wish to order any printed publications (apart from leaflets, and forms for the profession), please contact our Communications Office with your request:
Mail to : Communications, Scottish Legal Aid Board
Postal address: 44 Drumsheugh Gardens, Edinburgh EH3 7SW
DX address: DX ED555250 EDINBURGH 30
Legal Post address: LP2 EDINBURGH 7
or telephone 0131 240 1985 Please note that for training and monitoring purposes your call may be recorded.
or e-mail your details to:firstname.lastname@example.org