As Justice Secretary for seven and a half years and a legal aid lawyer for 20 years before that, the plight of legal aid grieves me.
Numbers practicing are shrinking and those doing so ageing. That trend ongoing when I departed the profession in 2000 has accelerated with the risk to the public, not just practitioners, frightening.
Of course, I’ve played my part in cuts, just as I enjoyed the benefits when working.
I recall going to a Law Society conference in my ministerial role after the financial crash in 2008.
Many were old acquaintances, and some even friends, having trained and worked with them for over two decades. But I required to tell them that there was just no money for an increase in legal aid rates.
Despite them making legitimate demands which I would heartily have endorsed a few years earlier.
READ MORE
- Beyond Breaking Point: Scotland's Legal Aid Crisis – all articles here
- 'Legal aid will fall over without trainee solicitor investment'
- Figures show women less likely to continue taking on legal aid
- ‘Legal aid helping more people – but system needs to change’
I recall detailing that I had just come from telling prison officers that the pay rise this year was zero, a similar message was going to the police when I met them, and it also applied to me and to not just my office staff but civil servants.
That was necessary at the time as there had to be savings. Cuts imposed in Scotland though were never as severe as south of the border where legal aid in whole areas of law and life disappeared for ever, but they still impacted.
But that time has long since passed and whilst rates have been increased and availability even extended even during my tenure, there has been an inexorable decline in the number of lawyers doing legal aid work.
Most of that has to do with the rates payable and the income that it generates. When I first practiced law, I could say to clients that hand on heart there would be no difference in the quality of service whether private or legal aid.
By the time I ceased working in the field rates and restrictions meant that could no longer be said.
Those doing legal aid work are paying the price and yet their work is vital for our communities. Even more so now than in my day, they do so out of commitment, which can neither be taken for granted nor should their dedication be abused.
They cannot and should not be treated as a second-rate service or expected to forego a salary, which others view as a right or in some sectors of the law would even sniff at.
There probably never existed a glory day of legal aid but even by the time I embarked into the profession in 1980 belts were being tightened and soon the pressures would mount as with other public services.
The legal aid board and lawyers have been innovative and sought to adapt. Great credit’s due to both.
Of course, that shouldn’t diminish encouraging people to take out insurance or ensure warranties on products. But not all can, or issues still arise, and besides legal rights that apply to the wealthy should be available to all.
Scrutiny of what’s funded is required, and contributions should be expected. But there still needs to be a viable scheme.
The costs have always been just a small fraction of the justice budget but it’s a mark of our society.
Legal aid is about citizens' rights and its absence impacts upon our democracy. It’s not a luxury but a necessity.
Many may consider that they are law-abiding and it's only for ne’er-do-wells without any impact upon them or need for it.
But though the criminal legal aid budget is still the major drain and despite it often being for the few rather than the many, it remains a cornerstone of our society.
READ MORE
- Herald series investigates Scotland's legal aid crisis
- The data behind legal aid: What's access like in your area?
- Why are many Scottish towns 'legal aid deserts'?
Everyone’s entitled to a legal defence and undermining it by continual cuts or simply the absence of available representation is simply withdrawal by stealth. Also, miscarriages may be rare but do happen.
Equally, the ability to have recourse to legal action can afflict us all, whether in family or matrimonial breakups, through car or workplace accidents and medical negligence, to other situations which arise in daily life in an ever more complex society.
The right to get advice and even more to have recourse to legal steps to obtain justice is essential.
We do need a review of how we do it and it won’t be easy. But fundamentally we need to fund it now before it’s too late and the lights in the legal aid offices have all been switched off.
Kenny MacAskill is the acting leader of Alba and served as Cabinet Secretary for Justice between 2011 and 2015.
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