Criminal Legal Aid (Fixed Payments and Assistance by Way of Representation) (Scotland) (Miscellaneous Amendments) Regulations 2014 [Draft]
Item 3 is consideration of an affirmative instrument: the draft Criminal Legal Aid (Fixed Payments and Assistance by Way of Representation) (Scotland) (Miscellaneous Amendments) Regulations 2014. The cabinet secretary designate is staying with us for the item. I welcome the Government officials: Denise Swanson, who is head of the access to justice unit, and Alastair Smith, who is a solicitor in the directorate for legal services. This is an evidence-taking session in advance of the debate on the draft regulations, so officials can also be questioned, but I understand that the cabinet secretary designate wishes to make an opening statement.
The regulations are the latest in a number of proposals to reduce the costs of the legal aid fund without affecting access to justice. It is reasonable that, when solicitors dispose of cases prior to trial, their fees should reflect the fact that the level of work required for clients is less than that for a case that is taken to its conclusion through the courts. That is what the regulations will deliver, in line with other fee regulations. For example, the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 take a similar approach to ensure that, when cases are disposed of prior to trial, fees reflect the lower level of work that is required.
It is important to note that the regulations that we are considering today are not just about savings to the fund. The changes support consistency and simplicity and will benefit solicitors, clients and the Crown. For example, the draft regulations will ensure that the preparatory work that is done by a solicitor for cases that are continued without plea is captured in the fee. That means that, should the case not be called, the solicitor will still be paid for the preparatory work that has been undertaken.
The draft regulations will ensure that exceptional-case status applies to all schedules to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999. That will allow a solicitor to be paid detailed rather than fixed fees in certain circumstances, when the work involved is well beyond what was expected. The draft regulations will also encourage earlier resolution of cases through greater use of early pleas and negotiations, which the Crown would welcome.
The Law Society of Scotland has been engaged in the development of the regulations and is fully aware of their content.
As ever, I am happy to answer any questions.
You might be aware of a late submission from the Law Society of Scotland that expresses concern over the provision for duty solicitors to be paid a half fee when there is a guilty plea. The nub of the issue is that, as well as looking at the full fee, we would not want to revert to not guilty pleas being tendered just to ensure that a fee is provided, while the plea is changed at a later date.
The Law Society has suggested that we delay implementation of the regulations to allow soundings to be taken and perhaps to allow the Government to speak with the society. We do not have to deal with the motion on the regulations until 12 December, and I think that you are coming back to the committee next week. That might give you time to consider the submission more fully, if you are not aware of it.
I am aware of it, but I am somewhat surprised, given that the Law Society was fully engaged in the process of drafting the regulations. It seems a bit of a last-minute call on the Law Society’s part. We have had dialogue in the Government on the issue that the society has highlighted. Notwithstanding what the society says, I am satisfied that the consultation and dialogue that we have had with stakeholders have been sufficient to allow us to press ahead with the regulations.
So you have no concerns that, if the regulations come into force, guilty pleas could be delayed and not tendered until a later date.
I am not overly concerned about that, because those issues were considered during the drafting of the regulations. I am somewhat surprised by the submission, because the Law Society was engaged in that process and did not comment on the matter. I confess that I am a little surprised that we received—just before 5 o’clock last night, I think—a note from the Law Society saying that it had apparently had a sudden change of heart.
I certainly was not aware of the submission until I came into the committee room this morning and found it sitting on my desk. Previously, the committee and the convener have been most annoyed about late submissions. I have read the other papers on the regulations, which I received at the weekend. The policy note says that the Law Society, which is the regulator and representative body, is happy with the proposal. However, I came into the committee room this morning and found the submission sitting in front of me—I have not even had a chance to look at it. If the Law Society had wanted to raise concerns, it could have done so earlier.
The regulations have been before the Delegated Powers and Law Reform Committee, which raised no concerns. We came in today and found the submission sitting on our desks, and we have been asked to delay the regulations. I for one do not think that we should do that, because we have not—
That is a statement. I am not questioning it, but—
We have not previously accepted late submissions, so I do not see why we should accept this one.
Members are debating with each other rather than asking the cabinet secretary questions. That makes his life nice and easy, but it is not the point.
I am not sure whether the Law Society has had a change of heart or whether further scrutiny suggested that a little bit of the regulations did not do what the society thought it would do.
We are told that the auditor has found in favour of the Glasgow Bar Association. I would like to learn a bit more about that. Will the Scottish Legal Aid Board lodge an objection to that decision?
Yes, it will, and that will go to a sheriff. A matter of law is to be determined and the only way for it to be determined is for it to be referred to a sheriff. The ruling was granted on that basis.
It is worth keeping it in mind that the regulations do not change anything. They clarify existing arrangements, so they do not make a major alteration in any shape or fashion and will have no significant impact on practice in general. They purely clarify uncertainties about previous regulations.
So you do not think that there is any benefit in waiting until that appeal has been heard.
No—not according to the advice that I have been provided with.
Roderick Campbell is next.
To be honest, Mr Matheson, I was going to ask about SLAB’s position as well, so my question has rather been overtaken by events. I will leave it there for the moment.
Oh. I had expected some help to understand—
I need time to think about where this is going.
Elaine Murray can come in.
My question was similar to Alison McInnes’s as well. It seems to be a taxation decision rather than a legal one. Can anyone clarify exactly what it was?
I ask Diane to clarify that.
It is Denise.
I am sorry, Denise.
That is your first mistake.
I have to say that your predecessor was good at calling me Deirdre, cabinet secretary. I have one of those faces.
With the regulations, we want to clarify current practice and the policy for all cases in which early pleas are tendered, not only cases where there is a single charge. The taxation issue went to the auditor of court because of the lack of clarity. The auditor said in his decision that he did not feel qualified to take a view on a matter of law and it needed to go to a sheriff. The matter has gone to a sheriff in three previous circumstances. In one of them, the sheriff held for a solicitor and, in the other two, for the Legal Aid Board.
We are concerned with clarification and simplification. In the majority of cases, solicitors accept that a half fee is the appropriate fee in the circumstances and that is what they put in their accounts.
The submission from the Law Society says that the taxation point was
“on the interpretation of the regulations”.
Is that the current regulations?
Yes.
If the motion on the draft regulations were agreed to today and the objection went to the sheriff, would the sheriff take a view on the interpretation of the draft regulations? I am trying to understand whether it would be a mistake to agree to the motion while something is being decided.
I understand that the sheriff will take a decision based on the 2011 regulations. The decision will not be taken on the basis of the revised regulations that we are proposing.
What impact would the decision on the 2011 regulations have on the draft regulations? Would there be any impact either way?
The impact would be that we would see no further need for future cases to go to taxation on the basis of clarification. As I said, the majority of cases do not go to taxation; solicitors accept the half fee.
I understand that.
What you propose will clarify the situation so that, in the future, there will be no dispute as to whether there should be taxation points, so there would no longer be such cases.
Yes.
13:00
The draft regulations clarify the system. The only change is to the level of fees that are received for the different stages. Principally, the regulations clarify existing regulations. Alastair Smith wants to make a—
I will take Roderick Campbell, because he has not had a question yet.
I have a comment. Perhaps I should refer to my entry in the register of interests: I am a member of the Faculty of Advocates.
If we did not take a decision on the regulations today—to give us time to reflect on them—would that cause difficulties for the Government?
That would continue the uncertainty. We are trying to give clarification and certainty on the matter.
Could we delay the decision for one week? There is a wee bit of difficulty in understanding the effect of the regulations clearly. Mr Smith, are you coming to our rescue?
I am perhaps coming to your rescue to a limited extent in relation to the effect on existing cases of approval of the regulations. I draw the committee’s attention to regulation 2, which says:
“These Regulations apply only in respect of proceedings commenced on or after the day on which they come into force.”
The regulations’ effect would be prospective. We think that they would remove the uncertainty to which the Law Society refers, which would be an improvement.
I will be absolutely clear. There is an appeal pending. If the regulations are approved but the appeal is lost and Glasgow sheriff court’s taxation decision is upheld, will the Law Society’s point still stand?
No.
We do not want to get things wrong for the Parliament or the Government, but I respectfully suggest that we do not fully—
No, I am sorry, convener—
Let me say this. You can correct me, but there is some confusion about what the regulations will impact, notwithstanding the late submission. Would there be any harm in continuing our consideration next week, so that we can fully consider the impact? Would that cause any difficulty for the Government?
I am asking the cabinet secretary designate whether there would be any difficulties. After he answers, the committee can discuss whether we want to postpone our consideration until next week. I do not understand what I am being told, frankly.
We have the proposed regulations. What happens with the taxation will happen; it does not have any implications for—
It is a separate matter.
I should not be confused, then.
If the regulations are only for clarification and do not change anything, I see no reason why we cannot agree to the motion today.
Why does the Law Society say:
“We believe that the implementation of these regulations should be delayed until the regulations have been assessed in the light of this taxation decision”?
Is it wrong?
In our view, the Law Society has been consulted and it has engaged in the process of drafting the regulations. The taxation case would be dealt with separately from the regulations.
To an extent, I can see why solicitors might not want to get a half fee and why they are making their argument, but I do not see what the problem is. I feel that the issue has been clarified.
Okay. As members have no further questions, I move to item 4, which is the formal debate on the motion to recommend approval of the instrument. I invite the cabinet secretary designate to move motion S4M-11524.
Motion moved,
That the Justice Committee recommends that the Criminal Legal Aid (Fixed Payments and Assistance by Way of Representation) (Scotland) (Miscellaneous Amendments) Regulations 2014 [draft] be approved.—[Michael Matheson.]
Motion agreed to.
I thank the cabinet secretary designate for attending.
We are required to report on affirmative instruments. Are members content to delegate to me responsibility to sign off the report?
Members indicated agreement.
13:04 Meeting continued in private until 13:08.Previous
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