Justice Committee

Meeting date: Tuesday, December 12, 2017

Official Report 571KB pdf

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Subordinate Legislation

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Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [Draft]

Agenda item 2 is consideration of the draft Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017, which are subject to affirmative procedure.

I welcome the Minister for Community Safety and Legal Affairs, Annabelle Ewing, and her Scottish Government officials. Stephen Tidy is from the police division, Aileen Grimmer is from the civil law and legal system division, and Sadif Ashraf is from the directorate for legal services.

The committee has received quite a number of submissions on the regulations from various legal bodies, for which we are extremely grateful.

The agenda item is members’ chance to put to the minister and her officials any points seeking clarification on the instrument before we formally dispose of it. I refer members to paper 1, which is a note by the clerk, and invite the minister to make a short opening statement.

I, too, draw members’ attention to my entry in the register of members’ interests, wherein they will find that I am a member of the Law Society of Scotland and hold a current practising certificate, albeit that I am not currently practising.

The regulations will ensure that legal aid continues to be available following commencement of part 1 of the Criminal Justice (Scotland) Act 2016, which will deliver key changes to police custody processes. They will also introduce investigative liberation, changes to police liberation, post-charge questioning, and the self-contained court procedures that can arise in relation to those processes.

The 2016 act provides that persons who are in police custody have a statutory right to a private consultation with a solicitor at any time. The regulations will ensure that the consultation is provided free to everyone who is in police custody.

To reflect the additional considerations that might arise when dealing with a person who is considered to be vulnerable, solicitors will be paid a higher rate for such consultations. The decision as to whether an individual is considered to be vulnerable will be for the custody officer.

Investigative liberation will allow the police to release a suspect from custody with conditions. The person who is subject to the conditions can apply to the sheriff to have them reviewed. A person who is in custody and is charged with an offence may be released from custody with an undertaking. In both cases, the person can apply to the sheriff to have the conditions reviewed. Legal aid will be available for representation before the sheriff.

The 2016 act will also allow the police to apply to the court to question a person after the person has been charged. That will be known as post-charge questioning. When an application is made by the prosecutor for post-charge questioning, legal aid will be available for representation before the sheriff.

The commencement of part 1 of the 2016 act, and the need to change legal aid provision to support it, provided us with the opportunity to implement changes on wider fee reform for police station advice. The Law Society of Scotland had previously recommended that a system of block fees for police station advice be introduced. The regulations will implement that recommendation, as well as significantly simplifying the process for solicitors who are claiming fees for police station advice, which simplification was also requested by the Law Society.

There was significant stakeholder engagement on the regulations: we engaged with stakeholders and we listened to the concerns of the Law Society of Scotland. From an original proposal of approximately £2.46 million per annum, we increased our offer by increasing the level of block fees, by extending the times when the unsocial hours premium will be paid, and by providing that the unsocial hours premium will be applied to travelling time and telephone calls. Our offer to pay the unsocial hours premium for travelling time was not one that the Law Society had formally sought, but we felt that it was justifiable to make that application.

Our current spend on police station advice is in the region of £520,000 per annum. The regulations will increase the spend to an estimated £3.2 million per annum. That is an updated figure that has been provided by officials. The figure includes the new court and custody work that is available to solicitors as a consequence of implementation of the 2016 act. Eight stakeholder events were held across Scotland to seek the views of the wider profession, and 50 local faculties and practices were consulted on the draft regulations.

The Scottish Government has moved its position considerably on the amount to be paid for police station advice fees, but we could not, given budgetary constraints, meet every request of the Law Society. The Scottish Government remains committed to maintaining legal aid for those who need it most. We believe that this is a good offer to the profession. Implementation of the regulations will enable us to meet our European convention on human rights obligations when part 1 of the Criminal Justice (Scotland) Act 2016 is implemented.

Thank you, minister. At the outset, I want to express concern about the time that the committee has to consider the regulations. You have said that there had been a number of submissions and that they are detailed and concerning in content. The regulations are a Scottish statutory instrument and are, therefore, secondary legislation. We have had one week—literally a few days—to look at the instrument, so I am putting it on the record that I think that that is inadequate.

Before we go any further, I would like to hear from other members.

The committee has had a number of submissions from various barristers and a very detailed submission from the Scottish Legal Aid Board. In the paragraph in which SLAB talks about the consultation events, it says:

“No fundamental concerns with the working of the new regulations were raised at these engagement events or during the SG consultation exercise.”

That does not seem to be the case with all the submissions that we have received. How did the Scottish Legal Aid Board form that opinion? Obviously, we do not have it here to answer directly.

My understanding is that that statement was probably intended to reflect the view that the general approach of having a block fee and there being simplification and streamlining of processes was not at issue. Of course, some responses have referred to the level of fees, but I guess that the Scottish Legal Aid Board was trying to convey that the general approach was not deemed to be unworkable or to raise fundamental problems of principle. However, as with all such things, the level of fees was, and is, an issue for some members of the profession.

I know that other members have questions about fees, but I want to ask about two practical issues. First, we have received a submission about on-going work that the Justice Sub-Committee on Policing has been doing on location of custodies. A person might be called out to represent a custody but, as the submission points out,

“Police operational requirements and centralisation of custody units may well mean that a suspect is moved from Edinburgh to Greenock for example.”

Are the proposals sufficiently encompassing to ensure, first and foremost, that people can get the representation that they need, and that the lawyer who provides that representation is not disadvantaged financially or in terms of time?

I will ask Stephen Tidy to respond on the practicalities of the scenario that John Finnie has highlighted, of suspects being moved from Greenock to Edinburgh, or vice versa. However, as far as legal aid cover is concerned, payments for travel time would be made at half the attendance rate, and if that travel happened wholly or partly during unsocial hours, the uplift—the 33 per cent unsocial hours premium—would apply, as would a mileage allowance. With the simplified online processes, such claims can be made automatically if the travel time is over, I think, two hours. Of course, authorisation would need to be sought from SLAB, but that facility would be available 24/7. Moreover, where it could be shown that a certain distance was required to be travelled—or, indeed, where local road works or weather conditions had come into play—that would be taken into consideration with regard to any extension of the automatic travel time being granted. That is how the legal aid fee regime would deal with the travel issue.

Perhaps Mr Tidy will address Mr Finnie’s first question.

A person who still has the status of suspect would be taken to and interviewed at the closest custody facility. Long-distance travel would not be involved in that, because it would be counterproductive for the police to have to go back to take witness names and so on. As a result, the suspect would be taken to the closest custody facility to be interviewed.

So, the scenario that was outlined by the Law Society of Scotland of a solicitor being called out to represent someone in Edinburgh only to find that they had been transferred to, say, Greenock, could not happen.

There might be exceptional circumstances in which, after the initial inquiry had been dealt with and the person had been interviewed about the crime, another crime that they were suspected of committing was discovered during their custody and after they had been transferred. However, that would be an exception.

Thank you.

Other submissions that we have received allude to the Working Time Regulations 1998 and article 8 of the European convention on human rights. Do you believe that the existing scheme is compliant in both respects?

Yes. We should recall at the outset that participating in the police station duty scheme is not mandatory, and that those who participate in the scheme can make themselves unavailable. It is important to bear those basic rules in mind.

That will not change with the new scheme: the previous scheme was compliant, as is this one.

The police station duty scheme remains an option for solicitors. Even if they participate in the duty scheme, solicitors are not required to make themselves available at all times. I do not know whether we will get on to the code of practice that has been discussed by the Law Society and which was issued in its final form just yesterday.

We have a lot of questions to get through, minister.

Okay. I will hold fire on that.

If the minister has finished, before we leave questions on travel, I mention that perhaps Stephen Tidy was not aware of the evidence that was heard by the Justice Sub-Committee on Policing. Police are routinely—or very frequently—having to travel long distances to access custody suites, which has a time implication.

10:00  

Some evidence that has been presented to members says that travel time is not the only issue; for example, a doctor may not be available to do necessary tests. One submission was about a solicitor leaving at 10 to 11 to attend a police station where they were required to be, and left the station at something like 6 o’clock in the morning and was in court at 10 o’clock on the same day. It seems to me that there are most certainly working time directive implications. Has the minister looked at those implications?

I am sorry that I missed that submission. I do not know all the facts or circumstances; if we knew those, we could look at them in detail. The submission had a paragraph about a set of circumstances, but I do not know all the ins and outs. I will be very happy to have the case looked at but, absent the detailed information of the specific facts of that instant case, it is difficult to make a detailed response.

The broad point that I took from the submission was that a solicitor can appear at a station ready to represent a client, and can wait there many hours if other people are involved—for example, a police surgeon. Without looking at the specific instant case, the general point needs to be addressed.

Your citing of an instant case without giving all the details makes it a wee bit difficult to make a detailed comment, when we do not have all the information. I return to what I have said: it is not mandatory for solicitors to apply to the duty scheme and it is not mandatory for participants to be available at all times. Those are two fundamental issues to bear in mind.

The discussions on the code of practice included the issues of availability and of being on call 24/7. Language to the effect that a solicitor could leave a voicemail message to say that they are unavailable was unacceptable to the profession, for whatever reason. In the interest of reaching a compromise, the Scottish Legal Aid Board agreed to delete that language. Therefore, a solicitor is not even required to leave a message on their answering machine to say that they are unavailable. Such voicemail messages would have been helpful, because they would reduce delays. Otherwise, SLAB’s solicitor contact line has to assume from silence, after a time, that the solicitor is not rocking up.

However, we are where we are—that is what the legal profession wanted to secure in the code of practice, which was agreed with some reluctance by the Scottish Legal Aid Board. The code of practice has been issued without the requirement for a message to be left on the solicitor’s voicemail, so delays such as members and the convener have spoken about may not be eradicated.

There will be other questions on availability.

Good morning, minister. On a similar theme, you have referred to the fact that it is not a requirement for solicitors to make themselves available for duty. A number of the submissions, including those from the Society of Solicitors and Procurators of Stirling, the Society of Solicitors in the Supreme Courts of Scotland and the Dunfermline District Society of Solicitors, make points about expectations that the regulations, if implemented, are likely to exacerbate a situation in which there is already often difficulty in getting solicitors to attend. The Dunfermline district society confirmed at a faculty meeting that “the unanimous view” of those present was that

“if the regulations are laid in the present form then no firm will participate in the Police Duty Scheme.”

Similar points were made in the other submissions that I referred to.

The practical implications appear to be very serious and, as the convener has already indicated, we have limited time to take further evidence. How do you respond to the suggestion that the regulations are likely to make the situation worse in an area that does not appear to have an overabundance of provision?

I will try to respond to the member’s question as fully as I can. I will mention a few different issues. It is important to recall that there were eight stakeholder events, which were held in Glasgow, Edinburgh, Aberdeen, Dundee, Inverness, Falkirk, Kilmarnock and Dunfermline. In addition, the consultation on the draft regulations commenced in August and although it was initially intended to run for four weeks, the Law Society requested an extension, which was agreed to. The consultation closed on 15 September and 50 faculties and member practices were consulted. We received responses from the Law Society of Scotland, the Edinburgh Bar Association and the Dunfermline District Society of Solicitors. In summary, after consulting 50 bodies, we received three responses from the legal profession.

I have had several meetings with the Law Society of Scotland and its legal aid negotiating team, headed by Mr Ian Moir and other officials from the Law Society. At the end of the day, although we were able to address several of the Law Society’s requests, the key ask that we could not meet was an increase in the block fee itself. We looked to see whether there was any room in the legal aid budget to do that, but as we explained to Mr Moir, it was not possible.

When we reached that stage of discussions—on 28 or 29 June 2017—the only outstanding issue was the increase in block fees. We had already increased the block fee rate in response to concerns and we had already extended the definition of unsocial hours to include not just from 10 pm to 7 am—as at present—but from 7 pm to 7 am, all day on Saturdays and Sundays and on eight specified national holidays. We also applied that to telephone calls made wholly or partly during those unsocial hours, as well as to travel—notwithstanding the fact that the Law Society had not initially requested that that be included. We moved considerably, to the extent that that was possible given the budgetary constraints.

The last issue on the table was the increase in block fees. We explained to Mr Moir why we could not move any further on that. That was the position with the Law Society legal aid negotiating team at the end of June. I was to go away and examine the issue. We wrote to the Law Society on 30 July after I had had the chance to do so and we then proceeded to consultation.

That is the background. I note some of the representations that have been made to the committee in the past few days, but that is not the position that I had in my dealings with the Law Society at the end of June.

The Dunfermline District Society of Solicitors could hardly be clearer about its expectations of the consequences of passing the regulations. What assessment has been made of the likely availability of solicitors on the basis of the regulations? As you say, there is no requirement placed on solicitors, but the committee needs to be reassured that there is sufficient availability of solicitors to satisfy access to justice and other considerations. What assessment has been made of the problems that might arise on either a national or regional level because of a lack of available solicitors?

I will explain the process briefly. The duty scheme for both police station and court is in place until the end of March 2018. To withdraw from the duty scheme, a firm would have to give one month’s notice. The Scottish Legal Aid Board plans to request interest in the new duty scheme for police station and court from March 2018 onwards by the end of December 2017, with a view to seeking intimations of interest in the new duty scheme by 26 January 2018.

That is the process that would normally apply. It allows us to be apprised of instances in which a solicitor was seeking to withdraw from the duty scheme and to put the arrangements in place. Obviously it is a matter for each solicitor whether they wish to participate in the police station duty scheme or indeed the court duty scheme. If there was not take-up to the extent that it would change the status quo in terms of numbers, the Scottish Legal Aid Board would seek to make alternative arrangements. Consideration has been given to that scenario.

Can you say what those alternative arrangements will be? We are being told that even the status quo is leaving things very tight in certain areas. A suggestion that the regulations would exacerbate that situation has to be a concern.

An example would be having additional solicitors in place to deal with police station duty; the Public Defence Solicitor’s Office and the Legal Aid Board could pursue that possibility.

We have not received any mass intimations of withdrawal from the duty scheme. I am very happy to keep the committee apprised of any developments in that regard. As I said, there is a one-month notice period for any withdrawal, and we continue to monitor the situation very closely.

We have to remember that this is about the rights that are to be introduced by the Criminal Justice (Scotland) Act 2016, which was voted on by this Parliament. Those are very important rights that meet our ECHR obligations. It is about ensuring that we can extend free legal provision at police stations to all those who are detained there, as was foreseen during the legislative passage of the 2016 act. We will ensure that that happens, because it is our obligation under the ECHR.

We hope that solicitors will feel that it is a good deal, as I do, because it deals with a lot of the issues that have been raised. It also provides a simplified process for solicitors claiming their fee, which is important because at the moment that is a cumbersome two-stage process that involves getting a hard-copy signature from the client. Bearing in mind that consultation can be done by telephone, solicitors feel that, frankly, going through the procedure for doing that is too much of a hassle, so many telephone calls are simply not claimed for. We do not want that to be the case—we want people to be paid for the work that they do. We hope that this new package, by addressing the level of fees, the simplified procedure, the application of an antisocial hours premium to travel and the wider definition of antisocial hours, will make the scheme a more attractive option for the solicitor profession.

I will finish with a process point. You mentioned the engagement with the Edinburgh Bar Association, among a couple of others. In its submission to the committee, it says:

“The Association would like to make clear to the Committee that these policy developments have become known to us by virtue of having been told of them by individual police officers. It is a grave concern that they have not been the subject of official communication. The concerns which this Association has had about the imminent introduction of these statutory provisions have been well known to all relevant bodies for several months. That we have not been made aware of these policy positions which serve to confirm our suspicions is indicative of utmost bad faith.”

Thinking of John Finnie’s point about the evidence that we received from the Scottish Legal Aid Board, it is hard to square those two conclusions with what you have said. Can you shed light on that?

Let me separate what I think are two separate issues. First, on the general fee regime, in our consultation we engaged in eight stakeholder events and we targeted 50 firms and faculties. The Edinburgh Bar Association was one of three respondents from the legal profession. That is on the fee side of things.

On the criminal justice provision side of things, perhaps Mr Tidy can explain exactly the nature and level of engagement on the part of the Scottish Government police division and others with not just the Edinburgh Bar Association but the legal profession as a whole, as he was involved in it.

10:15  

Mr Matheson made a number of commitments during the bill’s progress to engage with stakeholders about the new provisions of investigative liberation in post-charging questioning. We held a number of stakeholder events with the legal profession and victims groups. We held two events on investigative liberation and two events on children’s provisions, both of which were attended by the legal profession. A Police Scotland officer and I delivered individual presentations to the Glasgow Bar Association and the Falkirk Bar Association. We held a webinar event with the Law Society of Scotland, we held an event with John Scott QC on part 1 provisions and we attended the legal aid conference to deliver a presentation on part 1 provisions. In addition, back in August, I made an offer to the Edinburgh Bar Association to deliver a similar presentation on part 1 provisions to its members, which was not taken up.

Good morning, minister. Liam McArthur has touched on a number of the areas that I wanted to ask about, so I will not go over those issues again.

I will raise a concern that was raised by the Dunfermline District Society of Solicitors. Its submission mentions the duty of care that employers have to their staff. It also raises concerns about sex and equality discrimination. It refers to

“The effect of the lack of remuneration for those ... on call”.

I accept that it is not mandatory that solicitors be on call, but no provision is available

“to fund childcare nor to provide care for ill or infirm dependents.”

The society says that those are serious concerns.

The society’s submission also says:

“Concerns have been raised that firms in the future”—

could—

“be drawn to recruiting only those who do not have children”

or caring responsibilities.

Those, too, are serious concerns. What thought has the minister given to those issues?

I noted that those points had been raised. I return to the point that there is no mandatory obligation to participate. The nature of police station duty is such that the hours of operation are outwith anyone’s control. Inherent in that work will be instances of unsocial hours. That, of course, involves a whole series of issues for the individuals concerned, including issues relating to childcare, caring for elderly relatives and caring for infirm family members. Those issues are recognised and, as I say, the system is not mandatory. Even if a duty solicitor hopes to make themselves available—they are on the roster; that is their plan—they can be unavailable. That is also accepted within the duty scheme. Therefore, the scheme directly recognises the circumstances that Mary Fee talks about.

At the end of the day, the duty system at police stations is such that it will inevitably involve hours that make it difficult for people to plan their lives, but it is recognised that duty solicitors can make themselves unavailable, including in the circumstances that Mary Fee rightly raises.

The society makes the point, particularly in relation to small firms that have a small core team of solicitors, that if a firm’s solicitors have participated in the scheme in the past and it is recruiting new solicitors, it might be minded to recruit people who do not have the responsibilities that we have discussed. That is a very serious avenue to start going down.

I absolutely agree with the member—that would be very serious indeed. I would find it rather disturbing that members of the legal profession would consider acting in such a way, because to do so would clearly be discriminatory.

There are various ways to seek to solve matters. The very last—and unacceptable—way would be to do so in a discriminatory fashion. I really do not accept that that is what people would be required to do, not least because the duty system is not mandatory. The deal on offer is a good one—it is certainly much better than what solicitors have participated in until now.

I will make a final point on looking for practical solutions. I understand that the timescale within which a legal trainee can appear in the criminal courts is being shortened to reflect a number of issues, including the issues that the member has raised.

Has the minister done an assessment of the increased number of people who will be eligible for legal advice?

There was a figure in the financial memorandum to the Criminal Justice (Scotland) Bill.

Yes, there were figures there on the number of cases that we anticipated. We have no idea what the new court practices will mean. I think that there was a figure of 1,600-odd—

The financial memorandum said 163,360 people.

Yes—sorry.

So while the minister says, quite confidently, that people can opt out, there could be huge demand. There will be a real problem if many people decide to opt out, for the reasons that we have already discussed. I ask the minister to take that on board.

I would like to follow up on a few of the points that the minister made, if I may. Am I right in thinking that no equality impact assessment has been done at this stage, or has that now been done?

An equality impact screening was done. As no issues were identified as having been raised with regard to groups with protected characteristics, a full EqIA was not proceeded with, on the basis that no such groups were affected. The people who were listed as being affected were lawyers.

Yes. However, just to be clear, when the Law Society says that, as at the start of November, there was no equality impact assessment, that remains the case, does it not?

There is no full equality impact assessment. A screening was done that identified no groups with protected characteristics as being affected and therefore the process did not mean proceeding with a full EqIA.

I want to press you on Liam McArthur’s points. Various representations that have been made to us suggest that, overall, the scheme could make it less attractive for people to enter the profession. The convener made the point that there could be less resource to dispose of such matters. If that is true, we cannot meet the ECHR rights that you alluded to earlier. Do you accept that, or are the representations that we have had not correct in some way?

First, as of this moment, the position is that we have not received any mass intimation of withdrawal from the police station duty scheme. Obviously, we do not know what the future—

Forgive me, minister. I understand why you went down that route, but I am asking about the attractiveness of the profession in general. By the sound of it, we will need a lot more resource in future, which will require people to enter the profession. There is a suggestion that the scheme will make the profession significantly less attractive and that there will be a resource problem as we go forward. My question is not about people dropping out of the duty system; it is about their not entering it in the first place. We have had representations about that. Do you think that those representations are reasonable, and that that will come to pass, or do you disagree with them?

It is all quite speculative. I have no evidence to suggest that, in and of themselves, the regulation, the proposing of a fee regime and the simplified accounting process will lead to a mass decline in people seeking to do police station duty across Scotland.

Going back to Mr Finnie’s first point, it is important to remember that, in the stakeholder engagements that were held, the issues that were raised had more to do with the level of fees—which were a particular feature of central belt participation—than with other considerations. People were not coming to say, “This whole thing is unworkable. Go back to the table.” They were raising their concerns about fees and, as I have said, those concerns tended to be more prevalent in areas outwith the Highlands and Aberdeen.

It has to be borne in mind that there was not a big outcry about the scheme per se. Its aim was to pick up on the existing scheme but to seek to make it better. In my negotiations with the Law Society of Scotland’s legal aid negotiating team, the discussion was not about the nuts and bolts of the scheme but about the fee compensation. Indeed, at the very end of the day, it was about only one aspect of that—the level of block fees—and nothing else. That was because, by that point, it appeared that the team had reached a deal that it felt was reasonable in all the circumstances.

You mentioned the existing scheme. As the convener has said, we have not had a lot of time to consider this issue, so forgive me if I am going off at a tangent, but it appears to me that if the proposal does not go through, there will be some kind of lacuna in January—the present system does not carry on; it will disappear and, almost by default, we will go back to an even less favourable system. Will you explain that? I feel that we are getting slightly bounced into something.

If the regulations are passed by the committee and the Parliament, they will come into force on 25 January 2018, the day on which the provisions in part 1 of the Criminal Justice (Scotland) Act 2016 enter into force. If the committee chooses not to pass the regulations, the scheme will not be in place and that, in turn, will have certain consequences. First, the wraparound fee regime will use the current definition for police station duty activity, which does not include the increased antisocial hours level—the current definition is more restrictive. Antisocial hours will not apply to travel and there will not be the increased block fee, which is far less attractive for solicitors than the new regime will be. The old position as regards billing will remain, which is much more cumbersome, to the point that many solicitors do not charge for telephone attendances. In addition, the provisions regarding the fact that, at the moment, all de facto detention—although I do not like to use that word—at police stations is subject to no financial eligibility criteria would change.

That would change.

Yes, that would change.

I would like to clarify. If the regulations do not come into effect on 25 January, will the current arrangement that people understand continue indefinitely?

I am trying to break down the three areas that are coming into play here. The first is that the level of fees will be lower and less attractive to the profession.

Lower than today.

Sorry, I am talking about the status quo. Before the regulations come into force, it will be the level of fees that currently applies.

So, if the regulations do not pass, today’s scheme carries on indefinitely into the future.

Yes, as regards the level of fees; there are different issues as regards the assessment of financial eligibility. Finally, we will need to consider having a system in place to cover the new provisions that are being introduced on 25 January 2018 by part 1 of the 2016 act regarding the reviews of investigative liberation conditions and undertaking conditions and the hearing of applications for the authorisation of post-charge questioning. Those new provisions are not covered by the provisions today. If necessary, that could be done by way of, for example, general determination by ministers.

When the bill came before the previous committee—John Finnie is the only member of this committee that also dealt with it—I had huge reservations about the changes. At present, someone who is brought in for questioning is entitled to have a solicitor present at the point of interview and, following that interview, they can be charged or released without charge. Under the new system, there will be the concept of pre-charge arrest, which means that they must have a solicitor there as soon as they are brought to the police station, which obviously has huge cost implications.

There are two elements to that. First, the client will be entitled to have a solicitor present for the interview; and the client will be entitled to seek a consultation with a solicitor at any time—although that consultation can be by way of, for example, telephone.

But they could be held in custody for quite some time without having to consult a solicitor. Under the new legislation, it will be absolutely essential that the solicitor attends—no ifs, no buts; it is mandatory.

For the interview, but not for the consultation.

Under the new system?

Yes.

Only when they are interviewed, or from the point of arrest?

The entitlement is to have a solicitor present at interview. There is also the entitlement to be able to consult a solicitor at any time, and that consultation can be by telephone.

10:30  

So the solicitor will be there at the point of arrest. That is where we are on to the 24/7—

Consultation can be by telephone.

I want to ask Mr Tidy a question. I come to the matter as a non-lawyer. Has any comparison been made with how antisocial hours, the work that is required by management and overtime requirements are dealt with by any other professions or industry? If not, why not?

I am not sure to what extent there has been a detailed analysis of other professions. We are talking not about a compulsory part of the contract of employment but about an optional opportunity for individual solicitors or solicitor firms. As I have said, even if a person participates in the duty scheme, they are not required to make themselves available 100 per cent of the time, so I am not sure that a direct analogy would stack up. It is not an obligatory part of a person’s employment contract.

So the work has not been done.

No, but I do not know whether the analogy is directly relevant because the duty scheme is optional and, once a person is signed up to it, their participation is not required 100 per cent of the time.

I understand that but, in trying to market the approach to the legal profession, it is surely useful to have a baseline of what goes on in other professions and, indeed, industry. In industry, there are very clear guidelines about time over normal working hours—overtime—and employers take childcare and care of the elderly into consideration. That does not seem to have been applied in your research.

In many cases, lawyers already work beyond 9 to 5. It is up to individual firms to make appropriate arrangements, and I am sure that they all do that. In my discussions with the legal aid negotiating team and Mr Ian Moir, who headed that up, it was taken as read that that was what the duty scheme involved and that the team was trying to achieve the best deal that it could get for its members on fees and the recompense available for participation. As I have said, the conversations were very much rooted in the context of the police station duty scheme, with which the team was well acquainted.

I want to ask a small follow-up question to Maurice Corry’s question. Can you give us any figures for the number of solicitors who are currently signed up to the scheme and for how many of them, when they are asked to come out, say that they cannot come out and make themselves unavailable?

I would have to get those statistics from SLAB.

It would be interesting to see how many solicitors are signed up and how many refuse to cover.

As I mentioned earlier, in SLAB’s discussions with the profession about the code of practice and in the various stakeholder engagement events, a last-minute sticking point was language that would have suggested that a lawyer had to make a statement on their answering machine to the effect that they were unavailable and that the person should contact the solicitor contact line. That was a no-no for the profession, which refused to countenance that. I am not entirely sure why it suggested that that would give an idea of 24/7 availability; others could perhaps view it just as leaving a message on an answering machine to say that the person was unavailable. However, that suggests that there are already instances in which people can be called out for a particular kind of case but decide not to be called out for another kind of case. The freedom to engage or not engage is already very much a feature of the system.

It would be helpful to see the numbers.

We can try to seek that information.

That concludes the points of clarification, minister.

You have made quite a lot of the fact that you think that a lot of the concerns that have been raised around the table were not raised in June, but the point is that they have now been raised. To recap, some of the issues raised were: the increase in police station attendance; the required change in employment contracts; the duty of care implications; sleep issues; disruption to family life; sex equality and discrimination for carers or people with caring obligations; Police Scotland policy; pre-charge arrest requiring a solicitor to attend; vulnerable adults with mental health and other issues; an increase of 163,360 in the number of people eligible for legal aid advice; and the fact that firms are downsizing and might find it impossible to meet the new obligations, even with the best will in the world.

There has been a lack of communication and a lot of those who made submissions to the committee said that they found out about the proposals from individual police officers; there was no official communication of some of the implications. Some firms have no idea whether they can provide the service that is expected of them. There are travel issues and concerns about the time taken for the movement of custodies around the country. The lack of custody suites can all add to the proposals impinging on a solicitor’s time 24/7 and their right to a private life, which means that article 6 human rights concerns have been raised along with real concerns about the working time directive.

This morning, minister, you have made a written submission and have had 35 minutes to put your point of view together. I am asking you to withdraw the SSI to allow the committee to take evidence from some of the stakeholders before the regulations are passed.

A number of us around the table note the concerns but are satisfied with the proposal given the current financial constraints. I did not ask questions on the basis—

If that is the case, it will be reflected in any subsequent vote should the minister decide not to agree to what I think is an entirely fair and reasonable request. She has now had 37 minutes of giving what could be looked at as a very one-sided view of the implications. It is beyond doubt—not in question—that the implications are complex and go far beyond the monetary and financial.

A look back at the Official Report might be helpful in due course because I have sought to answer fully and comprehensively every single question that has been put to me, as have my officials.

With regard to the concerns that the committee has raised today, we did consult with the profession. We consulted 50 firms—

With respect, minister, you have made that point time and again.

Yes, I know, but you have just suggested that there has been a lack of communication. I would just like to deal with that specific point. There has not been a lack of communication. We got three responses to a consultation that was issued in August and finished by way of an extended deadline on 15 September—

If you will forgive me, I will interrupt you there to explain that the lack of communication was specifically on the police policies and how they would then impact on solicitors—

Yes, but Mr Tidy—

Allow me to finish, minister. Am I missing something here? I take fully on board the fact that, in June, you had done a full consultation and you thought that the concerns that have been raised today were not raised then. The point is that the committee must look at the concerns that have been submitted. The consultation point that I was making was that one of the submissions talked about the implications of police policy.

That was from the Edinburgh Bar Association and Mr Tidy explained that he had been in direct contact with the Edinburgh Bar Association in August to offer it a special wraparound session, as he did the Glasgow Bar Association. All the other events had been organised by the Scottish Government police division but the Edinburgh Bar Association did not take that up—

Minister, you have had every opportunity in the debate so I put the question to you: will you withdraw the SSI?

No, I will not withdraw it.

In that case, we move to formal consideration of the legislation.

On a point of order, convener.

You cannot have a point of order. We have moved on. You will have an opportunity to comment during the debate if you have anything to say at that point. We are now moving into the formal debate.

The minister has explained that she is not going to withdraw the SSI, so the next part of the procedure is to move to the formal debate on the motion. The minister will make an opening statement, if she wants, and move the motion. Members will have a chance to put other points of view. Is that understood?

Members: Yes.

Agenda item 3 is formal consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee has considered the instrument and reported that it had no comment on it. The motion will be moved and there will be an opportunity for a formal debate on it, if necessary.

I invite the minister to speak to and move the motion.

I just reiterate what I tried to express earlier, which is that we proceeded with a consultation and only three professional bodies responded: the Law Society of Scotland, the Edinburgh Bar Association and the Dunfermline District Society of Solicitors. There has been widespread engagement on the part of the Scottish Government police division on the Criminal Justice (Scotland) Act 2016 provisions, which included an offer to the Edinburgh Bar Association. However, the association failed to take up that offer, for whatever reason—that is a matter for it.

On the nature of the proposed scheme, a police station duty scheme has been in place for some time and we are seeking to improve that, not to make it more difficult. The right to consult a solicitor will include telephone attendances and, therefore, that should be factored into consideration of the displacement of people or otherwise.

On financial compensation for solicitors, the proposals represent a good deal within the current budgetary constraints. When we left the table following our discussions with the Law Society’s negotiating team and Mr Ian Moir on 28 and 29 June this year, the only outstanding issue was whether we could further increase the block fee. Further to my deliberations and having looked at the figures, we decided that we just could not afford to do that. That was communicated to the Law Society on 30 July in a letter that I sent to Mr Moir.

We have worked very hard to come up with a scheme that is more attractive rather than less attractive and that means that, importantly, fees can be claimed—a very important part of a lawyer’s daily activity—without jumping through hoops. We have simplified the fee structure, as requested by the Law Society of Scotland, and the fact that a hard-copy signature will not be needed and that claiming a fee will no longer be a two-stage process will ensure that lawyers are actually paid for the work that they do, which is something that we would all wish to see.

Finally, the important provisions of the Criminal Justice (Scotland) Act 2016 come into play on 25 January 2018. They are seen as very significant revisions that were voted on by the Scottish Parliament and will enhance the rights of individuals held at police stations. The Parliament should be proud of them. I am keen to ensure that nothing happens that would put those enhanced rights in jeopardy.

I move,

That the Justice Committee recommends that the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] be approved.

We can only comment at this stage, so do members have any comments?

Members: No.

My only comment is that I have not been satisfied by the minister’s explanation today. In all fairness, I think that the people who have raised very concerning and complex issues in relation to the SSI should have the opportunity to be heard by the committee, so that it can evaluate whether the concerns are genuine and can be resolved or have no foundation. For the smooth running and fairness of, and access to, justice, that should be the case.

Would the minister like to wind up?

No.

The question is, that motion S5M-09233, in the name of Annabelle Ewing, be approved. Are we agreed?

Members: No.

There will be a division.

For

Adam, George (Paisley) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
Gougeon, Mairi (Angus North and Mearns) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
McArthur, Liam (Orkney Islands) (LD)

Against

Corry, Maurice (West Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)

The result of the division is: For 8, Against 3, Abstentions 0.

Motion agreed to,

That the Justice Committee recommends that the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [draft] be approved.

I thank the minister and her officials for attending the meeting. There will be a report on the SSI and, given its controversial nature, I will ask the deputy convener to look at the report as well to ensure that she is satisfied with it. Is the committee content with that approach?

Members indicated agreement.

Thank you for that. I suspend the meeting briefly to allow for a change of witnesses.

10:45 Meeting suspended.  

10:48 On resuming—  

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Police Investigations and Review Commissioner (Application and Modification of the Criminal Justice (Scotland) Act 2016) (Scotland) Order 2017 [Draft]

Agenda item 4 is consideration of an instrument that is subject to affirmative procedure. I welcome Michael Matheson, the Cabinet Secretary for Justice, and his officials from the Scottish Government, who are George Dickson from the police division, and Louise Miller from the directorate of legal services.

I refer members to paper 2, which is a note by the clerk. I invite the cabinet secretary to make a short opening statement.

It might be helpful if I briefly explain the purpose and effect of the order. Part 1 of the Criminal Justice (Scotland) Act 2016 represents a significant change to the system for arresting and holding people in custody. The new arrest and custody processes that are contained in part 1 of the act will provide a clear balance between proper investigation of offences and protection of suspects’ rights while they are in police custody.

As the Police Investigations and Review Commissioner can be instructed by procurators fiscal to investigate criminal allegations against a police officer, part 1 of the 2016 act needs to be extended to cover criminal investigations that are undertaken by the PIRC. The order applies to a number of provisions in part 1 of the 2016 act and covers cases in which a member of staff of the PIRC exercises the powers and privileges of a constable when undertaking a criminal investigation on behalf of the commissioner. That will ensure that the PIRC investigative staff adhere to the provisions of the 2016 act and that any police officer who is arrested or detained by the PIRC receives the same legal protections as a member of the public who is arrested by the police would receive.

The order also makes modifications to ensure that where 2016 act functions rely on Police Scotland’s rank structure, the PIRC’s hierarchical structure, too, is reflected in the exercise of those functions—for example, when a senior investigator is required to authorise an extension to a detention in custody.

Where the order modifies the 2016 act to cover PIRC investigations, the practical working arrangements have also been considered. The PIRC and Police Scotland have agreed a framework that will include a memorandum of understanding to ensure that it is known how cases that require a criminal investigation by the PIRC, as directed by the Crown Office, will be dealt with. That is particularly important because the PIRC will need to make use of Police Scotland’s custody facilities in the course of its work. All such investigations will be carried out under the direction of the Crown Office and Procurator Fiscal Service.

If approved, the order will come into force at the same time as part 1 of the Criminal Justice (Scotland) Act 2016 is being implemented. I am, of course, happy to answer the committee’s questions.

Good morning, cabinet secretary. You said that PIRC staff will need to use Police Scotland facilities, but the policy note says that

“it is likely that PIRC investigative staff would use Police Service of Scotland custody facilities”.

What other facilities would be used besides Police Scotland ones?

The reality is that Police Scotland facilities would be used, given that it holds all the custody facilities that we have. It is therefore difficult to envisage any other facility being used.

Thank you. The policy note also refers to

“A memorandum of understanding between the Police Service and the PIRC”.

Can you confirm whether the staff associations and trade unions will be involved in discussions around that memorandum of understanding?

Police Scotland and the Crown Office are developing the protocols around the memorandum of understanding. The process that Police Scotland has in place for consulting the staff associations is through the Police Scotland programme board for implementation of the 2016 act, and any discussions on the memorandum of understanding between Police Scotland and the Crown Office will involve the police staff associations that are involved with that board.

What about the trade unions?

I do not know whether the trade unions are directly involved with the programme board process, but I can check that with Police Scotland and come back to you on the engagement that the board will have with the trade unions.

Thank you.

As there are no more questions or comments, we move to formal consideration of motion S5M-09393, which is in the name of Michael Matheson.

Motion moved,

That the Justice Committee recommends that the Police Investigations and Review Commissioner (Application and Modification of the Criminal Justice (Scotland) Act 2016) (Scotland) Order 2017 [draft] be approved.—[Michael Matheson]

Motion agreed to.

I thank the cabinet secretary and his officials for attending. Are members content to delegate authority to me, as convener, to agree the draft report?

Members indicated agreement.

I suspend briefly to allow a changeover of witnesses.

10:53 Meeting suspended.  

10:55 On resuming—