Solicitors (Domestic Abuse Cases)

– in the Scottish Parliament at on 26 April 2022.

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Photo of Jamie Greene Jamie Greene Conservative

2. To ask the Scottish Government what its position is on the potential impact—[


.] Pardon me: I am reading out Daniel Johnson’s question. It was very well asked, although it is worth asking again, given that we did not get an answer the first time. However, I will now ask question 2.

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

The Deputy Presiding Officer:

You just about recovered there, Mr Greene.

The Minister for Community Safety (Ash Regan):

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

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

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

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

Photo of Jamie Greene Jamie Greene Conservative

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

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

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

Ash Regan:

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

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

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

Photo of Jamie Greene Jamie Greene Conservative

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

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

“crisis in legal aid ... threatens the very core of justice” and risks “irreparable damage.”

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

Ash Regan:

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

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

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

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

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

The Deputy Presiding Officer:

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

Photo of Audrey Nicoll Audrey Nicoll Scottish National Party

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

Ash Regan:

I have regular routine meetings with the Law Society of Scotland. During the early stages of Covid lockdown, additional meetings were held, and we moved to having very regular meetings with officials and ministers to discuss the impact of Covid on solicitors. There was close working with officials on mitigating that impact, including in relation to the grant funding that I mentioned previously.

The former cabinet secretary and I met representatives leading up to the £20 million package of funding. That close working has continued, with the most recent meeting with the Law Society being last Thursday.

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

Photo of Baroness Katy Clark Baroness Katy Clark Labour

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

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

Ash Regan:

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

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

Photo of Rona Mackay Rona Mackay Scottish National Party

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

Ash Regan:

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

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

Photo of Liam Kerr Liam Kerr Conservative

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

Ash Regan:

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

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

Photo of Stephen Kerr Stephen Kerr Conservative

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

Ash Regan:

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

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

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

The Deputy Presiding Officer:

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