Delay new criminal code until advice fees agreed, Society tells SLAB

A new code of practice for criminal legal assistance, proposed by the Scottish Legal Aid Board, should be delayed until new legal aid fee levels for providing police station advice are agreed, the Law Society of Scotland is arguing.

In its response to a consultation on a draft of the new code, the Society complains that the timing of the consultation, alongside a lack of information and clarity on legal aid fees, prevents solicitors from being able to understand properly the impact of the code in practice – and that aspects of the draft interfere with matters of professional practice which the Society has the duty to regulate.

Such overlap, the Society maintains, creates a risk of misinterpretation and potential conflict between its regulatory framework and the code. And it claims that while SLAB plans for contracting criminal legal aid have not been implemented, with the Scottish Government stating that contracting would be impossible in the current climate, the draft code is simply another means to deliver some of the original aims of contracting.

Other key points on which it takes issue include:

• a number of "unreasonably open-ended requirements on practitioners", such as duty solicitors having to comply with any special arrangements made by SLAB for the operation of the duty schemes;
• certain sections where the draft contravene the Society’s guidance, "and indeed common regulatory practice across adversarial jurisdictions";
• lack of a clear process to be adopted in incidents of non-compliance with the code and action which might be taken by SLAB;
• increased administrative burden;
• inconsistency and lack of clarity in obligations placed on solicitors, solicitor advocates and advocates.

"Notwithstanding the importance of consistency and standards of public service delivery", the response states, "the SLAB stance as set out in the Draft Code of Practice raises a number of questions including whether SLAB is best placed to reflect on changes to professional practice for criminal matters. There is significant concern that the Draft Code of Practice impacts and impinges upon many areas of professional practice which fall within the regulatory regime undertaken by the Law Society of Scotland."

It agrees with the SSC Society's submission that SLAB has produced no evidence of actual defects or deficiencies in the operation of the present code, which dates from 1999, adding: "The Draft Code does not appear to take account of the fact that there has been no increase in legal aid fees since the introduction of the original Code of Practice, and in fact there have been various cuts in fees".

The Society further calls on the code to "include a statement respecting the exercise of reasonable professional judgment, within the parameters of the Legal Aid (Scotland) Act 1986, and of recognition that obligations should only be imposed in so far as justifiable, reasonable and practicable in an adversarial system.

"We firmly believe that a more proportionate, helpful, consistent, clear and comprehensible approach to the Code of Practice would be for SLAB to articulate what it reasonably and proportionately requires over and above the existing regulatory framework for legal services", the Society remarks. "This will also help to future-proof the Code of Practice, in the event that it remains unchanged for a further generation."

Ian Moir, convener of the Society’s Criminal Legal Aid Committee, commented: “What was once a short concise document is now lengthy, contradictory and overly burdensome. Additionally, and despite the consultation document saying that ‘there are no major changes in terms of day to day requirements for solicitors’, we believe the proposed reforms are significant and there are a number of new requirements, for which there is no proposed legal aid fee and which affect solicitors and their ability to represent their clients. One example is the increased administration that’s expected, such as having to carry out time recording for fixed fee cases, when surely the time would be better spent helping your client and preparing their case.”

He added: “Solicitors’ practice has changed enormously since the original SLAB code of practice was published in 1999 and there will be further significant change following implementation of the 2016 Criminal Justice (Scotland) Act this summer. Unfortunately we don’t believe that the draft code meets the requirements of today’s solicitors as they work to represent their clients in a 24/7 culture.

“We would absolutely welcome the opportunity for a full debate and to explore the creation of a new code of practice with SLAB once the fee structure for police station advice has been determined. At the moment, however, we have significant concerns about the proposals and cannot recommend that members accept the code as currently drafted.”

Eilidh Wiseman, the Society's President, said: “We are currently in discussion with the Scottish Government and SLAB in respect of legal aid and the new Criminal Justice (Scotland) Act, which will introduce a number of changes to the provision of police station advice. We strongly believe that a suspension and delay in implementing the code of practice would allow the profession to have a meaningful and informed discussion about the proposed legal aid fees, which is important to preserve the integrity of the criminal legal aid system.”

Click here to view the Society's full response.

In a statement since posted to its website, SLAB said it was working closely with solicitors to address concerns raised. It commented: "The code will only come into effect when the final version is approved, with any further amendments required by ministers and on a date decided by them."

Because the Criminal Justice (Scotland) Act 2016 gives new rights to people detained by the police, suspects would need access to timely and high quality advice, SLAB noted. "A revised Code will help ensure this by setting out the standards required of solicitors offering to provide police station advice and other criminal work."

It added: "We will continue discussions with solicitors to clarify misunderstandings about the terms of the draft code. For example, the code will not require solicitors to be on call 24/7. Nor will solicitors always have to attend a police station within one hour – the draft code actually reflects the Law Society’s own advice about these timescales.

"We are working with the profession to design a code that sets out clear standards for all solicitors doing publicly funded criminal defence work. The code aims to improve the service provided by the small minority of solicitors who provide a poor service or struggle to meet their obligations.

"The final version of the code should however pose little challenge for most solicitors who we know are committed, professional and do a good and much valued job for their clients."