John Forsyth: True cost of Civil Justice Bill unclear

Inside the building the Scottish Government’s parliamentary majority will vote to set up civil justice councils and introduce a system of contributions towards the cost of their defence by men and women accused of a crime, or at least those with a disposable income of more than £82 a week.

Outside the building a number of aggrieved solicitors will gather to demonstrate their unabated objections to a system of contributions they say is unworkable, unjustified and un-Scottish.

The last few months have seen unprecedented industrial action by defence solicitors, including boycotts of overnight custody courts and, in Edinburgh, withdrawal from the police office duty scheme. There is a real sense of anger and disillusion.

A majority of local solicitor faculties and bar associations voted to reject the package of concessions negotiated by the Law Society of Scotland Legal Aid Negotiating Team (LANT) during a series of meetings with Justice Secretary Kenny MacAskill and his officials. A new wave of anger has, as a consequence, been directed towards the Law Society itself, with accusations of betrayal and revival of old arguments about the impossibility of fulfilling its statutory obligations – both to represent the profession and protect the public.

Oliver Adair, the society’s solicitor lead on criminal legal aid, wrote a hurt response in the society’s own Journal: “Turning to the issue of whether it was too ‘uncomfortable’ for the society to go back to Government and say that the package negotiated could not be accepted, I cannot begin to tell you how wrong that is.

“It is worth remembering that the majority of these adjustments were not offers from the Government – they were suggestions from members of the profession. It therefore cannot be argued that the decision to move them forward was a capitulation by the society. It is, in fact, the other way round. Rejecting the package would have been the capitulation.”

So what will happen after Tuesday and the implementation of the new charging regime on 1 August? Is there scope for further resistance or challenge in the courts? What can be done to restore morale? Who will be first to start rebuilding bridges?

Cameron Tait, chair of the Edinburgh Bar Association, says members will meet to consider what to do about the boycott of the police office duty scheme.

“I believe there are a number of consequences of the changes that will have to be tested in court. I anticipate a number of devolution minutes based on breaches of the ECHR Article 6 right to a fair trial when accused persons who have not paid their assessed contributions turn up unrepresented in court. The government doesn’t seem to have any plans for the aftermath of its changes.”

Ann Ritchie, chair of the Glasgow Bar Association, concurs: “It’s not just solicitors but everyone involved in criminal justice including police, social workers, clerks and sheriffs who expect the charging regime will clog up the courts with more accused representing themselves, more adjournments, more appeals and more cost to the public purse compared to the £3.9 million they set out to save. Defence solicitors are used to being unpopular but are driven by a commitment to keeping the system going. But I think morale has been damaged by the lack of respect by the Justice Secretary for what we do.”

President of the Law Society, Austin Lafferty, is acutely conscious of the dilemma.

“The criminal bar gets much more of the society’s time and resources than any other strand of the profession. They are worried about more than anyone else. That is not a criticism. They are more cherished because they are crucial to the rule of law.

“We remain opposed to the scheme in the Bill but we also had to secure the concessions we could. Looking forward LANT’s new task is to gather hard evidence – facts and figures – about how the scheme is working or not so we can go back to government in six months with the best case possible for further changes we can demonstrate are necessary.”