Malcolm argues for substantial changes to the Legal Aid system
Scottish Criminal Justice Council & Criminal Legal Assistance Bill: Stage 1 Malcolm Chisholm (Edinburgh North and Leith) (Lab):
Once again, I am - I think - the first member to speak who is not a member of the Justice Committee. Let me begin by commending the Justice Committee for another excellent report. I always find that I am, if I have read the committee’s reports and oral evidence, absolutely prepared for the debate. That was perhaps rather a rash thing to say, but time will tell.

On part 1 of the bill, which provides for the civil justice council, I think that the main areas of concern are about who is to be on the body, how it is to be appointed, and how someone might be dismissed from it in the rare event that that is required. It seems to me to be of central importance that the opinions and needs of users and consumers must be adequately reflected in the make-up of the body. As Lewis Macdonald reminded us, what is currently written in the bill could mean that the civil justice council has as few as two non-legal members. When Jenny Marra raised that point in an intervention, the cabinet secretary said that he would discuss the issue with the Lord President. However, I think that we - and the bill - must take a view on the issue.

The same issue arises in the appointments procedure. It is not good enough to refer to the Lord President’s assurances, as I think the cabinet secretary did in relation both to this matter and to policy. The fact is that Lord Gill will not be Lord President forever and, as always, it is the words in the bill that matter. I think that there ought to be something about the appointments principles on the face of the bill.

The cabinet secretary also highlighted the policy role of the council when he referred to its keeping the civil justice system under review. As David McLetchie rightly said, those policy responsibilities must not be too wide and, as Jenny Marra said, they must be tightened up. Clearly, this is an area that needs to be looked at during stage 2.

Perhaps in order to emphasise the centrality of ministers and Parliament in matters of policy, there could be an amendment that would place a duty on the council to provide advice to ministers on policy. I have a general concern that too many of the decisions are being left to whoever happens to be Lord President at the time. At the end of the day, ministers and Parliament must have an important role in all this.

Finally on part 1, I note the concerns of Scottish Women’s Aid about the wording on alternative dispute resolution at section 2(3). Scottish Women’s Aid made the important point that alternative dispute resolution must not be assumed to be required in all cases because, clearly, it is not appropriate in domestic abuse cases.

That point provides me with a bridge to part 2 of the bill, on which I was also struck by what Scottish Women’s Aid said - the example was also quoted by the cabinet secretary - about the apparent injustice in domestic abuse situations in which a woman might have to pay for civil legal aid while the violent man does not. All I say in response to that - which the cabinet secretary made central to his argument - is that it is dangerous to base a whole case on one example. For a long time, I have argued that women should not have to pay the money that they currently pay in order to get injunctions and so on. My preference would be that no contributions at all be required in domestic abuse cases in the civil courts.

Domestic abuse apart, I think that the criminal situation is different from the civil situation, because the power of the state is against the person involved, who has no choice and may be innocent. There are also ECHR implications concerning the right to representation. I note that Professor Alan Miller said that there had been no proper human rights consideration by the Government in relation to its proposals in the bill.

I certainly accept the principle of a contribution to criminal defence when the person can afford it - that principle is already enshrined in the current system. However, I have serious concerns about the level of unassessable disposable income being set at the first £68 - an amount that has obviously been picked to mirror the limit for civil legal aid. We should reflect on the fact that that system was set up in the Legal Aid (Scotland) Act 1986. In 1986, the amount was £49, so we ought to reflect that the amount has clearly not kept pace with inflation when it comes to civil aid. I understand the financial difficulties so, domestic abuse apart, I am not arguing for changes to the civil legal aid system, but I am arguing that £68 is a pretty low sum in relation to what was originally proposed for civil legal aid in 1986. I therefore hope that that figure will be looked at again.

Two other changes are needed, which are especially required if the £68 figure is to be kept. First, the Scottish Legal Aid Board should collect the money. It has a 95 per cent collection rate for civil legal aid - which has the disposable income threshold of £68 - so it is clearly quite good at it. It has systems in place, so it seems obvious that it ought to do that. The danger is, of course, that if the board does not collect the money, people may end up being not represented in court, which is a serious matter.

Secondly, I want refunds for people who are acquitted in court. I know that the argument against that relates to people who privately fund their cases, and that it would be expensive to refund some people who get expensive advocates. Therefore, it would be perfectly equitable to refund only those who are in receipt of legal aid. That is a form of means testing; those who do not receive legal aid can afford the payments far better than can those who are in receipt of legal aid. I understand that it would not be financially possible to refund everyone who was acquitted, but if the new system comes in - particularly at the £68 disposable income threshold - I hope that there will be a refund for people who are in receipt of legal aid.

The changes that are being proposed by various members in the debate are perfectly feasible, as well as desirable. We are not talking about enormous sums of money - the total saving on part 2 of the bill is less than £4 million. Some of the suggested changes would still allow substantial savings, would be more equitable and would be more in the interests of justice.
October 25th 2012