– in the Scottish Parliament at on 23 January 2018.
1. To ask the Scottish Government what action it will take to ensure that everyone in police custody can exercise their right to legal advice from 25 January 2018. (S5T-00881)
I refer members to my entry in the register of interests, wherein they will find that I am a member of the Law Society of Scotland and that I hold a practising certificate, albeit that I am not currently practising.
Part 1 of the Criminal Justice (Scotland) Act 2016 introduced increased rights of access to legal advice for people being held in police custody. Those provisions followed recommendations in Lord Carloway’s review of Scottish criminal law and practice and wide public consultation. The Criminal Justice (Scotland) Bill was passed unanimously by Parliament in December 2015. Since then, there has been extensive engagement with legal professionals through the Law Society of Scotland and local representative groups.
Regulations to ensure that a significantly enhanced package of legal aid funding is available for private solicitors providing police station advice under the new arrangements were approved by the Scottish Parliament last month. The regulations introduce a new block-fee system: a simplified process for claiming for police station advice whose rates are an increase on existing rates. Police station advice is provided through a combination of solicitors in private practice who opt to be part of the police station duty scheme and solicitors employed directly by the Scottish Legal Aid Board.
Where private solicitors have chosen to not participate in the current or new scheme, the Scottish Legal Aid Board has confirmed that it will handle requests for police station advice through the 599 private solicitors who remain on the duty scheme and its own employed solicitors on the solicitor contact line and in the Public Defence Solicitors Office. That will ensure that appropriate access to legal advice is available for those in police custody from 25 January.
I thank the minister for that detailed response. The changes that are involved are indeed big ones for the police and those tasked with ensuring that everyone has the legal advice that they need at every stage of the justice process. Given recent developments and the serious concerns that have been expressed from the Borders to Moray and beyond, what assessment has the Scottish Government undertaken of the situation and how many people are expected to be working on the provision of legal advice for those in police custody on day 1 of the new scheme, which is the day after tomorrow? How does the minister respond to the suggestion that was made by Deputy Chief Constable Livingstone at the Justice Committee this morning that some people might have to be moved between police stations to facilitate access to a solicitor?
Contingency planning has of course been in place for some considerable time, as informed by the Scottish Legal Aid Board, in terms of the range of arrangements that had to be put in place to implement part 1 of the 2016 act. In addition to the 599 private solicitors who are available for the on-call duty scheme, to which I referred in my first answer, there are currently 13 solicitor contact line solicitors working a shift pattern and 24 PDSO solicitors. As would be expected, all matters are currently, and will continue to be, under close monitoring to ensure that we have all necessary arrangements in place.
In response to the question that the member raised about what DCC designate Iain Livingstone said in evidence at this morning’s Justice Committee meeting, we are confident in general that access to legal advice will be available in whatever location someone is held in police custody without there being any need for them to be moved. As part of sensible continuity planning, however, if there were particular circumstances in which it was absolutely necessary to move someone who was being held in custody to ensure that they had access to legal advice, it would be possible to do so, as is the case under the current arrangements. However, as I said, we do not expect that to be required as part of the normal duty arrangements.
I thank the minister for that answer. This week, Ian Moir of the Law Society of Scotland said that falling pay rates and difficulty in balancing on-call work with family life were leading to a significant fall in the number of solicitors who are willing to take on legal aid work. The review of legal aid that was announced in February 2017 was expected to take a year, and was established to engage with the legal profession and come up with
“specific measures to reform Scotland’s system of legal aid, maintaining access to public funding for legal advice and representation”.
Will the minister tell Parliament when she expects that review to report?
I clarify that the police station duty scheme is entirely voluntary; no solicitor needs to participate in it, and even those who sign up for it are not required to make themselves available 100 per cent of the time. We have also extended the definition of the antisocial hours premium so that it applies not simply to telephone calls but to travel, which was not requested by the Law Society of Scotland in my negotiations with it.
Finally, we expect the report on the review of legal aid next month.
Will the minister confirm whether discussions have been held with SLAB and whether it feels comfortable with the changes that are being made to the provision of legal aid?
Officials have been closely engaged with SLAB about the delivery of the 2016 act’s provisions, and SLAB has engaged directly with the profession on the implications of the new rights and the capacity of the profession to deliver. The operational capacity to deliver is continuously assessed, as is normal practice for the current arrangements, and SLAB is comfortable with the changes that are being made and with the ability to deliver on the new rights.
I follow the minister’s comments about the intricacies of the matter, but I think that the Law Society of Scotland has said that, in order for it to work in practice, the extension of the right to have a solicitor present will require legal aid rates to increase significantly in order to reflect the additional work. In the light of that, does the minister agree that that adds to the case for legal aid reform and, indeed, that the timing of the arrangements’ implementation—before the report that Liam McArthur referred to—is unfortunate, at the very least?
I will respond to the points that have been raised. First, part 1 of the Criminal Justice (Scotland) Act 2016, to which I have referred, is due to come into force this Thursday. Therefore, it would have been irresponsible of us not to have had in place legal aid arrangements that reflect the new position. As I said in my response to Liam McArthur, the legal aid review is expected to report next month, and it might be important, for the record, to state that we listened to the Law Society of Scotland’s negotiating team and increased the block-fee rate. We also extended the definition of the antisocial hours premium to include not just telephone calls but travel, which was not even requested in the discussions with the Law Society. Therefore we increased our offer, and we believe that it was a good one. We see that many private solicitors have decided to remain in the police station duty scheme.