We have been here before. Pressure building from the legal aid sector for urgent action on fees; talks with Government; response awaited... and then? Meanwhile, fresh warnings are sounded of the dangers from the lack of new blood coming into the sector. This time, however, there is added urgency due to the havoc caused to court business, and to defence firm finances, by COVID-19. And there is evidence that practices really are now unable to make ends meet.
The Scottish Government should know the score well enough. Ian Moir, the Society’s legal aid co-convener and its chief negotiator for 10 years now, has been seeking urgent relief for criminal practitioners all through the pandemic. (Co-convener Patricia Thom has been involved throughout on the civil side.) Initial success was achieved with arrangements including interim fee payments to help cash flow while the courts closed completely, and these remain in place for the duration of the emergency legislation, but the real and now urgent need is for support in the changed environment as business resumes.
“We’ve asked the Government for a minimum of a 50% rise across the board on all legal aid fees, to take account of the huge amount of extra work that’s involved in processing a case at the moment,” Moir confirms. “For example on a summary fixed fee you now have to do a joint written record for the intermediate diet, and you can spend a long time doing that, but then if there’s still an issue you’ve got to go to the hearing as well.
“There is a lot more waiting about with virtual hearings. Trying to set up a virtual summary trial could involve four or five hours of additional work, and the trial itself will take longer, and be more difficult. So we’ve asked for increased fees to reflect that, and I’ve asked for grants for legal aid firms based on their legal aid turnover for last year, with a graduated scale of grants, to give financial assistance in the short term to cover extra costs of PPE, training, the IT for virtual hearings, as well as the dramatic drop in revenue that we’ve suffered due to the lack of business going through the courts.”
He points out that on SLAB’s own figures, it has saved £6.5 million that it would otherwise have expected to have spent in the first six months of the year, and argues that at the very least the anticipated savings for the whole year ought to be made available to practitioners.
“I would be devastated if the Government turned a deaf ear to the plea that was made to them. I can’t stress enough to them the urgency of helping out and just how desperately that help is needed.”
But he is being kept hanging on. Indicated dates in September and October for likely replies have come and gone, and even after a lengthy day of negotiations in late October, which also involved the Society’s President Amanda Millar, Vice President Ken Dalling and chief executive Lorna Jack, Moir was expecting “at least another couple of weeks” before we hear any news.
Still in business?
Ahead of the practising certificate renewals, Moir was concerned that legal aid practices would be unable to afford this year’s outlay. As the Journal signed off, the final renewal figure was not yet available. Earlier this year a survey of private practice by the Society showed around 50% of respondents doing criminal court work experiencing reduced turnover and cashflow, and a fall in new business. The Society is currently re-running the survey to update the situation, but the recent picture has remained challenging, with court business restarting slowly.
Asked if the Scottish Government recognised the risk of legal aid practices going out of business, and for a timescale for a response following the talks, a spokesperson said: “We appreciate the flexibility and resilience shown by the legal profession during these challenging times. Solicitors have, and continue to make, a significant contribution to keeping the justice system going. We acted immediately to bring in interim payments, recognising the difficulty firms could be placed in financially, and have encouraged solicitors and firms to submit all final accounts to SLAB, to make use of this scheme and also any other forms of support, such as the [UK] Government furlough payments.”
They added: “We are considering proposals submitted by the Law Society on 26 October and will update in due course. We are committed to supporting solicitors undertaking legal aid funded work and continue to engage with the profession to look at how we best maintain our justice system during the pandemic, while keeping people safe.”
It appears, by the way, that the onset of the pandemic stalled the final report of the panel set up to propose a new framework for reviewing legal aid rates, following Martyn Evans’s review of legal aid. The spokesperson added: “The final meeting of this panel had been due to take place on 20 March 2020 to finalise their report to the Minister for Community Safety, though this had to be postponed due to the pandemic. Providing immediate support for the legal profession took precedence over the summer with regular meetings between officials, the Law Society of Scotland and the Scottish Legal Aid Board.”
An indication of the desperation now being felt was seen following that last meeting, when the Glasgow Bar Association wrote to the Scottish Parliament’s Justice Committee appealing to it to “make every effort to ensure a prompt response” from the Government.
“Our members have waited patiently [during the pandemic] for the Scottish Government to provide them a support package recognising the essential role these practitioners undertake in the justice partnership,” the GBA stated.
“Our membership consists of the small to medium enterprises that the Government stated at the outset they wished to help. We are astonished and deeply concerned that the Scottish Government has still not provided an offer, despite months of discussions having taken place. Our members have worked for seven months of lockdown in the most fraught circumstances, showing flexibility, working on holidays and adapting to new ways of undertaking court representation to ensure that the court process continues. The promise to come back to the profession ‘as soon as possible’ is simply not good enough.”
New lawyers with hope
Who would become a legal aid or criminal defence lawyer at the present time? There are still those with that desire, and some of them have banded together to sound the alarm over the future of a sector now fighting for survival.
Launched last month, New Generation Lawyers are a group of recently qualified or aspiring criminal lawyers committed to making it easier for solicitors to qualify in, and build a career in, criminal law. “We came to the consensus that we don’t know who the criminal bar will be in 10-15 years’ time,” founder member Lauren Sangray explains, “because there is such poor payment and retention for young solicitors to remain practising criminal law. People are training and then finding a job outwith the criminal field, or just not finding a place because it is so difficult to find firms that will take on criminal defence trainees.”
Funding and legal aid rates, she continues, are key. “High street firms are normally small, and there aren’t any real incentives or schemes for them to hire additional staff in this field. In Falkirk where I was [she has just moved to a Glasgow firm], I was the youngest solicitor practising criminal defence, and everyone else there was at least 12, even 15 years my senior. This generational gap is a common thread throughout most courts and sheriffdoms. When these men retire there is going to be very little access to justice, and that’s a big concern to us.”
She adds: “We now fear there is going to be an even more severe drop in traineeships due to the pandemic, and we need to address that as well.”
It is also difficult to compete with the prosecution service, which has recently advertised traineeships as far ahead as 2023 and can offer an attractive salary and pension package along with a career structure.
Mission to change
The Society and others have been sounding warnings about the lack of criminal defence lawyers coming into the profession for many years. What difference does Sangray think New Generation Lawyers can make?
“I definitely think we can focus on raising awareness of the problems affecting our generation of criminal lawyers. We are a group of new lawyers who really have a fire in us. We probably are the future of the criminal bar, and if changes aren’t made there is going to be no criminal bar, and where would that leave access to justice, which is the most important part of this? It’s almost an extinction of criminal defence solicitors in Scotland, really.”
New Generation Lawyers’ mission statement pledges them to campaign for a sustainable legal aid system which allows access to expert criminal legal assistance for all members of society; to promote the interests of new and aspiring criminal lawyers and to increase diversity within the criminal bar; and to provide a network for lawyers beginning their careers in criminal law. It concludes with the declaration: “Whilst we enjoy our work, and recognise the importance of our role within society, we are of the view that the status quo is not sustainable and will result in a generation of the most vulnerable people in our society being denied access to justice.”
“Any help is welcome”
Sangray confirms their intention to put forward their own ideas. First, however, in addition to raising awareness, “We are gathering information and data, and when we have that we plan to propose solutions. Data on people coming into the profession, the number of people doing primarily criminal defence, the number of those wanting to continue doing criminal defence work. We will be putting out a survey across our social media channels in order to gather data. We know there is a lot of interest in criminal law, a lot of prospective trainees show an interest, and it’s unfortunate that they struggle to gain positions where they can actually explore their interest.”
Asked what practical support others can give, Sangray says she and her colleagues – Matthew McGovern (McGovern Reid, Wishaw), Kevin Corr (Graham Walker, Glasgow), Gemma Elder (The Robert Kerr Partnership, Paisley), Heather Morrison (Paterson Bell, Edinburgh), and Maureen Duffy and Connor Ledger, both seeking criminal law traineeships – want people to engage with them, “even come up to us in court and have a conversation with us, give us your opinions. Senior colleagues who have been practising 10, 15, 20 years longer than I have, are people that we aspire to be, essentially our role models, so to have their opinion would assist us. Any form of help is welcome help”.
Likewise they hope the Society will engage with them on a collaborative effort to address the problem.
The Society recognises the real risk that the slowdown in court business will impact particularly on high street firms’ resources, and their ability to take on a trainee. This is another issue it has raised with the Scottish Legal Aid Board and Scottish Government, and it would welcome contact from New Generation Lawyers and anyone else who wishes to support entry into criminal practice, to discuss how to work together to support those calls.
Initial support from the criminal bar, and the wider profession, has been strong. “There’s been a consensus that what we’re doing just now is a welcome change,” Sangray comments, “and that it’s refreshing to see new lawyers acknowledging there are areas that need to be improved in this sector. That’s what we really want to focus on: we want to raise awareness, we want to expand and get a following behind us, because the more people acknowledge and recognise that there are issues, that helps us spread the word as to what needs to be done.”
Moir can illustrate the way things are heading as matters stand. His firm opened a second office recently – but essentially funded by private work, and taking over premises vacated by another legal aid firm cutting back its operations. “I suspect we are in a minority of one in terms of firms that have expanded this year. We are fortunate to have some good quality private work which pays many times more per hour than legal aid work does,” he explains. “We’re investing some of that in what we hope can still become a future in legal aid. But unless the Government significantly increases the fees and offers the bailout that we’ve approached them for, the legal aid sector is just not going to survive this.”
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