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Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2005 <br />(SSI 2005/584)
The next item is subordinate legislation. I refer members to the clerk's note on the regulations, paper J1/S2/05/40/5.
I was recently contacted by several advocates about this issue. I am not sure what the right phrase is for the senior advocate who is in charge of all the advocates, but I think that the person is called the dean.
Yes.
In a particular case, the dean intervened. As I understand it, that was a somewhat unusual event. Will you explain why the dean intervened in that case?
I am not entirely sure what might be meant by "intervened". The dean has a power to direct counsel to act in cases in which an advocate might otherwise be disinclined to do so. Although it is quite unusual for that to be done, it is not unique. I do not know the details of the case to which you and your correspondents were referring, but I suspect that what might have happened is that, as dean, I regarded it as my responsibility to do everything that I could to ensure that the courts were not disrupted and that people were not left unrepresented because of inadequate remuneration as a result of the original interim regulations, the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005. I spoke to many advocates to draw to their attention the importance of the duties that we all have to the court and, so far as I could, to impress upon them that they should adhere to those duties. I do not know whether that is what is being referred to. I did not issue any formal direction such as I might do in an extreme case.
My understanding from the correspondence was that you were very unhappy with the level of remuneration. When some advocates suggested that the remuneration was not perhaps what it should be, quite unusually you supported that assertion. Is that correct?
Yes. I now understand the point that was being made. In various respects, I regard the remuneration as being inadequate and unsatisfactory. In the submission, I have explained why reasonable remuneration is important. I have been dean only since last November and there has not been a review of legal aid regulations such as this for at least 10 years. The extent to which any intervention on my part might be said to be unusual perhaps reflects the fact that it is quite unusual for there to be such a thoroughgoing review that affects the faculty so intimately. It affects not only criminal cases, which are the most significant issue at the moment; there is also a review of civil legal aid that will affect members of faculty.
If that is happening, how is it affecting justice? People want to be properly represented in court. Is representation being delayed? Are people being left unrepresented because advocates are not being paid enough money? That would be a considerable concern for me. If that is the case, is it going to be an ever-increasing problem?
You say that it would be of considerable concern to you; were that to happen it would be of the utmost concern to me, as the leader of the Faculty of Advocates. In the circumstances, only a small number of appeal cases have been affected. As far as I am aware—Ian Duguid may correct me on this—the situation has not resulted in someone not being represented in a criminal trial such that the trial had to be put off.
Let me just rewind a bit. You have highlighted to the committee serious concerns about the new rates, but how did we get to this position? From my reading of your submission, the problem seems to have been triggered by the reforms that were brought in on the back of the Bonomy report. Is that right?
Madam, I am aware that the committee has limited time, so I will not recount the full history, as that would take a while. In essence, two things happened that brought about the introduction of the interim regulations, which have been the cause of the particularly critical problems.
I am grateful to you for summarising what was probably a long process. I suppose that you are saying that you entered the talks expecting that there would be an uprating of fees.
Yes.
But you have ended up with an across-the-board downrating of fees.
That is right. We entered the negotiations expecting that, in aiming to modernise the 1992 regulations, they would address the issue of reasonable remuneration and take account of how fees had moved not only in criminal work, but in civil work over the previous 12 years or so. I recollect that the draft regulations were published in July 2004 and I think that the Bonomy report promoted the need for counsel's fees to be reasonable remuneration—
I will stop you there to deal with a matter before I invite Margaret Mitchell to ask questions.
Ian Duguid wants to say something about that, but I will answer your question first. We welcomed the opportunity that the Executive provided to take part in the negotiations. We did not necessarily enter into them on a conditional basis in the expectation that we would get something particular out of them. On the other hand, we expected that the outcome would be satisfactory in all the ways that I have described.
I want to correct the perception that the Faculty of Advocates went into negotiations with the Scottish Legal Aid Board on the understanding that fees would be uprated. That is not entirely correct. New procedures were being brought in as a result of Lord Bonomy's report and the figures and work relating to the 1992 regulations were so out of date that some adjustment was clearly needed. The Faculty of Advocates went into the negotiations on the understanding that the rates that would be paid under the new procedures would be roughly the same as those that the board already recognised. After all, the board did not have recourse to the auditor to tax any of the fees that were being charged. It was paying fees that were being charged by the counsel. The faculty understood that those fees would roughly set the parameters for the rates that would be paid under the new procedures, with certain adjustments, but that is not how things transpired.
I will summarise the problem. Earlier, I said that I assumed that, during the review of the 1992 regulations, you expected at least a minor increase in fees because there had not been one, but you are saying that you expected the new regulations broadly to mirror the 1992 regulations, and you have ended up with something far short of that. Is that a fair summary?
That is a fair summary. If I may, I will explain why there was no problem in 2004, despite the regulations being so out of date. The reason was that, although the scale figures in the 1992 regulations were by then significantly out of date, because of the flexibility in the regulations and the power of the auditor to tax fees, fee levels had generally risen, which was recognised by all. As Ian Duguid said, in virtually every case in 2003-04, the Scottish Legal Aid Board paid fees that were reasonable because of the history of decisions and negotiations through the auditor of court. Clearly, any scale fees that were provided without that flexibility were not reasonable, which was the problem when we came to the regulations that were first proposed in July 2004. The rates were very much lower than they should have been for 2004 and the flexibility was much reduced. That is the problem.
The committee takes seriously anything that has the potential to jeopardise access to justice. As the convener said, we had a meeting with Lord Bonomy as a result of which our understanding was that, because the Bonomy reforms relate to a large extent to the front end of the process—they try to get as much agreement and as much business out of the way as early as possible to increase the efficiency of the courts—that early work was to be remunerated. There was to be no question of loss on the part of the advocates or anyone else who is involved.
That is the removal of the flexibility that existed previously. In a sense, that flexibility was the oil that kept the machine going. Ian Duguid should respond to the question, as he has more detailed knowledge of the precise ways in which the Bonomy reforms have changed the character of the work. It is right to acknowledge that, although counsel are expected to work in a particular way because the new procedure demands it, the regulations provide no basis for payment for that work. Because of the capping arrangements and the limited powers of the auditor under the interim regulations, counsel who have done such work will be told by the Scottish Legal Aid Board either that there is no basis for any payment, or, in many cases, that the payment for the work will simply be subsumed into the appearance fee, which may be due later. However, that does not acknowledge the significant amount of work that has to be done at the earlier stage.
A great deal of work is now substantially unremunerated—that is a fact of the changes. For example, the Bonomy procedure requires full disclosure to counsel of all statements that have been taken by the police, but counsel carry the responsibility for completing the written record. Members probably heard last week—it was widely expressed—that about 50,000 witness citations have been saved as a result of the new procedures. That is a good development, and the working of the courts has changed considerably because of it. The saving has come about because disclosure is given and because counsel are required, by a practice note of the Lord Justice General, to attempt to agree evidence and to explain where they have done so or why they cannot do so. Therefore, the reduction in the number of witness citations is largely a result of lawyers either agreeing that witnesses will not be required or agreeing the evidence.
That was useful and it is now on the record.
I think that it is. Formerly, in any case in which the Crown judged that a sentence of more than three years was appropriate or likely, it would indict it in the High Court. A sheriff's powers on solemn conviction were limited to three years, and that was raised to five years, so there is a body of cases that the Crown will now indict in the sheriff court. Formerly, the accused in a High Court trial would be represented by an advocate or by a solicitor-advocate—someone exercising supreme court rights of audience. Now, despite the crime being identical, the individual being identical and the potential sentence being identical, the case may be represented only by a solicitor, unless the Legal Aid Board gives sanction for the employment of either an advocate or a solicitor-advocate. It is certainly the experience of members of faculty that the board has operated its sanctions policy in a way that has limited the opportunity for people to be represented by either an advocate or a solicitor-advocate in cases in the category that has changed from the High Court to the sheriff court.
The Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2005 are designed to alleviate the problems. Do you have any comments on the emergency regulations?
Technically, the emergency regulations, which were laid on 18 November, are not yet in force. They will come into force in three days' time. As I said, they address the critical problems in respect of appeals, travel and subsistence and two other categories that we have not yet discussed—proceedings under section 76 of the Criminal Procedure (Scotland) Act 1995 and confiscation proceedings. We acknowledge that the Executive has sought to avoid an increase in cases being returned. However, as we have said, the regulations are merely a partial solution to the immediate problem; they do not address the overall approach of the interim regulations, which are inadequate in many other ways. I hope that our submission has assisted the committee, because we set out the various things that we think ought to be addressed when formulating any permanent regulations.
That brings me from the immediate problem to the temporary resolution. The Subordinate Legislation Committee advises us that regulation 2(1) is retrospective and that, because there is no retrospective power in the Legal Aid (Scotland) Act 1986, there are doubts about whether the regulations are ultra vires.
I am aware that the Executive was anxious about that, so it considered the regulations extensively before it laid them. The practical and reasonable reason for that provision is that it allowed counsel who had been inadequately remunerated to be paid adequately. A member of faculty challenged the interim regulations in a judicial review, and that affected work that was done before the regulations were passed.
McCall.
The case was McCall v the Scottish ministers and it was successful. The court has yet to work out the procedural consequences of the case. I think that the regulations will be quashed only to the extent that they apply to work that was done before 4 April 2005. The interim regulations will remain, and the emergency regulations are an amendment of those. Regulation 2(2), which is the application provision, provides that the regulations do not apply if the result is a lesser fee for any work done since 4 April. They apply to allow counsel to claim a greater fee. If it helps the committee—you must forgive me, but my current view is not a formal legalised opinion—I do not see that as being retrospective in a vires sense, because the amendments are to regulations that had their effect after 4 April 2005 and they do not affect citizens' rights detrimentally. Counsel's fee since 4 April is not reduced. Indeed, that point was made about the interim regulations in the judicial review; no one can challenge the regulations on the ground of retrospection, by claiming that the regulations affected them detrimentally.
You said that these are emergency regulations. I have to say that it does not say anywhere that they are emergency regulations; in fact, we have been confused by the whole matter, because we did not note that the previous regulations were interim regulations.
Yes. We called the regulations that came into effect on 25 March and applied to cases after 4 April the interim regulations because we expected permanent regulations to follow thereafter. Indeed, we still expect that to happen. We have called the regulations that we are now formally discussing the emergency regulations because they deal with certain critical problems. The faculty certainly supports the view that the interim regulations, as amended by the emergency regulations, should be in force and recognised as having legal effect until they are replaced by permanent regulations.
So you are still concerned about fees in relation to the Bonomy reforms, the uprating of fees in the 1992 regulations and the consequences of sentencing powers in the sheriff court and suggest that the role of the auditor of court should be restored to provide flexibility over fees.
Those are our main concerns. In a way, the final aspect overrides all the others. We support the restoration of the role of the auditor of court—although we have discussed other mechanisms such as a committee—because, if flexibility exists, there should be no problem. The problem lies with a lack of flexibility. In some cases, counsel are simply told, "You cannot be paid," or "You cannot be paid any more," and the advocate says, "That is not reasonable remuneration; I'm not taking the case."
That last point was helpful.
Yes.
Do you want to respond to what you have heard?
Yes. I will run through the content of the regulations that are before us and the reasons for them, which to some extent will go over some of what has been said already. However, I will be as brief as possible.
It would be helpful if you could point to areas where you disagree with the Faculty of Advocates.
First, as has been said, the regulations on the work of counsel in criminal cases had not been updated since 1992 and were therefore out of date in terms of the amounts prescribed and the extent to which the categories of work set out reflected practice in the courts. We are at one with the Faculty of Advocates on that. In practice, over the period 1992 to 2005, the amounts that were paid by the Scottish Legal Aid Board were set by reference to the decisions of auditors of court and were more and more removed from the amounts that were set in the fee tables. There was therefore considerable uncertainty as to the fee that would be paid for any particular case or item of work. Frequently, there required to be negotiation on a case-by-case basis.
I presume that the amendment regulations are an attempt to deal with an acknowledged problem in the system. Are you satisfied that because no unfairness is involved—although the taxpayer might disagree—the regulations are intra vires as opposed to ultra vires? As far as you are concerned, are the amendment regulations the final document, or are we going to see amendments to amendments in the foreseeable future?
I will return to your second point, but I will first ask Jane McLeod from our solicitor's office to deal with the first point on vires, on which we have responded to the Subordinate Legislation Committee.
I am aware of that.
The short answer is yes. We considered the vires issue carefully before we made the regulations. I do not think that we would disagree with the informal view that the dean of the Faculty of Advocates expressed. Our consideration turned largely on the question of detriment. We took the view that there is the general principle that Parliament is presumed not to have intended to alter the law retrospectively in a way that is unfair to those affected by such a change. The enabling powers in the Legal Aid (Scotland) Act 1986 are such as to allow the approach that is taken in the regulations. We have ensured through regulation 2(2) that there is no detriment.
Clearly there is no detriment to those who are the subject of the amendment regulations, but does that extend to the taxpayer?
The question of detriment does not require us to consider the wider issue of the taxpayer at large. We are considering more specifically those who are directly affected or concerned by the provision.
Bruce McFee's second question was whether the amendment regulations were the final amendment regulations. The intention of ministers is that the essential points that are embodied in the regulations, read together with the regulations that were made in March, should remain as part of the system, with the possible exception of the issue of payment for appeals, which we acknowledge needs to be discussed further. As the dean said, the issue was not considered in great detail before the March regulations were made. We and the Scottish Legal Aid Board hope to engage in further discussions with the faculty about further changes, particularly in relation to appeals, which might be necessary. However, that does not mean that the whole content of the two sets of regulations made in March and November is up for reconsideration.
So if the regulations go through without any problems, what is up for consideration is the issue of payment for appeals. That is what is outstanding.
That is the main issue from our point of view.
So you are not going to consider the restoration of the role of the auditor of court, which is the faculty's major concern.
That would be a matter for ministers. As advised at present, I would say no. One of the major difficulties that the March regulations addressed was the escalation of fees as a result of auditors' determinations. It is not true to say that there is no place for the auditor of court in the regulations that have been made, but the auditor's discretion is limited.
I understand the point that you are making about what has happened since 1992. Nevertheless, I express a key concern in relation to the Bonomy reforms. Lord Bonomy made it crystal clear—and his view was supported by the Parliament—that if the Faculty of Advocates agreed to change the way in which advocates operated in line with the new procedures, which would necessitate more preparation work, advocates should be adequately paid for the work that they did. The main adjustment would be that advocates would get less for being on their feet but would be paid more for the preparation that would be necessary if the reforms were implemented. We are not necessarily going to get that right in the first few years. We are not even a year into the Bonomy reforms. Do you not think that there is a need for flexibility? Lord Bonomy made it clear that the success and continuation of the reforms depended on their having the full confidence of the Faculty of Advocates.
The changes that have been made are, in part, intended to reflect the changes that have been brought about as a result of Lord Bonomy's review. For example, there has been a substantial increase in the basic fee for a plea under section 76 of the Criminal Procedure (Scotland) Act 1995. The amount is now about £1,200—I am not absolutely sure of the exact amount. We must and will continue to monitor what is happening in the High Court with the view—which ministers would endorse—that there should be fair remuneration for the work that has to be undertaken. That remuneration should also be structured in such a way that it encourages the other positive aspects of the changes in High Court procedure. We hope to continue our monitoring of the issues and will discuss matters with the Faculty of Advocates.
If the committee reports to Parliament that it is satisfied with the emergency regulations, can it do so in the knowledge that the Executive will continue to discuss with the Faculty of Advocates the concerns that the faculty has raised?
Yes. There are a large number of issues, some of which are complex, but we nevertheless expect to continue to discuss them. The basic shift from an auditor-based payment system to a clearer and more certain system for the payment of the amounts that are set out in the regulations, which would normally be the amounts that are paid, is an important part of the changes, which I expect that ministers will wish to adhere to.
I sympathise with much of what you say about trying to control costs. As things operate at the moment and as they will operate in the future, what flexibility remains for the auditor of court other than in exceptional cases to keep an eye on fees to ensure that they do not run out of control?
The auditor of court has some flexibility under the current regulations, although maximum fees are specified. The auditor of court also has a duty, which has been exercised many times, to obtemper claims for fees that are clearly above a reasonable level of remuneration. I could cite various examples of that.
That concludes our questions. Thank you for coming to speak to the committee about the regulations.
Act of Sederunt (Fees of Sheriff Officers) 2005 (SSI 2005/583)
We have a note that has been prepared by the clerk and a letter from the Lord President. Are members happy to note the act of sederunt?
Civil Partnership (Modification of Subordinate Legislation) Order 2005 (SSI 2005/572)
We have a note that has been prepared by the clerk on the order, which is subject to the negative procedure. The committee considered the order a couple of weeks ago, but it has reappeared on the agenda due to the comments that were made on it by the Subordinate Legislation Committee. Alex Mowat is here to answer any questions that members have on the order. I think that it is quite straightforward—it just lists amendments to various regulations as a consequence of the Civil Partnership Act 2004.
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