Meeting of the Parliament

Meeting date: Wednesday, December 20, 2017

Official Report 926KB pdf

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Parliamentary Bureau Motions

The next item of business is consideration of Parliamentary Bureau motions. I ask Joe FitzPatrick to move, on behalf of the Parliamentary Bureau, motion S5M-09682, on approval of a Scottish statutory instrument, and motion S5M-09683, on designation of a lead committee.

Motions moved,

That the Parliament agrees that the Police Investigations and Review Commissioner (Application and Modification of the Criminal Justice (Scotland) Act 2016) Order 2017 [draft] be approved.

That the Parliament agrees that the Economy, Jobs and Fair Work Committee be designated as the lead committee in consideration of the legislative consent memorandum in relation to the Financial Guidance and Claims Bill (UK Legislation).—[Joe FitzPatrick]

I ask Joe FitzPatrick to move Parliamentary Bureau motion S5M-09681, on approval of the draft Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017.

Motion moved,

That the Parliament agrees that the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] be approved.—[Joe FitzPatrick]

16:36  

I rise to speak against the draft Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017. The Parliament is being asked to vote on the regulations with undue and unnecessary haste, given that there is time before part 1 of the Criminal Justice (Scotland) Act 2016, which contains provisions that relate to the police station duty scheme, comes into force on 25 January 2018.

As part of its consideration of this Scottish statutory instrument, the Justice Committee received a number of written submissions from the legal profession that expressed grave concern about the proposed changes that the SSI would make. At the time, it was suggested that a reasonable course of action would be to allow the organisations to put their points to the committee in a formal evidence session, but the minister refused to withdraw the SSI to allow that to happen. The concerns include but are not limited to the following.

The Dunfermline District Society of Solicitors said that there would be increased demand

“in terms of police station work and attendances”,

under a fee structure that

“is not fit for purpose”.

The society said that there is

“a significant issue in terms of sex and equality discrimination”

against solicitors, which will lead to greater recruitment of those who do not have children, are unlikely to do so and do not have caring responsibilities. It also said that a change in employment contracts will be required, and concluded:

“if the regulations are laid in the present form then no firm will participate in the Police Duty Scheme.”

The Edinburgh Bar Association said that the approach will increase the number of people who are eligible for legal advice by 163,360, and said that, due to the downsizing of many legal firms,

“it is unknown whether such firms will actually have the capacity to provide the level of service required.”

The association also expressed concern about the potential impact on workload of the regulations

“at a time when rates of pay are at an historic low”

and concluded:

“the Edinburgh Bar Association is now wholly unable to recommend to its members that they participate in the provision of police station advice.”

The Society of Solicitors in the Supreme Courts of Scotland expressed concern that the unsociable hours might offend the article 8 right to private and family life, and said:

“This is particularly the case where solicitors have child care responsibilities or responsibilities to family members that are elderly or disabled.”

It has recently been reported that solicitors have confirmed that they are withdrawing from the police station duty scheme.

There is parliamentary time at the beginning of January to take further evidence on this SSI. There is no need to rush into something about which such significant doubts have been expressed. Therefore, even at this late stage, I call on the minister to withdraw the SSI to ensure that those concerns are given a fair hearing. Failing that, I ask members to think very carefully before they vote tonight. If they agree that the sensible course of action is a short delay until January, when there will be parliamentary time to resolve the matter, they should vote against approving the draft Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 at decision time.

16:40  

I draw members’ attention to my entry in the register of interests, where they will find that I am a member of the Law Society of Scotland and that I hold a current practising certificate, albeit that I do not currently practise.

The draft Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 are the last in a series of regulations that implement part 1 of the Criminal Justice (Scotland) Act 2016. They provide a significant improvement on the current fee levels, including an increase to the block fee; an enhanced antisocial hours premium; an extension of the antisocial hours premium to travel time; a flat fee for providing telephone advice, no matter how short; and an easy process for claiming fees, which is important.

The current arrangements for providing advice to those who are held in police custody are delivered by a combination of solicitors who are employed by the Scottish Legal Aid Board and private practitioners. The arrangements are entirely voluntary for private practitioners, who can choose to participate or not to participate. Even when a firm is on duty, on average in around one week every six to 18 months, they are not obliged to attend. Therefore, the system is flexible to the needs and availability of solicitors at any given time, and employed solicitors provide cover for the smooth running of the scheme. That flexibility will extend to the new arrangements.

The rights to legal advice in a police station are twofold: there is the right to a consultation, which can be via telephone; and there is the right to have a solicitor present at an interview. Therefore, not all legal advice in a police station is provided in person.

As far as travel time is concerned—this is, of course, of particular relevance to those who operate in rural areas—the antisocial hours premium can be added and additional payment is possible for travel time for journeys over two hours.

The Scottish Government and Scottish Legal Aid Board officials have sought to provide reassurance on the requirements of the new duty scheme and the improved fee package and flexibilities, and there were very few responses to the consultation on the regulations. Notwithstanding that, some solicitors have elected to withdraw from the duty scheme, as they feel that they cannot meet the potential additional demands that come with the increased rights of citizens who are held in police custody. That is the right of those solicitors.

However, it is important to stress that the rights of those who are held in police stations will be upheld both in the short term and when the new scheme is implemented through the continued use of the combination of private and employed solicitors. Indeed, the provision of police station advice is under constant scrutiny and review by the Scottish Legal Aid Board, which works closely with Police Scotland to ensure that sufficient cover is available across Scotland. That scrutiny will continue up to and beyond the implementation of the new arrangements from 25 January 2018.

In summary, the regulations provide an improved financial package for solicitors who provide police station advice and they make provision for legal aid in consequence of legislative changes that the Parliament has already approved. If the regulations are not agreed to, we will have to rely on the current legal aid framework, which is less attractive to solicitors in respect of both the level of fees and the arrangements for submitting a claim.

I urge members to support the regulations.

On a point of order, Presiding Officer. It is important to declare that I am a solicitor and that I hold a practising certificate with the Law Society of Scotland and the Law Society of England and Wales. I apologise to members for not having declared that at the start.

The question on the SSI will be put at decision time.