I am grateful to the committee for allowing further time for consideration of the legal aid arrangements for the new sheriff appeal court. Last week, my officials met representatives from the Law Society of Scotland to reassure them of the Government’s commitment to continue to engage with them on this important issue. Following that discussion, I remain of the view that the draft regulations make appropriate legal aid provision until a review of the court’s operation can be undertaken early in the new year.
As the example accounts that have been shared with the Law Society and the committee show—I am aware that there has been some criticism of the examples, and I hope to be able to address that—appropriate fees will be available to solicitors who conduct appeals in the sheriff appeal court through the detailed fee arrangements. The Scottish Legal Aid Board estimates that a Glasgow solicitor could earn fees and outlays of anything from £400 to £600 and more; indeed, the example account in the committee papers demonstrates how a fee of £606.77 is arrived at in a hypothetical appeal against conviction. As I have said, I am aware that the Society of Solicitor Advocates has been critical of some of the numbers, but I should also point out that a solicitor who represents a client from the original defence of the case through to appeal at the sheriff appeal court could be paid more than £900 per client.
It is important to emphasise that the payments for the new appeal court are calculated on a different basis from the block fee that is paid to counsel conducting an appeal in the High Court. That fee does not make detailed provision for travel and other expenses, and the detailed fees that are proposed for the new court will allow a proper assessment to be made of the work that is undertaken by individual solicitors in each case. That, though, is not the end of the process and, as I have said, we will continue to engage with the profession to review the fee arrangements for the new court and the legal aid system more widely. Indeed, the data that we will develop through the use of detailed fee arrangements will allow us to assess in due course whether there is a case for block fees to be applied for the sheriff appeal court, and the information that solicitors provide will help to inform that process.
Members have raised concerns about the costs of travelling to the new court. Mr Finnie highlighted an example, and I hope that we have addressed that in the information that we provided to the committee for this meeting. I assure members that travel fees will continue to be available and solicitors will not be disadvantaged relative to the current arrangements; in fact, the travel fee arrangements are in effect similar to those that are already in place for solicitors attending court in Edinburgh. For these types of appeals, solicitors will often choose to instruct an agent in Edinburgh, as they do at the moment—it is important to stress that—instead of travelling.
The Scottish Legal Aid Board will take a pragmatic and flexible approach to sanction for counsel, which will help solicitors to make the transition to the new sheriff appeal court. If it is evident that solicitors do not want to take on this work in the immediate term, SLAB has indicated that it will sanction counsel for cases in the new court.
We are considering whether it will be possible, in due course, to use an accelerated process to amend the regulations and allow for what would, in effect, be a guarantee that sanction for counsel will be given in cases to remove doubt from the minds of solicitors, some of whom, I understand from the discussions that we had with the Law Society, are concerned that there might be a risk of taking on a case only to find that they are not able to represent the client in the sheriff appeal court. That will ensure that, if a solicitor chooses not to appear in the new court, they will be no worse off than at present. More important, the client will be represented and there will be equality of arms.
As we discussed last week, solicitor advocates will not be able to charge counsel rates in the sheriff appeal court, but they will have the option to provide representation in their capacity as solicitors. I understand that that is not ideal from a solicitor advocate perspective, but it 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. I must put on record that I have the utmost regard for solicitor advocates and their work, and I undertake to meet their representatives in the near future—and well ahead of the legal aid arrangements for the new sheriff appeal court being reviewed—to discuss the issues from their perspective.
I hope that my letter and the further clarification that I have provided today will enable the committee to support the draft regulations and allow the new sheriff appeal court to begin its work. Finally—I mentioned these figures last week, but given the nature of the discussion that we had, I want to make sure that they register—I note that we are talking about less than 1 per cent of the cases that are granted support by SLAB. Around 30 solicitor advocates are doing work of this nature and might therefore be affected by the measures, but in the most recent year for which SLAB has data, only six did work that was worth more than £5,000 in fees. I hope that that puts into perspective the scale of the potential impact on individual businesses and the number of individuals who might be involved. That said, I appreciate that the issues are serious for those individuals, hence my commitment to meet the Society of Solicitor Advocates to discuss the matter.
I hope that what I have said helps to clarify the position somewhat, but I am happy to engage in the debate.
I move,
That the Justice Committee recommends that the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 [draft] be approved.