This week, Govan Law Centre (GLC) wrote to the Scottish Parliament’s Delegated Powers and Law Reform Committee to recommend rejection of a draft Scottish statutory instrument that would effectively restrict the civil legal aid available for guardianship cases for adults with legal incapacity. A copy of GLC’s letter is reproduced in full below.
“Dear Convenor and Members of the Delegated Powers and Law Reform Committee,
I am contacting you to highlight Govan Law Centre’s serious concerns regarding the Scottish Government and Scottish Legal Aid Board’s proposal to change the feeing basis for Adults with Incapacity cases, as I note that draft Regulations are to be laid before your Committee in December.
As you will be aware, the consultation in respect of these proposed changes closed on 09 November 2025, and I attach a copy of Govan Law Centre’s consultation response in full. We have also shared our concerns with the wider profession in an article published on 11 November 2025 in the Scottish Legal News, which can be viewed here: Opinion: Proposed legal aid changes would jeopardise adults with incapacity | Scottish Legal News. I would urge the Committee to consider both our consultation response and the article in full. However, I include a brief summary of the issues below.
Flawed Nature of Current Proposals
- Rushed and Ill-Thought Out: The Scottish Legal Aid Board’s proposals are considered rushed, lacking sufficient detail, and ill-conceived, with little time for proper consultation.
- Inadequate Fee Levels: The proposed block fees do not accurately reflect the complexity and amount of work involved in Adults With Incapacity (AWI) cases, and fail to fairly remunerate solicitors.
- Timing of the Proposals: The proposals are being introduced at a time when AWI procedure is evolving as a result of a major Supreme Court ruling and the upcoming introduction of a Scotland-wide Practice Note in the Sheriff Courts.
- Oversimplification: The block fee system oversimplifies an increasingly complex area of law, potentially leading to lower quality advice and representation.
- Administrative Burden: While Govan Law Centre support easing administrative burdens, the proposed “exceptional circumstances” provisions require solicitors to use the previous system in any event, and so entirely negates this aim.
Negative Impacts on Access to Justice and Vulnerable Individuals
- Deterrence of Firms: Implementing block fees could deter more firms from taking on AWI work, exacerbating existing access to justice issues.
- Vulnerable Population: AWI work constitutes the largest volume of civil legal aid cases, highlighting the importance of safeguarding the rights of vulnerable individuals in an aging population.
- Increased Frequency of Applications: Guardianships are increasingly granted for shorter periods, requiring applicants to return to court more frequently and increasing the demand for AWI solicitors.
- Strain on Local Authorities: If private individuals cannot afford representation, local authorities may face an increased burden to make applications, further stretching already strained resources.
- Human Rights Concerns: Increased state intervention due to lack of access to justice for adults or their families is unlikely to comply with the European Convention on Human Rights.
- Exacerbated Delays: The proposals are likely to worsen existing delays in the system, potentially leading to further issues already experienced like bed-blocking in hospitals.
Call for Reconsideration
- Govan Law Centre urges the Scottish Parliament to heed warnings from the sector regarding the move to block fees for AWI work, noting that other AWI practitioners share similar concerns.
- We hope that the current proposals will not proceed and advocate for greater engagement, detail, and transparency in future proposals.
- While reform is needed, any changes must be carefully considered to improve, rather than further impair, the struggling legal aid sector.
We are aware that are concerns are echoed throughout the profession, and I note that the Law Society of Scotland’s response can be accessed here; Law Society calls out flawed approach in legal aid consultation | Law Society of Scotland.
I would urge the Committee to reject the draft SSI in December when it is laid before you. I can confirm that my colleagues, Senior Solicitors regularly undertaking AWI work, Christine McKellar, Rachel Moon and Laura Simpson would be available to give evidence orally should that be required.
I look forward to hearing from you.
Kind Regards
Mike Dailly, Principal Solicitor & Solicitor Advocate, Govan Law Centre“
