Letter from the Minister for Community Safety to the Convener, Criminal Justice Committee, 3 November 2021
I note and share the concerns expressed by the Committee regarding the current action being taken by most criminal defence solicitors across the country, which has extended since you wrote to me beyond the COP26 weekend custody courts.
The issues at the heart of this dispute are focused on legal aid policy, which is my responsibility. The operational responses required to minimise its impacts come from across the criminal justice system. Most immediately in terms of the availability of solicitors to represent those appearing from custody, day to day operational responsibility lies with the Scottish Legal Aid Board (SLAB). My officials are working closely with the team at SLAB, as well as other justice partners, to manage impacts on accused persons and the effective operation of the criminal justice system. This letter has been shared with Colin Lancaster, SLAB’s Chief Executive, and reflects the steps his team are taking.
The effect of this decision by many criminal defence solicitors not to participate in custody courts taking place during the period of the COP26 summit in Glasgow, is not simply to withdraw support for persons in custody due to alleged criminal activity associated with the summit itself. It also means that existing clients of these solicitors, in custody for both COP26 and non-COP26 related activity, would potentially also not be represented by their named solicitor in weekend courts.
On Saturday 30 October, immediately before the start of the conference, the Scottish Solicitors Bar Association (SSBA) wrote to inform me of the intention of many solicitors across Scotland to withdraw with immediate effect from the general legal aid duty scheme for non-COP26 cases during the whole period of the conference and potentially beyond. This has been done without the four week notice period ordinarily required of any firm that cannot meet its obligations to SLAB under the existing legal aid duty scheme.
With reference to COP26, I am very grateful for the work that justice agencies have undertaken planning for the safe and secure conference and to deal with potential increased volume of custody cases. The Committee will be aware that the running of the courts is an operational matter for the Scottish Courts and Tribunals Service (SCTS) and senior judiciary. The arrangements for the courts during the COP26 conference, including the operation of weekend custody courts, were established by the SCTS following dialogue with justice partners, including Police Scotland. Police Scotland have confirmed that it will take a proportionate approach to policing throughout the time of the conference, including in response to protests, ensuring that the rights to peaceful assembly and protest are met. However, it is acknowledged that there may be an increase in arrests and associated cases in police custody and custody courts during the conference. COPFS have enhanced levels of resource within the National Initial Case Processing team to accommodate potential additional custody numbers.
With reference to legal representation for those accused of crimes during the conference, proposals for a generous package of enhanced legal aid fees for COP26 related cases were developed by a Working Group comprising SLAB and representatives of the solicitor profession. The Group met throughout July and August. Attendance at individual meetings included representatives of the LSS and local Bar Associations, including the Glasgow Bar Association. The proposals for the enhanced funding package were made by the LSS and were then costed by SLAB prior to submission to Scottish Ministers.
The package requested by LSS was approved without amendment by Ministers. As shown in the table attached to this letter (Annex A), the package included some very significant enhancements to the fees normally paid both for duty work itself and for cases arising from custody appearances. For example, the fee for any case in which the duty solicitor pleads guilty on the accused’s behalf was increased from £75.71 to £578.61. Where a plea of not guilty is tendered and further work will be required under summary criminal legal aid to see any COP26 case to conclusion over the weeks or months after COP26, the fee was more than doubled, from £524.53 to £1,157.22. This fee applies to both duty and named solicitors.
In addition to the discussions in the working group, the proposals were also circulated through the Scottish Government’s Legal Aid Engagement Group (LAEG), which includes representatives of the LSS and SSBA. Following agreement of the package by Ministers, representations were made by the LSS for further enhanced fees for solicitors representing clients accused of non-COP26 related offences appearing in weekend custody courts (convened for the purposes of COP26 but required by law also to hear general custody cases from the preceding 24 hours). Again, this proposal for enhanced fees was approved by Ministers and this was communicated to the profession by SLAB.
In addition to these substantially enhanced case by case payments, Ministers also agreed to the LSS proposal for a daily payment of £350 to any firm making itself available for COP26 duty work (throughout the COP26 period in Glasgow, Edinburgh and Aberdeen and for the additional Saturday courts being convened in Paisley, Hamilton and Falkirk).
Based on the estimated additional levels of custody cases identified by Police Scotland, the total potential level of COP26 related fee payments at pre-existing legal aid rates was estimated at around £1.5m. The enhanced package of legal aid fees over the period of the conference increased the estimated level of payments to around £3.5m, subject to the volume of cases. The package had to be agreed before UK Government funding for the costs of the conference were confirmed. The UK Government representatives have subsequently confirmed that they would only cover costs up to a maximum of around half of the estimated costs (£1.8m, based on the cost of the additional volumes at pre-existing rates, plus the daily duty payments). The Scottish Government has, however, confirmed that it would underwrite the difference thereby meeting the full cost of the enhanced payments.
Collaborative efforts were therefore made to develop and agree a generous enhanced package of legal aid fees to support the work of solicitors during the COP26 conference. Prior to the finalisation of the payment arrangements, SLAB discussed the practical arrangements for the duty plans with both the LSS and SSBA and local bar associations. It was made clear throughout that while local and national representative organisations could participate in discussions, decisions on participation would be for individual firms and they would not wish to commit until they knew whether Ministers had agreed to the proposed payment arrangements. This reflects longstanding practice: it is always up to individual firms to choose whether to participate in any duty rota and while many choose to seek or accept offered slots on their local duty rota, they are under no obligation to do so.
It is disappointing and concerning that despite Ministers agreeing to the proposed package in full, and then agreeing the further enhancement in respect of non-COP26 cases in weekend courts, that a large number of firms have decided to boycott the duty plans.
The notifications that have been received, as well as correspondence from the Glasgow Bar Association, SSBA and LSS, have not focused on the extra demands brought by COP26 or the payments available to meet those demands. Instead, the primary focus – and therefore the only suggested means by which Ministers can avoid the continuation of the current action - relates to some form of action by Ministers to address the profession’s wider concerns about legal aid fees in general and the sustainability of the legal aid sector.
I wrote to the Presidents of both the LSS and SSBA on 22 October setting out my concerns and willingness to continue to engage with the profession ahead of the conference. I met with both Presidents on Monday 25 October and the Cabinet Secretary and I met with the LSS President on Tuesday 26 October. The Presidents confirmed that even if further adjustments were made to the specific COP26 package this could not guarantee the participation of local Bar Associations. Given that the action has escalated, spread nationwide and targeted areas of work entirely unrelated to COP26 since those meetings, it appears even less likely that any movement in respect of COP26 itself would resolve the issue and lead to participation in COP26 duty plans or related work.
The request from the profession is for an immediate, substantial and permanent increase to all legal aid fees. We have asked the LSS and SSBA to quantify in full detail the scale of this ask.
We have confirmed that any further permanent increase, additional to the 10.25% increase to all legal aid fees over two years already agreed and part-implemented (see below), could not be agreed to in the immediate timescale ahead of the conference or separate from the wider engagement on legal aid reform already in progress and described in more detail below.
Following engagement with the legal profession over many months, we are aware that many of those groups planning protests during COP26 have made arrangements with private legal firms to provide legal advice should anyone acting in their name be arrested. Therefore, the duty schemes organised by SLAB were always a contingency that would be called upon should those private arrangements not cover all of those in need of legal advice.
In the absence of duty solicitors from private law firms, the majority of duty services will now be provided by solicitors employed by SLAB in either the Solicitor Contact Line (SCL) or Public Defence Solicitors’ Office (PDSO), alongside a small number of firms in Glasgow who have continued to deliver both general and COP26 specific duty services.
As is currently the case, the majority of legal advice to those in police custody will be provided over the telephone. The SCL will be operating 24/7 as usual to provide this advice, with increased staffing and administrative support from SLAB’s Criminal Applications department during the Conference – during the day, in the evenings and at the weekends. We understand that many private firms will also continue to provide assistance where this is directly requested from them as named solicitors, although they may choose not to do so at weekends or in relation to COP26 related cases. Should attendance at a police station be requested, this will continue to be provided by a combination of SCL and PDSO solicitors, alongside those private firms who have remained on police station duty plans (which operate in parallel to the court duty plans).
For those attending court who do not have a named solicitor, and who request it, advice is available from a small number of private firms taking part in the COP26 duty scheme and from PDSO solicitors. Additional processes have been developed and implemented to ensure the earliest possible notification of unrepresented accused and to allow arrangements to be put in place for consultation and representation. Arrangements for remote consultation and representation will be utilised as required.
Clearly the escalation over the last few days puts added pressure on these arrangements. This will inevitably result in some disruption and delay to court business. While we will do everything we can to avoid it, the stance taken by the profession may also mean that some accused will appear unrepresented. Resources will be managed to minimise this risk and to ensure that those most likely to be prejudiced by either delay or self-representation can be prioritised for assistance.
Justice agencies have in place arrangements to keep under review the operation of the justice system throughout the COP26 event and have continued to work together to put new processes in place as circumstances change.
However, we have also made clear that if there are practical and deliverable immediate steps that the legal profession think that the Scottish Government could take which would encourage more of their members to participate in relevant activity during the COP26 conference then we remain open to consider these. We have also committed to continue to engage and work with the profession in response to their wider concerns, building on the actions that we have already taken.
The report of Rethinking Legal Aid: an independent strategic review by Martyn Evans was published in 2018. Despite representations from the profession, in the independent Review Mr Evans concluded that he could not find evidence to justify a general increase in legal aid fees, but that a further evidence-led review of fees and income should be undertaken. This led to the establishment of the Legal Aid Payment Advisory Panel, again including representatives of the legal profession, which reported earlier this year. The panel found that there was no single action that the Scottish Government could take which would address the issues raised by the profession in relation to legal aid payments.
Despite the recommendation from the independent strategic review, I agreed a general uplift of 3% to all legal aid fees in 2019-20. In December 2020, we confirmed a further 5% increase across all legal aid fees for 2021-22 and commitment to a further 5% increase on top of this in 2022-23. This equates to an across the board increase in fees of 13.6% over three years. In addition, we acknowledged the pressures faced by the legal profession as a consequence of the COVID-19 pandemic. We agreed with the profession the allocation of £9m in direct funding to legal aid solicitors this year. The first element of this funding was directed to those firms that demonstrated a loss of income during the pandemic, with the remainder allocated to all eligible firms to support the legal aid funded profession’s participation in the COVID-19 Justice Recover, Renew and Transform programme. In addition, £1m has been allocated over two years to support firms with the costs of hiring new trainees to participate in legal aid funded work.
In addition to the above, we have also committed to working with the profession on a package of reforms to simplify and improve the legal aid fee structure, including proposals mentioned when representatives of the profession met with the Committee. We have also agreed to consider the profession’s requests for consideration of enhanced legal aid funding for holiday custody courts held on public holidays. Again, the LSS and SSBA have confirmed that even if arrangements can be agreed for these measures, this will not guarantee agreement to these by individual solicitors or Bar Associations.
More broadly, the Payment Advisory Panel recommended that further research should be commissioned as a priority to provide evidence to inform a wholescale review of payment rates and structures; and that these structures should be subject to regular on-going reviews. I accepted all of the recommendations made by the Panel and work is underway to conduct research on how to meet the recommendation on identifying fair and sustainable payments by creating an evidence informed model.
This evidence is essential for us to develop a properly grounded understanding of the nature, scale and causes of the issues identified by the profession such that appropriate solutions can be put in place. While I cannot commit at this stage to any particular funding package that might emerge from this further work, I have already stated, and restate here, my commitment to act on the findings. These are complex issues, and there is a very real risk that easily identified but costly solutions might significantly increase the cost of legal aid but fail to address the underlying issues.
In our Programme for Government we committed to engage with the legal professionals and other stakeholders to review the Legal Aid system, and to introduce a Legal Aid Reform Bill in this Parliament, ensuring that the system is flexible, easy to access and meets the needs of those who use it. In October, we also published a public consultation on reform of legal services regulation. We value the work that legal aid practitioners and the wider legal profession undertake and we remain committed to working with them to consider what changes may be required to the statutory framework to protect consumer interests and promote a flourishing legal sector.
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Letter from the Convener, Criminal Justice Committee to the Minister for Community Safety, 28 October 2021