Justice Committee

Meeting date: Tuesday, December 17, 2013

Official Report 462KB pdf

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Subordinate Legislation

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

Agenda item 2 is evidence from the Cabinet Secretary for Justice on one negative Scottish statutory instrument: the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013. I welcome to the meeting the cabinet secretary, Kenny MacAskill, and Scottish Government officials. Denise Swanson is head of the access to justice unit; Catriona MacKenzie is legal aid policy manager; and Felicity Cullen is from the legal services directorate.

I understand that the cabinet secretary wishes to make an opening statement. Please do so.

Thank you. I am happy to be here to assist the committee in its consideration of the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013.

These amending regulations do three things to the existing fee regulations for solemn criminal legal aid. First, they clarify existing provisions. That responds to the criticism of a lack of clarity currently by expressing the current operation of the fee regulations more explicitly in the provisions themselves.

Secondly, the amending regulations increase the flexibility of fees. That responds to the concern that there is not sufficient flexibility at present. Exceptional case status will be made available, and the Scottish Legal Aid Board or auditor will have the discretion to allow a fee where one is not otherwise prescribed.

Finally, the amending regulations restructure and extend provision for certain fees. Preparation fees for deferred sentence diets are being moved into the existing inclusive fee for post-conviction work. The change in structure means that fees for preparation where a case does not proceed to trial will also be made available.

Let me take the opportunity to be equally clear about what the amending regulations do not do. They do not reduce the amount of fees that will be paid to solicitors for solemn criminal legal aid, so they do not make savings to the legal aid fund.

The amending regulations do not, in my opinion, fail to comply with the European convention on human rights. I have seen no specifics from the Law Society of Scotland on how it believes that non-compliance would arise. The amending regulations are not a response to a breach of any person’s ECHR rights, but are a precautionary measure following the appeal court’s comments.

I hope that that explanation is useful to the committee. I am happy to take any questions.

Thank you, cabinet secretary. I remind people that this is an evidence session; we will, if necessary, move on to the debate afterwards. Members should therefore ask questions, please.

Good morning, cabinet secretary. What I am finding most difficult to fully understand is the variation in the figures on the cost of the changes. The cost is between £260,000 and £380,000, which is quite a band. Is there any more information on the assessment of the impact of the changes?

The bulk of the variation comes from the exceptional case status provision, because it is quite difficult to predict exactly how many cases will achieve exceptional case status. There is also some variation in how much would be paid out for each case individually, as that would be done on the basis of the circumstances of the case.

So would I be right in thinking that £260,000 is the minimum figure and £380,000 is the maximum? Is that the best way of looking at it?

Yes.

Cabinet secretary, in your opening remarks, you mentioned ECHR compliance. Has the Law Society of Scotland raised any specific issues with you in relation to how it believes that non-compliance would arise?

We have not had anything from the Law Society about that. All legislation that comes before the Parliament requires to be ECHR compliant. We believe that the regulations are ECHR compliant, but if the Law Society can tell us the specific basis on which it thinks that they are not, we will happily consider that and respond to it. All that we have received so far is its view that the regulations are not compliant—we say that they are—without any specifics about the why.

Good morning, cabinet secretary. You said that the regulations will not reduce the amount of fees paid in total, based on the estimated cost of £260,000 to £380,000. However, how you arrived at those figures is not very transparent. It has been pointed out to me that when the Cadder decision came out, it was estimated that the cost might run to £5 million. In fact, at the end of the year, the cost was £330,000. Had you chosen to tackle this problem in the same way, you might have taken £5 million out of the legal aid budget and said, “We will redistribute it in this way.” How accurate is the £260,000 figure?

All the figures are as accurate as they can be. We require estimates that will allow us to address situations that are case dependent, so flexibility is required. We have number-crunched as much as we can. I do not know whether Denise Swanson or Catriona MacKenzie wants to comment further.

The estimates are based on figures provided by the Scottish Legal Aid Board, which based them on its knowledge and understanding of the various invoices that are presented to it by solicitors and on the volumes of business that are relevant to such legal aid fees. As Mr MacAskill said, the figures are based on assumptions and knowledge of how the system works.

What will happen to the funds if they are not drawn down in that way and if, in fact, few cases arise?

We are projecting an overspend of the legal aid budget, so unspent funds will be used to offset other areas. This is about our addressing a court case that arose to make sure that we are compliant and address the circumstances. A lot of these things are about preparing for specific cases. However, until we get such cases, it is difficult to be precise, because each case will be unique in its merits. This is about having the flexibility to address an issue that the judiciary raised, ensuring that we are compliant and that we have the budget. Any budget underspend could be used to cross-subsidise overspend in other parts of the Scottish legal aid budget.

How many meetings did you have with the Law Society to discuss the matter?

We regularly meet the Law Society’s criminal legal aid negotiating team. We raise business with it through a combination of meetings and emails. We raised the issue with it early on and, throughout the development of the regulations, we corresponded with and met the team to discuss the matter. Not all our meetings are specifically about one issue; we perhaps cover three or four issues at one time.

Last week, I met the new president of the Law Society. The issue was not raised then. We have another meeting in the coming days and, as far as I know, the matter is not on the agenda. However, if he raises it, I will happily discuss it.

Paper 1 says:

“The Law Society of Scotland, while content with the provisions so far as they address the Appeal Court’s concerns, is of the view that the cost of these new provisions should not be met by a reduction in detailed solemn fees”,

whereas the cabinet secretary has talked about a flexible approach. How do the two statements marry up? Does the Government’s approach set a precedent, or has such an approach been taken before?

I do not believe that our approach sets a precedent. We are talking about exceptional case status—the clue is in the word “exceptional”. It will be the exceptional cases—cases that we do not expect to be the norm—that will need to be considered by SLAB or the auditor as a result of the decision in the McCrossan case, which is the subject of appeal to the Supreme Court. We believe that the amending regulations will provide the flexibility that is necessary to deal with exceptional cases without varying the totality of the funding that we provide.

Are you giving a guarantee that if the Government faces additional legal aid extensions in the future, it will not seek to offset those through a reduction in legal fees elsewhere?

I cannot do that. Unlike the situation south of the border, where legal aid has been chopped and a raft of matters have been taken out of legal aid wholesale, we have refused to do that. The Scottish legal aid budget is not capped, so we require to work on the basis of estimates and to address circumstances that arise. Sometimes, circumstances might arise as a result of court cases, such as the McCrossan case; at other times, they might arise as a result of our adopting a particular policy position. Unless you wish me to cap the legal aid budget, which I am loth to do, it is necessary to have an element of flexibility. Lady Paton made it quite clear that some exceptional cases require to be treated differently. We must trust the judgment of the Scottish Legal Aid Board and of the auditor and give solicitors and advocates who have carried out such work the opportunity to be recompensed. I do not see any way in which the matter can be dealt with other than by imposing a cap. As we are not prepared to do that, there must be flexibility.

Are you adopting a new approach that has not been used before? Are you setting a precedent?

No. This is the approach that has been taken to legal aid since I have been in office and, indeed, since I began practising as a lawyer. The legal aid budget has not been capped. We have never been in the situation in which no legal aid has been available two thirds of the way through the financial year. SLAB has always had to try to budget and has required to make changes—sometimes in advance and sometimes in arrears—to address the circumstances. That has been the case ever since SLAB and the legal aid fund were established.

Is it your view that there is no reduction in detailed solemn fees?

There is no reduction in the legal aid budget.

I asked whether there was any reduction in detailed solemn fees.

It would depend on the case.

If you are thinking about the issue from the point of view of how individual cases will be affected, I point out that there has been a restructuring of how fees are distributed so, in addition to exceptional case status being made available, preparation fees are being extended, which makes it quite difficult to be able to give a specific answer. Potentially, there will be some reduction in the fees that solicitors will receive in some cases but, at the same time, other fees will be higher. In fact, we have created more opportunities for solicitors to be paid higher fees in certain cases.

It is in relation to that potential reduction that the Law Society has some concerns about access to justice and a possible breach of article 6 of the ECHR.

I do not think that we know that. The information that we have received from the Law Society is very unspecific—it does not say where it thinks that there would be a lack of compliance.

According to our papers, the Law Society seems to be saying that if there is a question mark over how much solicitors will be paid for taking on certain cases, they might be disinclined to take on those cases, as they might feel that the payment would not be adequate for the work that they would have to do. In such a scenario, there would be a concern about access to justice.

I do not think that that situation would arise. The cut that would occur in some circumstances to offset the increase in certain situations is not of such magnitude that firms will face penury. In order for us to be ECHR compliant, we must ensure that legal representation is made available, and it is always there—ultimately, through the backstop of the Public Defence Solicitors Office—so I do not see how we can be accused of failing to comply with the ECHR. Although, as we have explained, there may be circumstances in which there will be a modest reduction in some element of the fee, in other circumstances the fee will be increased. As I said, on that basis there is no reduction in the general amount of the fund.

Is that approach a precedent?

09:45

I do not know. I imagine that there might well have been precedents but I am not aware of them. I can say that, throughout its existence, legal aid has never been capped. We have never followed the route taken by the Conservative coalition Government south of the border of entirely taking out of legal aid huge areas that we view as sacrosanct, such as cases involving asylum seekers, family law cases and even many aspects of injury litigation. People south of the border are no longer eligible to apply for legal aid for those things, in which we have maintained legal aid.

However, the system has come under pressure because of the difficulty in predicting the number of cases that might arise. My experience from 20 years in practice, never mind my six years as the Cabinet Secretary for Justice, is that tweaks, modifications and changes are made to the Scottish Legal Aid Board’s disbursement of funds and that such aspects are dealt with as they arise and as updated figures become available.

On the question whether this is a precedent, I cannot say. However, I am happy to go away and inquire whether there is any precedent or indeed whether this is simply part of the changes that are made in-house during the year to address the challenges that the Scottish Legal Aid Board faces.

I think it would—

Do you mind if we move on, Margaret? We have a whole pile of work to get through and you have had a good whack at the issue.

Good morning, cabinet secretary. Do you think that, if the amendment regulations go through, cases will not progress to court because solicitors will not be prepared to carry out the initial groundwork?

No. Frankly, the changes are de minimis and I cannot for the life of me see any reason, other than cussedness, why solicitors would refuse to act. In any case, if they feel disinclined to act, the Public Defence Solicitors Office will act in their place.

You might not have won any friends with that expression, cabinet secretary, but never mind.

You also said that if the regulations go through, solicitors will be paid the same amount of fees overall but in different and more transparent ways. Where has there been a lack of transparency in the past?

I can give you the example of fees for research. Although such fees have always been payable, the drafting of the regulations tucked them away in a corner and did not expressly make it clear that the fees applied to research; instead, they were described as fees for other work. For reasons that I completely understand, the appeal court found that quite confusing. The old regulations—the Criminal Legal Aid (Scotland) (Fees) Regulations 1989—have been in place for some time now and, with hindsight, one can look back and think, “You know, we didn’t express that quite as clearly as we could have done.” As a result, the 1989 regulations are being amended by these regulations to clearly set out a specific fee that is exactly the same amount as before and to say to solicitors, “You may be paid a fee for research if you can show that the case is exceptional or that the preparation required is above and beyond the normal amount that a solicitor would have to carry out.” That is an example of how we are trying to improve transparency to ensure that if not lay readers then certainly members of the profession can read the regulations and understand what they may be paid for.

Just as a matter of interest, do you have any idea what proportion of solicitors in Scotland undertake legal aid work at the moment?

A significant amount, I would have thought.

I think that about 1,600 do criminal legal aid work. Is that right?

I cannot remember, so I would not be able to vouch for that figure.

I can provide the figures. We have separate registration for civil and criminal legal aid—

But surely some will do both.

Yes.

Is there any indication that solicitors are coming out of legal aid work?

No—quite the opposite, in fact.

Finally, what would be the consequences if Parliament did not let the regulations go through?

In her opinion on the case of Her Majesty’s Advocate v McCrossan, Lady Paton gave a clear steer that the changes need to be made. If they are not, we will face challenges and, ultimately, other difficulties. This is all about getting ahead of the game. Although that particular case is being appealed to the Supreme Court, the Scottish Legal Aid Board and officials up here are correctly trying to get ahead of the situation. I think that we would face a challenge that the fee being paid is inappropriate and that the regulations are inadequate and do not address the issue of exceptional status.

In those circumstances, what could be the consequences for the Government?

We would presumably face continual litigation for increased fees on a case-by-case basis. It is partly a matter of ensuring greater flexibility so that, rather than facing individual challenges in individual cases, we provide flexibility for the board or for the auditor to enable them to address matters.

That concludes the evidence session on the regulations. We now move on to item 3 on the agenda, which is a debate on the motion to annul the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320). Under standing orders, the debate on the motion can last for up to 90 minutes—do not feel obliged.

I intend to call Alison McInnes to speak to and move the motion. I will then move to the open debate, when I will call any members who wish to speak, before inviting the cabinet secretary to respond to the debate. I will then invite Alison McInnes to wind up. At the conclusion of the debate, I will put the question on the motion. If the motion is agreed to, the regulations will be debated further in the chamber. If the motion is not agreed to, that will conclude parliamentary consideration of the regulations. I hope that you all followed that detailed explanation. Christian Allard looks bewildered—

No.

Never mind; I will try to do it in French another day, but I am sure that I will not succeed.

I call Alison McInnes to speak to and move motion S4M-08570.

I lodged the motion to annul the regulations because they appear to penalise solicitors unduly for Scotland’s failure to comply with the European convention on human rights. Furthermore, they raise serious questions about how the Scottish Government intends to address problems of non-compliance in the future.

I do not dispute the need to comply with the clear steer that Lady Paton has given us. Indeed, I am sure that we agree that the Scottish Government needs to act to address the concerns that the appeal court highlighted earlier this year. It identified that the right to a fair trial, which is guaranteed under article 6 of the convention, could be prejudiced by the inequality of arms. We cannot allow such differences in preparation to persist. However, the question that is before us today is how this and other non-compliance issues should be resolved. The committee wrote to the cabinet secretary after our meeting on 3 December, and I am grateful for his response, but I believe that he has failed to confront the crux of the argument and to reflect on the principle that underpins the regulations.

It strikes me and the Law Society of Scotland as fundamentally unfair for the Scottish Government to transfer the cost of state non-compliance on to solicitors throughout Scotland through a 3.65 per cent reduction in the current fees for solemn proceedings across the board. I do not believe that there has previously been offsetting of that nature in order to achieve ECHR compliance. There is a danger, as Margaret Mitchell said, that the reduction will set a precedent.

In its written submission, the Law Society describes the regulations as a “stealth tax”, or a means by which the Scottish Government is passing a financial burden—the cost of

“meeting an international obligation it owes to benefit the whole population”—

on to one section of the legal community. The SSI is a means to cut solicitors’ fees. There is a real risk that, in shifting the weight of the problem on to another area of the system, the Scottish Government could establish the conditions for non-compliance elsewhere. That is one of the issues that the Law Society raises. If we were to reduce solicitors’ fees regularly in order to address breaches of the convention, that could create, in the Law Society’s words, “a spiral of non-compliance”.

The Scottish Government asserts that the regulations as a whole will be cost neutral, yet it is surely difficult to quantify the impact of the proposed changes. In the absence of any draft guidance on how the provisions will be applied, there is certainty about cost reduction but none about subsequent expenditure. How often will the Scottish Legal Aid Board determine that a solicitor is entitled to certain fees? What will happen to the funding if it is not fully allocated each year? Will it roll on to the next year? Why has the cut been set at 3.65 per cent? There appears to be a lack of transparency, and I believe that the regulations merit further consideration and consultation.

I move,

That the Justice Committee recommends that the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320) be annulled.

I am very interested in human rights and I cannot envisage a situation in which the Scottish Parliament would put in place anything that did not comply with the ECHR. We need to consider the overall package. Any suggestion of a downward “spiral of non-compliance” is emotive language, and it is less than helpful.

We also have to look at the financial reality of the situation, and there are huge challenges in that regard for the public sector. Any legislature with a fixed budget that has had the significant cuts that the Scottish Parliament has had would face such challenges. I do not think that anyone would like to see a reduction in fees, but I am reassured that the overall package remains the same. More important, compared with other jurisdictions, the overall range of coverage that is provided remains the same. For those reasons, I have no difficulty in supporting the regulations.

There are some positives here. For example, preparation fees for deferred sentence diets will be moved into an existing inclusive fee for post-conviction work, and fees for preparation where a case does not proceed to trial will be made available. Those are positives, and I think that we must take them into account.

On the Law Society’s argument about a “spiral of non-compliance”, if what it has said was the case, it would be worrying. However, I think that the concern is more theoretical than practical, so I do not think that we should get too carried away with it. The Law Society also refers in its written submission to fees being

“reduced in one part of the system in order to subsidise fee levels in another”,

but it is not a subsidy, because no real fees are paid at the moment in that area. I would say that it is therefore a reallocation and not a subsidy. If the situation was going to be repeated time and again, I would share some of Alison McInnes’s concerns, but I do not think that it will be. We should oppose the motion to annul.

I looked carefully at the Law Society’s submission, but nothing in it has persuaded me. I listened to what the cabinet secretary said earlier, and I do not think that what is proposed is an exercise to try to save money. I do not see that it would reduce the amount of legal aid. I therefore oppose the motion to annul.

In the absence of an assurance that the regulations will not set a precedent, I am minded to support Alison McInnes’s motion to annul. Is there any way in which we can get such an assurance this morning?

The cabinet secretary will respond at the end of the debate, and then Alison McInnes will respond.

I came in this morning genuinely not certain about which way I was going to vote on the motion. However, I have been convinced that I must support the regulations rather than the motion to annul. A significant number of solicitors still do legal aid work and there is no evidence that solicitors are coming out of that. Although there will be a reduction in some fees, there will be the potential for payment for some aspects of work that have not been paid for previously. If we annulled the regulations, there would be serious consequences for the Government in terms of individual challenges in the future that could cost significant sums. On balance, therefore, I oppose the motion to annul.

I am not persuaded by Alison McInnes’s arguments. An interesting point was made about the very loose description of fees for preparation, which might involve somebody trying to find out what the law is when they should have known that in the first place. However, the provision is for exceptional cases. Criminal practitioners should have to do preparation and review the position only when something exceptional is put before them.

I am content with the route that the Government is taking—I do not always say that—in protecting the integrity of legal aid. I despair about what happens south of the border, where people are being deprived of access to legal aid in many important cases. I appreciate that there are tight budgetary constraints across the United Kingdom, but I think that the Scottish Government has made the right decision about legal aid in Scotland.

I will not support the motion, but I want to monitor the impact of the regulations to see whether the Law Society of Scotland’s arguments come to fruition. We will be able to see whether the impact on other financial areas and so on happens only rarely. I am not persuaded by Alison McInnes’s arguments, but I want to measure the impact of the regulations in due course to see whether they have the consequences that have been suggested.

10:00

I do not believe that there is any undue prejudice at all. The matter will be cost neutral. As Rod Campbell correctly said, it is more a reallocation than anything else. The instrument is ECHR compliant, as John Finnie said, and there would be delays and consequences if we annulled it. John Pentland made a good point, but the likelihood is that, if the instrument was annulled, there would be individual challenges that would not only have a cost but could delay on-going criminal proceedings. That is the situation that we would face. The regulations provide greater transparency. As Felicity Cullen pointed out, the fact that they date back as far as 1989 shows that circumstances have just been allowed to stay as they were.

On Margaret Mitchell’s final point, the historic difficulty that we face in legal aid is in striking a balance. We can have time-and-line accounting, where every individual item is done to the minute, or we can have block-fee accounting. There are good reasons to argue for both. If we go for time and line, it costs an awful lot more, because not only will the bill be bigger but the costs of accounting will be greater for both the individual lawyer and the board. If we go for block fee, we get things quicker. With block fee, people sometimes get paid more than they would have been paid on a time-and-line basis because the case is simple. In other cases, they will be paid less, because the case is that bit more complicated.

The regulations try to provide some balance in that calibration between time and line and block fee so that, when we have exceptional circumstances that would otherwise be dealt with differently, there can be greater transparency and flexibility. That gives the benefit of moving away from everything being time and line and the benefit, perhaps, of keeping costs on the swings and roundabouts, while also providing an opportunity where there is clearly some manifest wrong to those who have to put in a great deal of effort. As the convener said, it may be assumed that lawyers know the law, but there will be some cases where the law is novel, is being researched or whatever, and the regulations provide some flexibility in those circumstances. That is why I support the regulations.

As the Law Society of Scotland notes in its submission, if the Scottish Government accepts that it has to act to ensure state compliance, then it is its responsibility

“to make and fund the necessary changes.”

That is fundamentally not fair. We have heard that it is an exceptional-case status, so we know that it is not the norm, and it might be that there are no such cases in any given year, so how can it be that the general totality of funding is paid out in solemn criminal cases? It cannot be the case. The proposal cuts the fees that are levied on every case, yet not all solicitors will carry out those exceptional cases, if indeed there are any in a given year, so there is a fundamental sense in which the regulations cut fees without proper consultation.

I absolutely accept that we must comply, but the issue is who funds the compliance. If the regulations are annulled, the Government will need to come back with a properly resourced option and we will not need to scaremonger about further cases of challenges. We will just need to go back to the drawing board, talk to the Law Society and find a more sustainable way forward.

Compliance can be achieved only through ensuring that the system is sufficiently resourced, and although I appreciate that the legal aid budget operates under significant pressures, I know that the Law Society has worked with the Scottish Government in recent years to identify savings that could be made. I acknowledge the pressures on budgets and I do not hide from the cuts in England, but it is a lazy argument to rely on that. We are a devolved Parliament and we should made the best decisions for Scotland.

I hope that members will back the motion to annul and enable Parliament as a whole to consider the regulations. I press my motion.

The question is, that motion S4M-08570, that the Justice Committee recommends that the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320) be annulled, be agreed to. Are we agreed?

Members: No.

There will be a division.

For

McInnes, Alison (North East Scotland) (LD)

Against

Allard, Christian (North East Scotland) (SNP)

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (Ind)

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

Murray, Elaine (Dumfriesshire) (Lab)

Pentland, John (Motherwell and Wishaw) (Lab)

White, Sandra (Glasgow Kelvin) (SNP)

Abstentions

Mitchell, Margaret (Central Scotland) (Con)

The result of the division is: For 1, Against 7, Abstentions 1.

Motion disagreed to.

That concludes parliamentary consideration of the regulations. I thank the cabinet secretary.

We are required to report on the regulations. Are members content to delegate to me the authority to sign off the report, which will reflect the Official Report?

Members indicated agreement.

10:04 Meeting suspended.

10:06 On resuming—