Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law. The Bill will now be submitted to the Queen for Royal Assent. It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed. However, it was always going to be an impossible task with the Government having a majority in Parliament.
The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny. The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill. It is a shame that this element of the Bill was overshadowed by the second part of the Bill. Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.
The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland. I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have). The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial). The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system. That will certainly be something to keep an eye out on to see what happens in that respect.
It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result. It is just one of many things to have arisen over the last few years that have caused anger. Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.
It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights. I am not a solicitor and I have not had many dealings with the Law Society of Scotland. I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints). However, it has always been something that has intrigued me about the legal profession. I’m a supporter of Trade Unions and the representative functions that they undertake. However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body). That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.
I think it is only right that if people want a different representative body that this is a choice that they have. It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.
The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years. There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two). It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.
Alistair Sloan, Advocate 