Scottish Civil Justice Council and Criminal Legal Assistance Bill: Stage 1
Good afternoon. The business this afternoon is a debate on motion S4M-04534, in the name of Kenny MacAskill, on the Scottish Civil Justice Council and Criminal Legal Assistance Bill.
The bill implements two separate objectives that were identified as priorities under the Scottish Government’s four-year making justice work programme: the creation of a Scottish civil justice council and the introduction of contributions in criminal legal aid from those who can afford them.
I am pleased that the Justice Committee has broadly welcomed the proposals for a Scottish civil justice council under part 1 of the bill and that there is almost unanimous support for the creation of the council. Its creation is a key recommendation of Lord Gill’s landmark review of the Scottish civil courts because the council will be central to implementing many of the review’s other recommendations and will become an agent of change, giving the civil justice system a far greater capacity to continue to improve.
As Lord Gill’s review made clear, the civil justice system is very much in need of improvement and modernisation. That change is vital to ensure the quality of justice that individuals, families and businesses in Scotland expect and, more importantly, to which they are entitled. It is also vital to the Scottish economy, as effective and efficient resolution of disputes is good for business, helps to cut costs and helps to free up reserves that are tied up in litigation funds.
Therefore, I am committed to implementing a far-reaching programme of civil courts reform that is founded on Lord Gill’s recommendations for change. It will be the most significant reform of Scotland’s civil justice system in more than a century. We are well on our way: following constructive dialogue with justice stakeholders over the summer, we are now finalising a draft courts reform bill, which will be put out to public consultation in the coming months.
The changes on which we will consult will improve the judiciary’s handling of cases and reduce delays to cases that are proceeding through the courts. Ultimately, they will ensure that the people of Scotland have access to a high-quality system that secures just outcomes without unnecessary delay.
Making those changes will require a combination of primary legislation and procedural changes to court rules. Therefore, the council’s immediate—and significant—task will be to help to deliver those reforms. Establishing the body now will speed up the pace of change by ensuring that the council is able to advance its work alongside the structural reforms rather than after them.
The council’s work will not end when it has carried out that task. As I said, the council will also serve as an agent of change: it will be responsible for keeping the civil justice system under review. That will put an end to the piecemeal approach to reform that has contributed to the need for such fundamental change. It will also help to ensure that it is not another 100 years or more—or even 25 or 10 years—before the civil justice system catches up with society. The system will be capable of adjusting to change as and when it becomes necessary.
Some comments have been made on the composition of the council. I believe that the bill, with its provision for flexible appointments, strikes the right balance in allowing the council to take account of the range of interests in civil justice and to have the technical expertise for its detailed work without creating an unduly large and unwieldy body.
Does the cabinet secretary agree that, given the evidence that the Justice Committee heard, there might be scope to strengthen lay membership of the council? Although the ability to do that already exists, should the Government not look to ensure that more lay members are represented on it?
We are happy to enter into discussions with the Lord President on that. We must recognise that there is a balance to be struck. I understand that, even today, representations have been made by the Association of British Insurers and the Sheriffs Association. It is a question of getting the right balance.
The council will have statutory members, but the Lord President will have flexibility to take such matters into account. I am happy to reflect on the issue as the bill progresses through the Parliament and to enter into discussions with the Lord President. I give Ms Marra an assurance that it is the intention that as many lay members as possible will be brought on board, although, as in any organisation, there are limits.
Equally, it is clear that it is the Lord President’s intention that matters will be dealt with in sub-committees, which will enable people who have particular expertise in a particular area to contribute to the council’s work without having to be on the general council.
I have reflected on the stage 1 evidence and the Justice Committee’s remarks on those points, and I consider it appropriate to widen the provisions to allow lay members to be elected as deputy chair.
There has also been discussion about the most appropriate procedure for appointments. I believe that it is correct that the Lord President, who will have responsibility for oversight and direction of the body, should have a key role in determining its composition. I agree that the appointments process must be transparent and robust. It must also be proportionate. I consider that the bill, which contains a duty to publish a statement of appointment practice, provides for a fair, open and transparent process. Furthermore, the Lord President has stated to Parliament his intention to draw on the principles set by the Commission for Ethical Standards in Public Life in making appointments. I welcome that commitment.
On transparency, I hope that members will be pleased to note the intention to extend freedom of information coverage to the new council and to the Criminal Court Rules Council through subordinate legislation that is to be brought to Parliament in the new year.
When he opened the legal year in September, the Lord President said that the creation of the council under the bill signalled the first stage in a
“remarkable enterprise in legislative reform”.
Given the significance of the task ahead, many have emphasised the importance of getting the proposals for the council right from the outset. I believe that we have got them right, and I hope that the Parliament agrees.
I turn to part 2—
I have a question before the cabinet secretary turns to part 2. As the council will be a statutory advisory body, will it have the right to be a statutory consultee in many different areas?
That is a matter that I am happy to clarify. My understanding is that, given the council’s role, it will interact with me and the Justice Committee, but I will check that and get back to the member. We do not want the council to be stuck in splendid isolation. It will be a body that will oversee the rule changes that we seek to make. I will get back to the member on what is a technical but highly important matter.
Part 2 of the bill sets out proposals to introduce contributions to solicitors’ fees in criminal legal aid. I am pleased that the Justice Committee and many in the justice system, including the Law Society of Scotland, support the principle that it is right that those who can afford to pay towards the costs of their defence should do so. In a climate of financial constraint and pressure on public finances, that principle rings true. If we are to protect access to justice as much as possible—both in relation to civil and criminal cases—we must target legal assistance at those who need it most. Doing so is the only way to preserve the overall integrity of the legal aid scheme.
For those in the chamber who may be less familiar with the details of legal aid, I would like to make it clear that what the bill proposes is evolution, not revolution. Criminal legal aid has always been subject to a means test. People whose income and savings are above a certain level have been ineligible for legal aid unless they can prove undue hardship, and people who plead guilty to a criminal charge have been liable to pay a contribution to their costs if they can afford one, just as happens in civil legal aid.
The expansion of contributions will bring criminal legal aid into line with civil legal aid and correct a manifest injustice of the current system. How can it be right that a victim of domestic violence who must go to court to protect herself should be liable for a contribution to her civil legal aid, while the perpetrator, with substantially greater resources, could receive full criminal legal aid without a contribution?
Having said what he just said, will the cabinet secretary acknowledge that the position of the woman to whom he referred—the victim of domestic violence—will be unchanged by the bill?
Yes—absolutely. The bill’s whole purpose is to preserve the system’s integrity in tight financial times. We have no intention of going down the route that has been taken south of the border, where huge aspects of the law are no longer eligible for legal aid. To protect victims, whom I know everyone in Parliament wants to protect, we must make tough choices. In this world, perhaps those who can afford to make a contribution when they are charged with a criminal offence should do so.
I accept that the Justice Committee has asked important and valid questions about the detail of implementation. In particular, it asked whether the income thresholds are appropriate, whether collecting contributions will create difficulties for law firms, whether accused persons’ human rights might be affected and whether there will be impacts on the administration of justice. I hope that I can reassure Parliament on each of those issues, which I have no doubt will be discussed in more detail at stage 2.
On the level of contributions, I will make three points clear. First, £68 a week is the threshold below which contributions cannot be levied. The £68 figure can be amended upwards in regulations, but the bill specifies the starting point. The regulations will deal with such important matters and, accordingly, I have promised to provide draft regulations to Parliament before stage 2 begins.
Secondly, the £68 threshold is not gross income or even take-home income; it is the disposable income that a person has once a long list of costs has been deducted. On top of that, a contribution could be waived if undue hardship could be caused. The figure is the absolute level of weekly disposable income that will be protected under the scheme. Contributions will be assessed on the level of disposable income that is above £68 so, if someone has £69 in disposable income, their contribution will be based on the £1 that is over the benchmark and not on £69.
Will the cabinet secretary supply a definition of disposable income?
The definition of disposable income will be set down in regulations. It is currently dealt with under the civil legal aid scheme. It takes into account deductions for a spouse and children. Deductions will take place for welfare benefits that Capability Scotland has raised with us, which the Scottish Legal Aid Board will address.
I cannot provide the precise text that will be in the regulations, but the definition of disposable income will take into account deductions as it does under the civil legal aid scheme, which the criminal legal aid scheme will mirror. The definition will also take into account points that have correctly been made by people who represent those who have difficulties—which I appreciate—with mental health matters.
Finally on this issue, I point out that contribution levels will be graduated and will in many cases be small—the lower a person’s income, the lower the contribution payable, in proportion to his or her income. That is fairer to applicants who have lower incomes.
I know that there are concerns about ensuring that people with disabilities are not adversely affected—not least because of the uncertainty about welfare reform. The Scottish Government and SLAB have listened to those concerns and have agreed that disability living allowance should be fully discounted from income calculations in assessing contributions. I will continue to engage with organisations such as Capability Scotland to ensure that no negative impacts occur.
I appreciate the anxiety that some criminal law firms feel about collecting summary fee contributions. Of course, collecting fees from clients is a routine part of business for most law firms, so I suggest that the responsibility is not new.
We are trying to ease as far as is reasonable the burden of collection, while maintaining as generous a legal aid scheme as is possible. The bill therefore provides that the board will be responsible for collecting contributions for solemn cases. I am pleased that the Justice Committee has welcomed the proposal that summary contributions be treated as fees. That will assist firms’ cash flows in a difficult financial climate. However, I will continue to consider further measures and enter into on-going discussions with the Law Society of Scotland.
It has been suggested that those who fail to pay their contribution may lose their representation, which could cause problems for them and the courts, but I do not believe that that is a serious risk. Most people will have no contribution. Most people who have a contribution will have only a small one, and most of them will pay it—evidence from England and Wales confirms that. There has been no increase in unrepresented litigants since the introduction of a contributions scheme there, and their scheme is less generous than our proposals.
I appreciate that we may need to put in place arrangements to ensure that the justice system is not affected when people refuse to pay. I am in no doubt that we can achieve that, and I will enter into discussion with the Law Society about it.
In conclusion, the bill will improve our civil justice system and help to maintain a fair, consistent and generous legal aid scheme.
I move,
That the Parliament agrees to the general principles of the Scottish Civil Justice Council and Criminal Legal Assistance Bill.
We have a bit of time in hand, so if interventions are taken, the Presiding Officers will ensure that time is added to members’ speeches.
I call on Christine Grahame to speak on behalf of the Justice Committee. Ms Grahame, you have around 10 minutes.
14:46
I thank the Presiding Officer for that. When I rise to speak, I am usually told that speeches are being kept short.
I welcome the opportunity to open the debate on behalf of the Justice Committee. I will try not to duplicate matters—I have used the word “matters”; I should say “issues”—that have been raised by the cabinet secretary, Kenny MacAskill.
I thank everyone who has given evidence on the bill—in shorthand, I refer members to the full list in annexes C and D of our report. I also thank yet again the members of the committee—the little darlings—for their diligence and good humour. In particular, I thank the inimitable David McLetchie, with his wicked wit. In quizzing the Lord President on his discretionary power to appoint six members of the council, he asked with an impish grin whether Lord Gill would comment on his “six-pack”. We should give Lord Gill his due: there was the merest flicker of a raised judicial eyebrow before he answered.
Like previous justice legislation, the bill has two main parts—as members know, such bills are quite my favourite. As the cabinet secretary said, part 1 will establish the Scottish civil justice council and part 2 will introduce contributions to criminal legal aid. I will cover each part in turn.
Part 1 received less media attention than part 2, but it nonetheless deals with a crucial issue. As the cabinet secretary said, it stems from the 2009 review of the civil courts by Lord Gill, who is now Lord President. That review proposed a package of structural and functional reforms.
The proposed creation of the council has received widespread support. Many believe that it is an important step in ensuring the effective operation and oversight of the Scottish civil justice system. However, the committee heard a number of concerns relating to the provisions, which included concerns about the council’s status. Some witnesses believed that it should be a non-departmental public body. There were concerns about whether the council’s functions and powers are appropriate—for example, should it prioritise updating rules versus advising on policy—and about the balance therein. There were also concerns about who would chair the council and how sub-committees might best be utilised. The committee is satisfied by the explanations and assurances that it received from the Lord President and the cabinet secretary on all those issues.
Perhaps the main concern that witnesses highlighted related to the composition of the council and the Lord President’s appointment process—the “six-pack” process. In particular, evidence centred on the balance of legal versus lay representatives. My colleague Jenny Marra raised that issue. To reflect specialist areas of law, some legal bodies suggested that there should be more solicitors on the council; I vote for that—okay, I do not really. Others, including consumer groups, believed that there should be a more even split between legal and lay members so that the views of users of the civil courts rather than those of just the practitioners would be taken into account. The committee shares concerns that the perspective of end users may not be fully represented on the council, but we expect that, once a new set of court rules is drafted, the balance of membership will shift over time. The committee notes that the Scottish Government will have powers to adjust the council’s mandatory membership if required.
Rules may seem to be dry as dust, but they are important in the processing of justice. They ensure that deadlines are met so that we do not have a Dickensian pace in our civil justice system. They require fair notice of the case pled and defended, for example. By their nature, they often require to be technical and specialised, but so is a mechanic’s toolbox. For me, they are simply the toolbox of the civil justice system. However, rules must keep pace with modern requirements and with technology. They must make allowances for the party litigant, accelerated court process, abuse of process, tardiness and so on. I speak from weary experience, having had to know court rules.
The committee welcomes the Lord President’s assurance that he will draft a statement of appointment practice based on the principles set out by the office of the Public Appointments Commissioner for Scotland. In any event, we have asked the Scottish Government to consider whether that might be put in the bill.
I turn to part 2, which is on criminal legal assistance.
Does the convener of the Justice Committee agree that the bill needs to be tightened up in part 1 on the policy element, so that the policy powers of the new council do not creep into the elected jurisdiction of this Parliament?
Unfortunately for me, I am not allowed to agree or disagree in this debate because I am speaking as convener. I have to represent all and sundry—I am sundry at the moment. I will be free on another occasion to take a view.
The principle of making contributions is already established in some forms of legal assistance such as civil legal aid. However, with regard to criminal legal aid, the vast majority of accused persons—as the cabinet secretary quite rightly said—do not pay anything for their legal representation and associated costs. Now we are introducing contributions to criminal legal aid for the first time. The Justice Committee found seven distinct areas of concern about that part of the bill.
One concern was whether it was right in principle to require contributions for criminal legal aid. It could be argued that there is a clear distinction between the civil litigant—at least the pursuer, who has the option of whether to raise proceedings—and a defender in a criminal trial who has no option. On balance, the committee was not opposed in principle to recipients of criminal legal aid making a contribution towards its cost; there is more to say about that later. However, any contributions must be proportionate to the means of the accused and must be sufficiently flexible to take into account particular personal circumstances. That raised the issue—I think that Jenny Marra raised this as well—of whether the financial circumstances of the spouse or partner should be taken into account. Frankly, I do not have an easy answer. Perhaps that should be decided on a case-by-case basis—I am sure that we will examine that later.
Another concern was whether fairness required that there should be provision to enable refunds of legal aid contributions to be made in certain circumstances on acquittal. The committee had some sympathy with the argument that acquitted persons should be refunded their costs, so it asked the Scottish Government to consider further the issue of recovery of contributions—perhaps restricting that to a narrow range of cases, perhaps under judicial direction where the bench indicates that the case should never have been brought by the Crown in the first place. However, we would then have to consider an award of expenses against the Crown. Again, complications would arise if the defence were privately funded and there were a big Queen’s counsel bill to be met, but the complications are not insurmountable and the issue is worth debating.
We wondered whether the level of contributions that is being proposed is appropriate. A number of witnesses had concerns that the threshold had been set too low and that very poor and vulnerable people might be asked to make contributions. The cabinet secretary has indicated that he will bring draft regulations to the committee before we move to stage 2; that is useful. However, we were disappointed—rap over the knuckles here—that the equality impact assessment was not forthcoming during our deliberations. It was forthcoming later, but we did not have it at the time. It is not good enough that the committee is left to deal with things when all the evidence, such as the assessment, is not available.
We were concerned about whether it was right that solicitors rather than SLAB would collect summary criminal legal aid contributions. Representatives of the solicitors’ profession of course strongly objected to what they saw as an additional burden of collection being forced upon them and the committee asked the Government to reflect upon those concerns.
There was also the argument, which has some traction, that the relationship between agent and client might be compromised. Would it even lead to a change in plea? Would an accused who was unwilling to pay contributions simply plead? If the case was lost, how would the agent ever recover contributions? Who would pay him or her if they lost the case? Who would stump up if the accused was in prison? Why will SLAB not collect the contributions as it does for civil legal aid—is it so that solicitors will carry the loss? That is a fair point to make. If that was the case, would that mean that agents simply would not take cases because they would not want to carry losses?
The committee wants to know whether the proposed changes would affect the smooth running of the criminal justice system. For example, if someone has their legal aid suspended in the middle of a trial, what happens to the trial? What happens if there is a co-accused, and they are left hanging out to dry, waiting for someone to come in to represent them—[Interruption.]
I beg your pardon, Presiding Officer—I have just knocked over my glass after too much flamboyance.
There are issues around the suspension of legal aid that do not arise in civil cases where someone’s liberty is not at risk. [Interruption.]
What has happened? Have I given somebody an early bath?
Jim Eadie is moving out of danger’s way. Carry on, Ms Grahame.
In order to do that he would have to leave the chamber entirely, as I see that he is doing.
The committee considers that it is crucial that any savings that are made are not in effect cancelled out as a result of the changes having unintended consequences. That is a mantra in law: watch out for those unintended consequences coming down the track. The committee has therefore called for the changes to be effectively monitored and for ministers to report to Parliament three years after the proposals come into effect.
Human rights is a huge issue, and the committee sought evidence on whether the Government’s proposals would comply with the European convention on human rights. Our concerns centred on whether an accused would be left without legal representation during a trial—as members have highlighted—and whether financial contributions were appropriate and equitable. Indeed, it was clear that, even if the office of the public defender stepped in, it would still be required to get those contributions, so that issue has not been solved.
I will conclude before I scatter any more fluid around the chamber. The committee supports the general principles of the bill, but we urge the Scottish Government to consider carefully our recommendations, particularly on part 2. In that regard, I note the Scottish Government’s response to our report and the cabinet secretary’s comments this afternoon.
The bill is the committee’s fourth, and I think that we have become a well-honed team in comprehending and scrutinising complex legislation. [Interruption.] I welcome Mr Eadie back to his seat—I promise that he will have a dry few minutes.
I hope that the committee’s stage 1 report provides some assistance to members, and I look forward to hearing other contributions to the debate. I am very glad to sit down.
I now call an accident-free Lewis Macdonald.
14:57
I hope that you are right, Presiding Officer.
Another parliamentary year, another two-part justice bill that is making two quite unrelated changes to Scotland’s legal system in a single piece of legislation. As if the Criminal Cases (Punishment and Review) (Scotland) Bill was not enough of a stitch-together or enough of a mouthful, along comes the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Bill to trump it, both in the length of its title and in the absence of a common theme underpinning the two important things that it is trying to do.
The Criminal Cases (Punishment and Review) (Scotland) Bill was at least focused entirely on criminal justice, albeit in two quite different respects. The bill that is before us, however, combines a change to the oversight of civil justice with a change to the basis of legal aid in the criminal courts. That is why the bill is already being debated almost as if it were two separate pieces of legislation, although Parliament will vote on a single proposition at the end of the day.
The proposal in part 1 to create a Scottish civil justice council has been broadly welcomed, but it has—as we have heard—prompted some important debate. The fundamental question is whether the measure should simply bring existing procedures for civil courts up to date, or whether it should seek to move the oversight of civil justice on to a different level.
The existing rules councils for sheriff courts and the Court of Session focus on drafting and updating court rules or procedures. They are dominated by sheriffs, judges and lawyers, and effectively operate as in-house committees for the legal profession. The bill proposes to create a new civil justice council that will be involved in oversight of the system as a whole, which will include—as Jenny Marra highlighted—making an input to civil justice policy. The question is whether the way in which the council will be constituted is fully in line with its extended role and responsibilities.
There is general support for measures to cut out unnecessary duplication and harmonise court rules, and for creating a new organisation that can seek to represent the wider community, rather than judges and lawyers alone. There is some concern, however, that the bill has not gone far enough to achieve that objective. As it stands, only two out of 20 council members must be lay members representing consumers, compared with nine judges and lawyers and three public officials. The remaining six places on the council are to be filled at the discretion of the Lord President, who could choose to fill some or all of the places with people who are not lawyers or judges. However, he does not have to do so, with or without discussion with ministers, which is what Kenny MacAskill offered. It would equally be open to Parliament to choose to legislate on who else should be represented on the civil justice council—for example, trade unions or the insurance industry, both of which are represented on equivalent bodies in other jurisdictions.
Alan Rogerson said, with reference to having others represented in addition to those who earn their livings in the courts:
“If we are going to reform the civil justice system, we need people who have experience of what happens before the court system takes over”.—[Official Report, Justice Committee, 26 June 2012 (am); c 1551.]
My understanding is that a lot of the detail will be addressed in specialist committees, which is where the really important stuff will take place. I would have thought that that would afford a considerable opportunity for all interested parties to have their contribution made and heard.
That echoes a point that Kenny MacAskill made. I do not disagree with that point, but I think that the oversight line of the council ought also to reflect a proper balance between legal and lay representation. There is an opportunity for Parliament to make that decision rather than leave it to the discretion of, or the choices made by, the Lord President or by him in consultation with the Government.
The organisation Friends of the Earth, whose primary interest here is in the bill’s impact on environmental law, is concerned to ensure that
“membership of the council should not be dominated by judicial and legal practitioners”,
in order to provide a balance. Citizens Advice Scotland is keen to see a “balance from the start” between lawyers and lay members rather than rely on the Lord President’s discretion to increase the number of lay members eventually, after an initial period of rules division dominated by members of the legal profession. Clearly, this is an area in which the bill might be strengthened by amendment, to which issue we will no doubt return.
Another aspect of part 1 that was highlighted in committee was the relationship between the civil justice council and ministers on policy matters, which Jenny Marra has mentioned. Professor Tom Mullen of the University of Glasgow described the bill as drafted as “confusing” in that regard and suggested that it might be
“appropriate to include a provision that ministers could invite the council to look at a particular matter, and the council would then have a duty to do so.—[Official Report, Justice Committee, 26 June 2012 (am); c 1558.]
That seems reasonable if the civil justice council is to go beyond the narrow area of court procedures. Again, we may return to that issue in due course.
The issues in part 2 are perhaps more fundamental—they are certainly more contentious—although, again, we have no difficulty with the bill’s general principles in that regard. Indeed, during the Labour debate on Scotland’s future earlier this month, I was happy to quote from the cabinet secretary’s defence of part 2, which was in similar terms to those that he used today. He told the Justice Committee that
“it is right that those who can afford to pay towards the cost of their defence should do so ... That must be right when public finances are under such pressure.”
He promised to target help
“at those who need it most”.—[Official Report, Justice Committee, 18 September 2012; c 1717.]
I could not agree more, and not just on the matter of legal aid. However, the question with any targeted benefits is how to ensure that support goes to those who need it most.
Article 6 of the ECHR guarantees the right to a fair trial, including the right of anyone who is charged with a criminal offence
“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
That is not an unlimited right. The issues for any justice system in interpreting that are to determine when a person lacks sufficient means to pay for legal assistance and when the interests of justice require that that assistance be given free.
The proposal in the bill to introduce a means test for those elements of legal aid currently with no client contribution and to introduce a single assessment for all types of criminal legal aid have been broadly welcomed, but some of the details of the proposals have caused concern. First, there is the level of disposable income at which contributions will be required. Kenny MacAskill mentioned that up front in his opening speech. I am glad that ministers have dropped plans to count disability living allowance and personal independence payments as part of disposable income. However, many remain concerned about access to justice for poorer people in general.
The Law Society, for example, believes:
“It is not realistic to expect anybody who has a disposable income of only £68 per week or a disposable capital of only £750 to be required to pay towards their legal costs.”
Professor Alan Miller of the Scottish Human Rights Commission told the Justice Committee that he was
“not at all convinced that a sufficient assessment has been done of the impact of the bill on vulnerable individuals who come into contact with the criminal justice system and are unable to pay for proper legal representation.”—[Official Report, Justice Committee, 11 September 2012; c 1692.]
That impact might be to create a perverse incentive for accused people to plead guilty to offences that they did not commit or to go to trial without legal representation rather than take on legal aid contributions that they could not afford.
The Government’s response—Mr MacAskill said it again today—has been that the means test that is being introduced for criminal legal aid is the same as already exists for civil legal aid. That begs the question whether the thresholds might disadvantage those on low incomes who seek access to civil justice, such as the victim of domestic abuse to whom the cabinet secretary referred. I would be interested to know when the thresholds for civil legal assistance were last properly reviewed. I note that the level at which the threshold is set was not uprated this year in the way that it has been uprated in past years.
A second area of concern is the lack of a proposal to refund financial contributions in the event of an acquittal. Again, the Government’s reasoning is that accused persons who pay their own costs do not get a refund if they are acquitted, so there is no reason to allow refunds to those on legal aid. That defence again raises questions, such as why those who are cleared of a crime have to pay to prove their innocence whatever their income. In that regard, Dr Cyrus Tata of the University of Strathclyde observed that the cabinet secretary seemed to be arguing that
“two wrongs make a right”.
Thirdly—Christine Grahame mentioned this in the concluding part of her speech—there is concern about the proposal that solicitors should be responsible for collecting contributions from those who receive legal aid in summary cases given that collection is already done in civil cases and will be done in solemn cases by the Scottish Legal Aid Board. As the convener of the Justice Committee said, that responsibility will be unwelcome to solicitors, particularly to smaller firms, but it might also have implications for clients. Country lawyers might well decide that the costs and inconvenience of collecting contributions are not worth the effort, in which case their area could be left without a solicitor who is prepared to take on criminal cases. That would reduce access to justice at the very time when many rural areas are facing the threat of closure of their local court.
As Christine Grahame said, unintended consequences might arise from a number of provisions in the bill, so they must be considered carefully at the next stage of proceedings. It is on that basis that we in this part of the chamber will support the general principles of the bill.
15:07
I am pleased to be able to speak in today’s stage 1 debate on the Scottish Civil Justice Council and Criminal Legal Assistance Bill.
Once again, the Parliament and the Justice Committee are considering a piece of legislation with two very different parts. Part 1 seeks to establish the Scottish civil justice council to reform the civil justice rules and keep the system under review. Part 2 deals with the entirely different matter of criminal legal aid and seeks to introduce a system of contributions for criminal legal assistance.
The fact that the bill deals with two distinct and unconnected areas of law is worth noting. While such an approach is not without precedent and can be justified on pragmatic grounds, it has potential to create handling difficulties when we consider legislation. Combining different provisions in one bill also makes finding the law on a specific matter more difficult and it is therefore not to be encouraged. I note that the Scottish Government is increasingly taking that approach and I urge caution against its becoming the norm for those very reasons.
Part 1 of the bill, which is less contentious, implements the key recommendation of the Scottish civil courts review, which was carried out by Lord Gill in 2009. It will replace the Sheriff Court Rules Council and the Court of Session Rules Council with a single body. Significantly, the new council will have a role
“to keep the civil justice system under review”,
which will place the organisation as one of the key players in law reform in Scotland.
That point has caused some stakeholders to question whether the bill will make an organisation that will have a significant advisory role sufficiently accountable. Unlike other organisations such as the Scottish Law Commission, the council will be designated a statutory advisory body, rather than a non-departmental public body. The Scottish Government has argued that the council’s main role will be to assist the Lord President, who will therefore have ultimate responsibility for court procedure, and that it would therefore not be appropriate to designate the council as an NDPB. However, that will have the effect that the council will be free from the accountability mechanisms and public appointment procedures that would apply to an NDPB. That is despite the fact that, according to Professor Paterson, who represented public law professors in Scotland, the council will be
“an NDPB in all but name”.—[Official Report, Justice Committee, 26 June 2012 (am); c 1553.]
It may be appropriate therefore that the bill, if it does not designate the council as an NDPB, introduces an explicit recognition that the council must be accountable in its policy role.
Other witnesses sought reassurances as to where the boundaries of policy lay. As the bill progresses, I consider it a priority to examine whether the relevant provisions need to be tightened up to ensure that the council’s policy functions are not too wide.
The council’s membership has also attracted some criticism from a number of stakeholders, who are calling for greater representation of their interests. The council will have between 14 and 20 members and it is correct that its membership will be limited to a manageable size in respect of legal and lay representatives. However, I question whether it is right that only two solicitors will sit on the council when currently five solicitors sit on each of the two rules councils.
It seems that there are two main concerns over part 2 of the bill: that the thresholds at which contributions are to be made are set too low; and that it will result in innocent people being out of pocket as a result of actions of the state.
The bill proposes that if an individual has a weekly disposable income of £68 or more they will have to contribute towards their legal representation. Organisations such as the Law Society of Scotland, the Scottish Human Rights Commission and Capability Scotland all told the committee that that proposal may result in poor and vulnerable individuals being asked to make contributions. There are legitimate concerns surrounding access to justice for society’s most vulnerable and poor people.
The committee heard an argument from the Faculty of Advocates and Dr Cyrus Tata of the University of Strathclyde that contributions should be introduced for criminal proceedings only if they are accompanied by refunds on acquittal. The argument for that position is convincing and is based on the idea that if the state takes an innocent person to court, that person should be left in no worse position than he or she was prior to the proceedings commencing. The Government’s reason for rejecting such refunds is that that would treat all legal aid recipients more favourably than those who were privately funded. The committee is correct to call on the Government to consider further its position on the matter.
I question whether it is appropriate for solicitors to take on responsibility for collecting any summary criminal legal aid contributions that are due. The Scottish Legal Aid Board will continue to administer the fund for solemn legal aid and in relation to most appeals. I fail to see why the Legal Aid Board, which is the very body tasked with administering legal assistance, cannot collect all contributions. Requiring solicitors to collect contributions will require them to carry out unpaid work and may lead them to seek adjournments because contributions have not been paid. The committee correctly argues that SLAB is better placed to maintain and enforce collection mechanisms, and I urge the Government to consider that.
The Scottish Conservatives will support the bill at stage 1, notwithstanding our call for greater thought from the Government in relation to part 2. I hope that the cabinet secretary will heed the concerns of others in that respect.
15:14
I refer members to my entry in the register of members’ interests as a member of the Faculty of Advocates.
As we know, the bill is in two parts. It is fair to say that one of the points of contention about part 1 was that, given the bill’s provisions on mandatory appointments such as those relating to the Law Society, the judiciary and the Faculty of Advocates, the council runs the risk of being lawyer-heavy with insufficient attention being paid to the interests of the users of the court as well as the wider public interest—and more so if the designated up to six Lord President appointees also include lawyers. There is an issue there. However, although an organisation such as the Forum of Insurance Claims Managers rightly refers to its 80 per cent interest in litigated cases, we need to recognise that, as the Lord President suggested, much of the council’s work at the start will involve drafting rules. Indeed, he described that as “a substantial project”.
Nevertheless, as the Lord President and the cabinet secretary—and, indeed, the academics Professors Mullen and Paterson—recognise, sub-committees will be very important. If they are set up from the start, they will be able to break down the work and it will be much easier to ensure that wider interests are represented in the Lord President’s appointments. We should also bear in mind that it will be possible for the Scottish Government to use secondary legislation to adjust the council’s mandatory membership and perhaps to reduce the number of lawyers in due course. The Lord President was also right to stress in his written evidence the fact that there was much talk of the experience in England and Wales, where the Spencer review led to a rebalancing of the membership of the Civil Justice Council to half legal and half lay members, without any recognition that rule-making functions in England and Wales belonged to a separate body.
Nevertheless, I hope that the Lord President recognises in his appointments the importance of the interests of the insurance sector and indeed the trade unions. I have every hope that in time the new council will have a greater focus on policy matters, not to usurp democratic input but, as the Lord President himself put it, to frame
“the sort of system we want to have, how we want it to work and whose interests we want to protect”,—[Official Report, Justice Committee, 4 September 2012; c 1610.]
taking its lead from Parliament on matters such as court structures or civil remedies.
As for part 2, I, like others, have no problem with the proposition that those who can afford to do so should contribute towards their criminal legal aid. At a time of real strain on the public purse, such an approach has to be right. However, as the Scottish Human Rights Commission suggests, contributions should not be pitched at a level that would impact on an accused person’s right to a fair trial.
As far as levels of contribution are concerned, I welcome not only the cabinet secretary’s commitment to regularly reviewing the human rights impacts of part 2 but the agreement reached with Capability Scotland and SLAB to exclude disability living allowance and its successor from assessments of disposable income.
Not unexpectedly, there was considerable opposition from solicitors to the suggestion that they collect criminal legal aid contributions in summary cases. SLAB estimates that collecting those contributions would cost it £600,000 and, of course, solicitors fear substantial levels of non-payment. Attempts to draw on present experience from the history of collection in assistance by way of representation cases where guilty pleas were entered did not take matters forward greatly.
Mark Harrower of the Edinburgh Bar Association said that his firm made no attempt to collect contributions and, unsurprisingly, SLAB did not have any information on non-collection. However, it advised that in 2011-12 solicitors would have been required to collect £154,000 for criminal ABWOR cases. That is a relatively small figure, but I note from the bill’s financial memorandum that the average contribution payable under ABWOR under the new arrangements is estimated to be £143 from income and £187 from capital as opposed to the current maximum contribution of £142. It is important to remember that in summary cases 44 per cent of those making a contribution will pay below the current ABWOR maximum contribution of £142.
I know that many people in the legal profession believe the proposals to be a pay cut by another name and there is clearly a risk that delays associated with collection of contributions will impact on the administration of justice, even though they clearly should not. Nevertheless, we are in difficult financial times and I welcome the Scottish Government’s commitment to reporting back to Parliament on the impact of the proposals in due course.
In relation to the reimbursement of legal expenses, Scotland has, as the cabinet secretary has pointed out, no tradition of reimbursing the legal expenses of acquitted defendants. It is suggested that to reimburse the contributions of legally aided defendants who are acquitted would potentially advantage them at the expense of privately funded individuals.
James Wolffe QC, speaking for the Faculty of Advocates criminal bar association, believes that no one, whether paying privately or not, should be denied a refund of contributions, although he had no information to indicate how many privately funded people have been acquitted. There is clearly little evidence on the point.
In England and Wales, reimbursement started out as being for exceptional cases only. Since 1985, following the creation of the Crown Prosecution Service, reimbursement from central funds has been much broader and applies to all defendants; of course, there is provision for defendants to be asked to contribute towards costs, which is not part of our system. In his evidence, the cabinet secretary described the issue of reimbursement of legal expenses as “fraught”.
In its response to the committee, the Scottish Government has indicated that it is not persuaded that it would be right to make provision for the recovery of contributions on acquittal either as a general rule or in some cases.
I accept that the bill deals with criminal legal aid only and not with the wider issue of the recovery of legal expenses, but I hope that the wider issue merits being kept on the radar for the future. At a time of radical change in the criminal justice system, that seems not unreasonable.
15:21
The development of a Scottish civil justice council comes at the end of a long process of consultations, reviews and reports.
Not only will the creation of the council implement the reforms identified by Lord Gill but, as the Lord President acknowledges, properly constituted and directed, the council should deliver on-going modernisation, deal with matters affecting the administration of justice in our civil courts and create the necessary rules. As the cabinet secretary said in his opening speech, the council should be an agent for change. The Parliament hopes that it will take that responsibility seriously.
With a limit of no more than 20, the council’s membership reflects a significant presence of legal professionals: judges, solicitors and advocates. There are to be at least two representatives from the consumer protection community and, in evidence to the committee, the Lord President provided significant assurances that he will seek an appropriate balance on the council to ensure that all those who access civil justice across Scotland have their views considered and properly weighed.
As other speakers have said, the Lord President has access to six personal nominations. We hope that he will use those wisely. The Lord President carries a heavy burden in that regard, although I feel confident that the current Lord President is a match for that duty and, with Government support, will be able to deliver on what is a radical change for Scotland’s justice system. The precedents created now set the tone for future changes for civil justice in Scotland.
We are advised that the additional costs involved in the creation of the civil justice council are to be borne by the Scottish Court Service and paid for from fees that are paid into the system in relation to access to civil justice. That outcome is to be welcomed in these days of economic stress.
Part 2 of the bill revisits the provision of legal aid in the context of criminal justice.
Under current provisions, persons subject to the criminal process who get assistance by way of representation can, in appropriate circumstances, expect to contribute between £7 and £142 towards the cost of their legal representation. The bill proposes that such a citizen who has a disposable income in excess of £68 a week may be asked to contribute between £5 and £1,518 towards the cost of their legal representation. Such rules apply not only to indigenous Scots but to any person in Scotland from the European Union and, I imagine, from elsewhere in the world.
Although I welcome an approach that ensures that those who can pay do pay, I want to ensure that, in circumstances in which an accused person attracts prosecution, we will be able to apply rules in deciding ability to pay—rules that are efficient in their application and catch those who seek to hide their true wealth. At the same time, the rules need to protect those who are genuinely unable to finance proper legal representation.
Speaking as a lawyer, I make the point that lawyers already have to collect contributions for civil legal advice and assistance and, indeed, ABWOR. It is not a new thing. It really is incumbent on the lawyer to run the practice and get the money in, and it is not, therefore, unreasonable, if we are aligning civil and criminal legal aid systems, that that approach is adopted—and it has to be said that it is being adopted with respect only to summary criminal cases.
I am obliged to the member for that point. Indeed, in evidence to the Justice Committee, many solicitors acknowledged that they had found that their ability to obtain fees in circumstances that they outlined had been severely stunted. The chaotic approach of some clients left solicitors in a position of investing in future service provision, taking the loss on the chin as a result. In terms of the future provision of services, the proposal in the bill seems a precarious way forward.
The provision of public defenders to fill the gap in circumstances in which solicitors feel unable to represent clients is a proposal that seems—on the basis of the available evidence—to be poorly thought out and lacking in true substance. I hope that that element will be further considered and fleshed out.
The Scottish Government must revisit those elements to assess the options that are available to it before taking matters further. The reluctance of SLAB to play a part in this part of the recovery of fees speaks volumes.
The knock-on effect arising from a client’s failure to pay the element of the fee due to their solicitor—perhaps leading on occasion to the withdrawal of services before or during a trial—was discussed in evidence that was given to the Justice Committee, and we heard that that could cause significant disruption with regard to the way in which trials are administered. The cabinet secretary would do well to consider that issue, which deserves further consideration.
I have sympathy with the view that judges should have the power to order the reimbursement of costs to an accused who is subsequently acquitted and discharged, in very specific circumstances.
The broad thrust of the bill’s intentions in part 1 and part 2 is to be welcomed. However, as always, the devil is in the detail.
15:29
It has been fascinating to be a member of the Justice Committee, which, over the past few months, has listened to organisations and individuals—many of them distinguished—from within the legal profession. It is clear that managed change is required over the next few months simply because of the pressure on public finances. Every public and Government department has to manage its budget in the most efficient way, and justice can be no different. We must, however, maintain a quality of service that is fair to those who are involved in the system.
On the first part of the bill, the Lord President made a compelling case for reform. Although no witnesses were against the principle of the new council, there were some concerns about its make-up, as many members have said. I am happy with the number of council members being between 14 and 20, as anything larger could become overly bureaucratic. However, that is where some of the witness disagreements begin. Who should have a place on the council? Is the legal profession overrepresented? What about more laypeople being involved? There are also questions relating to the powers and role of the Lord President.
For those of us who are not legally qualified, the modernising and maintaining of court rules were probably not major issues when the bill was introduced. However, one witness had the foresight to bring along copies of the rules for both civil and criminal courts, and both sets of rules appeared to be between 6 and 8 inches deep. That may seem a minor point of showmanship, but given the complex, technical nature of the rules and the need for modernisation I believe that there must be—as the Lord President suggested—a very strong presence of legally qualified members, especially in the new council’s formative years.
Of course, the new council must also have lay members. We received strong representation on that from Scottish Women’s Aid and the Association of British Insurers.
Does the member agree that the lay members could also be qualified legally?
Yes, of course. I have no objection to that at all. Over the years, I expect the composition of the council to change, especially after the court rules have been modernised, and more lay members will be involved—whether or not they are legally qualified. Some of the technical work can be done by committees set up by the council, which should help to speed up the process of court rule change. I am pleased that the Scottish Government will remove the requirement in section 11(4) that the deputy chair must be elected from the judicial members of the council, thus opening up the possibility of a layperson taking up the position.
Some witnesses thought that too much power is being given to the Lord President, particularly in respect of appointments. In the early stages, I had my concerns about that as well. However, having heard the evidence I am now convinced that the office of the Lord President is the correct avenue to travel. With the council being required to lay an annual report and business plan before Parliament, and with the Lord President publishing a statement of appointments practice, I believe that the checks and balances exist to allay fears.
Another problem to be faced is that of administrative justice. Like my colleagues on the Justice Committee, I see the future as being uncertain and will be interested to see what is proposed in the coming months.
I suspect that the second part of the bill will be regarded as the most contentious part. The cost of legal aid has risen over the past number of years and, like my colleagues on the Justice Committee, I am not opposed to the principle of the recipients of criminal legal aid making a contribution towards its cost. In the words of the convener of the Justice Committee, the system must be proportionate to the means of the individual and must be sufficiently flexible to take into account individual personal circumstances. That is particularly important for those on benefits, who may not be in a position to pay anything towards the costs. I am delighted that the Government has agreed with Capability Scotland and the Scottish Legal Aid Board that any payment of disability allowance or its successor, the personal independence allowance, should be disregarded in any assessment of the applicant’s disposable income.
As we have heard during the debate, there are concerns about the level of disposable income—which has been set at £68—at which a contribution would have to be paid. I am glad that the Scottish Government has clarified that that figure is a starting point and can be amended upwards in regulations. I am also happy that it will be kept under constant review. The fact that the Scottish Government has agreed that income and capital thresholds must be kept under review—and regular review at that—makes me feel a good deal easier about those within the system who have little in the way of personal funds.
Among other aspects of the bill that are worth highlighting is, as others have already pointed out, the effect of contributions being collected by solicitors rather than that job being given to the Scottish Legal Aid Board. However, I will leave those matters for another day.
15:35
Once again, I am—I think—the first member to speak who is not a member of the Justice Committee. Let me begin by commending the Justice Committee for another excellent report. I always find that I am, if I have read the committee’s reports and oral evidence, absolutely prepared for the debate. That was perhaps rather a rash thing to say, but time will tell.
On part 1 of the bill, which provides for the civil justice council, I think that the main areas of concern are about who is to be on the body, how it is to be appointed, and how someone might be dismissed from it in the rare event that that is required. It seems to me to be of central importance that the opinions and needs of users and consumers must be adequately reflected in the make-up of the body. As Lewis Macdonald reminded us, what is currently written in the bill could mean that the civil justice council has as few as two non-legal members. When Jenny Marra raised that point in an intervention, the cabinet secretary said that he would discuss the issue with the Lord President. However, I think that we—and the bill—must take a view on the issue.
The same issue arises in the appointments procedure. It is not good enough to refer to the Lord President’s assurances, as I think the cabinet secretary did in relation both to this matter and to policy. The fact is that Lord Gill will not be Lord President forever and, as always, it is the words in the bill that matter. I think that there ought to be something about the appointments principles on the face of the bill.
The cabinet secretary also highlighted the policy role of the council when he referred to its keeping the civil justice system under review. As David McLetchie rightly said, those policy responsibilities must not be too wide and, as Jenny Marra said, they must be tightened up. Clearly, this is an area that needs to be looked at during stage 2. Perhaps in order to emphasise the centrality of ministers and Parliament in matters of policy, there could be an amendment that would place a duty on the council to provide advice to ministers on policy. I have a general concern that too many of the decisions are being left to whoever happens to be Lord President at the time. At the end of the day, ministers and Parliament must have an important role in all this.
Finally on part 1, I note the concerns of Scottish Women’s Aid about the wording on alternative dispute resolution at section 2(3). Scottish Women’s Aid made the important point that alternative dispute resolution must not be assumed to be required in all cases because, clearly, it is not appropriate in domestic abuse cases.
That point provides me with a bridge to part 2 of the bill, on which I was also struck by what Scottish Women’s Aid said—the example was also quoted by the cabinet secretary—about the apparent injustice in domestic abuse situations in which a woman might have to pay for civil legal aid while the violent man does not. All I say in response to that—which the cabinet secretary made central to his argument—is that it is dangerous to base a whole case on one example. For a long time, I have argued that women should not have to pay the money that they currently pay in order to get injunctions and so on. My preference would be that no contributions at all be required in domestic abuse cases in the civil courts.
Domestic abuse apart, I think that the criminal situation is different from the civil situation, because the power of the state is against the person involved, who has no choice and may be innocent. There are also ECHR implications concerning the right to representation. I note that Professor Alan Miller said that there had been no proper human rights consideration by the Government in relation to its proposals in the bill.
I certainly accept the principle of a contribution to criminal defence when the person can afford it—that principle is already enshrined in the current system. However, I have serious concerns about the level of unassessable disposable income being set at the first £68—an amount that has obviously been picked to mirror the limit for civil legal aid. We should reflect on the fact that that system was set up in the Legal Aid (Scotland) Act 1986. In 1986, the amount was £49, so we ought to reflect that the amount has clearly not kept pace with inflation when it comes to civil aid. I understand the financial difficulties so, domestic abuse apart, I am not arguing for changes to the civil legal aid system, but I am arguing that £68 is a pretty low sum in relation to what was originally proposed for civil legal aid in 1986. I therefore hope that that figure will be looked at again.
Two other changes are needed, which are especially required if the £68 figure is to be kept. First, the Scottish Legal Aid Board should collect the money. It has a 95 per cent collection rate for civil legal aid—which has the disposable income threshold of £68—so it is clearly quite good at it. It has systems in place, so it seems obvious that it ought to do that. The danger is, of course, that if the board does not collect the money, people may end up being not represented in court, which is a serious matter.
Secondly, I want refunds for people who are acquitted in court. I know that the argument against that relates to people who privately fund their cases, and that it would be expensive to refund some people who get expensive advocates. Therefore, it would be perfectly equitable to refund only those who are in receipt of legal aid. That is a form of means testing; those who do not receive legal aid can afford the payments far better than can those who are in receipt of legal aid. I understand that it would not be financially possible to refund everyone who was acquitted, but if the new system comes in—particularly at the £68 disposable income threshold—I hope that there will be a refund for people who are in receipt of legal aid.
The changes that are being proposed by various members in the debate are perfectly feasible, as well as desirable. We are not talking about enormous sums of money—the total saving on part 2 of the bill is less than £4 million. Some of the suggested changes would still allow substantial savings, would be more equitable and would be more in the interests of justice.
15:42
I am the second person who is not a member of the Justice Committee to speak in the debate. I do not know whether Malcolm Chisholm and I are starting a bit of a run of speeches by non-committee members. We will see where that takes the debate.
I welcome the introduction of the Scottish Civil Justice Council and Criminal Legal Assistance Bill. Unlike Lewis Macdonald, I do not particularly think that that is a mouthful; it is, indeed, a punchy title.
The bill is important. We must be consistent in always being prepared to consider progressing reforms that will ensure that our country’s legal system is fit for the times.
I congratulate the Justice Committee on its work so far in assessing the bill, and I thank it for its informative stage 1 report. I am sure that the committee—under the astute convenership of my colleague, Christine Grahame—will continue to contribute positively to scrutiny of the bill.
I welcome the proposal to create the Scottish civil justice council, which comes from a recommendation in Lord Gill’s review. Any reform of that nature should be based on expert opinion; that can fairly be said to be the case with that proposal. The proposal is welcomed by much of civic society. As other members have, I received a large number of briefings in advance of the debate, which reflects the great deal of interest in the bill among stakeholders. The briefings show broad support for the creation of the Scottish civil justice council.
I will cite some of the briefings. Citizens Advice Scotland said that it sees the council as being
“an integral body to ensure the success of the reforms and then afterwards as a body to ensure these principles of coherence, accessibility and sustainability are upheld.”
In particular, it welcomes
“The intention that appointment to the council will be in line with the principles associated with public appointments process.”
The Association of British Insurers
“supports the civil justice provisions in the Bill”
and
“agrees that a body should be responsible for the implementation of the reforms proposed by Lord Gill.”
It also
“supports the creation of a Scottish Civil Justice Council”,
as do the Forum of Scottish Claims Managers, the Law Society of Scotland and—this is interesting because we might not have expected it—Friends of the Earth Scotland. Friends of the Earth has an interest under the Aarhus convention, which recognises every person’s right to a healthy environment, and to which the European Union and the United Kingdom are signatories.
That demonstrates a fair degree of support for creation of the council. Lest members accuse me of quoting selectively from the briefings—people have run into trouble of late by quoting selectively—I accept that there are—
Mr Hepburn makes an offer that I cannot refuse. Does he accept that, although Friends of the Earth and others who have made representations support the principle of a civil justice council, they believe that it is important that the new body has from its beginning a balance between legal and lay representatives?
I must say that Mr Macdonald did not need to intervene, because I was about to make exactly that point. I accept that concerns have been expressed—Mr Macdonald’s point about the composition of the council being the primary one. Christine Grahame also mentioned that the issue was raised when the Justice Committee took evidence. I am fully confident that, because we are only at stage 1 of the bill process, we can continue to consider that matter. I heard the cabinet secretary and the Justice Committee convener say that the bill contains powers that will ensure that the composition of the council could be considered again in the future. It is welcome that so many stakeholders are engaged in the process.
I turn now to part 2, which will make changes to criminal legal aid. Incidentally, I am entirely relaxed that the bill deals with two different matters and I am sure that we are capable of dealing with any proposed legislation that does that. It is interesting to refer back to the consultation paper that the Scottish Government issued on that. It said that,
“In a time of reduced expenditure it is essential to focus legal aid on those who need it most”.
We can surely all unite behind that principle. I do not think that it would be contentious at all. It is clear that, in these straitened financial times, it makes sense to target support at those who need it most.
Of course, contributions are already payable in civil legal aid and for advice and assistance, including in criminal cases that involve assistance by way of representation. Therefore, the cabinet secretary’s point that the changes are a matter of evolution rather than revolution was fair. It was also fair to point out that a similar, but less generous, scheme that operates in England seems to indicate that we cannot expect great problems with the operation of such a scheme in Scotland.
I also welcome the fact that the system of contributions will be progressive, with the first £68 of disposable income not being assessable for contribution. I understand that some people feel that the figure should be higher. I return to the point that I made earlier that we are at stage 1 of the process, so I am sure that they can continue to make that case. The level could also be increased by regulation in the future.
As the deputy convener of the Parliament’s Welfare Reform Committee, I hugely welcome the fact that DLA and its successor personal independence payments will not be considered in any assessment for contributions. The committee has seen plenty of evidence of the difficulties that recipients already face. Inclusion Scotland was right to say that classing those benefits as income could have led to unfair treatment of disabled people. It placed that comment firmly in the context of the UK Government’s welfare reform agenda. It is welcome that the Scottish Government has committed to not including those benefits in any assessment.
It seems to be clear that the Scottish Government’s approach will be to work with the Justice Committee and interested stakeholders to finesse the bill. I think that that is the right approach and one that the Government should be commended for adopting. I am sure that it will lead to the development of the best possible bill, which is what we will see happening at stage 2 of the process.
15:50
As we know—it has been said many times during the debate—the bill is in two distinct parts. Part 1 will establish the Scottish civil justice council and part 2 will make changes to the current framework for criminal legal assistance. The Scottish Liberal Democrats can support the principle of the bill, although there are a number of areas in which we will seek improvements, as the bill progresses.
I will touch on the part 1 provisions only briefly—most of my comments relate to part 2. The proposal to set up a Scottish civil justice council arose from Lord Gill’s 2009 review of the Scottish civil courts. It is an entirely sensible suggestion; indeed, it is a necessary step if further recommendations from the Gill review are to be properly implemented. The council’s establishment should also ensure that the civil justice system is subjected to continuous improvement.
I welcome the Lord President’s assurance that although the council will not be an non-departmental public body, the appointment process will adhere to good-practice principles for public appointments—that is essential if we are to be confident in the new council—but Malcolm Chisholm is right to ask that that be enshrined in the bill.
Much of the evidence that we received in committee related to the proposed make-up of the council. As things stand, a majority of mandatory appointees will be members of the legal profession. As we have heard, the bill will give the Lord President discretion to appoint up to six additional members. From the outset, I would like the new council to include a fair balance of lay and legal representation. End users of the courts should have a clear voice. The Government has said that the bill strikes the right balance, but I ask the cabinet secretary to give further thought to guaranteeing that there will be such a balance among members of the council.
The Justice Committee recommended that lay members should not be precluded from being appointed to the role of deputy chair, and I welcome the Government’s indication that it will amend the bill to that effect.
Part 2 concerns criminal legal assistance. Although, in principle, the idea of recovering some costs for that is acceptable, the evidence to the committee has raised concerns about practicality. We must ask ourselves whether the financial savings that are likely to be made are proportionate to the risks and, indeed, the disbenefits that might arise.
I believe that access to justice and to fairness, and proportionality should underpin the new arrangements, but we have received a number of representations that, so far, the proposed arrangements do not live up to those criteria. Under the bill, anyone with disposable income of £68 per week or more, or disposable capital of £750 or more, will have to pay a contribution towards ABWOR or criminal legal aid. There is genuine concern that those thresholds are too low and will result in poor and vulnerable people having to pay contributions.
At this stage, it is difficult to bring anything fresh to the debate, but there is an issue on which I think no one has touched. The details of the charging will be set out in regulations and in SLAB’s scheme of eligibility. The Justice Committee agreed with the Subordinate Legislation Committee’s view that that power is a significant one, and that there is no good reason why it should not be exercised through an instrument that is subject to the affirmative procedure. The Government gave its response to that in Mr MacAskill’s letter to the Justice Committee. He said:
“The scheme will provide direction to solicitors granting ABWOR on how to apply the undue hardship test ... It is not considered that once the scheme is initially approved and published that it would be a static document. As the scheme is concerned with what constitutes undue hardship for a client, or the dependents of a client, it is important that the scheme can be flexible and responsive to emerging needs. I therefore envisage that the scheme would be a ‘living document’ and one which the Board would keep under constant review ... I expect that Scottish Ministers’ clearance of any revisals to the scheme could be obtained in most cases in just a few days. If the scheme were contained in a statutory instrument we could find ourselves in a situation where necessary, and perhaps urgent, changes are required but a Parliamentary process must be followed which prevents quick dissemination of the change.”
That response causes me real concern and sets alarm bells ringing. Of course we want the scheme to be flexible, but we do not want the Government to be making it up as it goes along. I do not believe that the detail has been properly worked through or that sufficient time has been taken to define “undue hardship”, and there is nothing to guard against the contributory net being cast ever wider to catch more and more people in it. That adds to my belief that members of Parliament must be able to scrutinise the regulations, which must be subject to parliamentary process. I urge the cabinet secretary to reconsider his stance on that.
The Government’s movement on disregarding disability living allowance and, in time, the PIP is welcome, but it is not the end of the story. The cabinet secretary must continue to work with Capability Scotland to find an appropriate and balanced way of calculating disability-related expenditure. We need the outcome of that before the bill completes its progress through Parliament.
Section 17 will enable ministers to disapply the requirement to obtain contributions from people who are held in police custody. The Government has said that it intends
“to discuss potential to use this provision with the Law Society”.
I would welcome more clarity on that.
Concern is widespread in the legal profession that collecting summary legal aid contributions will be difficult for firms and could lead them to have to write off a proportion of their income. Such a requirement could have unintended consequences for the functioning of the summary criminal justice system and could lead to adjournments and delays, as we have heard. For that reason, I am inclined to think that SLAB is better placed to collect such contributions. I urge the Government to revisit the issue at stage 2.
We support the bill’s principles, but with a number of caveats. I hope that the Government will reflect on the many concerns that all members have raised today and will lodge amendments at stage 2 that address those concerns. The cabinet secretary must ensure that access to justice, fairness and proportionality are at the heart of his proposals.
15:56
I am pleased to speak in this stage 1 debate on the Scottish Civil Justice Council and Criminal Legal Assistance Bill. I, too, am not a member of the Justice Committee. I think that I am the third non-member to speak; we should form a new group—[Interruption.] However, as the Minister for Community Safety and Legal Affairs prompts me to say, I am a member of the Law Society of Scotland and hold a current practising certificate. In the past, I have been on the registers of civil and criminal legal aid practitioners. That is important to put on the record, as far as I understand the rules.
As we have heard from many members, part 1 of the bill proposes to establish a new civil justice council, which will replace and expand on the functions of the Sheriff Court Rules Council and the Court of Session Rules Council. The new council will be under the Lord President’s direction and oversight, and the Scottish Court Service will provide secretariat support.
Consequently, there will be a single body, which will afford greater coherence in the structure for setting court rules. I understand that the proposal has been widely welcomed as a positive development in the determination to improve the justice system’s operation in Scotland.
I note and have heard this afternoon that, further to the Justice Committee’s scrutiny of part 1, issues have arisen in relation to the council’s remit and composition, on which I will make a few comments. The committee has—rightly—sought clarification of the likely scope of the new council’s proposed policy role, given the key doctrine of the separation of powers. I was pleased to note that the cabinet secretary confirms in his response, dated 18 October 2012, to the committee’s stage 1 report that the council’s role in policy making will be “essentially advisory”. In effect, he confirms that the bill will not impinge on the doctrine of the separation of powers.
As for the new council’s composition, I note that the committee raised issues about the need to ensure proper representation of the interests of not only what could perhaps be termed the usual justice suspects but—importantly—end users. A number of members have made that point. My reading of the bill is that a balance between those two groups is being sought. I note that it is to be at the discretion of the Lord President to flesh that out in practice when he has the opportunity to appoint six additional members. From reading the report, I note that the Lord President has given assurances to the committee that a wide range of interests and users will be represented and that, given that the council’s initial priority will be drafting the new, updated rules of court, there will be a need for specialist legal input at the outset.
From the representations that we have all, I think, received from different bodies, it seems that it is not just the legal profession that wants more places. David McLetchie referred to that issue. I think that it wants equivalence with the current position, which is five solicitor members, but it would have two. Groups such as Citizens Advice Scotland and representatives from the insurance industry are also lobbying for more places.
As I said in my intervention on Lewis Macdonald, I believe that we must strike a balance, as the council must be able to operate and not become unwieldy. That point was well made by the cabinet secretary. I also said earlier in an intervention that I believe that, as a matter of practice, a lot of the detailed work, which is far and away the most important work that will be done, will be carried out by specialist subject committees rather than at the full council level.
When Annabelle Ewing intervened on my speech, she suggested that some lay interests could well be represented by the council sub-committees. Is it not equally true that some of the specialist work that will be required for rules revision in the initial period could be delegated to sub-committees and that, therefore, the lay-legal balance of the council could be a separate matter?
I accept that that is a possibility, but I am not entirely sure whether that is the best way forward in the initial period to get the rules updated and out there. However, the point is certainly interesting, and it would be worth looking into it further as progress is made on the bill.
I would welcome the cabinet secretary’s agreement to lodge an amendment at stage 2 to ensure that the deputy chair of the council can be either a judicial member or a lay member. That is an important concession that has been made, which reflects issues that have been raised this afternoon on the composition of the council.
It is obvious that, in the final minute or so that is available to me, I do not have enough time to go into detail on the bill’s criminal legal assistance provisions but, as I mentioned in an earlier intervention, it seems to me that the key purpose is the alignment of the criminal legal assistance scheme with the civil legal aid scheme. I believe that, as a principle, that has gained acceptance across the board. The fundamental, underlying principle is that the recipient of criminal legal assistance should make a contribution to his or her legal costs if they are able to do so.
As a member of the Welfare Reform Committee, I very much welcome the undertakings to disregard disability living allowance and to work with Capability Scotland on disability-related expenditure. I make a plea: Inclusion Scotland is very keen to be involved in that process, and I hope that there is a role for it. I also hope that war pensions will be disregarded.
In conclusion, the bill will bring forward much-needed changes to the justice system. It seems to be expected that some 82 per cent of cases will result in nil contributions, but it is important to ensure that, with the massive Westminster cuts to the Scottish budget that we face, the broad scope of the current legal aid scheme can be maintained.
16:04
I, too, feel the need to confess that I am not a member of the Justice Committee. We are a growing band of people who are watching the backs of members of that committee.
I would like to focus more on part 2 of the bill, but I have some words to say about part 1 first.
The creation of the Scottish civil justice council is important for the efficiency and effectiveness of civil justice in Scotland. It will help to raise the level of civil justice to that of a modern system. I welcome the creation of such a body, which will enable the justice system to move on and implement more court reform legislation.
As I understand it, the council will have a wide remit to contribute to the on-going improvement of the civil justice system. With the creation of the new council, there is further hope that the groundwork is being laid for real change. We are embarking on a long period of reforms to our civil courts system and I agree with the statement from Lord Gill that
“The next few years will be a period of transition”.
However, I share the concerns that David McLetchie expressed about the fact that the Government has chosen not to make the council a non-departmental public body. In the next few years, the council is expected to help to implement wide-ranging reforms to our court system and I feel that it will be lacking that extra level of scrutiny that NDPBs have.
The report from the Justice Committee says that the council will not be
“exempt from scrutiny and we do not anticipate that in practice it will be.”
What scrutiny will be in place in practice for a body that will have an important role in the implementation of reforms to our court system?
With the make-up of the council yet to be agreed, I seek a response from the minister on the gender balance within the council, given that women are involved in at least half of civil cases that involve matters of the family and relationships.
Part 2 of the bill, on criminal legal assistance, is my main focus today. At first when I heard that plans were to be put in place to take contributions from those seeking legal aid, I was extremely concerned and I continue to have some reservations. I hope that those can be eased throughout the stages of the bill. Protecting legal aid is paramount, especially in times of recession. Civil legal aid applications are up 26 per cent since 2007-08—there is a clear link between that rise and the effects of the recession on families, for example.
I appreciate the need to address how we protect legal aid, but asking some quite frankly disadvantaged people—I do not simply mean that in the financial sense—to contribute is of concern. Although exceptions are made for some people and certain factors are taken into consideration, I feel that the proposed level of disposable income is too low. The reason for that is simple—the classification of disposable income appears to include paying for energy costs, food bills, transport costs and other day-to-day costs that sometimes we do not account for. Living costs are rising on an almost daily basis and leaving those costs within disposable income does not favour working people.
If we look at appendix 1 of a submission from the Scottish Legal Aid Board, we see examples of the likely contributions for certain people. Case 4 gives an example of someone with an assessed disposable income of £160 per week. Although that may appear a lot over the month, there is a failure to look at the cost of food, transport and energy for the parent and child, yet the person would be expected to pay £470 for summary criminal aid. The case is acknowledged as being fictional, but if it were real, that would not appear to be fair on the parent.
I am also concerned at the lack of evidence on or investigation into whether it is fair or appropriate to take the income of a spouse or a partner into account when calculating eligibility for legal assistance. That view was also expressed by the convener of the Justice Committee.
Undue hardship must be applied in all cases, and I commend the cabinet secretary for disregarding disability living allowance—soon to be personal independence payments—in income assessments for criminal legal assistance. That would have had a further devastating effect on the welfare of disabled people when combined with the Tory attacks. However, the cabinet secretary has given a lifeline of support to disabled people who find themselves in the criminal justice system.
With the changes to legal assistance expected to go through, the debate moves on to the collection of contributions. It would be unjustified to expect the Scottish Legal Aid Board to make those collections on behalf of law firms, given the reductions in its own administrative budget. Law firms already have the means to collect fees from private clients, and only 18 per cent of those on legal aid are expected to make contributions. That amounts to firms collecting contributions from between 29 and 167 cases per year, the cost of which analysis shows to be between 2.6 and 6 per cent of earnings from criminal cases.
There has been much discussion about the perversion of people pleading not guilty in order to have their fees paid for them, but I have concerns that some people might plead guilty if their contributions will be lower than they would be for pleading not guilty. That could be a dangerous effect of the proposals that would harm the right to a fair trial and twist the perversion in the reverse.
16:10
As a new member of the Justice Committee, I think that the debate has been a good one. All the contributions so far—whether they were from members of the committee or not—have been very informative for me and for other members, and perhaps even for those in the public gallery.
I will concentrate on a few points that members and interested parties have raised. First, I will touch on the proposed Scottish civil justice council. Having looked through the papers and read the Justice Committee’s report, I believe that the council will be an agent of change. It will have a much wider role than the rules councils for the sheriff courts and the Court of Session, which—as members have mentioned—it will replace. I believe that giving the council a wider role to advise and make recommendations on improving the civil justice system is generally a good thing.
Jenny Marra and other members raised the point about lay members of the new council, and I welcome the cabinet secretary’s reply that he will address that issue in his speech.
I want to ask the cabinet secretary a couple of questions about the civil justice council, which will undergo changes throughout the years as the justice system changes. Does the cabinet secretary view the council as an evolving body?
Can he reassure members that, if the changes are to take place, they will be monitored and—as my colleague mentioned—checks and balances will be put in place to ensure that there is full transparency in the council and discussion at a parliamentary level or otherwise?
Part 2 of the bill refers to criminal legal assistance. I have respect for Malcolm Chisholm and I take on board what he has said. However, if we are to protect access to the justice system as far as possible in relation to civil and criminal cases, we must target legal assistance at those who need it the most.
It is right for those who can afford to pay towards the cost of their defence to do so, which is what happens at present with civil legal aid. The expansion of contributions brings criminal legal aid in line with civil legal aid and corrects a manifest injustice in the current system.
Malcolm Chisholm and the cabinet secretary have both mentioned that issue. However, is it right that a victim of domestic violence must go to court to protect herself and be liable for a contribution to civil legal aid while the perpetrator of the crime can receive full criminal legal aid even if they have far greater financial resources? To my mind, that is grossly unfair and I think that most people would see it in that way.
Almost every member has mentioned the £68 threshold. As I said, I have been reading through the papers as a new member of the Justice Committee, and my understanding is that the starting figure of £68 per week is not—as Mary Fee mentioned in her contribution—gross income or even take-home income. It is what is left after deductions, and there is quite a long list of deductions. It includes housing costs, council tax, childcare costs, loan repayments, maintenance repayments, costs associated with disability—which have been mentioned and which I will pick up on—and an allowance for dependent spouses and children. On top of that, the board has the discretion to waive a contribution if it would cause undue hardship. We need to look at that particular issue, but we have had assurances that the £68 figure can be reviewed.
Like others, I thank the cabinet secretary for what he said about DLA, which I regard as a positive step. I also thank Inclusion Scotland for its welcome briefing and positive comments on the subject of legal aid and benefits. I echo other members’ comments about the decision not to take DLA and PIP into account with regard to the bill’s provisions.
Does the member agree that, as well as DLA, war pensions should not be considered as disposable income?
Obviously, those are Westminster issues, so perhaps the member should speak to her Westminster colleagues about them. In that respect, I believe that the war widow’s pension, too, should not be taxable.
I will finish with a quote from Inclusion Scotland that may, in fact, address the issue that Jenny Marra just raised. With reference to not taking DLA and PIP into account, Inclusion Scotland said:
“This is particularly salient in the context of the significant cumulative damage already being done to disabled people’s incomes under the UK Government’s welfare reforms.”
We should support the bill at stage 1.
16:16
I thank the Justice Committee, its clerks and the witnesses for their work in scrutinising the bill. Christine Grahame, the committee convener, also has to be thanked for her clear elucidation of the issues. I agree with my party that we should support the bill’s general principles at stage 1. My contribution this afternoon will consider the issues around the alterations to charging, what happens in other jurisdictions, and the consultation responses.
I have chosen to comment only a little on the Scottish civil justice council, primarily because of shortage of time. However, there were 40 responses to the consultation, so I burned the midnight oil this week reading them. I paid particular attention to those from the Scottish Trades Union Congress, ASLEF and Friends of the Earth—other colleagues have referred to that organisation—and to the interesting comments that they made. I also read some of the submissions from the legal profession.
I was especially concerned to take on board some of the comments about issues such as whether members of the council should be paid. I understand the cabinet secretary’s concern about that, given the tight financial position, but we need to reflect on the consultation responses and take on board the fact that we do not want to end up with a council full of retirees. We must ensure that there is a balance of representation on the council and that it does not include only people from large companies of corporate solicitors. We ought to consider that issue as the bill progresses. Further, council members should be reminded in every possible way that they have a strategic remit and should not pursue a personal lobbyist-type agenda. I think that we would all want that aspect to be monitored carefully.
I always take an interest in the number of responses that any bill consultation gets. As I said, this bill had 40 responses, but I note that there were only 10 respondents on the proposals for the charging changes. That does not really mean very much, but it is interesting to keep in mind that, for example, the consultation on the independence referendum had 26,000 respondents and that there were 56,000 respondents to the consultation on the smoking legislation. That just gives us something to reflect on.
I, too, welcome the acceptance by the Scottish Legal Aid Board and the cabinet secretary of the representations that were made on behalf of people with physical and mental disabilities. That acceptance will address the particular issues that were raised by witnesses about their especially vulnerable position and differing needs. I and the Scottish Labour Party therefore welcome the cabinet secretary’s agreement that DLA and its replacement—the personal independence payment—should not form part of the income calculations for legal aid.
A practising solicitor noted in his response to the consultation that the governing principles do not adequately express the superiority of an overriding principle of justice. To that end, it was suggested that
“insofar as possible justice should be done”
should be the paramount principle when any change to the current system is considered. I hope that that point will be kept to the fore. It is always difficult, in any situation, to alter charges.
People who know me will not be surprised to hear that I sought to identify what happens elsewhere in the world, especially in other parts of the EU. We learn from the policy memorandum that other jurisdictions already have systems of contributions in their policy regimes. In England and Wales, a contributory system has operated for more serious cases for a number of years. In New Zealand, criminal legal aid is usually available only to those who face a sentence of six months or more.
In Finland, legal aid can be given in relation to both court proceedings and other matters. Those who have contributory legal aid are charged a small fee of about £30 in addition to any contribution. A defendant who faces a sentence of four months or more is usually entitled to request a public defender regardless of their financial situation, and the state covers the cost of that. However, if the defendant is convicted, he or she is obliged to pay or contribute to the costs.
In the Netherlands, free legal assistance is provided for more serious crimes where defendants are detained in police custody.
I agree with my party, Scottish Labour. We are sympathetic to the idea that those who can afford to make a contribution to the cost of their legal aid should do so, but concerns were raised at committee that need to be addressed. I will skip over some of them, including the concern about the threshold of disposable income of £68 per week, which others have mentioned, and move on to Scottish Labour’s concern that the Scottish Government proposes not to reimburse those who are acquitted of a crime by refunding their legal contributions. That would mean that those who were acquitted of a crime when in receipt of legal aid would have to pay to prove their innocence. I agree with all that David McLetchie said on the issue of refunding contributions in the event of acquittal.
Whatever happens, I agree with the respondents to the consultation that any new system should minimise complexity for solicitors, applicants and the board. The system should be streamlined and easy to apply, and it should be designed to be easily processed using the legal aid online system. I understand that the key principle that appeared to have the most support in the consultation responses is:
“Practicality of application - the financial eligibility tests should be straightforward and easy to apply and minimise differences between different aid types. The collection of contributions should be straightforward and efficient.”
That leads me to my final, personal view that contributions should be collected by the Scottish Legal Aid Board and that it should not be down to solicitors to collect them. I agree with the arguments that Graeme Pearson expressed this afternoon in that regard.
16:23
This has been a fascinating debate. It is one to which I come very late and I therefore have relatively little to say. Having served my time on the Justice Committee last time round, I—
You are welcome back, darling.
Thank you. Maybe I will come back, or maybe not.
I have nothing else to declare on the subject, except that I am grateful to my colleague Annabelle Ewing for mentioning the separation of powers, which is not something that we talk about in this place very often. I am delighted that she mentioned the subject, because I had every intention of doing so. Some of the representations that we have heard about the proposed Scottish civil justice council do not bear that matter in mind, so it might be an idea to put a little on the record about what the separation of powers means.
Historically, the separation of powers has been the idea that the executive, which is the Government, should be separate from the legislature, which is the Parliament, and the judiciary, which is the courts. That is roughly where the American system finds itself. When the President’s Executive seems to be in a markedly different position from the politics of the legislature, we can see that that does not really work. I suspect that that is why in these islands we have long since worked on the idea that the Executive and the Parliament should pretty much be the same thing. That way we can at least all be singing from the same hymn sheet.
For a very long time we have recognised that the courts are separate and that underpins most of the Government’s response to the points that have been made about how much control should be in statute for the Lord President’s committee. I am grateful to Graeme Pearson for his comment about a heavy burden on the Lord—
The Lord President.
The Lord President. I am sorry, we have too many lords.
I think that Graeme Pearson’s comment is absolutely right, but Lord Gill will plainly be up to it, of course. It is his job to run the courts and ensure that they do their job properly. With respect, it is our job not to tell him how to do it, but to make sure that he has the powers to do it and the legal background or underpinning for what he wants to do. Bear it in mind that, at the end of the day, if push comes to shove we can tell him what to do, but we would be wise never to do so.
Nigel Don illustrates the separation of powers. Does he agree that the policy remit currently in the bill is a policy creep into this Parliament’s jurisdiction? His argument on the separation of powers should perhaps be addressed in the bill and the powers made a lot clearer and separated more.
I accept that there is a risk of creep every time that we change something and put those kinds of words down, but I do not believe that that will happen in practice. The Lord President knows fine well what he and the Parliament are supposed to be doing. Our constitution works only when the two sides of our separated powers understand their remits.
It was said many times in the Justice Committee that we cannot legislate on the basis of one incumbent in a post. However benign he may be, Lord Gill will not be Lord President forever. We must make sure that our statutes are as robust as possible and give further Lord Presidents clear guidance.
I understand the principle, but I disagree with it. I do not think that we need to give the Lord President guidance. The Lord President is one of a long line of Lord Presidents who know exactly what they do and understand what things are about. We have probably got the balance about right, but it is important that we have this kind of discussion and understand the basis on which we legislate. I am sure that Lord Gill understands that and that his successors will.
I have a direct question for the cabinet secretary on something to which I should perhaps know the answer but do not. Section 6 of the bill sets out who will be on the council and lists the Lord President, the chief executive of the Scottish Courts Service and others. The question that needs to be addressed is, what happens if one of those people is unable to attend? I am not talking about being on holiday. If someone is incapable of attending, for one reason or another, is there a deputy who can step in and is that allowed in statute? It is not obvious in the bill. I suspect that that should be allowed if one of the appointees were to be physically unavailable for a while.
I will move on—rapidly—to the legal aid issue of part 2. It seems that the principle behind the bill’s provision is that legal aid and the rules on legal aid should ensure that there is an incentive for the accused to tell the truth. If the provision stops the anomaly that means that it is better for someone to plead not guilty when they know fine well that they are guilty, it seems a very good step in the right direction. I think that that is what is happening and it seems that that should be the fundamental principle that underlies any of the rules on legal aid. As long as we are moving towards a situation where it is in everyone’s interests—including lawyers’ interests—that the truth is told as early as possible, we might be going in the right direction.
I want briefly to mention the issue of eligibility, which other members have referred to. The Subordinate Legislation Committee, of which I am convener, commented on the scheme of eligibility, which is set out in section 18, and the Government has responded that such significant powers are best left with ministers because of the flexibility required. However, others contend that that should not be the case. For what it is worth, my opinion is that the Government is probably right. Particularly when the powers are introduced, those skilled in this art will have to find some way of making them work and I am pretty sure that having to come back to this Parliament, with all the associated timetabling issues, is not a good way of providing flexibility. Nevertheless, we must ensure that the policy by which the scheme should work is laid down either in statute or in subordinate legislation thereafter. I think that that is where we are, but any thinking on the matter should focus on ensuring that the statute and regulations lay down the policy and that those who are skilled in the art can deal with the numbers afterwards.
As for refunds, there is a decent philosophical argument behind the approach that has, however, not been pushed to the nth degree, and perhaps I might be allowed to do so for a few seconds. If I am accused of something that I am simply not guilty of, it is quite possible that my life will be seriously inconvenienced and my professional reputation ruined. No one is suggesting that the state compensate me for most of that inconvenience or any loss of professional reputation. If we should be refunding those found not guilty, why are we not compensating them for accusing them in the first place?
I dread to comment, having not practised for such a long time, but I think that someone can sue, say, the police only if there has been a malicious prosecution. It would have to be something pretty heavy duty.
If the member will forgive me, my question was more rhetorical than legal. If that is the understood legal position, there is no particular argument for refunding people found not guilty on relatively small matters when there might be much larger consequences for the accused.
16:32
I welcome the opportunity to speak in this afternoon’s stage 1 debate on the Scottish Civil Justice Council and Criminal Legal Assistance Bill and pay tribute to the Justice Committee for its scrutiny of the legislation.
Part 1, which follows on from the Gill review, would create a single body tasked to keep the civil justice system under review. Initially, the Scottish civil justice council will focus on the daunting task of updating the 3,400 pages of rules for the Court of Session and sheriff court; significantly, however, it will also play an important role in reviewing the wider civil justice system.
The creation of the council with this remit is a major step that will introduce a new player into the world of law reform in Scotland. Led by the Lord President and with the eminent legal and consumer representation on it, the new council, which is being created by statute, will carry real political weight. In such circumstances, it is essential that the organisation be sufficiently transparent and accountable. Although I recognise and whole-heartedly agree that the judiciary’s independence is a vital principle that must be maintained, that should not be confused or conflated with the necessity of ensuring that appointments to the new council are not only accountable and transparent, but seen to be so.
I therefore share the concerns expressed by not only a number of MSPs this afternoon, but a host of organisations ranging from Citizens Advice Scotland to the Environmental Law Centre Scotland that the Lord President’s appointments to an organisation that is an NDPB in all but name will not be subject to the Public Appointments Commissioner for Scotland’s code of practice. If they were, it would ensure that the appointment process was transparent and robust and would, crucially, be the subject of scrutiny by the Standards, Procedures and Public Appointments Committee. It would also bring the council in line with other comparable organisations, including the Scottish Criminal Cases Review Commission, the Scottish Law Commission, SLAB and the Scottish Legal Complaints Commission. Furthermore, it would follow the recommendations of the Gill review.
Instead, the bill merely requires that the Lord President publish a statement of appointment practice without the appointments being subject to any external scrutiny. The bill does not even require such scrutiny of the appointment of judicial members. I therefore urge the Scottish Government to reconsider the provision, especially as the new council is to have the status of a statutory advisory body.
I note with interest the reasoning in part 2 of the bill for introducing criminal legal aid contributions, which in fact mirrors the Scottish Conservatives’ position that the affordability of universal services should be re-examined. However, I dispute the assertion that the proposal to introduce contributions for criminal legal assistance without a corresponding provision to refund those acquitted is either fair or in the best interests of Scotland.
I am not entirely clear, so the member can perhaps clarify her position. Is she equating, for example, free prescriptions in the health service at the point of need and free personal care for the elderly with criminal legal assistance for the, we think, around 18 per cent of applicants who will be required to make a contribution?
The reasoning behind the proposal, which is that those who can afford to pay should pay, is what I am interested in. That is certainly not the policy that this Government has taken forward with the introduction of free prescriptions.
It seems to me that it is clear that having chosen to cut the legal aid bill by £10 million in real terms in the next financial year, with a further £10 million reduction planned for 2014-15, the Scottish Government now needs a policy to fund the savings. For the reasons pointed out by David McLetchie and others, the policy is both unfair and, at worst, risks access to justice, which could mean that it falls foul of article 6 of the ECHR. The convener of the Justice Committee and other members have highlighted that issue. Furthermore, the starting point for the decision to introduce contributions for criminal legal aid is that it will bring criminal legal aid in line with civil cases, where contributions already exist. However, as Malcolm Chisholm pointed out, that is a false comparison.
Criminal court proceedings are different from most civil cases in that they involve the Crown—the state—bringing proceedings against an individual. Criminal cases do not involve financial awards to the successful party, legal costs cannot be recovered in criminal cases and, crucially, the failure to win a civil case does not end up in imprisonment for the losing party. The difference between civil and criminal cases means that if contributions are to be introduced, they must apply only to those who can truly afford to pay. Despite the cabinet secretary’s response to my intervention, there is a concerning lack of clarity over what exactly we mean by “disposable income”, because there is no definition in the bill.
In addition, the introduction of legal aid contributions without refunds means that individuals who are wrongly accused of a crime and who have to suffer the stress and indignity of criminal proceedings will be out of pocket if they fall on the wrong side of the contributions threshold. In contrast, a guilty serial offender thug will still be able to seek state-funded legal representation to defend themselves simply because of their income level. I suggest, cabinet secretary, that there is no fairness in that. Not only that but, as the Faculty of Advocates told the Justice Committee, the proposed contributions could well create a perverse incentive for accused who feel that they cannot afford to pay to plead guilty, merely because that would result in a fixed or reduced fee.
Further, there is a fundamental inconsistency in the bill’s provision that will allow those who are retained in police custody to receive free, non-means-tested legal assistance while means testing for legal aid will apply to those in other cases that go to court. I have no doubt that the spectre of Cadder loomed large in the decision to make that distinction.
It is imperative that, if this bill is passed, its impact is closely monitored. I urge the Government to consider including a statutory review clause in the bill.
16:41
As we have heard this afternoon, the principles that underlie the bill are broadly agreed across the chamber. However, in Labour’s view, the bill would be strengthened if certain points were taken on board by the Scottish Government.
I want to address the issue of civil justice policy in part 1 of the bill—I have already raised the issue in interventions. The bill mandates the council to recommend changes in civil justice policy to the Lord President, but no similar obligation exists to recommend the changes to ministers. It is our belief that policy is the preserve of the democratically accountable Government and Parliament, and should not be weakened by placing a policy obligation on an unelected body. That is a concern that is shared by some of the most eminent public law professors in Scotland. Governments are accountable to the electorate for their policy choices and, through the parliamentary system, MSPs and stakeholders should have every opportunity to scrutinise those decisions.
When I questioned the Lord President in the Justice Committee on the policy scope, he assured me categorically that the policy remit would merely be the policy of the rules and would not extend beyond that. I ask the cabinet secretary, therefore, to address the issue in his closing remarks. Would it not be better to include in the bill a much clearer explanation of the extent of the policy remit in order to avoid any creep into the jurisdiction of ministers and the Parliament, as has been discussed this afternoon?
A second concern with part 1 relates to the request by several organisations for transparency in the council’s functioning. I have heard persuasive arguments from those representing court users for greater transparency when court rules or civil justice procedures are being reviewed. They state that the publication of potential changes or an obligation to consult would be valuable to their work. I would be interested to hear the minister’s opinion of those suggestions.
Another concern with part 1 that has been well rehearsed today concerns the composition of the council. We have heard many arguments that special committees will allow for more specialist representation, but I think that Malcolm Chisholm summed it up well when he said that it is quite possible that only two laypeople will be on the council. If there is a feeling across the chamber that we should increase that representation, it is important to put that in the bill so that we can ensure that it can happen.
I was reminded by Mary Fee’s speech of a debate that we have had in this chamber regarding gender balance. As Labour has said in Parliament before, 80 per cent of people on Scottish public bodies are male, and I understand that the composition of the current council is one female and 12 males. I would be interested in the cabinet secretary’s response in looking for a better gender balance—perhaps the 40:40:20 model that Labour has recommended in the chamber before. We know the impact of our justice system on women and of, as Baroness Helena Kennedy has often eloquently put it, the inherent bias against women in our justice system.
Turning to part 2, I will reiterate some of the concerns with the proposed level of contributions. The Government has chosen a lower limit of £68 because that is the weekly equivalent of the civil legal aid amount. It has sought justification for that in the fact that it is higher than the level in England and Wales. However, I have heard persuasive arguments to suggest that that method of calculation is flawed and that the level may be too low. The first rests on the fact that contributions for legal aid in England and Wales exist only for Crown Court cases, which account for a much lower proportion of cases than the bill provides for. The second is based on the differences between civil and criminal cases. Similarly, there are differences between the eligibility criteria for civil legal aid and the proposed undue hardship test, and the rate for civil legal aid contributions has not increased.
Is the member aware that the magistrates court in England operates an in-or-out system in which there is no contribution? In that system, anyone with an annual disposable income of more than £3,398, which is just over £65 a week, fails the means test and does not get legal aid at all—not even with a contribution. Is the Scottish system not much better? Is she arguing that those who receive civil legal aid should have a harsher commitment to make than those involved in criminal cases?
I am arguing that we need to take a much harder look at the comparisons that have been made, which the Government has put before us, and drill down to the detail. If the Government is going to use the situation in England and Wales as justification, we must ensure that we are comparing like with like.
We must consider contributions alongside the chaotic lifestyles of many people who enter the criminal justice system—that point was well made by Graeme Pearson in the Justice Committee. Many organisations in Scotland have argued that people simply will not be able to afford to contribute at such a low threshold, which, as the Law Society has stated, could lead to a perverse incentive for the accused to plead guilty. If one of the core aims of the bill is to eradicate perverse incentives, I ask the minister to provide answers to why the Government remains content with such a low threshold.
I welcome the Government’s decision to stop considering disability living allowance as disposable income. However, I also ask it to consider doing the same with the war pensions, which have been mentioned this afternoon. Currently, the bill considers veterans’ war pensions as disposable income, and veterans would welcome that consideration being taken out.
Let me make it clear that war pensions are currently discounted in the assessment for ABWOR. The criteria for assessing disposable income will be set out in draft regulations. Given that we are seeking to mirror what is done in ABWOR in many instances, the position of war pensions will be considered. Considering the sympathetic view that we have taken with regard to ABWOR, the member could read into that the sympathetic view that we are likely to take.
I welcome the cabinet secretary’s indication that he will take a sympathetic view on that. The fact that we are seeking to mirror the arrangements for ABWOR is not a good enough reason, however. We must use the bill to ensure that we get it right for war veterans.
A second concern with part 2 is the Government’s decision not to reimburse acquitted persons for their legal aid contributions. I have heard justification for that from the cabinet secretary, who argued that those who pay their legal fees privately are not reimbursed either. However, several organisations question the fairness and practicality of this approach.
Will the member take an intervention?
The member is in her final minute.
I am sorry, but I do not have time.
Malcolm Chisholm proposed the very practical solution of a refund for acquittals that have been funded by legal aid contributions, and perhaps that could be considered by the cabinet secretary.
Presiding Officer, I believe that I am out of time, so I will close my summing up there.
Well done. I call Kenny MacAskill.
16:50
We have had a very good debate. There is uniformity around the chamber in providing some general support for the principles of the bill, and I am grateful for that.
Both the convener of the Justice Committee—in a flamboyant speech, if I may put it that way—and David McLetchie commented on the hybrid nature of the bill. However, we need to have these matters. I accept that, in an ideal world, we would have an entirely separate focus on these aspects, but we need to avoid overloading the Justice Committee or other committees. However, I accept the legitimate point that was made by Mr McLetchie, as well as by Graeme Pearson, Christine Grahame and many others. The devil is in the detail and this is a matter where there is a great deal of detail. Some things will have to come out in regulations.
Perhaps in dealing with the detail, I can try to address some of the specific points that were raised. First, Margaret Mitchell asked whether the civil justice council will be a statutory consultee. The council will have the power to
“consult such persons as it considers appropriate”,
as provided for in section 3(2)(d). That is a power rather than a duty. There will be opportunities to contribute to the council’s work through its committees, and it is envisaged that the council will carry out consultations where appropriate. That seems to me to strike an appropriate balance.
Mary Fee said that the council should be made an NDPB to ensure scrutiny and accountability. However, the council will advise the Lord President and oversight rests with him. It will not be under ministerial direction and will therefore not be an NDPB. I think that that is how it should be. However, the Lord President will not have unfettered discretion: ministers may amend the balance of the membership; an annual report and business plan must be laid before Parliament; and I intend to make the council subject to freedom of information.
Malcolm Chisholm correctly made the point that we should have the appointment principles for the civil justice council on the face of the bill, rather than relying on assurances. I do not think that we want to make the process unduly bureaucratic, but I am willing to consider putting some statement of those principles in the bill at stage 2. I think that the commitment that has already been made by the Lord President can be added to.
Jenny Marra asked whether the council’s powers in respect of policy could creep into the Government’s and the Parliament’s decision-making powers. We need to make clear that the council will be an advisory body. It will have duties to advise the Lord President and it will have powers to advise Scottish ministers. The council must lay an annual report before Parliament. There is no need to place a protection in the bill. The decisions that appropriately rest with Government, Parliament and the judiciary will continue to do so—that is addressed in our response to the stage 1 report—so there is the appropriate separation of powers.
Mr McLetchie raised a legitimate point about why there will be only two solicitors on the council, which he is correct will be fewer than on the existing councils. The bill provides for a minimum of two solicitors and it also provides for a minimum of two advocates. The bill seeks to achieve a balance, where we have a limited number of people who can be members of the council. As was pointed out by others, much of the work will be carried out at committee level, and the current councils have around 29 members at any one time. There will necessarily be fewer members of different types if membership is to be kept to a workable limit, but I can give an assurance that the involvement of the solicitor profession will continue—at a minimum of two, although it might be more, given the Lord President’s selection. Also, in terms of the working arrangements, those who have the appropriate skills will be asked and will be contributing.
Lewis Macdonald asked whether the Scottish ministers should be able to direct, or seek advice from, the council. That point was also raised by Malcolm Chisholm. I think that it is appropriate that oversight and direction of the council should sit with the Lord President and not with ministers. That is appropriate because the council will be a body that advises him, not ministers. However, it is quite clear that the council will be able to advise ministers and we do not need to compel the council to do so in the bill. We can get advice from the body, which may come through the Justice Committee or the Government. If we feel that it is appropriate to do so, we can take that advice and legislate on it. If we feel that the council is going in a direction that we do not like or recommending a policy that would be unacceptable to Parliament, we are not required to accept that advice. The balance that has been set is appropriate.
Helen Eadie asked whether council members should be paid. The bill allows council and committee members to be remunerated for non-salaried positions. Serving judges, Scottish Court Service staff and Scottish Government and SLAB officials who have a salary and remuneration will not receive anything in addition for attending. Those who are perhaps giving up their time in private practice will be entitled to receive the appropriate remuneration. That strikes an appropriate balance—those who are doing their job in improving justice for which they are paid anyway should not get an additional entitlement, but others who are giving up their own time from paid work should be given that opportunity.
Questions have been asked about the second part of the bill. I reassure Christine Grahame, who asked whether the suspension of legal aid mid-trial would cause problems for the system—I think that the issue was touched on by Mr McLetchie, too—that the bill does not give the power to suspend a certificate if a contribution is unpaid. We are confident that arrangements can be made for the few cases in which an agent withdraws. As Mr McLetchie knows, the Public Defence Solicitors Office is a matter of some sensitivity to the profession, but it is possible that we could put in the PDSO and that would be the solution. However, I have indicated that I will not prejudge matters and I am happy to discuss the issue with the Law Society. That option is available, and if the Law Society can think of another way to do it, I am happy to enter into that discussion. The reason why I am unable to give an unequivocal answer is that we are entering into discussion and it would be inappropriate to prejudge its outcome.
Christine Grahame also asked whether the assessment of spouses’ income is unjust. That issue will be covered in regulations. A spouse who is a victim will not have their resources assessed and an allowance will be made for the cost of dependants, including spouses. Also, issues related to spouses can be ignored if there is undue hardship.
Graeme Pearson referred to the use of the PDSO. As I have said, that is a matter of some sensitivity to the Law Society, and I accept that.
Malcolm Chisholm mentioned thresholds, which Jenny Marra, too, commented on. Contribution levels were substantially reformed in 2009 and they were uprated in 2011. I appreciate that there may be some issues with where matters have got to since 1986—when I was still a practising lawyer—but we have been addressing the issue. If there is any slippage, that relates to those who have gone before us.
We do not think that SLAB is better placed to collect summary contributions, which are best collected by the legal agents. The exception is when there is a significant sum involved, which is why we are using SLAB to collect contributions for solemn proceedings. That is what happens in civil proceedings and ABWOR: it is the solicitor who sees, assesses and deals with the person at the time who will collect the contributions. In the main, we are not talking about huge amounts of money, and it is for that reason that we remain committed to that approach, because it is important that the solicitor addresses that.
Mary Fee thinks that the contribution of £470 in case 4 of the SLAB examples is unfair. The person in that example earns £482 a week. That is not a king’s ransom or a Premier League footballer’s wages, but £470 does not seem to me to be an unfair level of contribution for somebody who is facing a criminal charge to make when they have an income of £482 a week.
We realise that those are matters of balance and will have to be reviewed. That is why we are happy to ensure that the regulations will be available to the committee as we go into stage 2 and stage 3. They will have to be reviewed and updated as circumstances change. We have given a direction on DLA and are doing something similar on war pensions.
These are difficult times. We must make changes to legal aid, but there is a fundamental principle that the victim of crime should not be expected to contribute while the perpetrator is not expected to do likewise. The bill changes a manifest injustice that existed in the law of Scotland. There will be difficulties for the legal profession in some instances, but let us remember that 82 per cent of those who apply for and receive criminal legal aid will do so without making a contribution. The remaining 18 per cent will make a limited contribution—one that they are perfectly capable of meeting.