Chamber and committees

Attempts to reform succession law have been going on for about 35 years now. The situation is a bit like the one that we have just discussed, in that it is quite complicated and technical with not a lot of consensus on how we should proceed. In the last consultation, we noted a couple of areas of consensus, such as on prohibiting someone convicted of murder from acting as an executor of their victim’s estate and reviewing the small estate limits. We are definitely considering such reforms and will perhaps progress them ahead of more fundamental reform, given the lack of consensus on the broader terms of that kind of reform.

We are doing further research on public attitudes to the matter, and perhaps Denise Swanson can say a little bit more about that. I cannot really give you a timescale, because we are still trying to find a legislative vehicle to take it forward, but that is where we are.

My understanding is that we do not have a date for when that convention might come in. We are in unknown territory just now.

First, I will give a bit of context around legal aid. We hear quite a lot about the problems with legal aid, so I want, for the committee’s benefit, to set out a couple of the positives about legal aid in Scotland. The committee might not be aware that 72 per cent of the population of Scotland are eligible for legal aid. We are a leading jurisdiction on legal aid—we are one of only two jurisdictions that have a completely uncapped fund that is entirely demand led; only Scotland and the Netherlands operate such a system. The system is working for the people of Scotland, but we want to modernise it and provide a bit more flexibility. As we discussed earlier, we want to be able to direct aid more than we have previously.

I suppose that there is a way of thinking about legal aid that is more like how we think about other public services, because it is a kind of public service. Should we try to reframe legal aid in that way and, potentially, put the user more at the centre of how it is accessed and how the system is set up in the future?

We have talked about the timings; Denise Swanson will talk a bit about themes that came through the consultation. However, I believe that, in general, people are looking for a user-centred system that is easier to access and use.

Last year, we published what I think was a first: a consultation on what sort of approach we should take to tackle prostitution in Scotland, with an emphasis on challenging men’s demand for prostitution and with the aim of working to reduce the harms and supporting women to exit, should they wish to do so. We received about 4,000 consultation responses, which is quite a lot. Some were from organisations and some were from individuals.

The responses have been published, so members of the committee are free to have a look at them. It would be fair to say that they were evenly split. We did not ask whether we should change the law on prostitution, but lots of people wrote in to say that they favoured one criminal approach or another. Lots of people supported the Nordic model, in which the seller is decriminalised and the buyer is criminalised, such as is done in Sweden and a number of other countries in Europe. There was an approximately equal level of support for what is called the decriminalisation model—the sort of thing that is being done in New Zealand.

The committee may be aware of the Scottish Government’s equally safe strategy, which sets out that commercial sexual exploitation, of which prostitution is a part, is a type of violence against women. If we want an equal society in Scotland, we need to think about how women and girls should be treated. I am particularly interested in making Scotland a hostile place for sex traffickers. I will not beat about the bush: I am really keen that we set that out, and we are very firm on that. To my mind, challenging demand for prostitution is one of the ways to do that.

I know that this is a long answer to your question. We will develop a model for Scotland that contains an element of challenging demand, but we have not got to the point where we can set out exactly what that model will be. We have quite a bit of road ahead of us, and I do not anticipate that our bill will be introduced imminently. However, there is a lot of potential to think about how we want women and girls to be treated in a modern Scotland.

I do not think that there is a need. From my recollection, the divorce laws in Scotland are quite different from those in England and Wales. If I am remembering correctly, the issue in England was that there was quite a long time to wait if one partner did not agree to a divorce. I think that it was five years—my officials can correct me if I am wrong—whereas in Scotland it is two years. We do not have plans to do anything similar, because I do not think that there is the necessity for it in Scotland.

Scotland did not vote for Brexit. It is going to be very difficult in a whole host of areas—I will stick to my own brief and not rehearse all of them now—where what we are going to end up with is far shy of the arrangements that we had previously.

The co-operation on civil justice that exists among the members of the European Union is obviously not there for us now that Brexit has gone through, so we are in a bit of uncharted territory. I will ask Neil Rennick to come in to give more background, because it is quite complicated.

As the committee might be aware, previously we had the Brussels 1a and Brussels 2a regulations; we also had the Lugano convention. We are not party to any of those anymore, which means that there is quite an issue with regard to co-operation on a number of civil justice issues across borders. That is going to make things a lot more complicated, and I think that it is going to slow things down.

On family law matters, we still have the Hague convention, and that gives us something of a fallback. However, for some civil and commercial law issues, we do not have that fallback, so the best option is for us to get back into the Lugano convention. I think that that will be the best way to protect the interests of Scottish businesses and citizens, although that protection will not be as good as it was before. That is where we are.

The European Commission has advised that the EU should not let the UK be a party to the Lugano convention; however, the EU is not the decision maker—the nation states in the European Council will make that decision. Some countries—France, in particular—have said that they are not a fan of the idea and do not want the UK to have membership, but other countries are saying that they are okay with it.

Neil Rennick can add more detail about where we are for those who have a civil law issue right now, when we are not covered.

You are right—it does seem that that work was quite a long time ago. For the benefit of the newer members, I point out that I was a minister in the justice portfolio for the last three years of the previous session of Parliament, and have been working on reform of legal aid and legal regulations for quite a few years.

As the committee will probably understand, there is quite a lot to work through. We are trying to take that at the right pace and to build consensus, because some of the proposed changes are really quite broad and would have quite a widespread impact on the sector. The right way to go about all this—I try to work in this way in general—is to try to build consensus, but that can sometimes take quite a bit of time.

I appreciate that that is not always what people want to hear. When people see that there is a need, as Pam Duncan-Glancy has outlined very well, they want to move forward to address the issue and do something, so I apologise for the fact that the work is going quite slowly.

We are now working towards legislation on legal aid, which would give us the ability to target support in ways that we have perhaps not previously been able to do. I cannot give you a timeframe for when we will publish a bill, because it is not up to me, but we are certainly working towards doing something in the current session of Parliament.

When it comes to the number of cases, the answer is that we do not know. We think that, in particular, fewer family cases have been started in court. It may be, as you have said, that those cases will come through in future but, at this point, we do not know.

On virtual business, the picture is mixed. There was a lot of positivity about remote hearings for procedural matters in particular. That positivity was right across the board, I think—civil and criminal. There has been quite a lot of engagement, and I may ask Denise Swanson or Neil Rennick to speak about that. A number of surveys have been done by the Law Society of Scotland, I think, and others; I think that the Faculty of Advocates has done some engagement with its members on what they think. The Lord President has suggested that remote hearings should certainly feature in the future in some form or other.

Adapting to Covid has presented us with opportunities. The ability to change things has been very beneficial in some cases. Previously, civil business was literally pinned to the walls of the court. That was how things used to be done. Obviously, during Covid, nobody was going into court, so the business was published online. Most people would say that such changes are more efficient and allow us to get business done.

In the criminal and the civil system, we need to look at which of those changes—what uses of technology—are working and improving the system, and at what we should and should not retain. Obviously, we want to make sure that we maintain access to justice. We do not want participants—for example, complainers—to feel that they are not able to present their evidence in the best way. We have definitely got to get that balance. One of the officials may be able to talk a little more about the research that has been done.

That is an issue—absolutely. Let us take the example of family court. If you were fleeing domestic abuse and you were not living at home, you might not have your phone and you would not have an internet connection, so you would not be in a position to sit down in front of a computer and calmly access and take part in your court proceedings. Anecdotally, we have heard about issues in that regard, so there is an option to use the telephone instead. It was not expected that everybody would have a broadband connection. Consideration was definitely given to the fact that not everybody is able to use technology to interact. As we discussed earlier, as we move forward, we want to ensure that we look at that. We are not suggesting that we will move everything to an online platform, because that would not be appropriate. However, you raise a good point.

We recently established a cross-justice working group on race data and evidence, which is working to improve the collection and reporting of race data and evidence in the justice system. I will ask Neil Rennick to give the committee a bit more background on that.