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Chamber and committees

Meeting date: Wednesday, November 3, 2021

Meeting of the Parliament (Hybrid) 03 November 2021 [Draft]

Agenda: Portfolio Question Time, Legal Aid Solicitors (Action), Early Learning and Childcare, Police, Crime, Sentencing and Courts Bill, Business Motion, Parliamentary Bureau Motions, Decision Time, Prostitution Law Reform


Contents


Legal Aid Solicitors (Action)

The next item of business is a statement by Ash Regan on action by legal aid solicitors. The minister will take questions at the end of her statement, so there should be no interventions or interruptions.

14:53  

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 thank the minister for sending her statement in advance. Sadly, the statement will go down like a bag of sick with Scotland’s criminal defence fraternity on listening to it. It pins the blame for the current dispute solely on defence lawyers and accepts no responsibility whatsoever for the clearly deteriorating relations between our legal sector and the Scottish National Party Government.

The incident at Edinburgh sheriff court this weekend prompted serious concerns. I am, of course, pleased that constructive talks have been held since then, but the incident called into question the fundamental right of the accused to confidential legal advice, with which the state, the police and the courts can never interfere.

Scotland’s solicitors are the vital cogs in our wheel of justice. They work with nothing but the highest level of professionalism and do not take disruptive action for no reason or for the fun of it. With a backlog of more than 50,000 court cases, on-going disputes over legal aid—chronically underfunded for many years—and recruitment problems in the sector, it is clear to everyone except the minister that Scotland faces an immediate crisis in its legal sector.

Why have only £2 million of the promised £9 million of the legal aid resilience fund actually been paid to firms, given that £9 million is exactly the sort of money that they need to survive?

After today’s attack on our hard-working solicitors, does the minister agree with the president of the Glasgow Bar Association, who said that

“defence practitioners are always an afterthought”

of the Government? I presume that she does not.

Before I call the minister to reply, I should have asked members who wish to pose a question on the statement to press their request-to-speak button. There will be around 20 minutes for the question-and-answer session.

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.

I thank the minister for advance sight of her statement and for agreeing to give a statement today. The Scottish Labour Party supports the campaign by criminal defence lawyers for an improvement in the criminal legal aid rates, which have faced real-term cuts over many years. The minister will be aware of the anger in the profession.

The Criminal Justice Committee has been hearing evidence about the crisis in the criminal defence sector, with more experienced criminal defence agents moving to other parts of the profession at a time of a huge increase in the number of criminal cases because of the backlog created by the pandemic.

There are more than 25 per cent fewer firms registered for criminal legal aid now than there were 10 years ago. During the pandemic, a further 10 per cent fewer firms claimed legal aid fees, although I appreciate what the minister has said about the unusual circumstances, and that that decrease might be partly because of cases not proceeding. However, the minister will be aware that there has been a cut of almost £0.5 billion in the legal aid budget since 2007. Although she is correct to say that there have been some recent announcements of increases, they do not in any way compensate.

Does the minister accept that we need to recruit more lawyers to do criminal legal aid work, given the thousands of outstanding trials? Will she come forward with a plan that recognises that we need immediate long-term increases in the payments for some types of criminal legal aid case?

I am sure that the member accepts that there are obviously constraints on public finances due to a decade of austerity from Westminster. Despite those constraints, Scottish ministers have maintained the resourcing of legal aid in Scotland and we have not cut its availability. It is a demand-led budget and all who are eligible will continue to benefit from it. I will correct the record if I am wrong, but I believe that 75 per cent of the population are eligible for legal aid in Scotland. Scotland is one of the leading jurisdictions for legal aid and we continue to invest in it.

I accept that there is discontent in the profession; I believe that I addressed that in my statement. I and the cabinet secretary have spent a considerable amount of time engaging with representatives of the legal profession in what we consider to be good faith, to listen to what the profession has to say and to work constructively to address its concerns.

Some of those concerns are obviously about fee levels, so I will repeat what I said about the money that has been invested recently. In 2019, there was a 3 per cent across-the-board rise in fees, in 2020 it was 5 per cent, and we have committed to a further 5 per cent next year.

I take on board the tone with which the member asked the question about the sustainability of legal aid into the future. She will no doubt be aware of the Martyn Evans review, and we also set up the payment advisory panel to grapple with the questions of how we modernise legal aid, make it sustainable, address capacity issues and so on. She will also know that, because of the Covid backlog, we have the recover, renew and transform programme, although I do not have time to go into that now.

We will also introduce a legal aid reform bill in the current parliamentary session, with a view to improving access to justice, which I know will be of interest to the member, achieving better overall working of the justice system, making it easier for consumers to access and use the system, and ensuring sustainability, which is key.

Before I call the next member, I have allowed a certain degree of latitude for front-bench exchanges, but if we are to have any hope of getting everybody in who wishes to ask a question, I ask for succinct questions and answers.

I call Audrey Nicoll, to be followed by Russell Findlay.

I thank the minister for her statement and the letter sent to the Law Society of Scotland and the Scottish Solicitors Bar Association, which underline the extent of the engagement that the Scottish Government has had with the sector.

Will the minister outline what constituted the enhanced benefits package that is now the subject of disagreement among legal aid solicitors?

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.

The boycotts will have an impact on witnesses and victims. I note that the minister’s statement makes no mention of victims. What consultation has the minister had with victims groups?

Russell Findlay has asked a very fair question. My officials are working with all our justice partners to ensure that people who need legal advice can receive it and that disruption to the courts is minimal. I again take the opportunity to thank those partners for their hard work over the weekend.

I am assured that there is sufficient cover to provide legal advice to anyone who is in custody who requires it. That capacity will be monitored at all times. Justice partners, including duty solicitors and the judiciary, are primed to assist those individuals in any way they can.

Following on from the previous question, what measures are in place to support vulnerable defendants and witnesses during Covid-19 and the current action of legal aid solicitors?

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.

I acknowledge that some progress has been made since 2019, but does the minister accept that we have reached a crisis point in the legal aid profession? We are losing experienced lawyers from the profession, and unfortunately the situation will be exacerbated by the huge backlog in cases, long hours, poor pay and a group of lawyers who feel badly let down and badly treated compared to other Government lawyers. Does the minister agree that there is a desperate need to resolve the situation once and for all?

There is a need to resolve the situation, which we do not want to have going forward. As I said in my response to the member’s colleague, I have spent some considerable time trying to engage with the profession. There are some quite disparate asks from different parts of the profession, so it is time to cut through that and work with the profession in order to address the issue.

There are other packages of reform on the table that may be of interest to the member and the profession. We have criminal fee reforms legislation that has been ready to be laid since January. That legislation did not proceed due to concerns from the profession about cost neutrality.

I take this opportunity to say that the reforms are not cost neutral. A detailed paper has been shared with representatives of the legal profession to clarify that the original proposals have been updated. They include the 3 per cent increase for all legal aid fees and the 5 per cent increase, and provision has been made to reinstate waiting time, which I know was an issue of interest. The total increase delivered in that package is 16.6 per cent, so it would be financially beneficial for the profession to look at the reforms and for us to progress them.

I am willing to listen to and consider any proposal that the profession makes to me. I make that offer in good faith.

I welcome the minister’s statement and I share her worry for those left unrepresented. The minister probably alluded to this in her answer to Pauline McNeill, but could she give us an indication of the Government’s vision for legal aid reform?

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.

I thank the minister for advance sight of her statement.

Access to justice relies on access to solicitors, which is increasingly challenging in parts of the country, notably the islands. With that in mind, will the minister look again at support for travel, which the Government cut in 2011? Will she agree to meet lawyers in my constituency to discuss that and wider concern about the potential for legal aid deserts to develop in some parts of the country?

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.

The minister said that, in correspondence, local bar associations said that the issue has more to do with wider unhappiness about legal aid fees in general. That was an issue 20 years ago, when I was in practice as a civil legal aid practitioner.

With reference to the proposed legal aid reform bill, may I make a plea for my former colleagues? Although I appreciate that the bulk of the bill will be about criminal legal aid and situations in which there is the risk of loss of liberty and a criminal record, the majority of disputes are civil disputes. I make a plea to the minister to consider the balance when it comes to civil legal aid.

I take that very much on board. As part of the portfolio that the cabinet secretary and I share, I work on the civil side, so the issue is not lost on me.

Where the demand for legal aid has reduced, the Scottish Government has committed to work with the legal profession to bring forward reforms, including in a legal aid reform bill, during this session of the Parliament. That does not preclude more immediate adjustments to legal aid regulations, where they are justified. I think that the exchanges that I have had so far show the Government’s willingness to work with the profession and listen to any proposal that comes forward. I will certainly bear in mind the member’s point when we introduce the bill.

Nothing underlines the Government’s—indeed, the minister’s—chronically poor relationship with Scotland’s criminal defence lawyers more than the response, on the Law Society’s website, to the minister’s letter of 22 October. The letter was described as “tone deaf”, “whining”, “a slap in the face” and “a patronising, condescending disgrace”—and those are just some of the comments.

The Lord Advocate said this morning that the huge court backlog will take years to address, with the biggest impact being on women and girls who are victims of serious assault and abuse. Is it not time for the Scottish Government to work with the legal sector to develop a sustainable criminal defence workforce strategy?

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.

That defendants could be in a situation in which they are without representation is appalling. A foundation of our justice system must be the right to representation when needed.

The current situation is the consequence of long-term underfunding and insufficient support of our legal aid system. I express solidarity with solicitors who are taking action because of that and I thank them for the vital work that they have done, often in difficult circumstances.

The minister said that she and her officials—

Please may we have a question, Ms Chapman? We are nearly out of time.

Yes, Presiding Officer.

The minister said that she and her officials would do everything possible to reduce the risk of defendants appearing without representation, especially if they have vulnerabilities associated with mental health and addiction. Can she set out what those provisions and actions will entail, particularly over the next 10 days?

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.

As well as the legal reform bill, what other steps are being taken to ensure the viability of legal aid in the long term?

Secondary legislation was made in the summer in order to work with the profession on that. Regarding the long term, I have already made commitments in the chamber that we intend to retain the scope of legal aid and to ensure that it continues to have a demand-led budget.

The legal aid reform bill will be introduced in the lifetime of this parliamentary session. Through that bill, we want to make the system easier for users; we want to streamline the justice system so that it works better for everyone; and we want to address issues of capacity and sustainability. Part of that will, of course, involve funding. I assure the member that we are looking at and alive to those issues. I am sure that she will be interested in the legal aid reform bill when it comes to the Parliament.

On a point of order, Presiding Officer. Thank you for your forbearance. This is relevant to today’s statement.

In the middle of today’s statement, after the lead Opposition spokespeople had sat down, members of the Criminal Justice Committee received a six-page letter, with detail relating to the content of the statement.

First, it would have been more helpful if that letter had been distributed before the statement, so that members had the opportunity to ask the minister about the content therein. Such an opportunity to review the content of the letter in advance of the statement would have afforded respect not just to members of the committee but to the entire Parliament and the wider public.

Secondly, the letter makes erroneous assertions in its opening paragraphs, on which we might have been able to challenge the minister.

I seek your advice, Presiding Officer, on how we could further guide and direct Government ministers on standards and processes, as the Parliament would deem it more acceptable to respect the amount of information that members have in advance of statements—not during or after them—and can I ask if the minister would like to respond as to whether the error today was a tardy and erroneous one or an intentional one?

I will respond to the point of order that the member has just made. The chair is obviously not responsible for the timing of ministerial letters to members. The member has asked what opportunities might be available to consider the issues that are raised in the letter, which I have not seen. Many opportunities will be open to the member, and indeed other members, to raise the issues directly with the minister through the usual channels. I hope that the member feels that that will be something that he would wish to look into and take advantage of.

We will now move on to the next item of business. I remind members of the Covid-related measures that are in place. Face coverings should be worn when moving around the chamber and across the Holyrood campus.