SCOTTISH Justice Secretary Kenny MacAskill has a problem.
He needs to cut the legal aid bill. His solution is the Scottish Civil Justice and Criminal Legal Assistance Bill, which passed its second reading yesterday. It aims to trim £3.9m from the budget by obliging those who "can afford" to pay towards their criminal legal aid in non-jury trials to do so. Rather than the Scottish Legal Aid Board, which collects contributions in civil cases and has the means to enforce payment, defence solicitors will be obliged to collect these contributions.
Hundreds of solicitors are now threatening strike action, claiming that the proposals are neither sensible nor fair. They have the support of the Law Society of Scotland and they have a point.
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Earlier this year the Justice Committee sided with the solicitors and urged Mr MacAskill to reconsider. Now the SNP members of that committee have lined up with the Scottish Government. Yet the legislation has not changed.
The Government's argument is that the bill merely brings criminal law in line with civil law. Yet the two are not comparable. Criminal cases are brought by the state against individuals, who have no choice in the matter. The individual, regardless of financial circumstances, is considered innocent until convicted. If all are equal before the law, all are entitled to be defended. Already fewer and fewer solicitors are taking such cases. What happens to defendants who cannot or will not pay up? Will their cases be continued (incurring public expense) until the bill is paid or will such individuals end up attempting to defend themselves (wasting more court time)? Will contributions be refunded if the case is thrown out?
The threshold for paying a contribution is £68 of "disposable income" per week (less than £10 a day). What is included? War pensions? Disability living allowance? Will the figure rise with inflation? Will a man in debt to his bookie be denied access to justice?
There is a basic principle at stake here. This issue is about both justice and social justice. When Scottish ministers realised their anti-sectarianism bill was flawed, they sensibly called a halt and returned to the drafting board. They should do the same with this ill-conceived legislation.