The Law Society of Scotland has called for the Scottish Legal Aid Board (SLAB) to postpone the introduction of a proposed new code of practice until new legal aid fee levels for providing police station advice are agreed.

The Law Society has stated that the timing of the consultation, alongside a lack of information and clarity on legal aid fees, prevent solicitors and others involved in the justice system from being able to fully understand how implementation of the code of practice would impact on practitioners and their clients.

In its consultation response, the Society has also expressed significant concern about the overlap between SLAB’s draft code and the existing regulatory framework for solicitors, which creates a risk of misinterpretation and potential conflict between the two, and has set out a number of other key issues with the draft code which include:

  • lack of a clear process to be adopted in incidents of non-compliance with the code and action which might be taken by SLAB
  • increased administrative burden
  • inconsistency and lack of clarity in obligations placed on solicitors, solicitor advocates and advocates

Ian Moir, Convener of the Society’s Criminal Legal Aid Committee, said: “There is agreement across the justice sector and among the public that having high-quality legal advice and representation is essential to an effective criminal justice system and it’s vital to have a legal aid system that works for those who need it.

“Solicitors’ practice has changed enormously since the original SLAB code of practice was published in 1999 and there will be further significant change following implementation of the 2016 Criminal Justice (Scotland) Act this summer. Unfortunately we don’t believe that the draft code meets the requirements of today’s solicitors as they work to represent their clients in a 24/7 culture.

“We would absolutely welcome the opportunity for a full debate and to explore the creation of a new code of practice with SLAB once the fee structure for police station advice has been determined. At the moment however, we have significant concerns about the proposals and cannot recommend that members accept the code as currently drafted.”

The Society believes that the draft code presents a substantial change to the way solicitors would provide criminal legal assistance to clients and to their interaction with SLAB.

Moir said: “What was once a short, concise document is now lengthy, contradictory and overly burdensome. Additionally, and despite the consultation document saying that ‘there are no major changes in terms of day to day requirements for solicitors’, we believe the proposed reforms are significant and there are a number of new requirements, for which there is no proposed legal aid fee and which affect solicitors and their ability to represent their clients. One example is the increased administration that’s expected, such as having to carry out time-recording for fixed-fee cases, when surely the time would be better spent helping your client and preparing their case.”

The Society has said that while plans for contracting criminal legal aid haven’t been implemented and the Scottish Government has stated that contracting would be impossible in the current climate, the draft code is simply another means to deliver some of the original aims of contracting set out by SLAB.

Moir said: “The level of additional requirements imposed, the transfer of police duty obligations from SLAB to solicitors without viable payment structures in place and the potential for deregistration for failing to adequately cover this work make it feel like contracting by the back door.”

Eilidh Wiseman, President of the Law Society of Scotland, said: “We are currently in discussion with the Scottish Government and SLAB in respect of legal aid and the new Criminal Justice (Scotland) Act, which will introduce a number of changes to the provision of police station advice. We strongly believe that a suspension and delay in implementing the code of practice would allow the profession to have a meaningful and informed discussion about the proposed legal aid fees, which is important to preserve the integrity of the criminal legal aid system.”

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