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The next item on the agenda is the legal aid inquiry. Members will have seen a note from the clerks on the appointment of an adviser. I think that it would be useful for us to appoint an adviser, as legal aid is such an enormous issue. We would have to draft a job description—most of it is in the paper. Are there any views on this?
I have a slight reservation about the appointment of an adviser. Obviously, legal aid is a matter dear to my heart.
It is dearer to your bank balance.
I certainly know a lot about the subject. Where would we get an adviser who did not have an agenda? The problem is that everybody who knows anything about legal aid has a strong position on the subject, one way or another—everybody has an axe to grind. Where would we get someone with the requisite background knowledge and experience who would have anything to offer us and would be impartial?
I think that we would have to look to the universities for someone who had a detailed understanding of legal aid but no commitment to an issue that might be dearer to their bank balance than to their heart.
I am not against the idea in principle.
I support Gordon Jackson. I have never been struck by how much universities know about legal aid, although they are getting better.
We need to make a decision about how to progress the review.
I just think that it would be difficult to find someone who did not have an interest. People have strong views—I have strong views on civil legal aid. It depends whom one picks.
I think that we have to appoint an adviser. I cannot imagine that we cannot find someone—an academic rather than a practitioner—with the intellectual firepower to research areas with which they are not familiar. It would be difficult to conduct such an inquiry without an adviser. I do not think that the committee has the necessary experience to take an unbiased and impartial view on legal aid. It would be a sad state of affairs if we could not find someone in Scotland with experience, ability and knowledge to advise the committee.
The people who would be most helpful would be those who have a direct interest. There are many legal companies in Scotland that depend on legal aid. They know the intricacies and every aspect of the subject. The logical step is to balance advice from someone from such a company, who could tell us about those intricacies, with advice from someone from the Legal Aid Board.
We are in danger of confusing two issues. We will want to talk to people on various aspects of this issue, but the views of anyone who makes their living by, among other things, submitting their accounts to the Legal Aid Board, regardless of whether they are for civil or criminal cases, have to be taken as evidence. I agree with Kate MacLean: it would be sad if there were nobody in Scotland who could make a fist of advising the committee about lines of research. I do not want the committee to go over ground that has already been covered elsewhere. A principal role of an adviser would be to draw our attention to the kind of things that have been examined in countries that operate other schemes, as well as in Scotland and the rest of the United Kingdom, so that we could see what was on offer. It would be extremely difficult for us to do that ourselves or to ask the Scottish Parliament information centre to do it.
I agree with Phil Gallie on this. As long as we have balance, do we need to have one adviser? Failing the academic, whom we may or may not find, we could have two advisers who could present us with proposals that they have considered jointly.
Let us not say "failing the academic". We should not confuse the role of an adviser with that of a witness. An adviser does not sit in front of us while we take evidence from them; he or she sits in the background, firing things in so that we do not stray.
I understand the difference between advice and evidence. However, I agree with Gordon Jackson that this is a difficult area, in which, even with the best will in the world, people who have a great deal of expertise may have acquired it because they have a particular type of experience.
I agree with Kate MacLean and Roseanna Cunningham. I am not against the idea of appointing an adviser in principle. I just have reservations about finding someone.
Gordon Jackson is right: the adviser should not be someone who has an interest. That might mean ruling out a class of people, but it does not mean ruling out having an adviser. We are talking about taking a wide view. We want to review the legal aid system and access to justice.
Initially, the adviser will be asked to draw up options for the remit, to make it more manageable.
Exactly. That is the crucial point. Kate MacLean is right. The person will probably be an academic who has studied access to justice. We would be foolish to examine the issue without considering middle-income earners and why they do not access justice. We need to examine the technical reasons why people do not get full legal aid. We need someone who has breadth of understanding of the legal system. They will need only to know the basics about thresholds for legal aid. If we need technical advice, we can get that from witnesses. The adviser should be someone like an academic.
My point is much the same as Pauline McNeill's. Christine Grahame and Phil Gallie mix up the role of an adviser with that of someone who gives evidence. The adviser will not necessarily always be at meetings. We might call the adviser a researcher/adviser. They will be someone who can come up with a remit and guide the committee on lines of questioning that it might want to follow and the evidence that it might want to take. It would be wholly inappropriate for the committee to have a practitioner as an adviser—as Phil Gallie suggested—or to have someone who has a pecuniary interest in the legal aid system. We should find an academic who can act as researcher/adviser to the committee. If that does not work out and we are unable to get the assistance that we require from such an adviser, it is up to the committee to reconsider the matter and, possibly, to identify somebody else. If the committee needs expert witnesses at any time, it can call and take evidence from them.
The concept of an adviser is appropriate. I do not want to limit the scope of the investigation until we have heard from an adviser. Also, if an adviser has a particular agenda or axe to grind, the witnesses will identify that for us fairly quickly.
I am not confusing the role of an adviser. I have had some experience of advisers on House of Commons select committees. We took on board advisers who had specific interests. I can think of a lady who we took on for a drugs review who was totally committed to the use of methadone. She had a set view, but she was still useful as an adviser.
Yes, but she did not have a pecuniary interest. That is the difference.
She did have a material interest.
Yes, but not a pecuniary one.
We will not get into that debate. Let us stick to the issue of principle.
I suggest merely that people who have a specific interest have been used in other forums.
That is the point.
Perhaps the advisers who were used at Westminster could be used again, if that was not too long ago.
We will seek appropriate names to put before the committee, if that is required. Today, I need the committee to agree in principle to finding an adviser, and to what is in the clerk's note about that job, in particular that the specification at item 5 is what the committee requires. Members need to read the specification on experience, skills, abilities, neutrality, availability and confidentiality to see whether they agree.
Will members look at the detailed specification for the adviser and indicate whether they are happy with it? We will try to start identifying names based on that.
I also ask any member—especially Gordon Jackson—who can think of names of people who might be considered appropriate to pass those names to the clerk. I can think of one person.
That is one more than me.
That may be. Anyone who comes up with any other ideas should pass them to the clerk. Although it might cause slightly more technical difficulties, the person does not have to work in Scotland. There is no reason why we should not range wider than that when seeking an adviser.
Would the person—for example, an academic—come out of their job for six months or would they do it as well as being an adviser?
We need to speak to the adviser about that.
If one is trying to think of the names, one has to—
The post of adviser is not full-time. It is not a job in that sense.
It is a commission.
Commission is probably the right word. It will depend on an individual's availability. They will need to be available to do the work that is required and to attend some, but not necessarily all, committee meetings.
Are we considering civil legal aid or the whole range of legal aid?
That is one of the things that we will speak to the legal adviser about. From what has gone on during the past year, my perception is that the committee is more concerned about civil legal aid than about criminal legal aid.
Gordon, I know that you have different concerns.
I would not want to restrict the investigation to civil legal aid. There is huge concern out there about criminal legal aid.
I was not defining the review, I was merely asking.
At the moment, we have not narrowed the remit in any way. We are examining legal aid and issues to do with access to justice. When we obtain an adviser, we will be able to consider more carefully defining the parameters that will allow us to achieve something practical, rather than spend a year waffling. That is important.
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