Scots Legal Aid ‘a £161Million public subsidy for legal profession’ as EU report reveals judges salaries & lawyers legal aid claims come before public's access to justice

EU report reveals Scots justice is more about lawyers & judges making money than delivering justice. A REPORT published by the European Commission for the Efficiency of Justice and featured in an article in Scotland’s Sunday Mail newspaper has revealed Scottish lawyers take tens of millions of pounds more in publicly funded legal aid representing the Scots population of just over five million people than lawyers working Italy, which has a population of sixty million, twelve times greater than that of Scotland.

The figures show that Scots lawyers ‘earned’ around ONE HUNDRED & SIXTY MILLION POUNDS of legal aid in 2010 while their Italian counterparts working for a much larger client base only took £100million, making the Scots legal aid bill, running at a cost of £31 a head, the most expensive in Europe in terms of population. The grim figures show that Scots legal aid is working out at a cost of £31 a head, with little in the way of access to justice to show for it.

The report, available on the EU website HERE (pdf) or online here : The European Commission for the Efficiency of Justice Report on Evaluation of European Judicial Systems also reveals Scots judges are paid the highest in Europe with Scottish Sheriffs taking home an average taxpayer funded salary of a staggering £120,000, while others on Scotland’s judicial benches take up to £200,000 a year plus expenses.

The eye watering figures show Scottish judges are earning up to 5.2 times the average salary of workers in Scotland, even though our justice system, both criminal & civil is now internationally famed as little more than a complete mess, branded a justice system akin to a Banana Republic by Hans Kochler, the UN Observer to the Lockerbie Trial.

Scotland’s civil justice system has also come in for repeated criticism in the 2009 Civil Courts Review, being described by the current Lord President, Lord Gill, in a speech reproduced in full here  as unfit for purpose, “Victorian”, out of date and that it is “failing society” yet despite Lord Gill’s attack on the credibility of Scots justice, little real reform has taken place in the past four years since he made his scathing remarks.

Among other issues covered, the EU report confirms there is a significant failure of self regulation of Scotland’s legal profession, where the report showed that Scotland disciplined only a handful of lawyers compared to countries of similar size, reporting that only three solicitors were struck off and thirteen reprimanded in 2010 while Denmark, a country with a similar population to Scotland took action against 309 lawyers, striking off six while another 145 were fined. Even Finland, with a similar sized population to Scotland manage to sanction 99 lawyers, leaving no doubt Scotland’s lawyers get away with looking after their own too much.

Here is the Sunday Mail's feature on how the Scots legal system is failing society, milking hundreds of millions of pounds of publicly funded legal aid while our judges take home huge salaries for presiding over our crumbling courts system … inescapable facts which show Scots justice does not translate into increased access to justice for ordinary Scots.

SCOTTISH JUSTICE IN THE DOCK : Scotland's lawyers earn more from Legal Aid than whole of Italy, shock report reveals

By Russell Findlay Sunday Mail 30 September 2012

THE European Commission report reveals that Legal Aid in Scotland cost 203million euros (£161million) in 2010 - more than in Italy, which has a population of 61million.

SCOTS lawyers collected more taxpayers’ cash for Legal Aid than their counterparts in Italy – a country 12 times the size.

A European Commission report reveals that Legal Aid in Scotland cost 203million euros (£161million) in 2010 – around 39 euros, or £31, for every one of our 5.2million people.

Lawyers in Italy, which has a population of 61million, got just £100million of public cash – £1.50 per person.

The 450-page Brussels report also found that Denmark, with 5.6million people, paid its lawyers only 88million euros (£70million).

And in Belgium – population 10.9million – legal aid cost 75million euros (£59million).

The revelations, in a 450-page report by the European Commission for the Efficiency of Justice – came as the Scottish Legal Aid Board banned three lawyers from claiming cash for criminal cases.

We can reveal that Gerard Tierney, Massimo D’Alvito and Andrew Brophy, of Blantyre, Lanarkshire, breached the board’s code of practice. Tierney and D’Alvito have been reported to the Crown Office, who will decide whether to prosecute.

The ban also extends to Tierney’s firm G Tierney & Co, of Auchinleck, Ayrshire, who have raked in £610,500 in Legal Aid over three years, and Edinburgh firm Massimo D’Alvito Defence Lawyers.

The European report looked at 47 criminal justice systems across the continent.

It found the cost per person of Legal Aid in Scotland was third-highest – behind only Northern Ireland and England and Wales. The cost per person was 53.5 euros in Northern Ireland and 45.7 euros in England and Wales.

The findings led to calls for a radical overhaul of Legal Aid.

Central Ayrshire Labour MP Brian Donohoe said: “It seems major organised criminals and terror suspects qualify for unlimited Legal Aid, yet I have constituents who don’t get a penny simply because they have a few thousand pounds of savings.

“The system in Scotland and the rest of the UK is out of control.”

Legal blogger Peter Cherbi added: “Legal Aid is no longer about access to justice for the poor, but a state subsidy for the legal profession – and one they don’t seem keen on talking about.”

The Sunday Mail has exposed a series of rogue lawyers banned from claiming Legal Aid. But none of the 14 reported to prosecutors was put in the dock, prompting claims that Scotland’s legal self-regulation system protects lawyers.

Kilmarnock solicitor Niels Lockhart, who took £600,000 in Legal Aid in just two years, was found to have made “unnecessary and excessive” claims. The Legal Aid board withdrew their complaint to the Law Society after he agreed to stop claiming.

Reacting to the Brussels report, the Scottish Legal Aid Board said: “Across Europe, there are substantial differences between judicial systems and very different approaches to the provision of legal aid and its cost.

“The Scottish system is highly regarded internationally for the efforts made to ensure access to justice.

“The Scottish Government’s budget allocation for the Legal Aid Fund has reduced significantly in 2011-12 and is planned to reduce further in future years.”

Justice Secretary Kenny MacAskill hopes to cut the Legal Aid bill by making criminals pay some of their costs. The planned move, outlined in a Holyrood Bill, could save taxpayers around £3.9million.

• The Euro study showed that Scotland disciplined a tiny number of lawyers compared to countries of similar size.

Just three were struck off and 13 reprimanded in Scotland in 2010.

Denmark, with a similar population, took action against 309 lawyers, with six struck off and 145 fined. And in Finland, also close in size, 99 rogue solicitors were sanctioned.

Critics blame the Law Society of Scotland’s dual role of representing lawyers while also acting as regulator.

• A large proportion of alleged criminals reported to prosecutors in Scotland are not being put in the dock.

Of 265,830 cases sent to the Crown Office, only 41.7 per cent were brought to court. In England and Wales, 90.6 per cent of all cases resulted in court action.

The difference is thought to be partly due to Scotland’s recent introduction of spot fines and fiscal fines for what the authorities insist are more minor offences.

Critics claim such fines lead to a secret justice system.

• The report reveals that Scotland’s sheriffs top the European pay league.

Researchers compared the wages of lower court judges across Europe.

Our sheriffs, with an average salary of 150,106 euros (£120,000), were number one, ahead of the Irish and Swiss.

Next were sheriffs’ counterparts in England and Wales, who were paid 120,998 euros (£95,000).

Not only were sheriffs the highest-paid, they also topped the table comparing their earnings to the national average. They earned 5.2 times the average Scot’s wage.

Lord Hamilton tells Holyrood £200K salaries for judges are not enough, attacks party litigants for clogging up courts system while praising lawyers

Scotland’s Lord President, Lord Hamilton feels judges should not be subject to a wage freeze. LORD HAMILTON, Scotland’s Lord President who recently announced he is retiring in the summer of 2012 told the Scottish Parliament’s Justice Committee earlier this week that judges salaries are currently so low (from £128,296 for Sheriffs rising to £214,000 for the Lord President himself) the breadline rates of pay are inhibiting recruitment of what the Lord President described as the “best people” from the legal profession to join the bench.

As if the ‘low pay’ of up to £3,800 a week, the lack of accountability to external regulation, and lack of a register of interests were already making life difficult for judges, Lord Hamilton also rounded on unrepresented party litigants for taking up too much time of judges & courts while praising lawyers for being focussed on the legal issues of cases rather than the realities of the situations party litigants find themselves in, often at the hands of the legal profession, public services or vested interests who are all well represented in the courts and in some of the judiciary’s own personal finances, business dealings & relationships.

The judge’s remarks came at a meeting to discuss the Scottish Government’s latest budget and spending review, where like all other public services, the justice system will be expected to bear some of the large public funding cuts caused by the recession and the UK’s multi billion bailout of the banks. The Lord President went onto tell msps the lack of ‘suitable candidates’ for judicial posts, which Lord Hamilton put down to lack of a decent six figure salary & a gold plated guaranteed pension most of the country and the rest of Europe can now only dream of, has already had an impact on Scotland’s justice system where courts are now functioning with a reduced number of judges, the High Court in Scotland already operating with one judge short.

Please Ma’am, can we have some more (Gasp) : Lord Hamilton says there should be more pay & no wage freeze on judges, who earn up to £200K a year (Click image or HERE to watch video)

Asked whether there are concerns about the small rise of salaries for judges, Lord Hamilton said it does concern the judges at all levels. The Lord President said while salaries are determined at a UK level, the senior salaries review board has done a number of reviews and on each occasion recommended increases in judicial salaries just to keep up with inflation. However, as none of the review’s recommendations on raising judicial salaries have been implemented, Lord Hamilton said judges are in real terms being remunerated significantly less than they were five or seven years ago. Along with the pay freeze is the provision of pension provisions which the UK Parliament is currently considering, raising concerns from the judiciary about their pensions, and in turn, giving rise to problems in attracting the “best people” to judicial posts,.

Lord Hamilton said : “One of the problems that we had last year was that there was a competition. But the board (referring to the Judicial Appointments Board), having interviewed some of these persons, found that none of those who applied were suitable for appointment. So we’ve been in a situation where we have been running one judge short for the last year or so.”

The issue of the wages freeze on the judiciary was covered at length in The Herald newspaper, their report can be read here : Fears judges’ pay freeze deterring top candidates and Diary of Injustice has previously reported on the expenses claims of Scotland’s judiciary after FOI requests saw their full publication, here : Expenses claims of Scotland's Judiciary

I doubt any arguments to increase the already huge salaries of the judiciary will gain much sympathy from the rest of the country in these tough financial times, however now the Lord President has raised the issue, it will be interest to see what happens next … perhaps a small little-publicised judicial salary increase, or perhaps as with politicians, the judges will be allowed to claim a little more, and then a little more again on expenses.

Whatever the outcome, if judges are so poor while being paid so much, it is certainly worth bearing in mind members of the judiciary have currently exempted themselves from any register of financial & non financial interests which most public officials are now expected or even required by law to comply with. A campaign to require the judiciary to declare their financial & non financial interests was started by Diary of Injustice in an earlier article here : JUDGE OUR JUDGES : Petition seeks ‘judicial transparency’, asks Westminster require judiciary to ‘declare all’ to a Register of Interests with a petition to the Scottish Parliament still under discussion with Holyrood officials.

The meeting between the head of Scotland’s judiciary along with the Chief Executive of the Scottish Court Service and the members of the Scottish Parliament’s Justice Committee heard concerns on many other issues such as the reforms proposed by the Lord Justice Clerk Lord Gill’s CIVIL COURTS REVIEW, most of which has not been implemented by the current Scottish Government, who are now engaged on ‘a review of the review’.

Lord Hamilton also managed some barbed attacks against party litigants, expressing his concerns about how the growing numbers of party litigants in Scotland’s courts were apparently taking too much of the judiciary’s time on cases. However readers will by now be well aware the time party litigants take in court could be greatly reduced if the judiciary had reacted more positively towards the issue of lay assistance for party litigants in Scottish courts rather than implementing bans on remunerating lay assistants and discouraging a lay assistant knowledge base & service from forming in Scotland for unrepresented court users.

MSPs question Lord Hamilton over increasing numbers of party litigants in Scotland’s Courts due to lack of legal aid & inability to fund legal representation (Click image or HERE to watch video)

On the subject of party litigants, Christine Grahame MSP, who is serving a second term as the Justice Committee’s Convener, asked the Lord President whether he thought the changes in legal aid & economic circumstances for people there many be more party litigants appearing in Scottish courts.

Lord Hamilton replied there were increasing numbers of party litigants in the courts, and said there is a real risk there will be more people who will not be able to get legal aid and therefore more people who will bring cases but who will have no means obtaining representation for these cases.

More people as party litigants in civil courts also means a problem for the fair despatch of the business itself because, the Lord President claimed : “Whatever people may think about lawyers on the whole lawyers are able to concentrate on what the legal issues are in the litigation and lay people are very often unable to see the wood from the trees the relevant from the irrelevant”.

Lord Hamilton further commented that in many cases with party litigants “there is are a mass of complaints being made” which required more judicial application, time & resources to find the nugget to address the problems.

Christine Grahame asked has anyone costed a case presented by a party litigant with the additional costs to the justice system. Lord Hamilton replied he didn't think so and said it would be a difficult exercise to carry out.

The full forty eight minute session of evidence from Lord Hamilton & Eleanor Emberson to the Scottish Parliament’s Justice Committee can be viewed below :

Lord Hamilton gives evidence to the Scottish Parliament’s Justice Committee on budget cuts in the justice system & more (Click image or HERE to watch video, 48mins)

Clearly little changes in the Scottish justice system, where it could well be argued after watching Tuesday’s Justice Committee meeting, prejudice against party litigants & favouritism for the legal profession & vested interests is still well in play with the judiciary, no matter how many Civil Courts Reviews are undertaken and promises of reform continually made & broken.

BACKGROUND TO BROKEN PROMISE OF CIVIL JUSTICE REFORM IN SCOTLAND

The Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Against the background of Lord Gill’s criticisms of Scotland’s “Victorian” civil justice system, in which some cases continue to be heard by judges some fifteen years after they first entered the court system, the current Scottish Government have a poor track record of responding to the many recommendations contained in Lord Gill’s 2009 Civil Courts Review, as I have previously reported, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests & here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’.

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links : Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb) Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb) Synopsis (215Kb)

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review - The story so far