Solicitors across Scotland are now refusing to accept appointments to represent accused individual’s interests in court.  Such appointments occur when an accused is not allowed to conduct his own defence, and refuses to engage the services of a solicitor.  The Glasgow Bar Association (GBA) has issued a statement explaining the reasoning behind their decision to participate in this action.

Statement

The Glasgow Bar Association represents and promotes the interests of approximately 400 solicitors in the west of Scotland, a large proportion of these being criminal defence solicitors.  One of the most important functions of the Association over recent years has been to make representations to the Scottish Government in an effort to have the defence bar properly funded, thereby allowing for a sustainable future for the defence bar. 

It is disappointing to note that to date these pleas have been ignored.  The Scottish Government have been advised that legal aid firms are in crisis yet have dragged their heels over any increase in legal aid fees.  On 1st November 2021 the Government asked for detail as to what was required to attempt to address the situation.  They were advised in a joint letter signed by the Law Society of Scotland and the Scottish Solicitors Bar Association on 12th November 2021 that, in broad terms, an increase in line with inflation from the date that the fees were set (1999) was required to avoid firms going to the wall.  

Despite the urgency which was narrated in the above letter, the Scottish Government did not respond until 28th February 2022 with fee reform proposals.  It is the view of the Executive Committee of the Glasgow Bar Association, and the membership in general, that these fall significantly short of what is required.  It seems absurd that the Scottish Government would ask for representations on what is required and then almost completely ignore them.  

The Scottish Government have stated previously that they have provided increases of 3%, 5% and 5% to the fee levels over the past 4 years.  However, these increases do not address years of under-investment in legal aid whereby most fees had not increased since being set in 1999 and some from as far back as 1992.  We are acutely aware that there are pressures on public finances as we come out of the Covid pandemic and face the consequences of rising inflation, but these factors have only exacerbated the already precarious position the defence bar finds itself in.  The Government have also previously pointed to a £20 million recovery fund which was distributed, including a £1 million trainee fund.  However, this was more than paid for with a £30 million reduction in legal aid spending during the year 2020-21 as a result of the pandemic.  To dress this up as investment in the profession is simply not correct.

Given the above it is therefore with some regret that we are in the position of having to take further action to protect the future of the defence bar.  Glasgow Bar Association members will no longer accept court appointments in cases where accused are not allowed to represent themselves.  In a recent survey of our members over 90% voted in favour of this course of action.  Defence solicitors by our nature want to assist the most vulnerable in society.  We are being prevented in doing so by the refusal of those in power to listen.  To refuse to represent clients shows how serious the situation has become, and represents an escalation in action, having previously refused to accept instructions to act at custody courts calling during public holidays.

All of the above is to say nothing of the challenges facing civil legal aid practitioners.  There have been no proposals forthcoming from the Scottish Government for an increase in those fees, despite being in a similar situation.  The Glasgow Bar Association is fighting on other fronts to attempt to address the shortcomings in this area.

The refusal of court appointments is a step which is happening across the country.  The Glasgow Bar Association stands firmly with our colleagues in other jurisdictions in seeking to protect the future of the independent criminal bar and shall continue to provide representations to this effect.

David Fisken

President of the Glasgow Bar Association

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