Date: 11 June 2019
Mr Humza Yousaf MSP,
Cabinet Secretary for Justice,
St Andrew’s House,
Dear Mr Yousaf,
I refer to your letter to Margaret Mitchell MSP, Convenor of the Justice Committee, dated 15th April 2019.
The EBA is pleased to note that you acknowledge there is evidence to support an increase in Legal Aid fees by introducing an across-the-board uplift of 3%. We do not consider that this increase is sufficient. We would be obliged if you could clarify what evidence you considered to arrive at that figure.
You refer to action being taken by “a small minority of individual Bar Associations”. This is at best disingenuous, standing the fact that the Bar Associations of all of Scotland’s major cities, apart from Glasgow, were involved, together with a significant number of others.
The fundamental problem in relation to Legal Aid and the future viability of the criminal bar is that successive Scottish Governments have deliberately sought to create a difficult climate for criminal practitioners in the private sector.
Before the financial crash, there had been no increase since 1992 in criminal Legal Aid fees and the truth is that the financial crash provided a useful excuse for the Scottish Government/SLAB to introduce cuts which were said to be temporary. The profession was persuaded to accept the cuts on that basis. The Law Society representatives at that time worked hard to sell the package of cuts on that basis. You say that “despite intensive investigation, by both Scottish Government and SLAB, we can find no evidence of any promise to reverse the cuts made to Legal Aid fees in 2011”. Have any steps been taken to contact the EBA about this? Our members can speak to the fact that the cuts were designed to be temporary- that is evidence- but we have not had any contact from the Scottish Government or SLAB in relation to this matter. We note that “despite intensive investigation” you have not produced any evidence that the cuts were to be indefinite.
The reduction in Legal Aid expenditure since 2010/11 is approximately 34%. The cuts introduced at that time were intended to find an 8.2% reduction in the Legal Aid fund. Further, there has been a significant underspend in relation to the money set aside for police station advice. In neither situation has the Scottish Government seen fit to apply any of the savings to introduce reasonable, fair increases in Legal Aid.
By way of contrast, there has been a determined effort to expand the PDSO. The EBA stands by its assertion that the costs of the PDSO are disproportionately high. Your reference to the fact that the PDSO costs include “salaries, pension costs and building costs” is of course true, but that supports the EBA’s assertion. We note that members of the EBA incur all of the above mentioned costs.
In relation to the number of courts in Edinburgh, you have indicated that the Scottish Government apparently can find no evidence to support the EBA’s statement that the number of criminal courts has increased by one quarter since 2011. The simple fact is that there were eight criminal courts sitting regularly in 2011 and there are now ten. There is an additional jury court and the Domestic Abuse court has been introduced. On a regular basis, an additional Summary trials court also sits. Perhaps it would have been more straightforward if one of your officials had taken the trouble to telephone one of the EBA office-bearers.
You indicate, in relation to the reduction in numbers of solicitors providing advice in criminal matters, that “initial analysis suggests that the number of trainees currently involved in criminal practice do not indicate a cause for concern in the future”. It would be helpful if you might be good enough to share that initial analysis with the EBA.
Your indication that your officials have been instructed to obtain further information from the EBA in relation to points raised around age and gender in the profession is noted. That has yet to happen and we look forward to engaging in that process.
There remains within the membership of the EBA a strong sense that the 3% increase, whilst of course welcome on the basis that it is better than nothing, is woefully short of what is required to address the fundamental unfairness of what has happened to the profession in relation to Legal Aid fees over the last quarter-century.
We look forward to receiving your comments.
Edinburgh Bar Association
c/o Edinburgh Sheriff Court
Chambers Street, Edinburgh EH1 1LB