- The Convener:
Item 6 is evidence on the Legal Aid and Advice and Assistance (Solicitors’ Travel Fees) (Scotland) Regulations 2011, which is a negative instrument and is therefore subject to annulment. A motion to annul has been lodged by James Kelly MSP, and will be dealt with under the next agenda item. The committee is now taking evidence to inform the next agenda item, under which the motion to annul will be considered.
Members have the written submissions that have been received in relation to the instrument—papers J/S3/11/7/7, J/S3/11/7/19 and J/S3/11/7/20. I again welcome the Cabinet Secretary for Justice, who has been joined by Scottish Government officials James How and Colin McKay from the legal system division and Fraser Gough, from the Scottish Government legal directorate.
Does the cabinet secretary wish to make any opening remarks?
- Kenny MacAskill:
Yes.
The effect of the regulations will be to reduce the fees that are paid to solicitors for travelling. Up to now, there has not been a specific prescribed fee for travelling time. Solicitors were paid a non-advocacy rate, depending on the aid type. That is not how fees are commonly paid for travel in other jurisdictions.
The regulations will deliver savings to ensure that legal assistance can be targeted at those who are most in need. I am determined to take action now to ensure the long-term sustainability of the legal aid system in Scotland and to preserve access to justice.
Unlike other jurisdictions, we are not proposing any significant cuts to the scope or eligibility of legal aid. The president of the Law Society of Scotland congratulated the Government on not taking that alternative path in his letter to the committee earlier this year.
Our not making savings now would only store up problems for the future. Slowing down the spend of a legal aid system that operates on demand takes time. Because of the £1.3 billion cut to Scotland’s budget next year, the legal aid budget for 2011-12 has been reduced by 8.2 per cent; this is at a time when the fund is under pressure in a number of areas and when demand for advice is increasing as a result of the economic downturn.
Making the savings has meant difficult decisions, but they have been taken in close consultation with the Law Society of Scotland. The savings are part of a package that has been agreed with the Law Society. The package includes a larger percentage reduction in the Scottish Legal Aid Board’s administration costs, and savings from the fees that are paid to counsel and to criminal practitioners.
There is no suggestion that solicitors should not be paid a reasonable rate for travel time. That will still happen—although in many cases there are alternatives to travel and there are circumstances in which local provision is preferable.
Concerns have been raised with the committee in the area of mental health, in respect of which there is a particularly vulnerable client group. Let me say right away that I take questions of access to justice very seriously in all cases, but I recognise that the importance of access to justice in this area is perhaps even more pronounced. Following extensive consultation of stakeholders, the board has published its best-value review of work in the area, which has considered the availability and quality of legal services. The review shows that many practitioners deliver a high-quality service, but finds evidence of concern in relation to some practices that appear to be of no benefit to clients but that incur costs and cause inconvenience for the legal aid fund, the tribunal and the health service. Expenditure on those cases has increased from £1.8 million in 2006 to £4.2 million in 2010, and the average case cost has increased from £918 to £1,272 in the same period. The two top firms earn more than £2.2 million between them. Travel was picked out as an area in which costs were especially high, and a number of recommendations were made on that.
The Government believes the review to be an important piece of work and will actively consider its recommendations, including the recommendation that we move towards the development of a block or fixed-fee structure that reflects and incentivises best practice and local provision wherever possible. Concerns have been expressed that certain firms might reduce the amount of work that they do in the area as a result of the regulations. That is a decision for those firms, and the board has been pressing them on their intentions. The board is managing the situation closely and has been in contact with several firms in various locations that carry out some mental health work and which have indicated a willingness to do more. That has not been possible up to now as a result of the considerable barriers to entering the market. The network of board-employed solicitors in the civil legal assistance offices already undertakes mental health work and there are several experienced practitioners in the field. They are ready to take on more cases and to refer cases to private practitioners. The board has been in close contact with the Mental Health Tribunal for Scotland and the Scottish Association for Mental Health to advise them of the arrangements.
- The Convener:
Thank you, cabinet secretary. I invite questions from members.
- James Kelly:
The financial saving from the SSI is projected to be £1.75 million for 2011-12. Are figures available that show the portion of that saving that will be derived in relation to solicitors who are involved in mental health tribunals?
- James How (Scottish Government Directorate for Justice):
Roughly 70 per cent of the £1.75 million will come from the criminal side and the remainder will come from civil and children’s cases. We estimate that the vast majority of the savings will come from the criminal side.
As the cabinet secretary said, the cost of mental health cases comes to about £4.2 million a year. It is difficult for the board to estimate the exact proportion that is spent on travel, but roughly a quarter of the money that is spent on mental health cases is spent on travel. That is the kind of saving that we are talking about.
- James Kelly:
Did you say that £2.1 million is the total figure for mental health cases and that a quarter of that is spent on travel?
- James How:
The board spends £4.2 million a year on mental health cases and it estimates that roughly a quarter of that is the cost of travel.
- Robert Brown:
I have one or two questions. I will pursue James Kelly’s point so that we understand exactly what the saving will be. Thirty per cent of the £1.75 million that will be saved on civil cases is about £600,000 a year. Not all of that—in fact, only a small percentage of that—will be saved from mental health cases, as I imagine that civil cases beyond that will also involve some travel. So, I presume that we are dealing with a figure that is more like £200,000 or £300,000—or maybe not even as much as that.
- Kenny MacAskill:
The total figure is £4.2 million and two firms account for £2.2 million of that. I do not think that they have multiple offices.
- Robert Brown:
I am not really talking about that; I am talking about travel. I am trying to identify what the saving will be relative to mental health cases. That is fundamental if we are to know what we are talking about in the context of the issue over which there has been dispute.
10:45
- Kenny MacAskill:
Yes.
Although, as I said, we are trying to reduce unnecessary travel, travel is still being funded and provided for, albeit at a lower rate, although it is a higher rate than is claimed by members of the Parliament. Fares such as air fares can be met in full. The figure is a rough estimate. It is clear that action must be taken, but we must balance that against how we provide for areas that are geographically distant. That is a matter for the Scottish Legal Aid Board’s civil legal assistance offices, and we must also encourage local firms to step forward and do the work as opposed to having solicitors travelling.
- Robert Brown:
With respect, given the importance of the issue and the number of representations that we have had on it, can you or your officials give us your best guesstimate of the saving, as a consequence of the regulations, on travel costs from mental-health-related cases? Clearly, £600,000 is the most it would be, if such cases were to take up all the civil work—which, I presume, they do not. Do you have a rough notional idea of the saving?
- Kenny MacAskill:
The notional idea is that the saving will be several hundred thousand pounds, which is important in the totality of what we are facing.
- Robert Brown:
On the broader issue, you have referred to the overall costs and we can see that some changes in the figures have taken place. The Scottish Legal Aid Board has sent me the review paper to which you referred, which addresses a number of issues. It appears that the principal issue is the fact that the number of cases that are paid for under this heading has gone up from 1,940 in 2006 to 3,287—almost, but not quite, a doubling of the figure. Can you give us any idea of what lies behind that? I accept that there may be more than one case involving the same client, but what is the reason—if there is one—for the doubling of the figure? That seems quite a big change that does not reflect the population.
- Colin McKay (Scottish Government Directorate for Justice):
A number of factors have contributed to that. If you look at the table in the review, you will see that there was a sharp rise in the number of cases between 2006 and 2008, from about 2,000 cases to 3,434 cases, and that the figure levelled off thereafter. There is a system of two-year reviews for people on long-term detention and, as the 2005 act came fully into effect, there would have been an upward curve for the first couple of years. I expect that that contributed to the rise in the number of cases. Other factors will be that people are more aware of the 2005 act and their rights and that solicitors are now seeking to allow people to enforce their rights. The figure has levelled off, since 2008, to a reasonably steady state.
- Robert Brown:
Do you expect it to stay at the 3,000-plus level? Is that your projection?
- Colin McKay:
Concern has been expressed generally about the number of detentions, although I would not want to give you a figure. There has been an increase in the number of detentions since the 2005 act was passed, but I do not think that it is going to change massively. I think that that figure is broadly in the right area for the future.
- Robert Brown:
In terms of comparisons with other jurisdictions—
- The Convener:
I am sorry. Can I just check how many questions you have, Robert? Other members want to speak.
- Robert Brown:
I would just like to pursue this one. I have some others, but I can come back in later, if that is all right. I beg your pardon, convener.
Do you have any comparative information on the level of costs in other jurisdictions, not least England? One of the letters that the committee has received indicates that a typical base fee in England is about £750, whereas in Scotland it is £400 plus other bits and pieces on top of that. Do you have any information on how the cost in Scotland compares with the cost in England, where there is, I presume, a similar expenditure challenge?
- James How:
You have given a comparative figure for England and Wales. As the cabinet secretary said, the average case cost has risen from £918 in 2006 to £1,272 today. However, case costs vary quite a lot among different areas of the country. Where there is good local provision, costs are much lower, but where firms have to travel long distances, the average case cost can be significantly higher.
- Robert Brown:
I was asking what the comparison was with the situation in England. With respect, is not the average fee more relevant than the average cost per case?
- James How:
As far as I am aware, the money is paid in blocks, which is a system that the best-value review suggested we move to. The block payment is in the region of £750.
- Maureen Watt (North East Scotland) (SNP):
My understanding is that the travel fees in Scotland have got way out of line with those in other jurisdictions such as England and Wales. Why has that happened over the years?
- Kenny MacAskill:
We are not sure, but given that two firms are doing £2.2 million-worth of the £4.2 million-worth of work, it is clear that they probably do a significant amount of travel. We propose that the travel-time fee should go down to a level that is more in line with that in England and Wales.
I think that there has been a change—it is not simply that fewer people suffered from mental health problems when I or Mr Brown practised. There is a greater awareness of the issue and firms are dealing with that. We must ensure that we balance the paying of an appropriate fee to firms of solicitors with the system’s not being abused in any shape or form. That is why we want to ensure that although travel will be paid for at a reasonable rate—akin to that south of the border—we do not have people travelling round the country to deal with matters that could be dealt with more expeditiously by a local solicitor, a local firm or a civil legal practitioner who is provided by the Scottish Legal Aid Board.
- Dave Thompson:
I want to focus on the particular difficulties in rural areas and in the Highlands and Islands, which are even more rural and remote than other parts of Scotland, and where the remoteness of some communities means that great distances have to be travelled even within the Highlands and Islands.
I notice that the Law Society says that there are still many solicitors working in the field, although the number is smaller than in most practice areas. I believe that several firms wish to do more work at local level across Scotland. Are some of those firms in the Highlands and Islands? If so, are they spread throughout the Highlands and Islands?
- Kenny MacAskill:
Yes, they are. I was asked a question about that by one of your colleagues who represents the Western Isles. We recognise that Scotland is diverse.
I note, for the record, that there was only one such case in the Western Isles in 2010, and it was dealt with by a local firm. There is another local firm that does legal aid work. I understand that although it has not done mental health work, it has expressed a willingness to do so. We can rest assured that there is provision in the Western Isles and in other areas of Scotland. It is clear that the legal profession has taken a bit of a battering through the recession. Many local firms that in the past might not have dealt with some aspects of legal aid work are now prepared to do so.
We want to ensure that we provide for those who suffer from mental health problems and who must have their rights protected, regardless of where in Scotland they are. We can do that by using competent firms. I would prefer that the money went into providing front-line services by local firms than into providing travel all over Scotland by a few firms.
- The Convener:
The Government is trying to identify savings and is having to make extremely tough decisions in that context. If the proposed change is not approved today, does the Government have any alternative plans on how it might be able to make similar savings?
- Kenny MacAskill:
There is a plan B, which will be significantly worse. Such matters are not easy for the law profession. I should record my gratitude to the Law Society. We have asked its members to take a cut and it has discussed the matter with us. The initial proposals—certainly with regard to criminal legal aid—involved a greater expansion of the Public Defence Solicitors Office. The society asked us whether we would row back on the roll-out of the PDSO if its members took a reduced fee. As a Government, our position has been that we require to make savings because of the reduction in the budget. Beyond that, we are happy to work out an agreed shared solution. I am not suggesting that the Law Society is delighted at what is proposed—that is far from the case—but I think that it accepts that it is the best option that is on offer.
If the regulations do not go through, the Legal Aid Board would have to bring in changes. As those changes would be brought in later, the cuts would require to be deeper and would probably be made in a manner that was not acceptable to the Law Society. I am grateful to members of the Law Society for their fortitude in being prepared to accept a tightening of their belts. If we do not go down the route that is proposed, the Legal Aid Board will have to make an arbitrary decision, the effect of which will probably be significantly worse for the profession as a whole, which is why it is where it is.
- Dave Thompson:
I want to follow up on my earlier question. I presume that moving to a fixed, or block-fee, system would encourage local firms to become involved in such cases. How quickly can we move in that direction?
- Kenny MacAskill:
We will be working towards that. The direction of travel is clear. We want to work with stakeholders and take them with us. I am talking not simply about the legal aid lawyers, but the mental health charities, the Mental Welfare Commission and health boards. We are looking at the matter.
People’s understanding of their rights as regards mental health has grown. That is correct, but there has been a significant increase in the cost to the public purse. We need to ensure that that expenditure is on providing front-line services and rights for individuals, rather than on supporting lawyers being transported around the country.
- Colin McKay:
I have a supplement to that. I make it clear that a fixed fee would require further regulations to be brought before the committee. In addition to the time that it would take to develop and negotiate such a package, there would be the question of when the legislation could be put through. September is perhaps the earliest that could realistically happen.
- Dave Thompson:
If there was seen to be a problem in the meantime, are you confident that the board’s solicitors could fill that gap throughout Scotland?
- Kenny MacAskill:
We have made inquiries of local firms and we think that there would be local provision in most places. Equally, the civil lawyers who are provided and paid for by the Legal Aid Board—the civil equivalent of those who work for the PDSO—are on standby and are ready to intercede, either by dealing with a matter directly or by acting as intermediaries and passing it on to a local firm that is willing to act.
- Robert Brown:
I think that the essence of the problem is reconciling the current position and the issues that the cabinet secretary has identified with a position in which more localised provision is in place. We should bear in mind the element of choice, as well. I wonder about the phasing of the introduction of the regulations, the bringing in of the block fees—which, as your colleague Mr McKay said, will take a little time—and the supply of new firms with expertise. I am well aware from my knowledge of this area that a degree of specialised knowledge is required. I presume that that will require an element of training, which will take some time to bring in. Is the problem not the gap between where we are now, as the regulations come in, and six or nine months down the line, when the training would have to have been done, new firms would have to be available and a new system would be beginning to feed in?
I am told that there are 100 cases in Elgin, for example, so it is clear that the potential exists for more localised arrangements, but the timescale is a problem, is it not?
- Kenny MacAskill:
The matter has not been dealt with overnight. Discussions have been held with the Law Society and in specific geographical areas. Through the Law Society, provision is made for post-qualifying legal education. Assistance can and will be provided by the civil lawyers who are contracted by the Legal Aid Board.
If you are suggesting that we should just wait for the block fee to come in, I come back to the convener’s point. If we cannot act until September, I or someone in a new Administration will have to make cuts that are deeper and more severe. That is why the Law Society prefers the option that is currently on the table, followed up by continuing discussions—the regulations are not the final word on the issue. If we do not act now, we would find, come September, that the block fee would probably be considerably lower than it might be were we to act now.
11:00
- James How:
There are probably three levels. There are the firms that are doing the work now that have indicated concerns about the fee reductions. We need to see whether they reduce the work that they do.
There are other, local firms that have been doing some of the work, as they have the necessary qualifications, and that have indicated that they want to do more. The board is monitoring the situation closely and is looking at particular areas of the country. There are firms with the relevant qualifications that are prepared to do the work.
As the cabinet secretary and Colin McKay said, the third level is the network of civil legal assistance offices and their solicitors, who have training. At the close of last year, the civil legal assistance office in Inverness ran a seminar on mental health that raised awareness of work in the area and made contact with many firms that made it clear that they were prepared to do that work and to make referrals to other firms that are prepared to do it. There are three levels for the current period.
- Nigel Don:
I am beginning to make rather more sense of the regulations. It makes sense not to spend public money on getting people to travel, if we can get the work done locally. If that is the bottom line, it makes perfectly good sense. We all understand that those who are currently doing the work and will see a reduction in fees will not welcome that.
I want to bring two issues to the cabinet secretary. First, is he prepared to give an undertaking to keep specifically the mental health and welfare issues under review over the coming months? I know that SLAB now has a general duty to consider all those issues, but a commitment to look specifically at them on a rolling basis and to report appropriately—I have no idea what that might mean—would be welcome.
The other issue is the step change in fees that seems to be being suggested. I and, I think, other members have received representations from a solicitor who points out that he will need to travel a considerable distance to continue work that he is currently doing for a hearing that will probably call in a month’s time. I wonder whether SLAB has or could be given the flexibility not to reduce fees and to allow existing rates to be paid in particular cases to which people have some kind of obvious commitment. I may be misinterpreting how the regulations will work, but I am a bit concerned that people who have taken on a task in good faith will suddenly find that their recovery is no longer as they would have expected, which may be unreasonable.
- Kenny MacAskill:
I invite Colin McKay to comment on the payment issue; there is a catch-all provision to assist with that. We are happy to undertake that we, any successors and the Scottish Legal Aid Board will continue to monitor the issue that the member has highlighted. It is work in progress, because the way in which matters are handled is being changed. The issue will be monitored to ensure that we maintain discussions and that there is no diminution of service, irrespective of jurisdiction, in this country.
- Colin McKay:
One of the spin-off benefits of the best-value review is that the board has developed good working relationships with the Mental Health Tribunal for Scotland. I am sure that the tribunal will want to monitor how the system is working.
I am afraid that a further regulatory change would be required to address the issue of existing commitments. As the regulations stand, the fees will change with effect from Monday. I do not think that it will be possible for the board to put in place some sort of transitional extra payment. Some solicitors will have a choice to make. They will have to balance their professional obligations to the client against the reduced remuneration that they will receive. Our general view is that, although they will get less than they thought that they would get at the start of such cases, they will still get paid. Overall, they will not receive terribly unfair remuneration for the cases. To some extent, they will just have to decide what they want to do.
- Kenny MacAskill:
As Robert Brown, the convener and I know from experience, rather than travel to future cases, solicitors may arrange for a local agent who is willing to attend a case to do so. In some instances, firms that would have attended cases by sending a variety of their qualified assistants to jurisdictions such as the Western Isles or Elgin will simply ask local firms to appear for their clients on their behalf.
- Nigel Don:
The point has been fairly made that, in this instance, we are dealing with fairly fragile people and that relationships with professional advisers may mean rather more in those cases than in general legal cases. I suspect that some solicitors will really want to attend. The other side of the argument, which has not been articulated, is that the profession has had considerable notice of the proposed change. One could argue that a solicitor who took on a case three months ago knew that they were doing so with the risk that the rate would change on the date in question.
- Kenny MacAskill:
The regulations have been laid with the consent of and in discussion with the Law Society. It is not an easy matter for the society. In these regulations and others that will come in, we are not providing more money, but we are working with the society on how appropriate savings can be made. We are acting with its consent and are grateful for its forbearance.
- Maureen Watt:
Much work in this area seems to have been concentrated in a small number of firms. How have we got into that situation? Has it arisen because people advising those who require legal aid have been directed to particular firms that are known to be involved in the area and because there has been a lack of knowledge of local availability?
- Kenny MacAskill:
There are a variety of reasons for that. When I practised, no firm was a specialist mental health firm—such firms did not exist. Our practice at that time may have been wrong. Some firms have seen a niche market and have gone for it; it is their right and entitlement to do so. Equally, other cases have arisen.
In a time of financial austerity, we must ensure that we provide the rights that individuals need in the way that best ensures that the public purse is protected. There is not one simple reason for the current situation. It is partly about rights awareness, partly about firms starting up and going for this market, and partly about people being in the know and genuine, appropriate referrals being made to them. We take the view that we are where we are and that we must both protect the rights that every member wants to protect and take account of our responsibility, at a time of limited resources, to balance that with appropriate use of the public purse.
- The Convener:
You have covered all the questions that have been asked.
We move to the formal debate on the motion recommending annulment of the regulations on which the committee has just taken evidence. I invite James Kelly to move motion S3M-8012.
- James Kelly:
Like all members, I have received a number of submissions in recent weeks—especially in recent days—on the regulations, particularly on the issue of travel to mental health tribunal hearings. I have given the matter careful consideration. I acknowledge that the instrument has been laid to make financial savings and that it is attempting to bring Scotland into line with other jurisdictions on the issue of solicitors’ fees. The figures that have been provided suggest that three firms dealt with 70 per cent and 10 firms dealt with 90 per cent of the 3,287 cases that have been heard by mental health tribunals. We must move away from that situation. I recognise that we need to get more firms involved in this area of law, so that clients have greater choice and greater ability to access legal practices locally. However, I believe that the cabinet secretary’s proposals are flawed in respect of mental health tribunals.
As we have heard, and as we have seen in written submissions to the committee, firms that are involved in that area of law are required to travel substantial distances and the introduction of the new fees could result in their withdrawal from current or future cases, so I suggest that there is an access to justice issue. It is particularly pertinent because mental health tribunals obviously deal with vulnerable members of society. It is important that people have access to proper legal representation, but it is very important that clients with mental health issues have appropriate support. The proposals could undermine that support and legal representation.
The cabinet secretary also recognises that there is a problem with his proposal. In his letter to the committee, he deals with what would happen if there was a shortfall in solicitors who were able to take up the work and indicates that he would put in place transitional arrangements. That would involve grant funding being made available so, in effect, he would be putting in place a commitment to cover costs to address a shortfall.
We heard that the savings for 2011-12 would be £1.75 million, 30 per cent of which is accounted for by civil legal aid. Therefore, the portion that relates to travel to mental health tribunals is perhaps about £200,000. We must consider that in the context of what may have to be spent to make up a shortfall if solicitors are not able to travel to mental health tribunals. A position starts to emerge in which the savings on the mental health part of the proposals are not at all high, which contradicts the doomsday scenario that the cabinet secretary presents as resulting if we do not proceed with the regulations.
The best way forward would be for the cabinet secretary to withdraw the part of the proposals that affect mental health tribunals. As has been said, the Scottish Legal Aid Board recently published a best-value review and the Law Society also has proposals on moving to a block fee system. It would be sensible for the cabinet secretary to withdraw the regulations, because it would allow all parties to work on the block fee system, which may produce a more efficient method of remunerating solicitors who service mental health tribunals in future. It would also come at less cost to the public purse. Working through those arrangements over the coming months and thereby putting in place a more sensible and sustainable position would give clients better service and, it is to be hoped, open up the number of law firms that practise in mental health cases. Crucially, it would not undermine representation for vulnerable clients in such cases.
I acknowledge that the matter involves complex issues, but the sensible way forward would be to work with the Legal Aid Board and the Law Society to put in place a more sustainable solution, as opposed to compromising the rights of vulnerable clients in mental health tribunals.
I move,
That the Justice Committee recommends that nothing further be done under the Legal Aid and Advice and Assistance (Solicitors’ Travel Fees) (Scotland) Regulations 2011 (SSI 2011/41).
- The Convener:
I invite other members to speak, but I ask them to keep their comments as brief as possible as we are running a bit over time.
11:15
- Dave Thompson:
I, too, am concerned about the mental health aspects of the regulations but have been reassured by the cabinet secretary and his team. They have explained what is behind the proposals and have assured us that there will be a review, which is exactly what SAMH asked for in its submission. It asked for the matter to be kept under review and for a report to come back at about six months, once a bit of experience has rolled in on how the proposals work.
I am very keen to boost local provision for representation at mental health tribunals. We have been assured about interim cover from the Legal Aid Board’s own solicitors if there are problems. The move towards block fees in the medium term may encourage local firms to get involved in such representation, which would be a good thing.
The problem with James Kelly’s motion is that it recommends that the Parliament annul the regulations that relate to not only mental health expenses, but as a whole, so all the savings would go, which would create a much bigger problem. I am afraid that I am not able to support him on that.
- Robert Brown:
I confess that I had considerable worries about the provisions on mental health expenses, some of which have been assuaged by the cabinet secretary’s comments.
I was struck by one observation in the best-value review report, which indicates that the reviewers contacted the two largest firms—the ones that had large amounts of money from mental health work—but they chose not to engage in the review. That seems a bit unsatisfactory.
I am satisfied on the principal, central point: that the current regulations provide a perverse incentive, which is not helpful to the proper operation of the system. Against that background, I cannot go along with James Kelly’s suggestion that the regulations as a whole be annulled. He makes a good point about the £200,000 being offset by other costs.
I have some concerns. Let us say for the sake of argument that 1,000 of the 3,287 cases involve substantial travel—I may be a bit wrong, but I think that the figure is in that area. That is a lot of cases to be taken up by the public officials or other private firms.
There is a question of choice, which is important, and relationship. There is also a significant question about expertise. I am bothered about the time gap between the introduction of the new system and the acquisition of that expertise. The cabinet secretary said some things to reassure me on that, but we must pay attention to ensuring that there are experienced people with the knowledge and practice to be able to take the work on, that the perverse incentive is removed, that the Legal Aid Board and others keep a close eye on what happens and that there is a report to our successor committee, perhaps among others, as the new arrangements bed in, as SAMH suggested.
The sooner that the new system is brought in, the better. However, the best-value review is a complex report with a lot of implications, so the other side of the coin is that we should not hurry reform beyond what is necessary.
I am struck by the fact that there are a number of other drivers, such as the doubling of the number of cases. There are also suggestions that the Legal Aid Board is not doing enough to control inappropriate applications. There is a lot of work for the justice directorate to do to ensure that the proposals work. Above all, we must have as much of a guarantee as the cabinet secretary can give us that no person who faces such difficult issues will go without mental health representation as a result of the changes that the regulations make.
- Kenny MacAskill:
I take on board the points that Robert Brown made. He is correct that, as Mr Thompson said, we are talking about vulnerable people whose rights—sometimes a tribunal deals with a significant infringement of their rights—must be protected. Therefore, I am happy to assure Mr Brown that the Scottish Legal Aid Board will ensure that those individuals’ needs are met through its own contracted lawyers—who are already paid for, which offsets worries about cost—and through additional beefing up of provision, training and working with local firms.
It is equally a fair point that we should review the arrangements. I cannot bind my successors’ hands, but I can ensure that work goes on in the justice directorate and the Scottish Legal Aid Board that will be available to a cabinet secretary and enable that person to ensure that information is provided to the successor committee after the next election. That would keep the committee apprised and tie in with action that will be taken fairly early in the term of a new Administration. The work will be going on and, by the time that those of us who are returned after 5 May reconvene, we will be getting closer to that action, which could be taken early in September. I assure Mr Brown that, in the interim, the Scottish Legal Aid Board would take on board all the matters that he raised.
- James Kelly:
The regulations will come into force immediately and, as Nigel Don said, might therefore impact on current cases and undermine the ability of vulnerable people to be represented. That is a concern.
Dave Thompson talked about interim cover. I reiterate that interim cover comes at a cost, which would reduce the level of savings.
If the motion to annul the regulations is successful, there will be an opportunity for the cabinet secretary to bring back amended regulations that do not cover mental health tribunals. I will press the motion, because I believe that we need a more collective approach to addressing the issue than the one that is outlined in the regulations.
- The Convener:
The question is, that motion S3M-8012, in the name of James Kelly, be agreed to. Are we agreed?
Members: No.
- The Convener:
There will be a division.
For
Butler, Bill (Glasgow Anniesland) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Kelly, James (Glasgow Rutherglen) (Lab)
Against
Brown, Robert (Glasgow) (LD)
Don , Nigel (North East Scotland) (SNP)
Lamont, John (Roxburgh and Berwickshire) (Con)
Thompson, Dave (Highlands and Islands) (SNP)
Watt, Maureen (North East Scotland) (SNP)
- The Convener:
The result of the division is: For 3, Against 5, Abstentions 0.
Motion disagreed to.