The Margaret Taylor Interview: Fiona McKinnon on the gathering legal aid storm

Fiona McKinnon

Though a £9 million resilience fund and 10 per cent increase in fees is certainly not to be sniffed at, to say those working in the sector were less than impressed with the proposal would be the understatement of the year. Indeed, the Glasgow Bar Association (GBA) was so incensed at the offer that just five of its 350 members felt able to support it, with the organisation’s president – McKinnon & Company sole practitioner Fiona McKinnon – taking no prisoners when she wrote to Mr Yousaf and Community Safety Minister Ash Denham on Hogmanay to explain the cause of their disdain. The Scottish government has “failed to accept the arguments about equality of arms between us and our fully state funded colleagues in the justice partnership”, she wrote, while the fact that legal aid practitioners had had to wait nine months to even hear if an offer of relief would be forthcoming was, she continued, “simply not good enough”.

The situation has arisen because, when the courts were forced to close at the beginning of the first lockdown, many practitioners saw a large proportion of their work disappear in an instant. Efforts to remedy that with online hearings and remote trials have helped, but the reduction in court business remains dramatic and anyone whose practice is built around court work has seen their income reduce significantly.

In light of this – and speaking before the government announced that the new lockdown restrictions mean only the “most serious” trials will proceed between now and the end of February – Ms McKinnon made clear just how pressing it is for those working in the legal aid sector to see a relief package that really does constitute the promised “significant support”.

“It’s an increasingly difficult time,” she stresses. “There are members who are suffering severe hardship and are on benefits because of the nature of their work. Members of the public are used to stories about fat-cat lawyers and counsel in murder trials earning tens of thousands of pounds. The truth is a lot of our members are operating hand to mouth. We have a number of agents who operate on an agency basis and when that business wasn’t there their source of income disappeared overnight.”

She does not, however, believe the offer put forward by Mr Yousaf will come anywhere close to addressing that situation. The proposed 10 per cent increase in fees, which will be spread over two years and comes after the Scottish government raised all legal aid fee levels by 3 per cent in 2019, is fine in theory, Ms McKinon notes. But as the fixed fee for summary work has not changed since being set at £500 in 1999, it would still leave fee levels way below where they would be had they increased by inflation alone over the intervening years.

“Had they even taken it at inflation, the summary fixed fee would be closer to £900 now but it’s still £500,” she says. “People have to see that because it’s not a made-up figure. We have asked for a 50 per cent increase to that fixed fee because we can justify that on inflation alone. It’s a big figure and we know that, but we can justify it.”

Notably, Ms McKinnon says, the request is being made in the full knowledge that during the time the summary fee has remained unchanged at £500 an MSP’s income has almost doubled from £32,422 to £64,470, while the salary awarded to the chief executive of the Scottish Legal Aid Board has risen from £70,000 to between £110,000 and £115,000.

Then there is the fact that, while Mr Yousaf’s proposal is for overall fee levels to go up, the GBA feels the government is planning to pay for the increase by chipping away at what practitioners can earn elsewhere. This, Ms McKinnon says, smacks of bad faith.

“They say they will increase the fee for a Section 76 letter if a client is going to plead, but we’ve discovered that they are giving with one hand and taking with the other,” she says. “They want to extend the summary fees for doing a justice of the peace case or a sheriff summary case to stretch from two to four diets of hearings. They are masking a fee increase with clawback provisions. That’s not in the spirit of what a fee increase should be.”

In her letter to the ministers, Ms McKinnon made very clear that she wants the views of the GBA’s members taken into account before the relief package comes before Parliament at the beginning of next month. While those operating in the sector have been warning for years that it faces collapse, she believes that the goodwill of those running legal aid practices has finally been exhausted. If the Scottish government, which she says has “invested money hand over fist” in other areas of the justice system, does not recognise the hardship so many defence agents are now facing, the consequences are likely to be unprecedented.

“During [the first] lockdown we advised ministers that we were having a sustainability issue,” Ms McKinnon says. “There are black spots across the country where people don’t have the ability to choose independent legal provision because it’s not economic to have a legal aid practice unless there’s scale. We’ve had people leave the legal aid sector, we’ve had people made redundant and we have members receiving benefits.

“The landscape has been very stark for many practitioners and that has a knock-on effect – the fewer people there are registered to provide legal aid, the further it reduces the ability for local communities to access a solicitor on their doorstep. I receive emails on a daily basis from people in the Western Isles and in the Highlands saying they can’t select a solicitor of their choice and would I be able to do their case from Glasgow, but I’m a sole practitioner and I don’t have the resource to travel for two days for a case.

“For those that keep doing this job, their goodwill has been well and truly exhausted. People will leave and there will be more strike action. We have canvassed members and have a tranche of ideas that we will implement if we don’t see a package that meets the needs of practitioners and recognises the hard work we have always done.”

Strike action in the legal sector is extremely rare, but members of Edinburgh Bar Association voted not to attend court on St Andrew’s Day 2020 in protest at not being consulted on the decision to keep courts open during public holidays as a result of the pandemic. In Glasgow, members of the GBA’s committee appeared in court on nominated solicitors’ behalf so they too could take strike action without jeopardising their ability to earn their full fee – as things stand, the legal aid rules state that if someone from the Public Defence Solicitors’ Office represents a nominated solicitor’s client then that solicitor can only claim half the normal fee for carrying out the rest of the work on that case.

Ms McKinnon says the GBA’s members stand ready not just to take similar action again but to help their counterparts in other parts of the country follow suit.

“Both civil and criminal practitioners are ready to withdraw services,” she says. “We are willing and able to coordinate with other faculties to roll out the withdrawal of services across the country, either by staggering it or doing it all together.

“We’ve been forced during the pandemic to communicate by other means and that has been a steep learning curve, but we are all now used to video conferencing and we are more able to communicate on plans of action. We’re preparing to withdraw from duty schemes and from the representation of sex offenders and domestic abuse cases.”

Mobilising Scotland-wide strike action is probably not what Ms McKinnon thought her presidential year would hold when she took on the vice-presidency of the GBA in 2019. Yet having replaced Billy Lavelle as president at the end of last year, she says that for now at least fighting for a fair deal for legal aid practitioners, in whatever form that takes, has to be her primary focus.

“As part of our constitution we say we want to represent the interests of our members but also to contribute to legislative changes that help members of the public,” she says. “We’re here to safeguard what the rule of law is for members of the public and to ensure that the machinery of government isn’t unnecessarily onerous.

“We want to improve the terms and conditions of our members and we’ve done quite a lot of work in the last year to preserve the jury system and to fight against the proposal that judge-only sittings could be introduced. From the end of last year into the start of this year [the support package] has had to be our principal focus because there’s a small period now when we can try to effect change.”