Justice 1 Committee, 15 Nov 2006

Meeting date: Wednesday, November 15, 2006

Official Report 283KB pdf

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Subordinate Legislation

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Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2006 <br />(SSI 2006/515)

Item 2 is subordinate legislation. We are dealing with the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2006. I welcome to the committee Gillian Mawdsley and Ian Vickerstaff. I believe that Gillian Mawdsley wants to make some introductory comments on the regulations.

I thought that it would be best if I set out the purpose of the regulations, which are intended to give effect to the interim increase in legal aid fees payable to solicitors for providing legal advice in solemn proceedings. The interim increase provides an 8 per cent increase for advocacy work and a 12 per cent increase for all other categories of work. The increase provides for work carried out in relation to identity parades and judicial examinations but also for all duty work, both solemn and summary. The increase has been backdated to cover all work done on or after 1 December 2005.

We considered the vires issue carefully before we made the regulations. The Scottish Executive's position is that the Legal Aid (Scotland) Act 1986 allows the Scottish ministers in certain circumstances to make regulations that enable payments to be made for work concluded before the date on which the regulations come into force, so long as the retrospective application of the regulations is not unfair to those directly affected or concerned by them.

In coming to that view, we relied upon the case of Wilson v First County Trust Ltd no 2, which came before the House of Lords in 2004, in which their lordships questioned the reliability of the general presumption against making retrospective legislation. Reference was made to the principle that Parliament is presumed not to have intended to alter the law retrospectively in a way that is unfair to those affected by such a change, unless there is a contrary intention. It was held that the appropriate approach was, in accordance with that statement of principle, to identify the intention of Parliament in the relevant statutory provisions and to consider whether the consequences of applying the provisions retroactively would be so unfair that Parliament could not have intended them to be applied in that way.

The regulations provide for an increase in solicitors' fees for work in solemn proceedings. We are satisfied that there is no detriment to solicitors from the making of the regulations and that the Legal Aid (Scotland) Act 1986 does not expressly prohibit the making of retrospective legislation. Accordingly, the Executive considers that, in light of the House of Lords decision, the enabling powers in the 1986 act allow the approach that has been taken in the regulations.

You said,

"We are satisfied that there is no detriment to solicitors",

which indeed seems to be the case, given the increases of 8 per cent and 12 per cent. Where did those increases come from?

The percentages were part of the discussions that took place with the Law Society of Scotland in the summer of 2006. The intention was to introduce an interim increase in the rate because some of the fees had not been increased since 1992. An increase in fees took effect in 2004, but that affected only a limited range of the work that solicitors undertake. It was acknowledged that we should seek to reward the work that solicitors do, which is why interim increases were brought in.

If we compare them with the rises in the cost of living or in average earnings since 1992, the changes are probably a reduction rather than an increase. I suspect that both those figures have risen by more than 12 per cent in that period.

I do not know what the exact inflationary increases have been. All I can say is that it was acknowledged that fee levels had not been increased for some of the work and so the increases were appropriate. One of the intentions is properly to reward work that solicitors do.

Are the regulations now the permanent ones, or are they further interim ones?

The increases are interim ones. Since the summer, work has continued with the Scottish Legal Aid Board and the Law Society of Scotland on a scheme of block fees for solemn criminal legal aid, which will support an efficient and effective criminal justice system for the most serious cases. That work is actively on-going and takes fully into account aspects such as the Bonomy reforms, with which members are familiar. The interim increase was introduced partly because it was not possible to finalise the block fee arrangements, which had been worked on for some time, as quickly as was hoped. At present, the scheme is being worked on by all parties.

To be clear, are we considering the final set of regulations or interim arrangements?

The arrangements are final in that they are a permanent increase in the fees, but we will seek to introduce a completely new system for the operation of block fees in solemn cases. However, the increases are permanent.

Until then.

I have a question on the retrospective element of the regulations. I hope that Ian Vickerstaff does not mind me paraphrasing him, but I think that he said that we have to be satisfied that there is no detriment to the parties that are involved. We were told that that means an 8 per cent increase in fees for solicitors for one type of work and a 12 per cent increase in the fees for another type. I suggest that another party is involved: the taxpayer or the public purse. Are you satisfied that there is no detriment to the public purse and, if so, how did you come to that conclusion?

When I spoke about detriment as a result of retrospective application of the regulations I was referring to the persons directly concerned and affected by the regulations—the solicitors who will undertake work under them.

That is exactly what I took you to mean. I was suggesting that the other party that is directly affected is the taxpayer.

Your question is probably more for me. One of the policy intentions is that solicitors who provide publicly funded legal assistance should be appropriately remunerated for the work done. I cannot comment on the effect on the taxpayer, but taxpayers will be concerned to have publicly funded legal assistance as well as an efficient and effective justice system. Those policy intentions led to the interim increase being brought into effect. It was thought that fees should be increased by the interim amount to ensure that solicitors receive appropriate remuneration for the work that they undertake.

I understand that. I was asking about the retrospective element. The test that was established is that there should be no detriment to the parties involved.

We have dealt with this issue before.

I just want to find out how the test was come up with. I suspect that I know the answer.

Clearly, the test relates to the solicitors and advocates who are part of the legal aid system.

Indeed, but there is another party involved, whose interests are—

I hear the point that you are making.

McCall v the Scottish ministers covered the retrospective element. The test ensures that none of the parties involved will be adversely affected by the change in fees. It does not consider the wider issue of what is in the public interest.

That is correct. The McCall opinion covered the retrospective elements. The regulations were found to be ultra vires in respect of their being to the detriment of counsel. Given that these regulations provide for an increase in fees to solicitors, there is no argument that they cause detriment.

I am not familiar with the McCall case. Which regulations were deemed to be ultra vires? Did they come before the committee?

I am not sure whether they came before the committee. The regulations at issue in the McCall case were the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005, SSI 2005/113.

Every time there is an agreement between the Scottish Executive and the Law Society of Scotland, the Scottish Legal Aid Board and the Faculty of Advocates, we get a new set of regulations and we go through the same process. This is the fourth time that I recall our considering such regulations. We should have been told that regulations that were put before the committee were deemed by a court of law to be ultra vires. Perhaps you see our role as being just to rubber stamp the regulations, but we see our role as being to scrutinise what is before us. Therefore, I have a few more questions.

With respect, we did highlight the McCall case in the Executive's response to the letter from the Subordinate Legislation Committee. The paragraph in the Executive's letter says that the approach in the regulations

"is consistent with the approach taken in McCall v The Scottish Ministers (29 November 2005). In that case Lord Carloway held that the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005 (SSI 2005/113) were ultra vires as regards the applicability of new fees to work done prior to the commencement of those Regulations solely on the grounds that this was an unfair interference with the Petitioner's right to peaceful enjoyment of the (higher) fees which she had earned before commencement."

My view is that this is perhaps a matter that we should raise further up the line. The matter should have been drawn formally to our attention. We are dealing with regulations. For obvious reasons, we do not have total recall with regard to cases and we have missed that part of the correspondence.

I feel that if regulations that we have passed are later found not to be in order, there should be a procedure to let us know that.

We would probably have wanted to spend more time on the issue, but there is nothing in the note to say what happened or that the matter is being looked at again.

I recognise that our difficulties arise from the fact that this is a negative instrument, on which we are not required to express an opinion directly.

Nevertheless, it would be useful if we—as individuals and as a committee—could be made aware of challenges to things that we have done. Therefore, I suggest that the committee write to the Minister for Justice and ask that such a process be put in place.

Does the committee agree to that suggestion?

Members indicated agreement.

The significant Bonomy reforms were achieved with a great deal of co-operation from members of the legal profession. The dean of the Faculty of Advocates raised a specific issue with us, on which the committee has been proactive. Some members of the legal profession have found themselves in a detrimental position, which is why it is important that we continue to be proactive.

The specific issue that was raised was that many cases that do not fit neatly into the block fee have been dealt with by reference to the auditor of court. The dean of the Faculty of Advocates was quite clear that his organisation would like that facility to continue. Has that issue been resolved?

First of all, the regulations deal with solemn fees for solicitors. To that extent, the Faculty of Advocates does not have a particular interest in them; the Law Society of Scotland is the relevant professional body.

The block fee system that will be introduced will still involve recourse to the auditor in decision making. Obviously, there will be a number of block fees, but there will still be a role for the auditor.

We have three options: the committee can approve the regulations; a member can lodge a motion for annulment; or we can defer our decision until next week, if we still have questions that we want answered. The committee has agreed that I should write to the minister to make it clear that we expect to be informed if regulations that have been put before us have been referred to in a court case. That point can be pursued independently of our position on the regulations, so I think that we should simply note them. Is the committee happy to do that?

Members indicated agreement.

Meeting closed at 12:39.