THE future of legal aid has been a preoccupation for Law Society of Scotland presidents for a number of years, but for the current one it is personal.
Having taken over from Alison Atack in May, John Mulholland is the first president with a background in criminal law to hold the presidency since former procurator fiscal Cameron Ritchie filled the role between 2011 and 2012.
As a defence solicitor rather than a prosecutor, though, he is acutely aware of the forces that led the Scottish Government to last year review how legal aid is funded and provided – and how those working in the sector would like to see things proceed.
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“At the moment the Government is consulting on what the future of legal aid should be; we’re in a consultation process and trying to imagine how a new system of legal aid might work,” he said.
“On the back of the review this is the space we’re in to try to decide what the best way forward is.
“The members want a proper system that’s properly paid and which delivers the best service for the clients. That’s what it’s about.”
Following the Government review, which was led by then Carnegie UK Trust chief executive Martyn Evans and reported in March 2018, legal aid lawyers were dismayed that no increase to fee levels had been recommended.
Since then an 11-strong panel has been set up to loom at how the payments system might be overhauled, something Mr Mulholland said he hopes there will be “early progress” on.
“The system is not perfect – no system is – and the fee structure and level of fees are one of the things we think could be improved,” he said.
“The Government has set up a panel to look at fees and we hope there will be early progress on that - we should have a clearer picture of where that is going this month.
“The most important thing is that we have a clear dialogue and we can put forward where we think things could be.”
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While he believes that finding a solution that works for everyone currently working in the legal aid sector is vital, Mr Mulholland said it is just as important for those thinking about coming into the profession too.
“The number of young solicitors coming through wanting to do criminal work has reduced significantly,” he said, noting that the fact fee levels have not been increased “is a negative message that students are getting very early on”.
“On one view that’s disproportionate because if you can get to the end of the traineeship and start practising there are a lot of benefits,” he said.
“But when you are incurring debt [as a student] you need to get to a position where you are making money so I can understand [the reluctance].”
Although he hopes there will be some movement on the fees issue before the end of his one-year term, Mr Mulholland said that as any wider-reaching reforms would require legislation the matter may spill over into the presidential year of current vice-president Amanda Millar.
It is likely that the resolution of another major review conducted for the Government – NHS24 chairman Esther Roberton’s review of legal services regulation – will do the same.
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After Ms Roberton suggested replacing the five bodies that currently regulate the Scottish legal profession with just one – something the Law Society voiced opposition to - the Scottish Government committed to a public consultation on the plan in June. Mr Mulholland conceded that, as that has not yet launched, it could take some time to conclude.
“We’re in the process of trying to identify a proportionate way for how the profession could be regulated,” he said.
“Again, I’d hope to have some resolution for that within my year, but that will also require primary legislation if there was to be a significant change to the regime.”
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