Justice 1 Committee, 25 Feb 2003

Meeting date: Tuesday, February 25, 2003

Official Report 256KB pdf

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Legal Aid Inquiry

We move on to item 6 on the agenda, our inquiry into legal aid, which is a follow-up to our eighth report in 2001, "Report on Legal Aid Inquiry". While we wait for our witnesses to take their seats, I refer members to private paper J1/03/5/5. Members might also wish to consult J1/03/5/9 and J1/03/5/11. We have received submissions from the Scottish Consumer Council and the Glasgow Bar Association and we have correspondence on fixed fees and the issues that were raised by Scottish Women's Aid and the Scottish Legal Aid Board.

I welcome to the committee Gil Paterson, who takes an interest in issues of domestic violence and violence against women. He will be interested in the legal aid issues that Women's Aid has raised. After inviting members of the committee to ask questions, I will bring in Gil Paterson. I remind the committee that at 4 o'clock I will leave to attend another meeting, and the chair will be taken by Maureen Macmillan, who will deal with the delights of subordinate legislation. We have an hour for this item.

I welcome our witnesses as they settle down: Hugh Henry, the Deputy Minister for Justice; Jean Couper, chairperson of the Scottish Legal Aid Board—SLAB; Lindsay Montgomery, chief executive of the board; and Tom Murray, the board's director of legal services and applications. There is a miscellany of people at the back whose names I do not know, who comprise the minister's official support.

Minister, the Minister for Justice noted during last year's debate on legal aid that he had

"sympathy with the difficulties that individuals can encounter when they try to raise a group action".—[Official Report, 13 March 2002; c 10172.]

He went on to state that Executive officials and SLAB would be considering how such difficulties might be overcome. Can you advise us of the current state of thinking on this topic, and when proposals might be forthcoming?

Minister, before you start, I should have declared an interest. I no longer practise as a solicitor, but I am a registered member of the Law Society of Scotland and I once practised on legal aid issues. That was done and dusted four years ago.

Thank you, convener. We are still considering what can be done within the current framework, but the problem is that any fundamental change would require primary legislation. I am afraid that we do not have an opportunity to do that in the near future. However, we are sympathetic to some of the issues that the committee has identified, and we will look to see what can be done.

I will not pursue that, because we do not know what the Administration after the election will be.

I too should mention an interest—I am a non-practising QC.

We note the changes that have been made to some of the capital eligibility limits for legal aid. We are advised that current legislation does not allow for an automatic mechanism to deal with the annual uprating of eligibility levels. What plans does the Executive have to ensure that the real value of such limits is not eroded by future inflation?

Again, any automatic uprating would require primary legislation. Indeed, in the fullness of time, that would be helpful. I hope that the future Administration would look at that; we are certainly sympathetic to the notion. In the absence of that primary legislation, we will come back annually to the committee and to the Parliament, but I share the committee's view that that is not the ideal way to proceed.

Does it not follow that, should the new committee in the next session wish to pursue the matter through a committee bill, it could do so? Is it not the case that the Executive would have no objection to that in principle?

Yes, indeed. New legislation could be in the form of an Executive bill, a committee bill, or a member's bill.

During last year's debate on legal aid, the Minister for Justice noted that he was

"attracted, in principle, to the idea of introducing a new, tapering system of contributions that would allow eligibility to be extended further up the income scale when the cost of legal action is too great for those on middle incomes to undertake."—[Official Report, 13 March 2002; c 10172.]

Can you update us on the Executive's thinking on this subject? When may proposals be forthcoming?

I cannot indicate specifically when that may happen. We are attracted by the principle of introducing a new, tapering system of contributions and would like to do that as soon as possible. Clearly, there will be no opportunity to introduce a new system between now and dissolution, but I hope that future committees and a future Administration will return to that. More technical work needs to be done on the issue and such work would be valuable.

Does the minister accept that we accept that this subject is not without complexity?

Yeah.

That was a very weary affirmative.

Would you like the representatives of the Scottish Legal Aid Board to add to my answers?

Jean Couper is free to pitch in.

We have been doing some preliminary work on the subject of tapering. I emphasise that that work is preliminary. As Lord James Douglas-Hamilton acknowledged, this is a complex subject and a great deal remains to be done. However, it is worth recording that a start has been made.

One of the recommendations that we made in the report on our inquiry into legal aid related to perceived inconsistencies in the treatment of benefits. Our concern was to simplify the system and to harmonise the treatment of benefits across all types of legal aid. I understand that the Executive undertook some work on this matter. Can you update us on that?

Michael Matheson is right to indicate that we have examined closely the interaction between benefits and legal aid. Clearly, there have been inconsistencies and complexities in the system. One of the things that we must bear in mind is that we cannot do that work in isolation. We must do it against the background of changes to the benefits system at United Kingdom level. As members know, in April the working families tax credit and the disabled persons tax credit will be replaced and in October a new pension credit will be introduced.

I am pleased to announce to the committee today that we have decided that all state benefits should be disregarded when assessing eligibility for advice and assistance. That will simplify the assessment process and reduce the need to change the legal aid system every time the UK Government adjusts the benefits regime. It will also widen eligibility. We estimate that about 5,000 more people will qualify for advice and assistance as a result of these changes. Because time is short, we will have to lay new regulations before Parliament in the next few days.

Disregarding benefits in the financial assessment for advice and assistance is only part of the picture. Our longer-term aim is to reach a situation in which benefits are disregarded for civil legal aid too. We cannot move on that immediately, but we believe that that would help to simplify the system and to widen eligibility.

Clearly, such a change would have implications for cost and demand on legal aid funds. Because a significant number of amendments to legislation would be needed to implement it, we could not do everything immediately. We will work towards that over the medium term, as resources allow.

We welcome the change.

The committee also welcomes it, as we have worked hard for it.

I am sure that the committee welcomes the change. I presume that if the regulations are changed in the next few weeks, they will come in to force very soon. I imagine that that will happen in the next couple of months. Is that correct?

Yes. However, the changes relating to disregarding the pension credit will be introduced in October.

I understand that SLAB researched the reduction in civil legal aid applications. It concluded that eligibility was not the strongest factor in reducing the number of applications received in recent years. However, the report also indicated that SLAB would undertake further work on the interaction of the different eligibility rules for advice and assistance and civil legal aid. Has that work been carried out? If so, what were the conclusions?

That work ties in to what the minister said about examining advice and assistance and civil eligibility. We are starting to do some modelling on that, which will continue for the next few months, because it is fairly complex. We have identified areas for which sufficient applications do not come through. We are looking at types of applications as well as various elements of the population to see whether there is proper representation in the applications that we get. It will take us two or three months to get a handle on that.

So the work has actually started.

Yes.

Do you expect to report before the summer?

Possibly.

You said that the modelling would take a few months, so I would have thought that the summer was a reasonable time scale.

It is a fairly complex area. We may have interim views that we will share with the Executive with a view to making them public, but I cannot say precisely when the work will be finished.

Recently published research from the Scottish Legal Aid Board into the supply and use of civil aid advice and assistance and civil legal aid concluded that the number of legal firms providing a service in this area had remained stable over a number of years. That research also stated that there might be a geographical issue; such stability might conceal vulnerability in areas in which provision is low. How will the Executive tackle that?

The overall changes that we are making and the injection of additional resources will significantly contribute to closing any gap and stimulating provision in areas that have been undersupplied or underprovided for in the past. In totality, what we are doing will make a significant contribution.

The Scottish Legal Aid Board and the Law Society of Scotland are discussing how to improve specialist provision. I know that in the past the board has commented on those issues, but I will leave it to the board to indicate how the discussions with the Law Society are going.

I know that the committee is interested in specialisation and we have been trying to engage with the Law Society on that subject. The Law Society has agreed to contact all its local faculties and ask them to keep in touch with their local citizens advice bureaux to provide a better-informed route for the referral of individuals from CABx to practitioners.

We hope that that will ease the existing difficulty with referral. Citizens advice bureaux have commented in the past that they often do not know to which firms and which individual solicitors they can refer potential applicants for particular types of work. It is hoped that that approach will go some considerable way to address that.

On the wider area of specialisation, as the minister said, bringing in quality assurance as part of the civil legal aid reforms will take us down that route. We can then work further with the Law Society to build on that process and look for greater specialisation, greater accreditation and greater knowledge of exactly who is doing what—all within the quality assurance regime that comes as part and parcel of the reform package.

You said that consultation is with the Law Society and SLAB, and you referred to citizens advice bureaux. Should not other people who are caught within the net be consulted on provision—whether it is geographic or specialist—such as Citizens Advice Scotland, and perhaps the Social Welfare Law Practitioners Association, which has just established itself? I can think of more people than just the Law Society who would be in the know.

That is a fair point. As we take the subject forward with the Law Society, we aim to encompass that wider range of potential consultees and the wider range of views. We cited the CABx route because that is one practical initiative that has been agreed with the Law Society, and which I believe the Law Society is taking forward at the moment.

The other reason we focused on CAS was because it stated in its evidence to the committee that it was finding this a major issue for local CABx. That is why we wanted to start with that group. In our local meetings round the country, it was local CABx that said that there was a problem for them, which is why we wanted to speak to them first. However, there are other groups, such as Money Advice Scotland and others, which need to be brought into the arrangement with local faculties of solicitors.

I am concerned that the issue be tied in with CPD. We cannot have a situation, in particular in rural areas, where nobody is expert in esoteric fields and they do not have the chance to gain that expertise.

For the record, you had better explain what CPD is.

It is continuing professional development. Is that part of the plan?

Generally, yes, but the issue is a lot broader than that. Where solicitors say that they have the skills to do certain things, how can we have a regime that ensures that they do have those skills and that knowledge? As my chairman mentioned, the tie-in to the quality assurance regime that is being introduced as part of the civil legal aid reform is a major step forward.

A number of questions have been answered, but can we crystallise on the experience of the client? We have said that we should improve matters, and that we should see where we can go. Say that I lived in a particular part of Scotland and wanted to find a solicitor who specialised in immigration. What have you done to improve that journey? I keep saying that if I can go to tesco.com or any other supermarket website and have my messages delivered, and if I can find out absolutely everything on the internet, why can we not find out that information? Is there a website that can advise me where the immigration lawyers are in Springburn?

The Law Society website will give you an indication of where to go. The arrangement does not work terribly well, because you cannot be certain of the expertise or specialism of particular firms. That is the issue.

Is that not an area that we should develop? A person should be able to go on the net and get information on immigration lawyers in their locality. Are we developing that?

The Law Society provides that to some degree now, but we would like it to be expanded. We would also like that to tie in to our website and other sites, so that people can find that information from various sources, including the not-for-profit sector, which is where quite a lot of people go as a first point of inquiry.

I have one more question for you, minister. Can you provide information on how the plans for the community legal service are being progressed? Can you give a time scale for future developments?

A lot of development work has been done on that and we are still considering some of the issues. I share the anxiety that the committee has expressed about the need to make progress and I hope that we will come back soon on that matter to the committee and the Parliament.

At the end of Jim Wallace's helpful letter of 18 February, he said:

"I am sure that he"—

that is you, Mr Henry—

"will be able to answer any initial questions you may have about the proposed package."

So here we are.

The letter contains three bullet points about the package, which are all important. The first states that the

"new structure is front-loaded",

but there is little explanation of that. How will that work exactly? The letter also mentions

"a new application and reporting regime"

and

"a binding quality assurance system",

which are good ideas, but we would like a little more elaboration of them.

On front loading, the payment system is designed to encourage the use of the legal aid system and early results from it and to discourage cases that drag on interminably, as sometimes happens. If we can get as much work done and as much payment made as possible early in the process, that will be to everyone's advantage.

We are working on the guidelines for, and the details of, new applications, reporting and quality assurance. We hope to have proposals soon. We are preparing a paper to explain how the system will work, which we will issue to the committee. I hope that that paper will give detailed information and will allay any uncertainties that the committee might have.

What about the "binding quality assurance system"? Will that be covered in the paper you mention?

Yes. We will come back to the committee with a paper on quality assurance, new applications and reporting.

When we talk about quality assurance in the context of the new system, we do not simply refer to quality control over the administrative processes, such as registration and certification of solicitors, although that is part of what we mean. A key part of the proposals for quality assurance is the peer review of solicitors' work by a panel of experienced practitioners, which will be set up by the Law Society and administered and paid for by the board. The panel's job will be to come to a view on the quality of work that solicitors deliver for their clients.

The point about consumer interest is a key one to make and understand. We are talking partly about the efficiency and greater economy that can be achieved in administration, but a key factor is the peer review of the quality of work that solicitors deliver to their end clients.

That is helpful.

Will the peer appraisal group be seen as truly independent if members of it are practising solicitors? They might be corresponding with or involved in cases with the solicitors whom they are considering.

That is one of the details that must be worked out in the next phase.

It is a pretty big detail.

Yes, but the important issue is the principle. When we set up such peer review systems, it is important that those who conduct the reviews are seen to be experienced and properly qualified in making assessments and reaching objective and useful conclusions about what they have found and what needs to be done.

We have agreed the principles, but more work must be done on each of the three areas in terms of the process. There must be more discussion and consultation between the Law Society and the board, and we must take other parties' views into account as we try to put flesh on the bones.

I remind witnesses that we require as much information as possible before we conclude our report at the final committee meeting. I hope that there will be more information for the committee before we are well into March.

The committee has had letters indicating a dispute between the Law Society of Scotland and some other organisations, such as Scottish Women's Aid, about how the block fee system was developed. It would be interesting to hear the witnesses' views on that. To focus on a particular issue, there seems to be concern about whether non-court work would be paid for.

We are not concerned about the non-court work. That will be addressed. I am informed that the Law Society has responded to the questions raised by Scottish Women's Aid and I hope that that has explained the Law Society's attitude in detail.

The purpose of what has been proposed is to try and make the system work more effectively, efficiently and quickly in the interests of the client, not in the interests of the legal system and the lawyer. I do not believe that there is anything in what is proposed that will diminish the rights of the individual, or take anything away from the available assistance.

There has been large-scale consultation on the proposals. Many of the concerns that have been articulated have been addressed. I hope that some of the worries that Scottish Women's Aid had were based on a misunderstanding that has been cleared up by now. If it has not, I will do what I can to give that group further assurance.

I have some concerns about how we have arrived at the proposed changes to the civil legal aid system. I understand that the process has involved a dialogue between SLAB and the Law Society of Scotland. They have made recommendations to the Scottish Executive about the changes that they would like. I understand that the Scottish Executive gave those organisations some guidance on the direction in which it would like things to go.

When looking at the correspondence we received from Scottish Women's Aid, I could not help but feel that the punter has been locked out of the process—the person that the changes will affect. The process has been anything but transparent. The minister said that there had been widespread consultation, but I am not aware of an extensive consultation process. One of the concerns that has been expressed to the committee is that there is a lack of transparency surrounding the process. Scottish Women's Aid has often had to flag up an issue because it has heard about it from a third party. Whether the information is correct is neither here nor there. Scottish Women's Aid is not privy to all the information it needs in order to consider in detail what is planned until it has made a suggestion and is contacted by the Scottish Executive or the Law Society.

How can we avoid getting into such a process again? It is a process where the parties have vested interests. SLAB wants to make sure it has an efficient system that reduces bureaucracy. The Law Society clearly intends to promote its members' needs. How can we improve the system to ensure that those organisations, such as Scottish Women's Aid, that will be affected by proposed changes are involved in deciding what those changes should be and that there has been a thorough consultation process before the committee considers the changes?

The member is misrepresenting what has happened. The Executive has been negotiating with the Law Society of Scotland. The Scottish Legal Aid Board has been on hand to provide technical advice and support. This is an issue for the Executive, which makes funds available, and the Law Society, which acts on behalf of those who provide the service. The Law Society has consulted its members extensively. The process can in no way be regarded as secretive.

Michael Matheson asked about those who may qualify for legal aid. It is difficult to identify every potential beneficiary of legal aid and to determine how their views may properly be ascertained. On behalf of those whom we represent collectively, we have devised a system that will deliver a better service and better value for the money that we provide, will reduce inefficiencies in the system and will be more widely available to more people, with increased eligibility. We will soon have a system that is clearly better than the system that we had in the recent past.

There will always be people who feel that they have missed out. I do not want to hazard a guess about how we would carry out a consultation that reached everyone who is a recipient of legal aid. However, everything that we have done has been done on the basis that the client is at the heart of our concerns. We have addressed most of the concerns that people have expressed about eligibility, access and value.

I repeat that the issue has been dealt with by the Executive and by the Law Society of Scotland acting on behalf of solicitors. The Scottish Legal Aid Board has provided technical support and advice.

I endorse what the minister has said. The Scottish Legal Aid Board is interested in the reforms for a number of reasons, not least because they offer greater efficiency and economy in administration. We also approach the reforms from the consumer's point of view. Our aim here, as in other areas of our work, is to introduce, and to see introduced, changes to the system that are beneficial to the end recipients of legal aid, who include the client base of Scottish Women's Aid.

SLAB has on-going consultation and communication with a wide range of organisations throughout Scotland. Although we do not consult on every specific initiative in which we are involved, we aim—through our wider consultation process—to keep abreast of the key issues for client groups, which are highlighted by the representative bodies. We are not isolated from the problems that people experience. We try to maintain knowledge of those problems and to take them into account when we discuss proposals.

I understand that the Law Society offered to meet Scottish Women's Aid after the committee received its first letter. That meeting does not seem to have come to pass—

I would not want you to speak about what the Law Society has or has not done.

I would like to add one more thing—I made my previous point to lead on to my next point. I understand that a meeting between the Law Society and Scottish Women's Aid has been organised for Friday this week. Officials from the Scottish Legal Aid Board will be at that meeting, at which I genuinely believe many, if not all, of the concerns that Scottish Women's Aid has expressed can be put to rest; those concerns have little foundation. I also hope that the meeting will be the start of the wider discussion process that leads to flesh being put on the bones of some of the proposals.

My contention is that we should try to find a process that avoids the present confusion for organisations such as Scottish Women's Aid. The minister would acknowledge that no one is seriously suggesting that everyone who has been, or is, in receipt of civil legal aid should be involved in the process in some way. However, as SLAB has said, part of the aim of the changes is to ensure that we provide a better service to those who receive it—the clients.

Representative organisations could be party to the process of deciding what those changes might be, but as far as I can see, that has not happened. In large part, the consultation has involved members of the Law Society. Although I can understand why they are involved in the process, I want a wider group of people to be involved in the process. I will give an example off the top of my head of how that might be done.

When the draft proposals have been formulated, they could be placed in the public domain for three months, which would allow organisations such as Scottish Women's Aid and the Scottish Consumer Council to be consulted. They could then say that they are concerned for reasons A, B, C and D. If those points were taken on board before the proposals were brought before the committee, that would avoid the need for exchanges of letters. People would feel that they had been involved in the process and had been able to influence how the system would operate. Is there a reason why that could not be done?

Even if that were done, my experience in other areas at other times tells me that it would not necessarily result in a happy and clean conclusion—

Surely it would be a start.

Please let me finish. There would still often be unhappy and dissatisfied people—such consultation does not always resolve problems neatly.

We have delivered significant progress, but we will reflect on the process. If there are better ways of communicating and of reaching decisions in the future, we will learn lessons that need to be learned from that reflection. If improvements can be made, they will be made. We will bear in mind Michael Matheson's suggestions.

I call Maureen Macmillan, after whom I will call Gil Paterson, who has a special interest in women's aid

I agree with Michael Matheson's view that the process could have been better. Scottish Women's Aid has specific concerns; for example, it received advice from the Association of Independent Law Accountants about the effect that the new proposals might have and is worried that they might result in an increased contribution for applicants. Although that might not be true, Scottish Women's Aid has concerns that it feels have not been properly addressed.

I do not know whether the minister has seen Scottish Women's Aid's correspondence with the Law Society of Scotland. The letter from Scottish Women's Aid was among the committee's papers for the meeting, which are available on the website, but we received the Law Society's reply only when we arrived for today's meeting. Is the Executive saying what the Law Society is saying? It seems to be rather strange that a spat is going on between Scottish Women's Aid and the Law Society and that the Executive is not involved.

I have seen the letter that Scottish Women's Aid sent to the convener, I think in January. I have not seen the Law Society's reply to Scottish Women's Aid, so I am not able to comment on it. All I can say is that the concerns that Scottish Women's Aid has expressed are groundless. I hope that all its fears will be allayed when it meets the Law Society and SLAB. I do not believe that what was suggested in the letter that I saw was accurate, but I have not seen the reply, so it would be wrong for me to speculate on it.

I echo the sentiments that have been expressed by Maureen Macmillan and Michael Matheson. We must, in such processes, take the users into account, rather than those who have vested interests. The emphasis is on getting cases to court, so what will the effect be on family law practitioners, many of whom already settle cases outwith court because that is cheaper than settling in court?

I think that Gil Paterson is asking about the impact of the block fee.

The block fee reflects the work that takes place out of court as well as that which takes place in court. It is not accurate to suggest that non-court work is underpaid. We believe that the new system will reward efficiency where the current system sometimes seems to reward inefficiency. As far as the clients and the taxpayers are concerned, the outcomes are what are important. It is not what is done during the process; it is what is delivered. The new system will provide a better way of achieving effective outcomes. It might be better if SLAB answers the questions about the technical aspects of the process.

Our view is the same as the Executive's—the scheme is not about paying only for court work and not for negotiation. In our discussions with the Law Society, we spent a lot of time trying to ensure that negotiation was rewarded. SLAB—including board members who are practising solicitors who deal with family work—believes that the balance is about as right as we can get it just now, especially given that it is a major change in the way in which solicitors will be paid. We certainly do not think that there is an issue about paying only for court work.

There will be a need to ensure that advice and assistance for civil work and civil legal aid sit comfortably together. One of the priorities that have been identified for the Executive, SLAB and the Law Society is a review of how civil advice and assistance will operate, in order to ensure that matters that are better dealt with under advice and assistance will continue to be so, rather than migrate to civil legal aid. There is an undertaking to do a lot of work on that in early course.

Despite that, I have a comment from a lawyer who does work for Scottish Women's Aid and who says that the block fee proposal is detrimental and

"encourages litigation only, not negotiation".

That seems to be contrary to what you are telling us.

We disagree with that and would be more than happy to go the meeting that we gather is to be held on Friday with Scottish Women's Aid and go through some of the detail.

I need clarification of something. Civil legal aid is triggered when a court action is raised. Advice and assistance is given pre-court. The fixed fees relate to civil legal aid.

The new block fee scheme is for civil legal aid only—it does not touch advice and assistance.

How can you be encouraging negotiation when the advice and assistance regime, in which settlements can be made before actions are raised, has not been changed? In order to benefit—if "benefit" is the right word—one must raise an action that might require that horrible things be put down on paper, which can upset settlements.

Civil legal aid is also used to encourage negotiation when there is no intention to go near a court. When someone obtains a certificate, it is frequently a strong spur to sit down with the other side and negotiate so that the matter does not go further, because doing so can waste everybody's money.

A moment ago, I tried to make the point that we need urgently to consider the operation of civil advice and assistance to ensure that the two systems sit well together. The new system does not start until 1 October. The Executive has asked us and the Law Society to examine advice and assistance in early course, to bring the two systems together.

For accuracy on the record, I confirm that now that we have dealt with civil legal aid reform, it is urgent that we take action on fee rates for advice and assistance, as the committee's report recommended. That will be done.

That pre-empts my question, which was to establish the time scale that you envisage.

We will act as soon as we can. We accept that the matter is urgent.

I am concerned about the procedures and how they will affect vulnerable people. Many people who do not qualify are vulnerable and my reading is that the Executive will increase, rather than decrease, that number. Will the minister give a quick explanation of the impact on vulnerable people who need civil legal aid?

It is clear that we have a difference of opinion. One organisation is making claims that we believe are unfounded. We have a different view, the Law Society has a different view and the Scottish Legal Aid Board has a different view. We will have to agree to differ. What is important is the fact that the organisation concerned will have an opportunity for discussion with the Law Society and the Legal Aid Board. If anything that is contrary to what I have said arises from that discussion, I will expect that to be fed back to the Executive. However, I hope that the promised meeting will allay fears and answer all the questions.

I understand that the cake will be the same but the slices will be bigger, so people will fall off the end. Have I got that wrong?

Yes. As far as I am concerned, you have got that wrong and I have seen nothing that suggests otherwise.

The reform package contains nothing that will reduce eligibility or access. There is no suggestion, and no one should think that there is, that the board will make any levies on applications. There is no crossover of an increase in spend in civil legal aid with an increase in the contribution from applicants. I see nothing in the proposals that will militate against the applicant. Everything is positive and is intended to help applicants to gain access to practitioners who are willing to provide civil legal aid and stay in the civil legal aid system, and to solicitors who are quality assured and who are being remunerated fairly for doing a good job. As part and parcel of that, we will have a more efficient and effective system. Those are all plus points.

Because such concern has been expressed—obviously, we await the outcome of the meeting—will the minister give us a time scale for producing the regulations? Will he assure us that we will have the opportunity to consider timeously all the proposals that are still fluid and that we will not simply be presented with the regulations?

I cannot give a specific time scale. We regard the matter as urgent, so we will act as soon as we can.

We want time to consider the full proposals before the regulations are produced.

We will follow the normal parliamentary procedure and we will try to give the committee sufficient information to do its job. I cannot say more than that.

Perhaps you would write to us to let us know what will happen, minister. I have put you on the spot, but it is important that the committee have a chance to consider the impact of the regulations, including the issues of fixed fees and quality assurance. We need to have a good look at the proposals before the regulations are produced—it would be useful to have the information at least a week in advance.

We will do what we can to give the committee sufficient notice to allow it to do its job. We are mindful that we must follow protocols and rules. We appreciate the committee's work—some of the committee's recommendations have been helpful to us in making progress. We will do all that we can to obtain the committee's opinion on the proposals, within the constraints under which we operate.

If the committee receives that information and puts it in the public domain, that might allay some of the anxieties of organisations such as Scottish Women's Aid. I do not wish to be difficult, but that information would assist in the process.

I understand that.

I have one or two tidying-up questions. How is the Executive responding to the committee's recommendation on fee rates for criminal legal aid?

We do not make any bones about the fact that our priority has been civil legal aid. We will in due course reflect on criminal legal aid and we will undertake whatever research is required on that. We are also mindful of the financial implications, given that we will inject a significant investment of new money into the civil legal aid system. We understand the concerns about criminal legal aid and we will deal with them, but that will be done after proper research and as resources allow.

We await developments with interest. Perhaps those developments will be in the not-too-distant future although, from what the minister says, they might be in the distant future.

Our report made recommendations on sanctioning expert witnesses, which were, in part, addressed by the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2002. Do you plan any other changes to the rules and procedures on sanctioning expert witnesses, for example, to streamline the process? If so, how will the impact of those changes be monitored?

The streamlining has largely been done. I ask the representatives of the board to comment on the technicalities.

After consultation, we issued revised guidance on the question of sanction for counsel, which has been generally well received. We are now carrying out a larger review of sanction for experts, which is an area of substantially growing expenditure for us. We want to work out whether there are better and simpler ways of procuring experts, both on the criminal and civil sides. In that work, which will continue until the middle of the summer, we expect to consult not only the legal profession, but more widely, to find out whether there are mechanisms that are better than the present arrangement.

I am glad to hear that; concern has been expressed that in some reparations actions the insurers have access to the best experts. That is expensive and, in my experience—although others may dispute this—the board is sometimes not prepared to sanction such experts.

Will you outline the changes that have been made—since the publication of our report—to the clawback arrangements that are used to repay SLAB? Are other changes under consideration?

The legislation has been changed. I could maybe pass that on to the board to—

Yes, please. I see that the exempted amount has gone up from £2,500 to £4,200. Is that correct?

Yes, and it is about to go up again in line with inflation. That is the biggest and most significant change that has been made in that area for many years. It has been welcomed by most of the groups to whom we have spoken, because one of their primary concerns was addressed.

We will now have an annual increase in line with inflation, which is excellent. For how long has the exempted amount been £2,500?

It was £2,500 for about 15 years.

That £2,500 is protected from clawback, but the rest is taken if there is not sufficient to pay the fees. The committee should be applauded for having drawn attention to those matters and for having pushed the process of justice along for the consumers of legal aid.

I am delighted to say that we have finished on time. We will return to women's aid once Gil Paterson and others have had their meeting. I now hand the chair over to Maureen Macmillan. Sorry—I have forgotten the tea break. I suspend proceedings for 10 minutes. Maureen will take over for the final part of the meeting.

Meeting suspended.

On resuming—