Hansard

A happy new year to you, Presiding Officer, and to colleagues across the chamber.

I am pleased to speak in this debate on the findings and recommendations of the Equalities, Human Rights and Civil Justice Committee’s inquiry into civil legal aid assistance in Scotland, and I thank all committee members and organisations involved for their work.

The committee’s report is clear about a central point, which is that rights are meaningful only if people can enforce them. That matters acutely for many people, but I will talk specifically about why it matters for disabled people, whose rights to independent living, dignity and equal participation are too often undermined by gaps in support, inaccessible systems and a lack of practical assistance and support to lead an ordinary—or, indeed, extraordinary—life.

All of us here have responsibilities to create laws and policies that properly resource services, while doing so in ways that protect rights, and to ensure that there are effective routes to redress when rights are breached. That is why the report’s findings on legal aid deserts are so important. The committee is explicit about the consequences of such deserts, where the absence of advice means that people ultimately cannot exercise their legal rights.

For disabled people, that is not just an abstract concern. When someone cannot access specialist advice, they cannot challenge an unlawful decision about, for example, social care, housing, discrimination or benefits. Without such challenge, poor practice becomes entrenched. For disabled people, matters are often complicated, interconnected and deep rooted. They cannot uphold their rights on their own. They need support and advice—not because they do not have the potential or the capacity to do so but because the system is complex and they need help to navigate it, as we all do.

The committee’s encouragement to SLAB and the Law Society to work together to build a far stronger evidence base for demand and supply is therefore absolutely essential. I add that any serious effort to understand unmet need must actively engage disabled people’s organisations and disability rights expertise, including in law centres, and the relevant capacity in universities, so that the evidence base reflects lived reality rather than only what the current system is able to record.

The report is also persuasive on how the current fee structures can distort access to justice. The evidence on block fees illustrates the risk that funding models underpay for complex work and therefore disincentivise practitioners from taking on urgent, trauma-informed or high-effort, complex cases. As I said, disabled people’s cases are often complex because rights are interconnected by nature. If someone does not have adequate social care, accessible housing is sometimes not meaningful or useful to them; if they do not have accessible housing, employability and participation are constrained; and so on and so forth. If someone cannot challenge failure in one part of the system, harm cascades across the rest and complexity builds, so the system must recognise that complexity, rather than pricing it out, if it is to meaningfully deliver for disabled people and other seldom-heard groups.

Eligibility and the means test are equally important in that respect. The committee is right to be concerned that the current thresholds can create barriers to justice and can exclude people who are not, in any real sense, able to afford legal help, as colleagues have highlighted. For many, including disabled people, a fair approach must therefore also grapple with the reality of disability-related costs.

Evidence from various organisations, including Scope, suggests that additional costs in that sense are significant and range widely. The average is £550 a month, but the costs can be as much as £1,000 a month or more. If we assess disposable income without properly accounting for those unavoidable costs, we could create inequality in eligibility decisions and bake it into a system that is there to protect rights. Disability-related expenditure should therefore be excluded. The definition should be appropriately broad, and SLAB’s on-going review work should explicitly address that as a discrete and substantive strand of reform to support access to justice for disabled people. The committee’s discussion of waivers is also relevant here.

On public interest litigation and group proceedings, the report identifies the structural problem that civil legal assistance is generally available only to individuals, which prevents groups and third sector organisations from accessing legal aid collectively, even when injustice is plainly collective. The committee is right to highlight the individualisation of collective injustice, and I welcome the call to revisit regulation 15 more broadly to allow more collective action and reduce the burden that is placed on the individual.

The report sets out a coherent case for reform. We must build capacity, modernise eligibility and enable collective action where injustice is collective and structural. If we are serious about rights—and I believe that we are—we should be serious about the mechanisms that make those rights enforceable, and serious about reform to deliver them.