Journal editorial June 2022: The big freeze

What price justice? If its spending review is anything to go by, the Scottish Government appears to have concluded that it is basically unaffordable.

I should not have to repeat here that legal aid, and with it the entire criminal defence sector of the profession, is in crisis. One that has been “a generation in the making”, as has regularly, and rightly been said, given the stalling of fee rates since the 90s, and with the recent increases already effectively cancelled out by current inflation. What exactly will ministers do if in a few years’ time there are simply not enough defence lawyers to enable the expected number of cases to be dealt with?

Yet for all the pressure, all the arguments, and now also direct action affecting domestic abuse cases, the recent spending review has taken the crude approach to just about every line of the justice budget, among other departments. The table of spending totals for the current and the next four financial years shows a straight freeze across the board – one that the Institute for Fiscal Studies quickly identified as an 8% cut in real terms over that period, commenting that “the axe is set to fall” on a wide range of areas.

In ministers’ words, this equals “continuing to support” justice agencies. As the Scottish Solicitors’ Bar Association, echoing others, has pointed out, a summary criminal legal aid case with deferred sentence today attracts a fee only pennies different from that paid in 1999 – and one that now covers certain work for which a separate fee was previously payable.

There was a time when solicitors tended to assume – maybe some still do – that if they, or their representative bodies, failed to secure an increase in legal aid rates, the fault lay in their failing to make a strong enough case. But it was always a mistake to treat presenting a case to Government as equivalent to arguing your case in court. With the latter, there is a reasonable expectation that the stronger argument will win. With the former, political considerations always have the potential to trump an argument, however good on paper. Certainly there is no way the Government can claim at this stage to be unaware of the seriousness of the situation that is looming.

What prospect of progress, then, if any? It would seem to follow that only political considerations will tip the balance in the profession’s favour. What these could amount to is the question, and many other interests whose budgets have been frozen will be highlighting the effects (some already are), so I fear the hardship of the defence bar will continue for a while yet. But what ministers cannot prevent with their present course is the continuing buildup of pressure in the system, and as I have said before, something has to give.