Justice Committee

Meeting date: Tuesday, December 10, 2013

Official Report 508KB pdf

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Subordinate Legislation

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Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320)

We looked at the regulations last week and agreed to write to the Scottish Government seeking its response to concerns raised by the Law Society of Scotland. We now have that response and it is included with members’ papers.

I will just give members guidance on process. Any further consideration of the regulations would have to be taken next week. Alternatively, any comments that we now make will be on the record. If you want to do anything with the regulations, you will have to lodge a motion to annul. We have the opportunity to invite the cabinet secretary to give evidence next week on the interaction between the Government’s position and that of the Law Society of Scotland.

Let me have your comments first.

I do not think that the cabinet secretary’s letter properly addresses all the points that the Law Society has made about robbing Peter to pay Paul. I am therefore minded to lodge a motion to annul.

The Law Society of Scotland seems to be saying that offsetting the costs addresses the cost of the new provisions, but it is concerned that that will become a precedent. I also see that the cabinet secretary is saying that the total amount of money has not been reduced, but it has been allocated in a different way. Could we have some more advice on that?

Does the committee want to seek a further response from the Government? The letter from the Government has responded to the letter from the Law Society.

I want to raise a couple of points that are similar to what Margaret Mitchell said. They made it a bit clearer for me so I do not know whether we need further information. Page 12 of paper 3, the second page of the cabinet secretary’s letter, says:

“The current system is, therefore, a hybrid of inclusive fees and detailed fees which was developed with the Law Society’s full involvement.”

It goes on to say:

“Solicitors are being paid the same amount of fees overall, but in different, more transparent ways.”

That seems to answer what the Law Society is saying, although it differs from what it is saying. The Law Society lawyers are getting paid for the work and a different way of doing that is being looked at. They are still getting the same amount of money, from what I can see here.

Are there any other comments?

What will the consequences be if we move to annul the SSI? Will it leave us open to a challenge under the European convention on human rights?

It is for the cabinet secretary to respond to that. If there is a motion to annul, it will be debated here in committee.

The Law Society urged the committee to undertake a full ECHR assessment. What are the implications of that?

I suggest that we defer this discussion so that we can involve the clerks and talk about it during the discussion of routes forward into our work programme today. That will mean that we can discuss all the options, which we cannot do in public. Members are perfectly within their rights to do what they want to do, but I will remit the regulations for discussion along with the work programme and we can go into private session and have a free discussion on processes.

12:07 Meeting continued in private until 12:26.