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EBA letter to Ash Denham

16th January, 2019.

Ash Denham MSP,

Minister for Community Safety,

Scottish Government,

St Andrew’s House,

Regent Road,

Edinburgh

EH1 3DG

Dear Minister,

CRIMINAL LEGAL AID

REVERSAL OF TEMPORARY FEE REDUCTIONS

I am writing to you in my capacity as President of the Edinburgh Bar Association.

Last November, you announced an increase to Legal Aid rates of 3% with effect from April, 2019. That announcement represented a rejection of one of the central findings of Martyn Evans’ Legal Aid review. The Edinburgh Bar Association is of the view that a lot of time can be saved if the Government rejects Mr Evans’ review in its entirety, given the widespread condemnation which it has attracted. In particular, the proposal for reviewing lawyers’ fees is liable to occupy time which the profession does not have. It is also likely to attract expense which could be spared altogether if the Government simply reviewed Legal Aid rates annually in the same way as happens in other areas of the public sector.

The increase which you announced in November was recently described as having been met with indignation and incredulity. The Edinburgh Bar Association would go further: in our opinion it has served to exacerbate the low morale experienced by criminal solicitors which even Martyn Evans was struck by. It will do nothing to alleviate the difficulties faced daily by those who work in the system of criminal justice, nor will it do anything to attract the new lawyers which that system so desperately needs.

The Edinburgh Bar Association is of the view that the increase which has been announced is entirely unrealistic and represents an abject failure by the Scottish Government to properly appreciate the extent of the problems which exist in the system of criminal Legal Aid. Those problems have developed over a number of years as a result of conscious decisions taken by the Scottish Government and in the face of repeated warnings given in good faith by criminal solicitors.

The increase which has been announced does not actually represent any increase in funding for solicitors. If one considers the figures published by the Legal Aid Board last month, it can be seen that 3% of criminal Legal Aid expenditure on solicitors equates to just over £1.7 million. The underspend on police station advice this year is projected to exceed £2 million. In other words, there will be even less money allocated to criminal Legal Aid for solicitors next year than in this one.

There is a more fundamental reason however why your announcement does not represent an increase at all: it is that the rates for which criminal Legal Aid solicitors work are already artificially reduced. In 2011, the Scottish Government decided to reduce the rates payable in respect of both solemn and summary criminal Legal Aid. That decision reduced the block fee payable in summary cases from £515 to £485 in the Sheriff Court and from £315 to £295 in the JP. It also introduced a single fee payable for multiple deferred sentences whereas solicitors had been paid for each case until that point. The block fee payable where an Accused pleaded guilty at a stage subsequent to first appearance and where the duty solicitor had initially been utilised was halved. In solemn Legal Aid, fees payable for travel were halved as well.

The cuts which were made in 2011 did not have any logical basis, nor did the Government attempt to articulate one. In fairness, it is impossible to rationalise the payment of half a fee where the duty solicitor is initially used given that such cases invariably involve more work standing the absence of a pre-existing relationship between the agent and the client. Similarly, the halving of the rate payable for travel cannot on any view be justified given that this is an element of a solicitor’s work over which he or she has no control whatsoever.

Purely and simply, the cuts which were made in 2011 were intended to reduce expenditure on Legal Aid. The co-operation of the legal profession in their implementation was secured through a promise that the reductions were temporary and that the rates previously agreed would be reinstated in due course. The objective was that the cuts would reduce expenditure by 7%; expenditure on criminal solicitors has in fact reduced by an astonishing 31% since then. Nevertheless, the Government has still not reversed those reductions.

When you made your announcement in November, you stated that the Scottish Government “values the professionals who undertake legal aid work, often for the most vulnerable in our society.” Given the way in which this profession has been treated in recent years, this statement has understandably been met with scepticism. However, if you maintain that the sentiment is genuine, the first thing which the Government must now do is to honour the promise which was made to the legal profession in 2011 and immediately reverse the cuts which have done so much damage to this essential public service. If nothing else, we now know that the extent of the reduction in criminal Legal Aid expenditure since 2011 is such that the money needed to fulfil that pledge is now readily available.

Yours faithfully,

LEANNE MCQUILLAN

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