Defence bar unites against minister's COP26 response

Criminal defence solicitors have reacted angrily to a letter from the Scottish Government defending its position over legal aid fees during the period covered by the COP26 conference.

The letter, from Community Safety Minister Ash Regan, was sent to Ken Dalling, President of the Law Society of Scotland, and Julia McPartlin, President of the Scottish Solicitors' Bar Association. Seeking to emphasise extensive levels of engagement by the Government with the sector ahead of the conference, it pointed to a working group involving the Scottish Legal Aid Board, the Society and individual bar associations which held meetings from July onwards "to facilitate early planning, full engagement and transparency for those providing the criminal legal assistance services" required during the conference.

Ms Regan stated that the resulting proposals "provided for a generous package of enhanced fees for COP-26 related cases during the conference", and that when circulated through the separate Legal Aid Engagement Group (LAEG), "whilst clarification was sought on the operation of the fees, there were no specific concerns raised around the proposed enhanced fee levels for the conference period". 

Regarding the additional weekend custody courts, "in a small number of locations", a further package of enhanced fees for solicitors had been proposed, and when this was rejected by the profession, being based on the police station duty scheme, a further enhancement was proposed on 20 October. 

The minister said she was "surprised and disappointed" by the decision of individual bar associations not to participate in the COP26 duty scheme "on the basis of the enhanced fee package approved in line with the [Society’s] own proposals", and also disappointed that practitioners had indicated they would "refrain from representing their named clients in weekend custody courts whilst these are running during the limited period of the conference".

She added that on the separate issue of public holiday custody courts, officials had invited the profession to submit specific proposals for a possible fee model, and the Government would "respond seriously" once these were received. As regards wider legal aid reform and fee levels, she reiterated the recent increases and other support – but the proposal for a permanent and substantial increase to all legal aid fees to allay concerns over participating in COP26 work was "not something that any Government could agree to". 

Concluding, she stated: "I am disappointed that a number of bar associations have decided not to participate in the COP26 or non-COP26 weekend duty schemes, despite the proposals from [the Society] being agreed in full. I am also disappointed and concerned about the way in which the Government’s engagement with the profession on this issue and wider legal aid matters has been presented by some in the profession."

Twitter has been busy with negative reactions to the letter, many lawyers voicing their own "disappointment" in return. The SSBA said it had made it clear from the outset that there were "critical failings in the criminal defence sector caused by decades of systemic underfunding", and the Government response was to "throw cash in a short term fix with a vague promise that the underlying issues would be looked at". It commented: "This is a petulant response to our refusal to be bribed for a quick fix, scrabbling around at the last minute to sort a problem in a conference that's been planned for 3 years, and ignoring all the fundamental underlying issues that have caused it. Enough is enough."

Others described it as "tone deaf" (Alistair Sloan), "whining" (Simon Brown), "a slap in the face" (Darren Brown), and "a patronising, condescending disgrace" (Gary Miller). Virgil Crawford posted: "This tweet/letter will do more to unite the criminal defence lawyers in Scotland than anything else in the last 30 years."