EDINBURGH BAR ASSOCIATION
RESPONSE TO THE INDEPENDENT REVIEW OF LEGAL AID
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When the Independent Review of Legal Aid was established by the Scottish Government, the Edinburgh Bar Association welcomed the opportunity to provide evidence of its experience in recent years. That evidence was given in good faith and in the expectation that it would be given its due regard. The EBA highlighted at the outset that the opportunity to respond came at a time when its number of solicitors providing Legal Assistance had reduced to a critical level. Indeed, since the Association’s evidence was provided to the review, it has been ascertained that the number of solicitors providing Criminal Legal Assistance in Edinburgh has reduced since 2011 by between one quarter and one third. Of that figure, two thirds are female, notwithstanding the fact that women account for only a third of all Scottish lawyers registered to provide criminal Legal Aid.
During that same period, the number of criminal courts in Edinburgh has increased by a quarter. In addition, a specialised domestic abuse court has been incepted and is now one which sits daily. The inverse correlation between the numbers of solicitors providing criminal Legal Aid and the number of courts for which criminal Legal Assistance is required renders the provision of that service within our jurisdiction enormously problematic. It is inexorably true that if the trend continues, the ramifications for the system of criminal justice will be catastrophic.
Against that background, it is especially alarming that the number of criminal solicitors in Scotland has reduced by almost five percent since the publication of the review alone. That represents an acceleration in the rate of departure. Lamentably, this Association is unsurprised. The Report on the Independent Review has been received by Legal Aid solicitors in this jurisdiction with disappointment at best and offence at worst. In this consultation response, the EBA has sought to detail why the Review has been received so poorly and why any reliance on its findings will result inevitably in the continued demise in this most socially useful of professions.
The Edinburgh Bar Association commends the Scottish Government for its acknowledgment that the Legal Aid system finds itself in such a precarious position that this Review was urgently required. We understand also that the time and resource committed to the Review will cause the Government to place faith in the recommendations set out in its report. However, the Edinburgh Bar Association is of the view that any time which is spent taking forward the Review’s recommendations will surely correspond to the continued rapid decline of this profession.
The Edinburgh Bar Association is clear in its position that the Review is fundamentally redundant and that the Scottish Government should immediately reject it. Instead, the Government should now engage in direct consultation with the profession in an attempt to salvage a system without which our nation cannot properly claim to operate under the Rule of Law. In support of that position, we ask that the content of this response is referred to. Leaving aside the views of this Association however, the evidence available since the Review was published is there for all to see.
Strategic Aim 1: Place User Voice and Interest at the Centre
The Edinburgh Bar Association welcomes Mr Evans comments in his opening paragraph on page 26 of the review. He identifies the public benefits of a well-run legal aid service namely “improving the quality of life for recipients; tackling inequality; empowering individuals and making a significant contribution to the delivery of social justice”. We agree that the public perception of legal aid is often negative. We would welcome steps to further educate the public on the benefits of appropriate legal aid funding.
In the case of criminal legal aid, placing the user voice and interest at the centre can be problematic. The vast majority of our clients suffer from some form of vulnerability and would struggle to represent their own interests. Accordingly, we welcome the recommendations 5 and 6 on page 36 of the report. We agree that criminal defence legal aid solicitors should play a pivotal role in court business planning and the strategic planning of the justice system.
We would also stress that whilst the “user” refers to our clients, the public as a whole benefits from a well-run publicly funded legal aid system. The involvement of legal aid solicitors can facilitate agreement of evidence and in many cases negotiation of appropriate pleas of guilty, thus saving time and money and limiting the number of witnesses required to attend court. The provision of legal aid for criminal defence solicitors ensures an equality of arms between the accused and the state and is a safeguard against miscarriages of justice.
It is disheartening to read that Mr Evans had “real concerns in my mind around awareness and trust” following the input from the focus group. It would be helpful to see publicly funded legal aid promoted as a benefit to the public at large rather than kowtowing to the negative misconceptions that many people have. In terms of quality assurance, Scottish criminal legal aid solicitors have an excellent track record. We are subject to peer review as well as audit by both the Law Society of Scotland and the Scottish Legal Aid Board. None of these systems of review reflect the utilitarian value to the system of justice as a whole of legal aid practitioners. We do not shy away from scrutiny but it should be accompanied with appropriate explanation of the work we do and the manner in which we are reviewed.
Strategic Aim 2: To Maintain the Scope but Simplify
A recurring flaw in Mr Evans’ report is a blurring of the distinction between civil and criminal legal aid. Mr Evans states on page 37 of his report that 70% of applicants receive some form of legal aid. He then goes on to discuss Law Society of Scotland propositions regarding the scope of civil legal aid. We would welcome figures on the percentage of applicants that are successful in applying for criminal legal aid. We suspect this will be higher than 70%. We would suggest that a very straightforward way to simplify the system of Legal Aid would be to abolish contributions and return the responsibility for considering applications for Legal Aid to the court for all cases prosecuted in the Sheriff Court or above. The vast majority of people applying for legal aid in these cases are successful at present. Therefore, we are of the view that to abolish the laborious process of applying to the Scottish Legal Aid Board for funding in these cases would obviate the need for considerable bureaucracy as well as delay in court.
Mr Evans states that “contributions to legal aid play an important part in the responsible management of the system”. He does not give any explanation as to why that should be so or how he came to that conclusion. If this truly is an independent strategic review then why has that particular issue not been considered? We see no justification for contributions being appropriate in Advice and Assistance and ABWOR cases when they are not in summary or solemn criminal legal aid. Mr Evans is correct that asking solicitors to collect contributions creates a conflict of interest. At present, an applicant’s outgoings are not taken into account when considering eligibility for Advice and Assistance or ABWOR. Therefore, we often see people who would qualify for summary or solemn legal aid being ineligible for Advice and Assistance or ABWOR, or being in a position of having to pay a contribution. This is very clearly unfair. At page 26 of this report, Mr Evans likens legal aid provision to the modern welfare state. If that is so, we should not be asking recipients to contribute.
We are disappointed to see that Mr Evans had quoted a focus group participant from Peterhead who thought that people get legal aid for things like speeding (page 45). This is nonsense. If Mr Evans ever tried to submit an application for Legal Aid in a speeding case he would quickly be told by the Legal Aid Board that the case is not sufficiently complex. It is unhelpful for these misconceptions to be reiterated rather than corrected.
We appreciate Mr Evans concerns about the cost of outlays. However, we would have concerns about the Scottish Legal Aid Board compiling a preferred supplier list. It is precisely because an expert is independent that a defence solicitor would instruct that person, often as a check on the work done by the expert instructed by the Crown.
SIMPLIFYING THE SYSTEM
Again, we are of the view that Mr Evans has failed to adequately investigate solutions to simplify the system. At present, the system is complex and confusing. As referred to above, contributions are payable in some cases but not others. Solicitors are required to apply for increases for deferred sentences in ABWOR cases but not in Summary and Solemn Criminal Legal Aid cases even though there is no distinction in the work done. It can prove impossible to obtain financial verification from applicants who live chaotic lifestyles. This can result in delays in Court proceedings. Cases often require to be continued in order for legal aid to be in place. All of these issues result in greater bureaucracy for the solicitor dealing with this case as well as for the Legal Aid Board to process.
Mr Evans does not discuss why means testing is appropriate. Savings could be made to the justice system as a whole by reducing bureaucracy and allowing cases to be resolved at an earlier stage if the power to grant Legal Aid reverted to the Sheriff. This could result in a very small number of people who could afford to pay for a solicitor being entitled to representation paid for by the public. However, the number of people this would apply to would be minimal compared to the savings made to the justice system as a whole. We do not see this as a controversial suggestion given that many other aspects of the welfare state, such as prescription charges, have no means testing at all.
In conclusion, we agree that the system should be simplified. However, Mr Evans has failed to fully consider how that might be done. We strongly agree that the system of eligibility, contributions and clawbacks is inconsistent and complicated. The review does not provide an adequate discussion of these problems.
Strategic Aim 3: Support and Developing an Effective Delivery Model
This part of the Review deals with the interaction between the different providers of publicly funded legal assistance as well as how such assistance could be expanded to third sector providers. It also discusses the possibility of having considerably more interaction between providers of legal assistance and third sector providers. At the outset it should be made clear that this Association has a limited knowledge of how specific third sector services operate and accordingly can only comment in a general sense from the perspective and experience of criminal defence solicitors in Edinburgh.
The first section of the strategic aim deals with how criminal legal assistance is provided. It recognises that legal aid is delivered by solicitors primarily in private practice. It cites that in March 2017 there were 499 firms registered to provide criminal legal assistance and 1210 individual solicitors on the legal assistance register. By June 2018, after the publication of Mr Evans’ report, this had dropped yet further to 1,155. The report compares this situation to the situation of that in March 2015 when there were 559 firms registered and 1345 individual solicitors. It comments that there has been a decrease, and recognises further that in the last 10 years there has been more of a dramatic decrease. This Association has repeatedly raised concerns about the reduction in the number of solicitors registered to provide criminal legal assistance and the concern is discussed further in this response under Strategic Aim 4.
The report also recognises that there is a perception of a drop in the number of younger members of the legal profession willing to undertake criminal defence work. This certainly accords with the experience of this Association. The reality is that private firms find it difficult to afford to employ trainees or to invest in their training. Mr Evans refers to the Law Society of Scotland making suggestions in relation to expanding the work which could be carried out by trainees. Certainly there has been discussion surrounding the possibility of allowing first year trainees in criminal practise to appear in court after three months instead of requiring to wait until they are in their second year. This may well make the option of taking on trainees slightly more attractive but the fact remains that if the profession continues to be chronically underfunded then employing a trainee will not be a viable option for many private firms. This will have a knock on effect in near the future of there being a deficit of properly trained criminal defence solicitors.
THE USE OF DIRECTLY EMPLOYED SOLICITORS
The Review goes on to discuss the use of publicly employed solicitors and specifically the PDSO. These solicitors receive a salary and are employed directly by the Legal Aid Board. The PDSO began as a pilot which was supposed to last 5 years but which then was rolled out and is now a permanent fixture in many jurisdictions. Realistically, directly employed solicitors are likely to continue to exist. There have been various suggestions that they should be expanded. Surveys have shown that private solicitors provide better value and greater client satisfaction levels and this is a fact that appears to be ignored by Mr Evans.
When the PDSO started in Edinburgh they were automatically given a disproportionately large share of the duty roll and at the outset had to represent all clients who appeared from custody who had birthdays in January or February. This somewhat ridiculous situation gradually evolved to the current position whereby the PDSO is given one third of the duty allocation in Edinburgh Sheriff Court. This greater share of the duty allocation was originally a means by which the PDSO could establish itself as a competitor to private firms and give them an opportunity to build and maintain a client base. It is difficult to see how this justification remains 20 years on.
An important concern in relation to the expansion of directly employed solicitors is that an independent criminal bar has always been a cornerstone of the Scottish legal system and as employees of the Legal Aid Board who are closely linked with government, the PDSO is not seen as truly independent.
SOLICITOR CONTACT LINE
The Solicitor Contact Line is also discussed within the report. In general, the Edinburgh Bar Association is happy with the Contact Line. Indeed, when police station duty increased with the Criminal Justice (Scotland) Act 2016 this Association indicated that it was happy for the Contact Line to deal with most police station advice. The solicitors employed there are paid appropriately for their unsocial working hours. They do not have court obligations and therefore do not find themselves in a situation where they are out giving advice in a police station throughout the night, only to have to appear in court the next day. The EBA is satisfied that an arrangement of this type continue.
SUPPLY AND DEMAND
At page 59 of his report Mr Evans raises the issues that when a solicitor registers to provide legal aid, that solicitor may conduct as much or as little as work as they wish. This is followed by a concern that there is not a mechanism to deal with an oversupply of solicitors or a situation where there is a lack of firms conducting legal aid work in certain areas. The suggestion of how to deal with an oversupply is that the number of solicitors registered be arbitrarily reduced. It is difficult to see what Mr Evans means by this other than the persons being forced not to do legal aid work which would seem somewhat draconian. Solicitors in private practice are independent and must be free to set up and run their businesses as they see fit. To allow the Legal Aid Board further power in relation to this would be heading close to a situation of contracting which has already rightly been dismissed.
Concerns are also raised in relation to the availability of legal assistance in rural areas and the fact that there is little that can be done to effectively force solicitors to conduct this type of work. There is already legislation in place which allows for an enhanced fee in summary cases which proceed to trial if the court in question is a designated “rural court”. It is therefore difficult to see how other fees might not be adjusted to make appearing in rural courts more viable to firms who have offices elsewhere. The major deterrent in travelling to a distant Sheriff Court is that travel rates were cut in half as part of the Government’s drive to cut public expenditure. This was part of a package which was supposed to be temporary but travel rates remain half what they were.
This has no doubt contributed greatly to the fact that it is not seen as financially viable for a solicitor in a firm to travel to a more rural jurisdiction. That would entail a solicitor being taken away from his or her normal court business. Most firms are currently operating with the minimum number of solicitors required and simply do not have the staff to deal with these cases. If the travel rates were reinstated to what they were, then this would make appearing in other courts a more viable proposition. There is a suggestion in the report that directly employed solicitors be expanded to cover these areas but it is this Association’s view that this would be far more expensive in the long term than simply paying a reasonable rate for travel.
The next part of this strategic aim deals with what is called “holistic support”. Mr Evans begins by stating that “Evidence to me suggests that many criminal defence lawyers have the skills and more importantly the trust of their clients to provide more holistic support for their clients providing links to other public and third sector support services”.
It is certainly the case that solicitors often consult with third sector support services to discuss individual clients and be provided with information about the client’s engagement with those services. It is difficult to see realistically how this could be expanded. Solicitors are qualified to advise their clients on the law; they are not social workers or medical professionals. Many solicitors already feel that they are treated by clients essentially as social workers. We often encourage clients to seek help with other agencies but ultimately our duty is to represent accused persons in criminal prosecutions.
Accordingly, the discussion of what is referred to as a “mixed delivery model” at page 62 of the report might seem a good idea in theory but there is nowhere near enough information about how this would function in practice and many factors would mitigate against this course of action. The review is supposed to be a review of legal aid provision and as with many of the suggestions in this part of the report it would appear to be suggesting a complete overhaul not just of the legal aid sector but how third sector organisations are organised and funded.
Each third sector organisation is funded in a different way and the suggestion that legal assistance be available to certain agencies is bizarre. This would have to be paid for and would no doubt come out of the Legal Aid budget and impact on the fees paid to solicitors in private practice. If such organisations were employing solicitors to advise clients then they would come under the remit of the Law Society and its regulatory framework. It is this Association’s firm view that solicitors should remain separate and independent from third sector organisations who provide very specific support and services. Solicitors are legally qualified and are there to advise clients on the law and are not qualified or funded to do anything else.
Many of the strategic aim recommendations focus on there being referrals between criminal defence lawyers and appropriate third sector agencies. It is difficult to see how this could work in practice. This Association is aware that a number of agencies have strict rules regarding recommending solicitors. Those agencies should be able to do no more than provide a list of local firms who are registered to provide legal assistance as one can readily envisage potential conflicts if agencies start recommending individual firms. Recommendation number 37 suggests that “referrals to legal services by advice services should be to the most effective firm or service in the experience of the local advice service.” With respect to such advice services, it is difficult to see how they are in a position to assess the most effective firm in the area. All firms are subject to auditing and peer review and if there are concerns about the level of a firm’s or solicitor’s competence then this is dealt with by the Law Society.
Recommendation number 30 states that “There should be a new online and telephone service to signpost members of the public who need access to publicly funded legal assistance”. Both the Law Society and the Legal Aid Board have lists of persons who are registered to provide legal assistance on their websites and it is difficult to see what more could be achieved by a new service. As stated above, there must be grave concerns about a situation where third sector agencies can refer accused persons to firms of solicitors. This is a situation which is almost akin to contracting and is certainly not something which can be supported by this Association
The EBA agrees with the conclusion of Mr Evans that provision for publicly funded private solicitors should continue. This Association feels that adjustment of fee levels and reinstatement of travel rates would go some way to addressing the lack of supply in certain areas. Unfortunately, we feel that the interaction between firms of solicitors and third sector agencies is unrealistic, overly ambitious and fraught with difficulty.
Strategic Aim 4: Create Fair and Sustainable Payments and Fees
EVIDENCE TO SUPPORT FEES BEING INCREASED
In his report at page 67, Mr Evans indicates that the legal profession’s argument for increased fees is unlikely to find public support when the perception is that some legal aid lawyers appear to be well rewarded. The numbers of solicitors who have left this branch of the profession in the last decade must at least be seen as some proof that the “rewards” are in no way commensurate with what can be earned in other areas, if the word of those lawyers is not acceptable to Mr Evans.
However, what is most regrettable about this part of Mr Evans’ report is that the perception which he highlights as presenting an obstacle to any increase in rates of pay is compounded by him. This is laid bare at page 70 where the earnings of the leading 20 Advocates and solicitors’ firms are quoted. Mr Evans states on the basis of these that “it is hard to justify a general increase in fees when all those identified above would also receive an increase in their fees from the current very substantial levels”
As far as both sets of fees are concerned, Mr Evans firstly fails to identify that the figures quoted are inclusive of VAT. The figures are also not scrutinised in any way at all, nor is any attempt made to do so it would seem. For instance, no regard is had to the nature, length and complexity of the cases conducted by the relevant party during the period of payment. As far as solicitors fees specifically are concerned, it would appear that Mr Evans has conducted no analysis of the size of the firms in receipt of the payments which he has quoted, the numbers of cases undertaken by those firms or the numbers of staff employed by them.
A person with no knowledge of the system of Legal Aid might be forgiven for thinking that the figures quoted by Mr Evans represent the actual wages or salaries of individual lawyers. Therefore, given that no analysis, caveat or enquiry has been made of or applied to those figures at all, their citation is liable only to entrench the public perception which Mr Evans considers is an impediment to any argument in favour of an increase in fee rates.
Mention has already been made of the numbers of solicitors who have left the profession in recent years. In the context of comparing the workloads of the Crown and defence at page 71, Mr Evans identifies that as of March 2017 there were 1,210 solicitors registered to provide criminal legal assistance. He describes this figure as having “remained steady” since 2012/13 despite a reduction in the numbers of cases proceeding to court in the same period.
The number of solicitors registered to provide criminal legal assistance in June, 2011 was 1,415. Therefore, in the six years leading up to Mr Evans preparing his report, the number of registered criminal solicitors reduced by 14.5%. In any other public service a reduction in the workforce of that magnitude in such a short space of time would be viewed as catastrophic. Since the publication of Mr Evans’ report, that number has fallen to 1,155, a further reduction of just under 5% within a year. For Mr Evans to describe the number of criminal solicitors as in any way “steady” is quite staggering and leads us to question the basis upon which he makes the assertion which he does and – indeed – what (if any) enquiry he made to support the position adopted by him.
It is especially important that Mr Evans’ assertion be the subject of scrutiny because the Edinburgh Bar Association – in its evidence to the review – described itself as being in a critically weakened state having seen the departure of a large number of solicitors, especially young solicitors, in recent years. In fact, approximately 30% of criminal lawyers in Edinburgh have left the field since 2011, with more than two thirds of that figure being female.
COMPARING THE COSTS OF PROSECUTING TO THE COSTS OF DEFENDING
Mr Evans has dismissed any attempt to compare expenditure between the Crown and defence. In his conclusion to this part of the report, he states that criminal Legal Aid is provided to criminal defence solicitors and that the discrepancy of expenditure is around £10 million. The figure which he quotes as representing the defence payment is £85 million in 2016/17. This is not just misleading; it is completely wrong. Criminal Legal Aid expenditure covers payment to both branches of the profession as well as to solicitor advocates. A cursory perusal of the Annual report from which Mr Evans draws the figure of £85 million reveals that payments to solicitors in fact totalled £64 million, a reduction of 9% since 2012/13.
Whether this error was deliberate or the result merely of negligence perhaps does not matter. However, given that the figure quoted by Mr Evans forms the basis for his conclusion that any attempt to compare expenditure on COPFS and criminal Legal Aid is to compare “apples and pears”, it does undermine his entire methodology to the point that those conclusions lack any value at all.
EARLY GUILTY PLEAS
At page 72, Mr Evans reports that
“It may be that the earliest point for an admission of guilt and remorse will shift to the police station interview where there is now a requirement for access to the assistance of a solicitor to be offered to the interviewee if requested.”
He does so in the context of discussing early guilty pleas.
It is perhaps a small point but this is one of the statements which reveal the limits of an analysis undertaken by a person with no knowledge of the systems of criminal justice and Legal Aid. To in any way equiparate the processes involved in the police interviewing a suspect and the tendering of a guilty plea in court is ludicrous: at the most basic level, a criminal suspect is not obliged to answer any question put to him by the police whereas it is a legal requirement for a person facing a criminal charge in court to state how he or she pleads.
“NO UPRATING IN LEGAL AID SINCE 1992”
In the part of his report which commences at page 73, Mr Evans seeks to dismiss any claim that criminal fees have not been increased since being set in 1992. Here, the failure by Mr Evans to conduct any sort of analysis of figures provided to him (presumably by the Scottish Legal Aid Board) has resulted in statements which are at times wildly misleading.
Summary Legal Aid
At page 73, Mr Evans states:
“The 1992 rate applies to around 5% of all income from criminal legal aid fees, and this will diminish further as criminal fee reforms are taken forward. The remaining 95% of fees have been subject to several changes since 2004.”
This one asserton gives rise to a number of comments.
Firstly, the reference to 5% presumably relates to cases in which time and line ABWOR is the method of payment. Whether that figure is correct or not is perhaps irrelevant although it would seem to be a reasonable estimate of that variety of work undertaken by solicitors.
As far as we can see, Mr Evans has failed to identify at any point in his report that it is that 1992 rate which was the basis upon which the original fixed payments for summary Legal Aid were based at the time of their inception in 1999. Those payments represented the average case cost in the summary courts based on the 1992 rate. However, not only was there never an increase in the figures originally set (£500 in the Sheriff Court; £300 in the district), but those have been the subject of very significant reduction in the 19 or so years since.
The fixed fee available in the Sheriff Court under Legal Aid is now £485; in the Justice of the Peace Court it is £295. That there should be a reduction at all in a 19 year period in which annual inflation has averaged 2.8% is alarming enough. However, what is also not identified by Mr Evans is that the fixed fee paid to solicitors now encompasses much more than it did in 1999. Specifically, the first two deferred sentence hearings in any case are covered by that block. Furthermore, the fee also subsumes any advice and assistance given in the case whereas in 1999 that was paid in addition to the block fee. The result is that – at its best for the solicitor – he or she is now undertaking work for a payment of £485 which they would have received £500 for in 1999; at worst, he or she now receives £485 for work which would have attracted £680 back then.
Of the £64 million paid to solicitors in 2016/17, just under £30 million was in respect of summary criminal Legal Aid. For the reasons which we have set out, there has effectively been a significant reduction in the 1992 rate in relation to almost half of solicitors fees. Thus, the assertion by Mr Evans that the rate represents just 5% of all income from criminal legal aid fees is fundamentally misleading in a way which again renders the statement worthless.
Secondly, it is a mystery to us where the reference to “criminal fee reforms” being “taken forward” comes from. As far as we can determine, there are no such reforms under consideration presently. More than a year ago, the Scottish Legal Aid Board produced proposals for fee reform which, they said, were to be the subject of consultation. They were produced at a time when the Board was endeavouring to secure the participation of criminal solicitors on the police station duty scheme. Since then however, we have heard of no plans to actually introduce these proposals.
Furthermore, if these proposals are indeed what Mr Evans is referring to, what he again fails to identify is that the proposals were drafted specifically with the objective of cost neutrality – that they should result in no increase in the criminal Legal Aid spend. With all that said, one really must question where this statement by Mr Evans originates; the suspicion must be that it is based on a pro veritate acceptance by him of a representation made by the Scottish Legal Aid Board.
Solemn Legal Aid
As regards solemn Legal Aid, Mr Evans states, also at page 73:
“A new fee structure in 2010 increased fees by 7%”
He repeats this claim at page 74.
One assumes that Mr Evans is referring here to the introduction of the hybrid payment system in relation to solemn work. At the time of that introduction, it was asserted by the Scottish Government and SLAB that the structure would increase fees for that work by 7%. However, no analysis has been undertaken since then to see whether the promised increase has actually materialised, despite many requests being made for this to be undertaken.
More alarmingly, again what Mr Evans has failed to identify is that the rates introduced in 2010 have since been cut. The hourly rates of £76 and £50.68 have reduced to £73.20 and £48.80 respectively. The payment a solicitor receives for travel necessarily undertaken – something which he or she has absolutely no control over – has been cut in half. It is reasonable to assume therefore that the change which Mr Evans appears to have accepted as a 7% increase is in fact a substantial reduction, in real terms as well as in cash.
Police Station Work
Mr Evans states in this regard, again at page 73:
“In 2010, solicitors’ fees for police station (sic) were increased by one-third.”
Candidly, this Association is unable to identify what it is that Mr Evans is referring to here and so any critical analysis of what he says must be to a degree speculative. The first reason for this is that, prior to 2010, solicitors were not paid at all for undertaking police station attendances – the suspect’s right of access to a solicitor only arose following the well-known Cadder case. The reference to there being any increase to such a fee is therefore unfounded as there was no fee payable to a solicitor which could attract any increase.
Secondly, the suggestion that any rate of payment was increased by a third in 2010 is completely incorrect. It may be that the author is referring here to the uplift given in respect of attendances by solicitors at police stations during hours which were considered to be anti-social – defined as being between 10pm and 7am on any day, including weekends and holidays. If this is indeed what Mr Evans is referring to in making this statement, it defies belief he does not consider it appropriate to caveat the assertion made.
PERIODIC REVIEWS OF FEE RATES
In his report, Mr Evans proposes an elaborate scheme to set and review rates of pay to solicitors. This Association fails to see the difficulty in reverting to the system which existed prior to 1992 of reviewing those rates of pay annually according to inflation. It appears to us that this is the most cost-effective and fair way to review pay given that any change would be referable to empirical financial data. Such a system should be impervious to logical criticism accordingly.
MORALE AMONGST LEGAL AID LAWYERS AND PUBLIC TRUST/RETHINKING PAYMENTS AND FEES
At page 80, Mr Evans claims to have been struck by the low morale of the legal aid solicitors he met. Frankly, it is the impression of this Association that his report has greatly exacerbated that feeling. The fact that a further 5% of the nation’s workforce has departed within a year is testament to that. Mr Evans says that “positive public messaging” is the answer to this problem. Such a statement is insulting to solicitors who have faced year on year cuts to their incomes as we have demonstrated in this paper but which Mr Evans failed in a most basic way to understand.
Criminal Legal Aid solicitors can typically work between 70 and 80 hours a week. Often they will do so for no payment whatsoever as the work involved in securing Legal Aid is more time-consuming than presenting the case of the Applicant in court and can be – and is often – unsuccessful. In such cases, no payment is made at all. This again is something which Mr Evans did not consider worthy of mention in his report.
Ultimately, Mr Evans concludes that “it proved impossible to find robust sources of persuasive evidence for a general increase in fees.” This Association finds this statement extraordinary as all of the information which we have referred to was available to Mr Evans as well. He does however state that “there may well be something in the case that some fees, in some circumstances and in some areas should be adjusted.” He does not elaborate on what he means by this. However, it would be difficult to elaborate on something which is so ambiguous that it almost has no meaning.
One interpretation of Mr Evans’ report is that he sought to address the perception which he identified that some legal aid lawyers appear to be well rewarded. It is difficult to see how he sought to counter it given that he concluded that “a general increase (in fee rates) would benefit some already well-rewarded practitioners”. Furthermore, at page 78 he quotes a focus group participant in stating that “I’ve never seen a poor lawyer”. That a statement of such ignorance should be leant the credence of a specific quote by Mr Evans both compounds the perception highlighted by him and adds to the low morale of the lawyers whom he claims should be the subject of “positive messaging”.
Fundamentally however, the findings of Mr Evans relating to the fees paid for criminal Legal Aid are profoundly inaccurate. The view of the Edinburgh Bar Association is that the assertions which are made concerning a lack of evidence justifying an increase in Legal Aid rates are misconceived and are symptomatic of an approach which is rife with misunderstanding of the systems of criminal prosecution, Legal Aid, and business, some of which can only be described as elementary.
Strategic Aim 5: Invest in Service Improvement and Technological Innovation
This chapter starts with the assertion that “an effective modern, user-focused public service provider has two key attributes, commitment and willingness to innovate.” Many will find it surprising that the attributes of professionalism and efficiency are not mentioned. Mr Evans appears to base his entire approach on the presumption that innovation will bring improvement. He quotes, uncritically, the Legal Education Foundation statement that “technology will change all our lives.” There is little in this chapter to support the contention that such a change in relation to criminal law will be for the better.
The term “cynical” is used to describe the attitude of criminal legal aid practitioners in relation to technological innovation. It may be fairer to say that criminal practitioners are doubtful as to the benefits of technological change. Whilst Mr Evans provides little evidence to support many of his contentions, the Edinburgh Bar Association can point to several instances of inefficiency and purposeless complexity. One obvious example relates to the manner in which minutes are recorded in summary procedure. The clerk records the court disposal manually twice. The introduction of technology has led to two additional tiers of recording, these merely duplicating what has already happened twice in manuscript form. The result is that the simplest of disposals is recorded four times.
Many similar examples can be found in SLAB’s various systems. For example, in relation to Summary Legal Aid accounts the drop-down menu covering the stage at which a case has concluded does not include the option of the trial diet, one of the commonest points of conclusion. Practitioners have to click on the word “other” and then type in the words “Trial Diet”. This has been raised repeatedly with SLAB, who are either unwilling or unable to make the simple change that is required. Mr Evans suggests that SLAB may find it “hard to learn quickly from mistakes and improve, because many adaptations to the service require a long process of review and approval, and often the final agreement of the Scottish Parliament.” It is the view of the Edinburgh Bar Association that SLAB are simply unwilling to listen to reasonable suggestions by the profession and engage in little or no consultation with the profession prior to each self-declared “improvement”. One example, of many available, is reference to “total discharge” as a disposal in a summary case. The use of this meaningless term is compounded by the fact that it is seen to be the equivalent of an admonition. Presumably, SLAB mean to refer to an absolute discharge, which is entirely different in character to an admonition. On a positive note, it may be said that Mr Evans’ acknowledgement that SLAB find it hard to learn quickly from mistakes and improve reinforces the case for the abolition of SLAB.
Throughout his report, Mr Evans seems to be markedly more concerned with cost rather than value. It is particularly disturbing to note that he uncritically quotes Richard Susskind’s reference to “the universal tendency for clients and funders in the modern era to expect data productivity from their lawyers for less resource.” Much of what follows appears to recommend, uncritically, technological innovation because of an anticipated saving to the public purse. This tendency to regard cost-saving to the exclusion of all other considerations is emblematic of the approach of successive Scottish governments, both in relation to legal aid and the COPFS.
The inappropriateness of such an approach can be seen in the reference to a free online service “for Australians who wish to plead guilty to theft, driving, assaults and drug or drink/drug driving charges”. It is said that “the service is designed to help those without a lawyer”. There appears to be no thought applied to the question of why such persons are without a lawyer in the first place, or that the online service would seem to have no element of analysis of the commonplace procedural and evidential issues which arise at the start of a case, e.g. is the case time-barred or is there a sufficiency of evidence? One can only hope that no informed decision-maker within the Scottish Government will regard this suggestion as anything other than laughably inappropriate.
Mr Evans’ ignorance of the criminal process is highlighted in this chapter. He suggests, for example, that video-links to prisons will reduce “non-attendance rates for accused in custody”. As with many other contentions, there is no evidence supplied to support it. There is a further curious assertion that the early gathering of evidence will “boost the case for virtual courtrooms and further reduce legal aid expenditure on witnesses”. This would seem to relate to the expectation that such procedures will reduce the need for witnesses to appear in court. Given that these are Crown witnesses, in respect of whom there is no SLAB responsibility, it is hard to understand what is meant. No reference is made to the motivation behind these proposals, which primarily centred on preserving evidence at an early stage when it is likely to be of greater value and reducing the stress felt by complainers in particularly sensitive cases. As ever, Mr Evans seems to be exclusively attracted to the notion of spending less money. Any member of the profession not already troubled by this attitude will have his or her concerns reinforced when it is observed by Mr Evans that “legal professional pro-bono assistance in kind” might be one way of helping to develop “online platforms”. This is yet another clear example of the tenor of this report which has led to it being widely greeted with scepticism by members of the profession.
It is to be regretted that none of the proposals in this chapter, in so far as they relate to criminal legal aid, can be supported by the Edinburgh Bar Association.
Strategic Aim 6: Establishing Effective Oversight
At the start of this chapter, Mr Evans makes reference to the fact that he encountered overt negativity and even animosity towards SLAB on the part of members of the legal profession. He goes on to say that “some of the criticisms are unfair”, before giving examples. No examples of fair criticisms are provided. This partial approach typifies much of this report, which is sprinkled with statements which lack justification, often for the very good reason that there is none. Egregiously, this chapter repeatedly contains reference to the fact that “the Scottish Government is responsible for setting the policy and the Scottish Legal Aid Board is charged with delivering it”, as if SLAB has no input in relation to policy. Further, Mr Evans seems to proceed on the basis that SLAB has no control over the question of the setting of fees. This presentation does not reflect the true position. This can readily be seen from Mr Evans’ own comments in this chapter. He makes reference to the fact that it is important, for example, that SLAB’s “advice to ministers has credibility”. In relation to the question of fees, if it is correct that SLAB bears no responsibility for these then one wonders why SLAB held roadshows last year on precisely that topic.
Having inaccurately described the current arrangements, Mr Evans turns to “Options for the future”. Three are identified. The first one is the “return [of] delivery of legal aid to the Law Society of Scotland”. This is dismissed in one sentence: “It would be a very retrograde step and would be likely to significantly reduce public trust and Scottish Government confidence in the administration of legal aid.” Nothing is offered by way of justification for this offensive statement, which seems to shed significant light on the attitude of Mr Evans and, more significantly but less surprisingly, SLAB and the Government towards the independent legal profession in Scotland. It must be the case that Mr Evans has been told by sources in the Scottish Government that they do not trust the legal profession. Who in the Scottish Government has told him that they do not trust the legal profession? Why would the return of responsibility to the Law Society of Scotland be described as “retrograde”? Why is no attempt made to balance that analysis with consideration of the potential advantages that such a step might bring, for example by having people who understand the legal system design and administer an appropriate scheme?
Predictably, Mr Evans concludes that a rebranded version of the current set-up is the preferred option. Interestingly, he expresses his dislike for the term “Quango”, noting that this has come to be regarded as a term of disparagement. He does not seem to reflect on the reasons for that. Put short, quangos are regarded by informed opinion as being self-serving, bloated bureaucracies. Almost perversely, Mr Evans suggests that an organisation like SLAB is best placed to provide support and information to the legal aid profession because, inter alia, it knows how to “navigate through the complex fee structures”. The fact that SLAB is responsible for the ludicrously complex current system seems to have escaped him.
Essentially, SLAB’s task is to facilitate legal representation for those who cannot otherwise afford it. Why the pursuit of such a simple end has resulted in the Byzantine bureaucracy at Thistle House is a daily source of wonder for many practitioners. The landscape of legal aid needs to be recast so that the people who understand the legal system have significant input, always of course subject to stringent financial oversight within the framework of high professional standards.
It is suggested by the Edinburgh Bar Association that consideration be given to removing responsibility for criminal legal aid from SLAB, or any successor organisation, and placing this in the hands of the Law Society of Scotland with administration to be shared with the Scottish Court Service at the first point of need, thus ensuring shrieval supervision of the behaviour of practitioners. The fact that the Law Society of Scotland is not trusted by the Scottish Government to fulfil such a role is a matter of deep concern and chimes with the perception that the continued existence of an independent criminal bar in Scotland is a matter of indifference as far as the Scottish Government is concerned. The last thing Scotland needs is yet another quango such as the “Scottish Legal Assistance Authority”, suggested by Mr Evans. The example of the most recent quango in this field, the Scottish Legal Complaints Commission, should cause the Government to pause before following Mr Evans’ suggestion.
The Edinburgh Bar Association does not expect that its radical proposal in relation to the provision of criminal legal aid will be welcomed by the Scottish Government, but it does expect it to be seriously considered.