Stand up for our system

Opinion: The legal aid motion adopted by the special general meeting and the Society's Council was born of a deep anger at Scottish Executive indifference

The Journal, June 2006, page 9

I took little satisfaction when the Society’s Council on 26 May adopted as binding my motion passed one week earlier at the Special General Meeting. That motion stated: “The Scottish Executive having failed to honour the commitments to properly remunerate solicitors engaged in solemn work, the Society should withdraw all cooperation in criminal matters from the Scottish Executive and the Scottish Legal Aid Board.”

How did such a radical and historic change of policy come to be adopted without opposition? The answer lies in the mood of anger and disgust amongst criminal practitioners from Orkney to Jedburgh at the Executive’s policy on legal aid. I merely provided the device to turn that mood into a professional commitment designed to challenge their policy.

As a criminal practitioner with 23 years’ experience, I have a proven dedication to the justice system predating the profligacy of a £500m devolved parliament building and indeed the intense micromanagement of the Board. Whilst I have never been a Council member of the Society or indeed held any type of office, I, like many of my colleagues, have watched in dismay the corporate bullying of the profession by the Executive and SLAB.

How has the Executive failed to honour its commitments? It is enshrined in legislation that: “A solicitor shall be allowed such fees as shall be determined to be reasonable remuneration.” In 1992 the then Scottish Office decided that £42.20 per hour for the preparation of solemn work was reasonable remuneration and best value for the taxpayer. (The private equivalent hourly rate for a solicitor was £75.) Fourteen years later that £42.20 rate remains. That simple compelling statistic is conclusive.

However, since devolution, criminal practitioners have had to cope with a blizzard of reforms, 13 pieces of primary legislation alone, not counting the almost weekly amendments to the Criminal Procedure (Scotland) Act 1995. This has significantly increased the complexity of our work and indeed the responsibility that goes with it.

No reforms have been more significant than those in the High Court based on Lord Bonomy’s report. Lord Bonomy knew this and explicitly stated: “It is vital to the successful introduction of the proposals of this review that solicitors receive reasonable remuneration for the different and additional work which they will be required to undertake and the additional responsibility”.

The Executive, anxious to publicise the success of these reforms, should have acknowledged that this success would not have been possible without the commitment and professionalism of criminal practitioners such as myself.

Further, both the Justice 1 Committee of the Scottish Parliament and the Justice Minister, Cathy Jamieson, have publicly called for solicitors to be properly rewarded. This “reward” will be the introduction of solemn block fees. The Deputy Justice Minister, Hugh Henry, told us to expect these in 2006. SLAB undertook to provide costed models before the end of 2005. Despite this, they summarily announced that models would not be available until April 2007! Meantime, after 14 years’ gardening leave, the Executive offered the Society an increase of 8% for advocacy and 5% for all other solemn work – said to be in recognition of “the changes in solicitors’ working practices and the Society’s co-operation in a number of areas of criminal justice reform”.

When the Society rejected this offer and requested a meeting with Mr Henry, they were advised that such a meeting was not an efficient use of his time! This is an astonishing position from a minister in a devolved and supposedly more accountable form of government. It also sent a clear signal that irrespective of financial arguments, the profession is not being accorded even a civil level of professional respect in dealings with the Executive. That message was clearly understood by the many practitioners from all over Scotland who attended the SGM. In short, the Executive’s failure properly to remunerate solicitors is manifest.

The second part of the motion called on the Society to withdraw all co-operation from the Executive and SLAB. This allows maximum flexibility to devise a strategy that fully defends the case for a properly funded criminal justice system. The passing of the motion by the SGM on a huge turnout and without any opposition sends a clear message that criminal practitioners have had enough.

The adoption of the motion by Council now allows implementation of this policy to proceed. Consultations in faculties throughout the country are currently taking place as solicitors ready themselves to defend the system they have contributed so much towards.

Criminal practitioners like myself would much prefer to be left to play their accustomed role in the court system, but circumstances have conspired to prevent that exclusive focus. Strange days indeed…