Seòmar agus comataidhean

Thank you for the opportunity to speak about the draft Legal Aid and Advice and Assistance (Financial Limit) (Scotland) Amendment Regulations 2022, which will support the coming into force of a negative instrument, the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022.

Legal aid legislation sets out prescribed limits of initial authorised expenditure, which is the amount of money that is available from the legal aid fund to cover the costs of fees and outlays before a solicitor must seek approval from the Scottish Legal Aid Board to incur any additional costs.

Due to increases in legal aid fees, including those that are to be delivered by way of the negative instrument that the committee will consider this morning, it is likely that, without our amending the current authorised expenditure limits that apply, they would frequently be exceeded by solicitors when providing advice and assistance to clients early in their instruction. The effect of that would be that solicitors would be required to seek the prior approval of SLAB to ensure the full payment that is available for the work that they undertake. Requiring solicitors to seek such approval for payments, which would otherwise be permitted in the table of fees, would result in additional time, resource and bureaucracy for legal aid providers and SLAB. To address that, the regulations will increase the limits for initial authorised expenditure.

Provision is made in the regulations to increase the maximum total fees per court session that are allowable to duty solicitors representing accused persons in the sheriff or district court. That means that session limits that apply to duty sessions will allow the same number of accused persons to be represented during a session, notwithstanding the fact that the fee per case has increased.

As I said, the affirmative regulations support the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022, which, primarily, will deliver the second part of the Scottish Government commitment to uplift legal aid fees by way of an increase of 5 per cent in 2021 and a further 5 per cent increase in 2022. The regulations also provide for a new, supplementary payment for a solicitor to claim when attending a holiday custody court sitting.

The regulations address an anomaly that resulted from a decision in a case that was reported in early 2021 on the interpretation of schedule 4 to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 and, in particular, on how it should be applied to the fees of senior counsel.

I hope that that gives the committee a brief overview of the regulations and their context. My officials and I are happy to answer any questions that the committee might have.

Yes, absolutely. In relation to the reform package—not what is in front of you now, which is an additional reform—we have already discussed our solemn proposals in quite a lot of detail with the profession, and those are pretty much ready to go. I will be able to bring them to the Parliament quite soon.

The summary proposals need a bit more development, so we will take a bit more time to develop them—again, that could absolutely be progressed this year. Those proposals are already in development, which is certainly a starting point. The fees need a lot of reform, and, as I said, it is an on-going process, but we are happy to consider any suggestions from representatives of the profession on how fees could be changed or altered in the future.

Over the past few years we have had the 3 per cent rise, the previous 5 per cent rise, the 5 per cent rise now and the additional money for Covid resilience funding, too. I accept that there are professionals—practitioners—working in the system who feel that rates should be raised. I totally accept that, and it is obviously for them to put that case forward. We spend much of our time working with the representatives of the profession: the Scottish Legal Aid Board, the Law Society of Scotland and the bar associations.

The fee rise that you are considering today is an across-the-board fee rise, but, as I have said right from the beginning, there are other ways of doing this, too. Some of the proposals that we have in the fee package that the profession is currently considering show that I am completely open to discussing these things with the profession and, if we can find ways to address individual fee reforms that can get more money into the pockets of the practitioners, I am completely willing to consider that. I have said that all along.

Around Christmas 2020 and early 2021, after discussion with the profession, the Government made a commitment to increase legal aid fees across the board. At that point we committed to 5 per cent increases in two years—one last year and the increase for this year that is in front of you today. We are making good on a previous commitment.

Capacity issues have been raised with us and we take them very seriously, for the reasons that you have just suggested. We put £1 million into the traineeship fund, which you will no doubt have heard about. That was an attempt to go at least some way towards addressing the capacity issues that have been raised with us. We are monitoring the matter extremely carefully. I guess that, in the medium term, it could be addressed in the legal aid bill that should be forthcoming during this session of Parliament.

That is a bit like apples and oranges: we are perhaps not able to compare the two directly. I will ask Denise Swanson to provide a bit of detail on that in a moment.

Crown salaries are published online. On the other side, private companies are obviously free to set the rates that they want to set.

Could you give a little bit more context, Denise?

That was on Monday this week. They will be able to look at those reforms and decide what they think of them. That represents a significant investment, too. All those measures have been developed in concert with the profession. We have been listening to representatives of the profession and adapting and changing things in order to create packages of reforms that hopefully go some way to addressing the present situation.

I would say that that was in the past year and a half.

We have had quite a lot of engagement with local authorities and other stakeholders. The committee might be aware that the Scottish Government leads a working group on dog control and dangerous dogs, which covers the other part of the legislation—the Dangerous Dogs Act 1991. That group has lots of members, including COSLA, the Scottish Community Safety Network, a victims’ voice—we thought that it was important to have that—the National Dog Warden Association and Police Scotland.

I think that the convener asked about whether local authorities have raised issues and what we have done to work through those. I can think of a couple of things that came up.

There have been issues relating to the migration of data. The populations of local authority areas vary, so I guess that it makes sense that there is variation in that some give out very large numbers of DCNs and others give out quite tiny numbers of them. There was some concern about pressure on local authorities to migrate that data on to the database. We are working with them, as the Improvement Service is, to make sure that we are not putting undue pressure on them but, equally, to ensure that we get the data on there so that we can start to use it. We think that we have sufficient time in the roll-out plan to make sure that that happens in a timely fashion.

The other issue was costs to do with developing the database—the set-up costs and the running costs. The Scottish Government has funded the set-up costs, and it has agreed to fund the running of the database for the first two years. We are in on-going discussions with stakeholders about what might be called a fair funding model and how that will go. Further discussions are under way on that.

I ask Jim Wilson to give a bit of the flavour of the engagement that we have done with local authorities.

It is. We have committed to that. I want to have the most effective dog control regime. We have been talking about two acts. It is envisaged that the 2010 act should act as a preventative regime. We want people to be responsible dog owners by keeping their dogs under control and behaving when they are out, so that they do not become dangerous dogs, which is an issue that is covered by the 1991 act.

There is quite a complex interplay, with dog wardens at one end and Police Scotland and the Crown at the other. There is an opportunity to look at everything in the round and to see whether the legislation needs to be strengthened, although I think that we all agree that it does need to be strengthened. There is an opportunity to consider all those factors. Miles Briggs has raised a good point.

Absolutely. I have had conversations with the Edinburgh Dog and Cat Home about the issue. As you said, it and a number of smaller stakeholders with expertise in the area want to contribute to the development of the work. We will expand the working group, because we want to ensure that we have the right expertise on it. We are moving from considering operational issues relating to the 2010 act to considering wider policy and legislative changes. We will keep Miles Briggs’s point in mind.