Subordinate Legislation
Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2010 (SSI 2010/237)
Agenda item 3 is to take oral evidence on Scottish statutory instrument 2010/237, which is a negative instrument. Members’ attention is drawn to the cover note—paper J/S3/10/22/1—which highlights the fact that the Subordinate Legislation Committee has not yet reported on the regulations. As the regulations will come into force on 5 July 2010, it was agreed that the Minister for Community Safety should attend today’s meeting to answer any questions that members might have. The regulations will need to be considered again after the summer recess, once the Subordinate Legislation Committee has reported.
I welcome again the Minister for Community Safety, Fergus Ewing, who is on this occasion accompanied by Scottish Government officials James How, who is head of the access to justice team, and Fraser Gough, who is from the Scottish Government legal directorate. I invite Mr Ewing to make an opening statement. The regulations concern payments made in respect of bail appeals, but the minister will be aware that we have received a letter from the Cabinet Secretary for Justice on a somewhat wider issue, which I imagine will be the subject of an SSI that we might consider in the autumn. Perhaps the minister can confirm that that is the situation. I leave it to the minister as to whether he wants to address, albeit in a limited way, the issues in the cabinet secretary’s letter, given that the minister might not at this stage be fully briefed on any forthcoming SSI.
Thank you for that introduction. In a moment, I will speak to the regulations, which will reinstate with backdated effect the payment for work in connection with bail appeals. The regulations make corrective amendments to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999. As the convener mentioned, I have only just seen and have not really digested the cabinet secretary’s letter to the committee—the letter is, as it were, hot off the press—but I have a brief that I can speak to on the regulations. I will do my best to answer any questions and to secure any further information that may be needed thereafter.
Taking things in order—first things first—I will speak to the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2010 (SSI 2010/237). The principal objective of the regulations is to reinstate the fee payable to solicitors for criminal legal aid work done in connection with a bail appeal under section 32 of the Criminal Procedure (Scotland) Act 1995. The fact that the fee was no longer payable under the case disposal fee was an unintended consequence of the summary criminal justice reforms in 2008. The cabinet secretary agreed to reinstate the fee as a separate payment in December 2008. The regulations will apply to all cases begun on or after 5 July 2010. Regulation 2(2) provides for a measure of backdating so that the reinstated bail appeal payment can be made available in relation to proceedings commenced between 30 June 2008 and 5 July 2010, but only if the proceedings were continuing on the date on which the regulations were made, which was 10 June 2010.
The Subordinate Legislation Committee picked up a mistake in the drafting of regulation 2(2). It noticed that proceedings commenced between 10 June and 5 July 2010 would fail to satisfy the requirement of regulation 2(2) as drafted, because they would not be continuing as at 10 June. The Government is grateful to the Subordinate Legislation Committee for having picked up that point, and it has laid a correcting instrument, the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment (No 2) Regulations 2010 (SSI 2010/267), which will allow the reinstated payment to be made available in relation to proceedings commenced on or after 11 June 2010 and before 5 July 2010, provided that they are continuing as at 4 July.
It is estimated that the cost of the regulations will be circa £25,000 in respect of the retrospective provisions, if solicitors choose to claim the fee for cases that have not been concluded by 5 July 2010. Future full-year additional costs to the legal aid fund will be circa £100,000. Those costs have been budgeted for.
I will halt at that point, in case members have any questions.
Let us deal with the regulations systematically. Do members have any specific questions?
May I raise a matter in relation to the cabinet secretary’s letter, or do you want to deal with that separately?
No, we will deal with that in a moment.
I have a question about the regulations. As far as the financial implications are concerned, can you confirm that account has been taken of the new guidelines that the Lord Advocate has issued, which will take effect on 8 July?
I have just checked and my understanding is that the guidelines do not apply to the aspect that we are discussing, the substantive issue of which is bail appeals. As I understand it, the Lord Advocate’s guidelines relate to a solicitor’s provision of advice to an accused person in custody. It is our understanding that those are two unrelated matters that are not connected.
They are not related. Having dealt with that, we will move on to the wider issue.
I am aware that the committee has received a letter from the justice secretary, which was intended to give advance notice of changes that are to be made to the legal aid regime as a consequence of the Lord Advocate’s recent guidelines on the right to have a solicitor present during police interviews. The letter also corrects two factual errors that were made during the evidence session on the Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2010 (SSI 2010/212).
I appreciate that committee members are concerned about the implications of the Cadder v HMA case and the guidelines that the Lord Advocate issued on 9 June. I make it clear at the outset that, like the regulations on solicitors’ fees that the committee dealt with last week, SSI 2010/237 and SSI 2010/267 have no relation to Cadder.
Members will be aware that the cabinet secretary’s letter to the convener notifies the committee that it was imperative to make one immediate and interim change to the advice and assistance regime as a result of the Lord Advocate’s guidelines. Due to the short timescales, I am afraid that we have had to breach the 21-day rule to do so. The new regulations will cure the gap that would otherwise have emerged from 8 July, which is the date on which the guidelines will be rolled out to summary cases. That explains the emergency nature of the matter.
In summary cases, if a solicitor’s travel time and attendance at a police station are more than two hours, that is classed as an exceptional police station visit and the solicitor can claim for that work in full, in addition to the fixed payment. However, if the attendance at a police station are under two hours and the solicitor subsequently hands the case to the accused’s nominated solicitor, there is currently no provision in criminal legal assistance for the first solicitor to receive payment from the Scottish Legal Aid Board. The new regulations will resolve that by providing for payments to be deducted from the fixed payment made to the nominated solicitor. The regulations in themselves will be cost neutral to the legal aid fund, as the payment will be deducted from the fixed payment to the nominated solicitor. The Law Society was consulted as far as possible, given the timescale. The situation will be kept under careful review over the summer.
I take it that a further SSI on the more substantive issue will be coming our way.
Yes. It will be laid shortly.
And will presumably come before the committee in September or October.
I expect so, convener, but I have given notice of what it sets out to do, why it is necessary and why there is the element of urgency.
The cabinet secretary’s letter says:
“We are closely monitoring the possible implications of the guidelines including on the legal aid budget.”
On 17 March, the First Minister—like the minister last week—was unable to give any specific information on the costings of the provision. The new guidelines will take effect on 8 July, which is next Thursday. That date is approaching fast, yet there is a lack of clarity from the Government on the costings. Will you indicate the number of cases that will be affected by the new guidelines between 8 July and the October judgment? What are the financial implications of that?
We are not seeing any rise in costs so far. We can only monitor the situation.
Just to be clear, will there be a rise in the number of cases to which the provision will apply between July and October? You said that there would be no rise in costs.
We are not seeing any rise in costs so far—that is all that we can say at present. We will see what happens after 8 July. We have taken appropriate action. The cabinet secretary is working extremely carefully and diligently on the matter. His dialogue with the Law Society was characterised by Oliver Adair as constructive. I hope that all members will welcome that.
You are saying that there would not have been any rise in costs at this time because the regulations do not come into force until 8 July. What I am driving at is whether, after 8 July, there will be an increase in the number of situations in which a lawyer will be required to be in attendance at a police station, and whether the consequence of that will be a rise in legal aid payments. What I cannot establish is whether the Government has tried to assess the increased number of cases and the consequent financial implications.
I entirely reject Mr Kelly’s assertions. The Government has been working closely with all bodies involved, including the Association of Chief Police Officers in Scotland, the Crown and the Scottish Legal Aid Board. The guidelines have already been introduced for solemn cases, so we can talk only about such cases. They will be introduced for summary cases on 8 July. I have explained that we are not seeing rises in the costs so far.
11:30
The wider political matters have been pretty well ventilated in the Parliament. The First Minister made clear the Government’s position in relation to not introducing primary legislation to cater for a change in the law that has not yet happened.
In the case of McLean, which the First Minister referred to at First Minister’s question time, seven senior judges in Scotland decided that our system is compliant with the European convention on human rights, for the reasons that I set out last week. Anyone who suggests that we should somehow make plans for contingencies that may not arise or, as Mr Baker has suggested, that we should set aside some fund just in case it might be required if the outcome of a court case goes a particular way, is not making a suggestion that we would recognise as prudent.
All that I can say is that, in the operation of the Lord Advocate’s guidelines in relation to solemn cases, we have not seen a rise in costs thus far. I hope that committee members will accept the assurance that we are continuing to monitor the situation and work closely with all the relevant parties.
Clearly, we will want to see updated figures when the regulations come back to the committee.
Maureen Watt (North East Scotland) (SNP)
The issue is obviously new to me, but I understand from the cabinet secretary’s letter that the payment due to the solicitor who starts off the case while the accused is in custody will be deducted from the fixed payment to the solicitor who is subsequently involved. Why, therefore, would there be any increase in costs?
That is a question for the minister.
Maureen Watt is right to point out that the changes will be cost neutral. The changes are necessary to allow a solicitor to be paid for work, but the payment will be made from a block fee that is payable at present, but to a different solicitor. That is the issue—the problem is technical—and Maureen Watt is right to point out that the changes are expected to be cost neutral.
The wider question is whether there will be a huge new flood of cases in which legal advice is sought. With respect, I do not think that anyone, unless they are in possession of a crystal ball, can say with total certainty whether there will be a significant increase. At the moment, we can say only that, thus far, that has not proved to be the case for solemn cases, which are the serious cases. If we had expected a flood of additional cases in which legal advice is sought and legal aid is invoked, we might have expected it to happen in the most serious of cases—solemn cases—as people who are charged might well expect to be incarcerated if they are convicted. Such people would be expected to have a very good reason for seeking legal advice—more so than in some of the more minor matters that appear before justices of the peace.
Cathie Craigie (Cumbernauld and Kilsyth) (Lab)
I want to come back on the point that, according to the letter from Mr MacAskill, the Scottish Government is
“closely monitoring the possible implications of the guidelines including on the legal aid budget.”
If you are closely monitoring the cases and the demand on the legal aid budget, why can you not tell us the number of cases that you expect to be affected?
With respect to Cathie Craigie, I believe that I have made the position clear. Indeed, I have begun to repeat myself at the invitation of members, so I will happily do so again.
We are clear that the change in the advice and assistance rules, which the cabinet secretary has described as necessary, will be cost neutral for straightforward reasons, which I repeated a moment ago. That change will be cost neutral.
In the meantime, we are monitoring the impact of the Lord Advocate’s guidelines as they apply to solemn cases, and we have not seen rises in legal aid fees thus far. The guidelines will apply to summary cases from 8 July. To reassure members, let me say again that we will monitor matters closely and that we will come back to the committee in September—as you have invited us to do, convener—to provide a further report. As soon as we have germane information that is of any value, we always seek to provide it to the committee. That is the Government’s approach and practice, and it will be followed in this matter.
I have considerable sympathy with the Government’s difficulties in the matter. From representations that I have received, I understand that behind the technicality of the forthcoming regulations lie some quite complicated issues to do with the professional conduct rules of the Law Society of Scotland on things such as who instructs the solicitor—for example, whether the instruction comes from the police—the transfer of the case from one solicitor to another and the possible involvement of the Public Defence Solicitors Office. It seems clear that such things could have implications for the forthcoming legal aid advice and assistance regulations. Although it might be reasonable for the forthcoming regulations to deal with the immediate issue, I know that the Law Society and others have been keen to suggest a deferment, in so far as they refer to summary cases, of the operation of the rules that are due to come into effect on 8 July.
Can the minister give us some update on that background issue? Although that might not lie within his immediate knowledge, I think that that is actually the more important aspect, given the possible need thereafter for other tweakings of the legal aid rules as a consequence of what might emerge from the quite complicated discussions that are on-going.
Mr Brown is quite right to raise those general issues about how the new guidelines will operate. What I can say is that discussions are on-going between the Law Society and the Crown on how the guidelines will be applied. As I said, the matters were considered—last Monday, I think—by the Law Society and the cabinet secretary in discussions that were described as constructive.
Plainly, much will depend on how matters operate in practice. When we return to the Parliament after the recess, we will have had the benefit of the operation of the guidelines in solemn and summary cases for a couple of months at least. I very much hope that we will then have a slightly clearer picture, albeit that two months is not a long time from which to draw any firm conclusion.
However, the sorts of issues that Robert Brown has raised are plainly the issues that are informing the discussions between the relevant parties. It is important to allow those discussions to take place between the representative bodies in a responsible way. I hope that the outcome of those discussions will be positive, but it is difficult for me to say much more beyond that. I thank Robert Brown for placing those matters on record.
The essence of my point, I suppose, is that the summary cases will be much more significant in number than the solemn cases, so they might result in a much bigger problem. The legal profession appears to be expressing concerns that, because of the entanglement with professional conduct rules on how solicitors relate to each other, things are perhaps not quite ready to go for the date of 8 July, which is obviously almost upon us. Given the limited issue that is raised by the other legal aid regulations, I confess that there seems no particular reason why they should not come into force, as they seem reasonably straightforward. However, are the minister and the Government satisfied that the procedures for summary cases can proceed on 8 July without raising complicated problems that a short delay might allow to be resolved? That is the essence of my point.
We are working with all relevant parties to ensure the reasonable operation of the new guidelines, so we are reasonably confident that they should operate well.
To put the matter in perspective, I might remind the committee that Mr Kelly’s suggestion last week that criminal legal aid applications had increased by more than 20 per cent in the past year was wrong. They actually increased by 3.8 per cent. I mention that simply to bring some perspective. There is no sign that the number of legal aid applications or the number of cases has increased astronomically over the past year, and we do not expect a deluge of additional people being charged with crimes and additional hordes of people in custody. We expect that broadly the same workload will require to be dealt with. Robert Brown will recall—as I do—that solicitors’ advice is frequently sought and obtained at some point during the process of somebody being banged up in a cell. It may be simply that that advice will be sought at a different time. Therefore, there will not necessarily be an additional burden of time spent that will translate into an additional burden on the legal aid fund; it may simply be that the time at which the advice is sought changes.
The guidelines on ensuring access to a solicitor, which are the responsibility of the Lord Advocate, are now in operation in solemn cases and there has been no significant rise in the number of applications for legal aid for the reasons that I mentioned earlier. I would have expected there to be a significant rise in the number of applications relating to solemn cases rather than summary cases, although I take Mr Brown’s point that, as there are more summary cases than solemn cases, there is potentially a greater volume of cases in which a different pattern could emerge. We cannot be sure of the implications, as it depends on how the police and the solicitors operate; nevertheless, we will do what we can to support the guidelines.
The minister asserts that the changes to date have been cost neutral, but that is based on his assessment of the number of solemn cases. As he has just acknowledged, and as Robert Brown has outlined, there is a danger of exposure given the greater number of summary cases. The Government must assess that closely over the summer, and I urge that committee members be kept updated on that.
That is a fair point.
The regulations that Mr MacAskill described as being necessary for technical reasons will be cost neutral for the reasons that I described. I think that Mr Kelly is alluding to the operation of the guidelines. I am happy to reassure him that we will keep the matter under close review over the summer months.
I thank you and your officials for your attendance.
11:42
Meeting suspended.
11:43
On resuming—
Police Pension Account (Scotland) Regulations 2010 (SSI 2010/232)
Item 4 is a negative instrument for consideration. I refer members to paper J/S3/10/22/2. The Subordinate Legislation Committee has not drawn any matters to the attention of the Parliament in relation to the regulations. Do members have any comments or are we simply content to note the regulations?
As someone who has served on the public protection committee of a council, I think that there will be a collective sigh of relief from committee members as we note that the pension account will come out of the operating budget. The issue has always exercised the minds of councillors and chief constables, and I am sure that it will be welcomed by justice committees across the country.
Yes, I recall that it caused some excitement at the Strathclyde joint police board.
I confess that I am not entirely sure how the full thing operates in practical terms. I get the implication that the risk of any fluctuations up or down is moved to central Government, but it is not a self-funded pension provision and it might be worth having a brief look at it during our budget discussion so that we understand the possible implications.
It is certainly one of the items that we must consider. Can we note the regulations?
Members indicated agreement.
11:45
Meeting continued in private until 12:04.