Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 [Draft]
Good morning and welcome to the Justice Committee’s 25th meeting in 2015. I ask everyone to switch off mobile phones and other electronic devices as they interfere with broadcasting even when switched to silent. We have received no apologies.
Agenda item 1 is the formal debate on the motion to approve the draft Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015. As members will recall, we agreed to postpone this item after last week’s evidence-taking session, and I therefore welcome once again Paul Wheelhouse, the Minister for Community Safety and Legal Affairs. I also welcome the justice department officials who are supporting the minister, but I must remind everyone that, because this is a debate and not an evidence-taking session, the officials are not permitted to take part.
I invite the minister to speak to and move the motion.
I am grateful to the committee for allowing further time for consideration of the legal aid arrangements for the new sheriff appeal court. Last week, my officials met representatives from the Law Society of Scotland to reassure them of the Government’s commitment to continue to engage with them on this important issue. Following that discussion, I remain of the view that the draft regulations make appropriate legal aid provision until a review of the court’s operation can be undertaken early in the new year.
As the example accounts that have been shared with the Law Society and the committee show—I am aware that there has been some criticism of the examples, and I hope to be able to address that—appropriate fees will be available to solicitors who conduct appeals in the sheriff appeal court through the detailed fee arrangements. The Scottish Legal Aid Board estimates that a Glasgow solicitor could earn fees and outlays of anything from £400 to £600 and more; indeed, the example account in the committee papers demonstrates how a fee of £606.77 is arrived at in a hypothetical appeal against conviction. As I have said, I am aware that the Society of Solicitor Advocates has been critical of some of the numbers, but I should also point out that a solicitor who represents a client from the original defence of the case through to appeal at the sheriff appeal court could be paid more than £900 per client.
It is important to emphasise that the payments for the new appeal court are calculated on a different basis from the block fee that is paid to counsel conducting an appeal in the High Court. That fee does not make detailed provision for travel and other expenses, and the detailed fees that are proposed for the new court will allow a proper assessment to be made of the work that is undertaken by individual solicitors in each case. That, though, is not the end of the process and, as I have said, we will continue to engage with the profession to review the fee arrangements for the new court and the legal aid system more widely. Indeed, the data that we will develop through the use of detailed fee arrangements will allow us to assess in due course whether there is a case for block fees to be applied for the sheriff appeal court, and the information that solicitors provide will help to inform that process.
Members have raised concerns about the costs of travelling to the new court. Mr Finnie highlighted an example, and I hope that we have addressed that in the information that we provided to the committee for this meeting. I assure members that travel fees will continue to be available and solicitors will not be disadvantaged relative to the current arrangements; in fact, the travel fee arrangements are in effect similar to those that are already in place for solicitors attending court in Edinburgh. For these types of appeals, solicitors will often choose to instruct an agent in Edinburgh, as they do at the moment—it is important to stress that—instead of travelling.
The Scottish Legal Aid Board will take a pragmatic and flexible approach to sanction for counsel, which will help solicitors to make the transition to the new sheriff appeal court. If it is evident that solicitors do not want to take on this work in the immediate term, SLAB has indicated that it will sanction counsel for cases in the new court.
We are considering whether it will be possible, in due course, to use an accelerated process to amend the regulations and allow for what would, in effect, be a guarantee that sanction for counsel will be given in cases to remove doubt from the minds of solicitors, some of whom, I understand from the discussions that we had with the Law Society, are concerned that there might be a risk of taking on a case only to find that they are not able to represent the client in the sheriff appeal court. That will ensure that, if a solicitor chooses not to appear in the new court, they will be no worse off than at present. More important, the client will be represented and there will be equality of arms.
As we discussed last week, solicitor advocates will not be able to charge counsel rates in the sheriff appeal court, but they will have the option to provide representation in their capacity as solicitors. I understand that that is not ideal from a solicitor advocate perspective, but it reflects the existing legal aid situation for civil sheriff appeals and other proceedings in the lower courts, where solicitor advocates do not exercise their extended rights of audience.
We have already begun discussions with the Law Society, the Society of Solicitor Advocates and the Faculty of Advocates on the role of solicitor advocates in comparison with counsel with a view to addressing the wider issue. I must put on record that I have the utmost regard for solicitor advocates and their work, and I undertake to meet their representatives in the near future—and well ahead of the legal aid arrangements for the new sheriff appeal court being reviewed—to discuss the issues from their perspective.
I hope that my letter and the further clarification that I have provided today will enable the committee to support the draft regulations and allow the new sheriff appeal court to begin its work. Finally—I mentioned these figures last week, but given the nature of the discussion that we had, I want to make sure that they register—I note that we are talking about less than 1 per cent of the cases that are granted support by SLAB. Around 30 solicitor advocates are doing work of this nature and might therefore be affected by the measures, but in the most recent year for which SLAB has data, only six did work that was worth more than £5,000 in fees. I hope that that puts into perspective the scale of the potential impact on individual businesses and the number of individuals who might be involved. That said, I appreciate that the issues are serious for those individuals, hence my commitment to meet the Society of Solicitor Advocates to discuss the matter.
I hope that what I have said helps to clarify the position somewhat, but I am happy to engage in the debate.
I move,
That the Justice Committee recommends that the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 [draft] be approved.
I will begin with Roderick Campbell, who has just indicated that he wishes to speak. Rod, do you wish to make a declaration of interests before you start?
Thank you for reminding me, convener.
I did that just in case you get sued, you understand.
I refer members to my declaration of interests as a member of the Faculty of Advocates.
In that context, I direct you to the impact of sanction for counsel. Last week, my colleague Margaret Mitchell referred to a section that applies only to civil proceedings. I am grateful for your comments about further discussions on extended rights of audience, but can you say any more about the impact of sanction for counsel with regard to these types of proceedings?
Can you remind me of the point that Margaret Mitchell made last week?
She referred to section 108 of the Courts Reform (Scotland) Act 2014, which relates to sanction for counsel in the sheriff court. However, that provision, which gives the court the power to decide whether sanction for counsel is appropriate, applies only to civil proceedings and is not relevant to criminal legal aid.
We are trying to ensure that the provisions provide equality of arms. I take the point that Margaret Mitchell made last week and I hope that in the evidence that we have presented in our letter to the committee we have addressed a large number of the concerns that were raised last week.
There will be a number of areas where we might need to review the performance of the court in practice. The issue around the regulations as proposed is that, by requiring solicitors to provide information on detailed fees, we will be able to build up knowledge of the costs of taking forward a case and to look sympathetically at the need for block fees and other arrangements that might be put in place in future to assist solicitors and reduce the bureaucracy that is involved in drawing down legal aid. Where solicitors and solicitor advocates and counsel are doing appropriate work on behalf of their clients, we do not want to create unnecessary bureaucracy.
Section 108 of the 2014 act is about whether the cost of counsel can be recovered from the unsuccessful party in civil litigation. We can come back to the committee on that in due course, but it is not entirely relevant to the point that is being debated with regard to the draft regulations.
Okay. Moving away from sanction for counsel, my second point is about the £260,000 of savings that the Law Society had predicated by alternative fee arrangements. In your letter to the committee, you say:
“It is unclear how such savings would be achieved from the options proposed by the Law Society.”
Is there anything—
I remind people that this is not an evidence session but a debate. It is all right—I am quite flexible about it—but I remind the member that the format is more of a debate. You might want to make a little speech instead. If you raise issues, we hope that the minister will answer them in winding up. Do you wish to put your point in a different way?
On the £260,000 figure, with the best will in the world, the committee is unable to take a view on that alternative proposal because insufficient information has been presented to us.
My approach to this debate is not so much about what solicitors or solicitor advocates are paid; the essential thing is access to justice for people on low incomes. My concern is that, if solicitors will not perform those duties on the fees that they receive from the Scottish Legal Aid Board and people are unable to get a solicitor advocate to represent them in the sheriff appeal court if they are supported by legal aid, they will not get the same access to justice as people who can pay the private fees that solicitors or solicitor advocates charge. That would mean that people on low incomes would be disadvantaged.
In essence, legal aid is a benefit for people who are on low incomes; it is paid to help them to pay their legal costs. A cut to that budget is a cut to a benefit for people who are on low incomes. That is my main concern, and I am afraid that it has not been allayed in the past week by the information that we have received. I am not convinced that solicitors will continue to do the work or that solicitor advocates will be prepared to do the sort of work that they have done for the fees that they will get from the Scottish Legal Aid Board. Unless that concern can be allayed today, I consider that I will have to oppose the draft regulations.
I know that there is a certain amount of time pressure, but the Government has had a long time to think about the matter. The draft regulations have been in front of the committee for only a week, but the Government has had quite a long time to consider them and get them right, and I am not convinced that it has done so.
My query, which the minister could perhaps respond to when he sums up, relates to the letter from the minister, which is on page 37 of paper 1. There is a suggestion that
“the unintended effect”
of not approving the draft regulations would be to leave
“solicitors worse off for representing the client in the original defence of the case”.
I do not understand that argument at all, and I would be interested to hear the rationale behind that statement.
First, I draw the committee’s attention to my entry in the register of members’ interests as a member of Justice Scotland.
The minister has chosen to characterise the debate as an issue of fees for the legal profession. Last week, he quite inappropriately cited comparisons with the minimum wage. We do not pay legal aid for the good of the legal profession; as Elaine Murray said, we pay it as a public benefit to secure access to justice.
The minister said that legal aid fees are reasonable rates of pay for the work that is involved, but it is clear that, in this instance, that is not the case. We have had a significant amount of correspondence challenging the figures that the minister has given.
The sheriff appeal court is a new court, but there has been ample time to consider the matter. It is really not our place to avoid scrutiny because the minister has left it all to the last minute. The court reforms are about streamlining and modernising and were not meant to be a cost saving exercise, yet we seem to be getting just that on the coat tails of the reforms.
I stress that the appeals will be no less demanding than they were before and they will be just as important to the appellant, yet we are facing appellants with an inequality of arms. We have heard that advocate deputes will be making the case for people who have no representation whatsoever, given the tight timescales. The draft regulations are hasty and ill thought out and I will not support their passage today.
10:00
Good morning, minister. I am grateful that you have come back with extra information and tried to provide some clarity. Unfortunately, I do not think that you have succeeded.
There is always time.
Given the representations that we have had and the valid points from those who are affected by the draft regulations, it seems that the contingency—which is an accurate description of what you are now proposing—and the transitional arrangements have led to a bit of uncertainty. That is not good for the establishment of the new appeal court. It may be that only 1 per cent of the cases and only 30 solicitor advocates are affected, but there will still be access to justice issues for every individual who might be looking for representation from those solicitor advocates.
There also seems to be some dubiety about the five accounts of expenses that were drafted to show different scenarios, and they are being challenged. There is also real concern that, if solicitors take on some work in the sheriff appeal court but then find that they are on court duty or that they have other local commitments, they might be in contempt of court. You covered that in your opening statement, but it was not covered last week, when we could easily have approved the draft regulations. How many other issues are there that could affect access to justice?
We have already had the Society of Solicitors and Procurators of Stirling and the Falkirk and District Faculty of Solicitors advise that they would not take on any appeal court work. That opinion has been reinforced by the Law Society representations, and many legitimate points have been raised by solicitor advocates.
In one way or another, minister, I think that the wisest thing would be for us not to agree to the motion on the draft regulations today but to have a fuller debate and more clarity before they go before members in the chamber.
Thank you for your opening statement, minister. As Margaret Mitchell said, it is welcome that you tackled more points than you tackled before. I also thank you for giving us some indication of the fee levels. We now understand that they are quite different from those in the submission that we received. I have no declaration of interests to make because I have never worked in the profession, but I understand that when a profession feels that it has to defend its fees, it will make a strong argument.
One thing that will convince me to vote with the Government is what you said about having a review after six months. That is quite important. I am also encouraged that you will keep up communications with the profession during the six months.
Everything that you can tell us about the draft regulations is welcome. I wish that some of the submissions that we received did not try to compare apples and pears, because it is important to understand what the fees are.
Another point that we have to make is about travelling. Of course it is in the profession’s interest if someone in Edinburgh instructs someone there to represent them.
All the submissions that we have received are welcome, but they are all similar. To an extent, I understand why they were made. I am quite encouraged by the proposed six-month review and the engagement that the Government proposes during the six months, and I will vote with the Government on this.
Equality of arms is an important issue that has been mentioned a number of times. To me, the issue is about status and the relative positions of the Crown and those who are deliberating on important matters such as findings and sentences.
The draft regulations’ frailty relates to communications. I would have found them more compelling if there had been a review six months before we considered approving them, rather than having one six months after they are approved.
You used a lot very positive phrases, minister. If I noted this correctly, you assured us that, in the near future, SLAB would be pragmatic, and you talked about accelerating amendments.
Basically, the issue relates to the reform that the committee was involved in passing, because it has changed the title of a forum, although it probably does not even change its location. I do not think that the purpose of the committee is to negotiate fees on behalf of any profession, but we have to protect the interests of workers, regardless of their status or competence. It seems entirely wrong that someone is suddenly disadvantaged because we have changed the title of the forum. Indeed, the fact that a member of the profession refers to competition law and exclusion is a very interesting development.
My obligation is to act in the best interests of my constituents. I have been left in no doubt about the situation by the faculty of solicitors of the Highlands—and the situation would be compounded for the island courts—whose representative says:
“I have canvassed the views of the legal practices working in your constituency who regularly undertake criminal court work ... and can report that none is prepared to accept instructions from legal aided clients in respect of summary appeal cases with effect from 22 September 2015.”
Last week, I said that the phrase “access to justice” is bandied about all the time. This is not access to justice for my constituents. I am disappointed that the work that will take place after we have discussed the draft regulations did not take place beforehand. I cannot support the proposal that is in front of us.
I add my concerns about access to justice to what has already been set out by my committee colleagues. Nothing has convinced me since last week to change my mind about the draft regulations. I have concerns that people will not be able to get the solicitor of their choice, because not every solicitor will be willing to offer their services.
Minister, you mentioned that you will review the fees at a later date. My concern is about what will happen to people who do not appeal over the period, having lost the opportunity to appeal as they are not able to get a solicitor either because one is not available or because they find it financially impossible to secure one.
I find the issue very difficult. I have to say that the jury is still out for me. My concern is also about access to justice. Throughout the passage of the Courts Reform (Scotland) Act 2014, equality of arms was one of the main issues that we looked at.
I understand that the sheriff appeal court will be up and running on 22 September. As another member has said, the main thrust for urgency that we hear from the minister—perhaps when he sums up, he will advise us whether this is the case—is that if we do not approve the draft regulations, solicitors will be “worse off”. I need a working example of that. The minister’s letter says:
“Consequently, this would have the unintended effect of leaving many solicitors”—
not all, but many, so I want to know about that—
“worse off for representing the client in the original defence of the case”.
I need to know why, if we do not approve the draft regulations, it will be worse than if we approve them and wait for a review.
The other point I want to make relates to something that sort of skimmed past me, which is the role of SLAB. I think that the minister said that there were only about 30 practising solicitor advocates. How firm is SLAB’s commitment—and how sympathetic are you, minister—to bringing in automatic sanction for advocates and solicitor advocates in the sheriff appeal court, so that we get rid of the problem of the differential?
There are quite a few issues in there for me. The main question is, if we do not approve the draft regulations and the court is up and running on 22 September, why will solicitors be worse off? Otherwise, like everybody else, I have concerns about sorting things by returning to the issue after we approve them.
I hope that I will be able to address all the points that members have raised. I thank them for their considered remarks.
The issue has gathered significance as time has gone on. I believe that, when the committee scrutinised the Courts Reform (Scotland) Act 2014, the issues did not come up, or were not raised as issues of concern. Clearly, the committee, and indeed Parliament, supported the creation of the sheriff appeal court. I appreciate that the committee is now in some difficulty as it tries to understand what the implications will be for access to justice. I recognise that a number of members have made that point.
On access to justice, we are absolutely committed to ensuring that individuals are represented well for appeals. I have acknowledged that, in the long term, the issue of solicitor advocates must be addressed. If a solicitor is unwilling to take forward a case to the sheriff appeal court, or if there is a concern about equality of arms, we can amend the regulations in an accelerated process. I cannot give a timescale for that, because we obviously need to work with the committee on when that would be possible.
However, we can bring forward accelerated changes to the regulations to ensure that clients are guaranteed sanction for counsel. That will remove the risk when a solicitor is taking forward a case of there being inequality of arms for the client and a concern that the solicitor will not be able to represent them to the appropriate level in the sheriff appeal court. Our statement today on that follows our discussions with the Law Society in the past week. Points were raised in those discussions that we acknowledged and felt had to be addressed. I hope that we are reacting positively to the engagement that we have had with the Law Society on ensuring that equality of arms is guaranteed.
However, that does not deal with the fair point about solicitor advocates that the convener raised. I put on record my recognition of the quality of work that solicitor advocates do. I am in no way critical of their function and I know that they have done a lot of good work under the current arrangements. We need to address their position.
As the committee will be aware, there are much bigger debates about the role of solicitor advocates. There are a number of stakeholders, and we are engaging with the Law Society, the Society of Solicitor Advocates and the Faculty of Advocates to ensure that we address the issues and get a fair settlement, if you like, on compensation for the work that solicitor advocates do for their clients. That will not be a quick process, and I believe that there is a good bit of debate to be had still between the different parties and the Government—we are trying to marshal the three groups involved to come to a reasonable position.
As I said, I acknowledge the convener’s point about solicitor advocates, but members will appreciate that I cannot address it today. However, I assure members that we will take that issue forward.
On the more general access to justice point—
I would like you to address how solicitors could be worse off and people could have fewer solicitors to represent them. That is a key point, but you have not addressed it.
I will happily do so—I was coming to that point.
The sheriff appeal court will be up and running on 22 September, regardless of what members decide today. On solicitors being worse off, they are already paid a block fee for most summary criminal work. That is perhaps where some of the problems arise in terms of a comparison between what we are proposing and the situation that pertains.
Some cases involve more work than others, and the block fee is intended to offer fair remuneration across the piece. Solicitors will have cases of differing complexity; in some cases they might benefit from the block fee, whereas other cases might be loss leaders. They will pick up some cases for which they will get more for their work than they would charge on a detailed fee basis.
The draft regulations distinguish appeal proceedings with a separate grant of legal aid. The solicitor will receive the block fee for the original proceedings, plus detailed fees for the appeal. They will therefore get the existing block fee and—
Do you have an example?
The key issue is that solicitors could be worse off in assistance by way of representation proceedings. Without the regulations, solicitors would be paid only detailed fees for the whole case. In the absence of the block fee in cases for which they would have benefited from that fee, they will get less than they would have got. Solicitors who do more work than the block fee would have covered will be paid accurately for their work. Therefore, in some cases solicitors might get less than they currently get, because the block fee overcompensates them for the work that—
I am in Sir Humphrey mode now. I am trying to untangle that. Are you saying that some will be better off and some will be worse off?
Indeed, because the block fee recognises that some cases are less complex and some are more complex—I hope that I have made that point clear.
I understand about the block fees. Does anybody else want to intervene in the debate to ask a question to clarify the issue?
Yes. The second paragraph of the section on implications in your letter of 10 September says:
“the first instance work (usually paid in a block) as well as the appeal would have to be assessed on a detailed fee basis”.
That is not the same as the argument that you have presented to us. You argued that the block fee might not cover all the work that is done, which we understand. I simply cannot understand why, if we do not approve the draft regulations, that will somehow affect other work that is usually paid in a block.
10:15
At the moment, we have no regulations that deal specifically with the sheriff appeal court. We have no regime in place, if you like, to determine fees for that court because it is a new jurisdiction. In the absence of regulations—if the draft regulations are not approved—we will have to revert to calculating the cost from a legal aid perspective on a detailed fee basis. There will be a mixture of the block fee for the original casework that has been taken forward and detailed fees that will be charged for the work thereafter.
I understand that.
On the block provision and why that falls, I will consult my colleague, convener. [Interruption.]
I am sorry—I misunderstood the point that was made to me earlier. Because they are not distinct proceedings for legal aid purposes, they will all be on one account, so they will all be assessed as detailed fees rather than there being a block fee and detailed fees. What I said to Elaine Murray was incorrect. I apologise for that, convener.
The point is that all the fees will have to be assessed on the same basis, so we would lose the ability to pay the block fee for the case prior to the appeal, and everything would be assessed on a detailed fee basis.
I am sorry, but how do you then know that solicitors would be worse off? You would have to let it run.
Convener, the block fee arrangement that was put in place—
I know, but what fees—
The arrangement currently overcompensates some solicitors for the work that they do in court because the block fee is higher than the amount that would be charged on a detailed fee basis. We know that because the block fee is based on the average across cases. In more complex cases, the solicitor might be better off by charging detailed fees, but solicitors who are perhaps benefiting from the block fee for less complex cases will get less through detailed fees than they would get through the block fee. I hope that that clarifies that point.
It depends on the case.
Yes. It depends on the nature of the case.
Is the cost not in the fee but in the administration of the work that is done? Is that where the costs are?
Perhaps I could ask Mr Paterson—
Bear with me for a moment, minister. [Interruption.] I do not know what the clerk said, but it sounded correct. Gil, I think that you have to come to me and the minister has to agree whether to take an intervention, but I am sure that he will comply.
I am happy to take an intervention, convener.
It sounds to me as if it is not the differential in the fees but the administration of the new work, or the detailing of the work, that will bring costs to the individuals who carry it out.
If I may respond to the point that Mr Paterson fairly makes, with regulations in place, there will of course be a requirement, as the case study set out, for the submission of detailed fees. In the absence of regulations, we will require solicitors to submit detailed fees for legal aid in this context. From the point of view of the solicitor and the Scottish Legal Aid Board, the administration will be the same.
The beauty of approving the draft regulations is that solicitors will not lose access to the block fee; for that part of the case, they will still be able to charge the block fee, and they will not have to detail everything. If they have to detail fees, there is a risk that they will get less paid to them in less complex cases than they would currently get under the block fee arrangement. However, it is certainly an administrative issue.
Does Elaine Murray want to come back in?
Yes. Margaret McDougall and I met the Law Society of Scotland last week, and its understanding was that, if the draft regulations are not approved, a situation would arise where the Scottish Legal Aid Board would make emergency payments for work done in the appeal court. Solicitors would still get their block fee for the initial work, and they would get an emergency payment for the work in the appeal court. I do not understand how the calculation has been made.
That is not our understanding of the situation, I am afraid, convener. We disagree with the Law Society of Scotland on that point.
We have pretty well exhausted our questions, unless there is anything else that you want to add.
I want to address a couple of points that I did not pick up in my earlier responses to members.
On access to justice, I make it absolutely clear that there is no cut to the budget for legal aid. Indeed, as I set out in my letter to the committee, the budget for the legal aid fund has increased this year by approximately £4 million. There has not been a cut to the budget as Elaine Murray suggested.
In a situation in which a solicitor was unwilling to take a case or there was some concern about a solicitor’s ability to represent someone in the sheriff appeal court, the Public Defence Solicitors Office could step in—and we could sanction counsel ourselves—to ensure that the client was represented at an appropriate level.
We would rather not be in that position—we want to work with the Law Society and solicitors to ensure that the system works—but I reiterate that we are determined to review the operation of this area. The submission of information on detailed fees will very much inform what we do in the future, such as potentially bringing in block fee arrangements to try to reduce the administrative burden and streamline the process of accessing legal aid.
A couple of members have asked why we are in the position of having to have detailed fees. When there is a change in jurisdiction and a new court is created, such a situation is quite normal. We do not yet know in detail how the landscape will look in six months’ time or thereafter, so the review of the data that is submitted by solicitors working with us in the sheriff appeal court will inform our understanding of the economics of how the process is working. If there are any particular issues of disadvantage, they can be addressed.
I make it clear that there is no exclusion of any legal representative from the sheriff appeal court. It has been suggested, at least in one submission that I have seen from the Law Society, that solicitor advocates will be excluded from the sheriff appeal court. There might be an economic issue for solicitor advocates, but there is no legal exclusion of any counsel—solicitor advocate, solicitor or advocate—who wishes to represent a client in the sheriff appeal court.
Minister, will you take a question?
I will indeed—with your consent, convener.
Members should speak through the chair, please.
The final paragraph of the Scottish Government justice directorate’s policy note relates to the financial effects. The very last sentence states:
“The Scottish Legal Aid Board estimates that this will reduce expenditure from the Legal Aid Fund by around £1.4 million per year.”
I stress that the bulk of the savings relate to the personal injury court, as is referred to in the policy note to which Mr Finnie has drawn our attention.
If we are sanctioning counsel, as we have agreed to do in the guarantee for sanction of counsel, that will potentially increase the expense to the legal aid fund. We will have to monitor that as part of the review to see what the impact is. I think that it is a sensible measure to take in order to remove from solicitors’ minds at this transitional stage any doubt over whether they can take the risk of taking a case. They will know that they are at least guaranteed that counsel can be sanctioned if that is the most appropriate way to represent their client in the sheriff appeal court, and that they will not be putting their client at a disadvantage. From a professional indemnity and safety perspective, it will, we hope, give solicitors sufficient comfort that they will not have to risk their reputation, or indeed the future of their client, in taking a case without knowing who can represent the client at the sheriff appeal court—if a case comes to that stage, of course; it may not require an appeal in due course.
Do you want to go on, Mr Finnie? I see that Roderick Campbell wants to intervene.
If there is no issue with sanctioning counsel, what is the issue with sanctioning solicitor advocates?
That is a fair question from Mr Finnie and, with the convener’s consent, I will address it.
As I said earlier, I am very keen to try to resolve the difficulties that we have in getting agreement on the remuneration for solicitor advocates. As a group, they have made a strong contribution to providing access to justice and giving people choice. As I said last week, I very much recognise the importance of giving people choice.
We are, unfortunately, in a situation in which we need to put in place regulations to ensure the efficient operation of the sheriff appeal court. However, I assure external stakeholders and committee members that we will review the performance of those regulations in practice and come back with any necessary amendments to ensure that access to justice does not suffer as a consequence of the measures that are taken. I take very seriously the committee’s concerns in that area.
We are going round in circles a bit—we have covered it all. Is your question a new point, Mr Campbell?
I would be grateful for some clarification, convener.
We are talking about moving towards a block fee following a six-month review. Is it possible, based on historical information, to work to a much shorter timescale than that?
Mr Campbell makes a fair point. I said last week and I am happy to repeat that we do not necessarily need to wait until the end of the six months to see the evidence. If the emerging situation causes difficulty for solicitors’ clients, I will be keen to address that at the earliest opportunity. Indeed, the proposal to come back with regulations to provide a guarantee for sanction for counsel is the first of the potential amendments. That is based on the discussions that we have had with the Law Society and our desire to make sure that we do not present solicitors with difficulties in understanding the risks that they might be taking on for their clients in not being able to represent them fully.
We are already trying to address some of the concerns. The regulations that we have brought to the committee will provide a platform that we can use to improve and develop the regulations to ensure that they work efficiently and effectively once we have a better understanding of how the sheriff appeal court will work in practice. We will be keen to address any access to justice issues that arise.
You have made quite an argument that access to justice will not be affected, but we are clearly hearing a feeling that the fee regulations will not work. Even with the contingency plans, there seems to be a recognition that there is a problem. The practical effect of that will be that cases will be marked down and we will never know how many people have lost out during the interim period because we failed to get it right. That is what the committee finds it hard to come to terms with.
I recognise the concerns that Margaret Mitchell raises and I can understand the committee’s nervousness about creating a situation that is worse for the people who need legal services. I very much respect the sincerity with which Margaret Mitchell and other members have raised the point.
However, we need to look at the alternative. There may be an economic challenge to solicitors because, if they are forced into submitting a full account to SLAB and into charging detailed fees from start to finish, it may be less financially attractive for them to take less complex cases that do not attract much detailed fee. Under the current block fee arrangements, there is a degree of cross-subsidy from more complex cases to less complex ones, so there is less of a disincentive for a solicitor to take on such a case.
I apologise to Ms Mitchell because I do not have any definitive evidence, but I believe that there could be a disadvantage to the clients who have a less complex case. The solicitor might say that they do not have expertise in that area and that the client should speak to someone else. There could be a degree of disadvantage to some individuals. That is purely conjecture on my part, but that is my impression of what would happen because of the loss of the block fee for the less complex cases.
That concludes the debate.
If we vote no to the motion, it will be reported to Parliament. The Parliamentary Bureau will then not lodge a motion for the Parliament to agree to the regulations, but the Scottish Government will still be able to lodge such a motion. For myself, I am not satisfied. If the committee votes no and the Government lodges such a motion, I hope that we take the opportunity to have an extended debate in the chamber rather than just a short one. Too many questions remain unanswered, although they might be answered in a debate, which I understand would have to be next week. That is just an option for the Government. I am not blaming the minister, because I think that he has inherited the situation, but there are still unresolved issues. That is just a procedural matter.
If the Government lodges a motion, I know that the debate will be a short one and I do not believe that that is a good way to deal with it.
The question is, that motion S4M-14088, be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Against
Finnie, John (Highlands and Islands) (Ind))
McDougall, Margaret (Central Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Abstentions
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
The result of the division is: For 3, Against 5, Abstentions 1.
Motion disagreed to.
The committee is required to report on all affirmative instruments. Normally I would just ask for the committee’s agreement to delegate responsibility to me to report on the regulations, but I will circulate the report, which has to be lodged by 21 September. I will let members see what is in the report because we have had a substantial debate and some of the issues that have been raised will be in it.
Minister, I thank you and your officials for attending today.
10:30 Meeting suspended.Previous
Attendance