Legal Aid Payments

– in the Scottish Parliament at on 28 June 2022.

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Photo of Pauline McNeill Pauline McNeill Labour

2. To ask the Scottish Government what its position is on reports that the Scottish Solicitors Bar Association says that the impasse on legal aid payments has meant that the entire criminal justice system is in “imminent danger of collapse”. (S6T-00828)

The Minister for Community Safety (Ash Regan):

To put it simply, that is not accurate; the justice system is working through and reducing the Covid backlogs. The Scottish Courts and Tribunals Service has confirmed that the trial backlog has reduced by nearly 1,500 trials since April, and cases concluded are above pre-Covid levels in the High Court and the sheriff courts.

The court recovery programme is progressing in line with the expected pace. Our recent offer to the profession in May represented an increase of more than 20 per cent over four years. Unfortunately, that was rejected by the profession, but I can update members that we have drafted a new proposal, which will be put to the Law Society of Scotland this week.

Photo of Pauline McNeill Pauline McNeill Labour

On 25 April, criminal practitioners voted to refuse all new instructions in summary cases in specific domestic abuse cases. They stated that that was necessary due to the Scottish Government’s decision not to adequately fund legal aid. In 1999, a summary legal aid case attracted £550, but in 2022, that figure is £550.76, so the headline figures on increases do not reflect the reality of those fees. Another example is representing under-21s in remand cases—for complex cases, there is no longer a separate fee.

The Scottish Solicitors Bar Association, which is the nation’s biggest defence lawyer group, has said that negotiations have been a failure so far. A proposal on the table in order to engage with the Scottish Solicitors Bar Association would be welcome. It has also said that it has no choice but to decline cases because they are not financially viable, and it warns of a total withdrawal from the scheme by the beginning of next year if there is no negotiation.

Does the minister accept that if we do not resolve the issue, there will be a crisis in the service, and what will she do address those concerns?

Ash Regan:

I will pick up a couple of the member’s points. There was a substantial set of reforms over many years prior to 2008. For clarity and purposes of discussion going forward, it is probably best if we stick to fee rates since 2008.

One point that the member raised was about DASADomestic Abuse (Scotland) Act 2018—cases. I have said in the chamber previously that prior to notification about action by the profession, DASA cases and the fee rates for those cases had not been raised with me. Had they been raised with me prior to that point, I would certainly have tried to address the issue.

The Scottish Government is, and continues to be, in active negotiations with the profession. Members will understand that I need to balance interests across the justice landscape and that I am operating in a very challenging public finance environment. Nonetheless, our actions and our investment in legal aid to date show that we are a Government that is listening and that wants to work with the profession to find a way forward.

Photo of Pauline McNeill Pauline McNeill Labour

If the Scottish Solicitors Bar Association has not raised those issues with the minister, I am raising them with her now. In the 10 years prior to the pandemic, there was a 25 per cent loss in the number of solicitors who were engaged in legal aid work. I am sure that the minister will take the point that there is not only a crisis in fees; there is a crisis of not having a properly resourced defence service. That is the direct result of the dramatic reduction in public spending on legal aid over the past 20 years.

In 2008, which is the benchmark that the minister is happy to accept, public spending on legal aid was £155 million, but in 2019-20, it had gone down to £130 million. There has been a fall of £85 million when inflation is taken into account. It is important that the Scottish Solicitors Bar Association says that the average rate for a newly qualified defence solicitor is £25,000, against £48,000 for someone who works for the Crown Office.

The Presiding Officer:

Briefly, Ms McNeill.

Photo of Pauline McNeill Pauline McNeill Labour

We can see that we are not attracting people into the profession. Given the loss of solicitors in the sector and the huge pay discrepancies, does the minister believe that, if Scotland is to stand up and say that we have properly resourced and good access to justice, we need to resolve that crisis now?

Ash Regan:

I remind members that Scotland is one of the leading jurisdictions in Europe on legal aid in terms of scope and eligibility. I am afraid that I cannot accept Pauline McNeill’s characterisation of the figures that she uses because—I know that she knows this—the legal aid budget is demand led. Therefore, it reflects the work that has been done, usually up to around two years before, although, obviously, that varies from year to year.

Members will be aware that negotiations with the profession have been going on for some time. I know that a number of sets of figures and different percentage rates are bandied about, and I want to be very clear about what has been agreed so far.

In 2019, the Scottish Government put forward a 3 per cent uplift on all legal aid fees across the board and, in 2021, it did a 5 per cent uplift on legal aid fees across the board. That was followed by a further 5 per cent uplift across the board in 2022. In addition to that investment, there was £9 million in Covid resilience funding and £1 million in traineeship funding, which were particular to Scotland.

An issue was raised with me that I managed to resolve. I set up an entirely new payment for holiday courts.

Ash Regan:

Unfortunately, we were not able to accept the profession’s previous ask, which it raised with me prior to May, of a 50 per cent rise in legal aid fees. That was in addition to the investment that the Government had already put in. We put forward a rise, the total of which, as I mentioned in my previous answer, amounts to a 20 per cent increase. For context, that is much more than what has been offered in England and Wales.

Members will understand that the process is time consuming.

Ash Regan:

We are in active negotiations, and I am committed to finding a way forward.

The Presiding Officer:

I will take two brief supplementary questions.

Photo of Audrey Nicoll Audrey Nicoll Scottish National Party

How does investment in fee uplifts in Scotland compare with that in England and Wales? For those who are seeking access to legal representation, how does Scotland’s legal aid system compare with that of England and Wales in terms of scope and eligibility?

The Presiding Officer:

You should be as brief as possible, minister.

Ash Regan:

The Scottish Government has provided fee uplifts and grant funding that are much greater than what has been offered—it has not yet been accepted—in England and Wales. Combined with our latest offer to the profession, that totals 20.5 per cent since 2019.

Photo of Jamie Greene Jamie Greene Conservative

The minister might be aware of comments that have been made by her Scottish National Party colleague Mr Dave Doogan MP, who took to Twitter last night to mock well-respected members of Scotland’s legal profession as they raised valid concerns about Scotland’s justice sector. He aimed his comments at a female lawyer who is quitting the profession due to the mental health impact that the workload is having on her. For the record, does the minister condone or condemn his comments?

Ash Regan:

I am afraid that I have not seen those comments, but I will endeavour to have a look at them. I can then come back to Jamie Greene on them.

As I said, we are in active negotiations, and I am very committed to finding a way forward. I have also reminded members that Scotland is a leading jurisdiction in Europe on legal aid. We have put forward to the profession a substantial package of investment, and we have, of course, retained the scope and eligibility in Scotland. I remind Jamie Greene that that is not the case in England. More than 70 per cent of Scotland’s citizens are eligible for some form of legal aid; in England, the figure is just 25 per cent, following some quite dramatic cuts there. I do not think that anyone in Scotland would want me to follow the example of the Conservatives on legal aid.