A stitch in time

The Society announced late on Wednesday this week that agreement in principle had been reached with the Scottish Government that legal aid payments will be made to solicitors who attend police stations to advise detained persons whom the police intend to interview, all as per the Lord Advocate's interim guidelines pending the decision in the Peter Cadder appeal.

That meant agreement being reached only hours before the guidelines were due to come into force across the whole range of offences, and even then discussions on the actual rate of payment are said to be still at an early stage, with outstanding matters including not only the rate of pay itself – newspaper reports indicating specific fee levels yesterday were wrong – but also what will count as "out of hours" attendance, and whether it will be necessary to begin by investigating the detainee's eligibility for legal aid, which has been recognised in England & Wales as impractical.

There also remains unresolved, so I am told, the issue of conflict (as solicitors see it, though Crown Office appears reluctant to concede the point) between the guidelines and the code of conduct, as respects the requirement that a solicitor accept instructions direct from the client only.

Whether or not Crown Office should have foreseen an issue there, it does seem remarkable that on a matter that constitutes a major extension of the occasions on which solicitors might be asked to attend at police stations, the profession was not even made aware of the existence of the guidelines until after they were initially completed and circulated, and even after they were intended to come into force in serious cases.

Then it appears to have taken the Government some time to concede that the legal aid rules would have to be relaxed to take account of the possibility that a different solicitor might attend from the one who acts in further stages of the case. It is hardly surprising that in some areas solicitors have threatened or taken action in protest.

Given the general, very welcome, move towards open government, it is surprising to find attempts such as this to manage by fait accompli. How much of the current trouble could have been saved by early involvement of the professionals in the front line is uncertain, but there has to be a better way than what we have actually witnessed.

I'm away next week – usually the cue for everything to start to happen!