Criminal Justice Committee

Meeting date: Wednesday, March 2, 2022

Official Report 579KB pdf

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Subordinate Legislation

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Legal Aid and Advice and Assistance (Financial Limit) (Scotland) Amendment Regulations 2022 [Draft]

Welcome to the eighth meeting in 2022 of the Criminal Justice Committee. We are joined remotely by Audrey Nicoll, Pauline McNeill and Fulton MacGregor. Jamie Greene is running late.

The first agenda item is consideration of an affirmative instrument. I welcome to the meeting the Minister for Community Safety, Ash Regan; Denise Swanson, who is the interim deputy director of the Scottish Government’s civil law and legal system division; and Martin Brown, who is a solicitor in the Scottish Government’s legal directorate.

I refer members to paper 1, and I invite the minister to speak to the draft instrument.

Thank you for the opportunity to speak about the draft Legal Aid and Advice and Assistance (Financial Limit) (Scotland) Amendment Regulations 2022, which will support the coming into force of a negative instrument, the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022.

Legal aid legislation sets out prescribed limits of initial authorised expenditure, which is the amount of money that is available from the legal aid fund to cover the costs of fees and outlays before a solicitor must seek approval from the Scottish Legal Aid Board to incur any additional costs.

Due to increases in legal aid fees, including those that are to be delivered by way of the negative instrument that the committee will consider this morning, it is likely that, without our amending the current authorised expenditure limits that apply, they would frequently be exceeded by solicitors when providing advice and assistance to clients early in their instruction. The effect of that would be that solicitors would be required to seek the prior approval of SLAB to ensure the full payment that is available for the work that they undertake. Requiring solicitors to seek such approval for payments, which would otherwise be permitted in the table of fees, would result in additional time, resource and bureaucracy for legal aid providers and SLAB. To address that, the regulations will increase the limits for initial authorised expenditure.

Provision is made in the regulations to increase the maximum total fees per court session that are allowable to duty solicitors representing accused persons in the sheriff or district court. That means that session limits that apply to duty sessions will allow the same number of accused persons to be represented during a session, notwithstanding the fact that the fee per case has increased.

As I said, the affirmative regulations support the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022, which, primarily, will deliver the second part of the Scottish Government commitment to uplift legal aid fees by way of an increase of 5 per cent in 2021 and a further 5 per cent increase in 2022. The regulations also provide for a new, supplementary payment for a solicitor to claim when attending a holiday custody court sitting.

The regulations address an anomaly that resulted from a decision in a case that was reported in early 2021 on the interpretation of schedule 4 to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 and, in particular, on how it should be applied to the fees of senior counsel.

I hope that that gives the committee a brief overview of the regulations and their context. My officials and I are happy to answer any questions that the committee might have.

I will invite questions from members but, first, I will kick off with one of my own. We have received correspondence from the Law Society of Scotland, which you will have seen. It says that the regulations do “nothing to address” a legal aid system that is at “breaking point”. What is your response to that?

A 5 per cent uplift is included in one of the sets of regulations that are before the committee—that was a commitment that the Government made during Covid. I will run through what the Government has done in that regard over the past few years. We made a 3 per cent uplift in 2019 and the 5 per cent uplift in 2021 to which I have already referred. There is the 5 per cent uplift for 2022 that is in front of the committee today, and we have put £1 million into funding 40 trainees, which was in response to issues that the profession raised with us about capacity. The training was an attempt to go some way towards finding a solution to that issue. We also invested £9 million in Covid resilience grants.

In general, the Scottish Government considers the profession to be a partner with us in access to justice, in running the courts system and, because of the pandemic, in addressing the backlog, particularly in the criminal courts. The Government is attempting to demonstrate how much we value the profession by continuing to uplift the fees.

We are also working on packages of fee reforms, one of which we referenced in a letter to the committee—we are developing that at the moment. The full package of fee reforms has gone to representatives of the profession—I think that was last week, was it?

It was on Monday this week.

That was on Monday this week. They will be able to look at those reforms and decide what they think of them. That represents a significant investment, too. All those measures have been developed in concert with the profession. We have been listening to representatives of the profession and adapting and changing things in order to create packages of reforms that hopefully go some way to addressing the present situation.

Approximately £500 million was cut from the legal aid budgets up until 2019. Since 2019, there have been increases. The 5 per cent increase that has been proposed in the Scottish statutory instrument before us is obviously below current inflation rates. Do you accept that it is, in effect, a cut?

No, I do not.

But you must surely accept that, if inflation is in the region of 7 per cent and the increase is 5 per cent, the value of the money that lawyers will be receiving is going down. It does not keep pace with inflation.

Over the past few years we have had the 3 per cent rise, the previous 5 per cent rise, the 5 per cent rise now and the additional money for Covid resilience funding, too. I accept that there are professionals—practitioners—working in the system who feel that rates should be raised. I totally accept that, and it is obviously for them to put that case forward. We spend much of our time working with the representatives of the profession: the Scottish Legal Aid Board, the Law Society of Scotland and the bar associations.

The fee rise that you are considering today is an across-the-board fee rise, but, as I have said right from the beginning, there are other ways of doing this, too. Some of the proposals that we have in the fee package that the profession is currently considering show that I am completely open to discussing these things with the profession and, if we can find ways to address individual fee reforms that can get more money into the pockets of the practitioners, I am completely willing to consider that. I have said that all along.

But the rates that lawyers are receiving are broadly similar to those that they were receiving in 2007, although there have been increases since 2019. Do you think that explains why so many lawyers are now saying that they will no longer do legal aid work?

Lots of lawyers are still doing legal aid work. This measure represents an attempt to listen to what the profession is saying, and it puts a significant amount of Government funding into legal aid. We take the matter very seriously.

Some of the reduction of expenditure on legal aid that you have referenced was in response to the economic downturn, and savings packages were made. Those mainly concerned subsidiary fees such as photocopying fees. Many of the fee arrangements that were put in place were in response to discussions, negotiations and agreement with the Law Society at the time. It was agreed, for example, that there would be a cut in one fee so that we reduced the number of people in the PDSO who would be operating in the legal aid system.

There is a range of reasons why the fees that we have in place have been agreed. They were agreed at the time. I can provide the committee with the read-out of the various fees and the negotiations on how we got to those fees. That is how we have got to where we are at the moment. I can have that information sent to the committee.

That would be useful. Will you explain what the PDSO is?

Sorry; it is the Public Defence Solicitors Office. They are solicitors who are employed by the Scottish Legal Aid Board. They participate in the duty schemes. The percentage of duty scheme time that is allocated to the PDSO was agreed with the Law Society and the profession at the time that the PDSO was put in place. That was a historic agreement. However, there are other things that are relevant: for example, one fee was reinstated and another fee was cut. There were lots of agreements and discussions with the Law Society at the time that those fees were put into place. As I have said, I will have that set out for the committee and sent over.

What you are saying conflicts strongly with the representations that lawyers and their representatives have made to us. If you can provide us with that information, we will put it to those organisations. They are saying clearly that there have been massive cuts, and we only have to look at the hourly rates et cetera to see that that is indeed the case. However, we would be very grateful for any information that you are able to provide.

Yes, I will do that.

Pauline McNeill, who joins us remotely, will ask the next question.

Good morning, minister. At the beginning of the meeting, the deputy convener spoke about concern in the profession about the increases—concern that, although they are very welcome, they might not meet all the needs of the service. The minister will be aware that, between 2010 and 2020, the number of firms providing civil legal aid decreased by 16 per cent. I have met firms that have expressed concern that we are losing lawyers from the profession. The number of criminal firms providing legal aid fell by 25 per cent. The committee has been hearing about that for some time.

I have put this question to virtually everyone—the Lord Advocate and many others in the criminal justice system—because we need to keep lawyers, so that those who are accused of crimes have some choice about who represents them, and we need to do what we can to make sure that we have a healthy legal profession. Does the minister have concerns about the number of lawyers we are losing from firms that do legal aid work?

Thank you for that question. One of the instruments that is before the committee today includes, as well as the 5 per cent uplift, a new payment—a supplementary fee for holiday custody courts. That is a direct attempt by the Government to address the matter, having listened to solicitors who told us that they wanted that. Solicitors who work in holiday custody courts have not been getting an additional payment, so if the committee agrees to recommend the instrument, they will get additional money. We listen constantly to the profession. As I have said, we will adjust fees where we think that doing so will have an impact.

You mentioned civil legal aid. I know that this is quite confusing, because we are talking about lots of different things. In the reforms package that we have developed and put in front of the profession on Monday, and on which the committee will have seen correspondence, there are proposals on solemn and summary courts. The proposals on solemn courts represent significant additional funding, which is a response to requests from the profession to change fee rates and so on. We have done that. In a minute, I will ask Denise Swanson to explain a little more about that.

In discussion, it was—I note for the committee’s information—agreed that the civil side would be left to a later date. That is not to say that we think that everything is fine on that front; we have made a commitment to go back to look at fee reforms for the civil side.

I would, therefore, like the committee to think of this more as a starting point; we are starting here and will continue to consult the profession about changes. We are putting money in: the reform package that we have put on the table this week represents several million pounds of additional funding. I ask Denise Swanson to add a little more on that.

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We are looking at improvements that can be made in the short term, while the longer-term issues with the substantial and significant fee uplifts that the profession has requested are dealt with. We discussed that approach with the profession in December and January. Both the proposals that are now with the profession reflect the discussions that we had in January.

There is a longer-term issue with the significant uplifts that have been requested by the Law Society of Scotland. Those must be dealt with as part of our spending review process, because they represent a package of about £57 million per annum. We need to work through how that budget might be allocated to the legal aid fund.

The minister discussed solicitors leaving the profession in a meeting with the president of the Law Society yesterday. We are not clear from the figures that were presented how much legal aid work was done by those who have left the profession. We have a projectory of those who provide legal aid; a small number of firms do a lot of legal aid and a lot of firms do a little bit. We are not sure whether it is the firms that do a little bit of legal aid work or those that are doing a bigger proportion of the legal aid work that are leaving the profession. The minister discussed that with the president of the Law Society yesterday to see whether we could get into some of the figures and unpick a little more detail.

We have a question from Audrey Nicoll, who is joining us remotely.

Minister, you may have answered my question in your response to Pauline McNeill. You have shared some helpful correspondence, in which you outline some of the short-term and long-term measures that you are looking at and the legal assistance measures that will be considered. The legal aid reform bill is also coming.

Given your previous response, it sounds as though there will be opportunities to reconsider legal fees. Why is the 5 per cent increase being introduced now? Could it have been rolled up in work that will come later?

Around Christmas 2020 and early 2021, after discussion with the profession, the Government made a commitment to increase legal aid fees across the board. At that point we committed to 5 per cent increases in two years—one last year and the increase for this year that is in front of you today. We are making good on a previous commitment.

Minister, I apologise for missing your opening comments. The car park is still quite busy in the mornings.

I have some questions. You will have seen the correspondence that was sent by the Law Society of Scotland on 23 February. The society acknowledges the 5 per cent uplift, but says that that is

“significantly below even the rate of inflation”.

That is a particular issue for small businesses. The last paragraph of the Law Society’s letter says that the legal aid system is “at breaking point”. I do not know how much of that is crying wolf and how much of it is true. What do you ascertain about that summary of the legal aid system?

I do not know whether you caught our earlier in-depth discussion about those points. I regularly meet representatives of the profession; I met the chief executive of the Law Society yesterday. Those are full and frank discussions; there are no holds barred. The profession talks to the Government and tells us what it perceives to be the issues. We then have to assess the evidence and make policy decisions based on that.

We have listened to the profession, which is why we have given the uplifts that we have given over the past few years. We know that the legal profession, among other businesses and industries, has been impacted by the pandemic, so we sought to give it additional resilience funding.

I accept that the profession feels very strongly about the matter. The Law Society is right to strongly represent its profession and to try to get the best deal. That is completely legitimate. We have talked about the spending review as one way for the Government to decide on priorities and on how to allocate spending across the board. My job is to try to find a way through the matter and to make fee reforms where they will be of benefit.

The instruments that are in front of the committee represent a significant investment. Before Jamie Greene arrived, we had a discussion about the funding package, of which I hope he has been able to see some details. That funding is additional to what is in the instruments.

I am listening to the profession and I am doing my utmost to respond to the concerns that it raises. My officials work with the profession weekly to develop fee packages to respond to concerns that it has raised. I have been trying to work on that over the past year. For instance, holiday custody courts were raised with us; I wanted to resolve that issue so that practitioners who work in those courts get a supplementary payment. That is one of the measures that is in front of the committee.

I have said before and am happy to say again that my door is open. I am willing to talk with the profession and to work with it on fee reforms. That is what we will continue to do.

Thank you for that comprehensive answer. I guess that the difference is that the inability of solicitor firms to undertake their duties or even to survive as going concerns affects members of the public very differently from how the impact of Covid on other types of commercial business affects them.

In the correspondence from the Law Society that we received yesterday—we have just had time to digest it—there was a paragraph with key questions. They are posed to us for us to pose to you. I request that you review those key questions and respond to the committee so that we can forward that response to the Law Society or make it public.

I get the impression that the Law Society is not confident that there is sufficient capacity in the defence bar to address the backlog of cases. That is a key point, irrespective of the argy-bargy over fees. Are there physically enough people in the system or, even if you increased capacity in the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service was able to increase capacity, would the inability to increase defence capacity at the same rate mean that you would not get through the backlog at the rate that we all want? Is that a concern for the Government?

Capacity issues have been raised with us and we take them very seriously, for the reasons that you have just suggested. We put £1 million into the traineeship fund, which you will no doubt have heard about. That was an attempt to go at least some way towards addressing the capacity issues that have been raised with us. We are monitoring the matter extremely carefully. I guess that, in the medium term, it could be addressed in the legal aid bill that should be forthcoming during this session of Parliament.

I have a final question on an issue that has cropped up a few times and on which we took evidence in the early part of the committee’s existence. It relates to salaries.

When we posed the question to the Lord Advocate, her response was that people take a pay cut when they go into public service from the private sector. However, I get the impression that the Law Society thinks otherwise. There is a sense that good-quality solicitors are being poached from the private sector into the Government—the civil service—or public bodies that require legal assistance.

Do you have any indication as to where the truth lies? Is it somewhere in the middle? Are average salaries much higher in Government agencies than they are in the private sector, for all the reasons that we have talked about and because of the financial issues that private sector firms have faced?

That is a bit like apples and oranges: we are perhaps not able to compare the two directly. I will ask Denise Swanson to provide a bit of detail on that in a moment.

Crown salaries are published online. On the other side, private companies are obviously free to set the rates that they want to set.

Could you give a little bit more context, Denise?

The short answer to the question is that we do not know. We have had discussions with the Law Society and the Scottish Solicitors Bar Association about collecting the evidence and data that will demonstrate what is happening in those situations. In private firms, it is for partners to decide how much salary is paid to employees. That is often commercially sensitive information that some firms might not wish to share.

Those are some of the things that we have been trying to unpick with the Law Society and the SSBA in order to ascertain what kind of evidence we could develop on where there are disparities and why. That came up in the payment panel; a recommendation was made in the payment panel’s report around building an evidence base and a database. That research is on-going. It will be crucial to get the support of the profession on sharing information on salaries, terms and conditions, work-life balance and so on, so that we can properly ascertain what the disparity might be.

I guess the answer is to improve retention and to stop people leaving the profession.

Yes. Retention and recruitment have been problems.

It is a matter of getting new entrants in, too.

Yes.

I want to raise a point about the level of income, which has been put to us by the Law Society of Scotland, and I would like to hear your reaction. The Law Society is saying that, even taking into account the recent uplifts and the increase that will be introduced by the regulations, legal aid rates will be about 60 per cent lower in real terms than they were when the Scottish Parliament was created. It is quite obvious that hourly rates have not gone up by much. The Law Society of Scotland is saying that that is in the context of a long-term decline in overall legal aid expenditure, with the 2021-22 budget being £138 million, in comparison with £160 million in 2010-11. Do you accept all that?

We need to consider the levels of legal aid that have been provided. Most of the expenditure goes on solicitors’ fees, but that expenditure depends on how many applications for legal aid are submitted and how many are offered or given. We have seen a decline over the period in legal aid applications; those are charted in the Scottish Legal Aid Board annual reports. We are starting to see an increase—it started just before Covid—particularly in sexual offences cases.

There is not necessarily a straightforward correlation between legal aid expenditure and fees; expenditure depends on the number of cases. Case loads have reduced for the profession over the period. I can take the question away and try to provide the committee with a more structured response to the point that was made by the Law Society.

Thank you.

Good morning. Minister, you said that the measures before us represent “a starting point”, which is quite reassuring. Can you confirm that negotiations and discussions with legal professionals will continue on the issue?

Yes, absolutely. In relation to the reform package—not what is in front of you now, which is an additional reform—we have already discussed our solemn proposals in quite a lot of detail with the profession, and those are pretty much ready to go. I will be able to bring them to the Parliament quite soon.

The summary proposals need a bit more development, so we will take a bit more time to develop them—again, that could absolutely be progressed this year. Those proposals are already in development, which is certainly a starting point. The fees need a lot of reform, and, as I said, it is an on-going process, but we are happy to consider any suggestions from representatives of the profession on how fees could be changed or altered in the future.

No members have indicated that they have any further questions or comments, so we move straight to item 2, which is formal consideration of the motion on approval of the affirmative instrument.

Motion moved,

That the Criminal Justice Committee recommends that the Legal Aid and Advice and Assistance (Financial Limit) (Scotland) Amendment Regulations 2022 be approved.—[Ash Regan]

Motion agreed to.

I invite the committee to agree to delegate to me the publication of a short factual report on our deliberations on the affirmative SSI that we have considered today. Are we agreed?

Members indicated agreement.

That completes consideration of the affirmative instrument. I thank the minister and her officials for attending. We will suspend briefly to give the witnesses time to depart.

10:31 Meeting suspended.  

10:32 On resuming—  

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Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022 (SSI 2022/30)

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Parole Board (Scotland) Amendment Rules 2022 (SSI 2022/10)

Item 3 is consideration of two Scottish statutory instruments that are subject to the negative procedure. I refer members to paper 2.

No members have indicated that they have any comments or questions on either of the instruments. That being the case, are members formally content not to make any comments to the Parliament on the instruments?

Members indicated agreement.