For a list of the current Friends of the Scottish Review, click here
I note with interest that Scottish lawyers have been getting their briefs into a bit of a brouhaha. As a profession, they are not generally the most popular, partly because members of the public often associate them with high levels of self-regard, delays in the legal process and a tendency to charge steep fees.
They need to proceed carefully, therefore, if they are to avoid joining the growing list of occupational groups that have experienced a dramatic loss of respect in recent times: politicians, bankers, police officers, BBC executives and journalists. The sight of well-dressed solicitors and advocates protesting with placards outside Edinburgh Sheriff Court – as happened recently – is more likely to inspire amused indifference than sympathy.
The first reason for their agitation is the proposal to reform the legal aid system so that anyone with more than £68 of disposable income per week, or holding £750 in the bank, will be expected to pay all or part of their defence costs. They are also unhappy about plans to make solicitors responsible for collecting contributions from clients. Concessions offered by the justice secretary, Kenny MacAskill, have proved unacceptable and the scene is now set for a series of strikes at courts across Scotland in the run-up to Christmas. The Scottish Government points out that the action will cause great inconvenience to accused persons, victims and witnesses.
Lawyers argue that the new arrangements will end access to legal representation for a significant number of poor people. It would be possible, of course, for some of the larger, highly profitable legal firms to demonstrate their social concern by providing free representation to deserving clients but this is an option that does not seem to have been considered.
The background to the dispute is the rising cost of the legal aid system. The annual report of the Scottish Legal Aid Board for 2011-12 states that overall expenditure from the legal aid fund was over £157 million. Although there was a 5.8% drop in expenditure on criminal legal assistance from the previous year, the cost of counsel in civil legal aid cases rose by an astonishing 60%. The number of firms and solicitors prepared to undertake civil and criminal work under the legal aid scheme had increased from the previous year, suggesting that it was seen as a profitable area of business.
Lawyers, in common with other professions (such as doctors and teachers), are good at mobilising ‘public service’ arguments in support of positions that may be motivated just as much by self-interest. Thus, claiming that the proposed new arrangements will limit access to justice needs to be set alongside the fear that they will also lead to reduced income for some lawyers. Likewise the argument that relations between solicitors and clients might be damaged by having to pursue them for fees is slightly odd since that is precisely what happens in a number of non-legal aid cases.
Anxiety about some accused deciding to act on their own behalf in court, instead of engaging a professional, was also mentioned as a reason for opposing the changes. It seems rather presumptuous to assume that this would invariably lead to a poorer outcome for those charged with offences: some jurors might take the view that an accused person who made the effort to present his or her own case was at least as deserving of a fair hearing as a lawyer being paid from the public purse.
At a time when many people are worried about job security, or have to cut back on expenditure, the concerns of lawyers may seem to be more about income levels and self-esteem than principles of justice. Notwithstanding the important function lawyers serve, their relative affluence compared to the majority of the population means that it is unlikely they will attract much support. They would do well to remember that, in successive surveys of public trust in various occupations, lawyers do not score particularly well.
Walter Humes held professorships at the universities of Aberdeen, Strathclyde and West of Scotland and is now a visiting professor
of education at the University of Stirling
