SLAB Loophole

In another of his posts, How to pretend to be a senior counsel… and get paid for it, Jonathan Mitchell QC writes about a loophole in The Criminal Legal Aid (Scotland) (Fees) Regulations 1989. Members of the Faculty of Advocates are regarded as "Senior Counsel" if they are QCs, but there are no accreditation criteria applying to solicitor advocates. This allows solicitor advocates to send instructions to themselves as senior counsel, and take the higher fee, without ever instructing senior counsel at all. Scottish Legal Aid Board only authorise legal aid for senior counsel because the case is exceptionally difficult or important and how much the loophole costs the tax payer is unknown.

The Society of Solicitor Advocates has suggested, solicitor advocates can be accredited as 'senior' meaning they would be paid the same without the qualification. This could lead to the scenario where a solicitor advocate claims the senior counsel rate and Jonathan would be left with the junior rate, because that is all that is left. The client would lose out because the next time Jonathan would refuse the instructions on this basis.

When legal aid is so stretched so that it can be difficult finding a lawyer, including family solicitors, prepared to take on legal aid work there must be a better way to ensure public funds are being appropriately spent.