Hansard

I have been asked to make a statement regarding the action that is being taken by legal aid solicitors in the context of the 26th United Nations climate change conference of the parties—COP26—and I am happy to do so. I start by commending the work that justice organisations have undertaken in planning and preparing for a safe and secure COP26 event. That proportionate and effective approach is continuing now that the summit has started.

I note and share the concerns that have been expressed regarding the decision that was taken by many criminal defence solicitors not to participate in custody courts that are taking place during the period of the COP26 summit. That action withdraws support for persons who are in custody due to criminal activity that is associated with the summit, as well as for existing clients of those solicitors who are in custody for activity that is unrelated to COP26. Duty officers are unable to act for clients with named solicitors unless they are expressly asked to do so by that defendant.

The Scottish Solicitors Bar Association confirmed on Saturday 30 October, immediately before the start of the conference, that many local solicitors would withdraw with immediate effect from the general legal aid duty scheme for non-COP26 cases during the period of the conference and potentially beyond it. That was done without providing the normal notice period to withdraw from the existing legal aid duty scheme.

I turn first to the issue around COP26 custody arrangements. Proposals for a generous package of enhanced legal aid fees for COP26-related cases were developed by a working group comprising representatives of the solicitor profession, the Law Society of Scotland and the Scottish Legal Aid Board. The group submitted proposals for the enhanced funding package, which was then approved by the Scottish ministers without amendment. Subsequent proposals were also put forward for enhanced fees for non-COP26 cases in weekend courts, and those were also approved.

Based on the estimated additional levels of custody cases that have been identified by Police Scotland, the total potential value of the enhanced package to the profession in legal aid fees over the period of the conference was up to £3.5 million. United Kingdom Government representatives subsequently confirmed that the UK Government would cover costs only up to a maximum of around half of that, which was an estimate of about £1.8 million. However, the Scottish Government has committed to underwrite the difference.

Collaborative efforts were made in advance to provide and agree a generous enhanced package of legal aid fees to support the work of solicitors during COP26. At no time during those discussions was there any indication that there was an intention to boycott the summit. It is therefore disappointing and concerning that a large number of local solicitors indicated immediately before the summit that they would boycott the enhanced legal aid fees package. The decision was also taken to boycott weekend courts, including withdrawing support for solicitors’ own clients. I have seen some accounts on social media that solicitors were expected to work in those courts without additional payment, which is not an accurate reflection of the position.

We now face a situation in which, in addition to boycotting COP26 business and weekend custody courts, the profession will boycott court duty for those courts that would continue to operate business as usual during the summit. For those courts, solicitors have indicated that they will attend for their own clients.

I share the concerns about the impact of the action on defendants and on the smooth running of the courts during this time. Police Scotland has confirmed that it will take a proportionate approach to policing during the conference, including in response to protests, and will ensure that the rights to peaceful assembly and protest are met. However, it is acknowledged that there may be an increase in arrests and associated cases in police custody and custody courts during the conference.

Those courts will be supported by the solicitors who have agreed to continue to support the duty schemes. The Public Defence Solicitors Office and the solicitor contact line will provide support for police station duty. Based on current estimates of the worst-case scenario, we are reassured that the necessary mitigating measures are in place for the courts that are dealing with COP26-related cases during the summit. I am very grateful to those who are supporting that work and making a contribution to demonstrating Scotland’s ability to host such an important international gathering of delegates and protesters.

I turn to the impact on day-to-day business. Again, I am grateful to the justice partners who have worked together to agree and implement mitigation actions that aim to minimise the impact on defendants and on the smooth running of the courts. In particular, early identification of those who need representation, greater use of technology for virtual representation and flexible court scheduling are among the tools that will be used. Continuous monitoring will be undertaken so that any necessary adjustments can be made. However, the greatest risk is to those who may appear unrepresented, many of whom will have vulnerabilities associated with poor mental health or addictions. We will do everything that we can to reduce that risk.

Correspondence that has been received from local bar associations indicates that the main reasons for the boycott did not relate specifically to the enhanced fee package approved and made available to solicitors for COP26; instead, the reasons related to wider unhappiness within the profession about legal aid fees in general and the sustainability of the legal profession. That is despite significant investment being made in the legal profession. I agreed a general uplift of 3 per cent for all legal aid fees in 2019-20. In December 2020, we confirmed a further 5 per cent increase across all legal aid fees for 2021-22 and committed to a further 5 per cent increase on top of that in 2022-23.

In addition, we acknowledged the pressures that are faced by the legal profession as a consequence of the Covid-19 pandemic and agreed with the profession the allocation of £9 million in direct funding to legal aid solicitors this year. The first element of that funding was directed to those firms that demonstrated a loss of income during the pandemic, with the remainder allocated to all eligible firms to support the legal aid-funded profession’s participation in the Covid-19 justice recover, renew and transform programme. Further to that, £1 million has been allocated over two years to support firms with the costs of hiring new trainees to participate in legal aid-funded work. That is a good example of us working with the profession on practical measures to strengthen capacity.

In response to the decisions on boycotting, I wrote to the presidents of the Law Society of Scotland and the SSBA on 22 October setting out my concerns and my willingness to continue to engage with the profession ahead of the conference. I met both presidents on Monday 25 October, and the Cabinet Secretary for Justice and Veterans and I met the Law Society president on Tuesday 26 October. The presidents confirmed that, even if further adjustments were made to the specific COP26 package, that would not guarantee the participation of local bar associations. That is concerning, and we must continue to focus on how we can work together in future to try to avoid similar situations.

The request from the profession is for an immediate substantial and permanent increase in all legal aid fees. That is in addition to the already agreed 13.6 per cent over three years. We have asked the Law Society and the SSBA to quantify in detail the scale of that ask. By way of illustration, each 1 per cent increase in legal aid fees equates to around £1.25 million a year. We need clarity from the profession not just on the scale of the ask but on how that investment, on top of the resources that we have already committed, will deliver genuinely improved capacity and support for those who rely on our justice systems.

In our programme for government, we committed to engage with legal professionals and other stakeholders to review the legal aid system, and to introduce a legal aid reform bill in this session of Parliament to ensure that the system is flexible and easy to access and meets the needs of those who use it. In October, we published a public consultation on reform of legal services regulation. We value the work that legal aid practitioners and the wider legal profession undertake, and we remain committed to working with them to consider what changes may be required to the statutory framework to protect consumer interests and promote a flourishing legal sector.

Finally, I know that there have been reports of an incident at Edinburgh sheriff court last weekend, which has been the subject of debate on social media. I welcomed the joint statement that was released by the Scottish Courts and Tribunals Service and the Edinburgh Bar Association yesterday. The running of the courts and the day-to-day operation of court buildings are a matter for the senior judiciary and the Scottish Courts and Tribunal Service, and it would not be appropriate for me to comment, beyond directing members to the correspondence that has already been published.

In summary, I share concerns about the current removal of services by legal aid solicitors. Our priority is to ensure the safety and security of the COP26 event, while ensuring that people are able to lawfully express their views and have their rights upheld, and to ensure that those who require legal advice receive it. Justice agencies are prepared, including for any criminal activity that arises during the event. I remain committed to working with the profession on the future sustainability of legal aid and meeting the needs of those who rely on it to uphold their rights.