Man in the hot seat

“I can understand that people feel a wee bit bruised, but I can give them an absolute assurance that we are committed to the Scottish legal profession, to the Scottish legal system and to the service it provides to our communities.”

Kenny MacAskill, Cabinet Secretary for Justice in the Scottish Government since the SNP came to power in 2007, is not flavour of the month with many Scottish lawyers. In recent months alone, his recent confirmation of the Scottish Court Service’s proposed court closures, a tough stance on legal aid that led to the “Protest for Justice” campaign of action, and contentious reforms to hallowed pillars of the Scottish system, singly and together have provided plenty of fuel for the voices of dissent.

But neither MacAskill nor, I suspect, at least the great majority of the profession wants to resort to trench warfare. The Justice Secretary recently came to address, and take questions from, a meeting of the Society’s Council, as he did at last year’s legal aid conference, and channels of communication between his department and the Society continue to operate on issues of mutual concern.

So too, when the Journal asked for an interview at which the profession’s grievances could be aired, agreement was not long in coming. Whether or not anyone’s opinions are changed as a result, there remains a willingness to engage.

Big government?

The profession’s suspicions do run deep. For some, there is nothing less than an agenda to control the system, given the newly unified police service, and the recent appointments of law officers from within the ranks of the prosecution service rather than the independent bar, not to mention the increasing squeeze on the independent criminal defence sector.

“There’s no political control there,” MacAskill responds to the suggestion. “Constitutionally and by statute I am precluded from directing the police. There has never been such direction in Scotland, and that’s how it remains. In terms of the law officers I think you will find that both Frank Mulholland and Dame Elish Angiolini are, or have been, outstanding law officers, and indeed Elish served in an administration that was of a different political colour and I think we showed that we were seeking to depoliticise the role of the Lord Advocate. And in terms of the independent bar we fully respect that, whether it’s the solicitors’ profession or the Faculty. Again, we don’t seek to interfere, we seek to work with the Law Society and the Faculty as best we can. We won’t always agree, that’s for sure, but we respect and we engage with them and we try to support them.”

Another charge is that public consultations are only going through the motions, as ministers’ minds are made up in advance. MacAskill points out that some exercises, such as court restructuring, are carried out by others than Government; and that process did at least result in Alloa Sheriff Court being saved from closure. “In other aspects, for example I presume reference is being made to Lord Carloway. When somebody is instructed to carry out an independent review, I think you are obligated to give considerable weight to that, and that’s what I did. We do take on board representations and I am happy to do so.”

In fact, at various points in the interview, MacAskill refers to acting on the basis of expert advice, whether that of the Court Service, the Scottish Legal Aid Board, or some review body. One is left with the impression that the only real chance of influencing Government policy is at the stage at which these other agencies are formulating their proposals.

Capacity for justice

Returning to the court programme, the headline issue at the time of our interview, I put it to the Cabinet Secretary that it was his own budget restrictions that were forcing the Court Service’s hand. Here, as elsewhere, the reply was that the austerity measures being imposed from Westminster have left little choice. “I’m extremely grateful for the diligent efforts of the Lord President and the current and past chief executives and what they are trying to do, but they are facing financial challenges and we only need to look south of the border to the cuts that have been imposed on the magistrates’ and Crown courts, which have been significantly greater than those that have been imposed by the Scottish Court Service.”

Is he concerned at the likely overload on already busy courts expected to take in further cases from others nearby? “Yes I am, but equally Scottish Court Service has done an analysis of that, and they are satisfied that, with the reduction in business with alternatives to prosecution, with the Making Justice Work programme, that they will be able to cope. So, I have to go on the best advice from Scottish Court Service. They are at the coal face; they are satisfied that they can cope with the redeployment of business, and it wouldn’t be in their interests to overload and overburden the courts, so that’s why they’ve done a full analysis and appraisal.”

As regards additional travel to court, MacAskill observes that centralisation of facilities does not appear to have been an issue in relation to tribunals, before which more people appear than go to court. And as for predicted difficulties for witnesses, and scheduling of court business, “these things are not being dealt with in isolation”: under Making Justice Work, for example, videolink facilities are planned to help people in the north.

He adds: “Let’s remember that we’re also bringing in a Victims and Witnesses Bill. There is criticism from opposition politicians, and indeed clamour from the public, that we’ve got to do more for victims and witnesses. That costs money, and the Court Service has to provide it, so savings have to be made to meet the additional costs, and equally it is much harder to make some of our older courts able to provide what is necessary in the 21st century.”

What of the combined effect on access to justice, taken with increased court fees and restrictions on legal aid? MacAskill points to SLAB’s efforts to preserve a holistic legal aid system, in contrast to the wholesale exclusion of certain areas of provision south of the border. “I think the Board have done a remarkably good job in trying to ensure that we provide that breadth of service, not simply reduced to perhaps criminal legal aid and little else. Equally, I think that court fees have to meet the costs of the court service, that’s what we expect in other aspects of life, whether it’s in licensing or other areas. So I think that it’s proportionate but the holistic system is being protected and the integrity of that service is remaining.”

Flashpoint

That brings us to the continuing saga of cuts in legal aid fees. Does the Justice Secretary accept that further cutbacks will pose a threat to the existence of an independent criminal defence sector?

“No, I don’t. I actually think that a remarkable number of firms are doing very well and successfully. The legal aid budget cannot be infinite; it does have challenges. We have to provide not just criminal legal aid but also to ensure that we provide civil legal aid. That as I say is disappearing wholesale south of the border, and therefore our desire has been to get modest contributions where it is appropriate. But it seems to me that many in the bar are flourishing and that is evident from the legal aid figures.”

But, I ask, the number of cases doesn’t necessarily mean that firms are more profitable?

“I think many firms in the criminal bar are still doing remarkably well, and that’s shown in terms of the number of firms who are accessing legal aid sums of quite significant amount. I appreciate that does include outlays in many respects, but it’s still a significant contribution from the public purse.”

Asked whether there is an imbalance with outlays not being controlled in the same way as solicitors’ fees, he replies that that is a matter for the profession to discuss with SLAB.

On legal aid contracting, MacAskill insists that no decision has yet been made, despite the apparently universal expectation within the profession (and SLAB’s statement of 23 January that it had been asked to look at it). “It’s not been asked by me: they themselves suggested that they look at this. I have no view on this. I will take the best advice of the Board. As I say I take my advice from them. I will enter into discussions, but I did give an assurance to the Law Society Council on these matters (a) that nothing has been decided, and (b) it will be in discussions with the profession.”

But with further projected cuts in the legal aid budget, surely something will have to give?

“Well, that’s a matter I’ll leave to the Board to work out with the profession. I am restricted by a cost ceiling.” After citing the competing demands for funds for police, fire service and prison officers’ pay or pensions, he adds: “What we can do is work out how we mitigate the harm, but let’s be clear – this is cuts from Westminster. I don’t want to be here, but I don’t have the money and I can’t get it from another department.”

He denies any strategy to expand the PDSO – the current network is the one he inherited – though if there are gaps in provision, civil or criminal, the matter will be kept under review. “I’m conscious there are many who are aggrieved”, he adds, responsing to a suggestion that his approach is divisive, “but the legal profession is wide ranging and varied; it’s not simply a criminal bar.”

Distinctive system?

We move on to the much-debated reforms to criminal justice – not just corroboration, but verdicts, admissibility rules, previous convictions and more. Is the system so broken that all these need to change?

“There have certainly been difficulties that we have had to look at, and equally the person who has suggested the abolition of corroboration, and I’ve made it quite clear I’m supportive of that, has been the Lord Justice Clerk. This wasn’t done on a whim or fancy by me and my officials; it was done by Lord Carloway who is an eminent legal professional.”

Does his review, carried out in a relatively short timescale, carry more weight than all the professional opinion, of judges and others, expressed since then?

“The law is made by Parliament. It might be crafted and designed by lawyers but it is made by Parliament. Parliament represents all the people of Scotland, not simply those who are legal professionals or who were legal professionals such as myself. I do take account of the differing views that exist in the legal profession on corroboration in particular. But equally I take account of victims and witnesses; I take account of Scottish Women’s Aid; I take account of Rape Crisis; of Victim Support Scotland. Those things have to be weighed in the scales of justice; it’s not simply the legal profession that has a veto. This has to be decided by Parliament representing the people of Scotland.”

Why decide that it is going to happen, in advance of considering what safeguards are needed – on which two rounds of consultation have since had to be held?

“That’s what Lord Carloway said. He said that corroboration should go; it wasn’t for him to look at what safeguards were necessary, but he said there should be safeguards and I’m comfortable about doing that. I think we can and will be able to outline the safeguards that people feel are necessary.”

I put it to him that, with each of the proposed changes, we appear to be moving closer to the English system – surely ironic under an SNP Government?

“I don’t think that’s necessarily the case. What we do is make sure we do what is right. Just because some things have aye been, doesn’t mean that they’re aye right, and there are some things that we can learn from other jurisdictions. Whether that’s from across the Atlantic or south of the border, we should do so. But equally this is a Government that is taking Scotland in a different direction, not simply on the constitution but on drink driving, air weapons, so this idea that we’re moving into an English system is not what I’m hearing for example when I meet representatives of the police. Or indeed other aspects where we’re going in a different direction.”

What, then, will be the distinctive features of Scots law once the reforms are complete? MacAskill refers to separate institutions such as the Society and the judiciary, as being what the public expects to see. He adds: “Law changes and evolves. Some things are always sacrosanct. Scotland’s always been a hybrid because of how we started with institutional writers and equally with where we’ve gone in terms of being part of the UK. So we’re always going to have a bit of this and a bit of that, but it’s our system, not anybody else’s.”

Does he see a risk to the separate identity of the Scottish profession, due to business failures and the trend to merge with larger English firms? “No, these things have come and gone. Some of them were taking place when I was within the profession and predate devolution. Some of them are also global, not only affecting the jurisdiction here in Scotland. So there are some things that are beyond the control of Government, but what we try to do is to preserve the integrity and the distinctive jurisdiction that is Scotland.”

ABS differences

That brings us finally to alternative business structures, on which differences with the Society appear to have opened up recently. The Cabinet Secretary assures me that: “I’d like to see it as soon as possible, because I know that there are firms that are good to go”; but: “We have to make sure that what we provide to the Lord President and indeed to the OFT is appropriate. That hasn’t been in place at the moment, but we are happy to do what we can because I know that it is wanted by the profession and is important.”

Rumours have been doing the rounds that the ‘level playing field’ approach is no longer considered appropriate by departmental officials, but MacAskill suggests this is a matter for the profession. “I would much rather that we continue a self regulated profession, that the Society decides what is necessary for their wellbeing and we will respond accordingly. I reserve the right in matters such as corroboration where it affects ordinary people and not just the legal profession, but in terms of how the Society is constituted, how we should deal with ABS, I’ll take the advice from the Society and those who serve within it.”

But in what he describes as “to some extent a matter of calibration”, he repeats that his department is still waiting on documentation “being in appropriate form and being able to satisfy those authorities that require to clear it”. One suspects that there may be a bit of ping pong still to be played before this is resolved.

In it together

In an allotted 45 minutes it was impossible to pursue each topic minutely and still cover all the subjects of interest. The exercise may reveal a little more about the Government’s view of the world – and the difficulties in attempting to persuade it to change course. Lawyers will continue to complain that reasoned arguments are dismissed; the Cabinet Secretary will continue to insist that there are other considerations. As he put it in discussing the outlook for the profession: “I don’t underestimate the challenges that individuals face, but they are challenges faced by people in all walks of life.”

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Some further quotes from the interview (not in sequence):

Q: The Ipsos/MORI poll for the Society found only a 51% level of optimism for the future. How do you assess the outlook?

A: I think things will change. I always like to think of the glass as half full. But there are challenges, I accept that. These are difficult times. I never imagined when I entered the profession that we would ever see redundancies or firms collapse, but that has happened. Some of these things are beyond what we can do as a Government; we face job losses in other areas; we seek to mitigate it. Equally there are good things happening in Scotland. If the Chancellor would change his ways then I think we would see Scotland improve. My colleague the Finance Secretary has managed to make sure that we invest as much as we can in capital investment; that allows us to build council houses, try and keep construction going, all of these things which benefit some firms in the commercial sector and in conveyancing, but there’s a limit to what we can do when we don’t control the economic levers. I don’t underestimate the challenges that individuals face but they are challenges faced by people in all walks of life.

Q: On court closures, what about the extra costs to people in rural areas if they have a justice issue? You say it’s only 5% of cases but the effect is going to be concentrated in these areas.

A: That’s true, I do accept that there are some people who will face longer journeys. Equally I grew up in Linlithgow. The court in Linlithgow closed and business was moved to Livingston. That was the correct decision because the bulk of people actually lived in the Livingston area. We have for example the situation in Haddington, where funnily the greater bulk of the business comes from Musselburgh, Prestonpans and Tranent. They are geographically closer to and easier to get to the sheriff court in Edinburgh than perhaps Haddington, so some of these are societal changes. So I do recognise some people will have longer journeys, and the Court Service will require to factor that in, but equally remember that more people go to a tribunal than ever appear in a court. Tribunals are highly centralised, have been highly centralised not so much by this Government but by previous Governments in Westminster and I haven’t seen the same criticism of centralisation whether it’s in mental welfare, in social security or indeed in employment tribunals.

Q: Is it not inevitable that the PDSO will have to expand if other firms [reliant on criminal legal aid] are unable to go on? That will not help the image of an independent profession.

A: I’ve always said that I’ve no desire to expand the PDSO. I have not expanded the PDSO; my jurisdiction has been what I inherited. Equally I’ve always said that if matters cannot be provided by the private profession then I will have to look at that, whether it’s in terms of Part V lawyers or the PDSO. But there is no strategy to roll out the PDSO, but I do have a responsibility to meet unmet legal need where that applies, and that is a matter that will be kept under review.

Q: Is it not an easy get-out to blame London for all the spending cuts?

A: I accept responsibility for matters that are within my control but when I am faced with huge cuts from London then I have to budget accordingly. Equally this is a Government that is giving tax cuts to the rich at the same time as imposing a bedroom tax upon the poor and the vulnerable, so I think we’ve got a harsh austere Government that looks after the wealthy and is undermining the plight of the poor and the vulnerable. So I’m not going to be mealy mouthed about the Government south of the border – they are imposing harsh cuts that we have to live with. Until that changes there are consequences for our budgets.

Q: Will we continue to have a diverse profession able to win the confidence of the Scottish public if the student loan system makes it more likely that only those with private means will be able to afford to qualify?

A: I believe that we will have a diverse profession. It’s changed into being almost majority female now. Equally there are matters that are provided by the Education Department in terms of assisting people and equally if at any stage the profession wishes to consider any changes because they believe there is a restriction on access to justice I’m happy to look at that. What I don’t have and what my colleagues don’t have is additional funds.