9th August 2020
By Email Only
Ian Moir and Patricia Thom,
Legal Aid Conveners,
Law Society of Scotland
Dear Ian and Patricia,
LEGAL AID PROVISION AND THE IMPACT OF COVID 19
We refer to our previous correspondence regarding the impact of Covid 19 on legal aid practitioners. We thank you for the work you are doing on behalf of members. We should be obliged if you would forward our request for an urgent increase in the provision of legal aid to the Scottish Government and the Scottish Legal Aid Board.
The profession was in crisis before lockdown. The Edinburgh Bar Association has witnessed a significant number of solicitors leaving legal aid practice, predominantly young women. Legal aid funding has been steadily decreasing in real terms for decades and firms cannot continue to absorb this. We do not intend to rehearse all the arguments for an increase in legal aid but we must stress that we had grave concerns about the future of the profession before lockdown. This year, five young solicitors left criminal legal aid practice before the corona virus crisis. That is more than one a month- before the impact of Covid 19. It is worth noting that three of those solicitors moved to the Crown Office and Procurator Fiscal Service, one to the Public Defence Solicitors Office and one to the Scottish Children’s Reporter Administration (i.e. all government funded organisations).
Since lockdown, around 40% of our members have been ‘furloughed’. Without the provisions of the furlough scheme those solicitors would be redundant. The vast majority of firms have been unable to ‘top up’ salaries and many solicitors 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. 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. 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 face a difficult choice in the coming months. A number of payments are due- 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), professional indemnity insurance. Many may feel that these expenses cannot be sustained and may choose to leave legal aid practice. Sadly, we expect to see the full impact of Covid 19 around this time unless urgent assistance is provided.
We cannot stress strongly enough that, unless an urgent increase in legal aid rates is made available, the profession will not survive this crisis.
It is our view that a general increase in rates should be made. It is also necessary to provide grant payments to cover the additional costs incurred by Covid 19. For example, firms require to meet the cost of PPE, providing or upgrading laptops, providing agents with smart phones, appropriate wi fi provision to work remotely etc. This is particularly urgent given the introduction of video link hearings by the Appeal Court and Sheriff Appeal Court. 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. In order to achieve equality of arms, defence agents require similar assistance.
We would ask you to consider that the majority of firms in Edinburgh are small (an average of 2/3 solicitors). We urge that provision of grant funding take into account sole practitioners and small firms. We also note the importance of agency lawyers in ensuring that firms can be flexible and provide consistent cover. This is likely to be of even greater importance when courts are able to resume summary and jury trials. Therefore, we would welcome a form of grant funding that fairly assists those practitioners regularly appearing at court.
We are happy for you to share this letter.
Edinburgh Bar Association