Chamber and committees

The member will have heard me say in my exchange with Pauline McNeill that we have amended the criminal fee reform package that we were discussing and are reinstating waiting times. I commit to look at travel times and will be happy to meet the member to discuss the matter in more detail, if he wants a meeting.

I thank Elena Whitham for lodging the motion. It is fitting that we discuss this important issue ahead of the annual United Nations 16 days of activism against gender-based violence, which take place later this month. Elena Whitham gave an excellent speech. One sentence from it stood out particularly—when she mentioned sanctioning and criminalising women for their own exploitation. That is an important point.

I was pleased to attend the alliance’s launch in September and am grateful to it for providing a platform to discuss what model is right for Scotland to challenge men’s demand for prostitution, keep safe those who sell and ensure that support remains an integral part of the design.

I thank all members who have contributed to the debate. Rhoda Grant made some powerful points and Gillian Martin gave an excellent speech.

I am committed to working with members across the chamber and with stakeholders on tackling prostitution in the context of how women and girls should be viewed in an equal society. Our current programme for government commits to that action. We have now begun work to develop our own model for Scotland to effectively tackle and challenge men’s demand for prostitution.

The Scottish model will be underpinned by principles that are in line with our aspirations to embed equality and human rights in Scotland, and support our efforts to tackle men’s violence against women. It will meet our international obligations, including our commitments to incorporate into Scots law the UN Convention on the Elimination of all forms of Discrimination against Women.

Our key aim is to reduce the stigma and criminalisation that are experienced by women and encourage better access to integrated and specialised services. In the consultation that the Government ran recently, a number of respondents noted the need for support for the women involved to be holistic, person centred and capable of addressing the multiple underlying needs that many women have. As such, we have committed to engaging with those who have direct or lived experience in order to shape services and design measures that will protect them from harm and provide them with the support that they need, including help to exit prostitution, if they so wish. Jamie Greene and Jackie Dunbar raised that point.

By the end of this month, we will be seeking to procure experts to better understand current support service provision and the needs of service users who are engaged in, or have lived experience of, prostitution in Scotland, to better inform future service design.

We will also convene a short-life working group with key stakeholders on the development of the fundamental principles of our model for Scotland. Arrangements to begin that engagement are already in hand, and we hope to hold the first meeting of the group in the next few weeks.

I understand the desire for more information on the shape of the criminal aspects of our model, but I think that everyone will understand that we must take time to get it right. The model must operate effectively not only to hold those who buy sex to account, but to deter them from purchasing sex, because such behaviour has no place in a modern Scotland.

Officials have been in close contact with our justice partners. All steps are being taken to provide advice to people who require it. A combination of things such as early identification of those who are likely to need representation but do not currently have it, the use of technology for online representation and flexible court scheduling will play parts in ensuring that vulnerable defendants are supported as much as possible. My officials are working hard with all those partners to ensure that anyone who needs legal advice will receive it, and that disruption to the courts is minimal.

Jamie Greene raised a few points there. I will respond to the point about the incident that took place at the weekend. The Scottish Courts and Tribunals Service and the Edinburgh Bar Association issued a joint statement following the incident, and the SCTS has confirmed that

“Solicitors who are attending court to take instructions, provide advice and represent their clients are essential”

to court business

“and full access has been, and will continue to be, provided to court buildings and their clients held in custody.”

Ultimately, the matters that have been raised are for the independent judiciary and the courts, not for the Scottish ministers.

Jamie Greene will know and understand that the legal aid budget is demand led. Expenditure is regularly above the budget and sometimes below it. Last year was an extraordinary year and spend was below budget, but we fully expect spend to be above budget next year.

Substantial investment, in funding terms, has been put into legal aid, which I think represents the fact that the Government wants to invest in, and is interested in supporting, legal aid practitioners. If the Presiding Officer allows me, I will detail those investments. There has been an across-the-board increase in fees, which amounts to 13.6 per cent over three years; £1 million to support the cost of traineeships to address the capacity issues that were raised with me; and £9 million in direct Covid resilience and recovery funding to support legal aid solicitors. That total package of £20 million is in the process of being completely delivered. On top of that, a fee reform package on the criminal side is not yet progressed, but fee reforms will provide an increase of 16.6 per cent; on top of that again, the COP26 package is worth up to £3.5 million.

I think that that level of funding speaks for itself. It shows that the Government is listening and wants to respond to legal aid practitioners, and that we value and are investing in their work. In the case of the COP26 package, the Conservative-led UK Government will only cover £1.8 million of the £3.5 million, which demonstrates the Scottish Government’s willingness to listen and act and, as usual, go above and beyond what the UK Government does.

A generous package of enhanced legal aid fees for COP26-related cases was developed by a working group that included representatives of the solicitor profession and the Scottish Legal Aid Board. Proposals for the enhanced funding package were made by the Law Society of Scotland and were then costed by SLAB prior to submission to Scottish ministers. The package was accepted and approved without any amendment.

The package included some significant enhancements to the fees that are normally paid for duty work and for cases arising from custody appearances. For example, the fee for any case in which the duty solicitor pleads guilty on the accused’s behalf was increased from £75.71 to £578.61. Where a plea of not guilty is tendered and further work will be required under summary criminal legal aid, the fee for seeing any COP26 case to conclusion over the weeks or months after COP26 was more than doubled, from £524.53 to £1,157.22. That fee applies to both duty and named solicitors.

I have significantly more detail on that, but I can tell that the Presiding Officer does not want me to go into any further detail at this point. I have written a very detailed letter in response to the committee’s request for information, which I will send to the committee today. It includes in it much more detail on the member’s question.

I have been asked to make a statement regarding the action that is being taken by legal aid solicitors in the context of the 26th United Nations climate change conference of the parties—COP26—and I am happy to do so. I start by commending the work that justice organisations have undertaken in planning and preparing for a safe and secure COP26 event. That proportionate and effective approach is continuing now that the summit has started.

I note and share the concerns that have been expressed regarding the decision that was taken by many criminal defence solicitors not to participate in custody courts that are taking place during the period of the COP26 summit. That action withdraws support for persons who are in custody due to criminal activity that is associated with the summit, as well as for existing clients of those solicitors who are in custody for activity that is unrelated to COP26. Duty officers are unable to act for clients with named solicitors unless they are expressly asked to do so by that defendant.

The Scottish Solicitors Bar Association confirmed on Saturday 30 October, immediately before the start of the conference, that many local solicitors would withdraw with immediate effect from the general legal aid duty scheme for non-COP26 cases during the period of the conference and potentially beyond it. That was done without providing the normal notice period to withdraw from the existing legal aid duty scheme.

I turn first to the issue around COP26 custody arrangements. Proposals for a generous package of enhanced legal aid fees for COP26-related cases were developed by a working group comprising representatives of the solicitor profession, the Law Society of Scotland and the Scottish Legal Aid Board. The group submitted proposals for the enhanced funding package, which was then approved by the Scottish ministers without amendment. Subsequent proposals were also put forward for enhanced fees for non-COP26 cases in weekend courts, and those were also approved.

Based on the estimated additional levels of custody cases that have been identified by Police Scotland, the total potential value of the enhanced package to the profession in legal aid fees over the period of the conference was up to £3.5 million. United Kingdom Government representatives subsequently confirmed that the UK Government would cover costs only up to a maximum of around half of that, which was an estimate of about £1.8 million. However, the Scottish Government has committed to underwrite the difference.

Collaborative efforts were made in advance to provide and agree a generous enhanced package of legal aid fees to support the work of solicitors during COP26. At no time during those discussions was there any indication that there was an intention to boycott the summit. It is therefore disappointing and concerning that a large number of local solicitors indicated immediately before the summit that they would boycott the enhanced legal aid fees package. The decision was also taken to boycott weekend courts, including withdrawing support for solicitors’ own clients. I have seen some accounts on social media that solicitors were expected to work in those courts without additional payment, which is not an accurate reflection of the position.

We now face a situation in which, in addition to boycotting COP26 business and weekend custody courts, the profession will boycott court duty for those courts that would continue to operate business as usual during the summit. For those courts, solicitors have indicated that they will attend for their own clients.

I share the concerns about the impact of the action on defendants and on the smooth running of the courts during this time. Police Scotland has confirmed that it will take a proportionate approach to policing during the conference, including in response to protests, and will ensure that the rights to peaceful assembly and protest are met. However, it is acknowledged that there may be an increase in arrests and associated cases in police custody and custody courts during the conference.

Those courts will be supported by the solicitors who have agreed to continue to support the duty schemes. The Public Defence Solicitors Office and the solicitor contact line will provide support for police station duty. Based on current estimates of the worst-case scenario, we are reassured that the necessary mitigating measures are in place for the courts that are dealing with COP26-related cases during the summit. I am very grateful to those who are supporting that work and making a contribution to demonstrating Scotland’s ability to host such an important international gathering of delegates and protesters.

I turn to the impact on day-to-day business. Again, I am grateful to the justice partners who have worked together to agree and implement mitigation actions that aim to minimise the impact on defendants and on the smooth running of the courts. In particular, early identification of those who need representation, greater use of technology for virtual representation and flexible court scheduling are among the tools that will be used. Continuous monitoring will be undertaken so that any necessary adjustments can be made. However, the greatest risk is to those who may appear unrepresented, many of whom will have vulnerabilities associated with poor mental health or addictions. We will do everything that we can to reduce that risk.

Correspondence that has been received from local bar associations indicates that the main reasons for the boycott did not relate specifically to the enhanced fee package approved and made available to solicitors for COP26; instead, the reasons related to wider unhappiness within the profession about legal aid fees in general and the sustainability of the legal profession. That is despite significant investment being made in the legal profession. I agreed a general uplift of 3 per cent for all legal aid fees in 2019-20. In December 2020, we confirmed a further 5 per cent increase across all legal aid fees for 2021-22 and committed to a further 5 per cent increase on top of that in 2022-23.

In addition, we acknowledged the pressures that are faced by the legal profession as a consequence of the Covid-19 pandemic and agreed with the profession the allocation of £9 million in direct funding to legal aid solicitors this year. The first element of that funding was directed to those firms that demonstrated a loss of income during the pandemic, with the remainder allocated to all eligible firms to support the legal aid-funded profession’s participation in the Covid-19 justice recover, renew and transform programme. Further to that, £1 million has been allocated over two years to support firms with the costs of hiring new trainees to participate in legal aid-funded work. That is a good example of us working with the profession on practical measures to strengthen capacity.

In response to the decisions on boycotting, I wrote to the presidents of the Law Society of Scotland and the SSBA on 22 October setting out my concerns and my willingness to continue to engage with the profession ahead of the conference. I met both presidents on Monday 25 October, and the Cabinet Secretary for Justice and Veterans and I met the Law Society president on Tuesday 26 October. The presidents confirmed that, even if further adjustments were made to the specific COP26 package, that would not guarantee the participation of local bar associations. That is concerning, and we must continue to focus on how we can work together in future to try to avoid similar situations.

The request from the profession is for an immediate substantial and permanent increase in all legal aid fees. That is in addition to the already agreed 13.6 per cent over three years. We have asked the Law Society and the SSBA to quantify in detail the scale of that ask. By way of illustration, each 1 per cent increase in legal aid fees equates to around £1.25 million a year. We need clarity from the profession not just on the scale of the ask but on how that investment, on top of the resources that we have already committed, will deliver genuinely improved capacity and support for those who rely on our justice systems.

In our programme for government, we committed to engage with legal professionals and other stakeholders to review the legal aid system, and to introduce a legal aid reform bill in this session of Parliament to ensure that the system is flexible and easy to access and meets the needs of those who use it. In October, we published a public consultation on reform of legal services regulation. We value the work that legal aid practitioners and the wider legal profession undertake, and we remain committed to working with them to consider what changes may be required to the statutory framework to protect consumer interests and promote a flourishing legal sector.

Finally, I know that there have been reports of an incident at Edinburgh sheriff court last weekend, which has been the subject of debate on social media. I welcomed the joint statement that was released by the Scottish Courts and Tribunals Service and the Edinburgh Bar Association yesterday. The running of the courts and the day-to-day operation of court buildings are a matter for the senior judiciary and the Scottish Courts and Tribunal Service, and it would not be appropriate for me to comment, beyond directing members to the correspondence that has already been published.

In summary, I share concerns about the current removal of services by legal aid solicitors. Our priority is to ensure the safety and security of the COP26 event, while ensuring that people are able to lawfully express their views and have their rights upheld, and to ensure that those who require legal advice receive it. Justice agencies are prepared, including for any criminal activity that arises during the event. I remain committed to working with the profession on the future sustainability of legal aid and meeting the needs of those who rely on it to uphold their rights.

I can. We have been working to ensure that those who need that legal assistance will receive it. The courts will be supported by a number of mitigations. Solicitors who have agreed to continue in the duty schemes will, of course, be available; we also have the Public Defence Solicitors Office, and the solicitor contact line will support police station duty. We will be implementing early identification of those who need representation, in addition to greater use of technology for virtual representation and flexible court scheduling. I reassure the member that we will monitor that, and we will make any necessary adjustments as they are required.

I conclude by saying that I am so grateful to those who are supporting that work.

I am not sure that the member was here throughout my statement, when I explained all the work that has gone on behind the scenes on the part of the cabinet secretary, officials and me. The cabinet secretary and I met legal representatives twice last week, as part of our regular engagement with the legal profession to try to resolve issues in good faith.

As I said in my statement, I have accepted all the Law Society’s proposals on the COP26 duty and the weekend custody courts. We continue to offer engagement and I have written back to the profession to clarify that and to ask for engagement to continue so that we can, I hope, reach a solution.

In our programme for government, we committed to engage with legal professionals and other stakeholders to review the legal aid system and introduce a legal aid reform bill in this parliamentary session to ensure that the system is flexible and easy to access and that it meets the needs of those who use it.

We consulted on that reform in 2019 and stated our willingness to take forward the recommendations that will deliver that enhanced system of legal aid in Scotland. We also stated our commitment to retain a demand-led fund, with the wide scope of action that we have at the moment.

Particular consideration will be given to how more targeted and planned interventions can support user need, align with the Government priorities that we identified and assist in legal aid being rightly recognised as an invaluable public service.

Thank you, convener, and good morning to the committee.

The Tribunals (Scotland) Act 2014 created a simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions.

The 2014 act created a new two-tier structure for tribunals in Scotland—a First-tier Tribunal for initial appeal decisions and an Upper Tribunal primarily for appeals from the First-tier Tribunal. The tribunals are known collectively as the Scottish tribunals.

Section 20(1) of the 2014 act provides that

“The First-tier Tribunal is to be organised into a number of chambers,”

having regard, among other things, to subject matter.

There are five existing chambers in the First-tier Tribunal. The regulation is a technical one that makes provision for a new sixth chamber, to be known as the First-tier Tribunal for Scotland local taxation chamber, which will hear appeals that are currently dealt with by valuation appeals committees and the council tax reduction review panel.

The regulations form part of a broader suite of instruments that will, in due course, be required to enable the transfer of the valuation appeals committees and the council tax reduction review panel to the First-tier Tribunal.

I understand that the Delegated Powers and Law Reform Committee considered the regulations on 5 October and that it did not raise any points, but I would be happy to answer any questions that the committee may have.