Bar Associations across the country have, after much consideration, set out why they are unable and unwilling to participate in the COP26 Duty Scheme as set out, ahead of an anticipated increase in charges and arrests during the COP26 conference.

Glasgow Bar Association Wrote:

By Email only to:
Ms. Ash Denham, MSP
Mr. Keith Brown, MSP
Mr. Colin Lancaster – Chief Executive, SLAB

Dear Ash, Keith and Colin,

GBA Members Vote to OPT OUT of COP26 DUTY

I am writing to advise you that we have conducted both a survey of our members and had a meeting of our members today after receiving your proposals for payment and the draft Duty plan, after hours last Wednesday.

The deadline for opting out was fixed at 5pm today.
An overwhelming number who responded to the survey voted in favour of opting out of the Duty Plan for COP26 and for declining to attend the weekend custody courts, again imposed without consultation with us, nor with any thought to an enhanced payment package to represent our own clients for the conference period. At our meeting today, there was a unanimous vote to adopt this position. Our members have voted to opt out
of the COP26 Duty Plan and to decline to attend to represent our clients for their weekend custody appearances.

Although I sought assurance from SLAB that all those Firms on the Duty Plan in Glasgow had received a copy of your proposal, that does not seem to be the case and the relevant Department at SLAB has failed to respond.
The proposal from the Government was incomplete and failed to confirm a proposal for Non-COP26 cases called over the three successive weekends of Saturday and Sunday Courts that will operate in Glasgow. Neither the Scottish Government representatives nor the relevant Department at SLAB have responded and confirmed a proposal.

Legal Aid practitioners are under pressure as they have been at no time before in living memory. Pay disparity with our justice partners means we are unable to train and retain staff who are leaving us to better terms and conditions and sometimes double their salary in equivalent roles in COPFS and Scottish Government Departments.

Your recent employment drives typify the disparity. Unless urgent action is taken, there will be a lack of gender equality, racial diversity and age diversity in the profession and the ageing population of Criminal Defence Practitioners will not be replaced. Your own figures illustrate this. We are a declining population of practitioners.

Under the Government’s Recover, Renew and Transform platform, we are undertaking an unprecedented level of business at court to clear the backlogs that arose when only urgent business took place during the early stages of the pandemic. The suspension of Jury and summary trials during the conference period will only add to the backlog. We have fewer practitioners undertaking more work. There is no scope to take on more
business, particularly when we are given less than two weeks’ notice of your proposals, the proposals are incomplete and not all practitioners received your proposals. We need not remind you that this is a conference that should have taken place last year. That we find ourselves in this position demonstrates the long-held belief that Defence practitioners are always an afterthought. Time and again since the effects of the pandemic
impacted upon the Court programme, we have demonstrated our willingness to participate in meetings to effect better communication and make progress. There is still more to be done, clearly.

As an Association, we are seeking immediate discussions with you and our colleagues in the affected Bar Associations, Law Society of Scotland representatives and our SSBA colleagues. We are seeking a commitment to a substantial increase in the legal aid rates and not simply the 5% promised by regulations next March, pending long awaited legal aid reform and a mechanism to review future legal aid provision to reflect the commitment of practitioners to this essential work for the most vulnerable members of
our society. We are also seeking a commitment to resolve the holiday court dispute before the next National Holiday which is St. Andrew’s Day, a year after our Association started action to address this matter. Only once we have a commitment from you about these essential matters, would we be willing to make a recommendation to our members to consider participating in the COP26 duty plan and weekend courts for own clients.
This position is mirrored across the country. Legal Aid practitioners advocate daily for their clients’ interests. Association and Faculty leaders are now doing so on behalf of their members. It cannot be right that there is a prioritisation of case processing and funding for COP26 cases and not for all others who will be arrested and detained during this period of substantial disruption to the rule of law in Scotland. This is manifestly
contrary to the interests of justice and to an individual’s human rights.

I await hearing from you to consider if these issues are capable of being resolved.

Kind regards,

Fiona McKinnon, President,
On behalf of the Executive Committee of the Glasgow Bar Association

EDINBURGH BAR ASSOCIATION
MEDIA STATEMENT – COP26 DUTY PLAN

The Edinburgh Bar Association has a proud history of working to seek better conditions and payment for our members.

Since our working lives were turned on their heads by the Covid-19 pandemic we have sought at every opportunity to engage with our criminal justice partners to facilitate the running of the courts in as efficient a manner as possible.

Regrettably, in spite of limited offers of assistance which have done little to address decades of neglect in Legal Aid funding, the criminal bar continues to be decimated.

This year alone COPFS have been able to embark on three rounds of recruitment, and in each of these there are more and more young solicitors lost to the defence bar. We have reached a crisis point. Unless there is significant work done to address the imbalance and manifest inequality of arms in the criminal justice system, the system will soon grind to a halt.

It is in this background that we have been asked to assist with what is expected to be a vast number of arrests and consequent prosecutions stemming from the COP26 conference.

Today, 13 days from the beginning of the conference there is still an ongoing lack of clarity as to the practicalities of the running of the courts to process these anticipated arrests. We find this absolutely stunning given the originally planned dates for the conference.

We have engaged for weeks now with representatives of the Scottish Government and Scottish Legal Aid Board who have proposed what might seem an attractive feeing system bespoke to COP26 business to ensure our cooperation.

Notwithstanding this, we are disappointed to note that in spite of our Association having withdrawn from the Police Station Duty scheme in 2017, it was still expected that we would accede to assisting with this for the duration of COP26. At no time did we express any willingness or intention to do so.

This leaves us positing why matters pertaining to a conference of this nature can justify such apparent generosity while we are told at every opportunity that there is no justification for this in order to keep the everyday functioning of the courts in order at all times.

In light of this, and in light of the fundamental lack of capacity of our members to take on such anticipated volumes of work, our members have as an association voted not to engage with the proposed COP26 duty solicitor scheme. We cannot in any good conscience do so at a time whereby we are stretched beyond capacity on a daily basis and retain professional obligations which must be upheld.

This is not a decision taken lightly, but we hope it serves as an indicator of what will continue to happen with the criminal justice system if the alarming inequality of arms is not addressed. The only way in which this can properly be addressed is with a significant increase in Legal Aid fees.

These fees remain largely unchanged since 1999. To suggest that this is reasonable is patently unstateable.

We will continue to do all we can to achieve this, but without a change in attitude of those responsible for the management and administration of Criminal Legal Aid, we fear that the system will soon simply not be able to function.

We are heartened however by the response of those other Bar Associations around the country who are similarly impacted by the spectre of business relating to COP26 and are adopting the same position as we are. We are delighted to stand with our colleagues around the country in seeking properly funded access to justice.

Neil Martin, President,
Edinburgh Bar Association.

ABERDEEN BAR ASSOCIATION
MEDIA STATEMENT – COP26 DUTY PLAN

Scottish criminal defence lawyers represent and support some of the most vulnerable in our society. But decades of underfunding have decimated the criminal bar leaving a profession that is now quite literally dying out.

Against this background, it should come as no surprise to the Scottish Government that the members of Aberdeen Bar Association, together with our colleagues throughout the country, are neither able nor inclined to turn our backs on our existing professional commitments to take part in the proposed COP26 duty scheme.

Ian Woodward-Nutt, President,
Aberdeen Bar Association.

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