16th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 790 (Web)

Contents

Report

Introduction

COURTS REFORM (SCOTLAND) ACT 2014 (CONSEQUENTIAL PROVISIONS NO. 2) ORDER 2015 [DRAFT]

LEGAL AID AND ADVICE AND ASSISTANCE (MISCELLANEOUS AMENDMENTS) (SCOTLAND) REGULATIONS 2015 [DRAFT]

Remit and membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Christine Grahame (Convener)
Elaine Murray (Deputy Convener)
Christian Allard
Roderick Campbell
John Finnie
Margaret McDougall
Alison McInnes
Margaret Mitchell
Gil Paterson

Subordinate Legislation

The Committee reports to the Parliament as follows—

Introduction

1. This is a report on two affirmative draft instruments which the Justice Committee considered as lead committee—

the Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 [draft];

the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 [draft].

The instruments and the “40 day rule”

2. The draft instruments have been brought forward mainly because of recent reforms to the Scottish court system, in particular the creation of a new court to hear appeal cases from the sheriff courts. If agreed to, the instruments would come into force on 22 September; the date on which the Sheriff Appeal Court will also come into existence. During consideration of the second instrument, the Minister told us that it was very important that it became law by 22 September (see further below).

3. The first instrument was lodged on 8 June; the second on 9 June. By virtue of what is colloquially known as the “40 day rule” set out in Standing Orders,1 the Committee has until 20 September to report to the Parliament on the first instrument and until the 21st on the second; these being a Sunday and a Monday – neither of course days on which the Chamber ordinarily sits. In practice, therefore, if the Committee is to meet the Government’s aims in relation to these instruments, it must report on them before the dates determined by Standing Orders. This amounts in practice to a slight erosion of the 40 day rule, the purpose of which is to ensure adequate time for scrutiny of affirmative instruments. There will be occasions where this may be justified under the circumstances, but given that the new Court has been in the pipeline for some time, we are not convinced that those circumstances pertain in this case.

4. The Committee is reporting today, in order to give the Scottish Government the option of lodging a motion to approve both instruments before 22 September, which would in turn enable the whole Parliament to decide whether they should come into force at the same time as the Court. Particularly in the case of scrutiny of the second instrument, this has required the Committee to turn round a report to the Parliament in very short order. It also means that our Parliamentary colleagues are likely to have only very limited time to consider this report before any motion is considered. Whilst in this case there has been no technical breach of the 40 day rule, we encourage the Scottish Government to ensure that in future cases the spirit, as well as the letter, of the rule is always adhered to.

COURTS REFORM (SCOTLAND) ACT 2014 (CONSEQUENTIAL PROVISIONS NO. 2) ORDER 2015 [DRAFT]

The draft instrument

5. The draft instrument was made under the powers conferred by section 137 of the Courts Reform (Scotland) Act 2014 and all other enabling powers. It modifies primary and secondary legislation in consequence of provisions of the Courts Reform (Scotland) Act 2014 Act commenced on 22 September 2015 by the Courts Reform (Scotland) Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2015 (SSI 2015/247).

6. The policy note provided with the draft explains that, with one exception the amendments made by the Order to existing legislation are made in consequence of provisions of the Act which–

  • provide for the exclusive competence of a sheriff (formerly known as the privative jurisdiction) (Schedule 1); and

  • establish the Sheriff Appeal Court in respect of its criminal competence and jurisdiction (Schedule 2).

Scrutiny by the Delegated Powers and Law Reform Committee

7. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 23 June 2015 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.2

Justice Committee consideration

8. The draft Order was considered by the Justice Committee at our meeting on 8 September 2015, when Paul Wheelhouse, Minister for Community Safety and Legal Affairs attended to give evidence on the instrument.

9. There being no questions from members for the Minister, Mr Wheelhouse moved the motion lodged in his name: S4M-14087—That the Justice Committee recommends that the Courts Reform (Scotland) Act 2014 (Consequential Provisions No. 2) Order 2015 [draft] be approved.

Recommendation

10. The motion was agreed to without further debate and without division.

11. The Justice Committee therefore recommends to the Parliament that it approve the draft instrument.

LEGAL AID AND ADVICE AND ASSISTANCE (MISCELLANEOUS AMENDMENTS) (SCOTLAND) REGULATIONS 2015 [DRAFT]

The draft instrument

12. The draft instrument was made under the powers conferred by sections 9, 33(2), (3) and (3A) and 36(2)(c) of the Legal Aid (Scotland) Act 1986 and all other enabling powers. It amends the Civil Legal Aid (Scotland) (Fees) Regulations 1989, the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, the Criminal Legal Aid (Scotland) Regulations 1996, the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 and the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003. The amendments—

  • provide for the availability of criminal legal aid and assistance by way of representation in criminal appeals to the Sheriff Appeal Court (established by section 46 of the Courts Reform (Scotland) Act 2014) and in relation to appeals and references from that Court to the High Court of Justiciary;

  • prescribe the fees payable to solicitors and counsel in relation to bail appeals to the Sheriff Appeal Court;

  • revise the table of fees applying to junior counsel in judicial review proceedings to take account of the new procedure introduced by section 89 of the 2014 Act; and

  • make provision in relation to the fees payable in relation to proceedings in an all-Scotland sheriff court established under section 41 of the 2014 Act and in relation to civil hearings for which no fee is otherwise prescribed.

13. It is the provisions relating to the criminal jurisdiction of the Sheriff Appeals Court that have been the focus of the Committee’s scrutiny.

Scrutiny by the Delegated Powers and Law Reform Committee

14. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 23 June 2015 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.3

Justice Committee evidence-taking

15. The Committee has over the course of scrutiny received a number of submissions on these draft Regulations; from the Government, and from representatives of the legal profession, including the Law Society and the Society of Solicitor Advocates. These have been collated into two PDF documents available online.4

16. The Committee first considered the Regulations on 8 September 2015, when we took evidence from Paul Wheelhouse, Minister for Community Safety and Legal Affairs and his officials.5

17. Some Members raised with the Minister concerns that the proposed rates of fees for solicitors representing clients in the new Sheriff Appeals Court, would raise access to justice issues, would be uneconomic, and would lead to solicitors not taking up work in the Court.6 Another concern was that, in more complex appeal cases where SLAB had granted sanction for counsel (ie permission for the appellant to be represented by a practitioner with a right to appear in a higher court), the Regulations would not permit solicitor advocates to be paid at a counsel’s rate. Instead, they would be paid the ordinary solicitor rate. The Committee had received representations that this would lead to solicitor advocates not appearing in the new court, depriving appellants of a full choice of representation.7

18. The Minister sought to address concerns over the level of rate by referring to costed examples which SLAB had prepared based on the fee levels set out in the Regulations. The Minister said that these showed that solicitors, in some cases, could expect to receive fees and expenses in the hundreds of pounds for work representing a client in the Sheriff Appeal Court.8 He also said that SLAB would be putting in place “a policy of flexibility” in its handling of legal aid applications to the new court, which would “ensure that it looks sympathetically on any application for sanction for counsel.”9 He acknowledged that solicitor advocates “may face some disadvantage based on the fees that they currently get when they appear at a higher level”10 but argued that the Regulations themselves did not create the anomaly of advocates and solicitor advocates sometimes being paid different rates for similar work.11 The Minister told the Committee that he intended to review the Regulations, within six months, to examine whether they had created particular disadvantages for solicitor advocates compared with advocates.12

Deferral of motion to allow more time for consideration

19. At the conclusion of the evidence session, the Convener, on behalf of the Committee, invited the Minister to defer moving the motion that the Committee agree to the instrument. This was on the basis that the Committee did not feel fully armed with the relevant facts as regards fees and outlays for work in the Sheriff Appeals Court. In particular, Members had not had sight of SLAB’s worked examples that the Minister had referred to, and which had been disputed in submissions received by the Committee. The Committee urged the Minister to use the opportunity provided by a deferral of the motion to meet again with the Law Society to explore some of the questions around the Regulations.13

20. The Minister accepted the Convener’s suggestion but (as noted earlier in this report), indicated that it was important to implement the Regulations before 22 September, otherwise “solicitors will be in a greatly more disadvantaged position.”14

Debate on the instrument at the Justice Committee

21. The Minister returned to the Committee on 15 September 2015, to move and speak to the motion lodged in his name: S4M-14088—That the Justice Committee recommends that the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 [draft] be approved.15

22. A debate on the instrument then took place. These were the main points raised:

23. Access to justice: Some Members expressed satisfaction with the efforts the Minister had made to reassure the Committee, and stakeholders, that the rates set out in the Regulations would not be uneconomic, with reference being made to SLAB’s worked examples appearing to show that solicitors could potentially be reasonably remunerated for work done.16 (The Minister had said these showed that solicitors could earn as much as £900 per case; from the initial defence through to the appeal.17) In summing up the debate, the Minister told the Committee that the Government was “absolutely committed to ensuring that individuals are represented well for appeals”.18 However, a majority of Members were not reassured, noting strong doubt from within the legal profession as to whether the worked examples could be considered a reliable indicator of future payment rates.19 The majority of the Committee also noted that, despite the Minister’s efforts to explain the likely effect of the Regulations, he had not yet appeared to have persuaded solicitors, many of whom continued to argue, in representations to Committee members, that they would not be able to carry out work at the proposed rates.20 Accordingly, a majority of the Committee took the view that there was a real risk that the Regulations might deprive people on low incomes of access to justice in the new Court.

24. Travel to Edinburgh and access to justice where client is from outwith Edinburgh: For a majority of the Committee, concerns over access to justice were heightened in cases where the appellant is from outwith Edinburgh. This was on the basis of submissions from solicitors from various parts of Scotland indicating that the Regulations would not provide proper recompense.21 The Minister acknowledged concerns over the cost of travelling to the new Court but said that provision for travel made under the Regulations were not dissimilar to current arrangements and would be unlikely to disadvantage solicitors.22

25. Position of solicitor advocates: the Minister acknowledged that it was “not ideal”23 that, even if sanction for counsel were granted, solicitor advocates could not claim rates equivalent to advocates. He said that this “reflects the existing legal aid situation for civil sheriff appeals and other proceedings in the lower courts, where solicitor advocates do not exercise their extended rights of audience. We have already begun discussions with the Law Society, the Society of Solicitor Advocates and the Faculty of Advocates on the role of solicitor advocates in comparison with counsel with a view to addressing the wider issue.”24 The Minister referred to statistics indicating that the number of solicitor advocates doing the sort of criminal legal work likely to be taken up in the Sheriff Appeal Court was in any case small,25 but in other remarks reiterated comments made the previous week that SLAB would be likely to take a “flexible” approach towards sanctioning counsel in the early days of the court.26 (The Committee notes that, under the draft Regulations, any such benefit from this more “flexible” approach would presumably accrue only to advocates.) The Minister went on to tell us that “in the long term, the issue of solicitor advocates must be addressed. If a solicitor is unwilling to take forward a case to the sheriff appeal court or there is concern about equality of arms, we can amend the regulations in an accelerated process. I cannot give a timescale for that because obviously we would need to work with the committee on when it would be possible to do it.”27

26. Review of Sheriff Appeal Court operations: The Minister said he remained of the view that the Regulations made appropriate legal aid provision but that there would be an opportunity to review the operation of the new Court “early in the new year”.28 The Committee requests that the review be ongoing, and in particular that it identifies whether there are problems with access to justice arising from the Regulations and, if so, seeks to rectify them.

27. Effect of draft Regulations not being in place timeously: some uncertainty was expressed over what the Minister had meant in his evidence the previous week,29 and in his subsequent letter to the Committee, when he had indicated that if the Regulations were not agreed to, solicitors would be left in a “significantly worse” position.30 The Committee fully understands that, if the Regulations do not come into effect by 22 September, there would be no specific rules in place as to how lawyers representing clients in the new Court are to be remunerated. However, the Minister acknowledged that SLAB would still be able to make payments under existing powers. A majority of the Committee is not clear, following the debate on the instrument, whether those solicitors are likely to be better or worse off, should the Regulations not be agreed to in time.31

Recommendation

28. After debate on the instrument, the Minister’s motion was disagreed to (by division: For 3, Against 5, Abstentions 1).

29. The Justice Committee therefore recommends to the Parliament that it does not approve the draft instrument. This is on the basis of the views of the majority of the Committee set out at paragraphs 23 to 27 above, in particular concerns that the Regulations put at risk the safeguarding of access to justice in the Sheriff Appeals Court for people on low incomes.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.

Footnotes:

1 Rule 10.6.4

2 Scottish Parliament Delegated Powers and Law Reform Committee. 43rd Report, 2015 (Session 4). Subordinate Legislation. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/90873.aspx

3 Scottish Parliament Delegated Powers and Law Reform Committee. 43rd Report, 2015 (Session 4). Subordinate Legislation.

4 Subordinate Legislation - Parliamentary Business : Scottish Parliament

5 Scottish Parliament Justice Committee. Official Report, 8 September 2015, cols 3-12. Available at:

http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10071&mode=pdf

6 See, eg, written submissions of Dalling Solicitors and Notaries, the Glasgow Bar Association and the letter from the Law Society of Scotland to the Minister for Community Safety and Legal Affairs, 4 September 2105. All available on the Justice Committee’s webpages at Subordinate Legislation - Parliamentary Business : Scottish Parliament

7 First written submission of the Society of Solicitor Advocates. Available on the Justice Committee’s webpages at Subordinate Legislation - Parliamentary Business : Scottish Parliament

8 Col 7

9 Col 6

10 Col 6

11 Col 11

12 Col 5

13 These issues were discussed at cols 8-11

14 Col 11

15 Scottish Parliament Justice Committee. Official Report, 8 September 2015, cols 1-18. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10086&mode=pdf

16 Col 7

17 Col 2

18 Col 10

19 See for example the supplementary written submission from the Society of Solicitor Advocates; available on the Justice Committee’s webpages via Subordinate Legislation - Parliamentary Business : Scottish Parliament

20 See for instance the supplementary submission of the Law Society of Scotland, available on the Justice Committee’s webpages via Subordinate Legislation - Parliamentary Business : Scottish Parliament

21 See the quote referenced at col 8 of the Official Report and written submissions from Dalling Solictors, the Falkirk and District Faculty of Solicitors, and the Law Society of Scotland amongst others; all available on the Justice Committee’s webpages via Subordinate Legislation - Parliamentary Business : Scottish Parliament

22 Col 2

23 Col 3

24 In this connection, the Committee notes comments in a letter from James Wolffe QC, Dean of the Faculty of Advocates, which was unfortunately received too late to inform scrutiny of the instrument. The letter argues that the supposed “anomaly” leading to advocates and solicitor advocates being paid different rates for appearances in the Sheriff Appeals Court arises because the new Court is a sheriff court and that solicitor advocates appearing in the court are not therefore exercising their right of audience in a higher court when they appear in it. Letter available on the Justice Committee’s webpages via Subordinate Legislation - Parliamentary Business : Scottish Parliament

25 The Minister stated (at col 3) that around 30 solicitor advocates carried out such work, with recent SLAB data indicating that only 6 received more than £5000 in fees from them in doing so.

26 Col 2

27 Col 10

28 Col 1

29 Col 11 of Official Report of 8 September meeting

30 Letter from the Minister for Community Safety and Legal Affairs to the Convener; available on the Justice Committee’s webpages via Subordinate Legislation - Parliamentary Business : Scottish Parliament

31 Discussion of this issue at cols 11-14 of the Official Report

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