THE Law Society of Scotland has been expressing its concern about the state of the legal aid service for several years now. Three years ago, it warned that the budgets for legal aid in Scotland were unrealistic and could end up restricting access to the justice system for people on low or modest incomes. In other words, the right to a fair trial itself could be under threat.
As budgets have continued to fall, the Law Society has repeated its warnings many times, and now the Faculty of Advocates has added its voice to the argument. In a submission to the Scottish Government’s review of legal aid, the faculty says that unless the system is reformed, people accused of the most serious crimes are at risk of losing access to legal representation.
The faculty also warns that the poorest in society are being let down by a system that was set up to protect their rights. “The consequence,” says the submission, “will be a diminution in the quality of representation generally and, potentially, the eventual disappearance of advocates as pleaders in the most serious cases.”
Some might find it hard to be sympathetic to the case put by the lawyers. For a start, legal aid is sometimes the focus of suggestions that it is far too easy for the undeserving to get funding but it is important to go back to first principles. In a society that values fair access to justice, both sides should be equal, with comparable representation. A strong prosecution and a weak or non-existent defence is a violation of the most basic principles of justice.
There may also be some suspicion of the idea law firms are struggling to make legal aid financially viable, largely because there is still a broad assumption that all lawyers are well-off. But the reality is that the successive budget cuts have made legal aid work relatively poorly paid. Smaller firms appear to be the worst affected with some solicitors reporting that their staff can earn £6.55 an hour under the current legal aid system, but an increasing number of solicitors are turning down legal aid work because it is no longer profitable.
The consequences of this trend, unchecked, are serious and can already be seen to some extent in England and Wales, where cuts to legal aid have been even more serious. There, the evidence is that the cuts have led to an increase in the number of defendants having to represent themselves, meaning they may be less likely to get a good defence and more likely to receive a longer sentence. And by definition, it will be the poorest defendants who will be most likely to fall into this category.
To avoid such a situation being repeated in Scotland, the Scottish Government will have to stop resorting to its old familiar defence: “it’s worse in England and Wales”, and be prepared to properly fund the legal aid service. The review that is currently being carried out may be able to suggest some improvements that could make the system more efficient and quick – some lawyers complain about excessive red tape – but it will always come back to how much we are prepared to pay for an important principle of equality and fairness that is, or should be, right at the centre of our legal system.
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