Comment: Legal aid row sends solicitors in search of justice secretary

As a former Marine, trade unionist and local government administrator, Keith Brown was perhaps not the most obvious choice to succeed Humza Yousaf as justice secretary when the First Minister reshuffled her cabinet in May. 

A very angry group of defence lawyers is pretty pleased he got the nod, though, as it has afforded them the opportunity to incorporate his name into a long-running protest over, well, quite a lot of things, actually. And, as hashtags go, #GownsDownWheresBrown has quite the ring to it.

It is no secret that defence lawyers have long had beef with the government over legal aid fees, with the amount of money offered for publicly funded legal work barely moving in decades. Former Carengie UK Trust chief executive Martyn Evans incurred the wrath of the profession in 2018 when, after carrying out a lengthy review, he said he could find “no justification” for fees to rise.

Some money was found nonetheless – community safety minister Ash Denham announced a three per cent fee uplift late in 2018 and Yousaf delivered a further 10 per cent hike last year. But by then large numbers of defence lawyers had left the profession, juniors were unable to find a way in and those left behind were stretched to breaking point.

On top of that, while the Crown and court service received additional resources to help clear Covid-related case backlogs, the defence bar complained it wasn’t even consulted about plans to start running courts on bank holidays.    

And so the gowns have been laid down. Last week solicitors in Aberdeen and Glasgow refused to attend the holiday Monday custody courts, leaving 19 Aberdeen accused without access to their named solicitor and 37 in Glasgow having to represent themselves. When the courts convene on the St Andrew’s Day holiday, defenders in West Lothian, Banff, Peterhead and the Borders will also refuse to attend.

It may seem like a small gesture in the grand scheme of criminal justice, but with plans afoot for seven-day courts to deal with expected protestors at COP26, the boycott is likely to step up a notch too. Aberdeen Bar Association president Ian Woodward-Nutt and his Glasgow counterpart Fiona McKinnon are both very clear: their members have had enough and if they can make their voices heard when all eyes are on Scotland that is exactly what they are going to do.

There is something of an irony in the fact that lawyers feel moved to protest about the role they will have to play in dealing with other people’s protests, but at least ‘gowns down, where is Brown?’ will make for a good chant should they choose to take to the streets themselves. Brown may be keeping his counsel for now, but the UNISON representative in him must be just a little bit pleased with how comfortably his name has slotted into his adversaries’ sloganeering. 

Hashtags aside, the feeling that the defence bar is in crisis is real. For most taking part in the protest this is no longer a matter of being paid paltry rates, but of seemingly being ignored when genuinely held concerns are aired. Sure, Scottish Solicitors Bar Association president Julia McPartlin and Law Society of Scotland criminal legal aid convenor Ian Moir attended the parliament’s Criminal Justice Committee last week, but what the sector really wants is for the justice secretary to show that he hears them, that he sees the crisis looming and that he cares.

In the law, just as much as in politics, communication is king. Brown would do well to remember that.