A bridge too far? A reply

We are now a week away from the stage 3 parliamentary debate on the bill that will, if passed, introduce contributions in criminal legal aid. Last week, the Society’s criminal legal aid negotiating team (LANT) accepted a material package of adjustments to the bill. Some of these will inform Government amendments to the bill while others will be taken forward by way of regulations.

To say that the decision to accept the package has caused some concern amongst defence agents would be to understate matters.

Peter Nicholson, editor of the Journal of the Society, suggested that the decision taken by the legal aid team was not the right one. His blog makes two main criticisms – first, it states that the decision came mainly down to the interests of the profession and, as faculties were mainly in favour of rejecting the proposals, the Society did not reflect the views of its members. Secondly, he suggests that the Society made the decision because it would have been too “uncomfortable” to go back to Government rejecting the decision.

In my view, both of these criticisms are unjustified and based on inaccurate assumptions. I will deal with each of them in turn.

It is important to stress that the LANT, as part of the Law Society of Scotland, has an important role in promoting the interests of the solicitor profession and the interests of the public. That is the Society’s statutory obligation as clearly laid out in the 1980 Solicitors Act. In the Society’s written consultation and written response to the bill, it was made clear that the original proposals did not adequately protect access to justice for the public.

Acceptance of this package assured that the provision to implement the part of the bill which removes contributions from police station advice and assistance would be utilised. That means that members of the public who are arrested will obtain free legal advice. The rejection would also have meant that contributions from income would still be sought from those who had received custodial sentences, and the profession as a whole would have had to meet the £1.16 billion cost of the increased thresholds.

Both access to justice and the interests of the profession are at the very core of the Society’s functions and LANT had to give full consideration to those issues. I am in no doubt that the public and the profession as a whole would be worse off had it rejected the package.

At the meeting of faculty representatives which took place prior to the consultation exercise, the members of the criminal legal aid negotiating team advised that their decision would not solely be based on number of faculties or the number of solicitors. The consultation exercise was helpful in providing feedback on both the proposed package and the bill itself, and I have no doubt that the results will prove useful in the future.

Turning to the issue of whether it was too “uncomfortable” for the Society to go back to Government and say that the package negotiated could not be accepted, I cannot begin to tell you how wrong that is.

It is worth remembering that the majority of these adjustments were not offers from the Government – they were suggestions from members of the profession. It therefore cannot be argued that the decision to move them forward was a capitulation by the Society. It is, in fact, the other way round. Rejecting the package would have been the capitulation. A rejection would have meant that the bill would easily have passed through stage 3 of the parliamentary process without the Society-driven changes. The Government would have had no difficulty with such a position, particularly since the savings from contributions could then have been maximised.

Furthermore, the final stage 3 debate is on 29 January, only seven working days after the decision on the package had to be taken. After stage 3, with the bill receiving Royal Assent, there is nothing (literally nothing) that can be done to change the terms of the bill. Rejecting the proposed package would necessarily have meant conceding defeat on the bill’s passage through Parliament. That would hardly have strengthened the Society’s position going forward in the debate. The members of the criminal legal aid negotiating team were simply not prepared to capitulate in that way.

Acceptance of the package did not mean conceding on the position on collection. The Society remains fundamentally opposed to solicitors being required to collect contributions.

Put simply, the legal aid negotiating team wanted to do the right thing by their fellow defence agents and clients. They were prepared to take a very difficult decision to help solicitors and the public, even when that decision was bound to be unpopular with a large section of the profession. I realise many members disagree with that decision but I hope that solicitors will understand their reasons for doing so.