Legal aid lawyers have been undervalued for a generation
CRIMINAL defence solicitors are the latest group of workers in Scotland to take industrial action over the COP26 period.
They now join Scotrail staff, Glasgow bus drivers, city cleansing workers, school cleaners and janitors in exercising their inalienable right to withdraw their labour to stand up for equitable pay and better conditions.
The common thread in all of this strike and boycotting activity isn’t the fact people are simply disgruntled or hacked off, rather all of these disputes have had many years in the making. People have been ignored and fobbed off for a long time and the chickens have come home to roost.
Let’s not forget we’ve known for over two years the COP26 summit was taking place in Glasgow – that’s two years to have sorted out some competent industrial relations policies.
The history of legal aid in Scotland over the last 30 years has been a melancholy tale of neglect and atrophy. Inflation went up every year and rates of pay remained static or were sometimes reduced.
Total expenditure for civil and criminal business was £155 million in 2007/8. That fell to £130m by 2019/20. If inflation’s accounted for that’s an annual drop of £85m – more than half the budget.
During the Covid-19 year of 2020/21, the Scottish Government spent £74m on criminal legal aid which was a drop of £21.5m from the previous year. Many criminal defence fees are arbitrary “block payments”.
All of the work leading up to an including the first 30 minutes of a trial is paid at around £300 to £500 depending on whether it’s a justice of the peace (JP) or sheriff court trial. No matter how complex or time consuming that responsibility is.
Spending a day conducting a trial that could make the difference between liberty or jail is paid at £108.15 – or £54.08 in the
JP court. Representing a client who appears in court from police custody may require a solicitor to wait around for hours and never get paid a penny under the legal aid rules.
While many people might not shed a tear for
those who defend persons accused of crime, that view will change if they, a family member or friend is the accused. Everyone is presumed innocent until proven guilty according to law.
Article 6 of the European Convention on Human Rights guarantees everyone the right to a fair hearing before an impartial court and in criminal cases that must include legal representation to be given free in the interests of justice if the person can’t afford to pay.
As the English jurist William Blackstone said in 1769, it’s better that 10 guilty persons escape than one innocent suffers.
Last week, the Scottish, Glasgow, Edinburgh and Aberdeen bar associations all elected to opt-out of the Scottish Government’s “COP26 Duty Plan” for representing those accused of COP26 related criminal incidents. The Duty Plan includes Saturday and Sunday courts over three weekends.
Fiona McKinnon, President of the Glasgow Bar Association, advised the Scottish Government that, “We are undertaking an unprecedented level of business at court to clear the backlogs that arose when only urgent business took place during the early stages of the pandemic. The suspension of jury and summary trials during the conference will only add to the backlog”.
“We have fewer practitioners undertaking more work. There is no scope to take on more business, particularly when we are given less than two weeks’ notice of your proposals, the proposals are incomplete and not all practitioners received your proposals”.
Over the weekend the response from the Community Safety Minister, Ash Regan MSP, seems to have went down like a lead balloon with the legal profession.
The Minister said: “I am disappointed that a number of Bar Associations have decided not to participate in the COP26 or nonCOP26 weekend duty schemes, despite the proposals from Law Society of Scotland being agreed in full”.
“I am also disappointed and concerned about the way in which the Government’s engagement with the profession on this issue and wider legal aid matters has been presented by some in the profession”.
What the Scottish Government fails to appreciate is they have provided too little too late. The Scottish Solicitors Bar Association (SSBA) responded to the Minister by saying, “Try being undervalued for a generation”.
While the Minister has allocated an extra legal aid package of £20m over the next two years, she has invested £56m extra in prosecution lawyers and £50m extra in the court system.
I find myself agreeing with the SSBA who point out that the criminal defence bar has lost 25% of its solicitors over the last decade. Scotland won’t have a defence bar unless there is an equality of treatment between all parts of our publicly funded criminal justice system.