A month of contrasts

President's message: The past month's events offer reasons for optimism, but the Society recognises and shares the real concerns over the future of legal aid

The Journal, December 2005, page 7

When I became President of the Society, Douglas Mill told me that this would be the fastest year in my life. How right he was. The year so far has been challenging and enjoyable and I have particularly enjoyed visiting faculties and discussing major issues with the profession.

In November, Douglas and I visited both West Lothian and Stirling Faculties. The turnout at both was excellent and I do hope the Faculties found the sessions informative. Understandably at faculty visits, people raise issues that are of concern. After 90 minutes of concerns there can be a sense of gloom, but Douglas and I also share with the faculties our overall sense that we are in good shape as a profession and there is much to be positive about. The profession continues to adapt well to constant changes to practice and has an excellent reputation both within the UK and abroad.

Some very real concerns continue to be raised on stamp duty land tax and legal aid. I have some difficulty in being upbeat about legal aid. The Society has consistently taken the view that it is best to work with the Legal Aid Board and the Executive to improve access to justice. This includes obtaining a fair remuneration for work carried out. The Legal Aid Convener, Oliver Adair, shares my view that increasingly the main issue with the Board is cutting costs. For my own part I am increasingly finding that, in advice and assistance cases in particular, the hardship rules are being applied extremely strictly so that work legitimately carried out is not paid for.

Legal aid rates are comparatively low, partly because payment is almost guaranteed, but I sense that we are reaching a stage where payment is neither at a proper rate nor guaranteed. Firms may have to consider carefully whether it is worthwhile taking certain cases on if paid under the advice and assistance scheme. The view of the Board appears to be that if a private client would not have spent money on a particular issue then a solicitor should not be admitting that client to advice and assistance. This is not how I would interpret the Legal Aid (Scotland) Act and is certainly not access to justice in my view. I know that in criminal cases there is increasing concern about the time it is taking to finalise the new solemn fees so that the Executive can consider an increase. 

You will have followed the media interest in the Faculty of Advocates. As a result of their refusal to take on certain cases, emergency regulations have been pushed through, to operate  retrospectively. I know that there are many in the profession who feel the solicitors’ branch of the profession should adopt similar tactics and I will continue to promote those concerns.

On a more positive note it has been an upbeat month for me. I attended the excellent In-House Lawyers AGM/conference and dinner at the beginning of the month and the group is to be commended on its continued enthusiasm. The New Partner Course and the Admission Ceremony were chances to meet new solicitors and partners. I also enjoyed being involved in the sole practitioners’ conference. Speaking in Brussels at the end of November in the legal system section of “Best of Scotland Week” reminded me that they really do hold Scotland and its legal system in high regard.

Last month I highlighted that many respondents to the Executive’s consultation in relation to complaints handling favoured change. Although the responses were not weighted in terms of numbers represented, the majority of responses favour an independent complaints-handling body. Complaints handling has been debated long and hard at Council. I have written to you all with the Society’s current thinking on what should be done. I am keen to stress that the profession must not be overburdened with additional expense as a result of such a body being created. There is a high risk that there could be access to justice issues arising from the creation and funding of such a body both in rural areas and in firms dealing with general practice. I will continue to work with the team at the Society to ensure the Scottish Executive is alive to those concerns and to promote the independence of the profession in Scotland.

I wish you all the best for Christmas and the New Year, and I hope that your return to work is invigorating and not marred by an excess of turkey and the office party! I speak aspirationally.