Jenny Marra MSP : Scottish Civil Justice Council and Criminal Legal Assistance Bill Stage 1 (Speech in the Scottish Parliament )
26 October 2012
As we have heard this afternoon, the principles that underlie the bill are broadly agreed across the chamber.
However, in Labour's view, the bill would be strengthened if certain points were taken on board by the Scottish Government.
I want to address the issue of civil justice policy in part 1 of the bill—I have already raised the issue in interventions.
The bill mandates the council to recommend changes in civil justice policy to the Lord President, but no similar obligation exists to recommend the changes to ministers.
It is our belief that policy is the preserve of the democratically accountable Government and Parliament, and should not be weakened by placing a policy obligation on an unelected body.
That is a concern that is shared by some of the most eminent public law professors in Scotland.
Governments are accountable to the electorate for their policy choices and, through the parliamentary system, MSPs and stakeholders should have every opportunity to scrutinise those decisions.
When I questioned the Lord President in the Justice Committee on the policy scope, he assured me categorically that the policy remit would merely be the policy of the rules and would not extend beyond that.
I ask the cabinet secretary, therefore, to address the issue in his closing remarks.
Would it not be better to include in the bill a much clearer explanation of the extent of the policy remit in order to avoid any creep into the jurisdiction of ministers and the Parliament, as has been discussed this afternoon?
A second concern with part 1 relates to the request by several organisations for transparency in the council‟s functioning.
I have heard persuasive arguments from those representing court users for greater transparency when court rules or civil justice procedures are being reviewed.
They state that the publication of potential changes or an obligation to consult would be valuable to their work.
I would be interested to hear the minister‟s opinion of those suggestions.
Another concern with part 1 that has been well rehearsed today concerns the composition of the council.
We have heard many arguments that special committees will allow for more specialist representation, but I think that Malcolm Chisholm summed it up well when he said that it is quite possible that only two laypeople will be on the council.
If there is a feeling across the chamber that we should increase that representation, it is important to put that in the bill so that we can ensure that it can happen.
I was reminded by Mary Fee‟s speech of a debate that we have had in this chamber regarding gender balance.
As Labour has said in Parliament before, 80 per cent of people on Scottish public bodies are male, and I understand that the composition of the current council is one female and 12 males.
I would be interested in the cabinet secretary‟s response in looking for a better gender balance—perhaps the 40:40:20 model that Labour has recommended in the chamber before.
We know the impact of our justice system on women and of, as Baroness Helena Kennedy has often eloquently put it, the inherent bias against women in our justice system.
Turning to part 2, I will reiterate some of the concerns with the proposed level of contributions. The Government has chosen a lower limit of £68 because that is the weekly equivalent of the civil legal aid amount.
It has sought justification for that in the fact that it is higher than the level in England and Wales.
However, I have heard persuasive arguments to suggest that that method of calculation is flawed and that the level may be too low.
The first rests on the fact that contributions for legal aid in England and Wales exist only for Crown Court cases, which account for a much lower proportion of cases than the bill provides for.
The second is based on the differences between civil and criminal cases.
Similarly, there are differences between the eligibility criteria for civil legal aid and the proposed undue hardship test, and the rate for civil legal aid contributions has not increased.
Kenny MacAskill: Is the member aware that the magistrates court in England operates an in-or-out system in which there is no contribution?
In that system, anyone with an annual disposable income of more than £3,398, which is just over £65 a week, fails the means test and does not get legal aid at all—not even with a contribution.
Is the Scottish system not much better? Is she arguing that those who receive civil legal aid should have a harsher commitment to make than those involved in criminal cases?
Jenny Marra: I am arguing that we need to take a much harder look at the comparisons that have been made, which the Government has put before us, and drill down to the detail. If the Government is going to use the situation in England and Wales as justification, we must ensure that we are comparing like with like.
We must consider contributions alongside the chaotic lifestyles of many people who enter the criminal justice system—that point was well made by Graeme Pearson in the Justice Committee.
Many organisations in Scotland have argued that people simply will not be able to afford to contribute at such a low threshold, which, as the Law Society has stated, could lead to a perverse incentive for the accused to plead guilty.
If one of the core aims of the bill is to eradicate perverse incentives, I ask the minister to provide answers to why the Government remains content with such a low threshold.
I welcome the Government‟s decision to stop considering disability living allowance as disposable income. However, I also ask it to consider doing the same with the war pensions, which have been mentioned this afternoon. Currently, the bill considers veterans‟ war pensions as disposable income, and veterans would welcome that consideration being taken out.
Kenny MacAskill: Let me make it clear that war pensions are currently discounted in the assessment for ABWOR. The criteria for assessing disposable income will be set out in draft regulations. Given that we are seeking to mirror what is done in ABWOR in many instances, the position of war pensions will be considered. Considering the sympathetic view that we have taken with regard to ABWOR, the member could read into that the sympathetic view that we are likely to take.
Jenny Marra: I welcome the cabinet secretary‟s indication that he will take a sympathetic view on that. The fact that we are seeking to mirror the arrangements for ABWOR is not a good enough reason, however. We must use the bill to ensure that we get it right for war veterans.
A second concern with part 2 is the Government‟s decision not to reimburse acquitted persons for their legal aid contributions. I have heard justification for that from the cabinet secretary, who argued that those who pay their legal fees privately are not reimbursed either. However, several organisations question the fairness and practicality of this approach.
Annabelle Ewing: Will the member take an intervention?
The Deputy Presiding Officer (John Scott): The member is in her final minute.
Jenny Marra: I am sorry, but I do not have time.
Malcolm Chisholm proposed the very practical solution of a refund for acquittals that have been funded by legal aid contributions, and perhaps that could be considered by the cabinet secretary.
Presiding Officer, I believe that I am out of time, so I will close my summing up there.
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