Civil Justice Reform

– in the Scottish Parliament at 2:15 pm on 20th April 2006.

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Photo of George Reid George Reid None 2:15 pm, 20th April 2006

The next item of business is a debate on motion S2M-4255, in the name of Cathy Jamieson, on civil justice reform.

Photo of Cathy Jamieson Cathy Jamieson Labour 2:57 pm, 20th April 2006

The civil law of Scotland is about life events: it is about the way in which we relate to each other as family members, organisations, employers and employees. The civil law is an essential element of our daily lives, which is vital to keeping everything in our society running smoothly. Although all of us would hope not to be touched by the criminal law, everyone is affected by civil law, even if they do not notice it.

We need modern laws for a modern Scotland—laws that are suitable for the way that we live now. Our laws must not only be clear, fair and understandable; they must protect our rights, help us to resolve disputes when things go wrong and be accessible. We need to do more to modernise our civil law because, if we are honest, it does not always match our aspirations or public expectation. Although we have done a great deal since 1999 to modernise the substantive civil law, for example by implementing Scottish Law Commission reports, reform of the system itself is long overdue. The system is crying out for urgent attention.

Under the auspices of the Nuffield Foundation, the Scottish Consumer Council's civil justice advisory group carried out a study on the need for review of the civil justice system. That group was chaired by the right hon Lord Coulsfield, whose energetic leadership of the group reflected his long experience in the Court of Session and his personal commitment to reform. He was assisted by members who represented the legal professions, consumers, academics, the judiciary, the Scottish Legal Aid Board, the Confederation of British Industry, the Scottish Trades Union Congress, the local authorities and the Executive.

The group consulted widely before publishing its report last November. It asked about priorities for reform and whether there was a need for a full or partial review of the system. In its report, the group identified a number of issues that need to be taken forward in a civil justice review. I will briefly run through the six key issues that were raised by the group and say a bit about each one.

The first key issue was the problem of disproportionate costs, particularly in relation to cases of relatively low financial value. As members are aware, the current jurisdiction limits were set in 1988; in the 18 years since then, they have not been increased even to reflect inflation. The present limit of £750 for small claims might sound reasonable, but the value of many consumer goods these days exceeds that sum.

I ask members to consider the level above which a party has the choice of litigation in the Court of Session—£1500. It is arguable whether it is a good use of resources for the highest civil court in Scotland to deal with cases that are often straightforward and of relatively low value. I accept that we will need to address that.

The second issue was court procedures for handling civil and criminal business and the impact on achieving speedy outcomes for parties. We need to examine further the way in which the courts deal with civil and criminal business. In our sheriff courts and supreme courts, criminal business runs to tight deadlines that respect the civil rights of accused persons and the need to respond quickly to crime, but the civil rights of parties to a civil case are important too and we need to ensure that account is taken of them.

The third matter that the group considered was whether there is a need for specialisation among courts or judges and the manner in which such specialisation might be organised. Specialisation among courts is a difficult issue in a small jurisdiction such as Scotland, because what is suitable in our cities might not work for rural areas, where the full range of criminal and civil business has to be conducted with a limited number of sheriffs. However, we are beginning to see the benefits of specialisation in, for example, the commercial court in Glasgow sheriff court. Its recent evaluation showed how a relatively simple change in procedures, combined with a business-like attitude from all involved and greater use of modern technology, brought about real improvements that led to cases progressing more quickly as well as a reduction in costs.

A fourth question was whether the conduct of court business could be improved by increasing the role of the courts in case management. Judicial case management has proven its worth in the recent High Court reforms, and I believe that it could help to improve civil procedure further. That issue would best be reviewed by those who are most able to develop such arrangements—the judiciary themselves.

The fifth area was the way in which lawyers' remuneration is assessed and particularly its impact on the costs that are recoverable in litigation. Access to justice is important. Most clients pay privately and affordability is a real issue. It has been helpful that the legal professions have shown willingness to change. One example of that is the agreement between the Law Society of Scotland and the Forum of Scottish Claims Managers to introduce pre-action protocols to assist case preparation and early settlement.

However, there remains dissatisfaction with the legal professions, which is sometimes justified. As members know, we have introduced the Legal Profession and Legal Aid (Scotland) Bill to set up an independent body to handle complaints about inadequate professional services. We will shortly publish the report of the research working group on competition in the legal professions. The report will make a number of recommendations for reform, including the modernisation of the system whereby auditors of court assess what lawyers can and should charge for their services.

Photo of John Swinney John Swinney Scottish National Party

The minister referred to the publication of the report of the research working group on competition in the legal professions. Will she say any more about the Executive's reflections on the contents of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, particularly sections 25 and 29, which the Executive has not so far implemented? What reasons have there been for that and what action will arise from the publication of her report?

Photo of Cathy Jamieson Cathy Jamieson Labour

That was a cleverly worded question from Mr Swinney to try to get me to pre-announce what will be in the report. I recognise his long-standing interest in the matter, but he will recognise that I will not do that. Many and varied people have shown an interest in the matter and have pressed us on it. As soon as the report is ready to be published, we will let him know and he can expect to see the actions that will come ahead of that.

The sixth point was whether enforcement of court judgments can or should be left to the parties or whether there should be some public role in ensuring that judgments are observed. The Bankruptcy and Diligence etc (Scotland) Bill proposes improvements to our system of diligence that are intended to strike a better balance between the interests of debtors and creditors. We also propose to regulate the activities of sheriff officers and messengers-at-arms through the Scottish civil enforcement commission. However, I agree with Lord Coulsfield's group that the matter could be considered further, particularly where a private individual is faced with the difficulty of enforcing a judgment against an organisation.

Photo of Sylvia Jackson Sylvia Jackson Labour

Will the minister comment on the difficulties that were raised during the passage of the Family Law (Scotland) Bill with the enforcement of contact orders? Might she extend the six areas that she has mentioned to include that matter and the recommendations that Hugh Henry said he was going to make in relation to compliance officers?

Photo of Cathy Jamieson Cathy Jamieson Labour

I understand the point that Sylvia Jackson makes. I suggest that the work that Hugh Henry gave a commitment to do in relation to contact orders is a separate piece of work, but I assure Sylvia Jackson that it is progressing.

As many members have said in the chamber—or, indeed, in other parts of the building—the courts are not the only method of resolving disputes. Our view is that the courts should be a last resort to be used when the parties cannot move towards a settlement in any other way. That is why we are working in partnership with the Scottish Mediation Network to raise public awareness of mediation and promote good practice. We are setting up new pilot projects in Glasgow and Aberdeen to test different models of provision for mediation services. We already support the work of voluntary sector bodies such as citizens advice bureaux and law centres in providing advice and advocacy where that is appropriate.

We have done a great deal to modernise administrative justice through the unified Scottish public services ombudsman. We are also committed to a strong and healthy tribunal system in Scotland and we are preparing possible future legislation on arbitration.

However, none of that work amounts to a comprehensive review of the type that many people have been advocating for years, nor does it bring our vision into public focus. We have therefore been considering what our next steps should be. Of course, we cannot do that in isolation. We need to listen to the views of people who have real, day-to-day experience of dealing with civil justice issues and to find out from them what they regard as the key areas for review and reform. For that reason, we recently met a broad range of people who have direct experience of civil justice, including people from advice agencies and law centres, the legal profession and judges. The same themes came up time and again, including a feeling that some of our approach has seemed to be piecemeal. For that reason, I propose to publish before the summer recess a plan that sets out our vision for the civil justice system and states clearly the range of work that is under way and how it links together.

Our recent discussions have reinforced the idea that the time has come for a wider review of the system. I agree that the time has indeed come for a root-and-branch look at our civil courts. The judiciary has a key role to play in the management and organisation of the courts and we are therefore in discussions with the senior judiciary about a judicially led review of the civil courts. That will be a major project that examines how best to focus the civil courts on their task. I hope to be able to announce further details of that review in the near future.

Today's debate gives members an early opportunity to raise issues that they wish the civil justice plan or the review of civil courts to address. I look forward to hearing what members have to say. We are happy to accept Kenny MacAskill's amendment because his point is well made. Affordability is one of the key issues that will have to be addressed.

I move,

That the Parliament recognises that an effective and efficient civil justice system is a crucial part of the foundations of a peaceful and prosperous society and welcomes the commitment to undertake a programme of work to modernise civil law.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 3:09 pm, 20th April 2006

I thank the minister both for her comments and for accepting my amendment.

It should be said—and put on the record—that we have been well served by the legal system in Scotland. That is not to say that there have not been difficulties and injustices or that they do not continue to arise. Sylvia Jackson's point was well made and I will return to it if I have time, but in civil matters the legal system has served us well. However, we are now in the 21st century and our society is much more complicated than it was, so we need to address matters and to change.

The six areas of concern that the minister mentioned are all aspects that need to be examined. I will not be able to go through them all, but there are some aspects, which I have discussed with the minister before, that should be mentioned. The purpose of our amendment was to add to, rather than detract from, the basis of the debate that the Executive has introduced.

Difficulties relate to the affordability and accessibility of justice. We are well aware of the difficulties that victims of domestic violence face in finding a legal aid lawyer in some areas; I am told anecdotally that a legal aid lawyer is not available in Galloway or Peebles except to established clients. That is not necessarily a criticism of changes that have occurred. Some of that is part of the natural evolution of our high streets. Sadly, many lawyers and accountants are disappearing, as are greengrocers and bakers. We must address that and how we provide services. That is not simply a case of increasing the legal aid budget, because only so much can be provided. We must examine accessibility while bearing in mind affordability. As legislators, we want to ensure that citizens have access to justice, but we must recognise that what we spend must be limited, so we must ask how we obtain best value and take it from there.

We must consider why we are in the current situation. It is easy and flippant to say that the cause is that society is much more litigious. That is a knee-jerk reaction, although all members sometimes wonder why some people take recourse to law—if that is available and they have the wherewithal—when they would be better served in other ways.

Fundamentally, we are where we are because society is much more complicated. We have moved on from a generation ago or perhaps even less. The minister referred to the fact that changes have not been made for some time. In the past, the ordinary citizen's interface with the law was almost non-existent and was rare. People who behaved themselves and did not commit a crime would be unlikely to have any involvement with the criminal justice system. Few people owned property—most of our people were tenants and they did not own cars. That was a time before the property-owning, car-owning democracy. People did not have access to the consumer goods that we have today. As a result, people had little need to rush to complain about things that had happened. We did not have the accompanying obligations, the provision of private health services or the difficulties that I am having in securing a car repair under a so-called warranty that might or might not be enforceable. The individual citizen did not face such issues.

We must recognise what has happened and that the situation will not change. However we address greenhouse gases, we will have to deal with mass car ownership for some time to come. There will be bumps and scrapes and we as legislators must provide a system that allows people to address them. We are grateful for the changes that have occurred in our health service, for the opportunities to treat illnesses and for individuals' right to seek treatment. None of that was available before. Now we must ensure that we have a legal forum, to provide balance when the health service refuses to make provision. We have access to consumer goods, material wealth and individual possessions that were not within our conception many years ago, such as mobile phones. Such items go wrong and have warranties and people will seek redress, which we must deal with.

Access to justice cannot be simply for those who have the wherewithal or who can afford it. As legislators, how do we provide access to justice at an affordable price without signing a blank cheque for an ever-burgeoning and more complicated system? The minister is correct: specialisation is required. I welcome what has happened at the commercial court at Glasgow sheriff court. However, if we make the system far too complicated, the danger is that the ordinary citizen will not have access. Does an individual really require to go to a lawyer to deal with a simple bump or scrape that happened because a driver went too fast or failed to indicate? Should the individual citizen have direct access or should that be removed, to be replaced by lawyers who specialise? We must get things correct and review the situation.

I want particularly to discuss the summary cause and small-claims procedures that were introduced, which I welcomed. However, they have not worked as well as we hoped they would. The procedures are still unduly complicated and they require individuals to make several trips to court, which can outweigh the cost or benefit of a claim. The theory that individuals should be able to access courts without going through lawyers is right.

We must not only consider increasing the thresholds. It is not simply a matter of whether a threshold is to be £750 or £1,500—we must consider not only whether to extend the limits, but how to access and deal with the process. I add the caveat that I am persuaded that personal injury cases must be viewed as being distinctive. However, if we pay a sheriff £115,000 plus and give them pension rights and so on, is it appropriate for them to decide on a claim that involves whether a person went too fast or failed to indicate, causing £250 worth of damage to someone's rear bumper? Should they preside over a case involving a claim of £750 in which I say that the wallpapering that I asked to be done was plum-duff but somebody else says that it was absolutely what I asked for? Is that what we should pay somebody to investigate such things?

I do not wish to be flippant about access to law and what is on television, but why can we not extend the operation of a court system beyond the 10-to-4 timescale in which it currently operates? Why do we not consider getting in people who are legally qualified and can act in an investigatory magistrate-type position? They could say to people, "What do you have to say?" and then "We've heard your case. The fact of the matter is that you were 75 per cent to blame because you were going too fast and you didn't indicate. Therefore, we're going to award £275." If a case became legally complicated, it could be remitted to the sheriff. We must allow access. That means opening the buildings for which we pay rates and heating and security bills; it does not mean paying somebody the substantial sum of £115,000 that we currently pay.

As well as addressing thresholds, we must consider how we can allow ordinary citizens to participate. We cannot do that simply by increasing the legal aid budget. We may have to increase it, but all of us would say if we are going to increase the legal aid budget, the money should go to the victims of domestic violence—to those who have a crying need for it and whom we are not protecting. We should allow individuals to participate because the civil justice system is their system.

We welcome the debate and thank the minister for taking on board my amendment.

I move amendment S2M-4255.1, to insert at end:

"and further notes that such a system, whilst being quick, efficient and just, must also be affordable and accessible to the ordinary citizen."

Photo of Margaret Mitchell Margaret Mitchell Conservative 3:17 pm, 20th April 2006

I welcome the debate. We support both the motion and the amendment because they recognise the importance of having an effective and efficient civil justice system as one of the basic foundations of a peaceful and prosperous society.

The report by Lord Coulsfield and his advisory group, which was published by the Scottish Consumer Council in response to complaints that the civil justice system was too slow, expensive and complex, noted that a lack of detailed information about how the system operates, costs, who uses the system, disputes relating to the money involved and the duration and outcome of cases makes it difficult to assess the system. Nonetheless, the group identified six main areas, to which the minister referred, that should be reviewed. In particular, it focused on access and on the fact that crippling legal expenses incur disproportionate costs, which makes it totally impractical for individuals to use civil justice to seek redress in cases of relatively low financial value. As the group pointed out, that is because the current civil justice system is based on the time-consuming and costly traditional court-based approach to resolving disputes.

That being the case, the Scottish Conservatives support the view—which the minister expressed—that the courts should be a last resort and that alternative dispute resolution and mediation should be encouraged to attempt to resolve disputes at the earliest possible stage. Where such an approach is not successful or possible, the court procedures must be considered in an effort to ensure that an efficient court system is in place. Such an approach would cut the time that is taken and hence the costs that are involved in resolving disputes. It would also help to address access issues and ensure that the consumer benefits from the review.

My colleagues will cover in more detail other important aspects of the report and the Executive's response, such as the proposals for changes to civil, publicly funded legal assistance and the call to raise the current financial level of small claims, which we certainly support.

In the time that I have left, I want to mention another aspect of the Scottish civil justice system that the minister mentioned briefly—domestic arbitration. As the background that I will give suggests, that, too, is in pressing need of reform. From about 1986, a committee was set up by the then Lord Advocate to consider the reform of arbitration in Scotland. The committee recommended adoption of the model for international arbitration, which became part of the law of Scotland by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, to which reference has been made. The committee continued to work on the provisions of a modern law on domestic arbitration and, after wide consultation, produced a draft arbitration bill in 1996. Due to the advent of devolution, that bill was not enacted, and no progress has been made since.

In the meantime, however, many other countries, including England, the Republic of Ireland and major European and Commonwealth countries, have been reforming and restoring their arbitration laws, both international and domestic, to bring them up to date and make them accessible and user friendly. That not only puts Scotland at a disadvantage in comparison with other countries; worse still, it means that Scotland is seen as a legal backwater in that respect. Parties doing business in Scotland are arranging to have their disputes arbitrated elsewhere and under different legal systems.

Conscious of the difficulty of securing legislative time, the Scottish Council for International Arbitration and the Scottish branch of the Chartered Institute of Arbitrators developed a Scottish arbitration code, which was published in 1999. That sought to set out clearly the general framework of arbitration and the rules under which arbitration in Scotland should be conducted. Although the code has been widely welcomed and has been recommended by major institutions for use in arbitration, it is only voluntary and all parties must agree to its adoption. The code cannot deal adequately with many matters that can be dealt with only by statute, and it was regarded by its framers as only a stopgap measure pending the introduction of legislation.

A committee for those two organisations has continued to work on arbitration, drawing heavily on the work of the previous committee and having regard to legislative changes in many other countries—in particular, to the Arbitration Act 1996 in England. The result is that a draft bill is now available that seeks to put virtually the whole of Scottish arbitration law into a single statute. The draft bill contains all the existing statutory provisions relative to arbitration and restates and improves the existing law, both common and statutory. As part of the review of the civil justice system, I earnestly request that the Executive makes the necessary legislative time available to enact that draft bill so that, for the first time in Scotland, the businessman will have easy access to the whole law relating to arbitration, thus bringing Scotland into line with the rest of western Europe and major commercial countries throughout the rest of the world.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat 3:23 pm, 20th April 2006

The scope for debate on civil justice is broad; therefore, we have a broad motion from the Executive. Members will focus on the areas that are important to them. As the minister stated, everyone is touched by civil law, even if they are not aware of it. However, when they wish to enforce their rights under civil law, many people cannot easily access information and advice on their rights. As the minister stated, the costs are often disproportionate to the dispute issues, which puts many people off seeking redress.

I am glad that there will be a full judicially led review of the courts system, but I would like the review's remit to ensure that it knits closely with the work that is already being done with regard to access both to advice for legal assistance and to civil justice. Civil justice needs to be transparent, and transparency is about justice being seen to be done in a community or household. It is also about justice being accessible to people, easily available and easily understood.

Soon after I became the Liberal Democrat spokesman on justice, I said that someone with no legal background was not necessarily at a disadvantage in speaking about justice. However, my view—which has been confirmed over the past year—is that we could not have invented a system with a language that was more exclusive, elitist and inaccessible. I came across an example of that last week when I spoke to a constituent about the availability of legal aid in solemn cases. The constituent did not know what a solemn case was and was confused after reading the explanatory memorandum to the bill. They asked why the explanatory memorandum could not simply say in plain English that it was, for example, a judge and jury trial.

To say that the whole system is elitist and inaccessible is a generalisation. Some people work tirelessly for those who are not fortunate enough to be able to afford the best lawyers. One of the basic tenets of our approach in Scotland is that as a result of legal aid, people who cannot afford the best lawyer could have her or him represent them.

Some of our more modern reforms to the justice and protection system in Scotland, such as the children's hearings system, have adopted a far more relaxed and informal approach, which is more inclusive and accessible.

We can see how complex the system is in planning disputes and employment cases and even in small claims cases, which we have heard about. A website is available to help members of the public translate the jargon and terminology of procedures. Indeed, the victims of crime in Scotland website includes a section called "JargonBuster". There is a growing business in consultancy services for companies and individuals; they do not offer legal advice, but interpret the system to get legal advice. We need to change that.

For members of the public to access clear advice and information on the civil justice system and their rights, there needs to be consideration of finance. First and foremost, however, the priority must be to provide good-quality, clear and simple information on how the system works, the roles that individuals have and the rights that we enjoy. Such information must be accessible through websites, libraries, community councils, individuals and organisations; the issue should also be taught in schools. Kenny MacAskill made an important point about the many issues of civil law that we will face in the future, whether they concern a mobile phone contract or a rent agreement. We should teach children in our schools about such matters in citizenship courses, so that in high schools in particular children do not learn just about the Parliament and MSPs, but about the rights that they will enjoy as adults. We can enjoy legal rights only when we can exercise them.

When people receive legal advice, in both civil and criminal cases, or if they need advice on employment rights or in planning disputes, access should be equitable. The Executive has been frank in the past in saying that such access is not equitable and that the exclusion of many people on relatively low incomes from legal aid is one of the weaknesses in the current system; that is especially true of civil legal aid, because of a lack of strategic direction among the bodies that provide information and advice. A clear mechanism to relate the supply of services to assessment of need is lacking, as are any clear means to maintain a supply base, either of adequate numbers of solicitors for legal aid work or those who are not legally qualified but provide valuable information. Those ideas are not new; they are all part of the Executive's consultation. I advise Mr MacAskill that I will meet solicitors in Peebles tomorrow to discuss those very issues, which have been highlighted in the Executive's consultation on access.

We often underestimate the value of the voluntary sector in the civil justice system. If it were not for the voluntary sector, the system would grind to a halt. The voluntary sector provides legal advice from well-organised CAB offices and offers mediation services and financial assistance. Offering good-quality advice on people's rights and the law is vital. CAB offices are efficient. For every case in which people were given advice and assistance by a solicitor in 2004, there were over four times as many housing issues, hire purchase and debt issues, so there is no doubt that CAB offices and the voluntary bodies are efficient and even save money in the justice system.

I am delighted that there is to be a full-scale review of the civil justice system. I hope that the review of court operations will be about not just procedures, but access.

Photo of Trish Godman Trish Godman Labour

We now move to the open debate. I want to call a considerable number of back benchers, so I will keep speakers to a tight six minutes.

Photo of John Swinney John Swinney Scottish National Party 3:29 pm, 20th April 2006

It is a pleasure to take part in the debate. I do so on the basis that when the Government takes decisions that I think are good and valuable, it deserves praise and support from the Opposition benches. I am glad that the minister accepted the amendment from my front bench and that my front bench accepted the Government's motion. That gets us off to a decent start.

The Government's Legal Profession and Legal Aid (Scotland) Bill is good and I place on record my appreciation for the time that ministers have obviously spent considering a range of issues that many individuals have raised over many years and ensuring that those issues were properly consulted on. I have certainly had such issues in my case load during my nine years as a parliamentary representative.

The bill will go forward for parliamentary scrutiny in the weeks ahead. Parliament's objective in considering the bill must be to do a comprehensive job and to address the issues that are causing people concern. The Justice 1 Committee previously considered a number of issues in relation to the handling of complaints against solicitors. Several measures were introduced, but regrettably they have not boosted public confidence in the handling of complaints against solicitors, as the members of the Justice 1 Committee hoped that they would. As a result, we are considering the issue again in Parliament, but our consideration will be much more comprehensive because of the Executive's introduction of the Legal Profession and Legal Aid (Scotland) Bill. I hope that we will be able to reflect on all the issues and concerns that have been raised and to design a system that will adequately address the concerns of members of the public and deliver a much more effective system of handling complaints against solicitors.

At the core of the debates about solicitors and about the bill is the importance of access to justice for all members of the public, whether they want to access the civil justice system or to complain when they believe that they have been poorly served or have been the victims of poor conduct. Equally, it is important that solicitors have access to justice when complaints are considered. Some cases have been in the legal complaints process for a number of years—eight, 10, 12 or 15—and I often reflect on the associated wear and tear on the lives of the constituents who come to me about their concerns and on the lives of the solicitors, never mind on the lives of the people who are caught in the crossfire. It is important that we design a system that ensures access to justice for every party involved in the process.

I very much support the motion and the amendment—I suppose that I should say that I support the amendment that my front bench lodged because I would be in deep trouble if I did not do so. The amendment captures the role of the legal profession and the civil justice system in ensuring that, at every stage, individuals have access to effective legal recourse. It is important that we design an adequate system. The Legal Profession and Legal Aid (Scotland) Bill does that to a considerable degree in addressing the part of the process that deals with complaints against solicitors.

I would like the Government to reflect on a couple of issues in connection with the bill. I am sure that I will also have the opportunity to make my point during proceedings on the bill. The bill goes a considerable way towards designing a good system for the management of complaints against solicitors, but it still has at its core a problem, which is that complaints about solicitors' conduct will still be finally decided on by the Law Society of Scotland. That puts the Law Society in an invidious position, because it has the dual role of promoting the interests of the solicitor community in Scotland and being responsible for regulating the conduct of solicitor members. That represents a fundamental conflict of interest and Parliament must reflect carefully on that when coming to a conclusion on the bill.

I will pursue this issue in the Finance Committee, but we will have to watch the cost to individual practitioners of implementing the bill. A big cost burden might undermine the access to justice to which Mr MacAskill's amendment clearly refers. That will be important to communities such as those that I represent in rural Scotland.

My final point is related to the intervention that I made on the minister about the non-implementation of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. If we expanded the range of people who are able to give legal advice, that would tackle the access issue that Mr MacAskill raised. We could also tackle the problems with the availability of legal services to which Mr Purvis referred and which worry us in rural Scotland, and we could ensure that individuals have comprehensive access to justice throughout Scotland. I look forward to hearing the minister's opinion on that point.

Photo of Mary Mulligan Mary Mulligan Labour 3:35 pm, 20th April 2006

One of the most important roles of an MSP is the drafting of laws. However, as a Labour MSP and not just a legislator, I firmly believe that the justice system needs to be accessible and understandable to everyone, and that people should be able to be confident that justice will be upheld and administered equitably.

As the minister said, most people will have little to do with the justice system during their lifetime. Fortunately, few of us will be involved in incidents of murder, severe violence or other serious crimes, so when people come into contact with the law, it is most likely to be because of a civil issue. Buying a house, other housing issues, financial claims, personal injury claims and family breakdown are the areas that are most likely to cause people to seek out a lawyer and legal advice. Until such events, most people will not have had contact with a lawyer and, although I know that the lawyers among members will be surprised to hear this, they can be quite overawed at having to make such contact and unsure about how to go about it.

I am sure that I am not the only MSP who has had constituents arrive at their office to seek advice who has referred them to a lawyer. The next question is often, "How do I go about it? Who do I speak to? Can you recommend one?" It would be helpful to have a clearer route to finding a lawyer, which could be particularly challenging if a system develops in which lawyers concentrate on specialist areas to match the specialist courts. The minister referred to that.

In a country such as Scotland, where a significant number of people live outside the cities, it will be important to ensure that everyone has local access to lawyers with specialist knowledge. The development of courts such as the family law court in Glasgow could also encourage such specialism. Although I understand and accept that there are advantages to such a system, we must be aware of the impact on people's access to the appropriate legal advice.

It is not just lawyers and the courts that can assist with legal problems. Not all problems are black and white and mediation might offer a more appropriate response to dispute resolution. In Edinburgh, the in-court mediation service is funded by the Scottish Executive and managed by the Edinburgh citizens advice bureau. There are also newer pilot schemes in Glasgow and Aberdeen and those projects will assist with small civil disputes.

Mediation is not the answer to every problem, but it must be a viable option in which people can have confidence. I visited various places throughout Scotland during the passage of the Antisocial Behaviour etc (Scotland) Bill and the huge variation in the use of mediation was noticeable, particular in relation to neighbour disputes. Fife stood out because mediation was well established and well used and people had confidence in the system. I am aware that the Scottish Executive has made funds available to the Scottish Mediation Network to raise the profile of mediation; I support that and hope that it will continue. Sylvia Jackson will talk more about the use of mediation in family disputes, particularly where there is a marriage breakdown. The Justice 1 Committee saw the advantages of mediation when it considered family breakdown during consideration of the Family Law (Scotland) Bill.

On the cost of access to civil justice, I will make just three points, as I am conscious of time. First, the cost must not deter people from seeking justice, so appropriate legal aid must be available. Secondly, legal practitioners must be paid appropriately so that they continue to practise in legal aid cases. As we have heard, there has been a reduction in the number of practitioners available. However, lawyers must also understand that legal aid is public money, for which we have a right to demand value. Thirdly, if we agree that alternatives to lawyers and the courts might be more appropriate, we need to consider how those services should be funded. For example, how should mediation be paid for? Should the service users be asked to make a contribution rather than expect the public purse to foot the bill? We should not close our minds to those sometimes difficult questions, which must be debated openly if we are to find a solution to my first point on the provision of affordable civil justice.

I welcome the on-going work to reform and modernise the legal system and I hope that the minister will consider my points about access to legal advice. We need to find appropriate lawyers to offer that advice and we need to ensure the availability of appropriate advice and assistance, including alternatives such as mediation. We also need to make legal advice and the legal system affordable for everyone. Responding to such issues will contribute to ensuring that we have an effective, efficient and accessible civil justice system. I commend the reforms that the Executive is introducing.

Photo of David Davidson David Davidson Conservative 3:41 pm, 20th April 2006

I take heart from the Parliament's consensual mood this afternoon, which I think is due to the fact that the minister has begun to share some strands of thought in advance of any publication. I appeal to her to listen to the debate in the broadest sense. She should not assume that members raise issues only according to party-political stances or policy lines.

The Justice 2 Committee will certainly be required to do a lot of work on the Legal Profession and Legal Aid (Scotland) Bill. I hate to think how many submissions we will receive. My one appeal on the committee's behalf—I have the support of the entire committee on this one—is that we be given adequate time to give the bill proper scrutiny so that we can take the correct amount of information from those who will give evidence. We need to be able to capture all the views and thoughts so that we can learn from best practice and from the mistakes that have been made.

John Swinney pointed out that the Law Society is required to be all things to its members. In the medical profession, the General Medical Council acts as the registration and standards body and the British Medical Association acts as the trade union. Similar arrangements apply in many of the professions. Perhaps the Law Society could consider that issue and share its thoughts on that with us when it gives evidence to the committee.

Many different bodies, including citizens advice bureaux, are available to give people advice. As Mary Mulligan said, many of the cases that we deal with in our surgeries involve people asking us what to do about an issue. I always make it clear that I am not a lawyer—even if I were, I could not give constituents legal advice—and I point them to the people who really know, who can give them the best advice. Often, especially in rural areas, the issue is who that might be. Citizens advice bureaux provide magnificent services and are trialling new schemes such as those that we have heard much about this afternoon.

Often, the problem comes down to the funding that is available for non-legally qualified advisers, who need to be quality assured—we must have in place systems that give confidence. However, such funding, which will be available under section 45 of the bill, must be bid for on a case-by-case basis. Instead, it should be made available on a block basis so that we can avoid an awful lot of the expensive and time-consuming bureaucracy that prevents people from getting early access to justice.

We need to ensure that people not only get access but get early access to the correct advice. Often, early access can prevent cases from becoming much more complicated and much more expensive to resolve.

The issue for us all today is both access and affordability—not just for those who wish to go to law, but for those who must provide the care. I believe that if substantial charges are made to solicitors—for example for indemnity, which they should obviously have—those will be passed on in costs. No doubt the committee will hear evidence on that in time. We must be careful to take on board the cost of legislation, not just to the public purse but to those who practise and to consumers of advice, and to ensure that we do things correctly.

As my colleague Margaret Mitchell said, we are concerned about the £750 limit on small claims. The minister has her ears wide open on that issue. I suggest that she considers having a scheme similar to that which is used in England. Limits are quite strange things, but if slightly more expensive issues can be dealt with more cheaply, that must be in the interests of everyone, especially the Scottish budget.

Many people who come to surgeries talk about a range of issues. Often their thinking is muddled; they do not have enough information, so they make an assumption or try to be their own lawyer, because they have read something on a website. Although that practice may be all right for some, we must try to get round it to ensure that everyone feels confident that they know where to go to get advice and have confidence in it. If they feel that they need a second bite at the cherry and to get another opinion, they should be allowed that facility. In the business sector, especially small businesses, good advice on legal matters relating to breaches of contract, faulty goods and claims against suppliers should be available efficiently, effectively and as cheaply as possible. The Federation of Small Businesses is very keen on that.

It is encouraging that the minister has come to today's debate with such an open mind. However, I trust that, as the Justice 2 Committee goes through the bill, there will be frequent opportunities for her to appear before the committee, when required, to keep us updated on her thinking. This will be a long process but, whatever we do, we must ensure that the bill reflects the needs of the Scottish people, not just a demand-based system and budget.

Photo of Sylvia Jackson Sylvia Jackson Labour 3:47 pm, 20th April 2006

I welcome the minister's introductory remarks, especially the move towards the civil justice review that she discussed, which I am sure we all welcome. As David Davidson said, there seems to be a lot of agreement about what the main issues are.

I am pleased and privileged to speak in today's debate, because I am not a member of either of the justice committees, although I have a particular interest in family law. I have looked at the various reports that have been mentioned. Lord Coulsfield's report has been referred to a number of times, but I want first to talk about the book "Paths for Justice Scotland", which was published in early 2001. It highlighted many of the issues that came out of the Scottish Consumer Council report. The first was that many ordinary people feel alienated from the Scottish legal system. That is the case not for one particular social grouping, but right across the board. The negativity was more pronounced if people had had recent direct experience of involvement in the system.

According to the study, there were two reasons for much of the negativity. One of those was the media. Many respondents with a negative view had no direct experience of the legal system but had repeatedly seen portrayals of courts, lawyers and judges on television and in newspapers. "Paths for Justice Scotland" states:

"The evident influence of the media on the public imagination of the legal system is a direct result of the absence of any competing accurate and regular information flow."

The comment clearly reflects points that many members made about the challenges that we face in Scotland as we consider the community legal service that should be offered. The courts, the schools and the judiciary must consider how to mount a co-ordinated programme of public education, to provide a better understanding of matters that are fundamental to citizenship.

Photo of Christine Grahame Christine Grahame Scottish National Party

Does the member agree that there is a tendency in the broadcast media to treat English law, systems and processes as though they apply to the United Kingdom, which further confuses the public about what happens in Scotland?

Photo of Sylvia Jackson Sylvia Jackson Labour

I agree. Moreover, an accurate picture of the legal system is not presented. As Kenny MacAskill and the minister said, ours is a modern society that must deal with complex issues and the legal system must move on to address such matters.

The book "Paths to Justice Scotland" also discussed respondents' advisers, such as solicitors. People usually felt good about how a solicitor had dealt with their case, but solicitors often blamed the legal system. The authors said:

"The lawyer, to put it crudely, may blame the law, blame other lawyers, blame the judicial process: should things go wrong—or go too slowly ... Clients thus emerge satisfied with their own lawyers but less than happy with the legal system as a whole."

That was an interesting observation.

The book also highlighted alternative dispute resolution. Most people have accepted that we should do much more to promote methods such as mediation and advocacy to resolve disputes. ADR was much to the fore when the Parliament considered the Family Law (Scotland) Bill. The book's authors said:

"The results of the study have demonstrated very clearly how little impact the development of mediation, conciliation and other ADR techniques has had on the way that the public in Scotland seeks to resolve their ... problems".

Although we have moved on since the book was published in 2001, there remains some truth in that conclusion.

In the context of Lord Coulsfield's report, two obvious issues should be mentioned: the cost of proceedings; and delays. I have been much involved in the situation of non-resident parents who were trying to secure enforcement of contact orders. The costs could rise to around £30,000 and there could be delays not just for one or two years but for a decade, which is not right.

On specialist courts, will the minister comment on whether specialist sheriffs could be moved from Glasgow, for example, to smaller areas, such as Stirling, to provide a specialism for local clients?

In a complex society, we must ensure that justice is accessible, affordable and understandable. Most important, we must ensure that justice is seen to be fair.

I support the motion and the SNP amendment.

Photo of Patrick Harvie Patrick Harvie Green 3:53 pm, 20th April 2006

Like other members, I welcome the debate and the opportunity to discuss the issues. I suspect that members of all parties will support both the motion and the amendment, given how broadly they are framed—this might almost be a subject debate. No member could disagree that the civil justice system should be

"efficient and just ... affordable and accessible", or that such a system is

"a crucial part of the foundations of a peaceful and prosperous society".

The reform work to which the Executive is committed represents part of the Executive's theme of access to justice, which is an aspiration that many members welcomed. The many barriers to justice can be physical and emotional, but today we are talking about barriers of knowledge, barriers of geography and the availability of services locally, as Kenny MacAskill mentioned, and barriers of finance.

It is often remarked that justice delayed is justice denied. Similarly, justice at a price is justice denied to all but the wealthy few. I welcome some of the remarks in the minister's opening speech. It is good to hear the positive noises about the use of mediation, the recognition of the role of citizens advice bureaux and the statement that pilot projects are on the way. However, we should acknowledge that some organisations, notably Citizens Advice Scotland, have expressed disappointment. CAS's briefing to members for today's debate expresses disappointment that the Legal Profession and Legal Aid (Scotland) Bill

"will only marginally increase the availability of quality assured legal advice."

The briefing highlights

"the precarious ... funding for advice by non-solicitors", as well as

"the large unmet need for legal advice" and

"the need for preventative measures".

If we expand services and if the reform that we all want is put in place, there will be many ways other than the courts of ensuring that people can access their rights and justice. However, I want to highlight two examples of legislative work by the Executive in relation to which departments other than the Justice Department have not quite been singing the same tune.

One example is the recent Housing (Scotland) Bill, to which I proposed amendments that would have introduced management standards in the private rented sector. The aim was not to increase the legal rights of, and protections available to, tenants in the sector, but to give tenants additional ways of seeking redress when those rights are denied. For the most part, when landlords harass people or treat them badly, they do not go to court about it; they put up with it or accept it—that is what I did in that situation. For that reason, we have no idea how many thousands of tenants in the private rented sector simply put up with problems, move on and try to get into a better housing situation.

The introduction of management standards would have allowed people to access the private rented housing panel instead of going to the courts. The panel could have resolved problems more quickly and easily and certainly more cheaply. That ability to resolve problems without people needing to go to court might well have prevented many unscrupulous landlords—who, I am glad to say, are in the minority—from denying their tenants existing legal rights. However, the Executive resisted my amendments and argued that people can go to the courts to access those rights. That trend should be resisted.

The same argument has been deployed in debates on the Planning etc (Scotland) Bill. Jeremy Purvis mentioned a couple of planning cases. Planning cases might not be the first example that we think of in considering the civil justice system, but when a community has worked long and hard to engage positively with the planning system and feels that the eventual decision has been taken on the wrong basis and should be overturned, often in Edinburgh going to court is the only way in which it can overturn it. Some planning decisions are overturned, but people should be better able to access their rights, yet when we seek to give people other ways of doing so, Executive ministers deploy the same argument and say that people should go to the courts for the final redress.

Given that all members agree that we want to give people alternatives to going to court, I ask the minister, in thinking about the civil justice system, to engage with colleagues in other Executive departments on exactly how the argument that people can go to court to access their rights should be deployed during the passage of legislation.

Photo of Christine Grahame Christine Grahame Scottish National Party 3:59 pm, 20th April 2006

Although I no longer practise, I should declare an interest as a member of the Law Society of Scotland. Also, as I have said in previous debates, I am a former legal aid practitioner and citizens advice bureau volunteer.

I wish to focus on CABx, because they are at street level, where members of the public—often those who are most vulnerable and least able to articulate for themselves—endeavour to access justice, in the broadest definition of the term. I shall focus on the role of the CABx throughout Scotland and then focus on what is happening on the ground, where, for example in the Scottish Borders, there are service reductions. The Citizens Advice Scotland briefing paper to which Patrick Harvie referred is extremely useful. A particular issue that CAS raises—it is a spend-to-save message—is the need for preventive measures as well as crisis intervention. In my days as a CAB volunteer, the work nearly always involved crisis intervention. People had got to a desperate stage by the time they came in. It is extremely important that we make CABx more accessible and that we fund them. I shall say more on that later.

CABx have a role in tackling social exclusion. The cases that CABx deal with are not usually the kind of cases that a civil practitioner takes on. They are housing issues, debt issues, consumer issues, employment issues and, most often, issues to do with the benefits system, which is a quagmire for most civil legal aid practitioners—people working in CABx are usually experts on the benefits system. In a year when the Scottish Legal Aid Board funded only 118 employment tribunal cases, CAS represented clients in 650 employment tribunal cases, 404 of which were settled out of the hearing, gaining £1.2 million for their clients. CABx are an irreplaceable service. The same applies to benefits appeals tribunals, where legal aid is not currently available. CAS represented clients in more than 3,500 cases in such tribunals, 680 of which were settled in advance of a hearing. For the vulnerable in society, CABx fulfil a vital role. In the Highlands and Islands, there is a pilot project that integrates the role of CABx with the legal aid system. Hugh Henry is quoted as saying that the project is

"an imaginative and effective method of delivering legal advice in the north of Scotland."

I hope that that will be extended throughout Scotland, particularly to rural areas.

I wish to give examples of what is happening not only in the Borders but elsewhere. I have had letters from throughout Scotland about the closure of CABx. In the Scottish Borders, four offices are to close: Jedburgh, Innerleithen, Coldstream and Chirnside. People there will have to get up the steam to travel considerable distances to access citizens advice information elsewhere. However, "elsewhere" is also experiencing cuts. There are cuts in the major towns of the Borders—Peebles, Hawick and Galashiels—where opening times are being reduced by 13 hours. People from the smaller towns will find that even the offices that remain open are overstretched. The money involved—some £50,000 from the council—is not substantial. I will go on to say where the funding stream for CABx should come from.

Another extremely important point that is made by CAS is about the precarious nature of the funding. That is true for CABx throughout Scotland. As an example of the impact that funding cuts will have on a deprived area, I note that unemployment in Hawick has increased by 16 per cent in one year, due mainly to losses in the textile industry. Figures from Hawick CAB show that there has been a 400 per cent increase in debt cases in the past six years. Every single one of those cases no doubt involves an individual or family at crisis point. The total debt in the Hawick area, which Hawick staff are dealing with, is more than £5 million, yet Hawick CAB's hours are being cut. I would like the ministerial team to take a good look at that level of civil justice. Maureen Bennett, who is the manager of the CAB in Hawick, has said that the figures are the tip of the iceberg. There is no doubt that the collective debt could rise. The CAB in Hawick deals with more debt cases than do CABx in some inner-city areas.

I urge the minister to spend to save and I ask him to consider central funding for citizens advice offices, similar to the funding that is provided for legal aid. There could be accountability and an audit trail. CAB offices could provide information, just as every office of solicitors has to provide information to the Scottish Legal Aid Board on every legal aid case. At a time when local authorities are having to make cuts elsewhere, I suggest to the minister that the present system of funding by local authorities is making the most vulnerable people even more vulnerable.

Photo of Bill Butler Bill Butler Labour 4:05 pm, 20th April 2006

I welcome this opportunity to discuss an aspect of our legal system that is inextricably linked to the creation of

"a peaceful and prosperous society", as the motion in the name of the Minister for Justice puts it.

The civil justice system is key to the creation of a Scotland where justice is effective, efficient and accessible for all its citizens. I welcome the broad consensus in the chamber in favour of that objective. However, the achievement of that objective will not be possible without reform. In her speech, the minister said that reform of the system was "long overdue". She is right. We need reform of the complaints handling service with regard to the legal profession and we need measures to ensure fair and appropriate access to legal advice and representation.

Evidence, including research in "Paths for Justice Scotland", as mentioned by my colleague Sylvia Jackson, suggests widespread dissatisfaction with the civil courts—or, at the very least, a lack of confidence and a feeling of alienation. I acknowledge the good work that has been done to tackle deficiencies in the system and I warmly welcome the initiative that has provided litigants and other court users in Airdrie, Aberdeen, Dundee and Hamilton with access to free independent CAB advice inside their local sheriff courts.

As members will know, the concept of in-court advice was originally piloted in Edinburgh sheriff court by the Edinburgh central CAB. Additional projects were all evaluated positively in 2005. Good advice—especially in-court advice and free independent legal advice—can only help to promote fairness and equality and to improve the efficiency of people's passage through the justice system. However, more needs to be done. The evaluation report of 2005 found that, although in-court projects were

"able to address unmet legal need for people involved in court proceedings" and although the demand for such services was high,

"unmet needs for the services remain."

Hugh Henry has described the projects as being

"an imaginative and effective method of delivering legal advice".

He was right to do so and Christine Grahame was right to quote him. However, as I am sure the Executive will agree, strategic investment in legal advice must be further developed and extended. That is why I am pleased that the recently introduced Legal Profession and Legal Aid (Scotland) Bill, which will soon begin its parliamentary passage through the Justice 2 Committee, has as one of its policy objectives the aim of helping to ensure that people receive advice from the adviser with the most appropriate skills, knowledge and experience. It will do that by enabling the Scottish Legal Aid Board to fund advisers other than solicitors to provide advice and assistance.

The strategic review of the delivery of legal aid, advice and information, which reported to ministers in June 2004, wisely recognised that

"some of the work done by solicitors under Advice and Assistance is very similar in nature to work done by many non-legally qualified advisers who are currently excluded from the scheme."

I therefore welcome the Executive's support in principle for a removal of the current distinction between legally qualified and non-legally qualified advisers. Only a few of the respondents to the consultation were opposed in principle to that eminently sensible reform. In a spirit of consensus, I also note Mr Swinney's support for it in his very sound contribution.

I wish to put on record some concerns that were expressed to me at a recent meeting with representatives of CABx. These issues will no doubt be discussed as the bill is subjected to interrogation by the Justice 2 Committee and the Parliament. I merely state the concerns to allow the minister or the deputy minister the opportunity to make an initial response, if they wish.

At my meeting with CABx representatives, it was made clear that although the bill is most welcome, in its present form it will not give the Scottish Legal Aid Board the power to provide grant funding for the provision of legal advice by non-legal advisers. The bill provides only for SLAB's funding of solicitors on a case-by-case basis. Surely a more radical approach is required. Another concern that was raised was that to fund the provision of advice on such a basis would amount to a form of means testing. Is that the correct approach to adopt? I hope that that question will get a reply. Finally—I am short of time—the worry was expressed that the bill's approach might stifle or at least make it more difficult to innovate and to offer preventive advice. Is there not something to that concern?

I am sure that those and allied matters will be dealt with in due course. This afternoon, in common with the representatives of all the other parties in the Parliament—although I await the speech by the Scottish Socialist Party member—I welcome the Executive's general approach to the refashioning of Scotland's civil justice system. It is clear that the aim is to adapt arrangements as speedily as possible so that they deliver a system that is accessible, equitable and efficient for all Scotland's citizens. I commend the motion.

Photo of Colin Fox Colin Fox SSP 4:11 pm, 20th April 2006

As ever, the SSP's view is greatly anticipated, but it will remain a mystery until I have completed my introductory remarks.

As other members have said, we are discussing a wide-ranging preliminary review of the civil justice system in Scotland. In the brief time that I have been allocated, I want to concentrate on a small number of areas.

I welcome the Executive's commitment to modernise the civil justice system in Scotland, but only on the assumption that modernisation will provide greater and more equal access to the law than is available at the moment. In whose interests modernisation is being undertaken is often a moot point and that is an issue that we will have to tackle today and in the months to come.

In passing, I must say that yesterday's announcement that people who have been subject to miscarriages of justice will have their compensation rights withdrawn or diminished does not mean modernisation in my language, although I assume that the United Kingdom Government would describe its proposal in that way.

Photo of Bill Butler Bill Butler Labour

Does Colin Fox acknowledge that that is a proposal that may or may not proceed south of the border and that the Executive's ministerial team was behind the provision of funding—£50,000, I think—for the Miscarriages of Justice Organisation? Does he welcome that approach?

Photo of Colin Fox Colin Fox SSP

I welcome Bill Butler's intervention and the fact that the Miscarriages of Justice Organisation has received that funding, which I hope will continue. My point is that the denial of people's liberty by the state—often for many years—is surely one of the most heinous violations of life itself. The Government's announcement may have been about a proposal, but I am sure that I was not the only person who was disgusted by it.

I fully support money being made available to victims of crime—I am sure that all members would agree with me on that—but that should not happen at the expense of victims of the state. In my view, it is wrong to impose an arbitrary cap of £0.5 million on payments to people who have been wrongly convicted of crimes. That is a lot of money, but it is little when one considers what a severe penalty it is to have one's liberty taken away in error, which often happens as a result of a conspiracy by agents of the state. Paddy Hill, the Guildford four, Robert Brown, T C Campbell and too many others have suffered an irreparable loss from which they will never recover.

If the Labour Party were in opposition and the Tories introduced such a measure, I would like to believe that Labour members would jump up and down in protest. If the minister wants to assure me that she has no plans to introduce such measures in Scotland, I will let her speak.

Photo of Cathy Jamieson Cathy Jamieson Labour

That is exactly the point that I wish to make. Colin Fox is referring to a proposal that is to be discussed in another place. There are no plans for similar proposals here. [ Applause. ]

Photo of Colin Fox Colin Fox SSP

Like other members, I am delighted to hear that. I look forward to that promise being kept.

As far as civil justice is concerned, there is a widespread belief among people who have never used the law or needed access to it that everyone is equal under the law. That is a noble principle but, unfortunately, it is a delusion. The constituents whom I and other members see on a weekly basis are under no such delusion. When someone needs to access the law, they find that some people are more equal than others. People who have money have greater access to the law than those who do not.

It is interesting to note that, as far back as 1980, the Royal Commission on Legal Services in Scotland—the Hughes commission—criticised Scotland's civil justice system for being

"unduly cumbersome, slow and costly".

The Hughes commission said:

"persons wishing to assert or defend their rights are sometimes unwilling or financially unable to resort to the civil courts in Scotland."

The Hughes commission called for a review of the civil justice system in 1980. As the minister accepted in her speech, too little progress has been made since that time. On that score, I welcome the Executive's commitment to look at the issue.

Clearly, what is important is the nature and scope of the review. Like other members, I want to focus my remarks on the Scottish Executive's description of the nature and scope of the review as providing

"a system that is fit for its purpose in the 21st century—modern, inclusive, accessible".

I think that all members would support that. However, the key question is whether the review will improve access to justice and lower the cost of litigation for those who need to access legal advice. Kenny MacAskill, Margaret Mitchell and Jeremy Purvis made valuable points in that regard and highlighted the fact that, although access to justice is a fundamental human right, it is compromised or denied by the punitive cost of legal advice and representation. I look forward to seeing the Scottish Executive's plans for reform.

My final point is on the provision of legal advice by non-solicitors. Other members touched on the valuable briefing that we received from Citizens Advice Scotland in that regard. As part of the review, I hope that consideration will be given to increasing the number of local law centres such as those in Govan and Paisley. I also hope that the minister will consider the important point that Kenny MacAskill and Christine Grahame made about the successful Highlands and Islands part V project. I hope that that project will be rolled out across the country.

I look forward to the plan that the Executive intends to publish in the summer and to the measures that it will introduce to ensure that working people get the legal aid and advice that they need.

Photo of Pauline McNeill Pauline McNeill Labour 4:17 pm, 20th April 2006

I have written to Cathy Jamieson, as I did to her predecessor, Jim Wallace, to ask for more attention to be paid to reforming of our civil justice system. Like other members, I whole-heartedly welcome Cathy Jamieson's announcement that she will lay out a plan to reform the system.

I also welcome the minister's response to Colin Fox this afternoon, when she said that the Executive has no proposals to adjust the compensation scheme for victims of miscarriages of justice. However, I am concerned about the UK Government's proposals for criminal injuries compensation. I hope that the Executive will have something to say about that. I also want to echo what Bill Butler said: we are making progress in developing a system that supports who have been the victims of miscarriages of justice. I welcome all that the Executive has done in that regard.

Our criminal courts have rightly been the priority in our court system. I have always argued that there are branches of civil law that require an equal level of priority because they so deeply affect the lives of the people whom we represent. In particular, the priority that is given to family law should be similar to that which is given to our criminal courts.

As politicians, we need to be clear about what our objectives are in reforming our age-old system. Lord Woolf said that the cost, delay and complexity of the system are problems that are inherent in an adversarial system in which conduct, pace and the extent of litigation are left almost completely to the parties themselves. Taken together, those problems restrict access to justice.

We need to set down our objectives for reform. "Access to justice" is just a phrase; we need to work out what it means in terms of the speed of decisions; the causes of delays; the effect of court procedures; the cost of going to court; the availability of court time; and the fairness to parties and those who represent us in court.

Civil procedure in Scottish courts is a whole new language. I am not a lawyer at all and certainly not a civil lawyer, but I have seen some civil papers and it seems to me that there are some rather long and drawn-out procedures. It is a language that no one apart from civil lawyers can understand—no offence intended to anyone. We need to examine the level of complexity in the system because it might be the heart of the problem.

Lord Coulsfield has already made some proposals that have taken effect and he should be given credit for the work that he has done to shorten the procedures in civil proofs. Indeed, my efforts and those of Bill Aitken, my colleague on the Justice 2 Committee in the previous session, working with the judiciary, resulted in a shortened procedure in personal injury cases as a result of a petition from Clydeside Action on Asbestos. Although we have further work to do for the victims of mesothelioma, that previous work should be acknowledged. Bill Aitken and I know, because we have been along to Lord Mackay's court, that having a preliminary procedure contributes greatly to reducing the overall time that is involved in getting victims to court. I understand that, far from taking two or three years as it used to, the procedure has been shortened to six months in some cases. However, we need to do more.

It is often the case that those who are most excluded from society in general are equally likely to be excluded from the legal system. In particular, women who apply for protection from abuse interdicts, which is a civil procedure, will have child benefit counted as income for the purposes of legal aid. That does not seem to me to be a fair way of assessing who is poorest and most in need of public funds.

It would be wrong to assume that the civil system is accessible to those on modest or average incomes. The cost of taking a civil action is high and, importantly, not easy to predict. We must examine the whole system, not only what happens in court but what happens when people get advice. Lawyers need to consider closely the transparency of their fees. Ordinary citizens will know, if they have been for advice, that it is difficult to get a lawyer to say one way or the other what the costs of action will be. I am sympathetic to the reasons for that, because it is not always possible to predict the costs, but it is not acceptable that we persisted for so long with lawyers not issuing letters of engagement to their clients. Through the work of the justice committees, the Law Society has recommended that its members should tell their clients roughly what they should expect in the preliminary stages of taking legal action.

The area of law that is in need of most reform is family law. The need for speed, the need to reduce delay and the need for accessible and affordable justice are nowhere illustrated more clearly than in family law. Sylvia Jackson and I talked at length during the passage of the Family Law (Scotland) Bill about the absurd procedure in which it is possible to be found in contempt of court and go to the beginning of the proceedings to amend the original action. I am running out of time and I wanted to say a lot more about that.

We need to speed up the system and make it more affordable. That is what access to justice is about, but we must not miss the point that the procedures need to be simple and easy to understand. If the Executive wants to open up the field not only to lawyers but to non-lawyers, it cannot continue with a system as complex as the one that we currently have. Lawyers might be a bit nervous about some of the action that we are taking in the Parliament, but there is an unmet need. Loads of people who need to take action in our courts will never get near them because they do not have the money or resources to do so.

There is plenty of work for everyone and we need to reform the system with those objectives in mind.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:24 pm, 20th April 2006

Our justice system is one of the cornerstones of our society. It protects, defends and secures the future of our citizens. However, recent surveys have found that many people lack confidence in our system, specifically the civil courts. We have an obligation to provide our citizens with the best legal opinions possible in order to protect their rights. Therefore, we must review our current legal system to determine the most efficient and effective way of providing high-quality legal information, advice, assistance and representation to all of Scotland's residents.

I particularly agree with Sylvia Jackson and Pauline McNeill's comments on family law. I, too, was a member of the committee that dealt with the Family Law (Scotland) Bill and there is no doubt that we need to change things in that area.

The Executive has examined the need for legal advice, the need for preventive measures and the nature of funding for legal advice, but those issues remain problems today, so more must be done. Our legal system often perpetuates inequality because those who are already disadvantaged are hurt more by a lack of access to legal information and representation. In 2004-05, more than 244 cases were denied representation due to a lack of resources. We must re-examine our legal system to ensure that nobody falls through the gap. I agree with Jeremy Purvis, John Swinburne, Colin Fox and the other members who highlighted the issue and said that everybody has a right to legal advice. We must make sure that everybody has access to good legal advice.

We have made progress. In 2004, the Executive completed a strategic review of publicly funded legal advice. Additionally, the Executive is working with local authorities to assess the need for legal aid and with the Scottish Mediation Network to promote greater awareness of mediation. We have increased mediation and brought to life the commercial court at Glasgow sheriff court. Those are good steps. We now need to discuss ways in which to extend those successes. We need to build on what we have already done in order to secure a more efficient judicial system for Scotland, so I welcome the minister's comments on the review of civil justice.

I want to raise one particular issue, which is the small claims procedure in Scotland. Kenny MacAskill and David Davidson mentioned the small claims court, but I will go into a bit more detail. As David Davidson said, the current limit in Scotland was set in 1988 and is £750. The limit south of the border is £5,000. I agree with Kenny MacAskill that small claims could be dealt with outside the court system. That is a good idea and I hope that the minister will consider it. What does £750 cover today? Not much. If someone has a claim in relation to a family holiday, a home improvement, an extension or a large car repair, £750 will not come close to solving the problem.

The small claims procedure provides a simple means of redress in civil matters, but it is letting down a large number of people. Mary Mulligan talked about people in her constituency who have had problems with legal advice. Several of my constituents who have been dissatisfied with the small claims procedure have come to me to ask what I can do. The problem is that I can do very little. I refer them to a lawyer, but they say that they have already been to a lawyer and that it cost them a substantial sum.

People on low incomes should be exempt from the mandatory court fee, which is £36 when the claim is for £50 or more. I do not think that many claims in the small claims court are for less than £50. In England and Wales, people on certain benefits are exempt from some court fees following a High Court decision that access to the civil courts is a constitutional right. Moreover, I suspect that the lack of an exemption might be open to a challenge under article 6 of the European convention on human rights. All successful litigants should be entitled to recover the court fee regardless of the value of the claim.

At present, when the claim is for £200 or less, the successful party in a defended case is usually not entitled to any expenses, including the court fee. That rule is likely to deter those who may have a valid claim for a small sum but will be unable to recover the £36 court fee, given that £36 is still a significant sum for many. I have raised that issue with the minister on a number of occasions in the past couple of years. Perhaps somebody could say what progress has been made recently.

We must examine civil court reform. There is no clear-cut answer, although the experience of the commercial court at Glasgow sheriff court suggests that there might be a place for judicial case management and a greater use of information technology. However, more than anything, we need to take an in-depth look at the functioning of our civil courts while keeping in mind the complexity of the issues that are at hand.

Reinhold Niebuhr once said:

"Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary."

We have an obligation to use our power as the Government to protect all of Scotland by providing every person with the ability to achieve justice. Let us undertake a comprehensive examination of our civil courts and strongly consider the reforms that the minister suggested. I support the motion and the amendment.

Photo of Bill Aitken Bill Aitken Conservative 4:30 pm, 20th April 2006

Times change, society becomes more complicated and life generally becomes more difficult. On that basis, the Executive is correct to examine the operation of the civil justice system. The Scottish system may not be the acme, but it does a reasonable job, although that is not to say that it could not do a better job. We certainly need to examine it. Lord Coulsfield dealt with the proposed changes under six headings. I will go through them and relate them to the speeches that members have made in this extremely constructive debate.

Several members have mentioned the disproportionate cost of litigation, particularly in low-value cases. That is undoubtedly the situation. For members, £200 or £300 might not be a great deal of money, but it is a significant amount to a person who has a very low income. If someone has suffered injury or loss, they should be entitled to recover their money without having to spend £250 to get it back. We must examine how the system operates and we must acknowledge that it does not operate terribly well. Whether we go down the English route of allowing substantial sums to be recovered under the small debt process, or whether we consider introducing another process—Kenny MacAskill hinted at that—will become apparent as the matter goes through the committee and parliamentary process.

It is true that many civil cases are disrupted because criminal cases are given priority. There is no other way to deal with the situation. Sometimes civil cases are lengthy and complex and the demands on senators of the College of Justice are considerable. Sometimes it is not possible to start and finish a case without stopping. In the intervening period, a judge can be tied up in criminal cases, frequently on the circuit. I do not think that much can be done to change that, but we should by all means examine the system.

The potential benefits of increased specialisation of courts or judges have been considered. That has undoubtedly worked in Glasgow but—as Sylvia Jackson asked—what would happen in a two-sheriff jurisdiction, for example? I suggest that each sheriffdom could have a specialist sheriff for various headings. If a commercial matter had to be dealt with in Stornoway, the sheriff who was the commercial judge in the sheriffdom of Grampian Highland and Islands could go there, although he might normally be based in Inverness. That is not a problem that cannot be overcome.

For the reasons that Pauline McNeill articulated, I am keen on judicial management of cases. That has undoubtedly worked with the mesothelioma cases—Lord Mackay drove them firmly but gently and achieved early resolution—but the system is far too complicated. When something is done for which someone is liable, the current delays in settlement should not occur. I suppose that I am a poacher turned gamekeeper, in that I used to work in the insurance industry. Insurance companies are guilty, particularly in personal injury actions, of settling at the door of the court, which is unacceptable and must be addressed. If we had much firmer judicial management and a tougher approach to the delays that seem to be built into the system, we could make progress.

Several members, including Mary Mulligan, talked about the level of legal aid payments. Far be it from me to plead a case for members of the legal profession—most of whom do not appear to have missed too many meals—but the fact is that there are constant complaints about legal aid levels, particularly in civil cases. Fixed fees, which have been applied in criminal matters, have not been entirely successful—indeed, as the minister will be aware, a case is kicking around the European system that may produce a less than satisfactory result from the Executive's perspective. That case will have to be considered. Perhaps fixed fees are not always the answer.

The final point that Lord Coulsfield raised was that many judgments are made and delivered but cannot be enforced. That situation is ludicrous, so we must examine it carefully.

Other points have been made: Bill Butler pointed out that the Scottish Legal Aid Board cannot fund any legal assistance that is provided by unqualified persons. On the face of it, the Scottish Legal Aid Board's being able to fund citizens advice bureaux, for example, is an attractive idea, but there is a problem with it in that citizens advice bureaux will not have professional indemnity insurance. If things go pear shaped with an action, the constituent or client will not be able to make a recovery, whereas if a lawyer is involved, there might be a recovery, depending on what had happened. That recovery would be paid by the insurance company under professional indemnity insurance.

The matter that we are discussing is complex and interesting, and I think that progress will be made on it when it is considered in the parliamentary process. However, we are content with the proposals that the Executive has made and with Mr MacAskill's amendment.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party 4:37 pm, 20th April 2006

The debate has been characterised by a variety of insights into the system and by a useful degree of consensus—there has been greater-than-usual consensus on the front benches. I can speak comparatively free from the tickle in the back of my throat entirely as a result of an intervention by the Deputy Minister for Justice, who passed a peppermint to me earlier in the debate. He is an old sweetie.

Photo of Murray Tosh Murray Tosh Conservative

I should point out that eating in the chamber is against the standing orders, Mr Stevenson.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I am not sure that I said that I ate the peppermint, Presiding Officer.

That aside, what happened neatly illustrates a legal dilemma that I might have in the civil justice system. If I fall ill this evening during my drive north to my home, I do not know whether I should sue the deputy minister—of course, he might be subject to parliamentary privilege in that regard—or the manufacturer of the peppermint. I did not see who the manufacturer was, although I think it was Trebor, which is of course a highly respectable company.

Photo of Bill Aitken Bill Aitken Conservative

Despite Mr Purvis's admonitions about using technical language, does Mr Stevenson agree that it would be a case of volenti non fit injuria?

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Mr Aitken illustrates his ability to turn from poacher to gamekeeper. In his role as a poacher, that would be a matter for the criminal law. I expect sanctions to be levied against him in due course.

It is interesting to examine the attitudes of those of us who are not lawyers to the legal profession. Early in my professional career, I worked with an eminent company of lawyers in Edinburgh called Maclay Murray and Spens, which was universally known as Delay, Worry and Expense: chant the name together—we all know it. The name perfectly illustrates the attitude of lay people towards civil justice and lawyers in general. For many people who are not poor enough to be supported in pursuing legal actions or wealthy enough to pursue legal actions to the point of absolute resolution and satisfaction, going to law is genuinely difficult.

In her introductory remarks, on the first of her six points the minister talked about disproportionate costs. She made the fair and absolutely reasonable point that going to court is costly just to get £750. However, what she did not mention, although it was mentioned in the strategic review on the delivery of legal aid, advice and information, which started in 2003, was that there is disproportionate risk and reward for the different parties when a large corporation and a private individual are in confrontation before the courts. The review document acknowledges that under the heading, "Ensuring equality before the law". In fact, the document goes further than that.

The minister may recall that my colleague, Fergus Ewing, wrote to her on 7 April about one of the voluntary organisations in his constituency, which believes that it may be about to be sued. As a voluntary organisation, it is not entitled to civil legal aid and has limited resources to resist the depredations of a large company that is threatening—however indirectly—to sue it. It is a difficult and complex area, and the fear of runaway costs will be a huge deterrent to a company's going to law to defend its interests, whether to pursue someone or to defend against an unreasonable attack from a large body. The members of the review panel—unusually, although I am not sure why—included a representative of the Big Lottery Fund board. In many ways, that perfectly illustrates that going to civil law can be, for many people, a bit of a lottery.

Kenny MacAskill, who is a lawyer, spoke of his difficulties in enforcing a warranty. If a lawyer says that it is difficult—

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

My colleague reminds me that he is a retired lawyer.

My spouse, on the other hand, has had a similar issue in relation to a minor bump that she had in the car. Fortunately, she had inadvertently ticked the box on her insurance application and paid the extra £10 to get legal support. When she got it, the support was excellent: she had no fears about the costs and she got her excess back from the other party, who had caused the accident. Had she not ticked that box, the £300 in question would have gone west.

This has been a useful debate, which has touched on many aspects of life in Scotland. More and more of us are becoming engaged in civil law and, perhaps, in criminal law. The efficiency and effectiveness of court processes must be addressed, but we must also consider how we can give people affordable access to more efficient processes. In speeding things up, we cannot trade off thoroughness and fairness against speed because one party's advantage may, in certain circumstances, be another party's disadvantage. It is complex, and we wish the minister well in her endeavours on this. When she gets it right, we will support her.

Photo of Hugh Henry Hugh Henry Labour 4:44 pm, 20th April 2006

I state for the record that any possible by-election in Banff and Buchan is the unintended consequence of an act of human kindness.

Today's debate has been useful. It has shown that, for too long, we have concentrated on aspects of our criminal justice system at the expense of addressing some of the difficulties that have been developing in civil law. We have heard how much civil law impacts on all our lives in a myriad of ways, some of which are more obvious than others.

Having spent so much time and effort driving through major reforms in the criminal justice system, it is right that we now take a step back and consider what is needed in the civil law system. Our intention behind today's debate was not to offer a prescription or a blueprint, but to ask people to stop and think about what we need to do for the future. We want genuinely to engage people in a wide-ranging debate. We have already taken steps to talk informally to stakeholders in civil law to find out from them what the difficulties are and what their ideas are. We have made informal approaches to the judiciary to inform it of what we intend to do and I hope that we will, following the debate this afternoon, be able to engage with members of the Parliament about changes that are needed outwith the formal parliamentary process.

It is incumbent on us to be realistic about what will be required. There is no way that we will resolve all the issues of civil justice in the next 12 months. We are putting down an early marker, but we will have to leave it to a future Administration to develop and deliver the plans, although it is right that we touch on some of the more immediate issues.

This afternoon's debate has inevitably covered some of the detail of the forthcoming Legal Profession and Legal Aid (Scotland) Bill. I mention that in passing, but do not intend to go into too much detail because we will have further opportunities at stages 1 and 2 of the bill to examine the detail.

It is important to remember that although we have been concentrating so much on criminal law, we have not entirely neglected civil law. Pauline McNeill and Sylvia Jackson mentioned the great deal of work that we have done in family law. We have also made significant changes to property law in Scotland and Parliament is engaged in further work on bankruptcy and diligence. I have mentioned legal complaints and there is also the strategic review of publicly funded legal advice and assistance. I will return to some of the points that have been raised about in-court advice and mediation services, on which we have done some work.

We intend that our civil justice plan will set out a framework for reform. As a number of members said, we need to increase access to justice—Kenny MacAskill and Pauline McNeill developed that theme. It is not just about access, however; it is about affordability and ensuring that everyone has access to justice. As Pauline McNeill said, it is about trying to reduce and minimise the complexities in the system.

We want to encourage mediation. Mary Mulligan was right to mention some examples and I pay tribute to the work of the in-court advice and mediation project in Edinburgh. We are using a slightly different model for pilot schemes in Aberdeen and Glasgow. I have met representatives of the Edinburgh project and have spoken to people elsewhere and I have been tremendously impressed by the breadth of advice and experience that have been brought to the process, as well as by the swiftness with which resolution can be achieved outwith the formal court process. Where that can be done, it should be done. The best way to progress is to ensure that going to court is the last resort. However, if a case has to go to court, the process should be quick and cost-effective. As Kenny MacAskill and other members have said, the response should be proportionate to the case. I will return to points that were made about small claims.

Margaret Mitchell spoke about arbitration. We have been considering how to deal with arbitration in the proposed arbitration bill. However, it is not just a question for the Executive because there are issues about the parliamentary time that is available before the next election. Both the justice committees are fully engaged with a number of bills and there will be no opportunity to progress an arbitration bill. However, it is right that we put down as a marker our support for use of arbitration and that we recognise the contribution that it can make. I hope that a future Parliament will return quickly to the issue to consider what needs to be done and how it should be done. Indeed, there may well be issues that can be addressed outwith legislation—we should move on that. However, where legislation is required, it must be considered.

Kenny MacAskill, Mike Pringle and David Davidson spoke about issues around small claims. The Minister for Justice has indicated her support for changes. Kenny MacAskill spoke about the ludicrous nature of the limits for small claims, to which David Davidson, Bill Aitken and others also referred. However, on the point that was raised about personal injuries, it is right to record that we have made it clear for years that there is no way that we will support personal injury cases being dealt with in the small claims court. There is a separate issue to be addressed about whether personal injuries are best addressed in the Court of Session or whether there is an opportunity to develop expertise in the sheriff courts, as Pauline McNeill and Bill Aitken suggested, because expertise in commercial law is developing. We need more discussions on that.

John Swinney raised a number of issues arising from his interest in the Legal Profession and Legal Aid (Scotland) Bill. We can return to the question of the levy later on. Suffice it to say that we have laid out a framework for and suggestions about the balance between the general levy on people across the profession and an individual levy on those against whom a complaint is made, but we have no particular view about what that should ultimately look like. We have given our initial suggestions and we believe that it is right that the Scottish Law Commission should consider the issue. Its engagement in discussions with the legal profession should determine what the balance should be. We have said that no additional costs should be involved for the profession as a whole and that we do not think that there is a need for further expenditure. However, I am willing to engage in discussion at this stage on how any expenditure should be levied for, though I remind people that we believe that the Scottish Law Commission has a role in taking forward that discussion at a future date.

Issues have been raised about the availability of legal advice and about non-qualified legal advisers. Again, I will come back and discuss that with the Justice 1 Committee as the Legal Profession and Legal Aid (Scotland) Bill proceeds. However, we are committed to ensuring that a variety of sources is available for advice work. Reference was made during the debate to the advice work that the Scottish Legal Aid Board has funded. I recognise the value of that and I want it to continue. However, on CABx, I put on record that funding is not determined by the Scottish Executive Justice Department.

There is a particular issue on which Parliament must reflect; I have made this point before in debates. MSPs have told the Executive on a number of occasions that we should not interfere with decisions that are made by local authorities, which are funded to carry out work at the local level. However, we are also encouraged to take centralised decisions on funding for local agencies.

Photo of Christine Grahame Christine Grahame Scottish National Party

I hear clearly what the minister is saying and I believe in democratic local government. However, in this instance, when we are trying to take a broad view of the justice system and accessibility to it, I would like the minister to consider regarding CABx as an integral part of the justice system and have them funded by the Justice Department. I ask the minister to consider that, at least.

Photo of Hugh Henry Hugh Henry Labour

We must acknowledge that CABx do more than just give legal advice. There is a particular issue that we must address, which is people's belief that the question of Executive funding for local authorities to deal with local matters is not being properly addressed. Do we want to centralise funding or should we continue with the current model? We need a separate debate on that.

Sylvia Jackson mentioned specialist courts. There will be an interesting debate to be had with the judiciary about what will develop because such courts would be largely its responsibility. Mary Mulligan and Jeremy Purvis touched on issues regarding the voluntary sector, which I think will develop apace.

I believe that the debate has been a good starting point for a debate on civil justice. We have acknowledged the contribution that lawyers, many people in the voluntary sector and the CABx make. We have also said that we have an open mind on how the future system should be developed.

We genuinely want to hear new ideas and to stimulate debate about how legal advice should be provided. I hope that, in the coming year, we will be able to reach out, through Parliament, to a wider section of Scottish society to ensure that what we do reflects the best interests of the people whom we represent, and that it represents best practice in respect of what we choose to proceed with.

Meeting suspended.

On resuming—