EBA Response to Scottish Government Legal Aid Proposal - July 7th 2022
The Edinburgh Bar Association is bitterly disappointed at the wholly inadequate proposal for fee reform published by the Scottish Government on 1st July 2022.
Trying to stop the never-ending tide of departures from the Legal Aid arms of the profession with some paltry tinkering around the edges will do nothing to prevent the pernicious erosion of access to justice presided over by the present administration.
We are asked to stop all action we are taking while discussions are still ongoing. We are told that we are being engaged with, which is simply untrue. We are told that our importance is appreciated while being disregarded and disrespected. To use a phrase that seems de rigueur at present, we have no confidence in the intentions of those responsible for justice in Scotland.
We look forward to seeing full and detailed proposals. The short bulletpoint proposals published to date are as inadequate in their volume as their content. Any such detailed proposals will be given full and proper consideration, though developments so far leave us with little room for optimism.
Meantime our members are actively considering what further action can be taken to demonstrate our ongoing concerns for the administration of justice in Scotland.
EBA UPDATE - WEDNESDAY 5th JANUARY 2022
Members of the Edinburgh Bar Association today announce their withdrawal from all duty solicitor schemes at Edinburgh Sheriff Court, effective from Monday 31st January 2022.
The ongoing decimation of the independent criminal bar continues without any meaningful work from successive governments since the advent of devolution to stop the rot which has continued for more than an generation.
Funding for trainees is of assistance, but absent any ability to compete with terms offered by public sector organisations we are being left to train graduates for others to derive the benefit from their skills.
We have engaged at every opportunity to try and inform others and draw attention to our plight. It is not a situation that can endure lengthy consultation with gaps of several months between meetings. Help is needed now, or the criminal justice system will simply stop functioning.
If this is allowed to happen, the impact on all accused, complainers and witnesses will be unprecedented.
We hope that such an unprecedented step as withdrawing our service from the duty rolls will call the necessary attention to our situation, and the urgency of it. We would also call on other Bar Associations nationwide to follow us in taking this action.
EBA UPDATE - MONDAY 18th OCTOBER 2021
The Edinburgh Bar Association has a proud history of working to seek better conditions and payment for our members.
Since our working lives were turned on their heads by the Covid-19 pandemic we have sought at every opportunity to engage with our criminal justice partners to facilitate the running of the courts in as efficient a manner as possible.
Regrettably, in spite of limited offers of assistance which have done little to address decades of neglect in Legal Aid funding, the criminal bar continues to be decimated.
This year alone COPFS have been able to embark on three rounds of recruitment, and in each of these there are more and more young solicitors lost to the defence bar. We have reached a crisis point. Unless there is significant work done to address the imbalance and manifest inequality of arms in the criminal justice system, the system will soon grind to a halt.
It is in this background that we have been asked to assist with what is expected to be a vast number of arrests and consequent prosecutions stemming from the COP26 conference.
Today, 13 days from the beginning of the conference there is still an ongoing lack of clarity as to the practicalities of the running of the courts to process these anticipated arrests. We find this absolutely stunning given the originally planned dates for the conference.
We have engaged for weeks now with representatives of the Scottish Government and Scottish Legal Aid Board who have proposed what might seem an attractive feeing system bespoke to COP26 business to ensure our cooperation. Notwithstanding this, we are disappointed to note that in spite of our Association having withdrawn from the Police Station Duty scheme in 2017, it was still expected that we would accede to assisting with this for the duration of COP26. At no time did we express any willingness or intention to do so.
This leaves us positing why matters pertaining to a conference of this nature can justify such apparent generosity while we are told at every opportunity that there is no justification for this in order to keep the everyday functioning of the courts in order at all times.
In light of this, and in light of the fundamental lack of capacity of our members to take on such anticipated volumes of work, our members have as an association voted not to engage with the proposed COP26 duty solicitor scheme. We cannot in any good conscience do so at a time whereby we are stretched beyond capacity on a daily basis and retain professional obligations which must be upheld.
This is not a decision taken lightly, but we hope it serves as an indicator of what will continue to happen with the criminal justice system if the alarming inequality of arms is not addressed. The only way in which this can properly be addressed is with a significant increase in Legal Aid fees. These fees remain largely unchanged since 1999. To suggest that this is reasonable is patently unstateable.
We will continue to do all we can to achieve this, but without a change in attitude of those responsible for the management and administration of Criminal Legal Aid, we fear that the system will soon simply not be able to function.
We are heartened however by the response of those other Bar Associations around the country who are similarly impacted by the spectre of business relating to COP26 and are adopting the same position as we are. We are delighted to stand with our colleagues around the country in seeking properly funded access to justice.
LORD PRESIDENT'S ANNOUNCEMENT
Following upon the Lord President's recent announcement about Covid safety measures at court and his accompanying Youtube message, the EBA have sent the following letter to him. The video can be viewed here.
Dear Lord Carloway,
The Edinburgh Bar Association feel compelled to write in response to your release of 5 January 2021 and the associated video providing instruction for court practitioners.
While we welcome the basis upon which your statement was made, mindful of all of our efforts to minimise the spread of Covid-19, we are disheartened and disappointed at both the content and the tone thereof, culminating in a threat of consideration of contempt to practitioners who may be forced to conduct their work in a certain manner due to circumstances outwith their control.
Our Association has sought to be involved in any and all modifications to the Court process since the advent of restrictions in March 2020. Unfortunately the fundamental inadequacy of the Court estate has and continues to hamper us in our efforts.
Your statement indicates a requirement for practitioners to consult with clients prior to attendance at court. Unfortunately, in a majority of the cases which are presently calling in the Sheriff Court this is impossible to allow our members to be sufficiently prepared to address the court.
Aside from Summary Intermediate Diets (most of which should not be calling given the terms of Criminal Courts Practice Note No 4 of 2020), and Solemn First Diets, all other callings of cases at present will invariably require some short notice consultation on the day. For instance, those accused answering bail undertakings will not receive their papers until they attend the Court building. Similarly, those appearing for diets of deferred sentence will likely be the subject of Criminal Justice Social Work Reports. Again, these are not made available until shortly prior to the calling of the diet.
In addition, in those summary trials which are proceeding, there is an unavoidable necessity to consult with accused persons about developments in their cases which materialise on the day thereof, let alone issues which may arise during the leading of evidence. Again, short notice discussion and consultation with accused persons has to take place in such instances.
In Edinburgh Sheriff Court there are four consultation rooms in which practitioners can consult with clients. None of them benefit from any external ventilation or air supply. None of them can adequately accommodate social distancing. There are no facilities for these rooms to be cleaned or sterilised between consultations. Sadly this represents an inherent deficiency in the Court estate which only serves to be exacerbated by the pandemic. Quite how our members can be expected to conduct business without consulting while within the Court building, let alone doing so ensuring confidentiality is beyond us.
We echo the concerns expressed by the Glasgow Bar Association regarding any possible suggestion of instruction being taken, or consultations taking place outside, or in the vicinity of the Court building in light of the judgement in Gallagher v HM Advocate. We do not believe that Chambers Street, a busy thoroughfare in Edinburgh City Centre represents an appropriate location for such important and confidential discussions. This leaves us with no alternative but to use whatever space we can find while striving to maintain appropriate distancing, within Edinburgh Sheriff Court.
In order to highlight these deficiencies that we must work with we would like to extend an invitation to you to attend Edinburgh Sheriff Court to see our facilities. Should you be willing and able to attend we look forward to hearing from you to arrange a convenient date and time.
As our colleagues in Glasgow have noted, the goodwill of the defence Bar has been a critical factor in the tentative steps to reintroduce business to the Court at all levels. The way in which we have been disregarded and dismissed has now all but eroded said goodwill. We hope to continue our meaningful engagement with all criminal justice stakeholders both to minimise our exposure to a deadly virus and to ensure the ongoing functioning of the system. To allow us to do so we must ensure the difficulties we experience are recognized and sought to be overcome.
As with our colleagues in other jurisdictions we would be delighted to be involved in discussions about how we can improve matters. Any such improvements will only serve to benefit all who have any involvement in the Courts. We look forward to hearing from you in respect of the concerns we have highlighted.
The Edinburgh Bar Association
8th January 2021
STATEMENT ON BEHALF OF THE EDINBURGH BAR ASSOCIATION
27 NOVEMBER 2020
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.
On the 5th November 2020, we wrote to the Justice Committee to express our increasing concern about the underfunding of the legal aid profession. The fixed fee for criminal summary trials was fixed in 1999 and has been repeatedly cut. Despite the 3% increase in fees across the board announced in November 2018, previous cuts mean the fixed fee for a summary trial is lower than it was in 1999. It is 21 years since that rate was fixed.
The problems faced by the profession have been growing for decades and have been exacerbated by the Covid 19 pandemic. When lockdown was introduced in March this year, most of the business in the Sheriff Courts ground to a halt. Legal aid practitioners were required to cover urgent business, predominantly custody cases. Like many key workers, we put our health and safety at risk. Our members did so willingly in recognition of the essential role they play in the administration of justice. Our members had to adapt quickly to new ways of working such as increased use of video link hearings. Unlike other ‘Justice Partners’, we were not given any support to fund increased use of technology. (Contrast that with the £2.9 million awarded to the Crown Office and Procurator Fiscal Service in the last quarter of 2019/2020 to upgrade technology). Many of our members (around 40% at the height of lockdown) were placed on furlough and suffered a significant drop in income. Similarly, the self employed saw a dramatic decrease in earnings.
Throughout lockdown, there has been a huge reduction in the number of new cases being prosecuted. Consequentially, there has been a decrease in the number of applications for legal aid. This has resulted in a significant saving to the Scottish Government in the legal aid budget. Given that other industries have received specific support to help them through lockdown, we cannot understand why similar consideration has not been given to the legal aid profession. This is particularly hard to fathom as money is readily available as a consequence of the reduction in legal aid spend.
There is a mounting backlog of cases and it will be essential to have a strong and viable bar to process those cases. The Scottish Government do not appear to agree, having done little to support and maintain the profession throughout lockdown.
After months of negotiation between the Law Society of Scotland and the Scottish Government, there will be no grant funding made available to assist with the immediate difficulties caused by the corona virus pandemic. There will be no increase in fees across the board to tackle the long term problems faced by the profession. Instead, the Scottish Government have issued a vague promise of an unspecified new payment applicable to a relatively small number of solemn cases and some support for trainees (for whom the career prospects remain bleak after qualifiying).
We have been told our members must now work on public holidays. Monday the 30th November 2020 is the St Andrew’s Day public holiday created by the Scottish Government. The court would normally be closed on this holiday. The court will now be open for custody business. Most of the staff at court on Monday will be paid an enhanced rate for working on a public holiday. Defence agents do not receive any additional remuneration or indeed any recognition for this work. It is frankly insulting that the Scottish Government ignore our pleas for assistance over the last two decades and now expect us (without any consultation) to work additional days. It is a measure of the level of contempt with which we are treated that they do not even see fit to redistribute the saving in the existing legal aid budget to help us at a time of global pandemic. For these reasons, the members of the Edinburgh Bar Association have voted overwhelmingly not to attend court on Monday 30th November 2020.
Edinburgh Bar Association