Inside story

“The Faculties have given us a clear mandate”, said Ian Bryce, vice convener of the criminal legal aid negotiation team. He was addressing the Cabinet Secretary for Justice at a meeting about the interim police station duty scheme. Detailed discussions followed and by the end of the meeting Kenny MacAskill MSP had agreed to remove the principle of subsumption of solicitors’ fees in police station duty work. It was an exciting moment for all of us and I found myself thinking: “I am very fortunate to be here”.

By way of background, until relatively recently I was an oil and gas solicitor based in the Aberdeen office of one of the largest law firms in Scotland. In November 2010, I volunteered for redundancy to fulfil my long-term ambition of becoming a criminal lawyer. “Don’t be a fool”, I hear many of you say. “The legal aid fund is facing deep cuts. Get yourself an in-house position with an oil company”. Despite this advice being proffered by various friends and former colleagues, I’m afraid I was determined to get involved in the more human side of the law. Surely there would be room for one more legal aid lawyer in the local sheriff court?

Suffice to say, that, other than locum work with two high street firms, to whom I shall be forever grateful, and despite endless postings of CVs, I could not get a permanent contract with a criminal law practice. Every month, the back of the Journal would have positions advertised for corporate lawyers with four years' post-qualification experience, but vacancies for newly qualified criminal lawyers were scarce, if not non-existent.

I began to despair. But then it happened. Well, it almost happened. I saw a position advertised on the Journal website for a legal aid research intern at the Law Society of Scotland and it immediately caught my interest. I imagined myself working with Society officials, senior members of the criminal bar, the Scottish Legal Aid Board and the Scottish Government.

Level of engagement

I was not disappointed. From day one I had the opportunity to get an insight into the breadth and depth of both the Society’s work on legal aid matters and the Society’s wider representative work. I started to carry out research into the legal aid framework itself (the results of which went some way to explaining why it had been so difficult to get involved with a criminal legal aid practice!). I was also tasked with supporting the day-to-day operations of the criminal and civil legal aid negotiation teams. The work was varied and interesting. One moment I might be investigating issues around the granting of special urgency applications in civil legal aid cases, the next reviewing a paper on ACPOS detention times, all under the expert guidance of Andrew Alexander, Legal Aid and Access to Justice Co-ordinator, Neil Stevenson, Director of Support and Representation, and Michael Clancy, Director of Law Reform.

I had the opportunity to observe and support the work of the Society on the interim police station duty scheme arrangements. The scheme was originally set up as an interim measure following the Supreme Court’s ruling in the Cadder case. The faculties throughout Scotland regularly liaised with the criminal legal aid negotiation team, communicated with each other and, importantly, reported to the Society their views of how the interim scheme was operating in practice.

The level of constructive engagement and unity shown by the profession during the discussions was extremely impressive. Negotiations led by the criminal legal aid negotiation team were equally impressive, and after detailed and constructive communications with the Scottish Legal Aid Board, ACPOS and the Scottish Government, the interim scheme was extensively improved. My understanding is that these communications are set to continue. With the interim scheme due to be replaced by a more permanent system after the publication of Lord Carloway’s report, the continued unity of the profession and work of the criminal legal aid negotiation team will be vitally important in establishing a long-term workable arrangement.

My work with the Society on legal aid was certainly timely. The recession, the summary justice reforms and, more recently, the Cadder decision, have all generated a huge amount of commentary and debate over the future of legal aid in the media and online.

I appreciate that the complexities of the legal aid debate are far too detailed for this article but, from my observations and discussions with legal aid practitioners, I would make the following comments.

Public sector budget cuts

At the moment, the legal aid framework in Scotland is facing some serious challenges. Public sector budget cuts have inevitably brought our legal aid system and the public’s access to that system under pressure. The Law Society of Scotland is working to protect the principles of our legal aid model against such a challenging financial backdrop. While the NHS and education seem to be untouchable, legal aid, for some reason, is becoming a scapegoat.

According to the Scottish Government’s strategic spending review announcement which was published on 21 September, there will shortly be “a series of carefully planned reforms to legal aid which will, over the Spending Review period, take costs to a sustainable level, while maintaining as much as possible a system that enables people who could not otherwise pursue or defend their rights to do so” (my emphasis). The spending review announcement has set targets to reduce legal aid expenditure by £29.3m by 2015, a significant figure when looked at in the round.

In my opinion, any legal aid reform must have quality at its heart, and seek to continue the link between solicitors and their own clients. Otherwise, those who are legally aided stand to lose some of the qualities and skills most valued and needed by clients in a solicitor, such as experience, expertise and accessibility.

Public perceptions

Lawyers have always had a bad press. One of the legal aid lawyers that I spoke to believes that much work needs to be done to change public perceptions. Of significant concern is the assumption that there is no ideological, or indeed financial, divide between a “big firm” corporate lawyer and a legal aid lawyer. Having worked with both, I can confirm that a chasm exists between them and their salaries cannot be equated.

Further, lawyers have always had a sort of stigma in society but this has recently continued into politics. With the First Minister commenting in June that a well-known human rights lawyer is “making an incredibly comfortable living” from representing the rights of prisoners, lawyer bashing could be set to replace banker bashing as the new national pastime. Serious debate about how best to underpin a legal aid model that will ensure access to justice while also providing solicitors with a reasonable living is in danger of being overwhelmed by unrestrained hostility towards greedy fat-cat lawyers.

Efficiencies and savings

Many of the legal aid lawyers that I have spoken with do recognise that there is scope to make savings and improve efficiencies within the legal aid framework. The depth of the purposes of legal aid, the breadth of jurisdictions which require it, and the levels of needs for those who require it, clearly highlight that compromise is acceptable in some areas while unacceptable in others, not least from an ECHR perspective.

In the context of making financial savings proposals, I believe that the overarching importance of the legal aid system in Scotland must be kept firmly in mind. The legal aid system is essential to ensuring that the justice system is accessible to those who cannot afford to pay for legal advice or representation. But it is also essential to the operation of the justice system itself: its effect extends far beyond the individual who is represented by a legal aid lawyer. By enabling people to access lawyers, the legal aid system keeps the wheels of justice turning and helps to maintain trust and confidence in the justice system.