Final Business and Regulatory Impact Assessment

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1 Title of Proposal Final Business and Regulatory Impact Assessment The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 Purpose and intended effect Background Legal aid is currently available for a wide range of proceedings in Scottish courts. Changes are being made to Scottish courts through the Courts Reform (Scotland) Act 2014 ( the 2014 Act ). Provisions in the 2014 Act are being implemented in September 2015, relating to: criminal proceedings in the Sheriff Appeal Court, the Sheriff Personal Injury Court, the raising of the exclusive competence of the sheriff court (formerly known as the privative jurisdiction), and changes to judicial review. Objective The policy objective of this instrument is to adapt framework and arrangements in existing legal aid regulations to accommodate the changes coming into force in September by: making available criminal legal aid and assistance by way of representation (ABWOR) in criminal appeals to the Sheriff Appeal Court, and for appeals and references from that court to the High Court of Justiciary; setting fees for representation at bail appeals; ensuring fees for counsel are available for new judicial review processes and in respect of an appeal or referral from the Sheriff Appeal Court to the High Court; and applying detailed fees to work done by solicitors in all-scotland sheriff courts. Rationale for Government intervention The legal aid system contributes to the Safer and Stronger Strategic Objective. In particular, it contributes to the national outcome of strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others by ensuring that individuals can be held to account for their actions and enforce their own legal rights through the effective function of the civil and criminal courts. This proposal is aimed at making sure legal aid continues to be available under the new structures being brought in by the 2014 Act.

2 Consultation Within Government The Scottish Legal Aid Board (SLAB) is a non-departmental public body which administers legal aid in Scotland and is accountable to Scottish Ministers. SLAB has been consulted in the development of these regulations. Public Consultation These regulations directly affect solicitors and counsel providing legal aid services. Consultation was therefore carried out with legal aid solicitors and counsel, which is covered in the Business consultation section. As the regulations also have an effect on the taxation of accounts, the Auditor of the Court of Session was also consulted. Business Options The representative body for solicitors in Scotland is the Law Society of Scotland ( the Society ). The Society s work on legal aid issues is led by the criminal and civil legal aid negotiating teams, each being panels of solicitors who work in these fields, either as a sole operator or a member of a Firm. These panels are responsible to the Council of the Society. Both negotiating teams have been consulted in the development of these regulations. The Faculty of Advocates ( the Faculty ) regulates advocates, subject to the oversight of the Court of Session. The Faculty was consulted in the development of these regulations. Option 1: Do Nothing Provisions making legal assistance available and fees payable for legal assistance work would remain unchanged. There would be no reference to Sheriff Appeal Courts or all-scotland sheriff courts in any of the provisions. There would be no fee for representation by solicitors at a bail appeal in the Sheriff Appeal Court. Fees for counsel for judicial review hearings would be available only in respect of existing judicial review procedures. Option 2: Amend legal assistance regulations Criminal legal aid would clearly be available for appeals to the Sheriff Appeal Court against conviction, sentence, other disposal or acquittal, and for appeals and references from that court to the High Court of Justiciary. ABWOR would

3 clearly be available for appeals to the Sheriff Appeal Court in relation to preliminary pleas to the competency or relevance of summary criminal proceedings, or a plea in bar of trial. Solicitors would be paid detailed fees for criminal appeals to the Sheriff Appeal Court at the same rate as can be available for first instance summary criminal work. A fee for representation would be available for solicitors at a bail appeal in the Sheriff Appeal Court where counsel were not employed. Taxation of legal aid accounts for proceedings in the Sheriff Appeal Court would clearly be dealt with by the Auditor of the Court of Session. There would be clear provision for counsel fees in new judicial review procedures and in respect of an appeal or referral from the Sheriff Appeal Court to the High Court. Detailed fees would be payable to solicitors for proceedings in all-scotland sheriff courts. Sectors and groups affected These measures will largely impact on SLAB and solicitors firms and counsel carrying out legal aid work in terms of the fees chargeable and the method of taxation. There is also some impact on those receiving legal aid, particularly in that the availability of legal aid in new courts is made explicit. Benefits Option 1: Do Nothing Counsel would benefit from being able to be instructed to provide representation in the Sheriff Appeal Court without necessary criteria or prior approval of SLAB, whereas it is only currently in proceedings in courts requiring rights of audience in the superior courts that the prior approval of SLAB is not required. Option 2: Amend legal assistance regulations Publicly-funded legal assistance would clearly be available in Sheriff Appeal Court and all-scotland sheriff court proceedings. There would be clarity on the fees payable to counsel for hearings under new judicial review procedures and in the Sheriff Appeal Court. Fees would be available for solicitors in the Sheriff Appeal Court and ABWOR would be available for all appeals relating to section 174(1) of the Criminal Procedure (Scotland) Act 1995 ( the 1995 Act ), allowing Scottish Ministers to fulfil their duties in respect of the European Convention on Human Rights (ECHR). Detailed fees would be payable to solicitors in all-scotland sheriff courts rather than blocks, allowing remuneration to match procedures. SLAB estimates that applying existing legal aid frameworks to the 2014 Act being implemented in September 2015 would result in savings to the Legal Aid Fund of around 1.4 million per year. The actual impact from year to year would vary depending on the number and type of cases progressing through the courts.

4 Costs Option 1: Do Nothing There would be ambiguity about the availability of publicly-funded legal assistance in the Sheriff Appeal Court and all-scotland sheriff courts. ABWOR would not be available for section 174(1) appeals in the Sheriff Appeal Court. Various appeals to the Sheriff Appeal Court would not be excluded proceedings for the purposes of fixed payments, resulting in no fees being available to solicitors for this work because there is no suitable fixed payment available. This could result in a breach of ECHR. There would be a cost to the Legal Aid Fund from being able to instruct counsel in the Sheriff Appeal Court without any necessary criteria or requirement for the prior sanction of SLAB. There would be a lack of clarity about the fees that might be payable to counsel in the Sheriff Appeal Court. There would be no clear fee for counsel s work under new judicial review procedures. Block fees currently payable to solicitors for personal injury cases would apply in an all-scotland sheriff court, regardless of whether this provided appropriate cover for the work done or remuneration for the procedures applied. Any resulting ambiguity or dispute as to the fees payable could result in a greater number of accounts going to taxation before the auditor. Option 2: Amend legal assistance regulations The overall amount of money being paid from the Legal Aid Fund to counsel and solicitor advocates would reduce by around 1.4 million per year. The majority of this (c. 1.2 million) would be from personal injury cases that were previously heard in the Court of Session appearing before an all-scotland specialist personal injury court and therefore not necessarily requiring the employment of counsel. The rest would be from criminal appeals previously heard in the High Court appearing before the Sheriff Appeal Court and, likewise, not necessarily requiring the employment of counsel. Scottish Firms Impact Test As stated in the consultation section, consultation took place with the Law Society of Scotland, whose Legal Aid Negotiating Teams discuss proposed changes to legislation with Government on behalf of the legal profession. These teams comprise practicing solicitors who are authorised to provide publicly-funded legal assistance. The profession includes solicitors employed in firms, partners and sole practitioners. The majority of providers affected by these proposals are likely to be small providers (both small and micro sized businesses) due to the dominance of small legal

5 services providers in the legal aid market. In SLAB s 2010 and more recent solicitor surveys, partners were asked how many solicitors their firm employed across Scotland. Almost half of the firms (48%) employed 2 to 4 solicitors; and a total of 43 (19%) of the partners who took part in the survey were sole practitioners. The Law Society raised three main points on the draft regulations: in respect of how it might affect solicitor advocates, that counsel fee levels for judicial review might not reflect the work involved in new procedures; that solicitor advocates would not be able to be paid counsel fees in the Sheriff Appeal Court, even where sanction for counsel is granted; and that solicitors representing clients in the Sheriff Appeal Court should be paid the same fee that junior counsel are currently paid for that work in the High Court. Counsel predominantly provide representation in judicial review cases funded by legal aid. The Faculty of Advocates has expressed no concerns in relation to the fees being made available for this work. Solicitor advocates may only charge counsel fees where they are using extended rights of audience, which they will not be doing in the Sheriff Appeal Court. The Scottish Government will consider this point in its discussions with both the Law Society and the Faculty on a range of issues affecting solicitor advocates and counsel. The most flexible of the existing solicitor fee structures is being made available for Sheriff Appeal Court work, namely detailed fees. This flexibility accommodates any uncertainty in the types and amount of work that may arise from new procedures, by providing remuneration in line with the work actually and reasonably undertaken by the solicitor. Counsel fee rates will be paid for Sheriff Appeal Court work only to counsel, where sanction has been given to instruct them. Competition Assessment In our view, having applied the Competition and Markets Authority competition filter, the proposal will not impact on competition within the legal aid market. These Regulations do not directly or indirectly limit the number or range of suppliers, limit the ability of suppliers to compete, or reduce suppliers incentives to compete vigorously. Test run of business forms There should be no requirement for new forms. All legal aid applications are currently submitted online through SLAB s Legal Aid Online system. Legal Aid Impact Test SLAB estimates that applying the existing legal aid framework in this way to the provisions of the 2014 Act being implemented in September 2015 will save the Legal Aid Fund around 1.4 million per year.

6 Enforcement, sanctions and monitoring The amendments made to the provision of publicly-funded legal assistance do not create any new enforcement or monitoring mechanisms. SLAB will monitor the implications of these measures and has responsibility for administering the Legal Aid Fund. Implementation and delivery plan These Regulations will come into force on 22 September Post-implementation review The Scottish Government and SLAB will review the impact of this legislation within 10 years through consideration of analysis of data which is collected routinely by SLAB. Summary and recommendation It is recommended that regulations be made as set out in Option 2. This will allow provisions in the 2014 Act to be implemented as intended. It will also allow solicitors and counsel to be paid for the work they do. Summary costs and benefits table Option Total benefit per annum: - economic, environmental, social 1 Scottish Ministers Scottish Legal Aid Board Solicitors Total cost per annum: - economic, environmental, social - policy and administrative Scottish Ministers Scottish Ministers would not fulfil their ECHR obligations by failing to make fee provision for Sheriff Appeal Court proceedings and failing to make ABWOR appropriately available. Scottish Legal Aid Board Ambiguity in regulations could lead to a higher number of taxations of accounts. Solicitors There would be no fee provision for Sheriff Appeal Court proceedings. Ambiguity in regulations could lead to a higher number of taxations of accounts. Block fees for proceedings before the all-scotland personal injury court might not give appropriate remuneration under the new procedures.

7 Solicitor advocates Counsel Counsel could be employed for work in the Sheriff Appeal Court without prior sanction from SLAB. Clients 2 Scottish Ministers Saving of around 1.4 million per year. Compliance with ECHR. Scottish Legal Aid Board Clarity in how the legal aid framework applies to the Sheriff Appeal Court, all- Scotland sheriff courts and new judicial review procedures. Solicitors Fees would be available for criminal work in the Sheriff Appeal Court. Fees reflective of new procedures in the all- Scotland personal injury court would be available. Solicitor advocates Clarity in how the legal aid framework applies to the Sheriff Appeal Court, all- Scotland sheriff courts and new judicial review procedures. Solicitors fees would be available for representation in the Sheriff Appeal Court. Counsel Clarity in how the legal aid framework applies to the Sheriff Appeal Court and new judicial review procedures. Solicitor advocates Fee provision for new judicial review procedures would be unclear. There would be no fee provision for Sheriff Appeal Court proceedings. Counsel Fee provision for new judicial review procedures and in the Sheriff Appeal Court would be unclear. Clients ABWOR would not be appropriately available and the availability of other legal assistance would be ambiguous. Scottish Ministers Scottish Legal Aid Board Solicitors Solicitor advocates Some reduction in income where providing representation in the Sheriff Appeal Court where previously a higher rate would have been payable for using extended rights of audience in the High Court. Counsel Prior approval by SLAB will be required for counsel to be employed in the Sheriff Appeal Court. Counsel would see reduced income from cases no longer requiring their representation.

8 Clients Publicly-funded legal assistance would be clearly available. Clients Declaration and publication I have read the Business and Regulatory Impact Assessment and I am satisfied that (a) it represents a fair and reasonable view of the expected costs, benefits and impact of the policy, and (b) that the benefits justify the costs. I am satisfied that business impact has been assessed with the support of businesses in Scotland. Signed: Date: Paul Wheelhouse Minister for Community Safety and Legal Affairs Scottish Government Contact point: Catriona Mackenzie Access to Justice Unit Civil Law and Legal System Division GW.15, St Andrew s House Regent Road Edinburgh EH1 3DG Tel:

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