News In Focus

MSPs call for "another look" at legal aid collection

4 October 2012

Concerns over the Scottish Government's proposals for criminal legal aid have been recognised by Holyrood's Justice Committee in a report published today.

In their stage 1 report on the Scottish Civil Justice Council and Criminal Legal Assistance Bill, the MSPs give only a "cautious welcome" to the measure.

Whereas part 1 of the bill, which creates a new Scottish Civil Justice Council to oversee reforms to modernise Scots civil procedure, was widely welcomed by almost all stakeholders as well as by the committee, part 2 on financial contributions for criminal legal assistance, generated many concerns.

While it agrees in principle that people should make a contribution to legal aid, the committee asks ministers to consider whether refunds for acquitted persons should be made available in some circumstances. It pointed out that winning civil litigants can be awarded expenses.

The Committee also strongly believes that only those who can afford to make contributions should pay, and is requesting stronger reassurances that more vulnerable members of society will be protected and that there will be no incremental slide towards more people having to make a contribution. Under the bill, contributions will become payable on a disposable inclome of £68 a week or over, and submissions were made to the committee that this was much too low a level to begin paying.

"Any system devised to give effect to this principle must be carefully calibrated", the report says, adding: "it must be proportionate to the means of the individual and be sufficiently flexible to take into account particular personal circumstances". The committee is "disappointed" that no equality impact assessment was published during the stage 1 consideration, and points out that regular scrutiny of any scheme will be necessary to ensure it is "ECHR-proofed".

Collection

The MSPs are also asking the Government to look again at proposals to require solicitors, rather than the Scottish Legal Aid Board, to recover fees in summary cases. They note the concerns that this could lead to unintended knock-on consequences for the effective running of the criminal justice system.

They accept that there would be significant resource implications in requiring the Scottish Legal Aid Board to undertake this work, but also note that SLAB are likely to be better placed to maintain and enforce collection systems. The committee invites the Scottish Government "to reflect further on this issue".

It also notes the legal profession’s concerns about the proposed timeframe for making contributions and the practical difficulties this may create. "The committee understands these concerns and invites the Scottish Government to consider further how they can be addressed", the report comments.

And there is a call for ministers to report to the Parliament three years after the proposals come into effect, as to whether they have had any effect on access to justice, for example on the availability of legal representation in rural areas.

Committee convener Christine Grahame MSP said: “While the Justice Committee supports the general principles of the bill, we have made a number of recommendations we expect the Scottish Government to consider carefully to improve this proposed legislation.

“We would like more information on the income threshold for contributing towards criminal legal aid. We would also like the Government to take another look at the possibility of allowing acquitted persons to recoup legal aid contributions under certain circumstances and at their current proposals to require solicitors to recover contributions themselves.”

On part 1 of the bill, the committee accepts the Scottish Government’s reasons for not designating the Scottish Civil Justice Council as a non-departmental public body. "This does not mean", it comments, "that the Council should be exempt from scrutiny and we do not anticipate that in practice it will be. We also expect that good practice principles will be observed in relation to appointments to the Counci."

The stage 1 debate on the bill will take place on Thursday 25 October.

Click here to view the report.