The debate on the future of legal aid has seen a curious sideshow this week, following the interview with Justice Secretary Kenny MacAskill, published in this month's Journal.
For some reason both Mr MacAskill and the Scottish Legal Aid Board have chosen to state that the other was responsible for initiating the Board's current work on options for bringing in contracting in criminal cases, which is not likely to be popular with defence solicitors. Today's statement by SLAB, the main interest in which was the proposed timetable, throws a little more light on how the process started, and we should not be too surprised to read that the idea gradually took shape as initial thoughts were followed by strategic review and Government budgetary planning.
Apparent reluctance to be associated with the birth of the idea is unlikely to be reflected when it comes to putting it into practice. If it helps save a precious few million off a budget that is set to be squeezed ever harder for another couple of years at least, SLAB will not be slow in putting it forward, and Mr MacAskill has indicated that he is likely to follow SLAB's advice. The best chance of influencing the outcome may well be as the proposals take shape in 44 Drumsheugh Gardens.
To date there has been little chance of that. SLAB have deemed it premature, in correspondence with the Glasgow Bar Association, to share their thinking, on the basis that options are being discussed that may well never see the light of day, and officials must be free to give frank and uninhibited advice.
There may be some validity in that, but the further the process is taken, the more likely we will be to end up with proposals the substance of which it will be difficult to alter even if full consultation then takes place. With "informal" discussions now likely to begin within the month, on the timetable just announced, information needs to start coming out for these to be meaningful. And it should not be too much at the discussion and consultation stages to expect some explanation of what other possibilities have been considered and discarded along the way, and why.
The bigger question of course is over the principle of contracting in the first place. Many defence solicitors are already voicing opposition to the very idea, though without any indications of the nature of SLAB’s proposals it is difficult to say what the particular objections might be. It does not necessarily involve the full harshness of Chris Grayling’s PCT model for England & Wales, where a very limited number of contracts will be awarded at rates cut by at least a further 17.5% to provide a bare minimum by way of service – not an approach designed to avoid miscarriages of justice, most lawyers are agreed. But it is very likely to lead to a smaller number of defence firms, though with SLAB pointing out that there is almost an incentive at present to start up on one’s own, whether that will result in an undue restriction of client choice remains to be assessed.
There are those who assume that whatever happens down south is destined to spread to this side of the Tweed as well. I don’t think it is inevitable. Yes, we are in for some further belt-tightening as regards public funds, and it will not be comfortable. But I do believe our ministers, who have repeatedly reaffirmed their commitment to a holistic legal aid service, want to avoid the draconian measures now being mooted by Mr Grayling and his colleagues. There will be some tough talking, but there remains much to play for as the promised discussions get underway.