Contrasting fortunes for law firms in a year of upheaval
Commercial outfits enjoy rising profits – but the legal aid crisis deepens
In some ways 2022 has been kind to the legal sector. As war raged in Ukraine and the cost of living continued to bite at home, the largest firms in Scotland seemed to be immune from the turmoil. Leading commercial outfits Brodies and Burness Paull, for example, both saw turnover and profits soar, and both were able to pay bonuses to their staff as a result.
When he announced a 19.5 per cent rise in turnover and 18 per cent hike in profits in July, Brodies managing partner Nick Scott said that while he was “aware of the challenges” that lay ahead, he was also “excited by the opportunities”. Similarly, Burness Paull chairman Peter Lawson, whose firm posted a nine per cent rise in turnover and seven per cent increase in profit- ability, hailed a “strong set of results” in the face of “economic headwinds” and a “challenging environment for the entire business community”.
Things were not so rosy at the other end of the profession, however. Firms that carry out publicly-funded legal work have long been protesting about the remuneration they receive, arguing it is not enough to make a living from and staging court walk-outs to draw attention to their cause.
Some money has been found in recent years – the then community safety minister Ash Regan announced a three per cent fee uplift late in 2018, former justice secretary Humza Yousaf topped that up with a further 10 per cent in 2020, and Regan unveiled another £11 million in July. But years of underfunding have taken their toll, with the number of legal aid lawyers this year falling below 1,000 for the first time ever and an October survey from the Edinburgh Bar Association finding that the vast majority of its members now feel overworked, undervalued and burnt out.
New community safety minster Elena Whitham will have to get to grips with the legal aid dispute at speed and oversee a proposed overhaul of the way the legal profession is regulated.
The knock-on impact is that parts of Scotland are now deemed to be legal aid deserts, with social campaigner Darren McGarvey teaming up with the Law Society of Scotland in October to highlight the effect on the country’s poorest communities. Analysis from the Law Society found that the 139 most deprived communities in Scotland share just 29 civil legal aid firms while there are no legal aid firms at all in 122 of the 139 areas.
“In a nation that prides itself on progressive social values, these figures should act as a stark warning,” McGarvey said. “Those who are already most disadvantaged are having their last line of defence pulled away from them. The Scottish Government has let inflation quietly chip away at legal aid fees over the last two de- cades – now we need to catch up.”
Regan had been the profession’s point of contact on the issue since being appointed as community safety minster in 2018 and, while her refusal to meet every pay demand did not prove popular, she earned a grudging respect from those she negotiated with. Legal aid campaigners are going to have to build relations with a new minister now, however, after Regan was forced to resign from government in October after deciding to vote against its controversial reforms of the Gender Recognition Act. Her replacement, Elena Whitham, entered parliament for the first time last year but will have to get to grips with the legal aid dispute at speed. She will also have to oversee a proposed overhaul of the way the legal profession is regulated that has been in the works for many years but, despite the government publishing a consultation analysis earlier this year, currently seems no closer to becoming a reality.
“Disadvantaged are having their last line of defence pulled away from them” – Darren McGarvey
In the courts, all eyes have been on Holyrood and the Scottish Parliament’s chief legal adviser in particular, after First Minister Nicola Sturgeon announced her intention to hold a second independence referendum next year whether Westminster gives her its blessing or not. Lord Advocate Dorothy Bain KC could not say for sure whether that would be legal so asked the UK Supreme Court to intervene.
Both she and UK Government counsel Sir James Eadie KC made their cases to the court in October, with Bain arguing it was a “festering issue” that Supreme Court justices are duty bound to resolve and Eadie arguing the matter should simply be dismissed out of hand.
The court ruled on November 23 that the Scottish Parliament cannot legislate for a referendum as the power to do so is reserved.
But with First Minister Nicola Sturgeon responding that the decision “exposes as myth any notion of the UK as a voluntary partnership and makes the case for Indy” the judgment looks unlikely to be the final word on the matter.