War on crime was the message. But the White Paper on crime and punishment of Secretary of State for Scotland Michael Forsyth had more than one battle in mind last month. Tucked in between the hard-line penal reforms was the blueprint for a radical overhaul of the criminal legal aid process in Scotland.
Proposals for block criminal legal aid fees, compulsory franchising and pilot public defender schemes came as a shock to the Scottish legal profession. While franchising and contracting have been on the agenda in England and Wales since Lord Mackay's Green Paper on legal aid, Targeting Need, no forewarning of reform had ever been given north of the border.
Yet the writing was on the wall. Two years ago, Alistair Bonnington, a lecturer in criminal procedure at the University of Glasgow and solicitor at BBC Scotland, said something many in the legal profession felt, but were reluctant to voice. He said: “Is it really just that those who steal, assault, rape, cheat and kill, should deprive the rest of society (who are, after all, their victims) of the wherewithal to resolve legal disputes, thus exhausting the funds for legal services?”
No-one is suggesting that the accused should not have the right to representation. But in Scotland, criminal legal aid has burgeoned at the cost of cutbacks in civil legal aid. In the last seven years, criminal legal aid has grown at almost three times the rate of inflation, while eligibility rates for civil legal aid and advice and assistance have been butchered. Now the fatted calf is to be sacrificed in the name of justice and votes.
I, for one, shall not weep. The recent revelation that the top 20 Scottish firms are earning the most money from legal aid said it all. Second in the top 20 for 1995-96 was a two-partner Dundee firm, Bruce Short & Co, employing six assistant solicitors and specialising in criminal defence work. It grossed almost £1.4 million from legal aid.
Some may ask why the taxpayer should pay for a few lawyers to get rich quick, when, for example, women in part-time work cannot afford the legal aid contributions to enable them to interdict abusive men.
There is considerable cause for concern. The Scottish Office has failed to give any indication that savings on criminal legal aid will be used to promote equal access to justice in Scotland. If resources are not channelled back into the system, reforms will represent nothing more than cost-cutting.
The White Paper on crime and punishment invites comments on formulated policies. But can a meaningful response to a 68-page document be prepared in six-weeks?
While the Secretary of State may be reluctant to listen to those in the legal system, the Scottish Labour Party is not. It wishes to canvass views on the reform of Scottish civil and criminal legal aid. Last month John McFall, the then Labour Scottish Home Affairs spokesman, told a packed audience at the Scottish Legal Action Group conference: “The Labour Party believe the legal aid system is not working satisfactorily; it does not serve the needs of the vast majority of people on low incomes and it requires radical overhaul.”
He added: “In order to devise a system which genuinely meets the needs of all, it is necessary to consult widely with the legal profession and all those interested in the issue as a precursor to publishing a document on Labour's policy.”
McFall displayed a clear awareness of the injustice perpetuated by the present system.
“Civil legal aid takes up less than 30 per cent of the total budget and most of this is for matrimonial work,” he said. “This gives the impression that there are no other civil disputes in Scottish society.
“This is clearly untrue. Some of the most common have to do with debt, benefit payments and employment, or problems with housing and eviction. These are areas of unmet legal need since many private firms do not provide this service.”
McFall revealed a desire to explore the idea of hybrid law centres as a means to address areas of social welfare law: “With funding from the Scottish Legal Aid Board, [law centres] would be able to employ specialist advice workers to deal with social security or tribunal representation.”
That would go some way to redressing the imbalance between criminal and civil justice in Scotland. At any rate, legal aid and access to justice are now firmly on the Scottish political agenda.