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Chamber and committees

Meeting date: Tuesday, April 26, 2022

Meeting of the Parliament (Hybrid) 26 April 2022 [Draft]

Agenda: Time for Reflection, Topical Question Time, Low-income Families (Access to School Education), British Sign Language Bill, Business Motion, Decision Time, MS Awareness Week 2022


Topical Question Time

The next item of business is topical question time. There is a lot of interest this afternoon. In order to get in as many members as possible, I would welcome succinct questions and answers to match.

Ferguson Marine Ferry Contract (Documentation)



To ask the Scottish Government what its position is on the potential impact on Scottish Government standard due diligence of reports of lost documentation related to the Ferguson Marine ferry contract. (S6T-00664)

We have been absolutely transparent about the decision-making process and the information that informed the decisions. There is a clear audit trail of key decisions and the basis on which they were taken. In relation to the documents mentioned in the Audit Scotland report, a thorough search has been conducted and no ministerial response to the submission of 8 October 2015 has been located. As is outlined in the report, we have committed to a formal review following the completion of the vessels project.

I do not know quite how to respond to that answer. On Thursday, the Auditor General for Scotland expressed frustration at the lack of records of ministerial decisions regarding the waiving of refund guarantees that would normally be expected in a contract such as that for the ferries. Written authority for ministers should be required for that, but Audit Scotland could obtain no record of it.

The Auditor General describes that as frustrating. He is being charitable. It is at best negligent and incompetent; at worst, it could be unlawful, breaching the Public Finance and Accountability (Scotland) Act 2000 and/or the Freedom of Information (Scotland) Act 2002. Will the minister commission an investigation into the matter to establish the facts and, critically, whether the law has been broken?

The Scottish Government and Transport Scotland, along with Caledonian Maritime Assets Ltd and Ferguson Marine Port Glasgow, have co-operated fully with Audit Scotland and the former Rural Economy and Connectivity Committee’s inquiry. That included the provision of documentation, the provision of a detailed written statement, interviews with key personnel and attendance at RECC by officials and Scottish ministers. As I said, we have also committed to undertake a review on completion of the two vessels.

The problem is that, for transparency, the documents need to be there, and they are not. The law requires it.

Sadly, it is an isolated incident neither in the sorry saga of the two ferries nor in other Scottish Government interventions. It follows a pattern of opaque decision making and roughshod process that can be seen elsewhere, such as the environmental indemnities for Liberty Steel that were found to have breached state aid laws. There is also the Lochaber smelter, where hundreds of millions of pounds of taxpayers’ money was put at risk through secret guarantees. That decision emerged only after a two-year battle between journalists and the Scottish Government over freedom of information requests on which the Scottish Government knew its decisions would be overturned on appeal. The ferries were launched in time for the Scottish National Party’s conference—fake windows and all—before they were ready and to a timetable that cost taxpayers more.

The pattern is of due process that is deficient, lacking transparency and distorted to suit political ends rather than the public interest. We could call it many things—negligent, incompetent or deficient—but, when the decisions have all been wilful and deliberate, the word that I would use is “corrupt”. It is perhaps not corruption for individual gain, but it is corruption of the process for party-political gains that are contrary to the public interest. If that is not the word that the minister would use, what word would he use?

As I indicated, a thorough search for the documents was undertaken and no ministerial response to the submission was located. As I also indicated, and as is outlined in the Audit Scotland report, we have committed to a formal review following the completion of the vessels project.

It is important to recognise—which Daniel Johnson and other members fail to do—that, seven years after those events, Ferguson’s is still employing hundreds of people, contributing to the local economy and keeping—[Interruption.] I know that some members do not think that Scotland’s industrial base is important, but perhaps they should be quiet for a minute and listen to this answer, because it is important to the people of Scotland and the people of Inverclyde that the yard still employs hundreds of people and keeps commercial shipbuilding on the Clyde alive. The same is true in Lochaber, where the site that was referred to is employing an increasing number of people and is successfully delivering products into the Scottish market and further afield.

What is important is that we support Scottish industry. The Government makes no apology for being committed to doing that, ensuring that we develop and ensuring that hundreds of people are still employed in those highly skilled, highly paid jobs, which would not be the case if the Labour Party or the Conservatives had been making decisions on the future of Scottish industry.

We have a number of supplementary questions. I hope that the questions and answers will be listened to respectfully.

Judging by some of Daniel Johnson’s comments, he would probably rather not have the yard there, not have the jobs and not secure the yard’s future. There was a thorough parliamentary inquiry in the previous parliamentary session and there has now been scrutiny by Audit Scotland, both of which have generated significant reports and recommendations. Will the minister set out what the Scottish Government did to contribute to and co-operate with both those inquiries, including the provision of relevant information?

Stuart McMillan makes his points well. As I said, the Scottish Government, Transport Scotland, CMAL and Ferguson Marine Port Glasgow all co-operated fully with Audit Scotland and with the Rural Economy and Connectivity Committee’s inquiry, which included the provision of documentation and of a detailed written statement, as well as interviews with key personnel and attendance at REC Committee meetings by officials and ministers. As I also said, we have committed to undertake a review on completion of the two vessels.

When will that be?

Mr Lumsden, if you have a question to ask, press your request-to-speak button and I might call you.

This is institutional corruption on a grand scale. Ivan McKee is showing breathtaking arrogance if he thinks that there has been any transparency in the matter. This is the SNP’s secret Scotland at its worst.

I will quote another law. The Public Records (Scotland) Act 2011 requires the Scottish Government to have a records management plan and to

“identify ... the individual who is responsible for management of”

a department’s

“public records”.

In this case, who was that person? I want the name. Why did they not ensure that a record was kept of the decision-making process?

As I said, we have been transparent, published the documents that are available, complied with the inquiries that have taken place and committed to undertake a review on completion of the vessels, as the Audit Scotland report outlined. We are being transparent and open, and we are producing the documents that are available and ensuring that they are in the public domain. We have complied with the inquiries that have taken place and we have committed to undertaking a review on completion of the two vessels.

I go back to a point that I made earlier. At the core of this is the Scottish Government’s absolute commitment to supporting Scottish industry and jobs and continuing to do so, whereas the Opposition parties are clearly not concerned at all about the people who work on such sites or about supporting their employment.

On a point of order, Presiding Officer. What is the point of members coming to the chamber and asking straight questions when the minister completely ignores the questions and answers something else?

I think that Mr Simpson will know by this stage that that is not a point of order. The content of ministerial responses is not the Presiding Officer’s responsibility.

We can all agree that transparency and accountability are key in government but, to be frank, I do not think that the Scottish Government needs lessons in that from any Opposition members. We should not lose sight of why the Government stepped in to save Scotland’s last remaining commercial shipyard and of the importance of the work that the shipyard is undertaking. Will the minister provide an update on progress?

The yard today announced the completion of a major milestone in the build of one of the dual-fuel ferries. In a major engineering operation, hull 802 was fitted with its large bow unit, which, at 100 tonnes, is the largest single unit to be added to the ferry’s steel hull. The final units will be lifted into place this week, completing the main hull and steelwork and making way for the installation of the ferry’s aluminium superstructure, which involves all the units that sit above the main deck. Good progress is being made in progressing the construction of the ferries.

Since the Government nationalised Ferguson’s, the yard has delivered three smaller vessels. By nationalising the shipyard, we have kept it open, kept people in work and rescued more than 300 jobs. Since October 2021, Ferguson Marine has consistently employed more than 350 staff. It has had 42 apprentices working and learning there, and a further 15 will be taken on this summer.

The yard has been in a period of turnaround since 2019, and the past two years have been challenging—the pandemic has exacerbated that. However, it is clear that progress is being made. Three smaller vessels have been delivered and a new chief executive officer has been appointed, who is already making a difference and implementing a transformation plan. The incomes of hundreds of people and families have been maintained, including those of lots of independent small businesses that are contractors. Two new ferries for the islands are being built, and a milestone in their construction was reached today. It is no wonder that the Opposition never wants to talk about or welcome the Government’s industrial strategy and how we are protecting jobs and industry across Scotland.

It is clear that there have been multiple failings relating to the contract and that islanders—particularly islanders on Arran this week—are paying the price. Does the minister not accept that any review cannot be delayed and that there must be a full investigation, conducted independently of ministers?

We are making significant progress on delivery of the vessels, which is what matters to people on the islands. CalMac Ferries is engaging on a daily basis with the community on Arran and elsewhere. The Minister for Transport has joined the calls to ensure that all possible actions are being taken regarding ferry provision.

As I have said regarding what was outlined in the Audit Scotland report, the Government has committed to a formal review, following completion of the vessel project. That is a commitment that we are sticking to.

If the Government is so keen on promoting transparency, will it agree to lift the gagging orders that are in place at Ferguson Marine?

As I have made clear, the Scottish Government, Ferguson Marine, Transport Scotland and CMAL all co-operated fully with Audit Scotland and the REC Committee’s inquiry.

That is not what he asked about.

They have all co-operated fully with those inquiries—that is the fact of the matter—and we have committed to undertake a full review on completion of the two vessels.

Solicitors (Domestic Abuse Cases)

To ask the Scottish Government what its position is on the potential impact—[Interruption.] Pardon me: I am reading out Daniel Johnson’s question. It was very well asked, although it is worth asking again, given that we did not get an answer the first time. However, I will now ask question 2.

To ask the Scottish Government what its response is to the reported planned boycott of solicitors taking on summary cases brought under section 1 of the Domestic Abuse (Scotland) Act 2018, from 3 May 2022. (S6T-00659)

You just about recovered there, Mr Greene.

Section 1 of the Domestic Abuse (Scotland) Act 2018, which criminalises coercive and controlling behaviour, has been in operation for more than three years. Last year, section 1 cases accounted for around 5 per cent of all domestic abuse cases. To avoid intimidation and further traumatisation of victims, Parliament explicitly barred accused persons in those cases from representing themselves.

Legal aid funding is available for section 1 cases, as it is for other criminal cases. If a case is particularly time consuming, solicitors can apply to have additional costs met, rather than the fixed fee, through the exceptional case arrangements.

Contrary to claims that legal aid funding overall has not increased in the past 20 years, the Scottish Government has increased legal aid funding by more than 13 per cent over the past three years. In addition, a further substantial offer was made, worth 7.5 per cent for criminal legal aid and 5 per cent for civil legal aid, but it was rejected by the profession last week. An offer of mediation has been made and remains on the table.

Although we consider the legal profession’s demand for a 50 per cent increase to all fees to be unaffordable, we remain committed to engaging with the legal profession to seek a reasonable and affordable resolution to the matter.

Just to remind everyone watching, the Domestic Abuse (Scotland) Act 2018 was the Parliament’s flagship law designed to tackle the horrors of domestic abuse in Scotland. Nearly 1,600 charges were reported under section 1 of the act last year alone.

Those who are accused under section 1 cannot represent themselves in court. Therefore, if they cannot afford a solicitor themselves, the trial will inevitably be postponed, more people will be held on remand for longer—an issue that the Government says it wants to tackle—and more victims of abuse will simply wait longer for justice. That is the reality of the situation.

Given all that, can the minister tell us how many trials she thinks will now be postponed or delayed as a result of the action by solicitors? Given that the Scottish courts were short-changed by £12 million in this year’s budget, does she now regret that decision?

I have already said to the member that cases under section 1 of the 2018 act concern 5 per cent of all domestic abuse cases. As he has outlined, domestic abuse cases are obviously a priority area for the Government. We fully understand the impact that long waits can have on victims.

Prior to and throughout the Covid pandemic, priority has been given to progressing cases that involve domestic abuse. We invested £50 million last year, and a further £53 million this year, to help to tackle the unavoidable backlogs in the justice system and to provide enhanced support for victims. The latest figures from the Scottish Courts and Tribunals Service confirm that both solemn and summary sheriff courts are progressing cases above pre-Covid volumes.

We will continue to support the process of justice Covid recovery. The member is right to say that this is serious disruptive action, so we are considering as an absolute priority ways in which we can work with willing partners to address any shortfall in the availability of solicitors.

There are avoidable and unavoidable delays and court backlogs. This one is entirely avoidable. It is serious stuff—solicitors do not boycott cases just for the fun of it. They tell us the reality of what is happening in our legal profession: there are barely any criminal lawyers in Scotland who are under 30 years of age—everybody knows that; there has been a 25 per cent reduction in the number of solicitors who work on legal aid cases; and 40 firms have quit the scheme altogether in the past few years alone.

The Scottish Solicitors Bar Association says that the Government has consistently ignored the profession when it told the Government that it was in crisis. The Law Society of Scotland went even further—it said that the current

“crisis in legal aid ... threatens the very core of justice”

and risks “irreparable damage.”

Legal aid is in its worst position since devolution—everyone except the minister will admit that. Her party has been in government for 15 years now. Why is legal aid in such a mess, and what is the Government going to do to fix it?

I believe that I had an exchange on this matter just last week. I remind the member that, in Scotland, we have maintained the eligibility for and the scope of legal aid, which is not the case elsewhere in the United Kingdom where the Conservatives are in charge. We recognise the importance of legal aid providers, and we are committed to continuing to listen to them and to invest in them. Therefore, it is simply not possible to say that the Government has not been listening and responding.

Over the past two years, we have listened and responded. I will take the member through a few of the actions that the Government has taken in direct response to issues that have been raised with us by the profession. When the Covid pandemic first arose, there was obviously going to be a vast impact on businesses of all kinds, including legal aid businesses. Straight away, we changed the law to bring in an interim payment to help the cash flow of those businesses, because we recognised that that was an immediate concern.

We went on to put in place £9 million of grant funding for Covid resilience for firms whose businesses had been affected by the pandemic. In response to capacity issues that the profession raised with us, we put in place a £1 million traineeship fund, which supports trainees, 75 per cent of whom are women.

Over the past few years, we have put in place permanent, across-the-board fee rises—3 per cent in 2019, 5 per cent in 2021 and 5 per cent in April, which came on stream at the beginning of this month. That is £10 million over the past year in permanent, across-the-board rises.

We also put forward a detailed package of criminal case fee reforms, which the profession had highlighted to us as being of significant concern to it. That package was worth around £3.8 million. If we add all that together, along with the 5 per cent rise that we offered to the profession last week, I do not think that it is possible to say that the Government is not listening or responding.

As with the previous question, there is a lot of interest in asking supplementary questions. In order to get them all in, we will need brief questions and briefer responses.

What level of engagement has the Scottish Government had with the profession over the past three years?

I have regular routine meetings with the Law Society of Scotland. During the early stages of Covid lockdown, additional meetings were held, and we moved to having very regular meetings with officials and ministers to discuss the impact of Covid on solicitors. There was close working with officials on mitigating that impact, including in relation to the grant funding that I mentioned previously. The former cabinet secretary and I met representatives leading up to the £20 million package of funding. That close working has continued, with the most recent meeting with the Law Society being last Thursday.

At official and ministerial level, there have been frequent discussions as part of structured, timetabled meetings, often on a weekly basis. We also established an engagement group, so that officials and representatives from the profession could discuss all the issues that are connected to legal aid. The group met on five occasions over a six-month period last year.

Almost half a billion pounds was cut from the legal aid budgets between 2007 and 2019, so any increases since 2019 do not compensate for that scale of cuts.

As the minister knows, the dispute relates to domestic abuse cases. Does she agree that such cases can be complex and time consuming, that solicitors are raising legitimate concerns, and that the dispute undermines the Government’s strategy on violence against women and girls?

I completely agree with the member that such cases are, to use her words, “complex and time consuming”. If solicitors feel that the fixed fee does not reflect the time that they spend on DASA cases, they can apply to have the fixed fee disapplied and to have a time-and-line fee applied through exceptional case status arrangements.

I would say to the member that, prior to this action, we were not aware of solicitors raising with us specific issues about DASA cases. Had they done so, I would have certainly looked at that. That offer is still on the table: if solicitors working in that area feel that fees for such cases are not sufficient, I am more than happy to discuss that with them.

In response to the Bellamy independent review of criminal legal aid, UK Government proposals include increasing legal aid rates by 15 per cent, as recommended by the report. How does that compare with the Scottish Government’s offer to the legal profession?

As we have discussed already, other parts of the UK are facing similar challenges. The Bellamy review, which concluded recently, recommended a 15 per cent increase in fees on the basis of a comprehensive study that took place with the co-operation of the Law Society down south. We asked the Law Society of Scotland to co-operate with us on a similar analysis, so that we could take a similar evidence-based approach to fees in Scotland, but it did not believe that that process would be of material benefit.

Taking account of the previous two 5 per cent increases, and the further 7.5 per cent offer that we made recently, which has not yet been accepted, the Scottish Government’s offer to the legal profession already exceeds the amount that was recommended by the Bellamy review.

In answer to Jamie Greene, the minister gave some percentage rises to suggest that all is well. What are the actual percentages once inflation is accounted for?

I cannot remember exactly—5 per cent of domestic abuse cases. If the member is referring to the 3 per cent rise in 2019, the 5 per cent in 2021 or the 5 per cent in April this year, that amounts to £10 million of investment in the past year alone. The Government is listening to what the profession is saying. I am listening to what the profession is saying. My door is open to discuss with the profession fee rises, whether across the board or in response to specific sets of fees.

The profession’s request for a 50 per cent fee rise across the board would amount to about £60 million a year. In the light of public sector funding pressures, that is not affordable. However, we are committed to working and engaging with the profession to seek a resolution on the matter.

The Scottish Solicitors Bar Association says that the minister has ignored its views on complex and lengthy cases, on access to justice and on the number of people who are no longer doing legal aid work. Is the minister in the same meetings as the association, or is she in a parallel reality?

The only person in this chamber who is in a parallel reality at the moment is the member. He was not listening to my extensive answers detailing the very regular consultation that the Government has with representatives of the legal profession. Instead of repeating my earlier answer, I will add detail to what I think may be the last question on the issue.

Of course I accept that there is an issue. I am not at any point saying that I think that everything is okay, and I totally understand that some practitioners would like to have higher fees. Obviously, the way to take things forward is to negotiate in order to try to resolve the issue. That is what the Government is committed to doing and I have restated that position today.

It may be of interest to the member to hear that we are undertaking wider work on the legal aid system and we will bring forward a bill on legal aid in this session of Parliament. That presents an opportunity to reimagine legal aid and perhaps to put it on a more sustainable footing financially, to improve the experience for users and practitioners.

That concludes that topical question time. There will be a brief pause to allow people on the front benches to change seats before the next item of business.