Legal aid review gets down to work

Society's letter to criminal practitioners on its work with the Scottish Government and others to monitor implementation of the summary legal aid changes

The Journal, July 2008, page 39

The Society recently wrote to all criminal practitioners to update them on the current situation with the review of the legal aid changes that took effect on 30 June 2008.

The review group, set up by the Scottish Government to monitor implementation of the changes, was due to meet in early July. The group involves the Society, government officials and the Scottish Legal Aid Board, and also, at the Society’s suggestion, the Crown Office and Procurator Fiscal Service.

The Society’s representatives are Ken Dalling from Stirling, Ian Bryce from West Lothian, Vincent McGovern from Hamilton, John Scott from Edinburgh and Oliver Adair, convener of the Legal Aid Solicitors Committee – all practising criminal lawyers, chosen because of their significant involvement in earlier discussions with government officials and the Justice Secretary.

The substance of the letter stated:

The review group first met on 29 May to try to clarify its terms of reference and ensure that the Society can get access to the fullest possible information, in particular the data relating to the assumptions [regarding volume of summary criminal business] that underpinned the consultation. As with faculties and bar associations throughout the country, we believe that those assumptions were totally wrong, perhaps especially in relation to the assumption that there would be 26,600 failed (i.e. challenged) direct measures.

We made this point in earlier discussions and will follow this through when the statistics are available. We are sure that we will be proved right, in which case the review process will identify any necessary corrections.

We have not forgotten the need to remind the government that there has been no increase in summary criminal legal aid rates for many years. We are working on the basis that the review group should be gathering information with a view to helping us to make the case for such increases. We are also gathering information with a view to informing the process of preparing primary legislation to try to make sure that any problems with the new regulations identified from 30 June can be corrected. We see the current regulations only as an interim measure, on the basis that we were told that there was no slot for primary legislation.

Uncharted territory

We appreciate that this is uncharted territory and the present is a time of great worry for the profession, especially those practising criminal law. It is our intention to get as much information as possible to the profession once the review gets properly underway. Please get in touch with us if you have information we need or which should be fed into the review process.

It is important to remember that the review is not concerned with diversion per se. That is a matter for COPFS, and the government cannot interfere in an area of responsibility of the Lord Advocate. We are very aware of the issues there, but the review group is to look primarily at the legal aid implications of the reforms.

There are those in the profession who are cynical about the process when it comes to the review of legal aid. The Society is clear that following a consultation process, which was extended, there have been significant changes to the original proposals. Even after the consultation process had finished, the Cabinet Secretary agreed to make further concessions at the last meeting he held with a representative group of deans and presidents of local faculties and bar associations.

We are not asking for blind faith – and each practitioner and faculty will decide for themselves – but for those of us who have been involved for years in trying to discuss and negotiate with politicians and officials, this consultation has been different.

The review process will run for some time, probably well beyond this year, but the first major staging post will be in December 2008. The Cabinet Secretary has indicated that he will meet with us again at that time. In the meantime, we are of the view that we can improve our position best by taking part in the review process and reminding the government of the flaws we have already pointed out, as well as any unforeseen problems.

Keep in contact

The Society has met with the Glasgow Bar Association to discuss a joint way forward. Whether this is possible is largely up to them now. We understand that the GBA may proceed with a motion for a Special General Meeting of the Society. With regret we think that such a course would be counter-productive. This is a time for unity in the profession, not division. The GBA has many talents and much energy at its disposal, which should be used to the greatest effect. None of us, or our faculties, has undertaken that we will merely accept whatever is given to us by government.

Already in the review process we have identified a problem with the draft regulations that related to matters never discussed in the consultation process. The regulations were amended to reflect our concern.

Perhaps through a lack of information there has been some unhelpful division in some areas. While different faculties have decided in good faith on different approaches, we should proceed on the basis that we all agree that the legal aid settlement needs to be monitored and improved. As a first communication we attach at the bottom the contact details for the review group members. Please feel free to call us to advise of concerns or give us information you think we need.