 We welcome to the 8th meeting of the 2021 session 6 of the Equalities, Human Rights and Civil Justice Committee, with no apologies for this morning's meeting. First, the agenda item is to agree to take item 6, which is consideration of correspondence received from the minority ethnic carers of People Project MECOP in private, are we agreed? Our second item is consideration of an affirmative instrument, the draft legal aid and advice and assistance, miscellaneous amendment Scotland number 2, Regulations 2023. I welcome to the meeting Elena Whithom, MSP, Minister for Community Safety and Supporting Officials, Shona Arkart, legal aid policy lead, Denise Swanson, deputy director, civil law and legal systems and Emma Thompson, solicitor and the Scottish Government's legal directorate. I refer members to paper 1 and invite the minister to speak to the draft in suspense. Good morning, convener and members. Thank you for the opportunity to speak to the committee about the legal aid and advice and assistance miscellaneous amendment Scotland number 2, Regulations 2023. This instrument has been brought forward to deliver changes to legal aid regulations, primarily to ensure continuing access to justice in Scotland. The instrument provides for an overall 10.25 uplift in legal aid fees, distributed via a combination of targeted free reforms and uplifts and overall increases. The solemn and summary criminal free reforms have been revised to ensure that the reforms themselves, augmented by increases in specific fees, delivers an overall increase in fees payable for those cases of 10.3 per cent. All other criminal fees not affected by free reforms will be uplifted by 10.2 per cent. All civil and children's fees will be uplifted by 10.2 per cent. Restoring the criminal justice system in light of the impact of the Covid pandemic is an issue that is critical to all involved in the justice system. The instrument implements a long-standing commitment to reform both solemn and summary fees to deliver simplification and to better recognise preparatory work undertaken before a trial. They are a vital part of the Scottish Government's wider strategic reform objectives. The amendments to legal aid fees will also support recovery with new transform programme through an enhanced remuneration where it is appropriate for there to be an early resolution in cases. By supporting this early resolution, those reforms will reduce the number of cases for which trial diets are fixed, assisting with the courts recovery programme in tackling a backlog of cases due to the Covid lockdown and providing a more timely conclusion for victims and witnesses of crime. That gives a brief overview of the regulations and their context and I'm happy to answer any questions. Thank you very much. Maggie Chapman, please. Thank you very much. Good morning, minister. Thank you for being here. You will be aware, I'm sure, of correspondence from the Law Society and their anxieties around, I suppose, the timescales of the fee review that will come, that is planned for a few years' time and the relationship of that review with benchmarking. I know that you said something about the reforms in the space in answer to questions last week but I was wondering if you could give a little bit more information about why the connection between benchmarking and the fee review is so important and how can we, given that, address some of the concerns of the urgency for review that the Law Society and others have asked for? Thanks for the question, Maggie Chapman. It's probably helpful right at the outset if I say that my predecessor minister had supplied a letter to the criminal justice committee last December and there's really helpful annexes from that letter that I think might be helpful for us to share with this committee going forward in terms of the work that you will be undertaking to look at how we reform legal aid in the future. From the outset, I think that that might be something helpful to set out. If we think about Martin Evans's report back in 2018 with regards to the independent strategic review of legal aid, he himself at that point stated that he was unable to recommend anything concrete in terms of legal aid reforms because of the complexity of the system. If we think about the use of public money and if we think about the necessity to benchmark that, I think that I'm clear from my position on it that we need to gather in all the data that's going to be very important so that we can set out concretely from the beginning what those reforms need to look like. As I said, it is a very complex state of affairs and I think that it would be helpful if we can provide that information to the committee to help yourselves to understand as we go forward in reform. I think that we need to make sure that we do take the time to get it right and that there's no rushing that. I know that others probably want to come in on the same point, but I'll leave it there. Okay, thank you. Richard Hamilton, please. Minister, is it sustainable to hold the fees or freeze the fees until 2026 until the outcome of that benchmarking that you talk about feeds into the budget processing, because it's something that, again, the law society highlighted? I think that if we think about what we're going to do, if the regulations today are agreed, once implemented, that's going to give an £11 million increase from April, which is going to be of benefit. I think that in order to understand how we need to increase the fees going forward, we have to have that benchmarking information and we have to have that data. It might be helpful if I bring in Shona at this point just maybe to speak a little bit more directly to the question that Rachel Hamilton has asked as well. Yeah, I think that the question about 2026 came from a meeting in the initial meeting of the new research advisory group that we're setting up. That's not a set in stone. There's a lot of work that we need to do to get that benchmarking. What was shown in the review and in the payment panel was that, at the moment, what we're doing is simply adding a percentage on to the fees as they are now. We don't know whether the starting point of those fees was correct in the first place. It's set in what is now what you'll see from the paper that was applied to the criminal justice committee is that it's a fairly arbitrary level. It doesn't take into account the costs of providing legal aid advice, what it costs to run an office, to have staff. We don't have any of that data that doesn't exist from the public sector side. It doesn't take into account private client fees, things like that. That's the data that we need to get from the profession. We've got to a point where they're willing to get on board with us and engage with it. We've started that process. We've had meetings with the research advisory group and we're looking at tendering for a contractor to provide the research that was recommended by the panel. I take the point that's being raised about the amount of information that's required to set the starting point. My understanding was that that review was a number of years ago. I wonder why we're still where we are now. Is the minister in a position to say that there will be any review of the fees in the interim period? If not, will you at least review the impact of the regulations in the next 12 months? I'm very happy to look at the impact of the regulations as we go forward. As Shona has set out, I don't think that that is going to be set in stone in terms of that 2026 date. We're going to work as fast as we can to try and implement what we can. It's helpful to understand that, as Shona Arquett has already said, we now have the profession on board with the process. That's really important. We also had a pandemic after Martin Evans's report was out. There have been issues that have held us back a little bit. We're now in a position, collectively, where we're going to try and work as quickly as we can on that measure. Since I've come into post, I've had many conversations with the Law Society, the Faculty of Advocates and setting up a working group that's going to be co-taired by all of us to look at the future of the legal profession. Amongst all of that, there will be issues around reform, diversity and how we retain people who are entering into the profession. There's a jigsaw amount of things that actually all have to come together. Although I understand some of the issues that have been raised within the letter itself, I think that the letter doesn't represent the full state of play that we're at at the moment and the goodwill that has been given by everybody around the table to try and get to a situation in which we have a sustainable legal aid system for all of Scotland. My point relates to the retention of staff. Can I move on to that next? Or do you have others who have questions on fees? If it's a noisian to the sentiment, then I'll go ahead, yeah. I thank the minister for that answer. I think that the minister's retention brought that up. That's a really key point. We've heard in the session that we held with a number of organisations looking at access to justice that the availability of legal aid solicitors is a huge problem. To get the figures right, they've said specifically that there are huge inequalities in the availability of solicitors. In the 139 poorest areas, there are only 29, but it might have been 22, legal aid firms, either 29 or 22. I'll check in a second and come back. Nonetheless, out of 139 of our poorest areas, there are a handful in comparison of legal aid firms. That set against the fact that the fees don't appear to be in any way commensurate with the sort of costs that are involved. You add to that the fact that our solicitors working in legal aid are now moving into other areas of law because of that structure. Can I ask the minister to set out what this instrument is going to do to change any of that? If that instrument isn't going to do it, what will it do? If we think about the instrument in front of us today, the instrument is there to do some of the reform in terms of the section 76 fees, which will help to look at resolving cases before they get to trial where that's appropriate. There will be the uplifting fees across the board for the different sectors in the justice system. We need to look wider to think about those diversity issues. I think that that's why there's the group that's been set up to look at that in detail. We also have to recognise that. Those figures, as quoted in the letter, are concerning. They're concerning to myself as well, but I think that what we have to think about is that in some of those areas we have really fantastic law centres that are being supported by the Scottish Legal Aid Board and the Scottish Government as well. They're going to see a 10 per cent increase in funding to them, too. Yesterday, I announced that a lot of the organisations that are funded for access to justice projects through the Scottish Government and the Scottish Legal Aid Board have had their funding agreed for this year ahead. Some of those are in some of those most deprived areas. While there is concern there, I have some level of comfort that I know that the law centres do a fantastic job in those areas that we're going to help to support them as well. I think that it might be helpful to bring Denise in here at this, Denise Swanson, as well. I have a couple of points. I think that if we look at Martin Evans' review again and the kind of direction that legal aid has been going, it's about connecting the advice services with the legal advice and representation services so that we get a bit of a continuum. That's one of the reasons that the Scottish Legal Aid Board manages a lot of grant funding programmes for the Scottish Government, which go to very local third sector organisations to provide advice. Those are the programmes that the minister has confirmed the continuation of funding for. They will be partnerships between citizens advice bureaus with local authority advice providers, so it is quite a good partnership approach. Alongside that are the law centres, which provide a lot of the social justice type support, advice and assistance and representation. The opportunities that the reforms provide us is to look at different fee mechanisms and payment mechanisms, which are not available to us at the moment under the current statutory framework, work very closely with the law centres. I myself meet with the Scottish Association of Law centres very frequently. In fact, I am meeting with them again next week. It's a key issue that's in the forefront of ministers' minds in developing the reform programme. I would say something about the statistics about the providers. I don't know if you're referring to the law society report. I'm not sure that that is as representative as it might be. I would say that some of the availability of solicitors quite often are corralled around courts and where courts sit, which isn't necessarily terribly far away from where people are living to get those advice services. For instance, one area in Edinburgh was considered to be without any solicitors in its local area, but if you walk 15 minutes along the road to Leith Walk, then there is a plethora of solicitors. We need to work with the data quite carefully, but that's not to undermine or detract from the fact that we have an inequality of provision across Scotland. I think that the law society said that it was something in the region of tens of thousands of people who were missing out on access to justice as a result. I'm not sure that being able to go 15-20 minutes down the road is exactly what people are looking for, if I'm honest. The fact that people in our poorest areas are sharing a very small number of legal aid firms between them probably suggests that there is a bigger problem there. I hope that there will be something that can be done through the reviews. There are a number of issues around thresholds for legal aid, and I consider that there might be quite a bit of unmet need as many don't qualify for it. Is the Government collecting figures on that? I think that it's definitely something that I have thought about myself in terms of the thresholds and what that means for people who may not be getting access to it. It's definitely something that I'm keen to understand the figures of. I don't know exactly if those figures are fit for the moment. Sorry to interrupt, but we have asked the Scottish Legal Aid Board—we are working with the Scottish Legal Aid Board to try and to put together a picture of where the levels of entitlement perhaps are affecting people's ability, the eligibility rates are affecting people's ability to get legal aid, particularly within a cost of living crisis. There are some things around the expenditure that we need to look at. I'm also very interested in some work around merits and where the merits test may well be a bit of a challenge in terms of accessing legal aid. That's a piece of work that's on-going, and the legal aid board is collating some data for us on that. That's very helpful to set out, because during a cost of living crisis, when we think about those thresholds and people's expenditures, it's a very different picture than it perhaps was a couple of years ago, so those are absolutely something that we need to be cognisant of. Okay, thank you. If there's no further questions or contributions, we'll then move on to agenda item 3, which is consideration of the motion for approval of the affirmative instrument. So I invite the minister to move the motion S6M-08058. Thank you. Do any members have any final comments? Okay, and if not, then are we all agreed? That is agreed, so I therefore invite the committee to agree to delegate to me the publication of a short factual report on our deliberations on the affirmative SSI that we have considered today. Is that also agreed? Okay, that concludes consideration of the affirmative instrument, and I thank the minister and your officials for attending. We'll pause briefly before moving on to the next item. Just let the minister leave. Thank you. So we now move on to agenda item 4, which is consideration of three negative Scottish statutory instruments, SSI 202340, the first-year tribunals for Scotland's local taxation chamber, and a per tribunal for Scotland rules of procedure miscellaneous amendments, Regulations 2023, SSI 202353, the marriage and marriage registration prescription of forms, Scotland amendment Regulations 2023, and SSI 202355, the marriage between civil partners, procedure for change and fees, Scotland amendments Regulations 2023, and I refer members to paper 2. Do any members have any comments to make on these instruments? Okay, that being the case, there is no further business relating to those instruments, so that concludes our formal business this morning, and we now move into private to consider the remaining items on our agenda. Thank you.