Chamber and committees

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.

Yes, we are. We are working on some draft SSIs. It will be after the summer, but we are working at pace on the secondary legislation and doing what we can in the meantime, before we go into purdah next year.

I absolutely understand the frustration. I appreciate it, and the issue of organisations moving away from a year-to-year funding model is brought up with me quite frequently. You will appreciate that the Scottish Government has the same issue; we do not know what we are going to get until the September or October before we have to finalise our budget. However, we recognise the financial uncertainty that that causes.

The Scottish Government is aiming to move away from short-term projects. As part of the 2025-26 programme for government, it has committed to delivering a fairer funding pilot. That will provide multiyear funding to third sector organisations that deliver front-line services and tackle child poverty. It is not for every organisation, and it is only a pilot. However, I am hopeful that if it is a success we can give other organisations multiyear funding.

I totally appreciate your comments, Ms Gosal. It is unacceptable. As we know, people who are fleeing domestic abuse can be some of the most vulnerable in our society. I am pleased, though, that the Regulation of Legal Services (Scotland) Bill was passed last week in Parliament, as that will remove restrictions preventing charities, law centres and citizens’ advice bodies from directly employing solicitors to provide certain legal services to some of our most vulnerable, including those fleeing domestic abuse.

I watched Dr Marsha Scott’s evidence, and she highlighted the issue that someone might take on a case for domestic abuse but then not take on the other issues that the person might need legal assistance with. That is where the bill that was passed last week will make things a lot easier for people who are fleeing domestic abuse.

I take your comments on board. No one disagrees that we need reform in legal aid, and all those issues will be embedded in the heart of how we move forward.

Yes, I absolutely appreciate the frustrations. I will provide bit of clarity on the background. My predecessor invited Martyn Evans to do an independent review. The Scottish Government published its response to that back in November 2018. We then went into the Covid era, so things were delayed. There has been substantial progress on things that were recommended in the Evans review, such as the legal aid remuneration project research analysis group, as part of which extensive work was carried out to agree the scope of potential research, and that work is on-going.

I saw Pat Thom from the Law Society of Scotland, who I know that Mr O’Kane has spoken to about the history of that. For example, £10 million was provided on the understanding that everyone would be on that board, and a lot of work was carried out on that remuneration project. Although we have not made progress on primary legislation, which we will do during the next parliamentary session, we need to get the funding model sorted. The board put the research project that was recommended by the Evans review out to tender twice, and unfortunately we were not able to get anybody to look into it.

Although we have uplifted funding by 25 per cent during the past five years, historically that was not done as much. In future, we need to have stability for the legal profession through an annual funding mechanism that can be reviewed. That is a core part of how we move forward with legal aid reform, because it is a bit disjointed. There are a lot of issues, and it is very complex. However, until we get that sorted, I do not see how we can progress, although I do want to move forward with the legal aid reform.

I am pleased that the responses to the SLC’s recommendation that a stage 2 amendment be lodged to give effect to its recommendation have been generally positive, and I welcome the scrutiny that the committee has done on the matter.

As members will be aware, the SLC’s recommendation that the 1949 act be repealed was made in February this year, which was two months after the bill had been introduced. The Federation of Small Businesses, which represents businesses that have the kind of tenancy that the act is meant to help, told the committee that it would be a little bit softer with regard to using the bill to repeal the 1949 act.

I am aware that the SLC has expressed its hope that the Scottish Government will take forward its recommendation by lodging an amendment to the bill. I will consider carefully the responses from stakeholders and, in particular, whether any other consequential amendments might need to be made to the bill. I will write to the committee ahead of the stage 1 debate to set out my views on the repeal of the 1949 act and the lodging of an amendment.