Equality before the law is a basic right in democratic states.
Justice Secretary Kenny MacAskill wants to save nearly £4 million a year from the legal aid bill by obliging those charged with criminal offences to contribute to their own defence in non-jury trials. He insists it will not breach the right to a fair trial and would put Scottish criminal law on a par with civil law and legal systems elsewhere.
However, as his critics have observed, the two are fundamentally different. It is only in criminal cases that proceedings are brought by states against individuals, who have little choice in the matter. Solicitors in civil cases know full well that these contributions act as a barrier to accessing justice. Increasingly, clients are forced to abandon civil actions when faced with legal aid contributions beyond their means. Two wrongs never made a right. The equivalent situation in criminal proceedings would be the accused opting to plead guilty or defend himself, neither of which would probably be in his best interests. Either could result in wrongful conviction.
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The frustration of criminal legal aid solicitors boiled over again yesterday in protest action, this time in Edinburgh, Glasgow and Paisley. Walk-outs are also threatened in Dundee and Perth. As The Herald reports today, in anticipation of such action, Tayside police were advised by a senior officer in an email to minimise arrests, for fear that the custody courts would be reduced to chaos by the impending strike.
Similar advice went out in Glasgow, which appears to have resulted in fewer court appearances than might have been expected following a holiday weekend. This might have resulted in someone who would have faced incarceration one day getting away with a fixed penalty notice or even a simple warning on another. This is unfair and unjust.
Solicitors, who have received the backing of academics and charities, feel they have no other way of gaining the attention of the Justice Secretary. Nevertheless, Mr MacAskill seems intent on driving through the changes. It is high time this manoeuvring stopped and meaningful talks took place.
Some have attempted to portray this story as being about the loss of fee income by wealthy solicitors. This is unfair, as legal aid solicitors have been on the end of a series of cuts and few earn the vast sums that are bandied about. Rather, it is about the prospect of a justice system in which the very poor, who qualify for full legal aid, and the well-off, who can afford to pay, are properly defended, while those in the middle, unable or unwilling to cough up, receive second-class justice. Yet they too are innocent until proved guilty.