Chamber and committees

No, I do not.

Lots of lawyers are still doing legal aid work. This measure represents an attempt to listen to what the profession is saying, and it puts a significant amount of Government funding into legal aid. We take the matter very seriously.

Thank you for that question. One of the instruments that is before the committee today includes, as well as the 5 per cent uplift, a new payment—a supplementary fee for holiday custody courts. That is a direct attempt by the Government to address the matter, having listened to solicitors who told us that they wanted that. Solicitors who work in holiday custody courts have not been getting an additional payment, so if the committee agrees to recommend the instrument, they will get additional money. We listen constantly to the profession. As I have said, we will adjust fees where we think that doing so will have an impact.

You mentioned civil legal aid. I know that this is quite confusing, because we are talking about lots of different things. In the reforms package that we have developed and put in front of the profession on Monday, and on which the committee will have seen correspondence, there are proposals on solemn and summary courts. The proposals on solemn courts represent significant additional funding, which is a response to requests from the profession to change fee rates and so on. We have done that. In a minute, I will ask Denise Swanson to explain a little more about that.

In discussion, it was—I note for the committee’s information—agreed that the civil side would be left to a later date. That is not to say that we think that everything is fine on that front; we have made a commitment to go back to look at fee reforms for the civil side.

I would, therefore, like the committee to think of this more as a starting point; we are starting here and will continue to consult the profession about changes. We are putting money in: the reform package that we have put on the table this week represents several million pounds of additional funding. I ask Denise Swanson to add a little more on that.

I do not know whether you caught our earlier in-depth discussion about those points. I regularly meet representatives of the profession; I met the chief executive of the Law Society yesterday. Those are full and frank discussions; there are no holds barred. The profession talks to the Government and tells us what it perceives to be the issues. We then have to assess the evidence and make policy decisions based on that.

We have listened to the profession, which is why we have given the uplifts that we have given over the past few years. We know that the legal profession, among other businesses and industries, has been impacted by the pandemic, so we sought to give it additional resilience funding.

I accept that the profession feels very strongly about the matter. The Law Society is right to strongly represent its profession and to try to get the best deal. That is completely legitimate. We have talked about the spending review as one way for the Government to decide on priorities and on how to allocate spending across the board. My job is to try to find a way through the matter and to make fee reforms where they will be of benefit.

The instruments that are in front of the committee represent a significant investment. Before Jamie Greene arrived, we had a discussion about the funding package, of which I hope he has been able to see some details. That funding is additional to what is in the instruments.

I am listening to the profession and I am doing my utmost to respond to the concerns that it raises. My officials work with the profession weekly to develop fee packages to respond to concerns that it has raised. I have been trying to work on that over the past year. For instance, holiday custody courts were raised with us; I wanted to resolve that issue so that practitioners who work in those courts get a supplementary payment. That is one of the measures that is in front of the committee.

I have said before and am happy to say again that my door is open. I am willing to talk with the profession and to work with it on fee reforms. That is what we will continue to do.

A 5 per cent uplift is included in one of the sets of regulations that are before the committee—that was a commitment that the Government made during Covid. I will run through what the Government has done in that regard over the past few years. We made a 3 per cent uplift in 2019 and the 5 per cent uplift in 2021 to which I have already referred. There is the 5 per cent uplift for 2022 that is in front of the committee today, and we have put £1 million into funding 40 trainees, which was in response to issues that the profession raised with us about capacity. The training was an attempt to go some way towards finding a solution to that issue. We also invested £9 million in Covid resilience grants.

In general, the Scottish Government considers the profession to be a partner with us in access to justice, in running the courts system and, because of the pandemic, in addressing the backlog, particularly in the criminal courts. The Government is attempting to demonstrate how much we value the profession by continuing to uplift the fees.

We are also working on packages of fee reforms, one of which we referenced in a letter to the committee—we are developing that at the moment. The full package of fee reforms has gone to representatives of the profession—I think that was last week, was it?

Thank you for the opportunity to speak about the draft Legal Aid and Advice and Assistance (Financial Limit) (Scotland) Amendment Regulations 2022, which will support the coming into force of a negative instrument, the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022.

Legal aid legislation sets out prescribed limits of initial authorised expenditure, which is the amount of money that is available from the legal aid fund to cover the costs of fees and outlays before a solicitor must seek approval from the Scottish Legal Aid Board to incur any additional costs.

Due to increases in legal aid fees, including those that are to be delivered by way of the negative instrument that the committee will consider this morning, it is likely that, without our amending the current authorised expenditure limits that apply, they would frequently be exceeded by solicitors when providing advice and assistance to clients early in their instruction. The effect of that would be that solicitors would be required to seek the prior approval of SLAB to ensure the full payment that is available for the work that they undertake. Requiring solicitors to seek such approval for payments, which would otherwise be permitted in the table of fees, would result in additional time, resource and bureaucracy for legal aid providers and SLAB. To address that, the regulations will increase the limits for initial authorised expenditure.

Provision is made in the regulations to increase the maximum total fees per court session that are allowable to duty solicitors representing accused persons in the sheriff or district court. That means that session limits that apply to duty sessions will allow the same number of accused persons to be represented during a session, notwithstanding the fact that the fee per case has increased.

As I said, the affirmative regulations support the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022, which, primarily, will deliver the second part of the Scottish Government commitment to uplift legal aid fees by way of an increase of 5 per cent in 2021 and a further 5 per cent increase in 2022. The regulations also provide for a new, supplementary payment for a solicitor to claim when attending a holiday custody court sitting.

The regulations address an anomaly that resulted from a decision in a case that was reported in early 2021 on the interpretation of schedule 4 to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 and, in particular, on how it should be applied to the fees of senior counsel.

I hope that that gives the committee a brief overview of the regulations and their context. My officials and I are happy to answer any questions that the committee might have.

Yes, absolutely. In relation to the reform package—not what is in front of you now, which is an additional reform—we have already discussed our solemn proposals in quite a lot of detail with the profession, and those are pretty much ready to go. I will be able to bring them to the Parliament quite soon.

The summary proposals need a bit more development, so we will take a bit more time to develop them—again, that could absolutely be progressed this year. Those proposals are already in development, which is certainly a starting point. The fees need a lot of reform, and, as I said, it is an on-going process, but we are happy to consider any suggestions from representatives of the profession on how fees could be changed or altered in the future.

Over the past few years we have had the 3 per cent rise, the previous 5 per cent rise, the 5 per cent rise now and the additional money for Covid resilience funding, too. I accept that there are professionals—practitioners—working in the system who feel that rates should be raised. I totally accept that, and it is obviously for them to put that case forward. We spend much of our time working with the representatives of the profession: the Scottish Legal Aid Board, the Law Society of Scotland and the bar associations.

The fee rise that you are considering today is an across-the-board fee rise, but, as I have said right from the beginning, there are other ways of doing this, too. Some of the proposals that we have in the fee package that the profession is currently considering show that I am completely open to discussing these things with the profession and, if we can find ways to address individual fee reforms that can get more money into the pockets of the practitioners, I am completely willing to consider that. I have said that all along.

Around Christmas 2020 and early 2021, after discussion with the profession, the Government made a commitment to increase legal aid fees across the board. At that point we committed to 5 per cent increases in two years—one last year and the increase for this year that is in front of you today. We are making good on a previous commitment.

Capacity issues have been raised with us and we take them very seriously, for the reasons that you have just suggested. We put £1 million into the traineeship fund, which you will no doubt have heard about. That was an attempt to go at least some way towards addressing the capacity issues that have been raised with us. We are monitoring the matter extremely carefully. I guess that, in the medium term, it could be addressed in the legal aid bill that should be forthcoming during this session of Parliament.