Following recent releases from various sources but, most importantly from SLAB, their releases of 6th July 2011, it is important that certain points are clarified.

Several points need to be addressed and considered by SLAB since they seem determined to continue, on a public funded website, to promote  inaccuracies.

There is no, “suggestion” that the Board are unwilling to provide information on the Police Duty Scheme.  It is a fact.  Repeated requests by various persons have been met with various degrees of reticence and indeed hostility and for some reason it seems that the Board, funded by the public, for the public, do not wish their facts and figures to become public. 

Reading the Board’s statement of 6th July 2011 it would seem clear that they consider that the Law Society and the Glasgow Bar Association have a negative response to the Police Station Duty Scheme and they state that there is, “pressure being brought to bear on firms not to participate in the Scheme”.  This is an open letter and an open question for the Board is as follows:

What pressure are you talking about? 

Supplementary questions follow:

If by pressure you simply mean discussion and circulation of opinion and advice, please state so. 

If, as your statement implies, there is something inappropriate by way of “pressure” I challenge you to say so i.e. specify or stop making such statements.

The GBA email of 5th July 2011 quite specifically did ask colleagues to carefully consider matters and this remains something that we wish solicitors to consider most carefully.  The current Scheme proposed by SLAB imposes a requirement, a compulsory measure, to be on a Scheme (whether or not being on a Scheme is effective or impractical in the individual’s situation), if that solicitor wishes to access Government funding for clients in custody. 

 
This is an outrageous change in the position of the provision of state funded advice to suspects.  Until this Scheme was proposed, any solicitor on the Criminal Register, if their client were eligible, could admit their client to the available Schemes. 

The Board have still not clarified various but important aspects of their flawed Scheme.  For those solicitors with disabilities who are simply unable to participate in the Scheme i.e. be on call for hours on end any particular night or series of nights, they have removed the ability of that solicitor (a) to admit their clients to the Schemes and (b) to earn an income for work properly done when giving advice to suspects.  For SLAB to then suggest that there is:

(a) a campaign to damage a Scheme, and
(b) that it is short sighted,

displays an ignorance of the highest order.  However, and most importantly, to go one step further, SLAB to dare to suggest that suspects’ rights and the orderly operation of the Criminal Justice System are in some way damaged is a monumental statement.  Think about it.  Are SLAB actually saying that when solicitors refuse to sign up to giving up their nights when they should be in their bed or their weekends and when they refuse to provide professional work outwith office hours for no income, that there is in some way a fault or a blame that can be laid at the door of the solicitors?  How utterly ridiculous.  

The fact remains that this Scheme was proposed by the Board on the smug assumption that they would continue to have solicitors do more and more unpaid work thus delivering budget cut efficiencies and providing Mr Montgomery with more accolades for a job well done.  The truth is that the vast majority of solicitors throughout Scotland have had the good sense to say to Government, and particularly to Mr Montgomery and SLAB, that they are not prepared to work for free.

Short sighted?  No!  Scunnered?  Yes!  Sickened?  Yes!  Angry?  Yes! 

Mr Montgomery has long advocated the expanded use of the PDSO and now has the ability to do so.  How?, By use of anticompetitive practices and separate rules for PDSO and duty solicitors.  This is not a question of SLAB moving the goalposts.  They have changed the game entirely.  Their own staff, like the SLAB publications themselves, make outrageous statements impugning the very solicitors who day in and day out provide, and are dedicated to the provision of, legal assistance to those in custody.  Douglas Haggerty (an employed SLAB solicitor) on 14th June 2011, stated that the Glasgow Bar Association solicitors did not care about suspects.  We now have SLAB stating that refusing to join a Scheme (which as far as I am aware even SLAB would acknowledge is optional) and advocating that the Scheme itself is wholly unacceptable, in some way equates with solicitors damaging suspects’ rights.  Refusing to join a Scheme and refusing to do work for no money damages the orderly operation of the Criminal Justice System.  Well then, since SLAB won’t produce figures I will estimate that something in the region of over 90% of solicitors in Scotland eligible to join the Scheme have refused to do so.  The numbers on the Scheme continue to dwindle and yet SLAB are delighted with affairs apparently.  

Their second published update on 6th July 2011 indicates 160 solicitors and 90 firms are on the Duty Plans.  I know SLAB are becoming precious over information, even more so than usual, but would they care to comment on how many of the solicitors and firms currently on the plan have tendered resignations already?
 
We will have to wait and see how quickly nominated solicitors can access the details of any advices given by Board employed solicitors (or Duty Solicitors) since SLAB are insisting on some kind of contact phone number for details and information.  Can I suggest that those solicitors giving advices should keep fairly good contemporaneous notes as they may yet be cited as witnesses, should that become appropriate or where advice issues become relevant. 

I should also make some comment on the Press Release of SLAB dated 5th July 2011.  It is noted that they say the Scheme was developed following, “Full engagement with the Law Society of Scotland and was designed to have substantial private practice involvement...”.  Standing the withdrawal from negotiations by the Law Society of Scotland, I suppose another question for SLAB to answer is:

How do you define, “Full engagement”? 

Most people would suspect that refusal to negotiate is something less than that! 

The monitoring of the interim Scheme will no doubt follow the same vein as the monitoring of the Duty Plans at court after the increase in PDSO involvement to achieve 35% of the financial business going through the courts i.e. monitored by SLAB and kept secret by SLAB.  Lest there be any suggestion that this is otherwise than factual I can refer to at least 6 requests made of Kingsley Thomas (SLAB), by me, for provision of the necessary PDSO figures for cases that they have dealt with.  Initially they were to be provided when available, later to be provided in April, then during May, then very soon and more recently, well... it’s all gone quiet over there! 

SLAB, yet again, saying one thing in public meetings, continuing to say it privately and in correspondence but then do not actually do what they say. 

I share the concerns of the Law Society of Scotland Negotiating Team and the Law Society Council over just what can be relied upon if the source of the information is SLAB.  By way of a further example, the Board attended a meeting at Glasgow, at their request, on 14th June 2011.  At that meeting they made it plain that Board employed solicitors would not be dealing with Duty attendances at Police Stations.  Contrast that with the information given in the letter from SLAB to Ian Bryce of the Criminal Legal Aid Negotiating Team dated 1st July 2011 wherein they quite clearly state under the sub-heading of Employed Solicitors, “We have employed a small number of solicitors to operate the solicitor contact line.  They will provide telephone advice and attend police stations where appropriate.  We have also employed a small number of solicitors to attend police stations only where this is required” [my emphasis].  Just another example of SLAB saying one thing in a public meeting and doing something entirely different just over 2 weeks later. 

And so we end up with a bitter and ill-informed diatribe coming from SLAB implying that the Justice System has difficulties and suspects’ rights are in jeopardy all because of solicitors in private practice electing not to sign up to a nonsense Scheme.  How different from the glowing tributes paid once;

“We recognise and appreciate the efforts and commitment of many firms across Scotland to provide good quality Legal Aid services”.  Stated by SLAB as far back as  28th June 2011, in their letter to all Criminal Practitioners. 

Things change quickly in Legal Aid circles don’t they?

Yours faithfully

KENNETH J WADDELL
PRESIDENT, GBA