More than a third of legal aid lawyers in Scotland are due to retire in the next decade, leading to fears that the current crisis in criminal law could be “unsolvable.”

One senior legal figure warned that there could soon be an “imminent wasteland in terms of criminal solicitors".

Law Society of Scotland analysis of Scottish Legal Aid Board (SLAB) data, shows there are currently 911 solicitors registered for legal aid, down from 1,084 in 2020, a 16% drop. 

However, those figures mask a much bigger problem. 

According to the Scottish Solicitors Bar Association (SSBA), of those, only 791 made a claim for at least one criminal legal aid certificate of any sort in the last year.  And even then, only 608 applied for a summary legal aid certificate, needed to conduct a trial. 

But just 124 applied for less than seven certificates.

Which, says the SSBA, means just 484 practitioners "doing criminal work at a meaningful level."

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Anecdotally, lawyers spoken to by The Herald said many of those would typically be older, more experienced. 

That is backed up by demographic data gathered by the Law Society and shared with The Herald, which shows that the number of solicitors registered for legal aid aged over 40 outnumber those under 40 by two to one. 

By way of comparison, the ratio across the entire profession is closer to one to one. 

Of the 911 registered, some 216 are aged between 56-65, another 72 are aged between 66 and 70, while there are 29 older than 71. 

That could mean 317 retiring within the next decade. 

Matthew McGovern, a partner with McGovern Reid, told The Herald: "The Government is reluctant to accept that there's a problem, never mind come forward with solutions or work with the profession to solve the problem.

"I think the breaking point is going to be the next parliament because the demographics are of particular concern. It's largely older men doing it, who have done the job for 30-plus years and do it with tremendous skill.

"But there are not the same numbers coming through to support the profession and once the older lawyers retire, there is going to be a very significant issue with most vulnerable people in our society being able to access justice."

“I think it's now unsolvable," he added. "I think it's now so bad that there will not be a solution, or even a measure or a series of measures that will be brought forward by the government to solve the problem."

(Image: Colin Mearns/NQ)

The figures do reveal a significant surge in the number of younger practitioners, largely down to the success of the legal aid traineeship scheme, an initiative delivered by Humza Yousaf in 2020 when he was Justice Secretary.

In 2020, there were just 17 solicitors aged 20-25 registered for criminal legal aid, roughly 10% of the total.

But after the government spent  £1 million to fund up to 40 trainees in legal aid firms,  this had jumped to 51 in 2024, around 19%. 

However, it was a one-off payment and has never been repeated. 

The Law Society points out that when you account for all solicitors aged between 20 and 40, there is little change over the years, with the number increasing from 33% to 36%. 

Lawyers spoken to by The Herald say that one reason for graduates staying away from legal aid work is that they simply cannot compete with commercial firms in other areas of law offering significantly higher wages. 

Nor, they say, can they compete with the taxpayer-funded Crown Office and Procurator Fiscal Service and the Public Defence Solicitor's Office, who offer wages far over anything the private sector can. 

PDSO first-year trainees can expect a salary of £31,000, rising to £34,210 in year two, some 30% above the Law Society recommended rates of £23,675 and £27,480. 

Mr McGovern said the Scottish Government needed to be “more realistic about the funding".

For a summary case, the legal aid fee is £572, and that can be expected to cover a pleading diet, a case management hearing, a pre-intermediate diet meeting, an intermediate diet and then a trial diet.

“When I started at Hamilton Sheriff Court seven years ago, it was just a pleading diet and intermediate diet and a trial diet,” Mr McGovern continued. “The work's become increasingly complicated, and the funding hasn't increased in line with the increased complexity of the work.” 

“The job will become impossible,” Ian Moir, criminal defence solicitor with Glasgow law firm Moir and Sweeney said. 

“We won’t be able to meet the expectation of the court with the resources that we have.”

In its most recent annual report, SLAB showed the total cost of legal aid increased by 12% on the previous year, to £151 million.

This financial year, it is expected to rise to £171m. 

Funding for legal aid is “demand-led” which means ministers must make funding available to pay for services covered by legal aid schemes, even if this is higher than expected.

SLAB’s most recent annual report showed that while there were 176,500 grants of legal assistance made in 2023-24, up by 9,700 on the previous year, only 134,900 cases were paid, a 1% decrease.

Most of those, some 86,900 were for criminal assistance. Another 41,400 were for civil legal aid and the other 6,600 for children’s legal assistance. 

Dr Claire Methven O’Brien, a member of the Scottish Human Rights Commission, said the government needed to come up with realistic measures "to reverse the current trend of decline".

She said: “The presumption of innocence is a bedrock legal and human rights principle that depends in practice on timely access to effective legal representation.

“The right to free legal aid in criminal cases in Scotland is centuries old. Besides jeopardising fair trial rights for the accused, its erosion damages victims’ rights, for instance, due to delayed proceedings, and can increase net costs to the public via extended pre-trial detention periods and appeals processes.

“A concerted effort is urgently needed to address the issues that have now been highlighted by criminal defence practitioners for many years."

Pat Thom, the Vice President of the Law Society of Scotland, said the government needed to see legal aid as an investment. 

She pointed to work carried out by the Law Society of Northern Ireland earlier this year which found that every £1 invested in civil legal aid generates £4.55 in social value, while every £1 invested in criminal legal aid generates £12.71 in social value.

“That's something the government should be paying attention to. I mean, goodness gracious, if we can spend money to save money surely, that's something to be thinking about," Ms Thom said. 

Roddy Dunlop KC, the Dean of the Faculty of Advocates, told The Herald the Scottish Government could not be “unaware of the concerns” from lawyers, “given how often they have been expressed.”

“But they are not acting on those concerns, and doubtless, because they don't feel they have the money to do so, and that they think other matters need to be prioritised. 

“And I readily understand the financial pressures that they're under at the moment, but the simple fact of the matter is that criminal legal aid at a solicitor level has been in crisis for years now and you've got what's looking like an imminent wasteland in terms of criminal solicitors.”

Mr Dunlop said he had raised his concerns in 2022 with the then Minister for Community Safety, Elena Whitham. 

That prompted the minister to set up a short-life working group on the future of the legal profession, jointly chaired by the minister, the Law Society of Scotland, and the Faculty of Advocates. 

The group met three times in the course of 2023 but nothing has happened since. 

“While a number of other issues were were being raised about improving diversity, improving access, all of which are important, the most important thing, the most pressing thing that was raised by all of the relevant stakeholders of those meetings were properly financing the legal aid system, and it just hasn't it hasn't happened,” Mr Dunlop said.

“No change has been made, and we're just seeing people leaving that part of the profession in droves.”

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Ministers, he added, know this is a problem. “They know it's a growing problem. They know it's coming down the pipe, and we need an answer.”

Responding to Mr Dunlop's comments, a Scottish Government spokesperson said: "The Future of the Legal Profession Working Group has met three times and a report of those meetings will be finalised shortly. 

“The group is undertaking an evidence-based review of the key challenges facing the criminal law workforce in the short/medium and longer term. It proposes solutions to increase diversity, capacity and equality of opportunity within the legal profession.

“Once group members have considered the contents of that report, the Scottish Government will arrange to meet the working group again.”