Chamber and committees

Good morning—it is almost the afternoon—and thank you for coming. You will note that the committee briefly debated the instrument at a previous meeting.

I have comments and questions on two distinct areas: one concerns the process of deliberation for the instrument and the other concerns its substance. On the latter, I have sympathy with the need to extend some of the powers, for the reasons that you outlined. However, on the former, I have less sympathy with the Government on the way in which we are having to process the instrument. I will start with that.

The current powers expire tomorrow, which leaves the committee in the invidious position of having to either agree or disagree with their extension. Why, cabinet secretary, did the rules come to us only last week, given the likelihood of controversy—questions and concerns have been raised by numerous members across the political spectrum—around the content, nature and extent of some of the powers and the effect that they will have on the prison population?

Your offer and undertaking are very welcome. When we granted the Government the emergency Covid powers, we all accepted from the very beginning that they would not be in force for a moment longer than was necessary—indeed, I think that the Government itself used those same words—but despite the welcome commitment that you have just made, reservations remain that that might not happen, even with the virus’s lowering prevalence.

On that point, have you done any analysis of the Covid cases that are currently in the prison estate? Where are they? Do they involve staff or inmates? How is Covid coming into the estate? Are the numbers on the rise, levelling out or dropping? I would like to get some context.

Thank you for that helpful update. I was trying to make the link with the blunt tool that we are talking about. I presume that the assumption is that if we increase legal aid fees, that will somehow magic cash into your businesses, because that is the nature of the majority of your work. Therefore, either the amount of work has to increase, or the fee per job has to increase—one of those must be true.

Is it the nature of defence work that makes it so much more reliant on a subsidy? Effectively, legal aid is a subsidy to the profession rather than to the consumer.

Right. That raises a fundamental philosophical question as to whether the public purse should be subsidising private defence solicitors, but that is a whole other conversation.

I am sure that the Government is listening carefully to this exchange. Thank you for your comments.

Reform is not a new subject for the committee or, I suspect, our witnesses. It was touched on in each of the four written submissions. It is fair to say that the Scottish Solicitors Bar Association focused more on the fees and financial aspect of reform. The Scottish Legal Aid Board accepted the need for both short and medium to long-term reform. I was quite taken by the submission from Citizens Advice Scotland, which gave more pragmatic suggestions around issues such as triage and early intervention.

Other than reforms to legal aid fees and the funding of the sector, which we have discussed at great length, what practical or immediate reforms could, or should, we make to improve legal aid? That is an open question. I do not want to direct it to anyone specifically, because I am sure that all witnesses have a view on that. Now is their opportunity to share them.

Thank you for your forbearance, convener. I also thank the cabinet secretary and his officials for attending. That is unusual for a negative instrument but, given the nature of the SSI, it was helpful.

I do not propose to lodge a motion to annul the negative instrument, but I would like to note it. It will therefore come into force tomorrow, subject to the rest of the committee’s agreement, but with the caveat that concerns were raised not only by committee members but throughout the consultation process.

I have two caveats. First, when the consultation responses are released to the committee and the wider public in October, if it becomes clear that there are wider, substantive problems with the powers that we are extending tomorrow, we reserve the right to request that the cabinet secretary, the Scottish Prison Service and perhaps Her Majesty’s inspectorate reappear at the committee to respond. Secondly, given the length of the extension, it would be prudent for the committee to review it at a midway point—perhaps in January next year—and determine whether we are still comfortable or whether concerns remain.

I appreciate that that does not change the outcome of today’s proceedings, but it is important to put on the record that the committee and wider stakeholders had concerns with the extension of the powers. However, given the cliff-edge nature of the extension and the invidious position that we are in of having to approve or not approve the powers today, we are where we are.

The concerns are not only about the provisions of the SSI but the nature by which we are being asked to deliberate them.

Could I therefore make a request? Your written submission was helpful, with its one-page summary of ideas for reform, but it sounds like you had some very specific asks, some of which are legislative, some of which are policy driven and some of which are for the Government. Perhaps the committee has a role to play in some of that. Could you put in writing those very specific ideas and recommendations that you would like to be implemented? Then we could perhaps debate them as a committee.

Thank you. That was a technical answer to my question. Nonetheless, the powers expire tomorrow, so the committee has very little room for movement—to take further evidence, to scrutinise matters or to interrogate any of the stakeholders who inputted into the consultation. In fact, we learned in the response that we received late last night that the consultation responses will be published in October, which is way after when the instrument will—presumably—have been agreed to and the powers extended for another six months. That does not strike me as acceptable.