Courts Reform (Scotland) Act 2014 (Consequential Provisions No 2) Order 2015 [Draft]
Item 3 is on the draft Courts Reform (Scotland) Act 2014 (Consequential Provisions No 2) Order 2015.
I welcome Paul Wheelhouse, the Minister for Community Safety and Legal Affairs, and Scottish Government officials Hazel Dalgard, from the civil law and legal system division, and Greig Walker, from the legal services directorate.
The Delegated Powers and Law Reform Committee agreed to make no observations to the Parliament on the draft order.
I go straight to questions from members, as the minister has an opportunity to respond to them; the formal debate will follow this evidence session. Do members have questions?
Members: No.
I now move to item 4 and the formal debate. I invite the minister to move motion S4M-14087.
Motion moved,
That the Justice Committee recommends that the draft Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 be approved.—[Paul Wheelhouse.]
No member wishes to speak on the motion. I take it that you have nothing to add, minister.
I have nothing to add.
Motion agreed to.
As members are aware, the committee is required to report on each instrument. Are we agreed that I take responsibility for signing off the report?
Members indicated agreement.
Thank you very much. I suspend the meeting for a minute so that the officials can change over.
10:02 Meeting suspended.Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 [Draft]
Item 5 is consideration of a further affirmative instrument, the draft Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015.
The minister is of course staying with us, as is Hazel Dalgard. I welcome to the meeting Scottish Government officials Denise Swanson, the head of the access to justice unit, Alastair Smith, from the legal services directorate, and Catriona MacKenzie. I did not see you there as I was blinded by the light. I do not know where you are from.
I am from the civil law and legal system division.
Excellent—we could not do without you.
The Delegated Powers and Law Reform Committee agreed to make no observations to the Parliament on the draft regulations, but members will know that we have received representations from some members of the legal profession.
I go straight to questions from members, as the minister has an opportunity to respond to them; the formal debate will follow this evidence session. John Finnie is first, followed by Margaret Mitchell and Roddy Campbell.
Thank you, convener.
Good morning, minister. You will be aware of the representations that we have received. You might say that they are unsurprising: people want to be remunerated at a more enhanced rate than the Government is offering. We are told that the rate is the same as it was in 1992. Is that correct?
I ask Denise Swanson to answer that.
Yes, the existing rates and fees payable have been the same since 1992. They are the same as are payable for similar elements of work across the legal aid system.
Has there been any calculation of that as a real-terms cut? What with inflation and one thing or another, it represents a significant erosion of what might be seen as the profession’s terms and conditions.
I am not aware of any such calculation. I might defer to colleagues in a second if that is okay with Mr Finnie, but, with the proviso that I am sure we are all aware of the difficulties that we face in managing public finances, I will say that if we could afford to spend more, we would certainly take that into consideration. However, we are under real pressure, as I am sure Mr Finnie is aware. I will check with Denise Swanson whether any calculation has been made of the real-terms reduction in fees.
That is not a calculation that we have done.
The Scottish Government uses the term “access to justice” a lot—we would all commend that approach. I also commend any briefing that highlights the example of Inverness and the Highlands. You might be aware of the briefing from the Law Society, which states:
“For example, where a person in Inverness is unfairly convicted, he or she is unlikely to be able to find an Inverness-based solicitor willing to travel to Edinburgh to conduct a 30 minute summary appeal hearing for remuneration of £27.40 and limited travel fees.”
One would also have to allow eight hours’ travel time for that journey—three and a half hours each way, say, and a bit of latitude. Of course, that does not cover Portree, Stornoway, Kirkwall, Elgin, Fort William, Oban and Campbeltown, all of which have more complex communication links with the nation’s capital. Surely that does not represent equal access to justice.
The issue is also important to the convener’s constituents and to the constituents of all members with rural interests. Clients of local solicitors are entitled to be represented at the sheriff appeal court and, indeed, to have equality of arms, which is an issue that I know the committee will be interested in.
It is my understanding that the travel arrangements under the draft regulations are not significantly different from the current set-up. For example, cases will already be heard in Edinburgh in the High Court or, for civil cases, the Court of Session, and solicitors will already face the choice between travelling to Edinburgh themselves to represent their clients and, as they often do, appointing an agent—a local solicitor in Edinburgh—to represent their client for that half-hour hearing in Edinburgh.
It is also my understanding that the £27 that Mr Finnie has quoted is not an accurate representation of the compensation for travel that would be available to solicitors—
Forgive me, minister, but I think that that figure relates to the fee. It is £27 plus the limited travel fees.
The figures that we are aware of and which we have tried to summarise come from the Scottish Legal Aid Board’s detailed breakdown of a case in which a Glasgow solicitor—I appreciate that it is not a solicitor from Inverness—attends the sheriff appeal court. The fees are calculated on a detailed fees basis in the draft regulations, and the £27 figure that Mr Finnie mentioned does not represent the totality of the fees that the solicitor would be entitled to in representing their client at a case at the sheriff appeal court. For example, there are specific fees for producing letters and supporting documents for the court. To some degree, in relying on the figure that Mr Finnie has quoted, he is comparing apples and pears.
But there is a comparator. Their fellow professionals are paid at a different rate.
Can you clarify your point, please?
The point is that solicitor advocates are being treated differently from advocates.
Indeed. Under current legislation, solicitor advocates are entitled to a higher rate of support when they appear on behalf of a client at the Court of Session or the High Court. We are talking about the sheriff appeal court, and under the current regulations, solicitor advocates would not be entitled to the same rate as counsel, if counsel were sanctioned by the Scottish Legal Aid Board. We are prepared to look at and review that issue over the next six months to see the impact on solicitor advocates’ business.
However, I make it absolutely clear that there is nothing that excludes solicitor advocates from representing clients, as was implied in a phrase in the letter that the Law Society sent to me, which I believe was copied to the committee. That is not accurate. Solicitor advocates might decide on their own behalf that the fee that they are getting is insufficient, which means that the decision whether to represent a client is a commercial one for them. Over the next six months, we will review that very issue of the extent to which the move is impacting on solicitor advocates’ business and, indeed, on access to justice—obviously, the choice of who represents them in the sheriff appeal court is important to clients.
The financial constraints are acknowledged—you are right. This is an opening shot; this is a new occasion. Surely we want to get it right straight away and not have to review it.
The important point that I would focus on is the degree to which the client who needs representation in the sheriff appeal court is receiving equality of arms in relation to the case. The Scottish Legal Aid Board is putting in place a policy of flexibility, recognising the novel nature of the arrangements and the jurisdictional change. The board will ensure that it looks sympathetically on any applications for sanction for counsel from those with cases in the appeal court. Therefore, we hope to be in a situation in which, if an advocate depute is representing the Crown, those who are making an appeal are represented at an equal level, with the Scottish Legal Aid Board sanctioning counsel.
There is a particular gap. I appreciate the sensitive position of the solicitor advocates and the fact that they may face some disadvantage based on the fees that they currently get when they appear at a higher level. We are doing our best. We need to ensure that we have regulations in place to allow the sheriff appeal court to be up and running for 22 September, which was the will of the Scottish Parliament when it passed the Courts Reform (Scotland) Act 2014. The draft regulations are our best foot forward at this point in time, with a review of the arrangements and their impact in due course. We will reflect on any particular damage that is done to solicitor advocates’ business. However, the important thing is to protect the interests of the client.
Can I let somebody else in, John? You have had a fair stab at it and I have a queue.
You will appreciate that this has come to us late in the day, minister. The point that seems to be being made—it is a valid one—is that the Scottish civil courts review and the Scottish Parliament’s proceedings in relation to the Courts Reform (Scotland) Act 2014 should be considered, because there was no indication that solicitor advocates were intended to be placed in a disadvantageous position compared with members of the Faculty of Advocates or that pleaders should be restricted to instructing members of the bar. On the contrary, the 2014 act contains a section that sets out the circumstances in which a sheriff or the sheriff appeal court can sanction the employment of counsel, including solicitor advocates.
The point is also made that allowing solicitor advocates to be treated as counsel in criminal cases in the sheriff court would be entirely cost neutral to SLAB. What is not neutral is the fear of the Society of Solicitor Advocates, in opposing the fee regulations, that the measure is unrealistic and would have a significant impact on access to justice, the administration of justice and choice of representation.
To go back to John Finnie’s point, it is essential that we get this right now. If there is dubiety about the instrument, we should delay it.
Solicitors also contend that,
“to provide advocacy at the Sheriff Appeal Court, the payment structures for preparation and conduct of an appeal under these regulations are wholly inadequate.”
That is not a good way to begin new court reforms.
I recognise the arguments that Margaret Mitchell makes. They are similar to points that have been made to us by the Law Society of Scotland and others. I will point out a couple of things.
First, the Scottish Legal Aid Board estimates that for an appeal on conviction and sentence a Glasgow solicitor—I appreciate that this does not address the Inverness point that Mr Finnie raised—could earn fees and outlays of anything from £400 to £600 and more. That would depend on the time that was spent on preparing, travelling for, waiting for and conducting the appeal. If they represented a client from the original defence of case through to appeal at the sheriff appeal court, a solicitor could easily be paid more than £900 per client.
Solicitors are paid in the round for criminal legal aid work, of which summary appeal certificates represent less than 1 per cent of criminal legal aid expenditure. Over the past three years, summary appeals against sentence have averaged around 660 per year and appeals against conviction around 160 per year, in comparison with 86,191 grants of legal aid and assistance by way of representation—ABWOR—for summary criminal work in 2013 to 2014. That puts in perspective how small the proportion of cases that we are talking about is.
10:15On the choice of representative when sanction for counsel is granted, solicitor advocates will be able to access substantial detailed solicitor’s fees for the preparation and conduct of summary criminal appeals. Unlike counsel, of course, they can provide representation as solicitors in the lower courts, without prior sanction.
We have already begun a much wider discussion with the Law Society and the Faculty of Advocates—and the Society of Solicitor Advocates, which will be important, too—on how solicitor advocates are treated and paid in comparison with counsel. I assure the committee that we will look closely at the regulations’ impact on solicitor advocates, but I make the point that we are talking about a very small proportion of cases.
I challenge the assertion that the fees are untenable. We are talking about fees of £400 to £600, or up to £900 for representing a client from the original defence of a case through to appeal at the sheriff appeal court, which are reasonably substantial figures, and an hourly rate of £54.80 for appearance at the sheriff appeal court, which compares favourably with the minimum wage.
I do not know whether those in the law profession—which I used to be in—will appreciate that comment.
I appreciate the skills of our legal profession.
The minimum wage should be higher, rather than the other way round.
Indeed. We all want it to be higher—indeed, we want a living wage. However, I make the point that solicitors are well paid for the valuable skills that are attributed to them. I appreciate that the private fees that solicitors charge may well be more generous than legal aid fees, but legal aid fees are nonetheless reasonable rates of pay for the work that is involved.
I will leave that with you.
For fairly obvious personal reasons, I do not want to get involved in a debate about whether the regulations discriminate against solicitor advocates. However, I am grateful to you for saying that a dialogue about the issues will take place.
In her letter of Friday last week, the president of the Law Society discussed other options that could have led to savings of £260,000. Will you comment on that?
I am rather concerned about the speed at which things are happening. It appears that you met the Law Society last Thursday, and the letter is from Friday. I understand that the committee is not required to report to Parliament until 20 September. Would there be any mileage in further discussions or should we bite the bullet today?
I would be grateful for the committee’s guidance. We are here to give you as much detail as we can on the facts and figures. I appreciate that there might be concern about the lack of clarity on the numbers. In my discussion with Margaret Mitchell, I tried to explain that we feel that the figures that have been presented are perhaps a result of people misunderstanding the rates of pay that will apply.
The discussion that I had last week with the Law Society was helpful. It is fair to say that the Law Society had not quite appreciated some of the steps that we had taken to address some of its principal concerns, such as the flexibility on sanction for counsel, which we explained to it. We discussed a similar issue regarding whether comparing the previous regulations and the proposed regulations was like comparing apples and pears.
I would be grateful for the committee’s guidance on whether it feels that it has sufficient information. However, if the regulations are not implemented by 22 September, our solicitors will be in a considerably worse position than they will be in if they are implemented by then. I reiterate my commitment that we will review the regulations’ impact on solicitor advocates and other legal practitioners to see whether there are access to justice challenges, along the lines of those that John Finnie outlined, or whether there are concerns about particular disadvantages for solicitor advocates compared with advocates.
I would be grateful for a feel from the committee. Should we be able to secure a slot at a subsequent committee meeting—
Convener, given the timetable, would it be possible for us to allow another week for dialogue on the issue before moving to the vote?
I want to hear from other members first. However, that is a fair consideration.
Minister, you referred to the Scottish Legal Aid Board’s suggestion that the fee that is paid to a solicitor would be around £400 to £500. However, the letter from the Law Society of Scotland that is dated 4 September states:
“we find it inconceivable at the rates provided in the regulations that the fee to the solicitor would amount to that suggested by SLAB.”
There still seems to be a significant amount of disagreement. The Law Society points out, for example, that the rate for an hour’s hearing at the High Court under the current arrangements is £292.20. Although the proposed £54.80 is considerably more than any of us earns per hour, it will be a significant reduction in fees. I presume that a solicitor advocate would do a considerable amount of additional work on top of the hour that they spend in court. The Law Society reckons that the majority of appeal hearings would last no longer than an hour, so the figure of £400 to £500 appears to be a red herring. I agree with Roddy Campbell that we need additional time to look into the figures so that we have more clarity on what the actual remuneration will be under the new regulations.
I recognise the concern that Elaine Murray has set out about the apparent drop in fee rates and I do not want to make light of the issue. The way in which fees are calculated differs between the previous regime and the proposed one; there was perhaps more of a lump-sum element to the previous arrangement, which assumed that preparation was included in the fee, whereas we are now moving to having a more detailed breakdown of specific items.
I want to check that the committee has received a detailed breakdown that is based on the sheriff appeal court example that I referred to earlier, which is described as the kind of expenses incurred by XY—
Is this in a paper from your office?
It was in a letter from the Scottish Legal Aid Board.
The answer is no.
It would be helpful for the committee to see that example. In relation to Mr Campbell’s earlier point, it might be something that the committee should consider between now and making a decision.
Perhaps I can outline some of how the fee is broken down in the example. I will not go through the whole list.
I want to slow you down a moment, minister. I also want to bring in Alison McInnes.
Some of us round the table think that we need to know more and that we should not go ahead with item 6 today, given that the minister may be able to answer other questions in a meeting next week. Does the committee think that that would be a better way forward? What do you think, Alison?
I would agree only if there were a genuine desire to meet the Law Society again and explore some of the questions. The minister said that, when he met the Law Society last week, it had not understood some things and it was good for the Law Society to see the example, but the Law Society still chose to write quite a strong letter of objection after that meeting. The end of that letter says:
“we ask you to reconsider these regulations as a matter of urgency.”
We are not talking about a bit of tweaking of fees; rather, the issue is about access to justice. At the moment, we are being told that there is a risk to that access.
We do not have the letter from SLAB and there are still major questions about what the Law Society is saying. Is the minister available to come to the committee next week?
I have not checked that, convener. I know that the cabinet secretary is also due to appear before the committee next week.
It is important for us to know about that now, because otherwise we will move on to item 6. I will suspend the meeting for a couple of minutes to allow the minister to check whether he is available next week. If the committee agrees, we can take that item next week. That would mean that the minister could debate and answer points then and, in the interim, we would trust that he would have the meetings with the Law Society to take us a bit further.
I am not sure that we will get much further with the Law Society, given that it already has access to the information and yet has chosen to take a contrary position. I point out—as I did earlier—that if we do not implement the regulations before 22 September, solicitors will be in a greatly more disadvantaged position.
I hear you, but we can deal with the matter next week and vote on it then. I suggest that we suspend for a couple of minutes so that you can see whether you can make yourself available next week, when the issues can be properly and thoroughly addressed in the debate.
A short suspension would be helpful, convener.
10:24 Meeting suspended.
Yes, minister. [Laughter.] Is there a Sir Humphrey in the house?
I have just checked and, if the committee wishes me to appear next Tuesday, I can do so, although it will—unfortunately—mean the cancellation of something to do with new psychoactive substances.
I think that that will be a good way forward for the committee and, with respect, for you, minister.
Before you conclude, convener, I would like to make an important point, for clarity’s sake. The situation regarding the position of solicitor advocates is not created by the regulations; this was set in stone by the creation of the sheriff appeal court through the passage of legislation. We are not asking the committee to agree to put solicitor advocates in a disadvantageous position today, but the regulations are required to enable the sheriff appeal court to get up and running on 22 September. I give the committee comfort that it is not being asked to vote on something that will create that position—that position was set in train by a previous vote of the committee and, indeed, of the Parliament.
That is now on the record. [Interruption.] I do not want to open up the discussion again. Everything can be challenged next week in the debate that we will have. We can check what the minister has said on the record.
We will endeavour to get a further submission to you before next week’s meeting.
And a copy of the letter from the Legal Aid Board. We have not seen that, so it is impossible for us to comment on it.
I am stopping right there. That ends that item, and we are not moving on to item 6, which is deferred until next week. Thank you very much, minister.
Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (No 4) (Sheriff Appeal Court) 2015 (SSI 2015/245)
Item 7 is consideration of an instrument that is not subject to any parliamentary procedure. The purpose of the act of adjournal is to amend the Act of Adjournal (Criminal Procedure Rules) 1996 in consequence of the establishment of the sheriff appeal court by the Courts Reform (Scotland) Act 2014. The Delegated Powers and Law Reform Committee has drawn the Parliament’s attention to the instrument as it contains minor drafting errors. The Lord President’s private office has undertaken to lay amending instruments to correct those errors. Are members content to endorse the DPLR Committee’s comments on the act of adjournal?
Members indicated agreement.
We will suspend the meeting again—we are suspending like mad today. This will be for just a couple of minutes to let members get their papers organised for stage 2 of the Criminal Justice (Scotland) Bill and to allow the Cabinet Secretary for Justice to come in.
10:29 Meeting suspended.