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Legal aid: another look

18 February 13

The Society is calling for all interested members to contribute to a review of how it should conduct legal aid negotiations in future, in the wake of the controversy over the contributions package

by Peter Nicholson

A new structure and remit for the Law Society of Scotland’s Legal Aid Negotiating Team (LANT) are to be discussed with local solicitors and bar associations, following the much-criticised decision to accept the package of amendments to the Government bill covering summary criminal legal aid.

Defence solicitors again questioned the Society’s role of representing as well as regulating members, as the level of opposition to the package emerged. It was reported that a legal challenge to compulsory membership of the Society on human rights grounds was being prepared, but at the time of going to press, no individual had declared their intention to proceed. (The arguments for and against a challenge under article 11 of the Human Rights Convention are set out at Journal, May 2012, 16, and June 2012, 9.)

The concerns were sufficient for Ann Ritchie and Cameron Tait, respectively Presidents of the Glasgow and Edinburgh Bar Associations – both of which had opposed the package – to write separately to Society President Austin Lafferty, seeking clarification of the remit and accountability of LANT.

Lafferty insists that the team – three experienced criminal legal aid practitioners – showed great skill and persistence in achieving the concessions that it did, the Justice Secretary having insisted that collection by solicitors was “non-negotiable”, but many defence solicitors wanted to take a stand on the points of principle raised in relation to contributions.

Council airing

The whole issue ensured a lively debate at Council on 1 February, when the Society’s proposals were discussed. Some members suggested that the Society had “shot itself in the foot”. Some, while more supportive of the decision, asked whether it was appropriate for the Society to continue to negotiate on the detail of legal aid rates, though the view prevailed that as the national representative body for solicitors, it could not simply wash its hands of selected aspects of its role.

In the outcome, the meeting approved the proposal that the President and Vice President should lead a wide-ranging review of how the Society carries out its work on criminal legal aid, involving full consultation with legal aid solicitors, faculties and bar associations on alternative models. It will focus on criminal legal aid, though the outcomes may be used as the basis for changes as respects civil legal aid, also following consultation with members.

The Society has since written to all criminal legal aid solicitors about the review, and the President and Vice President are seeking early meetings with office bearers of the Glasgow and Edinburgh Bar Associations, in view of their expressed concerns.

Pending the review, the Society is attempting to ensure greater co-ordination between the civil and criminal legal aid teams, previously convened separately by the Legal Aid Convener (Oliver Adair, until his resignation), by forming a joint Legal Aid Committee under which the two teams would continue to deal with day-to-day work.

Reaffirming the Society’s commitment to supporting legal aid solicitors and protecting the legal aid budget, Austin Lafferty stated: “These are not new issues, but came into a sharper focus with the legislation to introduce criminal legal aid contributions.

“That’s why we want to ask our members what structure and arrangements they think would best serve their interests and ensure the Society is being as effective as it can on legal aid policy and reform. We are genuinely open minded and want to listen to our members’ ideas and suggestions.

“This also needs to be a real priority, not least because of the big challenges lurking ominously on the horizon, including contracting and likely drives from Scottish ministers to make yet further savings to the legal aid budget. We plan to meet with faculties over the coming weeks and hope that members will engage constructively in this review.”

Vital importance

In response to the announcement, Ann Ritchie said she was pleased that the Society had decided to hold the review. She commented: “It has become apparent that the responsibilities and interactions between the Council, teams and staff members of the Society remain unclear to those being represented, and this is not a situation which can prevail in the year 2013.

“The importance and significance of future negotiations with the Government cannot be overstated for all criminal legal aid practitioners, who are now facing the prospect of contracting, in whatever format, being imposed upon us. I hope that the Society can implement real changes to the current structure at a time when the majority of affected solicitors feel that in the most recent negotiations their views went unheeded.

“It remains to be seen whether the necessary assurances can be given to us by the Society.”

Also supporting the move, LANT convener Ian Moir said he had always sought to pass on information to the profession. “I welcome the involvement of local faculties and have sought to encourage same”, he commented. “At the time the GBA was invited to recommend a member to join LANT, I was the only person to put their name forward. I regard my commitment and the frequent updates by email as an evolving process of improving communication with the profession, and I look forward to hearing views from fellow legal aid lawyers as to how that interaction can be further improved.” 

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