Subordinate Legislation
The Deputy Minister for Justice, Angus MacKay, is here for this debate. Minister, thank you very much for coming and please accept my apologies for keeping you waiting. You will be aware that we have been dealing with the issue of the Carbeth hutters, which may increase your work load even further, depending on what the committee decides to do about their petition.
I remind members that there is a court case in progress on the general issue of fixed fees and whether they are compatible with the European convention on human rights. To conform to the sub judice rule, members should, I am advised, avoid making comments on the issue, and should concentrate on the merits or otherwise of the amending regulations. However, I wish to make a couple of comments on the record.
Given that the statutory instrument is, in the main, specifically about fixed payments, it seems quite extraordinary to me that the sub judice rule should be construed as barring us from a discussion about fixed payments. I think that it is an extraordinary interpretation of the ruling that could have some serious effects for the Justice and Home Affairs Committee and indeed for the Parliament, given the increasing number of cases that are likely to be taken under the convention on principles, rather than on specific issues.
Whose ruling was it?
The legal advisers to the Parliament. I will take up the issue, because it seems an utterly extraordinary position for us to be in: a statutory instrument on fixed payments is before us, yet we are told that we are not permitted to discuss fixed payments.
As it happens, the point about the statutory instrument with which we are concerned is not to do with fixed payments, but I wanted to remind members not to stray into generalities until we have a further discussion or debate with the legal advisers to the Parliament about that ruling.
I should also remind members of the committee that if they have any interests that are relevant to criminal legal aid they should declare them at the beginning of any comments that they wish to make. Gordon, I see that you are smiling, but I think that these particular legal aid provisions do not relate to the kind of legal aid that you frequently put in claims for. So, despite your smiles, I am not sure that—
I have an interest in legal aid. [Laughter.]
I note that there is no elaboration.
A small interest in legal aid.
With a lot of zeros on the end of it. [Laughter.]
There is a motion in my name on the agenda that I think everybody will have read. I move,
That the Justice and Home Affairs Committee recommend that nothing further is to be done under the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 1999 (SSI 1999/48).
The point that the Subordinate Legislation Committee and the Justice and Home Affairs Committee are concerned about is relatively narrow and has to do with the definition of when a trial begins.
In common law, a trial begins when it is called. For the purposes of legal aid, that definition appears to have been departed from. Specifically in these regulations, a definition is given that the beginning of a trial is deemed to be when the first witness is sworn. That is a matter of concern for the Subordinate Legislation Committee and for this committee, because it is in the knowledge of a number of individuals that a trial can go on for a considerable time before a witness is sworn.
As I understand it, the reasoning is that legal aid—at least in so far as it is described in the statutory instrument—is meant to be a recompense for the skill and abilities of solicitors in their conduct of trials, so it is not appropriate to reward them for not really doing anything, albeit a trial has been called. Nevertheless, even that caveat does not cover a number of situations that not only can arise but are well known to have arisen. Although they do not arise every day or in every court, they have occurred frequently.
I am aware, as are committee members due to correspondence that was circulated before this meeting, that discussions have taken place between the Executive and the Law Society in particular, with regard to perhaps reconsidering the way in which this instrument is drafted. The correspondence, which resulted in an almost daily exchange of letters, culminated in a final letter that was sent to you yesterday, minister—a copy of which I believe we all have—which outlines some of the ways in which a trial could have started substantively without the first witness having been sworn.
Some of the issues concern the accused's competence to give instructions. For example, there could be a question as to whether the complaint itself is fundamentally null. There could be a plea in bar of trial. There could be long and detailed arguments about whether an adjournment was appropriate. The sheriff may decline jurisdiction, and there may be discussion about that.
That is not an exhaustive list of occasions on which a considerable amount of debate may take place over a considerable amount of time without a witness having been sworn. It seemed to the committee that it would be anomalous and unfair if in those circumstances—even if it were in a minority of cases—solicitors who were having to work hard for their client were being denied reasonable recompense for their work.
That outlines the committee's concerns. We were also concerned, in a more general sense, that having recognised that there was a defect in the drafting, we should not be seen to be allowing the instrument to go through on the nod. We felt that it was incumbent upon us to respond to what had been drawn to our attention and to ask the Executive to reconsider the position.
As I have referred to an exchange of correspondence, including letters to the minister, the minister may wish to detail some of the conversations that have been going on when he makes his response, which I invite him to do now.
Thank you for the invitation to attend the committee to discuss this issue.
I should say—I am happy to receive your guidance on this—that I had intended, by way of providing some brief background, to address the broader issue of the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 1999 (SSI 1999/48). Is it your view that it would be improper to do so?
That is not my view, minister, but unfortunately it appears to be the view of the Parliament's legal advisers. I consider that interpretation to be utterly ludicrous and I intend to take the issue further. The clerk advises me that you would have to make up your own mind about whether you wish to proceed. [Laughter.]
I cannot advise you—all I can say is that the advice that I have been given is that we should avoid a discussion of fixed payments.
That is the very subject about which we need to talk today. That makes for a challenging opportunity. In that case I will—as I am sure members will be relieved to hear—simply cut to the chase. That will make my contribution considerably shorter.
The regulations—as the name of the statutory instrument suggests—amend the original fixed payments regulations that were made earlier this year. They did three things: first, clarify how fixed payments apply to deferred sentences; secondly, extend the special allowance payments for remote sheriff courts to three further courts; thirdly, define the start of a trial for legal aid purposes.
The first two changes—applying fixed payments regulations to deferred sentences and extending the remote payments to Wick, Fort William and Dunoon sheriff courts—have been fairly widely welcomed, including by the Law Society of Scotland, and I do not propose to speak about them in any detail.
The clarification on deferred sentences extended the scope of the fixed payments and that arose from discussions in the tripartite group that was set up in March when the regulations were made in the House of Commons.
A special payment of £50 for every case in a specified list of remote sheriff courts was part of the original fixed payments scheme. It was based on a formula that was designed to take into account the remoteness of the court and the volume of its business. While remoteness does not vary year by year, volume of business does, and has done in the past. As a result, we have updated the list to take account of the latest figures on case loads. That has brought in three more sheriff courts to the remote payments scheme, which has been welcomed.
The third change has been the subject of comment by this committee, although it will be difficult to discuss the matter without discussing fixed payments. The original fixed payments regulations did not specify when a trial was understood to have commenced. The intention was to rely on the common understanding that a trial begins when evidence is led. The problem that has emerged is that the recent decision in the High Court in the case of John Mitchell v Vannet has cast doubt on that approach. That case—which was concerned with a different issue—provided a definition of the start of a trial as being when the accused's plea is confirmed.
Since the intention behind the extra payments was to reward a solicitor for work in conducting a trial, it was felt necessary to define the start of a trial—for legal aid purposes only—as being when the first witness is sworn. That definition was chosen because in the great majority of cases that is the start of the trial proper. The Law Society of Scotland did, however, draw to the attention of the Executive that there might be cases in which no witnesses are sworn. Our advice has been that that happens in a very small number of cases and we have not as yet identified any, but we did not want to disadvantage solicitors conducting trials of that kind.
Officials of the justice department have, as you mentioned, convener, had discussions about a solution to that problem with the Law Society. I understand that it has written to members of the committee to tell them that those discussions have taken place. The most recent letter relating to the subject was—as you rightly said—to me. I received that letter very late yesterday and I will come to it later.
As a result of those discussions, the Executive now proposes to bring in further amending regulations, as the committee is aware. Our proposals are set out in full in the letter that I sent to the convener on 21 October and that has, I understand, been made fully available to all members of the committee.
In short, there was agreement on the general proposition that the starting point for a trial could be based either on when the first witness is called by the procurator fiscal or when an agreed joint minute of evidence is placed before the court on the day of trial. Our solicitors are at present considering how those proposals can be translated into regulations, which we plan to lay as soon as possible.
The Law Society has written to welcome the Executive's approach to discuss changes to the regulations. It asked specifically for consideration of two issues. The first is the time scale for the regulations. Our position is that we would like to introduce them as soon as possible. We already have a draft, which requires some more work. That should not take too long. We will then consult the Law Society directly. Once it has considered the draft, we will lay the amending regulations. The regulations need to lie for 21 days before they come into operation. However, in this situation, I suggest that Parliament may wish to consider waiving that requirement.
Secondly, the Law Society asked what would be done to ameliorate the prejudice to anyone who is adversely affected by the current amending regulations. As I have already said, we understand that no cases of a kind that might not have been covered by them have emerged so far. It seems to me that the solution is to make the new amending regulations come into force as soon as possible.
I suggest that, since action is now in hand, following consultation with the Law Society, to repair what this committee considered to be a defect in the regulations, there is no case for annulling them. If the regulations are annulled, it will mean that solicitors in the courts in Wick, Fort William and Dunoon will lose the extra payments that have been widely welcomed. I ask, therefore, that the committee note the action that is now in hand and will, very soon, remove the problem that was the source of its main comment on the regulations.
Before I finish, I want to say something about the letter from the Law Society, which the convener mentioned and which I received very late yesterday. It drew attention to a range of examples where, it was felt, the start of a trial would not remunerate the solicitor. As you would expect, I will respond to that letter in due course. However, it seems to me that the examples given are, broadly, pre-trial issues that are already covered by the core fee of £500 in the sheriff court and would, in the normal run of events, be taken care of in the intermediate diet. I will be interested to hear the views of individual committee members on that. That is the purpose of today's discussion.
In the light of what I have said, I invite you, convener, and the committee, to consider withdrawing the motion.
Thank you, minister. I remind members that when they address questions to the minister they are doing so on a member-to-member basis—as a member of the Scottish Parliament, the minister is entitled to be here. We are not questioning a witness, as we were earlier this morning. Do any members wish to make a comment, ask a question or look for elaboration?
Minister, when you discuss with the Law Society amending the date of trial, will you at least consider the issues that are raised in the society's letter of 25 October? I am not entirely persuaded that it is fair to say that the services described there come under the core fee. The purpose of the core fee is to cover preparation for the trial. For the hearing itself, there is remuneration in addition to the core fee.
There are likely to be situations when the preparation has been done and it is time to start the trial—which might last a number of days and would, of course, be paid for on an enhanced basis. At that point, however, serious issues may arise that involve the solicitor's being in court for as long as they would for a trial, without a trial taking place. I am not saying that that is particularly common, but there might be situations in which there is a discussion of fitness to plead—the sort of issues that are described in the letter. That is as common as the situation for which you are already prepared to legislate.
There may be situations where there is a joint minute and no actual evidence is led, but that is probably less common than the issues that are raised in this letter.
I would be content if there was a possibility of addressing some of the issues in the letter when an amendment is made. I am a little unhappy about saying simply that it is in the core fee, because that might not be fair in some situations.
I endorse what Gordon says and appreciate that the matter is urgent, but I would be unhappy if we did not deal with the matter that the Law Society has raised just for the sake of making things move more quickly. A witness might be called and a solicitor might have to deal with all sorts of situations that were not foreseen in pre-trial preparations. That would be unusual, but it should be covered.
I am not suggesting that we do not pass the regulations now—I know that there are important issues relating to outlying courts—but I would like these matters to be considered as part of the continuing changes to the regulations.
When might the further amending regulations be ready, minister?
Minister, the question that is being asked is one that I, too, would like to ask. What kind of time scale are we talking about in terms of amendments to the statutory instrument? I do not want to pin you down, but we would like some sort of indication of how long we are likely to have to wait. How would the time scale be affected by the issues that have been raised today?
In my presentation, I tried to explain what the time scale might be. We are, to an extent, in the hands of the Law Society. The time scale involved will depend on how far and how wide the Law Society wants to consult. We want to act as soon as possible. We will act quickly to get the regulations to the Law Society for consultation and we already have a draft worked up, but it needs some more attention.
I am unable to give you a more fixed time scale, but that gives you an indication of what we are bound by.
There is concern that, if we proceed today on the basis of the assurances that amendments will be made, we might have to wait six months or a year for them. The time scale should be short rather than long, particularly because the longer we take, the more likely it is that people might be affected by the omissions.
I can assure you that the time scale will be nothing like the one that you are concerned about. We want to conclude the matter before the end of the year.
I am happy to consider the issues that were raised in the Law Society's letter that arrived yesterday. It will be part of the dialogue that we will have when the issue is raised, just as we will take on board the issues that have been raised here today.
The constraint on discussing the broader issues of fixed payments is unfortunate. Some of those issues relate to a much broader area, such as the whole point and practice of the fixed payment scheme, how it is intended to operate, what it is intended to deal with and how the simplicity and size of the payments cover a range of types of work. Nonetheless, I am happy to give the assurance that those issues will be given proper consideration in the reply to the Law Society and in any subsequent dialogue.
If the Law Society consults on the issues that it raised with you in the letter, the likelihood is that it will get feedback along those lines about matters that it thinks might not be covered by the pre-trial fee. If that is what the Law Society comes back with after consulting, will there be scope to include that?
There are two separate issues. We intend to write back to the Law Society about the regulations that we are outlining to you today. The Law Society will consult its members about them. A separate, although related, issue was raised in yesterday's letter. We will have discussions with the Law Society about that, first in my reply to the Law Society. We will see where those discussions take us, before I give any undertaking about what we may do. The Law Society may make an argument that persuades the Executive. We must see the substance of its concerns.
We are concerned that you do not exclude further consideration of the possibility of a trial happening without the witness being sworn.
I am happy to give that matter consideration. I am not necessarily personally persuaded by those arguments. We will have a dialogue about this issue. If a persuasive case can be made, we will consider it.
For our guidance, what evidence would persuade you? For example, would factual evidence of a trial that has gone on for four or five hours without a witness being sworn help to do so?
I do not want to pre-empt the discussion that we have with the Law Society. It has a case that it wishes to make, which I will be happy to hear. This is only a one-page letter, which outlines some potential circumstances. It says that it is by no means an exhaustive list and it does not go into any great detail. We must wait and see what the Law Society produces.
I recognise the need for a definition, although we appear to have got by without one for some time. Are there any cost implications? Will savings be made?
The purpose of providing a definition is not to make cost savings. There may be cost consequences if we do not define when a trial begins. I cannot quantify that for you, but the purpose of the regulations is to nail down an area that was imprecise and therefore did not serve the interest of any relevant party. It is not intended primarily as a cost-saving device.
I accept that it is not intended to be a cost-saving device, but there should be an indication as to what the cost implications would be. Have any estimates been made?
I am advised that it will have almost no cost implications.
Thank you.
Since you have indicated, minister, that you will have further consultations with the Law Society prior to the amendment being finalised, I ask that the committee be kept informed as the process continues, rather than having to wait until we see the final amendment. That would help us all.
Would you like to add any further comments?
No. The matter has been dealt with straightforwardly. Everyone is clear about what we are attempting to do. I hope that that puts the committee and all interested parties' minds at ease.
Since I moved the motion, it is incumbent on me to bring the debate to an end by saying one or two words about it.
Given that what the minister has said this morning is reassuring, especially in terms of the time scale and his intention to consult the Law Society further, I will withdraw the motion. The Justice and Home Affairs Committee has drawn attention to its concern and the Executive has responded. We are grateful that the response has been so positive. There is little to be gained from insisting on the motion because, as has rightly been said, there would be negative financial consequences for a number of rural practices. We must take that on board. Given the reassurances that we have heard this morning, I am happy to withdraw the motion. Does any member of the committee object to the motion being withdrawn?
No.
Motion, by leave, withdrawn.
Thank you, minister. You will be glad that the motion has been withdrawn, but we look forward to being kept apprised of the further consultation.
The committee now has to meet in private because, notwithstanding the fact that the motion has been withdrawn, we must report on this matter to Parliament. I am advised that that means that you, too, must leave, minister. You do not get to join in the discussion on our report.
Meeting continued in private.