 Welcome to the Justice Committee's 10th meeting of 2009. We have apologies from Jenny Gilruth and I welcome Big Kid Bill Kid, who is substituting for Jenny today, and I invite Bill to declare any relevant interests. Thank you very much, convener. I don't believe I have any relevant interests to declare at this point. Agenda item 1 is a decision on whether to take item 5, which is consideration of the draft letter in private. Are we all agreed? Yes, we are all agreed. Thank you. Agenda item 2 is an evidence session on an affirmative instrument, services of lawyers and lawyers practice, EU exit, Scotland amendment etc. Regulations 2019 draft. I welcome Ash Denham, minister for community safety and her officials Denise Swanson and Emma Stephenson, director of legal services with the Scottish Government. This item is to transfer members to seek clarification of any points on the instrument from the minister and officials before we formally dispose of it. I refer members to paper 1, which is a note by the clerk, and paper 1 also contains a written statement submission from the Law Society of Scotland on the SSI. Minister, do you wish to make a short opening statement on the instrument? I do. Thank you, convener. It might be helpful to set out the context in which the SSI has been laid. The services of lawyers and lawyers practice, amendment etc. EU exit, Scotland regulations 2019 have been developed to prepare for a no-deal Brexit. This instrument mirrors the approach that has been taken in England, Wales and Northern Ireland. Currently, EU directives set out the rights of lawyers to provide legal services in EU and EFTA states. The current application of those EU directives allows specified lawyers to provide regulated services in a member state other than the one in which they qualified, and that is termed a host state, without the need to register with the host state regulator. Lawyers provide services under their existing professional title, which is otherwise termed their home state professional title. The directive clarifies the regulatory rules that are applicable and the conditions for providing those services in a host state, and those are commonly known as fly in, fly out services. The lawyer's establishment directive allows specified lawyers in one member state to practice reserved legal activities on a permanent basis in another member state under their home state professional title and the conditions for doing so. It also allows lawyers who are practising in another member state to be admitted to the profession in that member state after three years of practice in the law of that member state without having to go through the usual qualification routes. European lawyers practising in Scotland under the establishment directive must be registered with a Scottish regulator as registered European lawyers. As registered European lawyers, they have the right to own legal businesses without a UK qualified lawyer. The purpose of the instrument is to end the preferential practising rights of EU and FTA lawyers in Scotland to provide legal services on either a permanent or a temporary basis. In the event of a no deal Brexit, the reciprocal arrangements that are enjoyed by members of the EU and FTA will no longer be available to the UK. EU and FTA qualified lawyers, who have already successfully transferred into the Scottish qualification, will be able to retain their qualification and practice rights, but arrangements will be different in the future. In the event that the UK leaves the EU without a deal, our services trading relationship with the EU will be governed by world trade organisation rules. The general agreement on trade and services prohibits signatory states from giving preferential market access to any other signatory state in the absence of a comprehensive free trade or recognition agreement between them. We therefore need to fix the deficiencies in the relevant retained EU law caused by the lack of reciprocal arrangements with the EU while also meeting our international obligations. As such, we will revoke the legislation that currently implements the EU framework and EU and FTA lawyers will be treated in the same way as other third country lawyers. The draft statutory instrument will helpfully provide a transition period to allow registered European lawyers from EU and FTA states time to comply with the new regulatory position and the transition period will run from exit day until 31 December 2020. It will allow registered European lawyers and those in the process of achieving registered European lawyer status by exit day to practice in the same way as they do now, but with time to adjust. In making these amendments, the instrument recognises the terms of the agreement between the UK Government and the Swiss Confederation on Citizens Rights following withdrawal of the UK from the EU. Provision is made for reciprocal rights of practice within the terms of that agreement. This is a no-deal SSI, and that is not the Scottish Government's preferred position. We regret the decision to leave the EU and wouldn't support a no-deal Brexit. However, it is incumbent upon us to prepare for all potential outcomes and we have to consider the best approach in this area should the UK leave the EU without a deal. Officials have kept in close contact with the relevant representative organisations, the Law Society of Scotland and the Faculty of Advocates, who are aware of the instrument and have also contributed to the business regulatory impact assessment. It is thought that the terms of the instrument will have little impact on the current landscape for delivery of legal services. I am grateful for having the opportunity to provide some context about the SSI and I would be happy to take any questions that the committee might have on it. Thank you very much for that comprehensive statement, Liam McArthur. Thank you, minister. That was a helpful clarification of the position that we find ourselves in. I think that we have all rehearsed at various stages the arguments about not wishing to be in this position. I welcome the fact that there seems to be a sensible pay during which any reorganisation of affairs can take place. I think that that is also very sensible. Moving away from a system of mutual recognition is just a further example of how bad and unnecessarily bad the situation is. I would also like to put on record the gratitude to the Law Society for its helpful note. It is also worth reflecting that, in its submission, we fully intend whatever the future relationship with the EU after exit to keep open, accessible yet robust routes to re-qualification for lawyers from any jurisdiction that allows them to practice within Scotland, while also reassuring clients of their competence. That assurance is also very welcome indeed. As I said, it is highly regrettable that we are in this position, but the SSI appears to discharge the responsibilities that need to be discharged and therefore be supporting it. Do members have any other comments or questions? In that case, agenda item 3 is formal consideration of the motion in relation to their affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has no comments on it. The motion will be moved with an opportunity for a formal debate if that is necessary. The motion is motion 16239 that the Justice Committee recommends that the services of lawyers and lawyers practice EU exit, Scotland, amendment etc regulations 2019 draft be approved. Minister to move. Moved. Thank you. Do members have any further comments or questions? In that case, I put the question, is motion 16239 in the name of Ash Denham approved? It is approved. Thank you. Is the committee content to delegate authority to me as convener to clear the final draft of the report? Thank you. It remains me to thank the minister and our officials for attending and suspend briefly to allow the minister to leave. Agenda item 4 is consideration of three negative instruments, police pensions, miscellaneous amendments, Scotland regulations 2019, SSI 2019 oblique 68, act of sederant, taxation of judicial expenses rules, 2019 SSI 2019 oblique 75, legal aid and advice on assistance Scotland miscellaneous amendments regulations 2019 SSI 2019 oblique 78. The Delegated Powers and Law Reform Committee has considered and reported on all three instruments and has no comments on any of them. I just wish to refer members to my register of interests as a recipient of a police pension in respect of the item in the agenda. Okay, Julie noted. I refer members to paper 2, which is a note by the clerk. Members, we wish to note that in relation to the SSI on legal aid SSI 2019 oblique 78, we have also received written submissions from the Law Society of Scotland and the Edinburgh Bar Association. Those submissions are attached to the paper on the SSIs. Do members have any comments on the instruments? Liam McDaniel. Questions on the first instrument and the third instrument, actually. I'll do the one on the police pensions first if I may and then come in after Daniel, perhaps. My understanding from reading this is that there will be an increase in the police employer contribution to the pension. That estimated cost is about £40 million and the UK Treasury covers that increase but there was supposed to be confirmation in the spring statement. Do we know what that confirmation was? Do we have confirmation? I don't have that information to hand but, as the committee is considering the rest of the instruments, we'll see if we can find that out for you. I'll be very grateful. Daniel? The two items that were submitted by the Edinburgh Bar Association and the Law Society regarding legal aid were quite strong submissions and I think it's particularly worth noting that it's not usual for us to get submissions for negative instruments such those. The points that they make regarding the situation of legal aid find itself are certainly worth noting and I was wondering whether or not some of the points that they raise might be worth writing to the minister asking for any comment on the Government in particular. The statement by the Edinburgh Bar Association that there's been a total reduction of 31 per cent since 2011 in the funding available to criminal legal aids list is. Likewise, the Law Society's call for a full needs-based review as part of the future structures that may come out of the legal aid review that the Scottish Government's currently conducting and I think those, among other points, are worth us noting and thinking about whether or not we might want to act on them. Thank you. Liam McArthur? Thank you very much. I entirely agree with Daniel Johnson that it is unusual for us to get submissions of this sort in relation to negative instruments although probably not only surprising in the context of the debate that's been around legal aid. I don't think it should interfere. In fact, I think the Edinburgh Bar Association was far as to say it shouldn't interfere with the passing of this SI but I think there is a bit of work to be done there partly on the point that Daniel Johnson has raised in relation to the drop in legal aid practitioners. In the chamber last week with the minister, there are parts of the country now where the accessibility of legal aid practitioners is a serious problem. In Orkney, I know many have to seek legal representation from lawyers based on the Scottish mainland which is often leading to them not actually having contact between client and lawyer until the day they appear in court which doesn't seem to be desirable at all. I think that the other point that the Edinburgh Bar Association made that lept out at me was referring to the underspend and money allocated for police station work which, you'll recall, convener, there was quite a bit of controversy around when that came through the committee. I think that there's probably a number of different issues that we can very usefully follow up with the Scottish Government and use the passing of this SI as a peg on which to hang that. I think that those are very valid and important points raised but it's also worth noting that the faculty of advocates welcomed the 3 per cent increase and that in England and Wales they've just announced a 1 per cent increase only for barristers and that Scotland's current legal aid spend per head is the third highest in the European Union and is the widest scope in eligibility so just by way of balance I wanted to get that on record. John Finnie? Thank you, convener. The facts that Rona Mackay mentions may well be the case but I think that there are genuine concerns about the wider implications of this and the much-used-phrase access to justice and the circumstances outlined by my colleague Lee McArthur. The frustration is that this falls comes not long after a significant review of the process so at the very least I would like to see us right to the cabinet secretary for justice and ask for a response to the specific points raised in the two submissions we've received which I rightly don't want the issue stopped, I want it preceded but I think the issues remain. Liam Kerr? Thank you, convener, yes. I want to specifically endorse the points that have been made. I must declare an interest of course at the outset. I have a practice certificate with the Law Society of England and Wales and of Scotland but I think it is very important some of these issues that have been raised. Particularly, I think we should find out if the Government concedes the level of hardship that the bar association have flagged up and the numbers departing particularly because it has a, or rather a, or they suggest it has a gendered nature to it. I was also quite interested, because I've only been here three years now, about this business of a promise made in 2011 to reinstate the funding which certainly the allegation seems to be that that promise has been broken and I'm quite interested to know more about that or hear the Government's view on that. No, certainly I think these are good submissions, they raise very valid points and I note Daniel Johnson's suggestion that we send the submissions with the points raised to the Cabinet Secretary and the Scottish Government for comment. Are we agreed to do that? Thank you. In response to Liam Kerr's question, initial question. Just to update the member and the committee, in a brief look that we've been able to do with the Chancellor's spring statement, there is reference to increased police funding but that's more to tackle crime in England and Wales. There is no specific reference to police pensions or the issue about funding that the member raised, so it doesn't appear to have been covered in the Chancellor's spring statement. The committee might want to be aware that that particular instrument, the police pensions regulations, comes into force on 1 April. The committee wouldn't be able to look at that one for a second time given that the committee is not meeting next week. The legal aid instrument comes into force on 26 April, so there is time for you to wish to look at that again, but that's a matter for the committee. Liam McArthur? I note that the Law Society has also made a number of technical observations in relation to the SI, and I wonder whether it's worth getting clarification. They indicate that they were due to speak directly to officials. All the technical observations that they've made are valid and the Government likely to take those on board. I'm not sure, but it would certainly be helpful to understand the extent to which there's been a kind of meeting of minds between the Law Society and officials on that. Members have raised all very valid points. I think that we're all agreed that these are all taken up with the Cabinet Secretary and the Scottish Government, and we look forward to a response. Is it the committee's position that, although it doesn't want to make any recommendations in relation to the instrument, it certainly does want to put the questions and the points that we've raised to the Cabinet Secretary and the Government? I agree. That concludes the public part of today's meeting. There will be no committee meeting next week. Members of the committee will undertake a fact-finding visit to the Scottish Crime Campus at Dirk Cosh in North Lanarkshire. Therefore, the next formal meeting of the committee will be on Tuesday 2 April, when we expect to begin the process of considering stage 2 amendments to the management of offenders' Scotland Bill. We now move into private session.