Representatives from the Law Society of Scotland, Scottish Legal Aid Board and Scottish Government have had a number of meetings to discuss additional funding for legal aid practitioners in light of the Covid 19 crisis. We expected a decision to have been reached by now but the Scottish Government have delayed again. It is particularly frustrating because the Legal Aid Payment Advisory Panel has also postponed its final meeting indefinitely. Below is a copy of our letter to the Justice Committee, sent on the 5th November setting out why these delays are unacceptable.
FOR THE ATTENTION OF THE JUSTICE COMMITTEE
The Edinburgh Bar Association (EBA) represents the interests of criminal defence lawyers. Our work includes campaigning on behalf of our members, responding to government consultations on changes in the law and liaising with colleagues from the Crown Office and Prosecution Service (COPFS) and Scottish Courts and Tribunal Service (SCTS) at Edinburgh Sheriff Court. All criminal court defence lawyers in private practice in Edinburgh are members of the EBA.
LEGAL AID FEES
It is with a considerable degree of frustration and disappointment that we find ourselves having to make the case, yet again, for an urgent increase in legal aid fees. For years, the EBA have drawn attention to the declining number of solicitors undertaking legal aid work in Edinburgh and across the country. In June 2011, the number of individuals registered to provide criminal legal aid in Scotland was 1,415. By June 2018, that number had fallen to 1,155, a drop of approximately 18% in just seven years. In Edinburgh, five young solicitors left the profession this year before lockdown. That is more than one a month without even considering the impact of Covid 19. It is worth noting that three of those solicitors moved to the COPFS, one to the Public Defence Solicitors Office and one to the Scottish Children’s Reporter Administration (i.e. all government funded organisations).
Over the years, we have seen a steady decline in the rate of legal aid fees. In 1999, fixed fee payments were introduced in summary cases based on the average payments made in such cases at 1992 rates of legal aid. Notwithstanding the 3% increase in legal aid fees announced in November 2018, the summary fixed fee payment is lower in absolute terms now than it was in 1999. In real terms, this represents a substantial decline when inflation is taken into account. Rates payable in solemn cases have declined since 2010 as well. We note also the huge disparity in payment for work done by solicitors in solemn cases compared to counsel appearing in the High Court. We estimate that the fee for a solicitor preparing, negotiating and tendering a s76 plea in the Sheriff Court is around £1000 less than counsel would receive for the same work in the High Court.
The Legal Aid Payment Advisory Panel first met in March 2019. The final meeting of that group was scheduled to take place in March 2020. That meeting has been postponed indefinitely. We understand that representatives from the Law Society of Scotland have made numerous requests to reconvene the Panel. We cannot see any justification for refusing this request. The crisis in the legal aid sector has been growing steadily for decades and it cannot be ignored any longer.
IMPACT OF COVID 19
The crisis in the legal aid sector has been exacerbated by the corona virus pandemic. Since lockdown, around 40% of our members have been ‘furloughed’ for a period of time. We are witnessing a gradual return of solicitors to work. Solicitors are necessary to cover the court business and to generate fee income. However, the combination of reduced court hearings and poor legal aid payments mean that many firms have not been able to bring back administrative staff that are on furlough. The vast majority of firms have been unable to ‘top up’ salaries and many solicitors and administrative staff have suffered a significant drop in income. For those that have continued to work, despite health and safety concerns, the shambolic administration of the court by the SCTS has frustrated the resumption of business that could reasonably be dealt with.
We are the only ‘Justice Partners’ that have experienced such difficulties. Sheriffs, Clerks and Procurators Fiscal have not suffered any loss of income. (In fact, Crown Office and Procurator Fiscal lawyers have secured a significant increase in salary in line with that of solicitors employed by the Scottish Government). This is exacerbated by the imposition, without any consultation, of courts on public holidays. There is no provision in the current legal aid arrangements to compensate agents for the additional work and loss of holiday time. Further, the inclusion of Saturday courts in models published by the SCTS suggests we may be expected to increase our working hours without any discussion about how this is funded and if this is feasible. We are extremely frustrated by the lack of consultation with solicitors about the running of the courts. It is apparent that we are not considered equal partners.
The full impact of the Covid 19 crisis has been cushioned by the furlough scheme so far. However, that scheme cannot continue indefinitely. We are bracing ourselves for the end of the furlough provisions and we warn that redundancies will be inevitable unless additional legal assistance is made available. Those that are made redundant will not return to legal aid practice- there will not be enough solicitors to cover the back log of cases when business is able to resume.
Practitioners have required to meet a number of costs in October alone: renewal of practising certificates; SLCC Levy (no reduction in this despite the fact that many solicitors have been on furlough for as much as four months this year) and professional indemnity insurance. The Law Society of Scotland reduced the cost of renewing practicing certificates to reflect the current situation, but no other concessions or assistance have been provided.
The phrase ‘Justice Partners’ is often used but it is all too clear that we are not afforded the same respect and consideration as others in the Justice system. We note that additional funding of £2.9m provided to the Crown Office and Procurator Fiscal Service in the last quarter of 2019/20 allowed for the purchase of 1,844 additional laptops and 349 smart phones for COPFS staff. Defence agents have had to adapt to digital court hearings, video link prisons visits and increased use of electronic submissions. With years of chronic underfunding, it is not surprisingly that most firms do not have up to date technological resources. Many solicitors are having to make use of their own personal laptops, phones etc to facilitate new procedures. In order to achieve equality of arms, defence agents require assistance to adapt.
There is a mounting backlog of cases to be processed. Now, more than ever, the hard work and cooperation of defence agents will be essential. Solicitors have already taken tremendous steps to adapt to working in the Covid 19 era. We are now expected to maintain our businesses, including staff retention, fund additional technology, face reduced public holidays and the possibility of Saturday courts etc, without any additional assistance. If the problems we face continue to be ignored, we will not be in a position to help address the burgeoning backlog of cases.
A tripartite committee comprising representatives of the Scottish Government, Scottish Legal Aid Board and the Law Society of Scotland was set up to consider additional funding for legal aid practitioners. The reduction in court business during lockdown has resulted in a saving in legal aid expenditure. There are funds available that can quickly and easily be administered to provide support to solicitors. The Law Society of Scotland have taken considerable time and effort to provide potential models for grant funding yet we are still waiting for the Scottish Government to make any decision. It appears to us that this is not being treated with the urgency this situation merits.
It is our view that a general increase in rates is long overdue. It is also necessary to provide urgent grant payments to cover the additional costs incurred by Covid 19. A fair and robust justice system requires a strong and independent defence bar and equality of arms between the ‘Justice Partners’. Unless proper funding is made available, we will continue to see valuable, qualified lawyers leave the profession and those that stay will remain at a disadvantage within the system.
Edinburgh Bar Association