Act of Sederunt<br />(Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2005<br />(SSI 2005/149)
We come to item 4 on the agenda. I refer members to the note from the clerk that sets out background information on the Act of Sederunt (Fees of Solicitors and Witnesses in the Sheriff Court) (Amendment) 2005. The instrument is subject to the negative procedure. Do members have any comments, or shall we simply note the instrument?
Paragraph 3 of the clerk's note states that
Are you not satisfied with the letter from the Lord President's office that is attached to the act of sederunt, which explains the method of calculation of the percentage increase?
No. To amplify, I entirely accept that the figure is based on statistical analysis of the increase in the cost of solicitors' time during the preceding year. However, I question why solicitors are not, in common with other people, seeking to contain their costs and to manage them down by improving the efficiency of their operations, so that their costs rise by a percentage that is no higher than the prevailing rate of inflation.
That is the point that I want to come in on. In the letter that was signed by the legal assistant to the Lord President, in the second paragraph the reason that is given for the increase is that it was based on statistical analysis of the increase in the cost of solicitors' time over the preceding years. Frankly, I think that we require something better than that to justify an increase of two and a half times the rate of inflation. We must wonder why solicitors should be exempt from the rules that apply to the rest of us. It would be useful to have some form of analysis of exactly why solicitors' costs have gone up by that amount.
I seem to recall that the Justice 1 Committee has examined solicitors' fees—in particular, itemised billing. However, I cannot remember just how far down that line we got. Could you advise me on that? I think that it is quite relevant to the overall picture.
Does that relate to the correspondence that we received from Margo MacDonald's constituent, when we started to examine the transparency of legal fees?
Yes.
We have been trying to schedule a meeting with the Scottish legal services ombudsman for some time but—for reasons that members can probably work out—we have not been able to do that, although there has been some correspondence. The intention was to find a slot for Linda Costelloe Baker to come to the committee so that we could talk to her about transparency in legal fees. I will update the committee when we know the date. We had fixed a date, but we have had to move it.
I am reminded that it is just a couple of weeks since we had before us an instrument that revised the fees for counsel. Its purpose was to reduce the overall bill—by 0.85 per cent, as it turned out. That is another part of the legal profession in which we can see something happening. If we compare and contrast the margin between what is suggested for solicitors and what appears to be happening in relation to overall costs in legal aid for counsel, we see that the difference is 5.5 per cent.
Bruce McFee referred to the second paragraph of the letter. I think that I read that paragraph wrongly, so I would like clarification. I think that I read the paragraph as referring to a three-year period and thought that that was why there was such an increase, but perhaps I was wrong. Am I right in thinking that the increase that is being sought is an annual increase, that it was changed last year and that it will be changed again next year?
Yes. Stewart Stevenson will clarify the question that he wants the committee to put.
We have before us an instrument that would put up fees by 4.8 per cent, which exceeds the increase in the cost of living—which was 1.9 per cent—and the rise in average earnings, so we should be utterly convinced that solicitors who are spending public money in that context are doing everything that is expected in the rest of the public services similarly to contain and reduce costs. I do not believe that we are in the business of simply writing blank cheques without our being convinced. At the end of the day, 4.8 per cent might be the right amount; if so, the increase is fair enough. However, I am not in a position to say that at the moment. I accept that if they have been measured, the costs may well have gone up, but I am not in a position to accept that they should have risen by 4.8 per cent.
That question would really have to be put to the Law Society because the Lord President has accepted the work that has been done by the Law Society.
I would be content if it were the Law Society that sought to answer for its sins, should there be any.
Paragraph 1 of the clerk's note states:
At the end of the day, the figure is in excess of either the increase in earnings or the cost of living. I simply want to know why.
In that case, perhaps it is important that we get more information. Often, people are put off going to court because of the potential consequences of losing. The increase is sizeable, so we want to be extremely sure that it is justified. I agree with Stewart Stevenson that we appear to be a little short on detail.
Furthermore, the instrument will increase the level of expenditure that is recoverable by a witness who suffers loss of earnings or profits.
Members indicated agreement.
Act of Sederunt<br />(Fees of Shorthand Writers in the Sheriff Court) (Amendment) 2005<br />(SSI 2005/150)
I refer members to the clerk's note on SSI 2005/150, which is also subject to the negative procedure.
I make the same point again, although with less force because the increase is only 3.7 per cent in this case. Although an explanation is provided—the increase is the mid-point between inflation and average earnings over a 12-month period—I ask simply whether the spending of public money in this way is justified, given that we have not had it demonstrated to us that attempts are being made to make savings and to increase the efficiency of the operation. I should add that I am not entirely convinced that 3.7 per cent is the mid-point between 3 per cent and 4 per cent, but I will leave that arithmetic niggle to one side.
I have absolutely no knowledge of the salary of a shorthand writer. If I knew that the background to the instrument was that the pay of shorthand writers had dragged behind that of others, I would be happier.
You make the point well, convener. We simply do not know the background, so it is reasonable to ask for further information. That would be consistent with our approach to the previous instrument.
There is a chance that you might know about the matter somewhere in your subconscious. I hope that the matter was previously considered when I was not a member of the committee, so that I cannot be accused of forgetting about it. The second paragraph of the letter from the Lord President's private office states:
I certainly recall the correspondence; it is likely that you were here because you joined the committee at the same time as Stewart Stevenson, who proposed that we write to seek more information on the matter.
Bruce McFee pointed out the method that is used to calculate the percentage increase, which is different from the reasons for imposing the increase; we are seeking more information about the latter point.
I accept that distinction.
I would prefer not to be asking questions on each such instrument that comes before us. I will cease to ask such questions if, in the first instance, information is provided that enables me to understand that there is justification for the increase and that efforts are being made in this area where public money is spent, as in others.
I take it that the committee is minded to seek further information from the Lord President about the fees of shorthand writers.
On the general point that Stewart Stevenson just made, is it possible to mention to the Lord President that it would be helpful if we had that information in the first instance so that we do not have to keep going back to his office to ask about each case that comes before us? That would preclude this happening each time we consider such increases in fees.
Following on from that, we assume that the Lord President asked for such information in the first case in order to reach his decision. Perhaps more explanatory information than we currently receive would be useful and would not cause too much extra work.
I apologise, Bruce—I did not hear the last part of what you said.
Okay, I will let you read it in the Official Report.
I am sure that it was dead important. The clerks were pointing out to me that correspondence from the Lord President would not normally be attached to our papers. However, because we have been asking questions, the correspondence is his office's pre-emptive attempt to give us the information that we seek. Is the committee saying that it is not satisfied, but wants more information?
I think that we should give the Lord President's office a "could do better" on its report card. Let us hope that we never appear before him.
You accept that his office has given us the method that was used to calculate the percentage increase, but do you want the office to justify the increase being slightly higher than inflation?
We accept the method that the Lord President has used to calculate the increase, but we do not know the rationale for the level of the increase.
The bottom line is that there is now a focus on improving efficiency in public services—it is one of the Executive policies that I support in broad terms and which has broad support throughout Parliament. It is part of our duty to ensure that when such instruments come before us, that policy is addressed. I do not accept that that is the case in respect of the two instruments that we have considered today. It might be that that policy is being addressed, but the evidence does not show us that.
So—you just want to check that the Lord President's method of calculation is not wildly out of step with the approach to public sector pay in general.
The important point is that the sheriff courts, like everyone else, should seek to make their operation more efficient and to show us that they are doing that. If, in doing that, they then say that they need to increase fees, that is fair enough.
Okay.
Meeting continued in private until 13:12.