Subordinate Legislation
Scottish Legal Aid Board (Employment of Solicitors to Provide Criminal Legal Assistance) Amendment Regulations 2003 (SSI 2003/511)
Item 2 concerns one piece of subordinate legislation. I have an interest to declare. I am a member of the Law Society of Scotland and an enrolled solicitor in Scotland. Do any other members have an interest to declare?
Members indicated disagreement.
Nicola Sturgeon wishes to move that nothing further be done under the amendment regulations. There is a procedure to guide the committee on how to determine the motion. Under that procedure, Executive ministers and their advisers are entitled to be present. I welcome the Deputy Minister for Justice, Hugh Henry, and his colleagues from the Justice Department, Ian Allen, Kirsty Finlay and Anne Cairns.
Members should have received a note from the clerk setting out the history of the regulations, correspondence from the Executive and a response from the Law Society. I thank the Deputy Minister for Justice for his letter, which was also circulated to members.
The format for this occasion is a mini-debate. Before I proceed to that stage, I invite members to raise points on which they wish to receive clarification from the Executive. Equally, if members have any factual or technical points on which they seek guidance, they should feel free to raise them.
As no member has a point to raise, we move to the mini-debate. The structure is the same as that of a normal debate. First, I will invite Nicola Sturgeon to speak to and move the motion in her name, after which I will open up the debate to members. I will also ascertain from the minister whether he would like to speak at the beginning of the debate, after Nicola Sturgeon has spoken. It is appropriate that after they have listened to the open part of the debate, Nicola Sturgeon and the minister should be asked to close the debate. We can then determine how to deal with the motion.
There is no set length of time for these proceedings. Would I be correct in assuming that your comments will be reasonably brief, Nicola? I do not want in any way to constrain you, but are we in for a half-hour peroration, for example?
No. Perhaps 20 minutes.
Twenty minutes?
No—not really. I will be as brief as possible. I will probably take a maximum of five minutes.
Seriously, I do not want to constrain you. I just wanted to get some idea of what we are doing.
I do not think that being a former member of the Law Society of Scotland is a registrable interest, but it is probably appropriate to place that on the record, given the subject of the regulations.
I am not opposed in principle to a public defender system. If such a system can be shown to be more cost-effective and of just as high a quality as the alternative, then there is nothing inherently wrong with it. My objection to the regulations before us is that I do not think that the case has yet been made for extending the pilot project.
I assume that the whole point of conducting a pilot project in Edinburgh was to obtain the evidence base on which future decisions on the public defender system could be based. The limited amount of evidence that there is does not, in my view, make the case for the pilot project to be extended. Only one evaluation report of the pilot project has been carried out, which was published in September 2001, three years after the project commenced. I appreciate that that time scale was laid down in statute and so was not open to negotiation. In the intervening two years, no substantive research has been carried out to update the report's conclusions.
It is fair to say that the report's conclusions were mixed. It had some positive things to say about the public defender system. For example, it found that many more guilty pleas were being made at an earlier stage in proceedings, which delivered benefits for the criminal justice system as a whole. On the other hand, comments were made about the conviction rate being higher for public defenders' clients than for those represented through the private sector, even taking into account the tendency for earlier guilty pleas.
The report contained some remarkable findings about client satisfaction. Clients under the public defender system were not entirely enthusiastic about it. The statistics that I am about to quote do not cover those people who, early in the project, had no choice but to be represented by the public defender; they apply to those who, later in the project, volunteered to be represented by the public defender rather than by a private solicitor. Of those people, only 48 per cent—as opposed to 71 per cent for clients of private solicitors—said that they felt that the public defender had stood up for their rights. Only 60 per cent—compared with 83 per cent of clients of private solicitors—felt that they would go back to the public defender. On that basis, the evidence was mixed.
The report looked into cost. The evidence that was put forward does not justify a massive extension of the pilot project. When the report was published, it was said that there was potential for the public defender system to be more cost-effective than private solicitors doing legal aid work. It was found early on in the project that there was no difference in cost between the public defender and private solicitors. In the early stages of the project, the volume of work was low, so the unit costs—the costs per case—were higher.
My difficulty in assessing whether we have moved on is that no evidence has been put forward since that report to indicate how the cost of the public defender system compares to private solicitors' work now—two years later. Some information is in the briefing paper from the Public Defence Solicitors Office. The briefing gives information about its costs today, but it does not give comparative information about the costs of private solicitors.
The briefing shows us that the work of the PDSO in Edinburgh has not increased in quantity, although it states that the quality of the cases is improving. There has not been a substantial increase in the volume of work; between 2000-01 and 2002-03, there was a slight decrease in the volume of work. However, the running costs of the office have fallen slightly, which means that there is a slight—but only slight—decrease in the cost per case.
The briefing states that the PDSO is still working with spare capacity. My argument is that a more sensible approach would be to get the Edinburgh project working at full capacity in order that proper cost comparisons could be made between the public defender system and the work of private solicitors. If there is a reason why it is proving difficult to increase demand for the public defender and get the office working to full capacity, perhaps there is something that we require to investigate.
I am not convinced that evidence has been put forward that justifies taking the step of extending the pilot project at this time. It would be more appropriate further to evaluate the Edinburgh project and produce evidence so that if we decided to move forward at a later stage, our decision would be based clearly on evidence.
I will make two final points. One is about funding of the proposed pilots in Glasgow and Inverness. The note from the Scottish Executive states that because the salaries of the public defender solicitors will be met from the existing legal aid budget there will be no additional costs. I imagine that that is true in terms of salary costs, but we are given no information about costs associated with setting up offices. My understanding—the minister will correct me if I am wrong—is that in Glasgow the intention is to set up an office in the city centre. I can say from personal experience that that does not come cheap. We are not given any information about the costs—other than the salaries of the solicitors—that would enable us to see what the overall cost of extending the project would be.
My final point is about consultation. The Subordinate Legislation Committee and others have made the point that stakeholders other than the Scottish Legal Aid Board have not been consulted. I take on board the points that have been made counter to that—that there is no obligation on the Executive to consult on an instrument of this nature and that the policy behind it has already been consulted on and debated at length since the idea of having public defenders was first mooted some years ago. That is correct, but I still think that there should have been more consultation on the regulations. This is being billed as the extension of a pilot scheme, but to extend something that is already running in Edinburgh to Glasgow and Inverness is a massive extension. The choice of location is not incidental or irrelevant; it is certainly not irrelevant to private solicitors, for example. A public defender pilot in Glasgow will have much less effect on private solicitors in that city, which is big enough to absorb it, than it will in Inverness, where it is reasonable to assume that many smaller private firms may have something to fear from the pilot. That is not a reason not to extend the pilot, but it is a reason why there should have been greater consultation.
I will end where I started. I am not opposed to this in principle, but if we are serious about evidence-based policy, we should take decisions on the basis of evidence. I do not think that there is evidence that the Edinburgh project has been a soaraway success—or even, on balance, a success at all—to justify extending the scheme in the way that is proposed.
I move,
That the Justice 2 Committee recommends that nothing further be done under the Scottish Legal Aid Board (Employment of Solicitors to Provide Criminal Legal Assistance) Amendment Regulations 2003 (SSI 2003/511).
Nicola Sturgeon spoke for a very concise nine minutes, so feel free to take the same amount of time if you so desire, minister.
I must confess that I am somewhat surprised about what is before us today. Nicola Sturgeon said that she is not opposed to the public defender system, but she certainly set out a fairly robust case against not only the extension of the scheme but the principle.
I will not go into the history of the proposals, which are well laid out in the papers that members have before them, but I will address the need to consult and to flag up our intentions. In February 2002, Jim Wallace announced his intention to continue to pilot the scheme and, following consideration in the Parliament, the necessary statutory changes were incorporated into the Criminal Justice (Scotland) Act 2003. Cathy Jamieson announced that the new pilot projects would be located in Glasgow and Inverness.
It was always our intention to go beyond the Edinburgh scheme. We felt that going to Glasgow and Inverness would provide a useful comparison with Edinburgh. The reasons included one that Nicola Sturgeon mentioned, which is that Inverness has a smaller population than Edinburgh and has a rural hinterland. The fact that questions might be raised about access to appropriate skills was another reason for trying out the scheme in an area like Inverness. We also wanted to compare Inverness with a city like Glasgow, which is an area of high density with an urban population and a high demand on legal aid and judicial services. We felt that the balance between the two areas would enable us to draw conclusions.
As for the need to have more evaluation, I do not know how much more we need to have. The current evaluation, which is more than 270 pages long, was conducted over a significant period of time by a number of leading academics. The evaluation has been thorough. Nicola Sturgeon made a point about whether there is enough business in the pilot areas, but one of the ways in which the scheme has to be tested is by extending it. Simply restricting the evaluation to a relatively small pilot would not give us all the information or all the answers that we require. The principle of introducing a scheme such as the one that we are discussing is well established, as is the principle of extending the pilots.
MSPs were asked to consider the changes that would allow the introduction of the new pilots during the passage of the Criminal Justice (Scotland) Bill and this debate should have taken place at that point. At that time, we debated amendments that were lodged by Bill Aitken and the Executive was clear about its plans. We said that an office in a rural area and an office in an urban area would allow an increased work load without affecting local business.
The time to oppose the principle of the extension of the scheme was when the Criminal Justice (Scotland) Bill was passing through the Parliament. Nicola Sturgeon should not come back after the scheme has been extended and after the instrument has been put into effect to try to nullify and unravel what has been put in place.
Notwithstanding some of the criticisms that Nicola Sturgeon made, I believe that the scheme is making a positive contribution to the extension of access to justice in Scotland. I recognise that much more requires to be done. However, the extension of the pilots will give us more, better and more varied information on which any conclusions that we draw can be based. I hope that, at this very late stage and given that we have had an opportunity to debate some of the principles, we do not destroy what is potentially a valuable scheme.
I have a brief comment. I concur with the minister that the motion is too little, too late. There have been several opportunities to address both the substantive points that Nicola Sturgeon has raised. One is whether there is sufficient evidence to support an extension; the other seems to be whether the consultation has been sufficient.
I was struck by the fact that the Law Society's letter echoes the Executive's comments on the genesis of the regulations and states that the Executive was under no obligation to consult on the issues, except as part of the process of producing the Criminal Justice (Scotland) Act 2003. I do not recall the matter being debated much then and I do not think that it is helpful for it to be debated now. In general, pilots are useful mechanisms for the Executive and others to test whether a proposition works in practice. I am convinced by the argument that we should extend the pilot to a rural area and to a comparable urban area. I have no difficulty with supporting the regulations.
I do not really want to make a speech, but two issues occur to me. I am not hostile to the principle of a public defender system or to the need for a pilot scheme. The practical justification that is given in support of the regulations is that they are required to extend the scheme to Glasgow and Inverness. However, that is not what the regulations say; in fact, the regulations will remove totally the restriction in the original regulations, which means that all of Scotland will become a canvas on which experiments may be carried out. I am slightly uneasy about that.
Nicola Sturgeon made the point that the acid test of whether the system is good or bad is how it works in practice. At present, we have an inadequate basis on which to test that proposition—it is not sufficient to decide only on the basis of the pilot in Edinburgh. There are strong arguments for saying that using Glasgow and a rural location would provide a good prospect to determine the matter further. However, I am slightly uneasy that that is not what the regulations will do, given that they will wipe away the existing restriction. I point that out because it is important that the pilot scheme is evaluated sensibly. We all anticipate that, when the pilot scheme expires in 2008, we shall be asked to homologate the arrangement on a pan-Scotland basis. Before we do that, we will expect to consider evidence on and evaluations of the impact of the pilot. I am a little anxious that the scheme might be extended throughout Scotland without the necessary mechanisms being in place to monitor it.
You have my assurance that that is not our intention. The wording of the regulations allows us to determine where the new pilots will be. We have chosen Inverness and Glasgow and we will not move beyond that. You also have my assurance that rigorous evaluation will be carried out and that any intention to change the pilot—whether that is to abandon the scheme or to extend it—will be brought back to the committee and to Parliament. If the pilot is a success, we will shout about it from the rooftops, but if not, we will be big enough to admit that.
I thank you for that.
On the point that this is not the time or the place to raise the matter, I must point out that this is the first opportunity since I became a member of the committee at which I could have raised objections. A certain period is allowed before instruments that are subject to the negative procedure come into effect in order to allow members to lodge motions to annul them, if they feel that that is necessary. That is the correct parliamentary procedure. Any member who wishes to use that power of scrutiny may do so. I am not sure that I should apologise for using that power when I have legitimate concerns.
As I said at the outset, I am not opposed to the principle of the public defender system if it can be shown that it is of as high a quality as, and more cost-effective than, the alternative. I do not think that either of those has been demonstrated. I have no reason to doubt the minister's view that the evaluation was thorough, but it reached a mixed conclusion. The fairest thing that can be said about the evaluation is that the jury is out on whether the system has been successful.
If we cannot get any further information from the Edinburgh pilot and have to go elsewhere to get more information in order to evaluate the project, I suggest that we should ask why we cannot get more information from Edinburgh and why the system is still operating below capacity after five years. Why did the demand and the case load not increase over the years of the project? Those are pertinent questions to ask before a decision is made to extend the project.
I have already made my points about consultation—they were the least of the comments that I had to make today and they are not central to the argument.
The minister did not refer to what I said about the cost of extending the pilot project. I do not think that what the Executive's notes say about there being no added cost is true. If the minister wishes to give more information on that, I will be happy to hear it.
Although this is a little informal, I ask the minister whether he wishes to make any concluding comments.
I had not intended to. There are certain things that I would be tempted to say but which might reopen the debate. If you wish the debate to continue, convener, I am more than happy to make those remarks, but I am in your hands.
If it is in order, I would be pleased if the minister could give a direct answer to what is a direct question: what will be the cost of extending the pilot projects?
Do you wish to respond to that, minister?
Nicola Sturgeon indicated that this has been her first opportunity to object to the proposal. However, like every other member of the Parliament, she had the opportunity to lodge amendments when the matter was debated. She did not do so. We have had no correspondence or any other indication from Nicola Sturgeon about any concerns that she has until the very last minute, which I find a bit surprising.
Nicola Sturgeon raised some cost-related issues concerning Glasgow city centre. Those will be the responsibility of the Scottish Legal Aid Board. We would not be responsible for determining expenditure in that regard. There has been a slight reduction in the number of cases that have been handled by the PDSO between 2001-02 and 2002-03. Fewer solicitors were available and the total spend fell. It could be argued that that demonstrated better value for money. I think that the issues of cost that Nicola Sturgeon raised are not central to the argument. They are largely the responsibility of others. In any case, I do not think that they are a significant barrier to the extension of the scheme.
I will regard those as your concluding remarks, minister. Do you have any final remarks to make, Nicola?
I do not think that an answer was given to my question. There are two points in relation to cost. There is the comparison between the cost per case of private solicitors and that of the PDSO. Secondly, there is the cost of setting up pilot projects in various areas. I do not think that answers have been given to either of those points. I do not want to prolong the discussion, so we can move to the vote if you wish.
I take it that you wish to press your motion.
Yes, in the absence of answers to reasonable questions.
The question is, that motion S2M-630 be agreed to. Are we agreed?
No.
There will be a division.
For
Sturgeon, Nicola (Glasgow) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
The result of the division is: For 1, Against 5, Abstentions 0.
Motion disagreed to.
The vote will be recorded in the Official Report. The matter is effectively at an end, and no further parliamentary procedure on the regulations will follow.
I thank you, minister, and your colleagues for attending this afternoon, which was very helpful. I know that you had to be here under the rules, but I thank you nonetheless for your helpful replies.