Exodus threat over prospect of Saturday court sittings

First published by The Times on 24 September 2020

Plans for Scotland’s courts to sit on Saturdays from April have been so poorly received by criminal defence solicitors that an exodus is being predicted from the already precarious section of the profession.

Last month the Scottish Courts and Tribunals Service (SCTS) issued a report on the impact of the Covid-19 pandemic on its operations, in which it suggested that weekend hearings could be used to clear the backlog of cases that built up during the lockdown- induced closure of the courts.

Criminal defence law firms oppose the plan, noting that staffing levels mean it would be far more disruptive for defence solicitors than for other court officials.

Julia McPartlin, president of Edinburgh Bar Association, says the feeling is that “Saturday courts will inconvenience one sheriff every ten weeks or so, but for us it will be every other weekend. It doesn’t even seem like we’ll be gaining much in terms of court time. The court sits from 10am until about 4pm — around five hours — so to get that we could maybe just start an hour earlier or finish an hour later each day [rather than sitting on a Saturday too].”

McPartlin adds that with morale in the criminal defence branch of the profession already low because of anti-social hours and the continuing fight for an increase in legal aid fees, the expectation is that lawyers will start seeking roles elsewhere rather than factor a weekend shift into their working week.

“The view among the profession is one of frustration and the level of frustration has been building and building,” McPartlin says. “Prior to lockdown we were seeing a lot of women in their twenties to mid-thirties and early forties leaving and going to other places that are essentially state funded — the [procurator] fiscal’s office or the [Scottish] Child Abuse Inquiry. Those are places that offer much better working practices for people that might be thinking about having a family and quite a lot of those women who left have since started families.”

While such departures have left a vacuum at the middle of the profession, Matthew McGovern, a solicitor at McGovern Reid, a firm in Hamilton, and a committee member of the Scottish Young Lawyers’ Association, says those at the beginning of their careers are also shunning private practice.

“Retaining people when they qualify is a problem as they generally go to the Crown,” he says. “At the Crown they work set hours, they have a pension, flexitime and career progression opportunities, and they don’t have to provide representation at police interviews late at night or at weekends. The whole package is pretty attractive.”

McGovern says that “Saturday courts is the final kick in the teeth. We’ve seen dentists [on furlough] getting paid 80 per cent of their salary not to work, but solicitors were in working and keeping the wheels of justice going and the thanks is: by the way, you can come in on a Saturday too.”

Ian Moir, convener of the Law Society of Scotland’s criminal legal aid committee, says the knock-on effect of newly qualified solicitors leaving private practice is that it creates a disincentive for firms to offer traineeships. That this is happening at a time when the pandemic means even fewer firms than normal are able to offer traineeships will have serious implications for the future of the justice system, he adds.

“There aren’t going to be anywhere near enough skilled lawyers to be able to represent people facing serious charges and years later there won’t be enough people to fulfil sheriff jobs and High Court judge jobs,” Moir says.

In a bid to kill off any prospect of Saturday court sittings, the society is lobbying the Scottish government to provide a rescue package for law firms as they gear up for job losses when Westminster’s furlough scheme ends next month. It is also asking the government to provide funding for traineeships.

“There are going to be a lot of people who do this work that won’t be in a position to renew their practising certificates in October because they can’t afford to,” Moir says.

“Unless we get a rescue package from the Scottish government, firms won’t be able to renew for some or all of their staff. There is also indemnity insurance, which is many thousands of pounds, and the Scottish Legal Complaints Commission levy due in October. We need financial assistance.”

The government is considering the Law Society’s proposals, while the court service has committed to consulting before pressing ahead with its weekend courts plan.

“This option would require consultation and engagement with the legal profession, justice organisations and the third sector, as the resource implications would impact across the whole justice system,” a spokesman said.

Amanda Millar, president of the Law Society of Scotland, intends to hold the court service to that promise, having spent the weeks since taking office in June mobilising the profession so it is ready to respond.

“The issue in relation to Saturday courts has caught the imagination and from my perspective I’m keen to get engagement from everybody across the profession in relation to this,” she says.

“We want to have as much engagement with the SCTS as possible. Any time there has been engagement outcomes have been delivered.”