Scottish Civil Justice Council and Criminal Legal Assistance Bill
The next item of business is a debate on motion S4M-05479, in the name of Kenny MacAskill, on the Scottish Civil Justice Council and Criminal Legal Assistance Bill.
16:23
I am pleased to open the debate on the Scottish Civil Justice Council and Criminal Legal Assistance Bill.
I thank the Justice Committee for its careful scrutiny of the bill during its progress through the Parliament, and the Finance Committee and Subordinate Legislation Committee for their reports on the bill. I am also grateful to the many individuals and organisations that took the time to respond to the two consultations on the bill and all those who gave oral and written evidence to the Parliament.
There is almost unanimous support for the creation of the Scottish civil justice council, but I will remind members why the new council and its functions are needed. The proposals are founded on the recommendation in Lord Gill’s wide-ranging review of the civil courts. Lord Gill concluded that far-reaching, structural and procedural reforms are necessary to ensure that Scotland’s civil justice system is fit for the 21st century.
The council will first take forward the many procedural changes that are necessary for the implementation of Lord Gill’s reforms and play a pivotal role in revitalising and modernising our system. Following extensive engagements with stakeholders, I will shortly consult on a draft bill that will be based on the wider recommendations of the Scottish civil courts review. The creation of the Scottish civil justice council will mark the first legislative step on the path to reform.
During the bill’s stages there has been constructive debate on the arrangements for the council, notably its membership and the extent of its role and function. On membership, one of the bill’s underlying principles has been to provide for flexibility, balance and—rightly—a degree of discretion to the Lord President. That will allow the council to concentrate on its first task: the technical rules revisions to support the much-needed civil court reforms. It will also allow the council to evolve over time to take on its policy functions. I firmly believe that the Lord President should be trusted to achieve the correct balance that is necessary for the council to be able to assist him to carry out his statutory responsibilities and fulfil its duties in the most effective manner.
Of course, the Parliament’s scrutiny has helped to shape the proposals throughout the legislative process. Having listened carefully to the views of stakeholders and members of this Parliament, I introduced principles of openness and fairness to the appointment process. The importance of lay input to the council was discussed and the bill now provides that a layperson may be a deputy chair. Alison McInnes was keen to see that in the bill. The additional power to commission research, which Jenny Marra proposed, will assist the council in its function of reviewing and advising on improvements to the civil justice system.
With the Scottish civil justice council we will for the first time have a body with oversight of the entire civil justice system. The level of interest that has been expressed during the bill’s passage indicates how important and relevant civil justice matters are for people, families and businesses across Scotland. The council is the prelude to further reform and it is a necessary precursor to the reform that Lord Gill proposes.
I will now discuss part 2 of the bill. Contributions to criminal legal aid will allow us to continue to target legal aid to those who need it most by asking those who can afford it to pay towards the costs of their defence. To be clear, no one is being asked to pay the full cost of their defence; if they could do that, they would not be eligible for legal assistance. We are suggesting that when someone can afford to contribute to the cost they should be asked to do so. That principle was supported by not only this Parliament at stage 1, but the Law Society of Scotland and other key justice stakeholders.
I have listened closely to views expressed throughout the bill’s passage to make sure that we continue to protect the most vulnerable in our society. I have built on initial proposals to exempt those on passported benefits and for a graduated approach to contribution rates. Disability living allowance and its successor, and war pensions, will now not be considered as income when eligibility for contribution is calculated. Imprisonment or being taken into custody can considerably change a person’s financial circumstances. Reassessment of eligibility when that happens will ensure that new circumstances can be taken into account. My proposal to raise the disposable income thresholds means that the estimated number of those who will be liable to pay contributions has now fallen by one third compared to the number under the original proposals. Those are all tangible improvements that demonstrate my commitment to ensuring that only those who can afford to pay a contribution will do so. They are also good examples of where we have addressed a range of issues that have been discussed with stakeholders.
It is unlikely to have escaped anyone’s notice that some in the profession are unhappy with the proposals in part 2 of the bill. I appreciate that many firms think that collecting some of the contributions will be a burden that is placed on them at a difficult time. Although I accept that concern, I do not think that the expectation is unreasonable or unfair. Discussions with the profession throughout the process have sought to address its concerns, including about how to ensure that the responsibility for collection is shared equitably. From the introduction of the bill, we proposed that the Scottish Legal Aid Board should share the burden by collecting in solemn and appeals cases, and that, to assist firms’ cash flow, summary contributions will be treated as fees.
In addition to responding to concerns about the disability living allowance and war pensions, regulations will provide that there will be no contributions payable towards criminal legal assistance at a police station. My proposal to raise the threshold from £68 to £82, which followed discussions with the profession after stage 2, will significantly reduce the number of accused from whom solicitors will have to collect. Further, where a case transfers from solemn to summary proceedings, the board will collect the contribution all the way through. Finally, I lodged an amendment to allow the board to provide a service to solicitors on payment of a fee to collect contributions on their behalf. All those proposals have been accepted by the Law Society of Scotland, which is the profession’s chosen representative body. Several other things that it has agreed to in principle will feature in draft regulations to come.
I accept the cabinet secretary’s point regarding his discussions with the Law Society of Scotland, but what has he to say about the continuing objections and views of the bar associations in Aberdeen, Edinburgh, Glasgow and many other places throughout the country?
I am aware of those objections, but I deal with the Law Society of Scotland, which is the body that is required to regulate and the body with which we negotiate. As I said, a decision has been made, and I welcome the contributions by the individuals who were involved in the legal aid negotiating team, who worked constructively with us.
Although I recognise that many in the profession have voiced their wish to have no responsibility for collection, practical steps are necessary. We must remember the many firms that already collect contributions from clients in criminal cases. Collection should not be a significant problem for them.
The cabinet secretary mentioned that he is arranging for SLAB to make collections on behalf of solicitors on payment of a fee. Was he able to share with the Law Society the level that he expected that fee to be set at?
No, I cannot do that. That is a matter to be negotiated between the Law Society and the Scottish Legal Aid Board. I will leave it to them to deal with that.
We are now dealing with a legal aid bill in Scotland for 2011-12 that was the second highest on record. It will not reduce without action. The projections for legal aid still exceed the budget that was set out in the Scottish Government’s 2011 spending review, and difficult decisions still need to be made.
I have not approached the challenge by making changes to the scope of legal aid. Wholesale reductions in its scope would have a damaging impact on access to justice, other parts of the justice system and society as a whole. My key priority has been maintaining access to justice, as it has been for many other members.
Reforms in England and Wales have been sweeping. The scope of civil legal aid is being reduced and legal aid is being removed altogether in some areas of family law, housing and clinical negligence. That is not a road that I am prepared to go down. I am protecting the scope of civil legal aid, which is vital in the current financial climate, while ensuring that the criminal legal aid system continues to be just and equitable.
To conclude, the passing of the bill will deliver vital savings to ensure that legal aid can be targeted at those who need it most. It will also begin our journey towards much-needed civil justice reform.
I move,
That the Parliament agrees that the Scottish Civil Justice Council and Criminal Legal Assistance Bill be passed.
16:34
When we debated the bill at stage 1, I said that we were in the familiar position of addressing a Scottish Government justice bill that dealt with two quite different subjects. That was a relatively marginal criticism, because Labour supported the general principles behind both parts of the bill.
Sadly, we are now in a position that is even more familiar, because in recent months we have seen what happens when the Scottish Government ignores the views of others and presses ahead with legislation that is not fit for purpose. That, for example, is how the Police and Fire Reform (Scotland) Act 2012 appears to be viewed by the chief constable of the new police service of Scotland. As some of us heard at the lobby outside the Parliament today, that is how this bill is viewed by many of those who practise criminal law in our courts.
Reform of the justice system is just as important as reform of our police and fire services. The bill is only the first of a number of measures that ministers propose, and decisions that ministers will be required to take in the next few months, that will affect the delivery of justice. It must therefore concern us all that ministers have so signally failed to build a consensus in support of the proposed measures in part 2 of the bill, covering criminal legal aid.
The cabinet secretary finally found the time at the end of last year to talk to representatives of the legal profession and to offer some changes to meet some of their many concerns. However, Mr MacAskill did so only after they had withdrawn their services from clients in an effort to convince the Government that their concerns were real and substantial, and after he had resisted efforts by other parties, including the Justice Committee, to insert the changes into the bill that were clearly required. We welcome the Government’s concessions—late and reluctant though they may have been—because they meet in part some of the concerns that we raised during the passage of the bill.
In particular, we were quite clear that the proposed threshold for liability to pay contributions—a disposable income of £68 a week—was far too low. It would have captured many of those in the greatest poverty, for whom making any level of contribution to legal costs would be one extra cost too far. Therefore, we welcome the fact that the threshold has been raised to £82 a week, which is more realistic, although of course it does not answer the question of affordability altogether. People with disposable incomes of £82 a week are still on very low incomes, which is why the working of the new system will need to be carefully monitored if those people are to retain fair and reasonable access to justice.
It is clear from what the Scottish Legal Aid Board has told us—indeed, the cabinet secretary confirmed it today—that the higher threshold will be paid for by increasing the contributions that are payable by those who are entitled to legal aid but who are at the higher end of the income scale.
SLAB has also offered us comparisons with the impact of changes in England. It expects the consequence of that change to be that many of those who remain theoretically entitled to criminal legal aid will in fact cease to have access to the legal aid system altogether—they will be represented as private clients, because the assessment will leave them eligible for only a token amount of legal aid.
SLAB’s figures confirm that those people are by no means well off. A disposable income of around £11,500 a year is still poverty relative to the population as a whole, even if it is at the higher end relative to other people who are entitled to receive legal aid. Again, especially given SLAB’s expectation that many solicitors will persuade those clients to go private, the impact of the new system on those at the upper end of the eligible group will need to be monitored closely, to ensure that they can achieve access to justice.
We have also raised the issue of what should happen when people who have been drawn into payment towards legal aid costs for the first time are acquitted. Graeme Pearson eloquently moved an amendment to that effect. The Government has offered no movement in that area—not even on giving discretion to the judiciary to have contributions refunded only in certain cases, as Graeme Pearson proposed.
That would have been a modest improvement, protecting a few of those poorer people brought to court and then acquitted, but creating no general presumptions with implications across the justice system as a whole. It is a pity that the Government did not see fit to take the opportunity to support that compromise position.
Another critical issue has been in relation to the collection of contributions. A key argument at stage 2 was that the cost and burden of collection might for some solicitors be enough to tip the argument against offering criminal legal advice in the first place. For small rural firms doing only a small proportion of criminal work, a decision to stop doing any such work could impact on access to justice for any accused person in that area.
The Government has conceded that SLAB could collect contributions on behalf of solicitors. By doing so, it has accepted the principle of such collection, but the way in which it has done so fails to engage with the legal profession’s concerns and will not attract the support of many. To provide for collection by a Government agency would have been a useful support for the introduction of contributions, and it is again disappointing that Mr MacAskill has chosen not to take the opportunity offered by a Labour amendment to enable solicitors to seek that service without the risk of taking on an open-ended liability to cost recovery by the Legal Aid Board.
If the job of Government is to produce the necessary reform and build support for a reform agenda, it seems to me that the Government is, once again, not doing that job with this bill.
We support the principles underlying both parts of the bill: the modernisation of the civil justice system and contributions to the costs of criminal legal aid by those who can afford to pay. Many others support the principles, too, but they continue to be concerned about the detail and the practicality of how the Government proposes to implement the changes. It is surely a matter of regret that the Government’s approach has divided the legal profession and left so many defence solicitors believing that the Government does not care what happens to them or their clients. It is equally regrettable that the approach has divided the Parliament and that those on our side cannot support the bill.
16:41
I restate my position as a former practising solicitor in Scotland who is no longer a member of the Law Society or on the roll of solicitors.
Although I intend to focus my comments on part 2 of the bill, I will briefly mention part 1. Part 1 implements a key recommendation of the Gill review and it is a welcome step towards updating Scotland’s civil court rules. The council will have a remit to review the wider civil justice system. We should be in no doubt that the council will be a powerful organisation that will exercise considerable influence.
I noted the cabinet secretary’s assurances at stage 2 that the council will act in an open and accountable way and that appointments to it will be made in an accountable manner. It is unfortunate, however, that the amendments in relation to the activities of the council lodged by Margaret Mitchell at stage 2 and Jenny Marra’s amendment 22 debated today, which my party supported—amendments that sought manifest openness and transparency; I do not see how people could object to that—were rejected by the Scottish Government.
I will turn to part 2 of the bill, which I find problematic. Part 2 has had a difficult time. Indeed, I understand that the Justice Committee came close to rejecting part 2 at stage 1, but had a change of heart at stage 2. We have heard from Lewis Macdonald the reaction from the legal profession. Notably, 12 bar associations, including Edinburgh and Glasgow, remain opposed to the legal aid reforms, and the Law Society of Scotland, while accepting the Scottish Government’s compromise offer, maintains opposition to the collection regime.
My party has attempted to support efforts to improve the efficiencies of the bill. Certainly, the increase in the disposable income threshold above which contributions will be made, and the agreement that the disability living allowance, its replacement personal independence payments, and war pensions will be disregarded is welcome. It is also right that no contributions will be required for offenders in custody or in police stations, which at least means that access to legal advice at a critical time will not be restricted.
The rejection of Margaret Mitchell’s amendment 24, which sought to exclude the income and capital of spouses and partners, which would have been a lot fairer to an accused who desperately needs advice and may need financial help, was unfortunate. Margaret Mitchell attempted to secure a wider debate on the question of contribution refunds; Mr Pearson spoke about that, too. That wider debate is needed and I hope that the Scottish Government will consider that and perhaps reflect on what might be done.
Part 2 of the bill is underpinned by the presumption that those who can afford to pay for public services should do so. I support that general proposition and I welcome the cabinet secretary’s conversion to the Scottish Conservatives’ way of thinking. However, that presumption must be weighed against the specific situation in which it is to be deployed. When that situation is the administration of justice and the fundamental right of an accused to legal advice, it is the responsibility of the state to ensure that those unable to pay for that advice are not denied it.
That is where, for me, the bill hits a brick wall, because either the Government discharges that responsibility with a cohort of state-funded public defence solicitors or it creates a workable criminal legal aid system. The overall provision of public defence lawyers would be very expensive and much more inflexible to administer than a criminal legal aid system.
In this bill, the Government has failed in its attempt to deliver a workable criminal legal aid system. When an accused is unable to meet privately the cost of legal defence, the legal aid system must work on the basis that the accused can access advice without immediately being confronted by demands for money that he or she might not have. Equally, at that critical point the solicitor should have confidence that the legal aid system will resolve what the accused is due to pay and when, so that the solicitor can proceed without impediment to give advice.
The bill fails those fundamental tests. It presents the spectre of an anxious accused who desperately needs advice and is expected to scrape around to find sufficient funds to unlock the advice, and a solicitor who departs from the role of adviser and assumes the mantle of debt collector to hound the accused for money. If at that point the accused does not have or cannot produce the money—shoes for the children or food on the table might have taken precedence—the solicitor is placed in a professional and moral dilemma about what to do.
That is not a workable criminal legal aid system. It is a dog’s breakfast and an affront to decent standards of fairness and the fundamental right of an accused to representation. The bill raises significant questions about access to justice. What is predictable is that individuals who are accused of crime will be scared of seeking advice, might not be able to muster the funds to pay for advice and might end up representing themselves. That helps neither them nor the courts.
I welcome the reforms to the civil justice system in the bill, but the criminal legal aid system that part 2 will deliver is unfair and unworkable and will betray the most vulnerable. For that reason, my party is unable to support the bill.
16:46
I declare an interest as a former solicitor and member of the Law Society of Scotland.
I have sympathy with one little aspect of what Lewis Macdonald said. Here we are, considering another bill that deals with two distinct matters. Labour and the Liberals were guilty of that offence when they were in power, and I regret that we have not cured the problem.
The Scottish civil justice council is very much to be welcomed. It will focus on preparing and drafting civil rules and procedure for the Court of Session and the sheriff court, which are terribly important for the effective and just working of civil justice—as my history teacher would say, “a good thing”.
At the beginning, the council’s work will be technical and to do with the rules. It will comprise four judges from the Court of Session and sheriff court, two advocates and two solicitors, and the Lord President will have the flexibility to appoint six members, to whom David McLetchie—I regret that he cannot be here today—referred brazenly as Lord Gill’s six-pack. Even Lord Gill was momentarily distracted by that comment. That flexibility will be important as we move on from procedural to policy issues and issues that concern users.
On private meetings, I say to naughty Jenny Marra that at today’s Justice Committee meeting she agreed—quite rightly—to take two agenda items in private, because they were to do with housekeeping and allowed us to discuss witnesses. I hope that Ms Marra is not going to say that that was sinister. It was not sinister at all.
The background to part 2 of the bill, as members said, is the cost element. The Scottish budget has been cut hugely and the legal aid budget will fall to £132 million by 2014-15. We have to find money somewhere. The situation is much better in Scotland than it is south of the border. We face a 7.3 per cent reduction; the reduction is 17 per cent in England and Wales. It is not fair, but it is where we are as we go into a triple-dip recession. I will not go on about who is to blame for that recession; we are there and we have to look at how we operate. Other jurisdictions, such as England and Wales and New Zealand, have criminal legal aid contributions.
I will not go over things that the cabinet secretary and other members said. However, I say to Annabel Goldie that I welcome the discounting of the partner’s income in special circumstances, such as when the partner is a witness to or alleged victim of the crime. It would be most unjust to include the partner’s income in such circumstances. The Law Society broadly welcomed the Government amendment in that regard.
Christine Grahame makes a perfectly valid point, but the financial circumstances of a partner or spouse can be exceedingly complex, and the point is that they cannot be quantified or confirmed either swiftly or accurately. I have had experience of such situations as a solicitor, and I am sure that Christine Grahame has, too. That is a concern when we have an accused person who needs advice.
I will give you back a bit of time, Ms Grahame.
I will concede Annabel Goldie’s point. The financial circumstances can also be volatile in certain cases. That is why I believe that the legislation, in that respect, has to be kept under review.
I move on quickly to the refund of contributions, which was raised by Graeme Pearson. The idea is attractive, but it has opened up a huge can of worms. For example, should we look at having full awards of expenses in criminal proceedings? Should the Crown be able to take expenses against an accused when something should never have gone to trial in the first place? I do not think that the issue could be fixed in the bill. The position in which private clients or the Crown are in the same position is worthy of investigation, but we could not simply insert provisions on that really complex matter into the bill. We will have to return to it.
As I said, I believe that the wrong choices have been made in England and Wales. The bill is not perfect, but it is a darn sight better than removing civil legal aid from welfare cases, immigration cases and debt cases, as had to be done in England and Wales.
I must ask you to conclude now.
With this bill, we have made the best that we can of a bad financial deal.
16:51
I am glad to follow the convener of the Justice Committee, although I have not heard her use that argument before—that the bill is not quite as bad as what is happening in England. It is certainly bad enough.
Let me start with part 1, which we welcome in general terms, although I regret that the cabinet secretary did not accept any of the amendments that Jenny Marra so forcibly and eloquently put forward.
Underlying Jenny Marra’s amendments was the desire to do two things. The first was to open up the Scottish civil justice council to ensure that it has proper lay representation, including gender balance, and to make the whole system more transparent. That was a really important set of proposals. The second principle that she was trying to enshrine was that the council must be accountable to the Parliament so its recommendations must go to ministers and thereby to the Parliament as well as to the Lord President.
I was concerned when I heard the justice secretary say on one occasion today,
“The Lord President has assured me”,
because at stage 1, when I spoke on the subject at greater length, the cabinet secretary again and again just left things to the discretion of the Lord President. I am sure that the present Lord President is an eminently worthy person, but we do not know who future Lord Presidents will be. I welcome the principles, but I was disappointed that no amendments were accepted.
On part 2, I suppose that I should be charitable to the cabinet secretary for listening, or being forced to listen, but his listening has not made a good bill better. It has merely made a bad bill slightly less bad. We are not saying that everybody should be entitled to have all their defence costs paid—of course not. There is already means testing in the system, and I do not know anybody who objects to that. What we object to is the scale of the changes that are proposed in the bill.
As I said earlier, and as some SNP speakers have more or less admitted, the bill is driven by finance. I am very understanding of the Government’s financial difficulties, but it is not appropriate that something as important as the administration of justice should be driven solely by finance, particularly when the sums to be saved are not, in the scale of the Scottish budget, very significant.
That is the underlying reason for the changes, but the argument that has been advanced is that we need an equation of criminal legal aid and civil legal aid. The cabinet secretary has gone as far as saying that he will amend the contribution limit for civil legal aid to enshrine that equality in law. I believe that that is a fundamentally flawed argument.
Admittedly, the argument is a powerful and persuasive in relation to domestic abuse, and I have heard the cabinet secretary make that point on many occasions in the past few months. However, as I have already said, my view is that there should be no payment at all by women in domestic abuse cases. In addition, the more general point is that we cannot base a whole case on one example. As I said earlier, the general equation of the two situations is flawed, because when someone is accused they have the power of the state against them, they have no choice and, crucially, they may be innocent.
That is why I think that the whole bill has been based on a fundamentally flawed premise. My colleagues and I have very serious concerns about the people on low incomes who will have to make a contribution. The position is made worse by the fact that, if they are found to be innocent, they will get no reimbursement. I merely restate my serious concerns about that.
I regret that the modest amendment that Annabel Goldie moved to require a report on the impact of collection was not accepted, but we will have to look very carefully at how collection works in practice. Indeed, we will have to monitor the effect of the whole bill.
As the Presiding Officer is indicating that I should wind up, I will say that I am glad that we are voting against the bill today.
16:55
I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates.
As Annabel Goldie has said, the bill has been controversial, but part 1 is less controversial. We have heard a lot today about the balance between lawyers and non-lawyers in the new civil justice council, but let us not forget that Lord Gill told the Justice Committee in evidence that he envisaged that the bulk of the council’s early work would be the drafting of technical rules. I accept that the balance between lawyers and non-lawyers may need to change over time. However, the Lord President has a big task ahead of him, and I believe that it is right that Parliament has not sought to impose too many restrictions on his powers or to be too prescriptive in terms of his appointments.
The Scottish Government has made it clear that it will not preclude a lay person from being the deputy chairman of the council, and I am sure that we all welcome that assurance. I hope and am confident that the Lord President will recognise that his appointments will reflect a wide range of interests, in accordance with the principles set out by the Public Appointments Commissioner for Scotland. I hope, too, that the insurance industry, trade unions and others will be happy with the appointments when they are made.
As to part 2 of the bill, despite the agreement on the principle in particular that those who can contribute towards their legal aid should do so, the detail has been hotly debated. The cabinet secretary has had a very difficult task in the current financial climate, but what is proposed still compares favourably with the situation in England, where some people with an income below the Scottish threshold will pay their full costs in the magistrates court or up to 90 per cent of them in the Crown Court, where I understand that the minimum contribution, if it is to be made, would be £254.
As Christine Grahame has suggested, English legal aid is faring far worse than the 7.3 per cent cut that we will experience in Scotland over the next few years. The Scottish Government has listened and has increased the disposable income threshold for contribution and accepted that the limits will have to be kept under review. It goes without saying that, if there was evidence that the limits were affecting the right of individuals to a fair trial, they would have to be considered further.
On collection issues, through discussions before the publication of the bill, the Government accepted that SLAB will collect for solemn or the more serious cases. While it is true that the Government has not moved on the principle of solicitor collection in summary cases, it accepts the need to offer assistance to small firms in the collection process, which was the basis of one amendment that we discussed earlier this afternoon.
Some say that the change proposed in the bill is a break from the normal relationship between solicitor and client, but we should not forget that, although it amounts to only £154,000 in total per year, the current collection for ABWOR—assistance by way of representation—for guilty pleas in summary cases has nevertheless to be collected by solicitors.
We have heard a lot of anecdotal evidence that solicitors do not collect that money. Mark Harrower of the Edinburgh Bar Association said that one reason for that was because it might create conflict between solicitors and clients. It is never easy to ask for money, but it is stock in trade for solicitors to do so with private clients and that may also cause conflicts to arise from time to time. Such collection is therefore not unique, and to oppose collection without properly testing matters in practice seems to me wrong.
We must also acknowledge that, under the new limits, up to 88 per cent of applicants will pay no contribution at all, so let us not overegg the pudding. Let us see how collection works in practice and what SLAB can do to help smaller firms. I welcome the cabinet secretary’s assurance that he will keep matters under review, particularly in the operation of the part 2 provisions.
As to refunds, in contrast to the position in England and Wales there is no tradition of reimbursing legal expenses in Scotland in cases where the accused is acquitted, which is possibly due to the absence of private prosecutions historically. However, I sympathise with the view of many Opposition members and recognise that refunds or reimbursement of expenses is something that needs further thought, not just for legally aided clients but for all. As I said at stage 1, that is a much wider issue. I urge the Government to keep the matter under review and not to kick it into the long grass.
16:59
Had the establishment of a Scottish civil justice council been proposed on its own, we would have been glad to support it. Although I would have liked Jenny Marra’s amendment on the make-up of the council to have been agreed to, I still believe that the council’s creation will prove to be of benefit to the development of our civil justice system.
However, the benefits of part 1 of the bill are not enough to counteract the problems with part 2. Although I acknowledge that there has been some movement on collections, I do not think that the compromise is enough. I see no good reason for us not to look to SLAB to collect all the contributions.
That is a relatively minor qualm compared with the concern about access to justice. Earlier today, I joined members of protest for justice outside the Parliament—legal professionals and members of the public who are concerned about the bill’s potential impacts on one of the central tenets of any democratic society: fair access to justice.
Reform of our legal system is nothing new. It has been put to me that many changes have been made to legal aid over the past 20 years, which have always been for the worse, but this is the first time that industrial action has been taken. The strength of feeling on the issue is not for show; it is real. The people at the heart of our legal profession—those who deal with accused persons day in, day out—are worried that the new law will fundamentally damage justice in Scotland. The issue is not, as the cabinet secretary has all too often asserted, about making criminals pay for their defence; it is about ensuring that all suspects—who are innocent until proven guilty—can, regardless of their circumstances, access proper legal help, advice and representation.
Since the stage 2 proceedings, the Government has been involved in fairly superficial negotiations with the Law Society and other representatives to seek a compromise. Once again, the Government’s casual and—at times, I think—bullying approach to law making has been shown up. Having been presented with the Government’s final, take-it-or-leave-it offer, the Law Society chose, pragmatically, to accept it, but it immediately sent out a briefing against the impact of the bill.
Although the Government might claim that its changes are protecting legal aid while ensuring that savings are made, that is simply not true. Even with the higher threshold, the effect of the changes will be to remove legal aid from a large chunk of working people.
Ann Ritchie, who is the president of the Glasgow Bar Association, shared with me examples of the sort of cases that she has dealt with in the past that the changes would have an impact on. The people concerned were working men and women with no previous convictions who were found not guilty. Had the proposed threshold been in place when they went to trial, they might not have been eligible for legal aid and might not have been able to afford the contribution. We could face the prospect of more people being forced to represent themselves in court, but without legal expertise they would lack the crucial tools to do so. We will risk sending more innocent people to jail, which would not be in the best interests of justice.
The truth is that we do not know how bad, ultimately, the impact of the changes will be, but we do know that the justice secretary is willing to risk irrevocably harming access to justice to cut a comparatively small amount from the legal aid budget, which can never be cash limited anyway. Once that precedent has been established, there is a risk that legal aid will be further eroded to make more savings.
Access to legal support is a fundamental necessity of a fair justice system. We accept the need for reform, but part 2 of the bill is a blunt instrument that will have far-reaching consequences for justice in Scotland, and the Liberal Democrats cannot support it.
17:03
The proposed Scottish civil justice council enjoys a lot of support and it will have an important role to play in the procedural changes and the research that is carried out.
I am grateful to the various organisations for their briefings, not least Friends of the Earth, which said that ensuring that the new council is established in accordance with the principles of accountability, openness and participation is a crucial step on the way to Aarhus convention compliance.
It is fair to say that the Aarhus convention continues to exercise a number of bodies and individuals; I wrote to the Minister for Local Government and Planning about it following last week’s planning debate. If we accept that there are financial challenges—as, I think, members across the chamber do—we must demonstrate those principles, not least as the council will have a significant influence over the way in which environmental law develops in Scotland.
On accountability, I share some of the concerns about the legislative patronage that the bill gives to the Lord President. In his defence, as other members have mentioned, it has been said that he is a decent chap who would not overstep the mark. I, too, have no cause to doubt that, but we must understand that the powers are given to the postholder and not just to the present incumbent. As Malcolm Chisholm said, there are no guarantees about what might happen in future. Just this week, concerns have been expressed about a significant public appointment by the new Scottish Police Authority. Therefore, I welcome the cabinet secretary’s assurance that there will be scrutiny of how things progress in that regard.
I am particularly pleased that the Scottish Government took on board points about public appointments, that a fair, open and accessible appointment process has been adopted and that the Lord President will be required to publish a statement on how he will achieve that.
Openness is terribly important. Malcolm Chisholm talked about assurances and, if he checks through the debates, he will find a lot of assurances. The Lord President gave the assurance that it was extremely unlikely that the Court of Session would object to rules that were drawn up. I note that the Lord President has a role in the Court of Session and the new council. The Justice Committee was also assured that the Lord President would reflect a wide range of interests when appointing council members. Many individuals have paid a lot of attention to those assurances.
I supported one amendment from Jenny Marra, which was on the council’s composition. It is important that the council’s members represent a cross-section. I have used the term “lawyers club” and I feared the potential for a lawyers club to be created. It is important to involve users. We have heard that people would not be up to it and we have heard promises of change in the future. Many members will have heard such statements in another forum in relation to another debate.
As for participation, no matter how the numbers are juggled, the Lord President should be in no doubt that people are very interested in his discretionary appointments. Most effective organisations value rather than fear participation. The best employers consult their employees and unions and value their participation; the best shops value their customers; and the best public bodies listen and engage. I hope that the Lord President will do that in relation to his appointments.
Accountability, openness and participation are required. The civil legal system’s customers hope for active involvement. I hope for active involvement from consumer and environmental groups as a step towards bringing Aarhus convention compliance closer. I wish the council well in its important role of keeping the civil justice system under review, and I will support the bill.
17:06
I would like to put aside the rights and wrongs of the bill for a moment and look at the approach that we have witnessed in the lead-up to our discussions of the bill. I have no doubt that the names of consultees form large lists on various A4 pages, but it has become apparent that consultees lack confidence that their views—not only on part 1 but on part 2, as we have heard—were listened to and responded to productively.
Let us look at the headlines on parts 1 and 2. Who could object to the Scottish civil justice council and the aims that the bill sets out for it? It is long overdue and progressive, and one hopes that it will place civil justice to the fore and modernise a system that I have no doubt needs fresh air. Equally, who could object to the principle in part 2 that those who can pay should pay? It is logical and represents a desirable outcome that I have no doubt that many members of the public support.
Given that, why have we had industrial action in our courts, a split among solicitors, an angry response from many solicitors who tried to have their views heard, and a demonstration outside this building by solicitors before we met to discuss the bill? The rejection at stages 2 and 3 of all Opposition amendments that were lodged to parts 1 and 2 was unedifying. The improvements that Opposition parties suggested were meant to be constructive and to make the legislation that comes to pass more acceptable to the public and something that could be lauded by all.
As a result of the threats of industrial action and the legal profession’s well-publicised resistance to the proposed changes, we have ended up with policy on the hoof in part 2. Changes have been implemented at the last minute. The cabinet secretary said this afternoon that he did not know what the cost of some services might be in the future. We have ended up with a transfer from the Government to solicitors of the risk of non-recovery of some fees. Solicitors might well also have to pay the Scottish Legal Aid Board for its efforts to recover outstanding fees.
I mentioned earlier the injustice for those who are acquitted in cases where judges indicate that the prosecutions have been ill conceived. Measures in this regard were rejected because of the problems that they might present—Christine Grahame said that they would open a can of worms. I say to the cabinet secretary that, sometimes, cans of worms need to be opened. The problems cannot be resolved at one swoop—if they could, they would have been dealt with a long time ago—but there is no doubt that some cases that go through our courts leave people damaged and in poverty. If there are elements that we can introduce to make things better for the public, we are duty bound to introduce them.
There is no attempt in the bill to deal with people who would appear to come before the courts on regular occasions throughout the year, accessing legal aid for three, four, five or six separate cases. Nothing has been done to deal with that.
With regret, I must indicate that I do not support the enactment of the bill, and I will be voting against it.
17:11
This has been an illuminating debate. I do not underestimate the challenges confronting the Scottish Government, but something has been shied away from. Lewis Macdonald said that there are two entirely different subjects in the bill, and Alison McInnes alluded to that, too. I agree with that.
The reform of the civil justice system is proceeding on the basis of an extensive and authoritative review by Lord Gill. There has been a well-informed process to justify our decisions as to how we might embark upon the civil justice reforms. In that respect, that bit of the bill has been proceeding on a stable basis. We want more efficiency and broader civic involvement in the Scottish civil justice system, and that will be achieved through the Scottish civil justice council. The amendments from Margaret Mitchell and Jenny Marra that were discussed this afternoon would have improved openness and transparency, and it is a great pity that the Government did not accept them.
We could have had a standalone, solid, consensual civil justice bill. Criminal legal assistance is an entirely different matter. As I have said, I do not underestimate the challenging proposition involved, but would not the whole process have benefited from broader consultation and a separate bill resting on what that broader consultation produced, with the aim of trying to unite people? That matters to Scotland, not just to civic Scotland and those who are accused of committing crimes. It matters that we have a solid, confident, competent, professionally capable legal profession. At the moment, we have a legal profession that is split into pieces. I do not need to explain that to the cabinet secretary—he knows it for himself.
I agree with Lewis Macdonald that the profession is divided. That is unfortunate, because the best way forward for the reform of criminal legal assistance would have been to have information, real discussion, a meeting of minds and a genuine attempt to chart a way forward.
At the heart of any civilised state is the right of the accused to legal advice. That is an important tenet, as is the presumption of innocence. I agree with Malcolm Chisholm that such fundamental principles cannot be driven by money alone. The Scottish Government has failed to demonstrate how those two basic principles are supported, protected and delivered by part 2 of the bill.
Let us consider the position of an accused person with limited income, no knowledge of their partner’s or spouse’s income, who is facing a criminal charge and urgently needs advice. As regards that individual’s disposable income, the amount concerned might represent an electricity bill or a pair of shoes for a child. What is the accused to do? Represent himself or herself? Go to a money lender? Try and pawn something in order to make the contribution? Knowing himself or herself to be innocent—this is a really alarming prospect—should they plead guilty just to bring the matter to an end? Those are all entirely predictable consequences of the provisions of the bill.
Will the member take an intervention?
I cannot, as I am in the final minute of my speech.
In a situation in which the client presents an explanation that constitutes a defence and has to make a contribution but does not have the money, what is a solicitor meant to do? For a one-off, the solicitor might offer pro bono services. Those who have been in practice have often done that. However, that is not sustainable if the majority of the solicitor’s clients are in that position. Are they to be turned away? Is the solicitor to try to subsidise the inadequacy of the criminal legal aid system?
That is why I think that the Scottish Government has failed to demonstrate exactly what it thinks should be happening and how on earth it thinks that the proposed system is meant to work in the interests of justice and fairness. As it has failed to satisfy me on that test, my party will not be supporting the bill.
17:15
The creation of the civil justice council was an opportunity for us to rejuvenate the antiquated way in which civil justice rules are currently made. Organisations that deal daily with the impact of the rules councils’ decisions told us what we needed to do to make those decisions more open, accessible and easier to understand. Throughout the passage of the legislation, Labour has attempted to put down reasoned amendments that reflect those principles.
However, today has been a missed opportunity for innovation, transparency and progress, with the Government instead content to sit on its hands and close its ears to the experts. Instead of opening up the membership of the council so that the needs of litigants are at the heart of our civil justice system, we have seen the Government doubt the ability of lay organisations to do that job, despite support for them from many people across the chamber. Instead of extending our commitment to having public organisations that are open, transparent and accessible, Kenny MacAskill’s apathy has ensured that a closed-doors policy is the preferred modus operandi.
Further, in the face of irrefutable evidence that our legal system is still operated with a deeply entrenched gender imbalance, the SNP has yet again failed in its duty to use the power of legislation—which is at its fingertips—to right that wrong.
We cannot help but feel that Kenny MacAskill's lack of engagement and unwillingness to listen has resulted in a bill that does not nearly meet its full potential. If it were not already evident in part 1, the development of part 2 makes it abundantly clear that the SNP still has lessons to learn about listening.
The simple truth is that it should never have taken more than six months, disruption in our courts and an 11th hour intervention by the cabinet secretary for the Government to finally engage on its plans for our justice system. It knew from day 1, as we did, that the contribution and collection system that it put in place would have a profound impact on access to justice.
Does the member welcome the fact that the Government insisted on there being parity with civil legal aid, which was not being insisted on by the criminal bar?
I do not welcome that at all. I put it to the cabinet secretary in committee many times that, when a criminal prosecution is brought, it is the state prosecuting the individual, so such comparisons are not really appropriate.
The Law Society told the Government of the impact, as did the Faculty of Advocates, Capability Scotland, the Scottish Human Rights Commission and the Labour Party. Solicitors from across the country told the Government that, too—indeed, they continued to do so today outside this building.
As Lewis Macdonald said, uprating the threshold of contribution from £68 to £82 does not answer the question of affordability, as the burden of that cost will still be met by those who are on low incomes. The SNP is putting the burden of the cost on the working poor in this country.
Finally, the collection system that the cabinet secretary has cobbled together in 11th-hour negotiations will do nothing to mitigate the risk that we will see people standing in court without a solicitor. That is a very real risk under the bill.
The SNP poses a significant risk to our justice system not just through the bill. In the coming weeks, we will consider the contracting of legal criminal representation, which is allowed for under legislation that was passed in the final throes of the Tory Government in 1997. Over the coming weeks, months and years, under section 52 of the Crime and Punishment (Scotland) Act 1997, the SNP Government will allow contracting in this country if its proposal is voted through. The Minister for Community Safety and Legal Affairs might want to cast her mind back to the House of Commons debate on that, when she described the very legislation that she now intends to use as
“a rag-bag of proposals that is almost incoherent in its approach.”—[Official Report, House of Commons, 5 April 1996; Vol 284, c 1107.]
I ask her to reflect on those comments when she seeks to bring that legislation into effect in the coming months.
The emerging story is that the SNP Government refuses to listen. It is happy to accept the advice that Scots will turn up in court unrepresented; it is happy that the working poor will bear the brunt of the cost; and it is happy to use Tory legislation to undermine the quality and independence of legal advice in Scotland. We are not happy to support such concessions, and we will oppose the bill at decision time today.
17:21
Notwithstanding some of the comments made by the Opposition, I welcome the fact that we have got to this juncture.
Of the two parts of the bill, the matters relating to the civil justice council have been welcomed, at least in some aspects, by most members in the chamber. We have been on this journey for some considerable time. Part 1 of the bill deals with some of Lord Gill’s many recommendations for reform. We last debated civil justice reform in 2009, following the publication of the report of Lord Gill’s review, which had been established by my predecessor. We have built upon that.
To be able to carry out the more fundamental review that Lord Gill, like most of us in the chamber, felt is necessary to get Scotland’s civil law into a position where it is fit for the 21st century, we require to make changes. Before the fundamental changes in his reforms, which will also require primary legislation, we require to make other changes. Some changes have been dealt with on a non-legislative basis, but others are dealt with by the aspects of the bill dealing with the civil rules council. That matter was first raised by Lord Gill’s predecessor as Lord President, Lord Hamilton, who made it quite clear that he felt that it was necessary to make these changes if we are to be able to give effect to the more fundamental reforms proposed by the then Lord Justice Clerk, Lord Gill.
Obviously, the membership of the Scottish civil justice council has been the subject of much interest and debate. The Lord President may require the wisdom of Solomon in deciding how to balance who should be included, but I believe that it is best to give him some element of flexibility. Not everyone can be, or needs to be, included around the table. I believe that the Lord President—and, indeed, anyone who holds that office—will ensure a fair representation that takes into account the balance of needs and wants. Numerous people who are not currently included in the council’s membership have sought a place on it. I have received representations from the Association of British Insurers, the Sheriffs Association and other legal and, indeed, non-legal bodies. If we were to accommodate everyone who wished to have a place on the council, it would probably be impossible for it to convene—if it convened in public, as some wished—even in the chamber in which we sit. We need to have some trust and faith in the Lord President, whose position is well regarded by everyone who has ever held that office, so we should give him the degree of flexibility necessary to deal with that.
The next aspect of the bill is legal aid, on which we have seen some hypocrisy from those on the Opposition benches. They were prepared to support the principles of the bill at stage 1, but it seems that they are not prepared to support the bill today. Other parties condemn it outright yet sit in government south of the border, where the approach to the matter is significantly worse and harsher.
Is the cabinet secretary telling the Parliament that the extent of his ambition is to be less bad than somewhere else? If that is so, he has a lot of explaining to do.
No; my ambition—it is not just my ambition, but my intention and that of the Government—is not to replicate the absolutely appalling situation with legal aid south of the border, where whole areas have been discarded. We have had crocodile tears around the chamber, but let us look at some of the matters on which no legal aid is available south of the border because of the cuts that have taken place—cuts started not under the current Tory coalition south of the border, but under a Labour Government under Jack Straw. They include asylum, clinical negligence, criminal injuries compensation, debt, employment, housing, immigration, family matters and welfare benefits—nobody is eligible to apply for legal aid on any of those matters, irrespective of their income. The Scottish Government is not prepared to consider such a scenario, which is why, when we face the second-highest legal aid bill on record, we want to ensure that we balance that bill, which we will do by requiring those who have the ability to make a contribution in criminal cases to do so.
We are, of course, here to debate the bill that the cabinet secretary has introduced. Will he respond to some of the points that have been made about the impact of the way in which he has drawn his bill up on those whose incomes are just above the bare poverty level?
I will continue to point out the situation south of the border, because we heard from Annabel Goldie how appalling she thinks the situation will be here. [Interruption.]
Order.
South of the border, in the magistrates court, it is an in-or-out system. Anyone with annual disposable income of more than £3,398—which is just more than £65 a week—fails the means test and does not get legal aid. In the Crown Court, anyone with annual disposable income of more than £3,398 is required to pay 90 per cent of that towards costs. [Interruption.]
Order. Would members who have just come into the chamber please keep order?
Let us contrast that with the situation in Scotland, where 88 per cent of people who face a criminal charge, on applying for legal aid, will have it granted with no contribution. Only 12 per cent will be required to make a contribution. In Scotland, the contribution level commences at £3. People who are earning several hundred pounds and who have the ability to make a modest contribution will be required to do so.
The Government faces challenges and there are significant claims on the Scottish Legal Aid Board, many of which come from those who are doing remarkably well from the amount of legal aid provision to their clients. Therefore, we must balance matters. That is why I am extremely grateful to the Legal Aid Board for having introduced proposals that will allow us to continue to provide legal aid for matters such as asylum, clinical negligence and all those other areas of civil concern.
We have taken on board the concerns about disposable income and, in doing so, we have dealt with the concerns of the Law Society of Scotland. However, unlike Ms Marra, we are prepared to ensure that the provisions apply not only to those who face civil proceedings, but to those who face criminal allegations. We want to ensure parity between the person who is a victim of domestic violence and the person who is charged and alleged to be the perpetrator of domestic violence.
Miss Goldie forgets that many people who face civil challenges also have the weight of the state facing them. People who have their children removed are in most cases dealt with under civil, not criminal, legal aid, as are people who face bankruptcy, insolvency or the loss of their house and all the matters that go with that.
Yes, but part 2 of the bill is about people who are accused of crime and their right to be legally represented and how they achieve that.
It is about achieving the legal aid system that we want, when we have the second-highest bill on record and hundreds of millions of pounds going out. We know that the largest part of legal aid expenditure is on criminal legal aid, so if we are to provide the legal aid system that we want in Scotland—I believe that it should be one that covers clinical negligence, family matters and all the other things that have been rejected for legal aid south of the border—we must ensure that those who have the ability to pay do so. That is why I commend the bill to Parliament.
I look forward to the Law Society of Scotland working constructively with the Legal Aid Board to deal with the matters that remain outstanding in the forthcoming months and years.
That concludes the debate on the Scottish Civil Justice Council and Criminal Legal Assistance Bill. Before we move to decision time, I invite members to join me in welcoming to the gallery the Premier of Quebec, Mme Pauline Marois. [Applause.]