SP Paper 446 (Web Only)
JUS/S4/13/R20
20th Report, 2013 (Session 4)
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320)
Remit and membership
Remit:
To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.
Membership:
Christian Allard
Roderick Campbell
John Finnie
Christine Grahame (Convener)
Alison McInnes
Margaret Mitchell
Elaine Murray (Deputy Convener)
John Pentland
Sandra White
Committee Clerking Team:
Irene Fleming
Joanne Clinton
Ned Sharratt
Christine Lambourne
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320)
The Committee reports to the Parliament as follows—
1. At its meetings on 3, 10 and 17 December 2013 the Committee considered the following instrument—
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320).
2. The instrument was referred to the Justice Committee as lead committee and was subject to negative procedure.
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320)
The instrument
3. The instrument amends the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 as regards the fees payable to solicitors for carrying out legal aid work in relation to solemn criminal proceedings.
4. It has been argued in a recent criminal appeal case that the inflexibility of the 1989 Regulations results in defending solicitors being unable to claim payment from the legal aid fund for the work that they undertake where a case does not progress to trial. In which case, solicitors could be less prepared to take on cases or carry out work for which they possibly would not be paid. By extension, accused people whose cases raised such issues could find that they were unable to find solicitors to represent them, or that less work might be done by their solicitors to prepare for a case than by the prosecution, who would be fully remunerated for their work. Article 6 of the European Convention on Human Rights (brought into UK law through the Human Rights Act 1998) guarantees the right to a fair trial. “Inequality of arms”, where one side to a court case is able to prepare their case better than the other side, can prejudice the right to a fair trial.
5. Separately, but connected to the fact that payment under the 1989 Regulations is restricted when a case does not go to trial, recent sheriff court decisions have introduced a new interpretation of the 1989 Regulations which allows for payment to be made for a “diet” (or hearing) of deferred sentence when no trial has taken place. The Scottish Government is concerned that this may have implications for increased spending from the legal aid fund.
6. The instrument seeks to address these issues and comes into force on 8 January 2014.
7. The Law Society of Scotland, while content with the provisions so far as they address the Appeal Court’s concerns, is of the view that the cost of these new provisions should not be met by a reduction in detailed solemn fees. The Society wishes additional money to be allocated by Scottish Ministers to the Fund’s expenditure rather than to have the cost be borne by the legal profession.
Delegated Powers and Law Reform Committee consideration
8. The Delegated Powers and Law Reform (DPLR) Committee considered this instrument at its meeting on 26 November 2013 and determined that it did not need to draw the attention of the Parliament to the instrument on any grounds within its remit (59th Report 2013)1.
Justice Committee consideration
9. The Committee considered the instrument at its meeting on 3 December.2 The Committee agreed to write to the Cabinet Secretary for Justice asking for his comments on the concerns raised by the Law Society of Scotland in relation to these regulations.
10. The Committee further considered the instrument at its meeting on 10 December and noted the correspondence from the Law Society of Scotland and the Cabinet Secretary’s response.3 The Committee agreed to consider the instrument further at its next meeting. Correspondence from the Law Society of Scotland and the Cabinet Secretary is included in the Annexe to this report.
11. At its meeting on 17 December the Committee took evidence on the instrument from the Cabinet Secretary for Justice. The Committee then debated a motion to annul the instrument (S4M-08570) lodged by Alison McInnes MSP.4
12. In his opening remarks the Cabinet Secretary explained that the amending regulations clarify existing provisions, increase the flexibility of fees and restructure and extend provision for certain fees. Mr MacAskill went on to say that the amending regulations do not reduce the amount of fees that will be paid to solicitors for criminal solemn legal aid and so do not make savings to the legal aid fund.
13. Responding to a question about ECHR compliance, the Cabinet Secretary stated that the Law Society of Scotland was of the view that the regulations were not compliant but it had not provided any evidence for this. Mr MacAskill also stated that the amending regulations are not a response to a breach of any person’s ECHR rights but are a precautionary measure following the appeal court’s comment. He indicated that he was willing to consider any specific issues that the Law Society may wish to raise.
14. In response to a question, a Scottish Government official confirmed that the cost of the changes would be between a minimum of £260,000 and a maximum £380,000.
15. When questioned further about the accuracy of these figures, the Cabinet Secretary explained that they are as accurate as they can be, based on assumptions and knowledge of how the system works. Mr MacAskill further explained that it was necessary to have sufficient flexibility to address issues raised by the judiciary and that any budget underspend could be used to cross-subsidise overspend in other parts of the Scottish legal aid budget.
16. When pressed further about whether the Scottish Government’s approach would set a precedent, the Cabinet Secretary argued that legal aid had never been capped and that the amending regulations would provide the flexibility to deal with the exceptional cases without varying the totality of the funding. Mr MacAskill indicated that he was willing to investigate this issue further.
17. With reference to the Cabinet Secretary’s comment on improving transparency, officials confirmed that the amending regulations would expressly make clear that the fees also applied to research.
18. Finally, Mr MacAskill reiterated that the regulations were being amended in order to pre-empt any individual challenges relating to the appropriateness of fees in exceptional cases.
19. Alison McInnes then moved motion S4M-085705. After debate, the motion was disagreed to (by division: For 1, Against 7, Abstentions 1).
Recommendation
20. The Committee draws the points raised by Members of the Justice Committee on this instrument to the attention of the Parliament.
Annexe
WRITTEN SUBMISSION FROM THE LAW SOCIETY OF SCOTLAND
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013
I am writing regarding the above instrument laid on Wednesday 13th November.
The instrument has been laid following comments of the Appeal Court in the recent case of HMA v McCrossan (9 August 2013) HCJAC 95
(available at: http://www.scotcourts.gov.uk/opinions/2013HCJAC95.html)
The Appeal Court found that a number of aspects of the current solemn criminal legal aid fee structure for solicitors may not be wholly compliant with the European Convention on Human Rights (“ECHR”).
Existing arrangements
Under the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”) there is no provision to allow a solicitor:
o to recover the block preparation fee if the proceedings against his or her client terminate without a trial;
o to claim a prescribed fee for preparation for a plea in bar of trial; or
o to apply to have a solemn case designated as an exceptional case in order for it to be paid, as a result, detailed fees rather than a fixed payment.
An element of inequality of arms is introduced by the above exclusions: the prosecution has the whole resources of the state to develop its case but the solicitor acting for the accused is restrained by the resources allowable under the legal aid regulations. Where a solicitor undertakes work which is not funded by the regulations he or she will do so on a pro-bono basis.
Lady Paton, delivering the opinion of the Appeal Court, said:
“In our opinion, the legal aid regulations applicable in the present case (solemn criminal procedure) lack the flexibility which is necessary for compliance with the Convention.”
Proposed changes
The Scottish Government intends to address these points in the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013.
Funding the proposed changes
However, the instrument goes beyond making the regulations compliant with ECHR. It seeks to alter the detailed fees in Part 1 of the Table of Fees in Schedule 1 of the 1989 Regulations. The changes reduce certain fee levels.
Paragraphs 28 and 29 of the Policy Intention document, accompanying the draft regulations state:
“The Fund is under great financial pressure. It is therefore vital that any changes to the 1989 Regulations as regards fees for solicitors for solemn proceedings do not result in additional expenditure to the Fund. Regulation 5 of the instrument, therefore, reduces the amounts of the detailed fees in Part 1 of the Table of Fees in Schedule 1 in order to offset the costs of the other provisions in the instrument which are aimed at improving the flexibility of the feeing system and making fees for preparation and research more available. The reduction in the amounts of the fees is the equivalent of approximately 3.65% of the current fee, rounded to the nearest five pence.
The instrument as a whole is therefore expected to be cost neutral to the Fund.”
Society position
The cost of ensuring ECHR compliance
The Society recognises that the legal aid fund is under financial pressure. Over the last few years we have assisted the Scottish Government in identifying areas where savings could be made and in supporting the profession even when this meant a reduction in fee levels.
However, we do not believe it is acceptable or responsible for the Government to pass the cost of ECHR state-compliance on to the solicitor profession.
Dangerous precedent
This "offsetting of costs" is a departure from previous Government policy. The Government did not take this course of action in the provisions required as a result of the decision of Cadder v HMA (2010) UKSC 43 or the necessary amendments to the summary ABWOR regulations following the decision in McGowan v Marshall (2013) SCCR 271.
We believe that this new approach sets a dangerous precedent that could see the Government moving consistently towards ECHR non-compliance.
Responsibility of the State to ensure compliance
The Scottish Government is responsible for ensuring that legal aid legislation is compatible with ECHR. The instrument seeks to address deficiencies in the regulations that the Government should have foreseen. If the Government is accepting that it has failed in that duty it is for the Government to make and fund the necessary changes.
The instrument places the burden of the state’s responsibilities to ensure ECHR compliance on solicitors. In this regard, it is the equivalent of a discriminatory stealth tax on a section of the community to pay for the Government meeting an international obligation it owes to benefit the whole population.
Potential for further ECHR issues
The Society cannot predict whether there will be further ECHR challenges in relation to the structure of solemn fees.
However, the instrument merely shifts the problem to another area of the system. For example, if fees are reduced in one part of the system in order to subsidise fee levels in another area that creates the risk of ECHR non-compliance in the first area. In other words, if the Government reduces the fees of solicitors every time there is an ECHR breach then that creates the conditions for a subsequent ECHR breach. This will create a spiral of non-compliance.
As such, we believe that this instrument, in itself, may not be compliant with ECHR and we would urge the Committee to undertake a full ECHR assessment.
No quantification of costs provided
The instrument provides that the Scottish Legal Aid Board will have discretion in determining when the solicitor is entitled to certain fees. The true cost of the instrument is dependent on how often the Scottish Legal Aid Board grants this additional funding.
In the absence of any statistical data, the Society cannot be satisfied that the reductions in fees, which apply to every case where the relevant fee is payable, can be restricted to simply offsetting the additional costs of exceptional cases. If the true policy intent is to generate savings to the legal aid fund then that has not been made transparent.
In conclusion, the Society cannot support these regulations.
Ian Moir
Legal Aid Committee Convener
Law Society of Scotland
22 November 2013
LETTER FROM THE CABINET SECRETARY FOR JUSTICE
Criminal Legal Aid (Scotland) Fees Amendment Regulations 2013
The Law Society of Scotland wrote to the Justice Committee on 22 November outlining concerns regarding the above Regulations which were laid on 13 November. The Committee has invited views from the Scottish Government.
A number of points raised in the letter merit some clarification and it may be helpful to the Committee to have further information and background on the points raised, not least the context in which the Regulations were developed.
Background
The Society attached a copy of the opinion of the Appeal Court in the case of HMA v McCrossan and quoted from the Opinion, given by Lady Paton. Despite the impression given in the letter, the Appeal Court did not uphold the minuter’s devolution minute argument that Scottish Ministers had breached his rights under the European Convention on Human Rights. Lady Paton’s comment was made in the context of expressing the opinion of the court that “the type of challenge raised in the present case is likely to be repeated in future cases” and that such challenges would be “at considerable cost to the public purse, possibly bringing to premature end proceedings which ought properly to be taken to their final conclusion”.
The Scottish Ministers have paid heed to the Appeal Court’s warning, and the Regulations are intended to prevent the scenario described by Lady Paton coming to pass. The Regulations are, therefore, a precautionary measure being taken by the Scottish Ministers, before any prosecution ends prematurely due to a finding that the ECHR rights of the accused have been breached as regards the fees payable to his/her solicitor, and before public money is spent on future challenges.
The Criminal Legal Aid (Scotland) (Fees) Regulations 1989
The Appeal Court expressed concern about certain provisions of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”). The 1989 Regulations were extensively amended in 2010 as regards the fees payable to solicitors. Before then, the payment regime for solicitors was based on “time and line” accounting which is itemised billing of all elements of work by solicitors to the Board. This approach created a wide variation in fees payable in cases and uncertainty for the solicitor as to how much he or she could expect to be paid for handling a case.
The amendments made to the 1989 Regulations in 2010 partially moved away from that basis, and introduced block fees which cover all work done by the solicitor during certain stages of a case. Block fees were thought likely to provide a clearer indication of the likely amount of fees that would be payable and would encourage more efficient case management by solicitors. However, some continued flexibility was required to take account of specific elements of work including travel, waiting and conduct, and detailed fees were provided for these. The current system is, therefore, a hybrid of inclusive fees and detailed fees which was developed with the Law Society’s full involvement.
Impact on the legal aid fund
As set out in the Policy Note, the amending Regulations allow for flexibility for payment of a preparation fee for those cases where, in certain circumstances, there is ultimately no hearing. The Board will provide guidance to solicitors on how this will operate. This provision directly addresses the concerns of the Appeal Court.
The Committee will be aware of the need to ensure that the Government achieves maximum value for the public purse, particularly in these times of economic challenge. Achieving maximum value enables us to protect the current scope of legal aid for those who need it and that remains our priority. In maintaining our current strong legal aid provision we must also ensure that we comply with ECHR legislation and that expenditure has been met within the overall legal aid budget. Therefore, the proposed amendments to the payment regime in this instrument provide that solicitors can get paid for work that is not currently chargeable under the 1989 Regulations while minimising impact on the Scottish Legal Aid Fund.
As set out in the Policy Note this offsetting has been achieved with a net minimum impact on solicitor’s fees; while the fees payable for a case may change as a result of the 3.65% reduction in detailed fees, the overall amount of fees payable to solicitors for solemn criminal legal aid work will not. Solicitors are being paid the same amount of fees overall, but in different, more transparent ways.
The Law Society’s letter mentions a discretion given to the Board to determine when a solicitor is entitled to certain fees. I think the Law Society is meaning the power which is given to the Board, or the auditor, to pay a reasonable fee where no fee is otherwise prescribed for the work done. This provision, far from creating the uncertainty that the Law Society suggests, ensures that should any work not be covered by the provisions of the 1989 Regulations a solicitor can still get paid for it. Of course any new power is hard to cost, but we consider that this power will need to be used very rarely, because the 1989 Regulations are as comprehensive as they can be about the items of work which a solicitor may undertake in a case.
I hope you will find this helpful additional information.
Kenny MacAskill MSP
Cabinet Secretary for Justice
5 December 2013
Footnotes:
5 S4M-08570—That the Justice Committee recommends that the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 (SSI 2013/320) be annulled.
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