EDINBURGH Bar Association’s (EBA) criminal law members have withdrawn from a legal aid duty scheme that covers the Justice of the Peace court, saying that due to dwindling numbers they no longer have the capacity to handle the work.

In total, 91 solicitors from 35 firms have decided to stop providing cover to the Scottish Legal Aid Board’s (SLAB) Justice of the Peace rota, leaving just four private practice solicitors from four firms on the plan. The association will continue to provide cover for the Sheriff Court, Domestic Abuse Custody Court and extradition rotas.

EBA vice-president Robert More said the decision had been taken after the association “conducted a review of our capacity because our numbers are dwindling”, with ongoing concerns about the level of fees paid for legal work seen as a major contributing factor to the decline.

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“Approximately a quarter to a third of our number has left since 2011,” he said.

“That includes retirements and people who have left the profession, but an alarming number of young people have left and that has continued since the publication of the [Scottish Government-commissioned] legal aid review.

“I know the review was received with fairly profound disappointment among legal aid lawyers in Edinburgh.”

Conducted by Carnegie UK Trust chief executive Martyn Evans, the legal aid review ruled out across-the-board increases to legal aid fees, despite those operating in the sector arguing for many years that static fee levels are to blame for driving senior lawyers out of criminal work and dissuading junior lawyers from going into it in the first place.

While a spokesman for SLAB said that the organisation would be “happy to discuss ideas for changing the way the [duty] plan operates in Edinburgh”, Mr More said capacity issues mean the association is considering whether to withdraw completely from SLAB’s rotas.

“We are reviewing all the work that we undertake and are considering whether there is other work that is untenable for us to continue doing,” Mr More said.

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The SLAB spokesman said the Edinburgh Justice of the Peace duty plan would now be covered by the four remaining EBA solicitors as well as lawyers from the Public Defence Solicitors’ Office (PDSO), adding that this will be possible because the number of cases that go through the Justice of the Peace court is small.

However, for Law Society of Scotland legal aid committee co-convenor Ian Moir, the number of cases being heard in the Justice of the Peace court as well as the way such cases qualify for legal aid is an exacerbating factor that could prompt other bar associations to follow Edinburgh’s lead.

“You have to have a lawyer available at court [when your firm is on the rota] and often they don’t do anything at all but you can’t do other work like visit a prison and you only get paid if you put someone through the court,” Mr Moir said. “Even if you see someone in a cell you don’t get paid for it. I would expect that other bars will probably follow the EBA’s lead.”

At the beginning of this year bar associations and local faculties across the country came off SLAB’s police station duty scheme in the wake of the EBA making the same move in December 2017.

At the time the EBA said it was shunning the police rota over concerns that laws introduced in January that give all suspects the right to legal advice, regardless of the severity of the offence they are being questioned about, or whether they have been charged, would lead to a dramatic increase in working hours.

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Specifically, due to staffing levels, they said those on the scheme would be put in the position of having to answer police station calls throughout the night while also having to service their own day-time court and client commitments.

Staff from SLAB’s own Solicitor Contact Line, which is the initial point of contact for police station calls, and the PDSO have been covering that work since, although two firms each in Dumfries and Dunfermline and one in Dumbarton have rejoined the police duty scheme.

Meanwhile, the Government, which has been reviewing Mr Evans’ recommendations since he issued his report in February, is expected to issue its response in the coming weeks.