Legal aid contracting: "no comment" is best

Anyone who’s interested in the possibility of contracting being introduced in either criminal or civil legal aid should have a look at the SLAB website, where some documents and papers have now been published. Look up http://slab.kraya.net/providers/reforms/criminal/Contracting.html and don’t let the “criminal” part throw you if you’re a civil solicitor – there’s enough there to suggest that you’re next.

Unfortunately, while there are a lot of words there, they don’t say terribly much, and given the normal history of these processes, it all looks worryingly familiar. There is nothing concrete and there are no details: rather, it’s just a general statement of the sort of factors which might be taken into account and which might suggest that contracting might be the way to proceed. The cynical might suggest that the way it’s framed is designed to get a positive response. After all, who could argue that it wouldn't be a good idea for us to have a guaranteed income over a three to five year period, or that it wouldn't be a good thing to have certainty of provision for legal work in certain legal or geographical areas? All of these are as unobjectionable as "perhaps people who can afford it should pay a contribution towards criminal legal aid".

Unfortunately, it's at the later stages when these unobjectionable ideas start being put into practice and defined by SLAB and the Scottish Government that the full implications and flaws become apparent. For example, while it would be nice to have a guaranteed income, it wouldn’t be so nice if that income was later fixed at a level that was derisory and unsustainable in the real world. However by the time we usually get to find out that sort of detail (detail? It’s fundamental!), SLAB and the SG have made up their minds, the prospects of getting a change in direction are painfully slim, and, if the profession complains, the indignant response from SLAB and the SG is "but you agreed that this was reasonable".

Why do we have to do it this way? SLAB and the SG have found a very effective way of playing the game so that it neutralises any reasoned opposition. But remember that when someone is playing silly games, the best way to deal with it is not to play. We don’t have to follow an agenda calculated to eliminate reasonable debate. We don't have to agree or disagree with SLAB when they inevitably ask us whether we think contracting is a good idea in principle.

We get clients to make "no comment" in response to police questions because, without knowing the full story, we don't know what use could be made of the answers (and it will probably work against the client's interests anyway). Can we therefore please make sure that in negotiations across Drumsheugh Gardens or at these "dialogue" events (and there’s another big clue as to where this is going – how can you have a dialogue where one side doesn't really know anything about the subject?), we don't say anything that SLAB will construe as agreement, in principle or otherwise, to something that has the potential to cause untold damage, at least until they put some flesh on the bones?