The Glasgow Bar Association is seeking an interim interdict against the Scottish Legal Aid Board, over their “Duty Plans” system which SLAB operates where lawyers from the Public Defence Solicitors' Office (PDSO), who are employed by SLAB, are paid to represent the accused when they first appear in court.
The GBA are alleging that SLAB’s “Duty Plans” are discriminating against solicitors in private practice …
The Scotsman reports :
Legal aid chiefs 'favouring public solicitors'
Published Date: 21 March 2009
By JOHN ROBERTSON
law correspondent
SCOTLAND'S legal aid bosses were accused yesterday of an abuse of power by increasing the workload of public solicitors at the expense of those in private practice.
A plan for the sheriff and district courts in Glasgow could see a doubling of the business undertaken by the city's Public Defence Solicitors' Office (PDSO).
However, angry private sector lawyers claimed the real reason they would lose out on legal aid work was not to save public money but to give under- employed PDSO solicitors more to do.
The Scottish Legal Aid Board (SLAB) rejected the allegations and opposed a bid by members of the Glasgow Bar Association to win an interim interdict to stop the plan from being implemented.
Lady Stacey was asked to grant the order at the Court of Session in Edinburgh, but the case was not concluded and will be continued next week.
The court heard that SLAB operated "duty plans" at courts throughout Scotland, under which solicitors, on a rota basis, were paid to provide representation for accused people when they first appeared charged with an offence.
In Glasgow, historically, solicitors on the duty plan could expect to have at least two weeks per year as a nominated lawyer in the sheriff or district court. In recent years, private solicitors had faced competition from public defence lawyers, who were employed by SLAB.
The Glasgow PDSO had two solicitors, and Lady Stacey was told they had received more slots under duty plans, reaching ten weeks in 2008. The 2009 plan, revealed this month, more than doubled their slots, to 21 weeks.
The Scottish Legal Aid Board did issue a Press Release on this matter in early February, which you can download HERE or read below :
03 February 2009
SUMMARY
Private firms have not lost out; their duty solicitor plan allocations have not been reduced. Where vacant slots naturally arise, using the PDSO is a cost effective solution that means savings for taxpayers. The PDSO has proven itself a feasible, valued and respected service.
BACKGROUND
The BBC approached the Board seeking comments on points raised by the Glasgow Bar Association, on the involvement of the Public Defence Solicitors Office (PDSO) in the Glasgow duty solicitor plan.
We have explained that decisions on the extent of use of the PDSO is a matter for Scottish Ministers and that the BBC should contact the Scottish Government to discuss these issues.
Furthermore, the issues being raised should be seen in the context of the impact of the 2008 reforms to the summary criminal justice system, which is also a matter for the Scottish Government.
The Board has a statutory responsibility to make solicitors available, via duty plans, to represent accused people, appearing in court from custody, that do not have their own lawyer. This is an integral part of our remit to provide access to justice and to help ensure the effective and efficient operation of the courts.
Whilst the duty solicitor scheme is a Board matter, we seek to work with local solicitors in its operation where appropriate. The schemes differ around the country.
Criminal legal aid practitioners view the duty solicitor scheme as a useful means of obtaining new clients.
GLASGOW BAR ASSOCIATION
Last year we advised solicitors, including GBA members, that we intended to review the scheme in 2009. Unfortunately, the GBA had at the time withdrawn its contact with the Board following its industrial action last year, which involved trying to disrupt the courts by not operating the duty plan as normal.
Following publication of the 2009 interim duty plan for Glasgow, the GBA wrote to the Board seeking to reinstate our quarterly meetings and separately providing comments and suggestions for the 2009 Glasgow plan. We welcomed this and tried to arrange an early meeting to discuss, amongst other matters, the new duty plan for Glasgow. Unfortunately the GBA were not able to meet with the Board until 18 February.
The Board shares the GBA’s views on a number of the points made in their letter of 8th December about the need to fundamentally change the operation and structure of the Glasgow duty plan, which operates differently to all the other duty plans in Scotland.
As such, it is disappointing that the GBA have sought to air their concerns in the media prematurely, before entering into a dialogue with the Board. We have since offered to bring forward discussions of the 2009 plan at a meeting on the 4th February. We have extended the interim plan until the end of February to allow these discussions to take place.
Our intention is, and always was, to involve solicitors in this process. The Board have always been open to engagement. We are currently still finalising the Glasgow duty plan and in doing so will seek to ensure the plan meets the changing needs of the courts in Glasgow following last year’s major reforms to the summary justice system in a way that makes best use of public money and resources.
GLASGOW DUTY SOLICITOR PLAN
The Glasgow duty plan historically operates differently to the rest of the country in that it is a rolling duty plan; with solicitors keeping their slots year on year, until they advise that they no longer wish to participate.
Our approach to the 2009 Glasgow plan – as reflected in the interim plan currently in operation – is to ensure that the existing allocations for Glasgow solicitors wishing to remain on the plan are maintained at the same level as the previous year, as well as being able to accommodate new solicitors who have applied to join the scheme.
This has left a number of additional vacant slots – which had to be allocated and the Board was able to allocate the remaining vacant slots, around 12 out of the total of 624 slots currently available, to the PDSO. We have in fact done this in some previous years. The alternative would have been to try to distribute these 12 slots between around 300 other solicitors on the plan (which cannot be done evenly), all of whom had already been allocated a share equivalent to that allocated in the previous year.
Even with these additional slots, the PDSO has less than 5% of the total Glasgow slots available. Allocating vacant slots in this way provides better value for money for the taxpayer.
KILMARNOCK / FALKIRK / AYR DUTY SOLICITOR PLAN
Here private practice solicitors are given allocations of weeks depending on the numbers that register their availability each year. Firms get a share appropriate to their size / number of solicitors. It is not always possible to give arithmetically equal allocations each year, as this depends on the numbers that come forward. This means that firms might get fewer weeks one year but more the next to compensate. In Kilmarnock and Ayr, some firms were allocated 4 weeks last year, balanced by 3 this year, while the firms allocated 3 weeks last year have been allocated 4 this year. The PDSO, along with several others firms, is in the latter group. Similarly in Falkirk, the PDSO along with several other firms had 5 weeks last year compared to 6 this year.
INVERNESS
The PDSO is now a three solicitor office and has had its allocation increased proportionally. Each PDSO solicitor receives 28 days, the same as each private solicitor in the area.
PDSO – DUTY PLANS - VALUE FOR MONEY FOR TAXPAYERS
In some parts of the country, the PDSO is relatively new, and the offices are still building up their business levels. Overall in 2007-08, PDSO took on nearly 2000 cases, including as duty solicitor and made 3,269 court appearances, excluding custody cases. The case load included the “Orkney waiter” murder trial, the biggest criminal trial in Scotland of that year. The PDSO has also been successful in resolving cases early; we expect this approach increasingly to be reflected by private practice solicitors following the recent changes in the way they are paid.
Using the PDSO to fill vacant duty solicitor slots, in Glasgow or other parts of the country, is a pragmatic and equitable solution, which is also cost effective for the taxpayer. Additional PDSO involvement in duty plan means savings for taxpayers as PDSO solicitors are paid an annual salary, rather than being paid on a case by case basis as private solicitors are. This enables us to achieve better value for money, both in terms of the duty plan and PDSO itself, as the more cases the PDSO deal with, the greater the economies of scale that are achieved.
This is consistent with the Cabinet Secretary for Justice’s stated expectation that the Board should work to ensure the financial viability of the PDSO network and to optimise the investment of public money in the service while minimising potential negative impacts on suppliers in any area.
This follows how public defence systems work in other jurisdictions, where governments will seek to optimise their investment and increase cost efficiencies with an increased case load.
Increasing the caseload of the PDSO can be done in a number of ways; the most cost neutral of these is through use of the duty solicitor scheme in the major cities.
Moreover, the extra PDSO slots have been achieved at no extra cost to taxpayers. The PDSO has the capacity to increase its case load without increasing costs to the taxpayer. Increased use of PDSO capacity delivers real savings to taxpayers.
Private solicitors have not lost out; they have not had their allocations reduced. On some plans slightly unequal allocations last year are being balanced out this year, as happens every year, including on plans that do not involve PDSO. Some private firms are actually increasing their duty plan allocations.
More broadly, it is a matter for Scottish Ministers to decide on the extent of the public defence service. The Scottish Government recently laid a report before Parliament indicating its view that a public defence system is feasible in Scotland. The Board agrees with this.
The Cabinet Secretary for Justice has made it clear he is not intending to expand or reduce the public defender network in Scotland. However, he has made publicly clear his intention to use the PDSO if there is market failure or a disruption of supply.
Using the PDSO to fill vacant slots in the Glasgow duty plan is not about expanding the PDSO service but making best use of public money and resources, which always has to be a key consideration for the Board.
THE PDSO SERVICE AND THE PUBLIC
The PDSO currently employs 14 solicitors, two of whom are solicitor advocates, and one trainee. PDSO is fortunate in employing so many experienced and dedicated defence solicitors. The PDSO aims to provide high quality criminal defence. In a recent client satisfaction survey, 90% of respondents rated the PDSO as good or very good. We have also received positive feedback from the courts on the service.
Clients are able to speak to a PDSO solicitor 24 hours a day, 7 days a week via a freephone helpline. It has also engaged with Scotland’s Polish community by employing a Polish-speaking paralegal. The Glasgow office in particular has gained a reputation for working well with women and clients with mental health problems.
The new quality assurance scheme for criminal legal aid practitioners which will be introduced in 2009 is based on a pilot scheme run with the PDSO.
It is important to recognise that the PDSO cannot operate in exactly the same way as private criminal legal firms. For example it is not permitted to provide legal services for paying clients. Private firms are therefore able to top up their legal aid work.
GOING FORWARD
The Board has already announced that we intend to undertake a full review of the solicitor duty plan system in 2009 and will continue to ensure that accused people have representation and that the system is cost effective and offers taxpayers value for money. This will be carried out in consultation with the profession and other interested parties.
As indicated, decisions on the future use of the PDSO are a matter for Scottish Ministers. The Board’s view is that criminal defence is best served by a mixed system, primarily provided by private sector solicitors but with a public defence network as an important and integral part of that set up. The Cabinet secretary has already made his views clear on this matter.
It’s important to recognise that the PDSO is a very small network of only around 14 solicitors compared to the 1,400 solicitors in private practice.
Providing criminal legal assistance in this way also enables Scottish Ministers to direct provision of services to areas where there is insufficient provision or market failure. The PDSO has demonstrated
that providing publicly funded criminal legal assistance by means of solicitors directly employed by the Board is entirely feasible.
The PDSO network comprises seven offices around Scotland including Glasgow. It was set up in Glasgow to operate in what is seen as a fairly saturated market. It is particularly important, both to the Board and to the Government, to have a PDSO presence in Glasgow, a city that represents 20% of the criminal court business in Scotland and has Europe’s biggest criminal court.
We look forward to having further discussions with the GBA as we seek to finalise the duty plan for the coming year and as part of our wider review of duty arrangements.
This wider review would have taken place earlier, but has been delayed because of the scale of the recent summary criminal justice reforms.
The Board recognises and values the role of the private criminal firms in Scotland and wishes to see these and the small PDSO network work together to provide quality legal aid services in a cost effective manner.
