Chamber and committees

I thank Ms McNair for that question. I know that the committee recently finished its evidence taking on civil legal aid, and I look forward to your report and your recommendations from that.

I think that there is scope for consideration of that suggestion, but as I said in a previous evidence session, I have some concerns about removing means testing in this area. There would be a cost to the public purse, and to ensure equality, we might need to automatically give legal aid to the defender—the person who is alleged to have caused harm—as well as to the applicant. It is quite a complex area and I am open to suggestions on how we move forward. That is worth considering.

I am grateful to have the opportunity to outline our approach to implementation of the Children (Scotland) Act 2020. I set out our plans in my letter of 11 March to you, convener. We remain committed to implementing the 2020 act in full.

To date, the Scottish Government has made three sets of commencement regulations in relation to the 2020 act. The most recent set will commence provisions to amend requirements when a parent or another person with parental responsibilities and rights is making a major decision about a child’s life. Those provisions will commence on 21 September this year. Those regulations also commenced, as of two days ago, provisions that require a court, when considering a child’s welfare in a range of proceedings, to consider whether any delay in those proceedings would negatively affect the child.

We will also lay SSIs in September this year to bring in the regulation of child contact centres. Laying instruments as soon as we can will provide clarity on how regulation will work.

We will lay a further commencement SSI later this year, in October. It will cover a number of areas, including the remainder of section 1 of the 2020 act, on the views of children in court cases in areas such as child contact; sections 2 and 3, on views of children in relation to adoption and permanence proceedings and children’s hearings proceedings; section 16, on factors for the courts to consider before making an order on matters such as child contact and residence; section 18, on the duty on the courts to consider the child’s best interests when allowing access to information; and section 30(2), on delay in relation to child contact and residence cases.

There is still more work to do. For example, the planned register of child welfare reporters is a key provision of the 2020 act. Child welfare reporters can play a key role in contact and residence cases—they provide reports to the sheriff who is hearing the case and they interview key people, including the child who will be at the centre of the case. We have re-established the child welfare reporter working group, which will look back at changes that were made previously and look forward to the implementation of the register.

I hope that that brief introduction reassures the committee that implementation of the 2020 act is taking place and is continuing and that we recognise the need to implement legislation. The 2020 act is particularly important, given that it is about children. I am happy to answer any questions.

I will ask Simon Stockwell to confirm this, but I understand that we will lay the SSIs that I just referred to—in relation to sections 1, 2, 3, 16, 18 and 30—in October this year and that the provisions will come into effect in October 2026. However, the lead-in time for the child contact centre SSIs will be a bit longer, at 18 months.

That is all considered when thinking about how we move forward with everything. I do not know whether Jeff Gibbons or Matt Elsby wants to add anything.

Thank you very much. Good morning, committee. Convener, I have an opening statement on part 1 of the Domestic Abuse (Protection) (Scotland) Act 2021 and another on the housing aspect, which is in part 2. Is that all right?

Good morning. I am grateful to the committee for inviting me to contribute to your considerations on civil legal aid.

I recently took the opportunity to meet staff from grant-funded projects, and I heard at first hand about their excellent work and the services that they deliver to people across Scotland. I note that many of the issues that have been raised with the committee are similar to the discussions that I have had about the need for change.

The Government recognises that reform of the current system is needed and that there are challenges in certain areas with certain types of legal aid work. The recently published discussion paper on legal aid reform sets out a programme of work for the rest of 2025-26. Our first priority is to engage with stakeholders on draft regulations and associated impact assessments. Those changes will make it easier both for solicitors to work with legal aid funding and for those who need legal assistance to access it.

We will re-initiate fee review planning and collaborate with stakeholders on the reform of legal fees in 2025. We will take the same collaborative approach to developing detailed proposals for future primary legislation, working with SLAB and with private sector and third sector stakeholders to explore areas of diversifying funding methods and embedding users’ voices—something for which those who have responded to the committee’s inquiry have called.

The report of the independent strategic review of legal aid that was carried out, which is entitled “Rethinking Legal Aid—An Independent Strategic Review”, noted:

“Scotland is one of the leading jurisdictions in Europe in the provision of legal aid judged by scope, eligibility and expenditure per capita.”

It went on to say that “in almost all” solemn criminal cases

“the accused will get legal aid”,

and that in civil cases,

“the scope of legal aid in Scotland is broader than very many jurisdictions, with comparatively little excluded”.

However, legal aid does not sit in isolation, and it is an essential component of access to justice. We recognise that legal aid plays a crucial role in upholding the principle of equality before the law by ensuring that those who cannot afford legal representation are not disadvantaged in the justice system. Legal aid funding allows solicitors to deliver their services to people remotely as well as in person, supporting many people with civil problems.

We have maintained the scope and resourcing of legal aid, and the demand-led budget means that all eligible costs are met. That means that legal aid expenditure is likely to reach £174 million in 2025-26, which is an increase of £5 million on last year’s expenditure budget. That will be the highest-ever level, which highlights a trend of increasing levels of expenditure every year. We must ensure that delivering legal aid is fair to those who deliver the services, and it must also be effective and efficient and deliver value to the public purse. We have maintained funding for the Scottish Legal Aid Board’s civil legal advice grant-funded projects, with up to £2.3 million this year.

I am aware of the significant input that the committee has received in aid of the inquiry. It is clear from all the submissions that have been received, and the evidence from the witness sessions, that there is a strong feeling that civil legal aid in Scotland needs reform, and I, and the Scottish Government, share that belief. I am happy to take any questions.

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.