Scots justice in dock: Solicitors' indefinite courtroom boycott over legal aid crisis

The Herald on Sunday can reveal that public spending on all legal aid over nearly 20 years has dramatically slumped.

In 2007/08 it was at £155 million and in 2019/20 it stood at just £130.85m - a drop of £85m when taking inflation into account. During the pandemic, gross spending has dropped by a further 23%.

But demand for public help with legal issues has soared despite the impact of the pandemic.

According to Citizens Advice Scotland between August 2020 and August 2021, demand for advice on Legal Aid was also up by 32% and the amount of support given for finding solicitors or advocates rose by 22%.

Glasgow Bar Association (GBA) president Fiona McKinnon has warned ministers that there is an "immediate and urgent concern" about the prospects of an independent bar "unless this terminal decline is reversed as soon as possible".

Bar associations are concerned that private defence firms cannot compete with the salaries offered by public bodies such as the Crown Office and Procurator Fiscal Service because the legal aid system because of the underfunding.

Ms McKinnon was alarmed that newly qualified legal practitioners will typically get £25,000 when joining defence teams while Crown Office and Procurator Fiscal Service prosecutors get a start salary of £42,000. The publicly funded prosecutors also get a pension and flexible working.

She has told ministers that she knows of no other profession where "chronic" underfunding would be allowed to continue when those professionals are working for the good and benefit of the public.

She talked of "manifest unfairness" adding: "We no longer have equality of arms and legal aid provision is in crisis.

"Legal aid provides access to justice to people across Scotland and it is a significant concern that the number of registered providers has dramatically declined, particularly for criminal legal aid firm.

"We know that members are leaving the field of legal aid provision as a consequence of the impact of lockdown, further exacerbated by the Crown recruitment drive arising from the resolution of a pay dispute, sometimes doubling their salary, with a pension and better terms and conditions. There are relatively small number of civil legal aid firms causing advice deserts across Scotland."

In June 2011, the number of individuals registered to provide criminal legal aid in Scotland was at 1,415. By June, this year, that number had fallen to 1,054. And there are concerns that the trend is continuing exacerbated by the impact of the Covid-19 pandemic.

The number of duty court solicitors who provide free services to people suspected of or charged with a criminal offence, has dropped sharply in the last year.

According to the Scottish Solicitors Bar Association (SSBA) some 85 solicitors, excluding the Public Defence Solicitors Office, were registered on the duty plan for Edinburgh Sheriff Court alone for the period from July, 2019 to April, 2020.

In the period from July, 2021 to March, 2022 there were 76 registered solicitors and the warning is that the trend is continuing downwards exacerbated by the impact of the Covid 19 pandemic.

Since the start of 2020, 16 solicitors practising at Edinburgh Sheriff Court have left defence work, altogether and ten joined publicly funded bodies and most have not been replaced. Seven moved to the Crown Office, one to the Scottish Government, one to the Scottish Children’s Reporter Administration and one to the Public Defence Solicitors' Office.

Ann Ritchie, a former president of the GBA said four defence lawyers she knew of in the west of Scotlnad had joined the Crown in just one week.

The alarm over underfunding is illustrated through the rates payable for summary cases, which make up the bulk of sheriff court business, ranging from shoplifting to assault and carry a maximum sentence of 12 months imprisonment.

The cases are paid by a fixed fee which when it was introduced by Scottish ministers to prescribe payments for legal aid work done. It was set at £500 and based on the average cost of a case in 1992.

As of December, last year, the Glasgow Bar Association calculated that the current payment of the fixed fee was £499.85 - even after a 3% rise due to an earlier reduction. Taking inflation into account £500 in 1999 should have been worth £873.03 in 2019.

Official figures seen by the Herald on Sunday shows this is reflected in the spending on criminal legal aid cases which has dropped from £79.7m in 1999/2000 to £75.9m in 2019/20.

In 1999 when the modern Scottish Parliament was instituted, the basic salary of an MSP was £32,422. Now it is almost double that at £64,470.00.

The SSBA say that while there is an increase in fees of 10% over two years announced at the end of last year as a step in the right direction it is not enough to rectify "decades of underfunding".

The Glasgow Bar Association has also highlighted a "disastrous" implementation of a resilience £9m resilience fund set up to help legal aid lawyers cope financially following the downturn in court work over the pandemic compared to a £23m underspend of the legal aid budget.

Then justice secretary Humza Yousaf said it was a “significant package of support” for legal aid practitioners who had “worked hard since the Covid-19 outbreak to help maintain access to justice services”.

As of May, it had paid out just £2.3 million of its £9m. Of the 287 firms that applied for funding, less than a third were granted an award.

A symptom of the unrest has come as defence solicitors from the Glasgow, Aberdeen and Borders bar associations and Peterhead defence solicitors made a decision to boycott holiday custody courts.

It comes after the Lord President, Lord Carloway, confirmed that the courts would be convened on court holidays. But defence lawyers say they were not consulted nor were offered additional remuneration, in contrast to prosecutors and others.

Glasgow Bar Association, which has 350 members, say that at last Monday's holiday court in the city at least 37 accused ended up representing themselves.

The SSBA supported the action saying: "The pay disparity between the criminal bar and all other parties has been well rehearsed, but this is about more than money.

"As the backlog is tackled, more work will be required from a rapidly shrinking defence sector.

"With an increasing workload in a sector already struggling to attract new talent due to financial disparities with the Crown, it is little wonder that solicitors are leaving criminal defence work in their droves. Soon there will be no one left."

Roddy Dunlop, Dean of the Faculty of Advocates, which fights to ensure all, regardless of wealth and background get access to the best objective legal advice, responded saying: "These are worrying developments. Many young criminal lawyers are leaving defence firms to go to the fiscal service for this very reason. A properly funded defence system is essential and without it the administration of justice will suffer, and wither, and die."

The Glasgow Bar Association has raised its objections to the state of the defence system in Scotland with Justice Secretary Keith Brown while stating that in a poll of members all agreed to the holiday court boycott.

They said in a letter: "This would ordinarily be anathema to us as our raison d’etre is to help those who are most vulnerable in our society.

"It is clearly symptomatic of decades of underinvestment in the defence and the widening gulf in investment between Crown and defence.

"Insult has been added to injury by the underspend in the Legal Aid budget by £21.5 million during the pandemic compared to the reinvestment of £9 million, disastrously implemented by your Resilience Fund and only rescued with the input of Bar Association Presidents and Law Society representatives after consultation with your representatives.

"Those reinvested funds, of course, pale into insignificance when compared with the payouts arising from the failed Rangers Football Club prosecution, which will forever leave a stain upon the Scottish justice system."

As of May, taxpayers face a bill of more than £100m for the malicious prosecutions scandal over the failed case.

It emerged after Duff and Phelps, the company responsible for the administration of Rangers during its financial implosion in 2012 is pursuing a £25m compensation claim against the Lord Advocate over the collapsed case which alleged fraud over the sale of Rangers.

"That there is complete unity about this demonstrates the strongly held beliefs that practitioners have about their treatment by successive Scottish Governments and the apparent lack of respect towards us amongst our justice partners," the association said.

Citizens Advice Scotland in a new analysis said: "We believe that significant reform of the legal aid system, to place the user at the heart of it, is required.

"CAS believes that no-one should be excluded from accessing justice on the grounds of cost or geography. The legal aid system should help ensure that everyone who has a legal issue is able to find help to resolve it.

"The Scottish Government and other agencies such as the Scottish Legal Aid Board, need to help ensure this issue is resolved."

SLAB says that fair remuneration for those providing legal aid services "is essential, as is a more rational and evidence informed way of assessing and regularly reviewing the fairness of the level and structure of legal aid payments".

A Scottish Government spokesman said: “We have acknowledged the important role of criminal defence solicitors.

“We have committed to consider other issues raised by the profession, including with reference to public holidays. A package of specific funding has been developed in consultation with the profession to support the contribution of the legal profession during the forthcoming COP26 conference.”