Shelagh McCall is a member of the Faculty of Advocates. Last year, she sought a judicial review against the Scottish Ministers of their decision to amend criminal legal aid fees and apply them retrospectively. It had been decided that the amended fees would apply to all work done for proceedings that concluded on or after 4 April 2005. As a result of this decision, the fees for any work carried out before that date on a case that concluded after that date would be determined by the newly agreed rates.
The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005 (the "Regulations") were created in order to clarify the feeing system for legal aid work. The previous table of fees was considered to be outdated and it had become the norm for the Scottish Legal Aid Board (the "Board") to allow fees to be charged at levels well above those prescribed. As the fee rates were not clear, it often took long periods of time before Counsel were paid.
The levels agreed in the new table were sometimes less than those chargeable under the previous system, however, the Board was of the view that the increased convenience and certainty for Counsel would outweigh any decrease in the value of fees recoverable.
As mentioned above, the issue here was the retrospective implementation of the new fees. Ms McCall claimed that, in some instances, she would receive considerably less payment under the new regulations and she had undertaken that work on the basis that she would be paid in accordance with the old arrangement. She sought a decision that the new Regulations were outwith the power of the Scottish Ministers as the Scotland Act 1998 prohibits the Scottish Ministers from making any subordinate legislation which is incompatible with the rights and fundamental freedoms set out in the European Convention on Human Rights. McCall submitted that the Regulations breached her right to peaceful enjoyment of possessions.
Previous case law has accepted that future income falls within the definition of 'possessions' if it has been earned or if an enforceable claim to it exists. Therefore, the next step for Lord Carloway was to decide whether or not there had been a breach of Ms McCall's peaceful enjoyment of these possessions.
Lord Carloway determined that although the new Regulations did not deprive Ms McCall of all of the fees, they did affect the value of her claim. Therefore, it could only be considered that the actions of the Scottish Ministers amounted to interference by the State in the enjoyment of the petitioner's property. What was left to be decided was whether this interference was proportionate and for a legitimate aim. Lord Carloway explained, "the sacrifice of certain levels of fees for particular aspects of work in return for certainty and prompt payment cannot be criticised as anything other than a reasonable compromise from the points of view of both bodies." However, this does not provide a reason to apply the Regulations retrospectively. Indeed, Lord Carloway was of the opinion that there was no significant public interest in doing so.
It was decided that Ms McCall's rights under the European Convention on Human Rights had been infringed. The case was put out by Order to determine the next procedural step.