President's column

This is a monthly Journal. Some thoughts, stories and reflections are perennial or can be written and published at leisure. Some events move quickly, and are better reported daily or weekly. Legal aid collection is the latter. But as a topic of interest and concern to the profession, it is so important that I am willing to take the risk of events overtaking me.

Here’s the thing. On 29 January the Scottish Parliament, as expected, ran its stage 3 debate on the Scottish Civil Justice Council and Criminal Legal Assistance Bill, and voted to bring in the Government’s scheme, along with the package of improvements/amendments negotiated between the Society, the Scottish Legal Aid Board and the Government.

There has been a lot written about this episode. In the run-up to the deadline for submission of amendments, the Legal Aid Negotiating Team (LANT) hosted a meeting with some faculties and bar associations to discuss the package and take soundings on the acceptability or otherwise of them. I was present as a disembodied voice on conference call from Glasgow. There was a detailed discussion of the various items – raising the threshold, passing the £1.16 million cost not on to the profession as intended, cancelling contributions in various custody situations, and more.

As the meeting drew to an end, faculties indicated they would discuss the meeting and the package with their members, and some would be holding votes. The question was asked if they came back with a majority against, would LANT turn down the package? The answer was clearly given that it was not as simple as that, and LANT would do its best to make the right choice, and was on record as recommending the package as the least worst in the circumstances – with opposition to the fundamentals maintained.

The rest is history. A bare majority declared – slightly after the stated deadline for LANT to contact the Government, and a greater majority eventually was intimated. Meantime LANT, with my support, had elected to accept the package. Not the principle of collection, but the improvements represented by the package.

Then all hell broke loose. Whilst on no analysis had a majority of practitioners voted to reject the package (some faculties didn’t even vote – indeed some in advance of the EBA vote said they would go with whatever the EBA decided). It was never a plebiscite, and certainly not a coherent, organised voting process. But one after another, some faculty leaders began to publicise their unhappiness with the decision, and this developed into blaming – I say scapegoating – LANT. A vote of no confidence was taken in Edinburgh and made known to the Society. Indeed one solicitor wrote an open letter to demand the resignation of LANT.

This was then immediately stoked by some into a general criticism of the Law Society of Scotland, with phrases like “stabbed in the back”, “caving in”, “failure to represent”, “cozying up to the Government”. The nub of it was that the Society and its negotiating team cannot be trusted to represent the legal aid practitioner members, and has deliberately or inadvertently betrayed them. The mandate and basis of existence of LANT has been questioned, and at the time of writing, loud noises about faculties taking matters into their own hands to negotiate direct with the Government have been made.

Let’s examine some things.

The mandate

The LANT is there because the Society has had the principal duty of representing the profession with Government, and over the last few years, the faculties have not got together in any meaningful way to make common cause in legal aid negotiations. That’s not a criticism. The Government, no matter how disappointingly it treats the Society as the solicitors’ body, would simply have no truck with a multiplicity of smaller representative bodies. Kenny MacAskill would not see the EBA at 10am, then the GBA at 11, Stirling at 12.30 and so on. The collective action of the last few months is an innovation. Don’t forget that we as a Society have always sought to involve practitioners to lead the process. Ian Moir, the convener, was the only person found in Glasgow willing to join LANT, after the GBA was specifically consulted on who might be acceptable to them.

The members of the team are all dedicated, experienced, passionate criminal legal aid practitioners. To judge from some of the more portentous and pompous contributions, you would think that as soon as they joined up, they turned into Government stooges glorying in finding any way they could to harm the profession. How realistic is that? Not at all, and not fair.

The improvement package

The package is not the Society caving in or capitulating. It is a measure of retreat by the Government. The Cabinet Secretary said that collection was not negotiable. Well, some specific and not negligible aspects were conceded. That was less than we wanted. It was very probably as a result of various things. Perhaps the solicitor action was significant, but so was the patience and organisation of LANT, who articulated the fairness and benefits of the previsions and kept on at the Government until concessions were agreed. In no way was this a betrayal, a failure of duty, or a misfire.

What if the package had not been agreed? I refer to this as it seems the intention of the faculties who wanted to refuse the package was and is to continue action which would affect the ability of the courts to function, to demonstrate again and more that without the goodwill and buy-in of solicitors, the administration of justice would suffer, and the Government would change its fundamental position. Maybe so, but that is a very high-risk strategy. How many solicitors wanted that? A majority of faculties is not a majority of members, especially when there was no organised membership vote (and in some cases no vote at all). Who was empowered to diminish someone else’s income?

Dealing with Government

It is said that the Society should not have tried to continue to negotiate with the Government.

If you think the Government will change its stance completely as a result of action that causes churn and delay in the courts, I do not agree with that for one moment. If the Government gives in to the solicitors, then the police, the nurses, the prison officers, the doctors, the social workers and all local authorities will line up and demand their own outcomes. The Government cannot afford – politically or financially – to let all these bodies get their way. More likely the Cabinet Secretary would, however reluctantly, increase the PDSO hugely and take the costs out of the core fees in millions of pounds. Is it worth the risk of that?

How solid has the action been so far? How long-lasting would be the commitment of hundreds of agents to deny themselves and run the risk of losing clients to prove a point? If the Society were to refuse to negotiate and engage, it makes it much easier for the Government to act unilaterally, and indeed portray us all as dogmatic and destructive. Once we lose a channel to the Government, they are given carte blanche to do what they want. There is no one to talk them down from extremism. We may not be as effective as the troops would like, but we do what we can, and an awful lot more than we are given credit for.

Public and media support

I noticed the stated disappointment of many practitioners in the lack of press coverage of the second demonstration on 29 January. But just because a story is important to us, does not mean journalists and broadcasters must report it. This story to a great extent has had its day in media terms. That is not a conspiracy by the news companies, nor a Government fix, it is the law of nature in the media. Indeed, remember when there was a national day of action before Christmas. Already the story’s currency had been diminished, and the day was barely reported at all.

Initially we got the true story over to the public and got beyond, for a change, the fat cats/greedy lawyers cliché. How do you think refusal of the package would now play, when the media could report (if they bothered to report anything at all) that the profession turned down provisions that would increase access to justice in their own interests? Who honestly thinks the public will rise up en masse and support us?

The point really is this: what might appear simple – fight for right and the world will eventually bend to you – is naïve and impractical. Life and politics are much more complex than that. A negotiation is not guaranteed to get either party all that it wants. I spent time with the leaders of the other UK jurisdictions recently. They all have the same problems with their governments. None of them are idiots or government patsies.

What this event has done is to make it clear that if faculties and practitioners do want to be involved in a more substantial way than before, we as a Society have a duty – indeed are enthusiastic – to facilitate that. We have been developing electronic voting processes (ironically in the face of initial opposition from some quarters), and it makes sense to open these to legal aid lawyers. The makeup and membership of LANT or an equivalent body are being looked at – again, that’s fine, let’s get a robust organisation for representative action that suits the profession and is able to do its best in dealing with a majority Government.

This is a much longer President’s column than usual. I am not original in quoting that politics is the art of the possible. If something cannot be done, don’t just shoot the messenger, or assume the worst of those who have tried their best and done as well as anyone could have done. Let’s have a debate by all means, but please, not a witch hunt.