Referendum 2: another legal aid perspective

The latest referendum has just opened for votes.

The question is: Should the Law Society of Scotland as statutory regulator continue to be responsible for promotion of the interests of, and the representation of, solicitors in Scotland?

I write this in a personal capacity. I am asking you to consider voting “yes”. I do so on the basis of what the Society has done, or has tried to do, on our behalf as legal aid practitioners.

As you know, I am a member of the Law Society legal aid negotiating team. Some of the work of that team can be found on this link to the Society’s website.

Evolution

The negotiating team is an evolution of part of the work of the Legal Aid Solicitors Committee of the Law Society. The evolution happened in increments and reflected the involvement of a small core of individual practitioners who participated in a whole range of meetings with SLAB and the Scottish Government, primarily in relation to summary legal aid reform, at least at the outset. Our remit now encompasses solemn legal aid as well.

I ended up on the Legal Aid Solicitors Committee by chance. There was one position held ex officio by the Edinburgh Bar Association. When I became President again I found that I had rather more duties than I had appreciated and this was among them.

Over time that role developed into being a member of the negotiating team led by Ollie Adair, along with Ken Dalling of Stirling and Vincent McGovern of Hamilton (neither is a Council member either), as well as Ian Bryce. Having been active in consultations, negotiations and campaigning on legal aid for the best part of 20 years I know that I have not worked with any who are better equipped to handle the responsibility we have accepted.

An earlier incarnation of this team included Gerry Considine, former Glasgow Bar Association (“GBA”) President. Most recently, at the end of 2009, we invited a prominent member of the GBA executive committee to join. He declined. Whether he was under pressure to do so was unclear to us. The offer was certainly genuine.

Edinburgh and Glasgow

GBA President John McGovern was recently interviewed in Holyrood Magazine. He said, amongst other things: "There is a split and the Law Society, for example, has excluded the GBA for almost two years now from all negotiations on legal aid with the Government because we happened to call an SGM two years ago which the Law Society saw as an attack on its policy, which it wasn’t."

This is simply untrue. As we were involved in ongoing discussions with the Government we did not think that it was compatible with membership of our group to be involved in industrial action or the continuing threat of such action. Those who attended the SGM in 2008 will recall our entreaties to the GBA to give up their strike threat and rejoin the process. The truth is that the GBA have excluded themselves from this process of negotiation. We have maintained contact with individuals in Glasgow and have invested significant effort in trying to persuade the GBA to re-engage.

The Edinburgh Bar Association (“EBA”) has been fully involved in discussions on any new developments and has been supportive of our work. Indeed, whenever called upon to help, EBA members have shown themselves willing to do so. I think of the recent exercise in preparing solemn accounts under the current feeing arrangements and under the new regulations in order to test the outcomes. They also made suggestions for further amendments to solemn regulations, which we have incorporated into our submissions. I worked closely with Kenny Cloggie during his term as President and was very grateful for his tireless efforts and support. I look forward to working just as closely with our new President, Ross Gardner, and the new committee.

The GBA have seemed at times to think that they have a monopoly of wisdom in how to deal with the Government and Scottish Legal Aid Board. The reality is that their near-unilateral industrial action and judicial review have achieved nothing positive and a good deal which will damage the profession – increased involvement of the PDSO is one example, something which was definitely not on the Cabinet Secretary’s horizon until the Glasgow “strikes”. This contrasts with the co-ordinated action taken across the country a few years ago in relation to sex cases in an effort to get the then Scottish Executive to engage with the Society in discussion. Readers might recall that Vincent McGovern and Gerry Considine were key players in those efforts.

Our small negotiating team has been supplemented at some meetings, including some of those with the Cabinet Secretary, by others from around the country. This has ensured that we cannot wander too far from the concerns of the profession, although as each of us in a firm dependent on legally-aided work, there is little chance of that anyway.

Before all of this I too used to sit on the outside and throw bricks at the Society. In 1997 I attended the inaugural meeting of the Scottish Court Lawyers Association. On a Saturday morning in Edinburgh a reasonable number of solicitors from throughout the country met to discuss a better way of representing the interests of court practitioners. We had some meetings and then it fizzled out. Graeme Runcie was involved in more recent efforts to do something similar. Again, despite considerable effort by a small number like Graeme, it proved unworkable for a host of reasons.

Since then I have been a vocal critic of the Society when necessary. In recent times my bluff has been called. I have ended up becoming actively involved on behalf of the profession through the Society. When I look at many of the committees of the Law Society I see colleagues who are genuinely interested in representing the profession. They are also some of the people best placed to ensure that this is done. I cannot see how some of the work of the negotiating team could be performed by professional lobbyists or the like. Part of the success of this method of working is that the Society allows the profession to represent itself.

Let’s not forget that the GBA has effectively sponsored four Law Society Council members for some time. That doesn’t worry me, but it certainly doesn’t fit with a claimed exclusion from what the Society is doing for us all.

Patronage?

For the record, I am not a part-time sheriff. In fact I have never applied to be a sheriff. As Maurice Smyth says, it appears that a judicial wig magnifies the worst qualities in some people. Specific examples may be unnecessary.

I mention this because John McGovern, President of the GBA, said recently in the Firm: "Dozens of solicitors sacrificing time and turnover for little more than the potential of patronage is not a framework that can adequately serve the profession in a complex, congested, ABS market place."

It is hard not to take that comment personally. Whether intentional or not, it is insulting to me and a great many others who try to contribute more generally to the good of the profession. It is untrue in the aspersion cast about “patronage”.

I have never applied for judicial office, nor to my knowledge has any other member of the team. In fact, we haven’t even discussed our careers. If I was responding in kind I might say to John that being a past President of the GBA seems to be as good an entry on one’s CV for a sheriff’s job as sitting on a Law Society committee.

I am aware of the demands of being a member of a committee of an active bar association. I spent about 16 years on the committee of the Edinburgh Bar Association and for about five years I was the country member of the GBA committee.

By this stage I have lost count of the number of meetings I have attended with or through the negotiating team. We have meetings with SLAB, full summary justice reform review meetings which include the Crown and civil servants, and for most of these we have pre-meetings. I often wish I could give it up, but there is a continuity of personnel on all other sides of the table and we don’t wish to lose our momentum.

Mandate

Questions have been asked by some critics about our democratic mandate. Having some legitimacy and accountability is essential in our work for the profession, but so is consistency to avoid things being missed through changes in personnel. To try to ensure accountability we have each made ourselves available to all colleagues to receive suggestions, comments and criticisms. We have also issued mailshots and updates on the Society’s website. Many throughout the country have availed themselves of our offer and they have helped us to shape our submissions and negotiations. The EBA has been a key group to whom we have looked for such support.

For those who doubt our usefulness I suggest that they revisit the original consultation proposals for summary criminal legal aid.

I don’t want to sound as though I am blowing our trumpet here. This work needs to be done although no one made us volunteer to do it. It makes a difference in our meetings to be able to say that we are there on behalf of the whole profession. I have no confidence that our position would be as well represented by any of the alternatives being suggested – the GBA, SLAS, or some sort of super-council involving all such bodies. In fact I doubt that such a body would fare much better than recent attempts to replace the Society. There is no other structure in place which could cope and I have serious doubts about establishing the necessary common ground.

I accept that things can always be done better, but in recent years I suggest that we have seen more done on our behalf and more information available about this work. This has been achieved through the Law Society. I ask you to allow your colleagues to continue to work on your behalf.