Chamber and committees

Yes, absolutely. I think that we all recognise that reform is needed across the board to legal aid, both civil and criminal. The need for the approach to be more trauma informed is an important issue, and I am more than willing to work with SLAB and any third sector organisations to ensure that that happens in any legal aid reform as we move forward.

The issue of recruitment and retention has been raised with me since I came into my role. I am sure that the committee will know about the future of the legal profession working group, which is looking at the short, medium and long term. The traineeship fund that was announced for 40 traineeships was welcomed by everybody. We are going through the evaluation of the scheme, which we received just recently from the Law Society of Scotland, and we will look at how it can be rolled out. I am keen to progress that.

I do not know whether any of my officials have a timescale for that.

It is important to recognise that there are different standards for criminal and civil legal aid under the European convention on human rights. Article 6(3)(c) of the ECHR provides for the right to a fair trial, and where a person has insufficient means to pay for legal assistance in a criminal trial, it is to be given free of charge when justice requires it. There is no equivalent mechanism or right for civil legal aid.

The convener highlighted regulation 15. The SLAB has been engaging directly on that with the Environmental Rights Centre for Scotland since earlier this year and has provided an initial briefing on its approach. Its intention is to use engagement to establish evidence of the position from their respective perspectives in order to better understand the potential problem. That work is on-going with the aim of delivering advice to the Scottish Government on recommended options. We will address that when we get the advice.

That is part of the recommendations that we will consider in the wider reform.

On the issue of funding, it is important to highlight that the legal profession feels that people are leaving the profession because of underinvestment, and although I recognise that historically there have not been regular uplifts for fees, from 2019 there has been a 25 per cent increase in funding from the Scottish Government, specifically as an uplift to the legal profession, to try to resolve some of the challenges that it has faced. That increase is above the inflationary rate.

Another reason why we need reform is that we have not seen a significant increase in solicitors. I think that £31 million has been put in since 2021, but that has not made much of a difference, so we need to look at all the different models to understand where the money is going and how we can ensure that it is delivering for vulnerable people and others who need it.

We have to remember that the legal aid fund is demand led and is directly linked to application numbers, and that all eligible costs are met. As I said in my opening statement, in this year alone, £174 million will be provided.

In relation to the reform, we are currently drafting Scottish statutory instruments, putting them out to consultation and looking at the assessments of them. Last week, I met SLAB and discussed the fact that it could take between four and eight months for the SSIs to be implemented. By the time of implementation, therefore, there will be a budget available for that.

On the point about financial eligibility thresholds for civil legal aid, I discussed that briefly with SLAB when I met it last week. SLAB has provided an analysis paper to the Scottish Government that provides advice on a range of possible changes to financial eligibility thresholds for civil legal aid and advice and assistance. The modelling includes the impact of the thresholds on eligibility levels and costs. However, any changes to policy will not be cost neutral, so we will, as a Government, have to consider that. We will carefully consider the SLAB paper in conjunction with the wider set of reforms that are set out in the Government’s discussion paper.

I go back to your point about who is receiving legal aid. I have sat in committee over the past couple of years, and I have spoken to those in the legal profession and totally appreciate and understand the challenges that they face. As I said, we really need legal aid reform for the future.

As a Government, we have seen the legal aid budget go up every single year—two years ago, it was quoted as £141 million, and it went up to £151 million. Because legal aid funding is demand led, the Scottish Government will pay it. We are now up to £174 million. Every year, we are seeing an increase in legal aid, so it is not that people are not getting legal aid.

As has been highlighted to the committee, the picture is complex and hard to understand—we see it from the SLAB side, and I am seeing it from the Scottish Government side, with the budget increasing every year. We have to work together with the legal profession, with SLAB and with third sector stakeholders on how, moving forward, we can create a model that addresses all the challenges that everybody currently faces.

People are getting legal aid at the moment, as we can see from the budget. I do not know whether anyone else wants to comment on that.

The discussion paper that has just been published—we are working on the draft regulations at the moment—looks at short-term things. I know that we have eight or nine months before we go into purdah, so we are limited in what we can do, but the ball is rolling on certain things. The paper also looks at what we can do in the medium-to-long term.

I appreciate your comments that SLAB could make exceptions for some avenues for people who are fleeing domestic abuse. I listened to the previous evidence session and, as Colin Lancaster said, the law is very complex. Some lawyers might not be aware of the information, because it is not a field that they take a specific interest in—they might take up a case one day and not know about everything that is available.

This should perhaps be in place now, but as we do the legal aid reforms, which will specifically involve working with the Law Society and all the stakeholders, we must ensure that the legal profession and any solicitors who are dealing with a specific case—be it domestic abuse, a criminal case or whatever—are aware of the specific criteria according to which SLAB could make exceptions.

I do not think that the mixed model would be used to save money. In moving forward with the reform, there has to be flexibility and balance between both models. Obviously, we still need the judicare model, and we always will. However, if we can also move forward with grant funding—the Scottish Government’s aim is to be able to give year-to-year funding—we can have that balance and flexibility. The mixed model is not to be used specifically to save money.