Subordinate Legislation
Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2010 (SSI 2010/212)
We resume to consider agenda item 3. At its meeting on 15 June, the committee agreed to defer consideration of the Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2010 in order to take evidence from the Scottish Government on concerns that members had raised. I draw members’ attention to the regulations and to the cover note, which is paper J/S3/10/21/3.
I again welcome the Minister for Community Safety—he must feel that he is earning his salary this morning—and the following Scottish Government officials: James How, who is head of the access to justice team; Gerry Bonnar, who is head of law reform and general branch; and Fraser Gough, who is from the legal directorate.
I invite the minister to make an opening statement. He will be aware of the background, which is that the committee was slightly thrown last week by press reports on a related matter. That being the case, the committee was unanimously of the view that we should continue consideration of the regulations this week. I understand that consultations are on-going on that related matter, so if the minister’s response does not satisfy members this morning, we could revisit the matter next week, when the item could again appear on our agenda.
I am grateful to the convener for clarifying that matter.
The policy objective of the regulations is to introduce a new fees structure for solicitors who provide criminal legal aid in relation to solemn proceedings and to increase the fees that are payable to solicitors under criminal legal aid for specified items of work. The regulations have been the subject of extremely extensive consultation with the Law Society of Scotland and the Scottish Legal Aid Board since the policy intention was announced. The financial implications have been taken account of in the forecasting that the board has carried out.
There is no connection between the regulations and the new Crown Office guidelines on suspects’ rights to have a solicitor present during initial police questioning. I appreciate that committee members are concerned about the effect of those new Crown Office guidelines. As members will be aware, the Scottish Government is in discussions with the Scottish Legal Aid Board and the Law Society to ensure that the legal aid system operates effectively alongside those guidelines.
I raised the issue last week because of the relationship between the regulations and those guidelines. The matter is complex, as it is not easy to read from the regulations how the whole issue of introducing or extending block fees, as opposed to detailed fees, will operate in practice.
I have a couple of questions for the minister. The possible implication of the forthcoming Cadder judgment relates to solicitors attending people who are detained on suspicion of committing a crime. In legal aid terms, that is part of a broad range of things that solicitors might have to do in cases. Can the minister clarify how that is dealt with at present? Is a payment issue involved? What are the broad arrangements for covering solicitor work at the early stage, when people are first detained? How does that relate to the regulations? Given that the regulations provide for specific arrangements for identification parades and other things that can happen as part of initial investigations, is it likely to be necessary to amend further the regulations once the Government has a clear view, following the current discussions, about the implications of the forthcoming judgment? It is important that the regulations are correct.
It may difficult for you to answer those questions, Mr Ewing, as discussions are continuing and the facts have not yet been fully determined. However, I ask you to answer Mr Brown as far as you can.
The two matters are distinct. We have introduced amended regulations as a result of a huge amount of work by the Scottish Government and the Law Society of Scotland after the Cabinet Secretary for Justice indicated that there should be a review of criminal legal aid fees for serious matters. The regulations are the fruits of that labour and provide a deal that was negotiated between the Scottish Government and the legal profession with the Scottish Legal Aid Board. That is very much to be welcomed by all involved. There are some extra costs, but the Scottish Government has taken them into account.
Mr Brown asks whether the existing system of criminal legal aid caters for work that is done in the early stages of cases—of course it does. I am not here to itemise solicitors’ bills; happily, I have long since stopped doing that. However, I am in a position to report—I noted this from preparations for the debate that will take place this week on the Bowen report—the happy news that the changes in the structure of legal aid have arguably had significant benefits in encouraging cases to be dealt with at the earliest possible stage.
Where appropriate, we all want more solemn cases to be settled quickly when the accused decides to plead guilty. Plainly, it is more desirable if the system is conducive to that. The committee will no doubt have read, as I did earlier in the week, Sheriff Principal Bowen’s report, which I have here. Footnote 44 on page 38 indicates that changes in fees for counsel in the High Court appear to contribute to the substantial increase in early, section 76 pleas in that forum. The saving of civilian time in terms of jurors and witnesses who do not have to be called is very much to be welcomed.
To answer Robert Brown’s question, the existing system caters very well for the provision of legal aid for services by solicitors in the early stages of cases. Plainly, there is a great deal to be said about the Cadder case, but it is not directly relevant to the content of the regulations. Of course, we have protections in Scotland and, as the First Minister said in response to Miss Goldie last week, the simple fact is that, in the case of the Crown v McLean, all seven judges at the Court of Session were persuaded that there had been no breach of the suspect’s human rights in his not speaking to a solicitor before being interviewed by the police. The court recognised—this is perhaps just as important, because I am not sure that it has been sufficiently stressed—that Scotland, unlike every other country in Europe, already has a number of safeguards in place. We have corroboration, three verdicts are available to the jury, there is an unrestricted right to legal aid in criminal cases and, in the most serious cases, there is the absolute right to instruct the best solicitors and Queen’s counsel in the country.
12:45
I am not going to rehearse the arguments that the First Minister canvassed last week at First Minister’s question time, nor will I go into the rest of the background to Cadder or Salduz. Suffice it to say that the cabinet secretary has been attending to those matters for a considerable time, and he is continuing to do so, as members would expect. Indeed, I read today in the newspapers that Oliver Adair of the Law Society said that yesterday’s meeting with the cabinet secretary at which the Law Society expressed some of its concerns, which have also been reported, was “constructive”. Although I am not here today to talk specifically about that, Mr Brown raised concerns about it, and I feel duty-bound to put on record some of the important points that show that the Government is acting correctly, swiftly and appropriately.
I primarily asked whether there is likely to be a need to amend the regulations further once the implications of Cadder have been considered.
I am told that the strict answer is no, because any amendment would not be to these regulations. The work on the early stages is covered by a different scheme, which is on advice and assistance, rather than the full criminal legal aid scheme, which, as I am sure Mr Brown remembers, kicks in later. Any amendment would be to the advice and assistance provisions.
Are you satisfied with that, Mr Brown?
Yes.
As Robert Brown said, the regulations deal with new fees structures and are quite complex. I am not necessarily against the policy direction, but it is a matter of concern that it has taken a bit of time to reach the table. It was first discussed in 2007.
I want to raise four specific issues with the minister. First, there is an element of charges being applied retrospectively, going back to April 2008. Why is that happening? It might be because matters have been discussed over time, but I would be grateful if he clarified that.
Secondly, the Executive note outlines the finances relating to the regulations, which are £2 million of in-year costs and £900,000 relating to the retrospective charges. That translates to costs of up to £2.4 million in 2010-11. Where has that money been found? I do not think that it is currently budgeted for, so which budget line is it been taken from? Will it affect other parts of the justice budget?
Thirdly, has account been taken in the finances of the more than 20 per cent increase in legal aid applications in the past year, as noted by the Scottish Legal Aid Board?
Finally, the judgment in the Cadder case is to come out in October. The regulations, if passed, will come into force in early July, at the same time as all the changes in guidelines on suspects’ access to lawyers come into force. That will result in an increase in legal aid applications between July and October, which will have financial implications. Before I support the regulations, I will need to understand the increase in legal aid applications that will occur as a result of the new guidelines and how much that will cost.
First, the money has been budgeted for, so I can assure Mr Kelly on that.
Secondly, because it took some time for the negotiations to reach a conclusion, as is often the case with complicated negotiations, it was felt reasonable that there should be an element of backdating. It is estimated that the cost of the regulations will be circa £900,000 in respect of the retrospective provisions if solicitors choose to submit fresh fee accounts regarding cases for which payments under the previous regulations have already been made. It is further estimated that additional future full-year costs to the legal aid fund will be circa £2 million. The finance director approved that proposal on 20 May. There has been a 20 per cent increase in the number of applications, which has been accounted for.
On the Cadder case, we are looking at the costs with the Scottish Legal Aid Board. We do not have the precise costs at the moment, but we are monitoring the situation and we are satisfied that there should be no significant increase. I hope that that reassures the member.
As I said, the regulations emerged from an extensive consultation with the legal profession. I am not sure whether Mr Kelly will support the fruits of that negotiation, but I hope that he will. The system will be different, as it will introduce an element of block fees, although some work will continue to be chargeable on a detailed basis—in particular, time spent attending identification parades in court and taking precognitions will be charged on a detailed basis. However, the introduction of block fees for solemn cases is part of a movement away from detailed time and line accounting, with the hugely wide variation in costs that arise in that kind of system, towards a system that is more weighted in favour of block fees that remunerates solicitors for advancing cases from stage to stage. Direct comparisons between the new and old systems are, therefore, difficult to make, as the two systems are not equiparate. That said, the proposals have been welcomed by the legal profession and represent a fair outcome, therefore I commend them to the committee.
As I said, I am not against the policy intent of the regulations, although I have concerns about the financial implications. The minister indicated that the £2.4 million has been budgeted for this year. Can he tell us which budget line that has come from?
I am not convinced about the financial implications of the Cadder case. I note the answer that the situation is being monitored and that Government officials are working on it—I appreciate that a lot is going on on the issue—but there are financial implications and I need a better understanding before I support the regulations.
I understand why you are flagging up that concern, but the two matters are not necessarily related under the regulations. The argument can be had on another day, once matters have crystallised and are clearer than they are today. Minister, do you want to respond to Mr Kelly?
I am sorry, but I did not catch what he said. Can he reformulate his questions? He asked four questions, which I thought I had answered. If not, if he restates his questions, I will do my best.
You said that the £2.4 million has been accounted for in this year’s budget. Under which budget line is that covered?
The Scottish Legal Aid Board budget line.
On the Cadder case, we are monitoring the effect of the guidelines that are in place regarding advice and assistance, which have only recently been introduced. However, it is far too early to state with certainty what effect those guidelines will have, especially as they will not come into force for solemn cases—
James How (Scottish Government Justice Directorate)
They will come into force for summary cases on 8 July.
They will not come into force for summary cases until 8 July, so it is still early days. It is far too early for us to make any definitive or exhaustive statement beyond what I have already said.
I thank the minister and his team for their attendance. The meeting will be suspended briefly while they withdraw.
12:55
Meeting suspended.
12:55
On resuming—
The committee has to consider three negative instruments. We have just taken evidence from the minister on the first—the Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2010, on which the Subordinate Legislation Committee has drawn no matters to Parliament’s attention. Given the previous questioning, do members have further comments? If not, are they content to note the regulations?
Members indicated agreement.
I agree to note the regulations on the basis that the minister seemed to say that any potential legal aid payments under the new guidelines relate to separate guidelines that the Scottish statutory instruments does not cover.
On that understanding, are you prepared to agree to note the regulations?
Yes.
Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010 (SSI 2010/213)
I draw members’ attention to the cover note, which is paper 4. The Subordinate Legislation Committee draws our attention to the regulations on the basis that one consequential amendment that the schedule makes involves duplication, although the committee does not consider the validity or operation of the regulations to be affected. If members have no comments, are they content to note the regulations?
Members indicated agreement.
Knives etc (Disposal of Forfeited Property) (Scotland) Order 2010 (SSI 2010/214)
I draw members’ attention to the cover note, which is paper 5. The Subordinate Legislation Committee draws our attention to the order on the basis that, in respect of article 4, there is doubt about whether the order is intra vires. However, that committee does not consider that the order requires immediately to be corrected, and the Scottish Government has agreed to make an amending order before the order has practical effect. If members have no comments, are they content to note the order?
Members indicated agreement.
The order is noted. The committee will move into private session for the remaining agenda item.
12:58
Meeting continued in private until 13:11.