After years of pleading with the Scottish government to raise legal aid fees, by the end of last year Scotland’s criminal defence lawyers had finally had enough. Members of Edinburgh and Glasgow Bar Associations showed their displeasure by refusing to take part in St Andrew’s Day custody courts, with the show of solidarity leading directly to the launch this month of the Scottish Solicitors Bar Association (SSBA).

“When we had the action on St Andrew’s Day it made a real difference to have Edinburgh Bar Association [EBA] and Glasgow Bar Association both acting together,” says SSBA president Julia McPartlin.

“A lot of smaller faculties joined in and Aberdeen Bar Association wrote an open letter to The Herald. Even though we weren’t doing exactly the same thing we were all doing it at once and that helped.”

A nationwide bar association has long been mooted, but for mainly logistical reasons had never got off the ground. The enforced use of technology ushered in by the coronavirus pandemic – as well as the strength of feeling lockdown restrictions prompted – provided exactly the platform required to make it a reality.

“This isn’t a new idea – lots of people have tried to do it before,” Ms McPartlin says. “The reason it didn’t work before is that Scotland has lots of different bar associations and we have a lot in common and are all singing from the same hymn sheet, but had no formal mechanism for coordinating activities.

“The advantage we have now compared to people who have tried it before is that it’s so much easier to communicate with things like Zoom and WhatsApp. Over the course of the lockdowns, we have all become a lot more used to using those – we have a bit of an advantage because of the technology. It’s also become more pressing because of the issues thrown up by the pandemic; those are things that are just not going to go away.

“Because we’re a disparate bunch we’re much easier to ignore – it’s difficult to get us all together. Technology makes it so much easier and that’s been a big factor in being able to get this off the ground.”

As president of the EBA prior to taking on the SSBA role, Ms McPartlin – a criminal defence solicitor at Hughes Walker – is no stranger to fighting on behalf of the profession she represents. Indeed, she and her fellow EBA members have been vocal about cutting back on legal aid work for a number of years, withdrawing from a range of Scottish Legal Aid Board (SLAB) duty schemes in protest at the level of fees defence agents get paid. It is a theme she expects will continue to preoccupy her in the nationwide role.

“Legal aid is a big issue, it’s not the only one but it has been going on for so many years with underfunding that people are just fed up,” she says. “When the pandemic came along we were asked to go into court in situations that were less than ideal and there’s a lot of feeling that we weren’t treated particularly well. That just exacerbated the frustration about legal aid.

“Then we see things like the Criminal Justice Board looking at how to deal with the courts [in light of the pandemic] and including fiscals but not including defence agents and it seems like a really basic oversight. It’s insult upon insult.”

The SSBA is open to both criminal and civil practitioners, but initially expects much of its focus to be on the former. One of the first issues it is looking into on behalf of its members is how a £9m Scottish government resilience fund put in place to help legal aid firms weather the impact of the pandemic has been administered. Many firms have complained that, despite seeing their incomes drop dramatically due to courts being closed for much of last year, they have not been deemed eligible for support from the fund. Though applications for the fund closed at the end of March, Ms McPartlin says there is such ill feeling about the way awards were calculated that the SSBA will be pushing SLAB to look again at their allocations.

“I don’t know what the algorithm is they used to work out the grants but we’ve been getting examples from firms of SLAB saying the number of legal aid applications they put in over the Covid year is much higher than they actually had,” she says.

“There’s something wrong – I don’t understand what it is because we were not party to how they were working it out but it doesn’t fit with reality. We know how much our businesses are down. People are being told they made more over the Covid year, which can’t be true.

“SLAB got 200 applications and they’ve spent £2.2m of a £9m fund. That’s not a small difference. A lot of people are challenging it and are starting to get replies back but we don’t have a definitive explanation. In any event, we were promised that the £9m would be there to help people and it’s no good if £7m isn’t being spent.”

When he announced the resilience fund, justice secretary Humza Yousaf said the package of support would extend to legal aid fee rates too. Having applied a 3 per cent increase following a review of the sector in 2019, he said fees would be increased by a further 10 per cent over a two–year period. Ms McPartlin says the move was welcomed by a profession that has long been arguing the rates they receive are not enough to make a living from. However, she adds that as the FDA union was able to secure a multi–million pound pay deal for prosecutors not long after, the award now seems bittersweet.

“We’re trying to be reasonable,” Ms McPartlin says. “When they announced the 10 per cent increase we thought it’s not enough but at least we’re getting somewhere – maybe it’s a sign of good faith. Then you look at the increase the fiscals got, which brought them into line with Scottish government solicitors, and you’re talking about a newly qualified solicitor getting double what a defence agent would be getting. There’s no way we can compete with that.

“I think the fiscals should have parity with other Scottish government solicitors, but I think we should too and that’s the issue.”

As public sector workers, the procurators fiscal were able to rely on their union to negotiate the pay deal on their behalf. While Ms McPartlin stresses that the SSBA is not a union, she says it wants to take on that kind of role on behalf of its members, particularly as the issues thrown up by the pandemic are likely to be felt by practitioners for some time to come.

“We’ve still got ongoing Covid problems like health and safety in the courts and the backlog of cases – there’s so much still to come,” she says. “Now more than ever we can help ourselves by uniting and presenting a joint front.

“We want people to sit up and listen. We’re not going to carry on being disorganised and we’re not going to carry on taking what’s dumped on us. We want to be a strong voice for the profession.”

Anyone interested in joining the Scottish Solicitors Bar Association should email thessba21@gmail.com stating which sheriffdom they practise in and whether they are a student.