Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (SSI 2011/163)
We have a bit of time left with the cabinet secretary so, if he does not mind, we will move on to the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011, which we will consider later this morning and which obviously are connected with Cadder. As the cabinet secretary probably knows, the Glasgow Bar Association has provided a written submission on the regulations. When we consider the regulations later, there will not be an opportunity for the Scottish Government to respond, so I want to give committee members the opportunity to ask the cabinet secretary any questions and to give the cabinet secretary the opportunity to respond to the Glasgow Bar Association’s concerns.
I want to allow the cabinet secretary to get his responses on the record. The regulations appear to move us away from appointed solicitors and towards appointed firms. The Glasgow Bar Association’s contention is that that would limit choice. I do not necessarily endorse that, although I am interested in the cabinet secretary’s response. The association also has concerns about the potential extension of the role of the Public Defence Solicitors Office. What are your comments on that?
I appreciate that the matter is on the agenda. The regulations put the duty to make solicitors available in Cadder cases on to the Scottish Legal Aid board. The Law Society of Scotland has been fully consulted on the regulations, as have ACPOS and the Crown through the Cadder senior working group.
My question is not so much on the regulations per se as on the operation of the system. Cabinet secretary, you are probably aware that one of the Glasgow Bar Association’s agitations has been about the way in which the duty scheme has operated with regard to weekends. For the past month or so, the public defender has been the person who has been called out as, in effect, the duty solicitor over the Thursday-to-Monday period—when, of course, most of the cases arise from weekend activities of various kinds, with which we are all familiar. That seems to be a not-too-subtle move towards increasing the use of the public defender and reducing the use of private solicitors without that being the subject of detailed consultation. What policy underlies that?
The PDSO was established prior to the current Administration coming into office. Since then, I have said that I will expand the PDSO only where there are clear gaps or public contingencies, and preferably with the consent of the profession. I understand that about 80 per cent of cases will be dealt with by the solicitor of choice, which will not be the PDSO. As I say, discussions are on-going with the Scottish Legal Aid Board and the criminal legal aid committee of the Law Society. The duty plan is not due out until July, so at the moment we are talking about subordinate legislation laying out the framework for duty plans. The matter is on-going and I appreciate the concern that has been raised.
I am grateful, cabinet secretary, for your emphasis on flexibility, which is important, but I am trying to get to the principle that underlies the changes. Can you elaborate on that? In Glasgow, where there is no lack of competition among solicitors, are there plans to expand or spend more money on the public defender system as a consequence of the changes?
That is fundamentally a matter for the Scottish Legal Aid Board. There may be consequent increases in costs, but, if you are asking whether there is a grand plan suddenly to deposit huge numbers of public defence solicitors in Glasgow, the short answer is no.
As there are no other questions for the cabinet secretary, I thank him and his colleagues for their time this morning. It has been very helpful.
Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 (SSI 2011/162)
Item 3 on the agenda is evidence on the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011, which is a negative instrument and is therefore subject to annulment. A motion recommending annulment has been lodged by James Kelly. The committee will now take evidence in order to inform the next agenda item, under which the motion to annul will be considered. Members have copies of the cover note and of written submissions that we have received in relation to the regulations, and those can be found in papers 2 to 6.
I will start with a couple of questions for the representatives of the Glasgow Bar Association. On stipendiary fees, it has been put to the committee in submissions that the bulk of cases that are heard by the stipendiary magistrate court would logically be placed in justice of the peace courts. What is your response to that suggestion?
First, on behalf of the GBA I thank the committee for the opportunity for me and Mr Sweeney to speak to you this morning, and I extend my thanks to Mr Kelly for lodging his motion.
Yes. Members should have received that, as paper 30. It was handed round a short time ago.
Forgive me, convener, but I wish to record—so that we have some sense of the discussion—that I have taken possession of the document quite literally two or three minutes ago.
We all have.
I am struggling to find time to read it while we are asking questions. It is fair to say that we will not be proceeding on the basis that we have understood the document.
That highlights my point. The GBA takes the view that there has been a real lack of consultation, particularly of the procurator fiscal, who is perhaps the most significant person to give her view as regards what cases go to the stipendiary magistrate court. It is quite clear, in the procurator fiscal’s view—judging from the letter—that she puts only sheriff court cases into the stipendiary magistrate court.
Before I invite members to ask other questions, I wonder whether the Law Society would like to respond to the points that have been made about its submission.
I thank members for the invitation to address the committee on this topic. It is clear from our submission and from the letter from Lesley Thomson at the Crown Office that if there were no stip court, the cases that it deals with would go to the sheriff court, but she notes that
I have a couple of questions about the proposed reduction in the fee for stipendiary magistrate court cases from £515 to £390. I ask the Glasgow Bar Association representatives what impact that reduction will have on Glasgow law firms and on the ability of accused persons to access appropriate representation.
It is a well-established principle of law that similar cases should be treated alike, whether they are within the Glasgow jurisdiction or in the Glasgow jurisdiction and elsewhere. If the regulations are agreed to, there will be differential treatment as regards how similar cases are handled in the stipendiary magistrate court and in the Glasgow sheriff court. There will also be differential treatment as regards how similar cases are handled in the stipendiary magistrate court and in a sheriff court outwith the Glasgow jurisdiction.
Of course, the issue has arisen from the need to make savings in the budget, with which no one will disagree, so the instrument seeks to set out a way of achieving that aim. Its proposed cuts in stipendiary magistrate court fees will save £398,000 in 2011-12 and £652,000 the following year. I acknowledge that we will, if the proposal does not go ahead, need to find some other way of making those savings. In its submission, the Glasgow Bar Association states that a
What we are dealing with are the principles of proportionality and equity. Like others, the GBA accepts that in these straitened times funding has to be readjusted, but we believe that there must be equity in the system with regard to the necessary reductions, and that such equity can be achieved by a further £5 reduction across the base for sheriff court and stipendiary magistrate cases, which would equate to somewhat less than 1 per cent of the overall core fee. We feel that such a move would be more equitable across the Scottish jurisdiction, rather than simply targeting the Glasgow jurisdiction and, perhaps, throwing up convention discords within particular cases and certainly within the Glasgow jurisdiction.
Does the Law Society wish to comment not on whether it agrees with that approach but on whether a £5 cut to the core fee would achieve the same savings as the reductions to the stipendiary magistrate court fees?
If we take the 2009-10 figures, a £398,000 saving in 2011-12 equates to a 2.1 per cent cut in the fees paid to Glasgow solicitors. The Government and the Scottish Legal Aid Board have suggested to us that, if this cut to the stipendiary fee does not go ahead, it is likely that the core fee will have to be reduced to £459 instead of the £485 that has been mentioned.
It is also important to acknowledge Mr Sweeney’s comment about swings and roundabouts. The case law quite clearly shows that that was the anticipation in 1999 and, even with the changes to the fixed payment regime that are proposed in the regulations, the swings-and-roundabouts argument still holds good.
Members, we are very tight for time so it would be helpful if you could keep your questions as brief as possible.
I want to be clear about the position here, and I have two issues to bring up. The first relates to the change from the current position. I want to ask the Law Society if I have it right that the current block fee for the stipendiary magistrate court appearance is £515. That will go down to £485 for sheriff court appearances and £390 for the stip. Indeed, it would have gone down to £340.
That is correct, except that it would have gone down to £350 under the original proposals and it was in discussions between the cabinet secretary and the Law Society that the figure was increased to £390.
Regardless of anything else, stip court and sheriff court appearances are dealt with on the same basis, so that for those who appear in the stip court there will be an immediate loss of £125 in the block. That means that there will be a disproportionate loss to mainly Glasgow solicitors who appear before the stip court. Before we look at whether it is justified, do you accept that as being the reality of the position?
It is a substantial cut to the current position in which there is equity between the sheriff court and the stipendiary magistrate court. However, on the evidence that is in the submission, you can see that a number of cases do not go before the stipendiary court because of their complexity and seriousness. We believe that averaging out the payments on the basis of seriousness and complexity of the cases will mean appropriate remuneration.
I want to examine that a bit further. The key issue is the clarity of what the courts actually do. As I understand it, cases are brought as either custody cases or cited cases. In either event, in Glasgow at the lowest level, they will be marked as JP cases, if appropriate, and they will go to the JP court. Is that correct? Is the nuance that if the accused is in custody, they will appear before the stipendiary magistrate to avoid having a separate custody court?
That is our understanding of the situation.
Yes.
Yes.
Everyone is agreed on that. Thereafter, we would go higher up the scale. If Glasgow’s procurator fiscal’s statement is correct, those cases that are marked for the stipendiary magistrate court in Glasgow would go before the sheriff court in other jurisdictions. That means that other cases, other than for custody appearances, would otherwise go to the sheriff court. Is that correct?
Absolutely.
Yes.
On the distinctions between JP, stip and sheriff courts, although there is no precise science for the marking of such cases, what you have said is correct.
So, the only distinction that the Law Society is relying on is that certain of the more serious cases do not get marked for going to the stipendiary magistrate court because of Crown Office policy, but they nevertheless go to the sheriff court in Glasgow. All the stip cases are sheriff court cases, but the sheriff courts do not get them all because some of them are occasionally more serious.
Yes. It must also be borne in mind that Glasgow has a much higher proportion of serious cases than any other jurisdiction. Until very recently, the Glasgow jurisdiction had the busiest criminal court in Europe, so there is a weighted bunch of very serious cases.
On the type of case we are talking about, one of the solicitors involved has sent me an example of a case that went before the sheriff court in Ayr. Obviously that was not a Glasgow case. It involved the stealing of a pot of yoghurt and a jar of honey. It appears that in some jurisdictions at least, the type of cases that go to the sheriff court would not qualify entirely as hugely serious cases. They sound like JP cases, if I dare suggest that to the Law Society.
Of course, there will be variations throughout the country, and what is considered to be serious in one place may be considered to be not so serious in another. There may be a breach—
I suggest that stealing a pot of yoghurt and a jar of honey would not in any jurisdiction of Scotland be regarded as the most serious of the criminal cases that come before the court.
Indeed not, but as recently as yesterday I saw cases in the stipendiary magistrate court and in the JP court in Glasgow that would not have counted as extremely serious. There was also a case involving a young man who had head-butted a police officer: that is by all accounts a serious case, but it was in the JP court in Glasgow. Another case involved a man who had to lose his driving licence for a traffic violation and would therefore lose his job, and it was being dealt with in the JP court at the same time—or rather, an hour and a half beforehand. In the stipendiary magistrate court in Glasgow, there was a case in which a woman had broken a police officer’s finger when she was being handcuffed.
Just to follow up on that, the crucial point is the status of the courts, which is important in deciding where we go in terms of the fees.
I refer you to appendix B of the GBA’s submission. Even a cursory look at it may give you an indication that the premise that those cases are less complex is not the case. There is a sexual aggravation in one case and a football aggravation in another, and there are three benefit-fraud cases, which may deal with matters involving tens of thousands of pounds and are evidently complex. A cursory look at one day’s business in the stipendiary magistrate court gives you an indication that there are many complex matters that we have to deal with.
It is the number and the percentage of those serious cases in the stipendiary court that is important. The figures seem to show that the cases that would, on balance, relate to the sheriff court are relatively small in number: it is never 100 per cent, for instance.
The statistics were produced retrospectively, after the proposals were made. As I said, there was no consultation of the fiscal about any of it—until yesterday, as I understand it. The statistics are in the Executive note, and in the paragraph that precedes the one that you quoted it is accepted that no indication is given of the seriousness of cases. The statistics have no scientific basis and are an attempt to produce a cohesive argument, which—with respect—has been totally contradicted by what the procurator fiscal said.
Does Mr Clancy want to comment on that?
I want to bring in Mr Maxwell.
May we first hear from Mr Clancy on that point?
Briefly, please.
I have to trust the statistics. Statistics have to be developed retrospectively; they cannot be developed prospectively. It is important that we acknowledge that the Government was acting in good faith in producing the information that is in the Executive note.
The Law Society of Scotland said in its submission to the committee:
Let me deal first with the Law Society’s submission. The Law Society’s list of cases that it said do not appear in the stip court highlights the society’s complete misunderstanding of the stip court’s role. The Law Society referred to breaches of community service, which do not fall under the fixed-fee arrangements that the regulations deal with, and to probation orders, which also do not come under the remit of the regulations. It mentioned fraud, but as I have pointed out, appendix B of our submission, which shows one day’s business, shows that the stip court considered three benefit frauds on that day. There was also a sexual aggravation case on that day. A number of complex matters are dealt with in the stip court.
I accept your point about sensitivity. You did not mention complexity, though.
I mentioned that three benefit frauds were among the 25 cases that were considered in the stipendiary magistrate court on one day—it was 3 March. Those are complex cases, and I understand that the fiscal has recently moved such cases into the stip court because of pressure of business.
So should I understand that you do not accept that, in general—I know that there is an overlap and that we can all point to individual cases that can break the rule—more complex cases are prosecuted in the sheriff court rather than in the stip court?
I take you back to what we said a moment ago. It must be appreciated in talking about complex cases in the Glasgow jurisdiction that it is the biggest, busiest and most complex jurisdiction not only in Scotland but in the whole of the United Kingdom. If one has to decide whether to put the most complex case into the sheriff court or the stipendiary magistrate court, I think that, on the whole, one would put it into the sheriff court, but that does not mean that the cases that are placed before the stipendiary magistrate court in Glasgow would not be regarded as complex in any other sheriff jurisdiction. The Glasgow jurisdiction is different. That is why it has at least four stipendiary magistrate courts, at least three or four justice of the peace courts and the full plethora of sheriff court cases running every day.
I understand what you are saying, but I do not accept that saying that a jurisdiction is big or busy means that it is complex; it simply means that it is big or busy and that there are more cases in it. It does not necessarily mean that it is complex.
We are short of time. You should be brief.
I would appreciate an answer on that from the Law Society, given the comments on the matter.
On the £5 proposal?
Yes.
A number of individuals put that proposal to the Law Society and its negotiating team on a number of occasions. I put it forward at the Law Society council meeting.
I presume that it was rejected at that meeting.
It was, and I will tell you why. All the other faculties were given the option of sacrificing Glasgow, which would take a larger hit in the cut in its stipendiary magistrate fee or, if they did not agree to that, they would be worse off because there would be a further cut in their core fee. It is significant that the vote was 18 to one—obviously, Glasgow was the one. If the others had voted against that, they would have suffered financially. The GBA’s objection to the Law Society throughout the process has been that it has necessitated self-interest. Those who voted to make Glasgow take a bigger hit were self-interested. I resigned from the Law Society council because that had been done.
We need to get an answer from the Law Society on that particular issue, but you seem to be suggesting that your colleagues throughout Scotland are extremely mercenary for the sake of £5. I will pass on that. We will move on to the Law Society.
It is important to realise that the Law Society represents all solicitors in Scotland, including solicitors in Glasgow, and that it operates on issues of principle. The principles involved were to maintain access to justice, to ensure that solicitors got a fair remuneration for work that had been done, and to get generally fair treatment with a swingeing Government cut of 8 per cent in the legal aid budget. It is important that we appreciate the context.
Yes, indeed. However, first of all, I would like to make a comment about that faculties meeting. The stipendiary court is, of course, an issue that is unique to Glasgow but I must point out that other faculties across Scotland that were represented at that meeting will also be affected by the various measures in the regulations. For instance, the PDSO expansion will for the first time ever take a 35 per cent share of the duty scheme from people in West Lothian, while colleagues in the Scottish Borders who would have benefited from a full-scale expansion of the PDSO because the office would not have opened in their area will now have their core fee cut. Moreover, the cuts to travel fees will affect colleagues in rural areas. The situation is exceptionally difficult. An 8.2 per cent cut will affect criminal legal aid lawyers throughout Scotland and the issue was reflected on in a mature way at the faculties meeting that has been mentioned.
We have time for only two more questions.
As long as it can be a two-part question, convener.
If you are quick.
Thank you very much.
Absolutely.
Does Mr Alexander or Mr Clancy disagree with that statement or question its veracity? Yes or no will do.
No, although—
Thank you. That is okay.
I would like to hear Mr Alexander’s answer.
With the greatest of respect, Mr Maxwell, those were my questions.
But surely it is a matter for the witness to provide a full answer.
It is actually a matter for the convener.
Do you have anything to add in response to Mr Butler’s question, Mr Alexander?
Yes—and thank you very much for the opportunity to do so. I will be very brief.
That is really a matter of opinion. I much prefer the matter of fact with which you answered my initial question. Thank you for that.
Thank you very much.
I have to say that I was not satisfied with the Law Society’s response to my earlier question about the GBA’s alternative proposal that reducing the core fee for all legal aid grants by £5 would derive the same amount of savings as the proposed reduction in stipendiary magistrate court fees. Are those figures accurate? If the Law Society does not accept them, what sort of reduction does it suggest would be needed to derive those savings?
The fact of the matter is that we proposed a package of savings to get the equivalent of the Government’s original anticipated saving of £4.25 million. Therefore, the figures have to be taken in the round. It may be the case that the £5 cut would be an equivalent of the £380,000 in this year and the £600,000 next year, but one has to understand the approach that the society has been taking: we promoted these changes on the basis of the package.
Thank you very much for your time. I think that all the points have been exhausted, but is there anything further that you would like to add briefly?
Myself and Mr O’Hagan are somewhat different from the chaps from the Law Society of Scotland. There has been an overfocus on statistics. I do not deal with an industrial process; I deal with human beings, with all their complexities and vulnerabilities. Whether those human beings are complainers or accused persons, they have to be dealt with as individuals. Simply looking at what a charge is in a case does not reveal the complexity of the case or the complexities and vulnerabilities of the individuals involved and the protections that are required in order properly to provide a defence to those individuals. It is very easy to get lost in statistics and to lose sight of the individuals whom the statistics are meant to serve.
I just want to add to Mr Sweeney’s comments. We do not want this simply to be about what solicitors are being paid. There is a public element. What has concerned the GBA from the outset is that the Law Society has failed properly to take into account the public interest. I say that for two reasons: first, the negotiating team did not at any time consult the access to justice committee of the Law Society; secondly, when at a council meeting the negotiating team was challenged about the potential article 6 contraventions in what it was proposing, the vice-convener said that if the solicitors were successful it would be a hollow victory, because they would simply have cuts made elsewhere. In our view, the public interest—particularly of the citizens of Glasgow—is not being properly taken into account.
Thank you. Does the Law Society wish to add anything?
The society has a statutory obligation to promote the interest of the solicitors profession and the interests of the public in relation to that profession. Of course we have the public interest at heart when thinking about access to justice issues. The internal management of our committees is another matter. However, as you will have seen from our submission, the three principles to which we adhere in these regulations are access to justice, proper remuneration for the work done and overall fairness within the savings package. It is unfortunate to suggest that the society does not have access to justice concerns at its heart.
Thank you all for your time. I suspend the meeting briefly to allow a change of witnesses.
I welcome back the Cabinet Secretary for Justice. I apologise for the delay, cabinet secretary. I also welcome your officials, Mr Colin McKay, the deputy director of the legal system division; James How, head of the access to justice team; and Fraser Gough, from the Scottish Government directorate for legal services. I invite you to make a short opening statement.
My letter to the committee, which was sent in advance of today’s meeting, makes clear the financial context in which we are operating and the savings in legal aid that need to be made in 2011-12. As the committee has heard this morning, making those savings has meant taking some difficult decisions, which have not been taken lightly. I have made it clear that I must take action now to ensure the long-term sustainability of the legal aid system and preserve access to justice.
Thank you. I invite committee members to ask questions.
It was brought out in the previous evidence session that the Scottish Government consulted Lesley Thomson, the area procurator fiscal, on the issue only yesterday. Why did the Government not speak to Ms Thomson about the issue until so late in the day?
We have regular on-going discussions with the Crown. Ms Thomson has a particular interest, given where she is located, but such matters are not considered in isolation. We have regular on-going discussions.
I am not really satisfied with that answer, but I will move on to my next question.
The proposal does not affect only Glasgow firms. Any firm in Scotland that has a client who appears before a stipendiary magistrate will be affected. In my 20 years’ experience as an agent, I appeared in stipendiary magistrate courts on behalf of accused from Edinburgh. The fee reduction relates to the court, not the geographical location of the lawyer.
I come back to a comment that you made in your opening statement. Am I right in assuming that, if the regulations are lost, it is not only this particular part of the package of regulations that is lost but all the regulations in the package? The whole package of regulations will be lost, with the likely impact that the total savings that are required in the coming financial year will still be required in the coming financial year, but by the time that we get to new regulations later in the year, at some point in the new session of Parliament, there will be much less time. Is the impact of losing the regulations today that the same amount of savings will have to be made, but in, if you like, half the time?
Yes, that is the case. The situation is that we have to make savings and we entered into discussion with the Law Society of Scotland. SLAB advised us that we should adopt a particular position on the expansion of the PDSO but the profession did not want that. We were happy to agree with the Law Society of Scotland that, although the savings had to be made, how the cake should be cut was a matter for discussion and sharing. If the regulations fall, further regulations would have to be introduced in due course but, as you correctly point out, the same amount of savings would have to be made and there would be a shorter time in which to make them, so the cost to the profession would be deeper and wider.
If the regulations were to be rejected and new regulations introduced—I know that this is a hypothetical question—where would the cuts have to be made? I am struggling to think where they would be made. Do you have any idea where they would be made if they have to come later in the year?
There is limited room for manoeuvre. You could expand the PDSO—
—which has already been rejected.
Yes, or the cuts would have to be deeper and wider. The fees that we propose to pay in sheriff courts and justice of the peace courts would therefore have to come down, so there would be a significant loss across the board.
If we were to make the savings later in the year, we really would have to make them on the summary side because, on the civil and solemn side, savings take much longer to come in. Therefore, if we were to make savings on the summary side later in the year, they would have to be a lot deeper to get them into 2011-12.
I struggle to get a view of what sort of cases go to the stipendiary court. We had good evidence earlier on from the Law Society and the GBA, but I am troubled by the statement under the fourth policy objective in the Executive note that is attached to the regulations, which says:
We certainly accept Lesley Thomson’s statement. There is a complexity about how cases end up in a particular court. There is a distinction between what the case is marked for and where the case is heard. I think that you have already discussed custody cases. It is also the case that, on occasion, trials will be marked for—
With respect, we were also told that that did not affect the categorisation of the case for legal aid, so it is irrelevant for the regulations.
It should not affect the categorisation of the case for legal aid, so I accept the point that it does not make a huge difference for the regulations. It sometimes has an impact because it is not always easy for the board to tell what is happening in a case and how it has ended up in the stipendiary court. There are problems with that, which is one of the reasons why the matter has been more confusing than might have been hoped.
Sorry, what is the problem? I do not quite follow that. It seems that cases are clearly marked up by the procurator fiscal’s department. What is the problem with that being translated?
Our understanding is that the board often has difficulty in determining the nature of a case when it receives solicitors’ accounts. It is not always the case that it is made clear to the board that a case has been marked for a JP court. The board is in discussions with the Crown about ways to resolve that in the future, but that is the current position.
I will make a helpful suggestion on other savings. One of the issues that the Government has taken into account is the ratio of early guilty pleas in the stipendiary court. I am told that part of the reason for that ratio is difficulty in relation to access to the fiscals in the sheriff court. Would that not benefit from close examination? Resolving that successfully could achieve savings.
Early guilty pleas are always to be appreciated, not simply because of the cost saving but because of the inconvenience to victims and witnesses that is otherwise caused. In many instances, those matters rest within the Crown’s control. To be fair, I know from speaking to the law officers that they are well aware of the issue. Fiscals seek to try to encourage early guilty pleas, and our Administration is more than happy to do what it can to continue to encourage that approach. That is why intermediate diets were introduced many years ago. It is also why fiscals make themselves available.
Am I right in thinking that the original idea—increasing the size of the PDSO to a far greater extent than is now planned—would have affected all solicitors in Scotland? We had some evidence from the Law Society that there could have been particular problems in the Borders and various other rural areas. Am I also right in thinking that the savings package that is now before us, which was negotiated after that initial position statement, has taken all those things into consideration?
Yes, that is a very fair point. I have never suggested that these are anything other than cuts—indeed, we have been quite clear about that—and, as such, I am extremely grateful to the Law Society for its forbearance. Basically, we have asked it to tighten its belt considerably. A proposal was put forward, and the society asked whether it was negotiable or whether our course and direction were set. We said that our course was not set, that all we had to do was to make the appropriate savings and that if it could find a way of making those savings we would be happy to work with it. The society then came back with these proposals. We are grateful to it for its sufferance but the fact is that these savings have to be made. Solicitors in rural practices have been complaining about the loss of travel fees and we accept that there is an issue that is specific to Glasgow—excepting, of course, the odd occasion when solicitors outside the city take on clients in the city. The regulations apply across the country and have the consent of the Law Society, which represents the overwhelming majority of criminal law practitioners. As I have said, if we do not make these cuts, what will be introduced will be deeper and worse.
The regulations were laid on 28 February, or 28 days before the Parliament sits for the last time this session. A lot of issues have been raised with members in recent weeks. Could the regulations have been laid earlier? Could the consultation process, for example, have started earlier?
Actually, the Law Society asked us to delay the regulations, which were ready before Christmas. It said that it wished to consider another method instead of the PDSO route, so it consulted its respective faculties the length and breadth of the country and came back with a different direction. Thereafter, the proposal had to be worked through. We have sought to strike the right balance between making the appropriate cuts and taking on board the profession’s wishes. As I said, it was the society that asked us to ensure that we proceeded at an appropriate pace.
I should also point out that, as a result of that further discussion, specific account was taken of issues around the stip fees, which were then increased from £350 to £390. Had we laid the regulations earlier, the figure would have been lower.
As committee members have no further questions, I move to the next item, which is the formal debate on motion S3M-8085, recommending annulment of the regulations on which the committee has just taken evidence.
The issues have been well rehearsed in the evidence session. At the outset, I should say that I accept all the SSI’s proposals for achieving the required savings, except those in regulations 7 and 9, which relate to the stipendiary magistrate court. That proposal is badly thought out. It will result in unequal treatment and will, in particular, penalise Glasgow law firms which, in the main, service the clients in those courts. There is also an access to justice issue, because the service that is provided in those courts will be undermined.
I support James Kelly’s motion. The issue gave me considerable difficulty, and I wanted to be clear that I was acting not purely from a Glasgow perspective but with a wider view in mind. I pay tribute to the efforts of the Scottish Government and the Law Society to resolve a difficult situation.
I am sure that one thing on which we all agree is that we wish that we were not here. I accept the position of Opposition members in arguing their case in what is a very difficult situation, but we are in that difficult situation because of the cuts that the UK Government has forced upon us.
I support what Stewart Maxwell has said. He has covered a lot of the points that I wanted to make. I reiterate the issue of the effect that such a change would have throughout Scotland, particularly in rural areas. The package that was negotiated appeared to cover the whole country and tried to apply the savings as evenly as possible. It would be unhelpful to come along and arbitrarily take out one part of a package and agree to the rest. There would be a hole in the budget, the Government would have to come back to the issue later in the year and it would adversely impact on all other parts of the country.
No other members have indicated that they wish to speak. I sense that it will be a relatively close vote so I will set out my thoughts—
Before we take a vote, on a point of order, I ask for clarity from the clerks about the possibility of bringing back an instrument without provisions on stipendiary magistrate fees. As I understand it, that could be done—the only difference being that it could not be annulled by the Parliament. There is an indication that no one here would wish to annul the regulations, were those provisions removed. Is that the case?
I suspect that the cabinet secretary could respond to that when he makes his closing remarks.
We recognise that this is a matter of great difficulty and that cuts have to be made. It has been suggested that it would be possible to re-lay the subordinate legislation with the provisions relating to the stipendiary magistrate court deleted. That is the case in theory, but we have all along sought to achieve as much consensus as possible in discussions with the profession. We varied the PDSO expansion when it needed to be varied, we varied the cut in the core fee and we made an upwards variation in the stipendiary magistrate court fee when we thought that legitimate points had been made. Therefore, we have sought to strike the right balance that reflects Scotland’s varied jurisdictions and geography.
Thank you very much, cabinet secretary. I invite James Kelly to wind up and indicate whether he will press his motion.
I want to make a couple of brief points.
The question is, that motion S3M-8085 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 4, Against 4, Abstentions 0.
Under agenda item 5, we have 14 negative instruments to consider. The relevant papers are 7 to 22 and 29.
Officers of Court’s Professional Association (Scotland) Regulations 2011 (SSI 2011/90)
The Subordinate Legislation Committee reported that the regulations failed to follow proper drafting practice in relation to how to access an external document, but it accepted that that was unlikely to have any practical effect on the operation of the regulations. Do members have any comments? If not, are we content to note the regulations?
Licensing (Food Hygiene Requirements) (Scotland) Order 2011 (SSI 2011/128)
The Subordinate Legislation Committee drew the order to the committee’s attention on the basis that it doubted whether the order was intra vires, but it reported that the Scottish Government intends to revoke and remake the order. The Justice Committee will consider the new order at its final meeting tomorrow. Do members have any comments? If not, are we content to note the order?
Parole Board (Scotland) Amendment Rules 2011 (SSI 2011/133)
The Subordinate Legislation Committee reported that the rules contain a minor drafting error, but it accepted that that was unlikely to have any practical effect on the operation of the rules. Do members have any comments? If not, are we content to note the order?
Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (SSI 2011/134)
We considered the regulations at last week’s meeting, when we agreed to write to the Scottish Government to seek further information on clawback in matrimonial home cases. The Scottish Government’s response can be found in the annex to paper 10. Are members satisfied with the response to the point that Robert Brown raised?
Yes. I have no further comments on the issue.
Do other members have comments? If not, are we content to note the regulations?
Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 2011 (SSI 2011/137)
Extreme Pornography (Electronic Commerce Directive) (Scotland) Amendment Regulations 2011 (SSI 2011/170)
The Subordinate Legislation Committee reported that the meaning and effect of regulation 4(2) in SSI 2011/137 could be clearer. The Scottish Government subsequently laid SSI 2011/170 to address those concerns, and the Subordinate Legislation Committee was satisfied that the amendment regulations made the legislative intention clear. Do members have any comments? If not, are we content to note the regulations?
Insolvency Act 1986 Amendment (Appointment of Receivers) (Scotland) Regulations 2011 (SSI 2011/140)
The Subordinate Legislation Committee drew the regulations to the committee’s attention on the basis that the Scottish ministers had elected to use negative procedure when the Subordinate Legislation Committee considered the use of affirmative procedure to be more appropriate, because the regulations effect a substantive change to the law and modify primary legislation in doing so. Do members have any comments? If not, are we content to note the regulations?
Debt Arrangement Scheme (Scotland) Regulations 2011 (SSI 2011/141)
The Subordinate Legislation Committee reported that the regulations contain a minor drafting error but that it is unlikely to affect their operation and that the Scottish Government will correct the error at the first legislative opportunity. The committee also reported that the form or meaning of regulation 39(2) could be clearer.
I have read all the information and the various representations, which include submissions from Citizens Advice Scotland and Money Advice Scotland. In a past incarnation, I was a director of trading standards, when I had much to do with money advice and debt counselling. Having looked at everything that has been put to us, I think that what is proposed in the regulations is the right way to go.
I know that the regulations have generated a number of submissions. The Carrington Dean Group, in particular, has expressed concerns about potential tax-raising and conflict of interest issues. However, after considering the submissions in full, I am persuaded by the comments of Citizens Advice Scotland and Money Advice Scotland.
Like other members, I read with some concern the submissions that we received. Mr Kelly mentioned some of the points that have been made. I point to the letter that we have received from the Minister for Community Safety, which goes through all the points that have been made and addresses the tax-raising and conflict of interest issues, in particular. I accept the arguments that are made in the letter. The minister has dealt with the points perfectly reasonably.
Are members content to note the regulations?
Police Grant (Carry-forward Percentages) (Scotland) Order 2011 (SSI 2011/148)
Licensing (Minor Variations) (Scotland) Regulations 2011 (SSI 2011/151)
Removing from Heritable Property (Form of Charge) (Scotland) Regulations 2011 (SSI 2011/158)
Advice and Assistance and Legal Aid (Online Applications etc) (Scotland) Regulations 2011 (SSI 2011/161)
The Subordinate Legislation Committee has not drawn any of the instruments to the attention of the Parliament or the committee.
The Advice and Assistance and Legal Aid (Online Applications etc) (Scotland) Regulations 2011 are undoubtedly sensible, but I put on the record that it occurred to me to wonder what will happen when computers crash. In order really to foul something up, you need to have it on a computer. I wonder whether we will finish up in a position in which the only way in which someone can lawfully do something is by computer. If that is the case, it worries me ever so slightly.
Do you want to seek clarification from the minister ahead of tomorrow’s meeting?
It may be worth our observing that there must be a risk that the Government’s computer system will go down. We should ask the Government whether that has been thought of.
I accept what Nigel Don says, but I understand that the instrument merely makes online applications an option. It says that an application
I accept that, but I understand further that, effectively, it allows the rules to say that that is the way in which applications shall be made.
We will carry forward the instrument to tomorrow’s meeting and get clarification on the matter. Are members content to note the other instruments?
Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (SSI 2011/163)
The Subordinate Legislation Committee has not drawn the regulations to the attention of the Parliament or the committee. The committee has received a written submission on the regulations from the Glasgow Bar Association, which can be found in paper J/S3/11/9/21.
The matter was touched on in the earlier evidence session with the Cabinet Secretary for Justice. The Glasgow Bar Association has expressed concerns about choice being limited and the potential expansion of the PDSO. However, having listened to the cabinet secretary, who indicated that he is prepared to work with the Law Society and other bodies to ensure that the regulations are implemented appropriately, I am content to support them.
Are members content to note the regulations?
Act of Sederunt (Fees of Shorthand Writers in the Sheriff Court) (Amendment) 2011 (SSI 2011/166)
The Subordinate Legislation Committee has not drawn the instrument to the attention of the Parliament or the committee.
I note that the instrument provides for an increase of 3.6 per cent in fees to shorthand writers. Given that there have been reductions across the board in legal fees and so on, it is not entirely clear to me why fees in this area are going up. I do not propose to make an issue of it, but I make that observation in passing.
Are members content to note the instrument?
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