 Welcome to the sixth meeting of the Criminal Justice Committee. No apologies have been received this morning. The first agenda item is to agree whether to take item 6 in private, which is consideration of today's evidence. Are we agreed? The next agenda item is a round-table discussion on legal aid and legal aid reform, and I refer members to papers 2 and 3. We will take evidence this morning from a round table of witnesses who will be joining us virtually due to social distancing rules at Holyrood. I very much welcome our panel of witnesses this morning. Julian Fife, strategic lead of strong communities of the Citizens Advice Scotland. Tony Lennon, president of the Scottish Criminal Bar Association of the Faculty of Advocates, Mr Ian Moyer, legal aid convener of the Law Society of Scotland, Mr David Fraser, executive director, court operations of the Scottish Courts and Tribunal Service, Mr Colin Lancaster, chief executive of the Scottish legal aid board, Ms Julia McPartland, president of the Scottish Solicitors Bar Association, Professor Alan Patterson, professor of law at the University of Strathclyde and Dr Marcia Scott, chief executive of Scottish Women's Aid. We very much appreciate the time that you are taking to join us this morning. I thank those witnesses who have provided a written submission and are available online. I intend to allow around about an hour and 20 minutes for questions and discussion. I ask members to indicate which witness you are directing, your remarks to and then we can open the floor to other witnesses for comments. If other witnesses wish to respond, I ask you to indicate that by typing R in the chat function on blue jeans and I will bring you in if time permits. If you are merely agreeing with a point being made, there is no need to intervene to say so. Other comments that you make in the chat function will not be visible to committee members or recorded, so if you want to make a comment, please do so by requesting to speak. We will now move directly to questions and again, if I can ask members and uninvited guests to keep your questions and comments as succinct as possible to facilitate a free-flowing discussion. I would like to structure the discussion this morning around a series of broad themes. The first of those themes is access to justice and the current experiences of users on use or using the legal aid system. I would quite like to kick off myself this morning and perhaps direct some opening questions to Professor Alan Patterson and Mr Ian Moyer. Professor Patterson, I know that you had an advisory role in Martin Evans' review on legal aid, rethinking legal aid back in 2018. There were some key issues brought out in that report around simplifying the system, creating a fair payment system and obviously making the system more accessible. If I can start with you, Professor Patterson, with specific regard to the criminal justice system, I am interested in what priorities you see in that overall idea or theme of accessing legal aid and how we can improve that in the context of criminal justice going forward. Thank you, convener. The primary aim of Evans was to provide a balance fair proportionate access to justice for all, bearing in mind that the United Nations Sustainable Development Go 16.3, which drives us towards access to justice for all in an affordable manner. Evans was well aware of the financial pressures and requests from the profession but was unable to come up with a single conclusion other than that proper and evidence-based research should be conducted into that. Following that, we have had a payment review panel, which has struggled to come to a solution and has recommended more research. Where I would like to see criminal justice go, it should become even more people-centred than it currently is and more of a social or public service. That means that the current legal aid system, which is set up by 1986 legislation and, primarily, is a mechanism whereby private lawyers can be paid for delivering the legal aid services that they wish to deliver, has to change to one that has a focus on the needs of the population and how best to deliver a proportionate service to meet those needs. That will require a change in the role of SLAP and a change in our attitude to legal aid, but, in one way, let me point to holism. The current system with duty care or paying case by case does not lend itself to delivering a holistic service to members of the population. Although we know that individuals who come to criminal defense solicitors may have a raft of social and economic and legal problems, the criminal aid system is set up only to deal with legal problems when, in fact, what they need is a one-stop shop, as in New York, Australia and England. In other jurisdictions, we recognise that a holistic approach to the client is required when you tackle a number of their problems together, hopefully in a one-stop shop. Thank you very much, Professor Patterson. Mr Ian Moyer, would you like to come in on that? I think that it is fair to say that having been involved for a number of years with the sort of research that Professor Patterson has referred us to, it is clear that there are instant solutions for a lot of the wider strategy that everyone is trying to achieve to improve the system, because it is too complicated at the moment. It is difficult for solicitors of many years' experience to understand the legislative framework because of the way that legal aid has developed over the years being constrained by the UK legal aid act that underpins everything that we do. For me, there are two issues here. I think that the profession, broadly speaking, is on board with the idea that simplification and change to the system are welcome, but that is going to take too long to deal with the immediate crisis that faces legal aid providers. That is not a case of us crying wolf about some theoretical problem that might come down the line with the system. At the moment, the courts are gearing up to clear the backlog, and already that is starting to fail. Furns such as myself are finding it really difficult to recruit and retain staff to cover the cases that we have. Never mind gearing up to clear the backlog and already the extra court that was set up in the borders to clear the criminal backlog has to be scrapped because it was resourced for everybody else except the problem is that there are no defence lawyers to do the cases, so they simply had to mothball that court. So it is not a theoretical, there may be a problem coming down the line. We are now right in the middle of the crisis that we have been warning about for a long time. To me, the only solution for that in the short term would be to use the crude tool of a significant increase in the existing legal aid rates while we work on a constructive approach to improving the system in the medium and long term. That will take two or three years and we simply do not have that time before there will be no lawyers or not enough lawyers to carry out the work. There is an immediate crisis that needs to be fixed, although there is still a willingness to work towards a sort of framework that will take several years to achieve. Thank you very much. That is really interesting to hear. A bit concerning in relation to the backlog issues that you have highlighted there, but obviously from what you have said, one of the challenges is around recruitment, and I know that that is something that we have been conscious of. I will maybe touch on that briefly for a moment. What do you see are some of the priorities in terms of addressing that, if I can just stay with you, Mr Moyer? Yes. My firms, for example, have been advertising for some time for a criminal assistant, and there have been no applications whatsoever. I am aware of a number of other firms in exactly the same boat. It is really not a surprise when, quite rightly, COPFS and other Scottish Government solicitors have been given pay rises, which they are entitled to. However, the starting salary is around £50,000, and there is simply no way that legal aid firms can offer that salary. That is before you get to the issue of work-life balance. If we are out 24, 7, 3, 6, 5 phones going in the middle of the night, clients phoning at 11 o'clock on a Sunday night to ask what time they are at court next Thursday, that sort of stuff that happens literally every day. We need to be able to offer pay for quality courts to have any chance of recruiting and retaining staff, and we are simply not in a position to do that at the moment. That is why I am suggesting that the only immediate fix that is available is a significant rise to the existing fee structure while we work on a more nuanced and suitable way of moving forward in the future. Thanks very much. I know that we will be having a look at the free fee structure and arrangements in due course, but thanks for that just now. I will hand over to Russell Finlay if you want to pick up, and then I will maybe bring in Collette Stevenson after that. Thank you. This, I suppose, initially is directed towards Ian Moyer, who has already used the phrase cry wolf. The Martin Evans report of 2018 paints a somewhat different picture. It talks about Scotland having the third highest legal aid spend per capita in Europe and funding more cases per 100,000 people than anywhere else in Europe. It refers to the Law Society of Scotland's previous Otterburn report. Mr Evans might have been too polite to use the word spin, but he points out some of the ways that this information was presented by the Law Society as being somewhat questionable and selective. Is there not a risk that your Doomsday warnings of today are very similar to those that we have heard in the past, and indeed it is just a question of the market being what it is, and, again, going back to your point, crying wolf? I did not say that I was crying wolf. I said that I was not crying wolf, and no, this is a totally different scenario whereby we have been warning for years that we are heading to this point. We have now reached it where every week young lawyers are leaving to join the crown and other government bodies. We cannot get lawyers to conduct trials, which means that going forward we will not have experienced lawyers to become the sheriffs, judges, senior prosecutors and so on that we need going forward. To simply say, well, we can get through today, isn't good enough. We need to be in a position where we have a proper access to justice for the people of Scotland. We already have legal aid deserts in the past parts of the country where nobody can access a solicitor, and to say, well, we'll spend less on civil legal aid because nobody's applying. If that's because they can't find somebody to represent them, then that's a very poor thing, indeed. The other point that was made quite clearly about the spend per head is that we have a totally different adversarial system than many countries in Europe where the judge is in charge of all of the investigation and the lawyer's role is very limited. It's a completely different system that we have in Scotland, so it's simply not a straight comparison and that's been accepted a number of times in the past, and I'm sure that Professor Patterson would agree with that. Going back to the point, nobody's suggesting that there aren't problems in terms of accessing justice, but the blunt tool of more money just seems to be slightly jarring perhaps. Do you agree with that? Against a background of decades of falling fee levels, I started 30 years ago and we're still broadly on the same page in terms of how much we get paid, and yet I've got to pay pensions for my staff. I've got increased overheads year on year and it's extremely difficult to run a legal aid business and to simply say, well, you should be willing to prop that up from other income isn't done answer to the need for fair remuneration for the work done, which is what we're statutorially entitled to. The Law Society of Scotland's Otterburn report, I can quote some of that here, if you like. Assumptions appear to have been made in the report, and notional calculations used to reach the hourly rate for the purpose of a press release rather than figures provided by respondents. Mr Evans describes it as an admirable attempt by the Law Society of Scotland to quantify the commercial viability of conducting legal aid work, but he concludes that there is no argument or no evidential basis in which to raise fees. Do you just discount the Evans report in its entirety? Do you recognise that picture? I've already indicated that we are more than happy and have done in the past to engage in a constructive way with the legal aid work and the Scottish Government about a better way of doing things in the future. I think that everyone agrees that there are better ways that things could be done, but the point is that, since those reports were done, we've had a global pandemic, we've had the courts grind to a complete halt, we've had a massive drop in the amount of money that legal aid boards have spent because cases simply weren't concluding, and that's despite, I think, the figure is 23 per cent down on the spend last year, and that's despite firms being able to enter and fee cases, so there is a massive financial hole. That has been partly recognised by the Scottish Government in the resilience fund, which I welcomed, but that doesn't mean that there is not still a massive problem. Like so many other areas that have been dramatically affected by the pandemic, but we were already on our knees before that, so to look into the past really isn't going to help us solve the immediate crisis or the future. Those were reports that were prepared against a totally different backdrop, and I think that what we need to focus on is how do we get through what we face now, and, as I said, I'm still more than happy to then look at the basis of those reports as a starting point for further discussion with the Government about a better way forward in the long term. Professor Patterson, do you believe that there's any risk that the previous warnings from the Law Society over many years, and that there's a very effective lobbying organisation, will count against them today? Is it a case of perhaps crying wolf, or could that be the public perception? I think that the professors are facing a real storm. The demands of criminal practice has been very clearly made out by Ian Moir. What is difficult, and what Evan's found difficult, and clearly the payment review panel found difficult, is to find the straightforward solution to the financial difficulties. We know that criminal practitioners, criminal legal aid practitioners specialise, and we know that roughly 60 per cent of legal aid work is done by 25 per cent to firms, so that a lot of firms don't do very much. If you come across with a straight payment rise, Evan's felt at running a risk of overwarning the specialists who could be very efficient and cost effective. If you were going to raise fees at a level where those who don't do very much legal aid made it cost effective, I'm obviously oversimplifying. What we have to find a way is a way of paying criminal legal aid practitioners, which is fair to all, and we have to look at the health of the market as well. In the Netherlands, they are conducting exactly the same research that the criminal review panel recommended that we look into both the numbers coming into the profession and the numbers that are willing and able to do criminal legal aid work and how many people are available to provide legal aid. It is true that significant numbers have been leaving the criminal legal aid profession, but what is not clear is whether they are the specialists or those who don't do very much. Can I ask two more brief questions? I quite like to move things on, thank you. I'll bring in next, and then Pauline McLean. Okay, thanks, convener, and good morning to the panel. I'm just focusing in as well on accessibility to justice, and I wanted to bring in Dr Marsh Scott regarding your submission from Scottish Women's Aid. Within your submission, you mentioned something about good examples of good practice. I would like to find out a wee bit more about that, and also about women's advice or misadvice on their entitlement to legal aid and how we can do better, and maybe citizens' advice of playing a role in that as well. I would like to hear from you that, if you don't mind. Thanks for that, absolutely. The submission that we gave to the committee reflected probably a decade of concerns on the part of the violence against women sector generally, but particularly Scottish Women's Aid around the fact that the legal aid model is just not fit for purpose for women and children living with domestic abuse, and I know that it's described as needs-led, but it is also means tested, and anybody who knows anything about domestic abuse knows that access to family assets and finances in over 94 per cent of domestic abuse cases is restricted by the abuser. It's just a system that has no logical sense in it, and I'm happy to say that in our discussions with the Law Society, although we may not agree about a number of other things, we certainly agree, and they agree that the legal aid model is not appropriate for domestic abuse. The good practice models—anyway, we've done a couple of pieces of work, and I have to say a big thank you to Martin Evans, in part because I thought his review was remarkable. He also, after interviewing us, helped us to get in touch with the legal education foundation in London, and that is where we've been doing this project of gathering data about problems with access to justice. Just as a reminder, domestic abuse is 25 per cent of the police and court business, so this is a really significant issue in the grand scheme of things. The good practice that we knew about was that there had been a slab cab project, which was in Stirling, and I'm still operating, I think, and was funded to provide a solicitor, a family law solicitor, to the women involved in Stirling Women's Aid, and this was a number of years ago. The outcomes of those cases were remarkably different from what we were seeing regularly, and that is because the solicitor was hosted by Stirling Women's Aid. She was well versed in the problems that women would walk in the door with and understood the context of the cases, and really, importantly, was able to provide free service early. This was an early intervention that looked nothing like what the usual access to justice did. We really have been interested in expanding our understanding of how that model worked and how it could work if we spread it around Scotland. On top of the fact that I absolutely agree that the issues with access to justice are many and varied and particularly acute from our perspective in our island and rural communities, and there's no guarantee that women understand the complex system, that the advice that they're being given is given in a way that is nuanced to understand their ability to access finances and safety. The system is remarkably poorly designed for domestic abuse. One of the things that Martin Evans and we talked about quite a bit was the fact that the regulation is exactly what was being referred to before. This is a system that privileges private provision, and you can't blame the private solicitors for using it, but the difficulty is that it establishes regulatory barriers for organisations like ourselves. We're not allowed to hire lawyers even if we had lots of money to do so because of the regulation scheme, which protects those jobs for private lawyers. We don't want to wait for a nuanced approach. We need a bold step as far as we're concerned. Do you have a follow-up question? I'm just to say your views on whether, based on the evidence that's come forward, if there's a role for non-lawyers to deliver advice on criminal legal advice, again, maybe citizens' advice could come in on that quickly as well, just to see what their experience has been in the past of that. Is that for Gillian or for me? Do you want to bring in citizens' advice? Gillian Fife, would you like to come in on that? I'll be at my comments at the start by saying that we don't tend to see a huge amount of criminal cases coming through the citizens' advice network. It's more on the civil side, but we do see that there are challenges and limitations of the current legal income. For a bit of context, from August last year to August this year, the citizens' advice network provided over 6,000 pieces of advice to more than 4,000 clients on finding us a last trial advocate. That increased by 22 per cent during that time, and the demand for legal aids has gone up by 32 per cent. We support an early intervention and prevention approach, making sure that people can get early advice and support and access to advice and support to help them to resolve their dispute in the way that they think is most appropriate. In terms of access to practitioners across the country, we see that as a bit of an issue in certain areas and for certain specialities. Ian Moore referred to deserts in terms of provision, and we see similar issues on the civil side. Mostly in rural areas, but not just in the highlands that stem from the borders to the highlands, where clients have to search for a solicitor over a wider geographical area, almost sometimes to the central belt and still not being able to access a practitioner, which means that, a lot of the time, the cases are withdrawn, so the individual cannot find the practitioner and to take on the case. Obviously, the individual citizens' advice group will support them in the best way that they can in terms of advice on time limits or other advice, whether it is on housing or income maximisation or anything like that. Ultimately, if they need a solicitor to carry out the work related to their dispute, if they are not able to find that, that is a barrier to access and justice. To build on the comments from Women's Aid, we have had specific concerns raised with us from Sifons of Isbureau in the Highlands area about the area that is due there as well. The other issue that we have seen in terms of good and bad practices is that we have some anecdotal evidence of incorrect advice being issued from staff at solicitor's firms in relation to eligibility for legal age. Obviously, it does not help when someone is trying to resolve their problem and, in that instance, it was trying to challenge an award payment from the DWP. Those are just some examples from our network's perspective, but, as I said, the issues that we tend to see through the network are more focused on the civil side rather than the communal side. Rona Mackay, do you want to come in? Thank you, convener. It is really just to follow up on the line of questioning of my colleague Collette Stevenson. It is to Dr Marcia Scott, please. In your submission, some of the barriers that you cite that face women and children experiencing domestic abuse are the scarcity of lawyers prepared to take on legal aid cases, a lack of quality and skill, particularly in immigration cases and child contact cases. Can I ask how acute this problem is? I guess that these issues have been around a while, but are they getting worse now? Will you comment on the scale of it? Well, on top of the 20 to 25 per cent issue, one out of four women experienced domestic and sexual violence in Scotland. The black log in court cases at the moment, and this is civil cases, for the most part, in summary court, but criminal cases in summary court are now 40,000. I think that I mentioned that last week when we spoke, and we are seeing women vote with their feet around this. They cannot get access to a lawyer that can then help them to get access to protective orders if they need them, so it becomes immensely more dangerous to call the police, because the system, with all well-intentioned actors, is not able to respond quickly enough to protect women. The reality that we have is that, unless somebody makes a really bold move to do something about that court backlog and to make sure that women can access a lawyer and that that lawyer understands domestic abuse, we will lose 20 years of progress in domestic abuse. Women are losing confidence in the system as we speak. The proposals for how we are going to deal with the backlog are simply not going to do the trick. I am immensely concerned that, while we can see the light at the end of the tunnel in terms of a possible model that is affordable and delivers good outcomes, unless we do something about the backlog and the courts, the women are not going to be there any more once we can provide that service. That moves on to a question for some of our legal experts on the panel. I am going to bring in Mr Lancaster. I think that you were quite keen to come in and then I will bring in Ms Clark and Pauline McNeill. Thank you, convener. Good morning. It was really just picking up on a number of the points that have been discussed already, and I think that some of the points that Ian Moyer has made and others that Marshal Scott have made highlight things that we have recognised in the system in terms of the bluntness of some of the tools that exist to address particular issues, whether that is particular parts of the country or particular client groups or particular problem types, where we have, if you like, a national system, which is a little bit one-size-fits-all, and one of the things that I think that Mark Evans picked up in his review, which the Government consulted on in their follow-up consultation and which we certainly commented on in our response to the consultation, is that the duty care legal aid system is very reactive, so it is a statutory framework that sets tests for access to a fund and it is very difficult to direct resources towards particular areas of need to design services. There are certain things that Marshal Scott is talking about in terms of either locating solicitors in other services or having them dedicated to providing a service to users of other services, to work with them, to secure early intervention, to design it around their needs in the particular sorts of cases that they have or the circumstances that they experience. All those things are very difficult to do in a duty care system that is overwhelmingly directed towards reacting to clients seeking help, passing the test and having legal aid granted and then a service delivered in respect of an individual case. That touches on some of the things that Alan Patterson mentioned about a holistic approach and thinking about how you could design wraparound services where somebody who is seeking help, whether that be from a third sector advice organisation, a support service or direct from a solicitor, could then get access to the range of services that they might need to meet the needs that they present with. As I said, the complexity of the duty care system can be a barrier to access. We have heard about potential confusion around eligibility. It is a complex system. There are people who are eligible but might not think so. Those sorts of things may provide barriers to access in some circumstances. I recognise that the one-size-fits-all might not always be appropriate where there are particular needs or particular problems. Similarly, a one-size-fits-all solution does not necessarily fit those problems. A general improvement in fee rates, for example, might have an effect, but it would not necessarily direct resources or availability of services towards the particular needs that are identified. That is why, in our response to the consultation, we set out a range of models that could include the ability alongside the duty care system that generally serves the country well. We could have targeted services where resources could be directed towards particular areas of need, particular problem types and particular parts of the country. That would ensure the availability of a service in those places or for those people in a way that it is difficult for the duty care system to ensure. I would like to ask about the role of the public defence solicitors office. What role might it play in a reformed legal aid system and what the balance would be between private practice and public sector provision through the public defence solicitors office? In terms of the current crisis and whether there is a role for the public defence solicitors office, particularly in busy courts, because of waiting times and so on, there are more efficient ways to deal with the problem to ensure that solicitors are addressing the tasks that are done in terms of the way in which things are organised. If I could ask Colin Lancaster about that in terms of whether he thinks realistically, there is a role for a greater use of the public defence solicitors office in the immediate future. That is an interesting question, which is in two parts. You have the current position and the future position. At present, we have 25 to 26 public defenders around the country that sits alongside over 900 private sector solicitors. You can immediately get that sense of scale there in terms of the impact that those solicitors are or would be able to have in relation to any particular issues. It is quite locally focused on the areas where they operate and they do not operate in all the courts in Scotland. What I would say is that they certainly make a contribution. They are busy and deliver high-quality services alongside their peers in private practice. Yes, they are available as duty solicitors in all the courts. They operate and they provide that cover effectively. However, the scale is very different when you compare them to private practice. In terms of a reformed system, in our response to the consultation, we suggested that there could be a variety of different models for delivering all legal services, but we are talking about criminal today. Yes, there are a variety of potential models for funding and delivering those services. At the moment, we have the case-by-case funding system for private practice and we have the PDSO. However, what we were suggesting was that there might be a range of other ways in which you could either blend those services or add to them with other forms of funding, whether that would be grants, commission services, contract services—again, to try and secure the availability of a service in particular places at particular times or for particular parts of the service. For example, for police station advice or for custody court duty or for sexual offences, there might be specific things where it might be worth targeting a bit of investment and PDSO can certainly play a part in that kind of mix. In our submission for this morning's meeting, we touched on a few potential areas in which the criminal justice system and the criminal legal aid system could evolve. Again, that picks up on something that Alan Paterson said earlier about holistic advice and really trying to think about how he can harness the great work that criminal defence agents already do but are also potentially able to do in terms of the difference that they can make to their clients' wider problems. PDSO has huge potential to be a testing ground for those kinds of approaches. It is not something that we have done a huge amount of very much. The model has been to try to mirror the private practice approach as closely as possible and focus on delivering traditional defence services in a traditional way. However, I think that there is great scope for looking at how emerging needs could be addressed, maybe use the PDSO to test ideas, to work in partnership with other agencies, whether that be third sector or other public agencies or with private sector providers, establish how things can be done, maybe establish the costs, maybe help us to work out how much it would cost and how we would best pay for some of those things so that that can then be rolled out more broadly and bring in the private sector to that. One idea that we have been discussing over the past few months is in relation to independent legal representation for complainers in sexual offence cases, which is one of the things that Lady Dorian's review touched on. We would be exploring a lot about the rape crisis in Scotland, whether there could be a role for defence agents in that and whether we could test that out with PDSO, whether you could then roll it out more broadly. I hope that that answers both sides of your question. Given the current crisis, are you expanding the public defence solicitors office at the moment? Are you recruiting? How does pay compare to solicitors such as Inmore, who were discussing in private practice? The way that we are set up at the moment with PDSO is that we have a general size limit on the operation, so we only operate in certain places and we are not generally authorised to expand PDSO beyond roughly the size that is at present. If that was a thing that ministers wanted us to do, we could certainly look to either expanding into other areas or bringing in additional solicitors to the offices that we already have. However, at the moment, any recruitment that we are doing is really to provide cover for maternities, etc. It is a relatively small operation and it has been kept at that level for many years now, but it has been roughly that size for the past decade. There are no immediate plans for expansion then, because we have not been asked to do so. On the pay question, it is a difficult one for us to answer, because while we know about the pay scales for public defenders, our public and we are going to recruit to publish the pay scales there, we do not have any information at all about what private sector solicitors have paid. I know that various recruitment is under way at the moment. I know that the traineeship posts that have been advertised, partly funded by the Government's traineeship fund, have been massively oversubscribed and there are recommended rates for trainees. What we do not know is how much qualified assistants are paid in private practice firms. We do not know what the drawings of partners might be. In terms of any debate or discussion about pay levels, there is really a lack of information on which to base any comparisons or to really understand the dynamics of the situation, so that is something that I really cannot answer. Ms McNeill, would you like to come in? Thank you very much. The theme of my question is the continuation of what you have heard so far. I am interested in the impact of the quality of justice, given what we have just heard. I also want to talk to Colin Lancaster about the system and, eerily, please. If I could start with Ian Moyer. We have heard so far about the number of practices that are leaving and that you have outlined to the committee competing with recruitment in other places such as the Government recruiting lawyers and the gap in pay. You talked about the work-life balance of criminal legal aid solicitors. Could you say a bit more about that? Is that a primary reason why we are losing solicitors to legal aid? I think that there is very much that is the case. In particular, Edinburgh has been probably the worst affected jurisdiction in terms of the impact of young women, in particular, leaving this area of work because the work-life balance is so off-kilter. During COP26, there are going to be courts running seven days a week for three full weeks. We can be called out literally any day of the year, Christmas day, New Year's day, to go to a police station to represent a vulnerable person or somebody facing a serious charge. You could be out half the night doing that sort of work and then be trying to be fresh to run a jury trial the next day. The sort of people that I am talking about that we are seeing leaving in droves at the moment are the people probably between two and ten years qualified who are getting to the stage where they are going to do a difficult jury trial. It is all very well saying that there are X number of solicitors on the criminal legal aid register. They have to be of a sufficient level of experience to provide a quality service. Up till now, that has always been the case in every survey that has been done. Colin Lancaster has recognised this morning that traditionally the duty care system with private practitioners has delivered an extremely high standard for the people of Scotland, and nobody wants to see that diminished. However, the reality is that many of the people who are on that register do not practice on a regular basis. Some of them are not even in practice any more at all. Some of them have left some time ago. There are even people that I am afraid to say on it who are deceased now. We do not have a true figure for exactly how many people have the required level of experience and expertise to go to court every day and be at their best and provide the quality service that everyone wants to be provided. However, the reality is that those of us that are left are being put under increasing pressure week by week. The situation is getting worse in terms of trying to cover the courts, and that is before the recovery programme is fully up and running. I cannot overstate just how difficult it is going to be over the next year or two for us to get through this if we cannot recruit more people to help us. The trainee fund is something that I was passionate about and fought hard for, and I am delighted to see that it has come in. I am delighted that there are 40 trainees. My firm has taken one of those trainees and another trainee that we are funding fully ourselves in the hope that we can try and have them appearing in court in the relatively near future. However, we will be responsible, as will all the other firms. We are not going to suddenly throw those people in to do stuff that is way beyond their ability, so there is a limit to what they can do to help. That is quite an important point that I want to come to. I was going to ask Tony Lennon to speak to that in terms of your submission, so I will notice from your submission that you mentioned the recent Boycott gowns down campaign. We have heard from Ian Moyer about the importance of the experience of lawyers. I wonder if Tony Lennon could give me a response to whether he thinks choosing a solicitor and having a solicitor of experience is important for the quality of justice. Do you have any fears? I note the progress that has been made, and I think that it has to be said. Do you have concerns about the quality of justice if we do not find a solution to that in the short term? Yes, good morning. I wonder whether, listening to what the discussion earlier on about the current crisis that Ian Moyer explains, the thing that makes it a real difficulty just now is that all of the plants surrounding criminal defence private practice are being watered in the sense that the crown have uplifts in their pay scales and all of that sort of thing, same with the Scottish Government, as I understand it. That is the big difficulty that makes it a focus just now, and that is why people are leaving, because there are simply more attractive pastures being created around about it. From my point of view, when I was a solicitor in private practice, I had, I suppose, a fairly limited view because I could see the people that surrounded me in that jurisdiction. What happens now is that I am instructed by people all over the country, and it lets me see a very wide variety of instructing solicitors, and the quality of the instructing solicitor, even though I am the person who speaks in court by the time that it comes to the High Court, the quality of instructing solicitor is enormously important. Even going back to what Professor Patterson said, you have some solicitors who have a real sense of their ability to make changes in the lives of vulnerable and damaged people. Increasingly, what I see is that I am instructed in cases by people who are much less senior than they used to be. The situation where I had people who were 20 or 30 years experienced coming to court with me, giving real weight and benefit to the role that they fulfil in instructing solicitor in the High Court, has very much dropped away. The situation now is that most often people are sent into the High Court at a much earlier stage in their career, and it reduces, sometimes to the point, almost of nil, the assistance that they provide to the process of the trial in the High Court. I cannot tell you more about working in solicitor's offices because I am a number of decades removed from that, but I see a real drop in the people who are coming to instruct in the High Court, and that has a real effect on my ability and my colleague's ability, whether advocates or solicitor advocates, to provide the best service to those who are in the greatest need of it. John, I see what is being spoken about and I hear about the difficulties from every point of the compass. I just had a last question to Colin Lancaster. It is on so, according to the bar at the SSBA's bar association, they say that the current system illegally does not conducive to early resolution of cases. There are significant gaps in funding available, like early stages in the process, and the system feels to adequately recognise the preparation and responsibility involved in negotiating early pleas. I just wondered if you would, if you agree with that statement, and is there an issue about a better system, where there was earlier payment to ensure that there would be early pleas, after all? I guess that is what you would want in any court system. Yes, absolutely. I do agree with that point. The way that the fees work at present for solemn cases is that the work tends to be quite black-loaded in a case, and that is the way that the payments work. We had a range of discussions with the Law Society several years ago, on the back of discussions that the society had with their members. One of the priorities that emerged from that was to try and improve the way in which the fee structure recognised the value of early preparation, particularly where that led to early resolution of the case. We then drew those principles into some proposals, and we discussed those series of roadshows with the profession back in 2017, and they were quite well received at that time. The point that we are talking about here is where the case was resolved by WAV for Scotland in 76 indictment. That brings the proceedings to a conclusion by way of an agreed plea in solemn cases before the case is then proceeding on to trial. The structure that we proposed would have included a fairly significant block fee, which would allow for the preparation of that early stage, for the consideration of the evidence for engagement with the crown, with a view to negotiating a section 76 conclusion, and that would be paid for as that single block. As I said, that was well received. Those fee proposals were shared with the profession again last autumn, as part of the discussions around some of the support requests in response to the pandemic. It was viewed that putting in place those reformed fees, although it would not have an immediate impact, would result in more cases of resolving at that earlier stage, resulting in better payment earlier on for solicitors, particularly in light of the backlogs that, even at that time, we could see were building. There has been a growth in solemn cases over the past year. That could have had a very significant impact. I think that it is fair to say that the emotions were running high at that time, at the point that those proposals were shared. The profession was fairly clear in their view that they did not think that then was the time to introduce them. Regulations were not brought forward to introduce those reforms, but discussions with the Government have continued. I know that, just in the last week or so, the Scottish Sisters Bar Association and the Law Society have met with the Government to consider those proposals again. We are very keen to see them move forward for a number of reasons, primarily because of the position in relation to early resolution, but we think that that structure would usually simplify what is a complex fee structure. It can be very time consuming and complicated for solicitors to frame their accounts. They are complicated to assess and they can result in disputes between us and the profession. We think that moving towards that block structure, the better rewards early preparation, would be a winner all round. I know that Mr Lennon would like to come back in before I ask you to come in. I would like to bring in Ms McPartlin. I am aware that you supported the written submission, so if you would like to come in, Mr Lennon will bring in Mr Greene. Just in terms of the reform, it is important to say that we recognise that that is necessary. The comments in my submissions about the legal aid system at the moment and not being conducive to early resolution of cases is important for the backlog. Part of the problem that the profession has had with agreeing the proposed reforms that have been suggested by SLAP is that they were initially designed to be cost-neutral. Although we want to see increased fees for section 76, we do not want that to be at the expense of work further down the line. There is probably some concern that, if the system is front-loaded at the expense of fees or sheriff and jury trials, that that also leads to an imbalance. We are happy to keep working on that with the Scottish Government, and as Dr Lancaster said, we are engaging with that, but we recognise that those are problems at the moment. There was raised earlier about the quality of solicitors that we will have in the profession if our current trends continue. We very much welcome the traineeship fund, but it does not address retention of staff. At the moment, perhaps the biggest challenge is that, with Procurator Fiscal Service having a recruitment drive, the obvious place to recruit qualified solicitors who work in the criminal sphere is from the defence, so we are missing out on people who have experience because we cannot compete with the wages that are offered literally across the table from us. Thank you very much. If I can bring in Mr Lennon, if you can make your comments as brief as possible, and then I will bring in Mr Greene. It is really just, first of all, I recognise that there are so many benefits to early resolution that that is a goal that we should strive towards, but my experience, this is just a word of caution, is that the people who are involved in the criminal justice system very often are poor decision makers who take short-term decisions. Frequently, I come across cases where there is no doubt that early resolution makes sense, but they would rather take a decision that allows an extra three months on bail or seeing Christmas out or whatever. It is really just to bring about a note of caution. It is very good that we strive towards early resolution cases because that brings dividends in every direction in terms of policing and court time and everything else. The reality that I have found over the years, this is a matter that has arisen in various post-Covid working groups. You can lead a horse to water, but you cannot make a drink. The people who are involved in the criminal justice system very often are very poor decision takers, and it is hard to let them see the benefits for them on that. It was really just that. Thank you very much. Thank you, convener. Good morning, panel. We have covered a lot of ground already. I do not want to risk going back to revisit some of that, but there might be some crossover in my questions that mean that we go back a bit. Going back to the so-called crisis in the profession, which is a phrase that is used by the Scottish List of Bar Association, so perhaps my comments and questions directed at Ms Partland in the first instance, you do use the phrase that the profession is in crisis. I would like you to elaborate a little bit on that. I am sure that some of it will echo what Mr Moyer has already said, but is it the case, and just to get to the nub of it, that the reason that it is in crisis is twofold? One is that you are struggling to recruit new entrants to the market and the time that it takes to get them up to speed to be able to handle the levels of cases that are required of them, and that there is churn and that you are losing people at the halfway through their career, even in early stages of the career, to other parts of the legal sector. One of the suggestions made is that the increase in legal aid will be a short-term fix to that. I am not convinced that I have heard the evidence or the argument as to the connection, and maybe someone could help me with that, because I do not see the direct link between the immediate raise of fees and the solving of the problem of churn. Perhaps that is something that you could expand on, but why do you think that there is such a crisis in the profession? I think that we have to go back, because we have a history of underfunding. Those are warnings that have been given by the law society and local bar associations that have been going on for, I think that it is probably not an exaggeration to say, decades. That has led to a sort of slow drip of people moving away from the profession to other areas where they may have better paying conditions. It means that firms operating in criminal legal aid are not able to offer as competitive packages to attract new solicitors. However, I think that it compounds the problem that that has been going on for some time. We are now seeing a situation in which funds are being put into the Crown Office and Property and Fiscal Service, and rightly so, to try to attract new staff with a view to tackling the backlog. There is suddenly a recruitment drive in which better paying conditions are being offered. People who are in criminal defence look at what is being offered at the Fiscal Service. People who work in criminal defence are very well placed in their existing experience and qualification to go and work for the Crown. We would normally see people going back and forth as a normal career progression, but we are seeing a drain away rather than swapping staff as it may be was in the past. The reason that we say that an increase would be a quick fix is that it would address the underfunding that has gone on for decades so that we can get money back into defence as quickly as possible. Essentially, we are talking about an equivalent to the extra funds that are going to Crown Office and Property and Fiscal Service, which would allow us to pay our staff more so that we can compete with the salaries that are offered by those sitting across the table from us. I do not think that people do not want to do the job because we have seen the traineeship fund that lots of people have applied. We hear all the time about people. It is an interesting line of work. People want to do it. I know that, from people who have left, they said that they enjoyed the job and that it was more financial concerns that were the issue. It is really the retention of staff rather than getting people in in the first place. I thank you for that helpful update. I was trying to make the link in the blunt tool that we are talking about. If we increase the legal aid fees, that will somehow magic cash into your businesses, because that is the nature of the majority of your work. I presume that that is the assumption. Therefore, either the amount of work that has to increase or the amount of fee per job increases, and it is one of those that has to be true. Is that because of the nature of the type of work that defences? Therefore, it is so much more reliant on the subsidy because, effectively, legal aid is a subsidy to the profession rather than to the consumer. I mean looking at the statistics at how many firms are doing legal aid. The majority of I was to guess it proper from the legal aid funds, that would be all that they do, because if it takes up all your time, you would be in court the whole time. We do not have the capacity to do more work than we are already doing, because the fees over the years have not been increased. People take on more and more work in order to make things financially viable. That probably cannot change, but it is important to understand that the fees have remained static. I mean, there have been sort of tweets here and there, but they have been static for such a long time that they, in effect, have decreased if you start taking into account things like inflation. We cannot increase the amount of work that we do. We are at the capacity already. The only other way to inject more money into firms is to increase the fee that we get paid. I guess that raises a fundamental and philosophical question as to whether the public purse should be subsidising private defence solicitors, but that is a whole other conversation, I am sure. Legal aid is being provided as a service to the public. If we want, as a society, we should offer representation to people who are being accused of taking serious crimes by the state. That, as a principle, is already well established. It is how much we value the work that we do in providing the defence. I am not sure that it is right to look at it as a public-private issue. In society, we need to have independent defence solicitors in order to represent people—we are talking about representing people against the state, so it would make sense to do that. At the moment, the pay that is made for the work that is done by private firms does not reflect the complexity, it does not reflect the expertise. The rates that are fixed have not changed with inflation. Those are really outdated rates that are being paid to us. It sounds like the legal aid payment review panel that was reported to the Government earlier this year has not gone down well with you either. You say that it is failed to produce any meaningful results. I note that there was a Government-initiated question in the Parliament today from the Minister for Community Safety that says that they accept that more consultation research needs to be done into reform, and I am sure that we will come on to reform later. I want to ask a separate question about moving forward, because I think that we all accept that we are where we are at the moment. However, it does concern me a comment that was made by Mr Moyer, who said that there are currently courts set up that are being mothballed. We know that we have a backlog of nearly 50,000 cases to get through. That is a concern to everyone that we have spoken to on all sides of the coin, both at the Crown and indeed in the legal profession. However, how do we address that backlog in the short term, in the immediate term, if there simply are not enough people to do it? That is maybe a question that I will direct at the Scottish Courts and Tribunals Service, because you obviously have an ambitious drive to clear that backlog as soon as you can. When we can do it, if we have the buildings, if we can do it, if we have the Crown resource but we cannot do it, there are no defence lawyers. How do we plug that gap? That is quite a worry and move. Indeed, thank you very much. If I can put Mr Moyer's comment in a little bit of context, within the recovery programme that we started on 6 September, we introduced an additional 10 summary courts across all of the estate. My understanding in the border's courts is that we introduced two courts over two four-week periods. I understand that one court has had to be put down as a result of the business being adjourned. Overall, I would say that the recovery programme is working well across all of our courts, with the exception, obviously, of that experience that Mr Moyer has. If I pull in a little bit in terms of domestic abuse, I mean that Marshall Scott was absolutely right, 25 per cent of cases that are lodged related to domestic abuse, but in the course of this year, 44 per cent of trials that have proceeded have been domestic abuse, so we have got a bigger focus in terms of that. I would say at this stage that having listened to all the evidence, potentially one could form the view that there is a problem brewing, but, from the courts perspective, we are not seeing any major disruption to the courts as a result of defence solicitors not being available. That is partly due to the balance between the public defender and defence solicitors, but I am not sure that I could particularly answer your question in relation to difficulties in the courts. At this point, we are not seeing an impact. We are still managing to get business through, we have our recovery programme up and running, and, for the vast majority, it is working well. That is not what the other panellists say. To be fair, they are telling us not just that there is a crisis brewing, but that it is already happening. Mr Moyer, can I ask you to pick up on your comments in response to Mr Fraser? Yes, thank you. What I would say is that, for any of the courts to have a difficulty through a shortage of defence agents' highlights, what we are saying is that we are already at the point where the crisis is real. The one point that I really want to make is that when we say that you need to give an increase in legal aid fees so that we can retain and recruit lawyers, it is because otherwise it will not simply be in a month's time or two months' time or there was one court that could not sit. We are heading to the point where we cannot cover the cases that we have, and that is only going to get worse. As week by week, two or three or four or five young lawyers or older lawyers or more experienced lawyers are leaving to go and work for the other side of the table and for the Scottish Government, there are not enough of us at the moment to cope with this long term. I have had probably five weeks' holiday in two and a half years, because we are having to work flat out as it is. There is no extra capacity to say that we will run an extra 10 courts and we will have all the lawyers unless you do something about it to support us, and that is not some kind of gift. That is in reality looking at the fact that money is having to be spent across the board to get the backlog cleared. Quite rightly, money has been identified and spent on the remote jury centres. We were part of all of these discussions. We have been constructive throughout. When we have been listened to and action has been taken, generally speaking, it has ended with a positive conclusion in things like the resilience fund, the trainee fund and so on. What we are saying to you is that you need to listen to us now before it is too late for us to fix any of those problems. We do not want a scenario where we are standing in front of a judge saying that you will need to adjourn this trial because I have five other trials all in the same building and I have no other staff and I cannot get any agents because they do not exist anymore because there is no funding in the system. We are trying to alert you now to the very real need for urgent action so that we can play our part in fixing the backlog. We are happy to engage. We always have been and we always try to be constructive, but we need to be listened to. Why did so many defence lawyers boycott the holiday courts? Is that constructive? It has to be seen against the background that, without any consultation whatsoever, eight further days of work were foisted upon us. As I say, we cannot even take holidays now. We do not get the holiday weekends either. It was more felt as a great insult to the profession that we were not consulted and we were not asked about it. We were simply told, get on with it. There is no extra funding being discussed. The horse has bolted, so it is harder for you to get funding now. It was the way in which it was done that caused such upset to the profession who have worked so hard to try and make this system work through lockdown. I was going into the sheriff court in full lockdown, putting myself at risk, putting my family at risk, to make sure that people who were kept in custody were represented and we feel that that was totally underappreciated. I am sure that the Government is listening carefully to today's exchange. Thank you for your comments. Thank you very much. I am aware that there is quite a number of people wanting to come in. I am conscious of time, so if I can ask for questions and responses to be as succinct as possible, I will bring in Katie Clark, Mr Lancaster and Dr Scott. My question is to Julia McPartlin and Ian Moyer to find out exactly what you are suggesting in terms of the level of increase that needs to be in legal aid fees, whether you are suggesting that the restructuring of legal aid to encourage please at an early stage would be sufficient to enable better recruitment for criminal defence agents or whether you are suggesting a percentage increase across the board on criminal legal aid rates and what kind of percentage you think is necessary now to enable you to recruit into this sector. That is a difficult question to answer. I do not think that the reforms on front-loading the system for early fees would address the problem in itself. In a way, an increase in the forms are separate. Reforms are about making what budget we have work in a smarter way. I suppose that there is one way to look at it. We are realistic. We understand that there are constraints on the amount of money that is available, but if we were to take the fixed fee for somebody's work, which covers a lot of what we do, that was fixed in 1999. There have been some decreases and increases in a small way, but if we were to adjust that fee for inflation, it would be worth in the region of £800 now. I appreciate that that is a huge jump that may not be feasible with the constraints that it has, but that is a starting point to show what would bring us up to parity with what we were being paid back in 1999 and what was deemed to be a fair rate. I do not want to put a percentage on it per se, but those are the sort of comparisons that might be used for Government to work out what would be appropriate. What actually would make a difference? There could be an increase, but it might not be sufficient in terms of what you are arguing. What do you think that Government needs to do? I am more than happy for most of the things that are in the fee reform proposal to be taken forward. Indeed, many of them we have proposed. We have been arguing for a section 76 fee for many years. My difficulty is that any negotiation and successful conclusion to that, followed by legislation, is going to leave us too far down the road to solve the immediate crisis. That is why I am saying that we need to use the blunt tool of a significant increase, and Julie has given you the sort of indicators of what that might be in the very short term, because it is going to realistically take at least two years to do the earlier parts of the reforms. Some of the reforms will take three, four or five years. The Evans review was four or five years ago, and we are now at the stage where we need to instruct further investigation. The reality is that it is going to take time, even with the best will in the world, and we need to plug the gap in the meantime. That is why I am saying in the short term find money to give us a substantial rise to the existing fees so that we can recruit lawyers, retain lawyers and actually represent people in court and keep the system moving, and have people available to do custody courts at the weekends and cover COP26 and do police interviews at night time and so on. We are willing to do the job, but we need support though. You are saying to maintain your business model and to recruit you need to go back to 1999 levels in the immediate future. I am not saying a particular figure right now, but in general terms another 5 per cent is not going to fix it. It needs to be a substantial amount. I will bring in Dr Scott. I would like to pick up on a couple of things. I have to say that the elephant in the room in some of the discussion is the failure to gender the whole problem. I know that Ian Moore mentioned young women lawyers. The intersection of Covid and its extraordinarily disproportionate impact on young women in terms of childcare and unpaid work reflects some of what is happening in the larger society and in terms of solicitors. I was the chair of the equality advisory group for the Crown Office prior to working at Scotland from day. We did an analysis of the gender pay gap at that point for solicitors in Scotland. The pay gap was much bigger in private sector provision and the work-life balance was much better in public sector provision. There are a whole lot of issues that go way beyond how much money is being offered to solicitors. As we go forward with reform and Covid recovery, if there is no more evidence of some equality impact assessments in all of the procedures and analysis, we will continue to be having these conversations in five or ten years. I want to quickly point out that the Scottish Government's work on addressing women's homelessness because of domestic abuse recommendations from the improving housing outcomes for women and children report were all accepted by the Scottish Government, one of which included that legal advice for women and children experiencing domestic abuse should be available, easily accessible, free domestic abuse competent legal advice and representation. I really hope that the committee will think about how that gets embedded in any legal reform and changes to legal aid as we go forward, because that is a commitment that the Government has already made. Finally, about the backlog. I have to say that the setting up of cases is back to pre-Covid levels and that the Crown Office has done a really good job of privileging domestic abuse cases in all of that, but the reality is, as far as we know, there are still only one out of about five cases going forward because of all the problems in the system, many of which related to Covid. I think that some hard decisions are really going to have to be made by the Government and by the criminal justice system about just what cases need to be taken out of the backlog so that the domestic abuse cases and the other really high priority cases have the space to go forward and the resources to do so. Thank you, Dr Scott. I will very quickly bring in Mr Lancaster and then I would like to move the discussion on to some other aspects and bring in Mr Finlay. I will try to be quick here. In general, the question about what would make a difference is very difficult to answer in the short term, because I agree with other panel members that what we have got is a long-term situation here. As we said in our submission, what we have seen is over 10 years of 35 per cent reduction in the number of criminal prosecutions. What we have seen is a 20 per cent reduction in the number of criminal practitioners over that time. There has been a little bit of a mismatch in the trends there. What we are seeing right now is a sudden increase in demand. Given the shape of the sector that we have, where we have predominantly small firms, 40 per cent of the firms that provide criminal legal assistance have only two or fewer criminal lawyers in them. It is very difficult for those firms to flex their capacity. I absolutely understand that, during Covid, an extremely difficult time in firms had to work in all sorts of different ways. It has been really challenging for them. I can see that the backlog reduction measures then present as a significant challenge as well, because that ability to flex capacity to meet demand is really constrained in those small firms. Similarly, some of the issues that Marsha was talking about in terms of gender work-life balance, some of those may be associated with the structure of the system that we have and the structure of the market and the small firms who might struggle to do that. It is very difficult to see how immediately a fee increase would address those points. The payment panel looked at all of that and concluded that there was a lack of evidence about all those issues. We need to know more to better understand the problem, the scale of the problem, the causes of the problem, and then we can design solutions to address the problems once we understand them. At the moment, there really is a lack of that good information out there. I would like to talk to you about the issue of fraud and abuse of legal aid. By my reckoning, since the banking crash, the amount of legal aid that has paid out in Scotland amounts to just under £1.9 billion, which is rich pickings, and it appears to be rather tempting for some. In my previous job as a journalist, I reported extensively on a number of solicitors who committed suspected fraud in relation to legal aid. I will not name names, but all that is in the public domain, but I think that it is worthwhile to touch on some of the detail. One particular solicitor claimed £600,000 in two years. Those were unnecessary and excessive claims and were done in order to exploit the legal aid fund. It took four years to ban him from claiming legal aid. Another one submitted 81, described as fictional accounts. That was described as being fraudulent, however he was not prosecuted. A third solicitor claimed £560,000 in one year. He had a history of such abuse, yet it took several more years to strike him off. Around the same time as that, we became aware of 14 solicitors being reported to the Crown Office for similar fraud. That 14 may or may not have comprised those three, which I mentioned, and none were the subject of any criminal proceedings. I would like to ask you, as the gatekeeper and the guardian of these huge sums of public money, whether similar types of abuse are still happening today. I know some of the cases that you referred to. You introduced a question by referring to fraud and abuse. Those are subtly, but importantly, different things. The first case that you referred to was about the abuse of the Glade doing unnecessary work simply to generate fee income. As you said, it took some time for action to be taken there. We may have previously corresponded to the matter, but we have responded to FOI requests on this point and confirmed that we did not need to recover any funds in those cases because we only paid for that work, which we considered to be necessary and appropriate. I should say that there is quite a complicated landscape here in terms of regulation. That landscape has changed a bit over the years. There are different powers that we have in relation to civil children's and criminal legal aid. We have fewer powers in relation to civil legal aid than we do in relation to criminal. The overarching power to exclude people from delivering legal aid was originally held by the Lost Society of Scotland. That was changed several years ago and that power transferred to SLAB, but it remains a slightly complex picture of exactly what powers can apply to what types of legal aid. Generally speaking, we have a programme of compliance audit of peer review solicitors. We check accounts rigorously. I think that sometimes the profession would argue that we check their accounts too rigorously. We certainly want to be sure that we are taking a proportionate balance here, and that enables us to identify any patterns in charging that appear to be suspicious if there is anything inflated. We can investigate those and we can take action where necessary. I cannot comment on decisions about prosecutions for fraud. That is entirely a matter for the police and the Crown Office, but those are not prosecuted. We are not aware at present of there being a significant problem in terms of the assurance work that we do. Thank you for that. That is helpful. I understand the difference between fraud and questionable claims, but some of the language used in respect to those specific cases was quite clear that it was fraudulent. Why did those cases all appear to happen in the past 10-year period? Was there a problem then that we now have fixed, or was it just the fact that the media did a job and identified it? What confidence can the public have that those abuses are not happening, especially against the backdrop of what the profession is describing as a crisis in legal aid? Again, I cannot be sure exactly which cases you are talking about or exactly which circumstances are present in those cases. Where we observe, as a result of either our analysis, our investigations or our account's assessment, and where we observe some new behaviours, we can make sure that we are then monitoring those. If you like, at that gateway, when people are asking us to pay their bills, we are making sure that we are implying controls. If you like, we learn from the cases that we observe and we change our controls in response to that. If we spotted a thing and that may be a thing that we have reported onward to the Crown or the police, we will make sure that the processes that we adopt day to day in assessing accounts, for example, will look out for those things and make sure that we are preventing any further issues arising. It may be that there is a particular issue at a point in time, but the steps that we have then taken in terms of our account's assessment processes and the checks that we undertake will have been effective in managing that for the future. I would like the session to run on a little bit to 11.40, so we have about seven minutes or so left. I would like us to move on and look at aspects of reform and different models for change, just to bring things to a close. I would like to start off with Ms Mackay, followed by Jamie Greene. My question would be to Gillian Fife. Your submission states that the demand for advice on legal aid has risen by 32 per cent during the pandemic, but you point out that legal aids are not currently available for many simple procedure cases, such as civil being the legal area that citizens of rice deal with in the majority of cases. What impact does that have on you helping people to gain access to justice going back to that? What changes, if any, do you want to propose in that regard? I suppose that our submission touches on the fact that we consider that the user must be put at the heart of the legal aid system. By the user, I mean the recipient of the service. I would also appreciate that the profession is also a user of the system as well. In terms of the point about civil legal aid not being available for certain actions, quite a lot of the issues that we seek in terms of legal proceedings, a simple procedure is a significant proportion of the issues that come to citizens of rice bureau. We have heard during the pandemic that people take understanding the process for that, even though it is meant to be a simple procedure and it is for small claims. There are a number of in-court advice projects that run in different parts of the country that are funded by SLAB that can offer legal representation and in-court advice on issues such as simple procedure. Some of them are hosted in citizens of rice bureau. That coverage is not national. If you happen to have an issue in a bit of the country where there is a project, you can get that support, but it is not national coverage. That is one of the reasons why we think that there should be a recasting of the legal aid budget so that there is more of a focus on grant funding, early intervention and prevention, so that people can get the advice and support early on. They can get advice on alternative dispute resolution as well, and that will help with the early resolution as well if they feel that that is appropriate for them. A simple procedure in particular during the pandemic we have heard from advisers that clients have found it difficult to navigate the process without having the support in-court with them. There is some concern about clients not understanding the gravity of the situation and not having the individual present to help them. It has been more difficult in instances over the phone or at a video conference. That is the kind of situation that we have seen in the network over the pandemic period. Can you repeat the part about not being national? Is that some kind of postcode lottery then in that sense? Has that always been the case? My understanding is that it was never meant to be national provision. It is administered by SLAB, but the Scottish Government set the priority for it. There are different projects in different parts of the country, and other organisations can also bid for that funding and do bid for that funding. It is a bit of a patchwork in provision, and we would like to see that made a more and unmore national footing so that everybody can get that type of help rather than just possibly being able to get it if you happen to be located in an area that has a project that does that. Okay, thank you. That's helpful. I'll move on. Thank you very much. Mr Greene, would you like to come in? Thank you. The issue of reform is not a new subject or topic to the committee, I suspect, or to our guests this morning. We had four written submissions, and the issue of reform was touched on in each of them. I think that it's fair to say that the bar association focused more on the fees and the financial aspect of reform. The Scottish legal aid board accepted that there is a need for both short-term and medium-to-long-term reform, and I was quite taken by the submission from citizens advice, who gave some more pragmatic suggestions around things such as triage and early intervention. I want to open it up to the panel. Other than the issue of legal aid fees and funding of the sector, which we've discussed at great length already, what other practical or even immediate reforms could we make or should we be making to improve legal aid? That's an open question. I don't want to direct to anyone specifically because I'm sure that all the panellists have a view on it. Now is your opportunity to share your views. Thank you. Obviously, we did touch on some of the possibilities for reform in our submission, and I would say that there is a combination of short-term and long-term structural reforms that would be possible. In the short term, as I've already mentioned, aspects of both the feeding system and the eligibility system, some of the tests for legal aid, can be quite complex. Some of that can only be fixed by primary legislation, some of it could be fixed by regulations, and some of that might be a thing that we can look at as part of how we apply the tests, how we run our processes. We have some discretion afforded by the regulations. Where we do, we are currently in the midst of a project where we are looking at how we express our policies in relation to application of discretion, how we turn that into clear guidance for the profession and how that can help us to train our own staff to make sure that we have a transparent, consistent service, with consistent, predictable decision making where we can be held accountable if the decisions that we take don't match up to the policy that we have published. On Friday, we launched a consultation in relation to how we assess accounts. That's always a hot topic with the profession and we'd be delighted to hear their views on how we go about that process, how we apply the tests that are set out in the regulations, the information that we need to help us to come to decisions first time so that we can pay more of the accounts that we receive at the first time of asking, and therefore that smooths the process. We will also, in due course, be running a consultation on how we apply the means test. That's come up a couple of times today. It is complicated. There are various pockets of discretion and uncertainty in there, so, again, trying to clarify that, trying to make it transparent and consistent in a way that applicants can then better understand what it is that we need from them to enable us to make decisions on their cases. Those sorts of things are the short term. Things that might make a difference to the smooth running of the system pending those longer term legislative fixes that are really for ministers to determine and in due course for Parliament. Can I make a request, therefore? Whilst your written submission was helpful, a one page summary of ideas for reform, it sounds like you had very specific asks, some of which are legislative, some of which are policy driven, some of which are for the Government, that we, as a committee, perhaps have a role to play in some of that. Could you perhaps put in writing those very specific ideas or recommendations that you would like to see introduced, and then we perhaps could debate them as a committee? No, absolutely. A number of them were contained in our response to the Government's consultation, and, as I said, those other more immediate things are things that we are looking at at the moment, so, certainly, I am happy to keep the committee appraised of our thinking as that develops. The live consultation, we can certainly pass on to the clerks so that you can see what it is that we are talking about there. I will just finish off the session. I am afraid that time is against us. I know Mr Moyer that he would like to come in and then we will close this particular part of the meeting, Mr Moyer. Thank you. I will not take long, because I am conscious of the time. One positive example of working closely with the legal aid board, we were recently able to remove the interests of justice test from the application form for sheriff summary cases because it was felt that if it had been prosecuted at that level, it would have automatically met the test, so that speeded up the process and is a good thing for the profession and the legal aid board. One thing that I want to highlight that has been on the agenda for some time and seems to have dropped off it is a single grant of legal aid, and what I mean by that is that somebody has legal aid from the start of a process to the end, other than in the police station, which is separate work, because at the moment we find situations where somebody might have to apply for several different types of legal aid throughout the history of the case, if, for example, they are given a community payback order and the court fixes a review, and you can find a situation in an extreme example in the High Court where somebody gets an exceptional disposal of a community payback order and there is no cover for them to be represented at the review. That is one thing that I would like to see us working on in the short term is a single grant, so that the lawyer knows that they will be paid for all the work that they do and the applicant knows that they have cover for the duration of the case. Thank you very much. I would like to bring this session to a close. I apologise for the lack of time, so there is so much to cover. Many thanks to all the witnesses who have joined us today. Of course, if there are outstanding points that you would like to share with the committee, please feel free to follow them up in writing and we will, of course, take them into account as additional evidence. Again, my thanks to all our witnesses for attending today and we will now take a five-minute break before we move on to our next agenda item. Our next agenda item this morning will be for us to take evidence on the prisons and young offenders' institutions, coronavirus Scotland amendment 2 rules of 2021 from Mr Keith Brown, our Cabinet Secretary for Justice and Veterans, Mr Tom Fox, head of corporate affairs of the Scottish Prison Service and Mr Jamie McQueen, Scottish Government legal directorate. I welcome you all to the meeting. For your information, Mr Fulton MacGregor is joining us online today due to some travel disruption. I refer members to paper number four. As you know, last week we considered the SSI and agreed to contact the Scottish Government and the Scottish Prison Service with some questions. I thank you, Cabinet Secretary, for the written response that you provided and that we received earlier this week. We thought that it would be useful to invite you to appear at the meeting to discuss the SSI further and answer any questions. Thank you for attending. It is very much appreciated. Cabinet Secretary, if you would like to make any brief opening remarks before we open up to questions from committee members. If I could do that. Thank you and thanks for the invitation to come along. The prison and young offenders' institutions, coronavirus Scotland amendment 2 rules extend the application of certain modifications made to the prison rules in response to the coronavirus pandemic by the amendment rules 2020. The current amendments to the rules are due to expire tomorrow and the purpose of this instrument is to extend the application of the changes until 31 March next year and revoke others, which are no longer considered to be required. Given the unique operating environment of the prison setting, the prison service considers it necessary to retain some of the flexibility afforded by previous SSIs made during the pandemic to ensure the safe running of our prisons for the duration of the pandemic. The prison service considers it necessary to take steps to retain some of the flexibility afforded by previous SSIs made during the pandemic to ensure that we are prepared and able to focus on any immediate priorities that arise. Members are aware that the threat of coronavirus and the operation of the justice system remains. As at Monday this week, there were 136 positive Covid cases spread across nine prisons in the prison estate, so vigilance is vital and the Scottish prison service has a very good track record in the area compared to other jurisdictions. The SSI seeks to retain some of the powers that have taken response to the pandemic for prison governors and they give prison governors the flexibility of precautionary and responsive measures to prevent and limit the spread of the virus and crucially to ensure the safety and wellbeing of those who live, work and visit our prisons. Some of the key powers being retained are the powers that allow governors to suspend or restrict if necessary in person visits, purposeful activity and recreation in response to local outbreaks. Rule 40A and the extended timescales on rule 41 provide governors and local NHS partners with the means to comply with Public Health Scotland and Scottish Government advice in relation to isolation of large groups of individuals who are symptomatic or who have been in close contact with a person who is symptomatic or identified as a close contact with a person who is symptomatic or are new admissions that may prevent a Covid-19 risk. The ability as well for governors to extend the period of prison that is on home leave for up to 14 days from the normal seven days where prisoners advise that they or someone in their home has coronavirus or has developed symptoms of coronavirus. The Committee are aware in advance of laying this SSI, a tailored consultation was undertaken by SPS in July with stakeholders such as Howard League, Families Outside and HM Inspector of Prisons for Scotland. In addition, an operational review also determined that not all amendments to the prison rules would require to be maintained due to the return across the majority of the estate to a regular two-shift model working day in October, with staff attendance patterns that better support a fuller regime model. The majority of amendments that are revoked by this instrument are on the main related to admin processes and associated timescales in areas such as the internal disciplinary processes and requests and complaints, but the rules being retained are intended to remain enforced until 31 March next year, but they can be revoked earlier if necessary. Consistent with the wider community, the prison service is opening up regimes across the estate and that remains their priority to continue to transition to a full regime in alignment with public health advice. For clarity, those powers are therefore proposed as precautionary measures and will only be used if necessary and proportionate. They will be subject to multi-disciplinary input decision making and will be kept under review if in place. SPS senior HQ staff and governors will continue to work with the Government and NHS colleagues to ensure that the most up-to-date information available is used to inform the response and contingency planning. Given the uncertainty as we approach another winter, it is essential that the Government ensures that the prison service can rapidly respond to all eventualities of this pandemic, whether nationally or locally. To conclude, the draft instrument provides for precautionary powers essential to the prison services continuing response to the pressures that are facing prisons during the pandemic. I welcome any questions that the committee may have. Good morning, Cabinet Secretary. I thank you very much for your written submission. It is really more to do with the inspectorate in the role that they are going to play in terms of the precautionary measure. My concern is the human rights of the prisoners in those estates, particularly purpose-like tiffy and recreation. It is to get some reassurgency from you in terms of what role the inspectorate will play in going forward and the mental health of some of the prisoners in light of the precautionary measures. The inspectorate of constabulary has powers that are set out in statute to inspect prisons and various other elements of scrutiny of prisons, which, perhaps, Mr Fox, we want to speak to. However, I would say that the prison service itself has carried out a human rights assessment prior to doing that. I understand the concerns that committee members will have, but I think that the one thing to say is that the way that it has worked over the pandemic, first of all, I am not suggesting that this has been proposed or suggested, but the governors are not tyrants and they know that the best way of managing the prisoners is to allow the maximum possibility for purposeful activity for visits and so on. That is why they have worked very hard for alternatives to those. That tends to help with the easier running of the prisons. The point of making is that sometimes restricting those things is actually not in the governor's interest and they would only do it because the health needs were there for it. The safeguards are the conversations that they, of course, have with SPS headquarters. There is the possibility for legal action to be taken if a governor is extending their powers and there is, of course, the constabulary plus there is the ECHR regulations, which are there, but maybe I don't know if the officials want to speak to any further powers which the inspector of prisons has in relation to that. I think that you are quite right to be concerned about the human rights of prisoners. I think that all of us should be concerned about that and the inspectorate has been very diligent throughout the pandemic in maintaining as good an inspection regime as they could possibly do. One of the things that has been remarkable during this pandemic is the level of co-operation that prisoners have shown to staff in what are very challenging and difficult circumstances for them. I think that they have done that because they have seen the legitimacy of what we are trying to do, which is preserve the health and wellbeing not only of the people living and working in prisons but of the people who are coming to visit. The measures that we have taken to put in place things such as virtual visits have helped and the ability of people to contact families by phone have been of significant help in maintaining that legitimacy. Please be assured that the inspectorate is on our case quite regularly, as they are entitled to be, and they take their job very seriously. We take the comments that they make to us very seriously and respond to them as quickly and as timidly as we can. The inspectorate has been very diligent in visiting prisons, and even when visits were not possible, they were on the case, I assure you, and as we would expect them to be. I will bring in Mr Greene, followed by Mr McGregor. Thank you, convener, and good morning, just about good afternoon. Thank you for coming along today. You will note that the committee briefly debated this previous session. I guess that my comments and any questions are centred around two distinct areas. One is around the process of our deliberations of the instrument, and the other is around the substance. On the latter, I do have sympathy on the need for the extension of some of those powers for the very reasons that you have outlined today, but perhaps on the former I have less sympathy with the Government on the way in which we are having to process the instrument, so I will maybe start with that first. Those current powers expire tomorrow, which, I would say, leaves the committee quite an invidious position of either having to agree or disagree with their extension. Why is it the case, cabinet secretary, that these only came to us last week, given that there was the likelihood that there may be some controversy or indeed questions or concerns that have been raised by numerous members across the political spectrum, around the content and the nature of the extensions on those powers and the effect that they will have on the prison population? I think that it is true, and even from my recent experience on committees, that there have been a number of times during the pandemic when perhaps the usual expected patterns of development of these measures has been curtailed, I think, for fairly obvious reasons. I think that it is also true to say that it probably was not possible to predict, even where we were at the end of September and July, exactly what stage of the pandemic we would be at, although it was predictable, of course, when those powers were due to expire. However, I can see that one of the officials wants to come in on this. Do you want to say anything more? Yes, so this is an instrument subject to the negative procedure, and it has actually been laid in accordance with the Parliament's standing orders. I appreciate, ideally, that it comes into force before the expiry of that 40-day period for a negative instrument. However, one of the issues that we had was that we wanted to carry out this consultation, which was in response to the previous justice committees comments on the last instrument that extended it. There was time to be built in for that particular consultation. Again, for that consultation to be effective, we had to have a position about where we wanted to be ourselves, which took a bit of time, but it was difficult to do that further in advance. The instrument had actually been laid in accordance with the various periods that are set out in the standing orders. I think that it was laid on 26 August, and it was laid on 30 August. It has been through the Delegated Powers and Law Reform Committee, and I think that it was in this committee last week. There is still time for this session today to allow further evidence to be taken, which the committee has taken the opportunity to do. Thank you, and that is a technical answer to my question. Nonetheless, the powers do expire tomorrow, so there is very little room for movement there for the committee whatsoever to either take further evidence to scrutinise or to interrogate any of the stakeholders who input it into the consultation. In fact, we have learned in the response that we received late last night that the consultation responses will be published in October, which is way after the instrument is presumably passed and the powers are extended for another six months. That does not strike me as acceptable. Can I maybe just say first of all that it may be a technical answer that is also a factually correct one that we have observed in the standing orders of the Parliament, and there is a role for the committees that they want to get earlier consideration to. This is now the second committee of the Parliament to consider these powers, and I think that that is especially in the context of a pandemic, and especially having undertaken a voluntary consultation exercise, it was not required to do that. I think that the prison service have done the right thing in relation to that, and of course, if the committee wanted to negate the instrument, it could do that, or it could be done through the Parliament, and the powers would continue until that process happened. I do not think that there is a material loss of benefit if you like to the scrutiny process in that regard. On the consultation responses, I did try to explain that on my response to the committee that they did not get the permission from the consultees to publicise those responses, and they are working to ensure that they can do that, although some of them are known to members of the committee. As soon as those permissions have been granted, they will publish, and you are right to say that it is next month, but next month is on Friday. I am not saying that it will be published on Friday, but the next month starts on Friday, so it will be published as soon as it is possible to do that. That addresses my process queries and concerns, and I think that they are noted on the record, and others might comment on that. On the substance of the powers that are being extended in the letter, which helped to summarise some of the consultation responses that we have been unable to see ourselves, it is fair to say that my impression of the three-page letter is that there was more concern than praise raised to put it that way, given the nature of it. If we look at them in turn, there were concerns raised on rules 40A, on time limits, on 41A, on accommodation, 63A, suspension of visits, 84A, purposeful activity, 88A, recreation. That is the entirety of the powers that the Government is seeking to extend. Of the substantive responses, the three organisations, all of them expressed concerns about some of them, including some of them even suggesting potential amendments. We cannot amend this instrument, and we do not vote on it, indeed, which is unfortunate. Given the context of some of the concerns that we have, and I am sure that we can go into them in detail, why does the Government think that it is appropriate simply to nod through the extension of the powers in their entirety as they currently exist, given the levels of concerns and the nature of the concerns that have been raised by stakeholders through the consultation process? I would be good to say that we are not nodding these through. I think that the process that has been undertaken with the consultation, which again, for science, the SPS did not have to undertake, but they were right to do so. It was a limited consultation and I would acknowledge that point. I am not sure that it is true that the balance was critical. I know that the officials may have the exact details, but there were some who did not respond at all, some who responded to say that they had no comment. You are right to say that the issues that were raised were significant and probably reflect the issues that are due to be raised by committee members today. They are the obvious issues where there are concerns. The Government did not at that stage nod this through. We talked to the prison service about this, and we believe on balance for the reasons that have been given and which are referred to in my statement. It is the right thing to do to allow these powers. From my point of view, I understand that the issues extend through to 31 March next year, but I have made the point previously that the nature of the pandemic is changing. It changes all the time. Hopefully, today, we will see further progress when we see the figures. For my part, I would undertake, if the committee wishes me to, to come back before that time, if the nature of the pandemic has changed and to discuss further the need for these powers. I am more than willing to do that. At this point, the Government has considered the consultation responses and believes that on balance, that is the right way to go. That is a very welcome offer and undertaking. We all accepted from the beginning when we granted the Government emergency Covid powers that they would not be enforced for a moment longer, and I think that those are words that even the Government and themselves have used. That commitment is welcome. There are obviously reservations that that may not happen, despite the lowering prevalence of the virus. Can I ask about the cases that currently exist in the prison estate? Have we done any analysis on where those are? Is it staff? Is it inmates? How do we think that the cases are coming into the prison estate? Are those numbers on the rise, are they levelled out or are they on the drop just to give it some context? If I can just come in, I'm just really conscious of the time and I quite like the discussion to remain focused on the SSI, if you don't mind. If there's anything further you'd like to ask, fine. Otherwise, I'll move on to Mr McGregor. Mr McGregor, followed by Ms McNeill. Thank you, convener, and good morning to the National Government Secretary and officials. I think that probably most people on the committee are reminded to agree to this today, but I've also got some concerns. I think that I've already been articulated by Collette Stevenson and Jamie Greene. It relates to the vulnerability of a lot of prisoners, and I think that we should all feel slightly uncomfortable when we're extending this legislation, but at the same time, recognising that we are in a pandemic and that we need to do what's necessary to keep people safe. However, in that context, and it probably is coming on to maybe where Jamie Greene was going there slightly, I can ask about the vaccination status of prisoners and how that has impacted the Government's decision to go for an extension here, because it seems to me that in most of society there's going to be another debate this afternoon on exactly the issue that vaccines are a very important part of allowing us to re-open and live with less restrictions. Is there an issue with either staff or inmates being vaccinated in prisons? Is that an issue? Because it does seem that, on all the how and like, I've raised concerns about visits and stuff like that. Those are real human rights concerns. Has vaccine status been taken into account in this particular decision? I wonder if it will be helpful, not least as well, given Jamie Greene's previous question. If we can look at what information we can provide, I would say initially that I get an update every week, sometimes more than that on both the vaccination rates for prisoners and for staff, and also the presence of the virus that's there as well. That has implications, as Fulton MacGregor rightly says, for visiting when people come directly into custody as part of the judicial process or processes in place there to try to minimise transmission. I would say in general terms, and I'll get the specific figures in as far as I'm able to on that, but in general terms it's the same profile as the general population, so the same process has been followed in terms of the age population people when they get the vaccination. I think from memory there's a higher incidence of refusals among prisoners in the prisoner population, but again I'll get that detail to you. Just to say that, if it provides any further reassurance, if you look at the way it's done, it's done by governors in consultation, it has to be done in consultation with health professionals, so health professionals wouldn't likely insist on measures that are going to be, you know, say a prison governor for whatever reason, wanted to have a more stringent regime. They couldn't just do it because they wanted to do it. They could only do it under those regulations because a health professional says that that is required, and bear in mind we're dealing with a closed population. We have had a number of outbreaks, as I've said, in nine different prisons just now, and what happens is that as it bubbles up in a particular prison and the incident management team go in there and they take relevant measures, so it's a very real threat that's there, and the ability for it to spread very quickly is also more prevalent than in the general population. I think that it's being done for the right reasons and only for those reasons, and it's not in the prison governor's interest to use those powers for anything other than health reasons, but I'll try to get as much information as possible to pass on to the committee. I'll write to you for that information, convener, for the benefit of members. Thank you very much. Mr McGregor, any further questions? No, thank you. Ms McNeill, followed by Ms Mackay. Thank you very much. Good morning, cabinet secretary. So, I reiterate what Collette Stevenson said earlier. In fact, on Fox, I've also acknowledged that all of us are concerned about the conditions of prisoners and the rights of prisoners, so we're all coming from the same place, I think. First of all, I can acknowledge your detailed answer to the committee, which I thought was very helpful, and to see some of the response to the consultation was also very helpful. However, I'm sure that it's acknowledged by your cabinet secretary at the end of the day that whatever the rights and wrongs of the process is, this committee has a decision to make, and we're decision makers when it comes to SSIs. I'm sure that it's acknowledged by everyone. It may well be that I agree with Fulton McGregor that we may be minded to pass this, or I may be minded to line my support to this, but, with all the reservations, I think that other members have already given about not having the appropriate time to consider it and all of the concerns. That is my line of thought, if you like. I'm right in saying that the powers that you would be seeking to extend would relate to purposeful activity, suspension of visits and detention of prisoners with all the rules around health professionals and human rights, but those are the kind of range of powers that you're seeking to extend. Yes, and I think that the ones that we're not seeking to extend, which we're seeking to revoke, are largely to do with internal administrative and disciplinary processes, but you're right to identify the ones that we wish to extend. So, I did note that one of the ones that you are revoking, I just wanted you to confirm that I've understood it, is the provision of newspapers and materials to be revoked, so that will now be allowed. I was just, when I first read it, I thought that I wouldn't like to think that there's any real reason for newspapers and reading materials, particularly for those prisoners who are detained. In relation to the time limits, there's no time limits, and obviously, there's, I understand, a caveat. Are you certain that this aspect of it complies with human rights law? I think that Mr Fox is looking to come to this point as well. Yes, we've looked at both, obviously, the Government's lawyers, but also the SPS as well. They're very conscious, and it really is the case that they take a human rights approach, a based approach to this. And it's also not a hollow threat that they can be challenged on this by individual prisoners or the representatives if they were to be in breach of human rights legislation. So, yes, that's been looked at, but I don't know if Mr Fox would want to go. Just on the general point, I think it's worth saying that, at the moment, we are trying to begin the process of normalisation as best we can. Staff changed their attendance patterns at work to enable the maximum number of individuals to get access to exercise and the like during the pandemic. We're going back to a more normal regime, so many of the things that we have restricted should start to normalise over the next few months, but it's essential to retain the capacity to take measures if we need to take them. So, as recently as a couple of weeks ago, we had an outbreak in Perth that necessitated significant numbers of people being placed on lockdown as a precautionary measure. Now, it's not something that we would seek to do normally, but we need to retain the ability to do it as and when the circumstance necessitate it. But over the next few months, we should see prisons returning to much more normal regimes than has been the case over the past 18 months. Visits have resumed everywhere. The uptake in visits, unfortunately, hasn't been as great as we would have hoped, but that normalisation is going ahead. We simply need to have the ability to manage exceptional circumstances as and when they arise during the rest of this pandemic. Thank you. That's really helpful. I'm sure that it's appreciated by cabinet secretary, so we appreciate it. I would certainly acknowledge that these powers will be needed. What we're interested in is where are the safeguards if we pass this today. I would need to be satisfied that those safeguards exist, and I'll just finish on what you've already said to Jamie Greene, which is you said, I am uncomfortable that they are extended to March. I might be a reason for me to vote against them just with the length of time you're asking for, and I've accepted a lot of what you've said, and I acknowledge that. You said to Jamie Greene that you would be prepared to bring it back before then, and I would have to say that for me to support this, I would need that absolutely confirmed. I could not vote for six months to extend what I quite wide-ranging powers with all the safeguards and caveats without it being brought to the committee before March next year. Just to say on that, can we just be clear on what I'm saying is that we are asking for the powers to be extended to 31 March next year. I think that the point that I was trying to make is that the nature of the pandemic can change quite quickly. For example, hypothetical, I have no inside knowledge on this, but we saw a very benevolent decrease in the pandemic, such that the incidents in the prison estate and elsewhere were much smaller. I think that that would inevitably raise concerns for the committee. In that context or in another context, if it goes a different way, I'm more than willing to come back to the committee and explain and listen to any concerns at that stage. That's the offer that we'd make at this stage. It's just about virtual visits. We know that they've been really successful in the cabinet secretary acknowledges that in his letter. It's just to confirm that they will be retained if necessary, would they be escalated? Do you know if that's a general approach that will be taken by governors throughout the estate? I think that virtual visits are here to stay. They're a very important addition to what's available in prisons, not least of what I mean. There's been windfall benefits for national prisoners who are getting visits. They never got visits before because they don't have family here, obviously. It's a boon for people living in more isolated communities in Scotland who are able to visit their family members without two or three days travel. It also enhances the ability of prisoners to contact young families and children. I think that we would be committed to continue to provide virtual visits, not as a replacement for physical visits, but as an adjunct to do it. Thank you. That's fine, thank you. Any other questions? That's fine, thank you very much. I thank you, cabinet secretary, and our officials for your attendance today. I'm now going to suspend the meeting for a short time before we move on to the next agenda item. Thank you very much. We'll now move on to agenda item 4. This is for the committee to consider the prisons and young offenders institution coronavirus Scotland amendment number two rules of 2021. Can I ask if any members have any comments on the SSI? Mr Greene. Thank you, convener, for your forbearance and to thank the cabinet secretary and his officials on the record for attending today, perhaps unusually for a negative instrument. Given the nature of it, it was helpful. I do not propose to raise a motion to annull the negative instrument, however. I would simply like to note the instrument and therefore it will come into force tomorrow, subject to the agreement of the rest of the committee, but do so under the caveats that there have been concerns raised, not just by committee members, but clearly throughout the consultation process as well. My caveats are twofold. One is that if, when the consultation responses are released to the committee and to the wider public in October, it becomes clear that there are wider substantive problems with those powers that we are extending for tomorrow, that we would reserve the right to request to the cabinet secretary to reappear to the committee to respond and indeed to the Scottish Prison Service and perhaps Her Majesty's Inspectorate also. Equally, given the length of the duration of the extension, perhaps it would be prudent in a midway point, perhaps January of next year, to, as a committee, at least review where we are with the extension of those powers and if we are still comfortable or if there are still concerns within the committee. I appreciate that that does not change the outcome of the proceedings today, but it is important to put that on the record that the committee and, indeed, wider stakeholders had concerns with the extension of those powers, but given the cliff edge nature of the extension today and, as I said, the invidious position that we are in to approve or not, we are where we are. Thank you very much and that is helpful and will be noted in the minute. Katie Clark. I also do not intend to move a motion to anull, but I have significant concerns about the statutory instrument and, in particular, the length of time that it would be in place. Therefore, I would want the Scottish Government to come back if circumstances were to change. The concerns are also in relation to the practical implementation of the statutory instrument and how the substantial powers that Governors will have are implemented. That is something that I think that the committee would want to be kept advised on to be satisfied that the human rights of individuals in prison were respected but also that the approach was consistent with health guidance that is in place outside of prisons. I think that we would have preferred, as a committee, if the statutory instrument had been for a shorter period and it is unfortunate that the Scottish Government does not feel able to do that on this particular occasion and, for that reason, the committee should be kept closely advised of how this particular piece of legislation is implemented. I agree with what has been said so far. I will repeat those points. I would have been minded to support a motion to anull, but I am content with what has been said. I note for the record that the SSI includes the potential suspension of part-of-assault activity, suspension of visitation rights and to detain prisoners in the cell where a health professional has said that there is cause for concern around coronavirus. I acknowledge that there are reasons to have those powers. I agree with Jamie Greene and Katie Clark. It is the length of time and the consistency of governance decisions that the committee needs to give a watchful eye on. Since the cabinet secretary has indicated to the committee that he would be happy to come back and return to this, I am content not to do anything other than to note the instrument and not to move against it. I agree broadly with what has been said so far. As Jamie Greene noted, we are where we are. One thing that I would suggest, or at least put on the record, is that we were only given a pretty partial picture a week ago and took the committee agitating for some answers that revealed a much more complex picture. In the future, we should, if we can, ensure that the authorities that we are dealing with are a little bit more forthcoming in respect of issues like that, especially when we are on this precipice where there is not very much that we can do other than to note our concerns. I agree with the comments that have been made, so I am not going to repeat them. That has been helpful. Mr McGregor, I know that you are online, just to check if there is anything that you wish to add. No, nothing really can be known on what I said when the cabinet secretary was in, and I think that it has been summarised fairly well by colleagues. I do, obviously, have concerns, but I think that, in balance with the safeguards that are expressed by others, I think that I am happy to note this instrument today and acknowledge the cabinet secretary's offer to come back to us, if required. That has been helpful. Just for clarity and to recap, the SSI has been laid under the negative procedure, so that means that there is no requirement for us to endorse the SSI or vote in its favour for it to come into force. The SSI will come into force unless the Parliament agrees a motion to annul. However, obviously, we have shared some concerns this morning about the provisions in the SSI. I suggest that the minute of the meeting states that the committee makes no recommendation on the SSI, but it notes that some committee members have expressed some concerns about certain provisions of the SSI, and it notes that those concerns are set out on the public record in the official report of the meeting. I would be content with that. Not just the provisions of the SSI, but the nature by which we are being asked to deliberate. I propose, in light of the discussion that we have had, that we write in due course to the cabinet secretary and the Scottish Prison Service to raise additional points, and that we also invite the cabinet secretary back to committee to provide further updates on the situation with the provisions of the SSI. I will quickly move on to our final agenda item, which is the post-legislative scrutiny of the control of dogs Scotland Act 2010. I would like to invite the committee to consider a letter that we received from the Public Audit Committee, and I refer members to paper number six. The Public Audit Committee's predecessor carried out post-legislative scrutiny of the control of dogs Scotland Act 2010, and it made a series of recommendations for the Scottish Government, but appeared to be frustrated with the pace of the Scottish Government's response. The session six public audit committee has now brought the issue to our attention, to the attention of a number of parliamentary committees, including our own. We might want to consider whether there is any minute merit in repeating the post-legislative scrutiny exercise previously carried out by the session five public audit and post-legislative scrutiny committee. Is there anybody who wants to raise any queries about Mr Greene? Just very briefly, in the letter from the Public Audit Committee, it notes that the enforcement of the 2010 act falls under civil law, but the review of the wider dog control legislation currently falls under criminal law. Therefore, it seems appropriate that this committee would have a watching brief over progress in that area. Given the legacy paper of the previous committee, to be clear, the previous public audit committee, which was clear that they were frustrated by the pace of the response to the issue, I would say that it fit that we raised the issue with the relevant minister. I suspect that the minister for public safety or communities is not quite sure of the answer, but it would be interesting to ask the minister either in writing or face-to-face for an update on progress, either to the consultations that they have launched or, indeed, to the legislative plans in the sector. Any other points that anybody wants to raise? Can I suggest that we could also ask for an update from the Scottish Government on its plans and whether it intends to take forward any of the recommendations from the session 5 public audit and post-legislative scrutiny committee that falls within the criminal justice remit? Any other comments on the specific content of the letter? We will write to the committee and we can also invite any further correspondence from the relevant minister. That is fine. That concludes the public part of the meeting. Our next meeting will be on Wednesday 6 October, when we will begin our budget scrutiny. We will now move into private session for the final item on our agenda.