The Scottish Government's revised legal aid regulations covering summary criminal appeals to the Sheriff Appeal Court will come into force after Holyrood's Justice Committee yesterday decided to make no recommendation on considering the proposals.
Ministers laid the instrument before the Parliament as an interim measure, after being defeated in the committee last month on proposals that would have severely restricted the fees paid to solicitors and solicitor advocates taking cases in the new court, which took over the hearing of summary appeals last month. The regulations continue the payments previously made for appeals to the High Court, pending a further review by the Government, including the rule that a solicitor will not require the permission of the Scottish Legal Aid Board before instructing counsel or a solicitor advocate.
As they were made under the negative procedure, they come into force unless voted down.
In a submission to the committee on the regulations, the Law Society of Scotland acknowledged the "considerable movement" made by the Government "to ensure equality of representation for the benefit of the public".
However it pointed out that it would still be "difficult for solicitors to act on behalf of legal aid clients without instructing advocates or solicitor advocates because of the low payment". Fee rates for solicitiors had not beem revised since 1992, and "Solicitors have reported to us that they are struggling to continue to undertake work for which these rates apply. We strongly believe that these fees are not appropriate for appeals work."
Following the committee hearing, Christine McLintock, the Sciety's President, commented: “We are pleased that the Scottish Government listened to the concerns we raised and have brought in transitional arrangements to allow the new Sheriff Appeal Court to get up and running. The interim regulations ensure that members of the public can continue to access legal support for summary appeal cases.
“We are also pleased that the interim regulations recognise the role of solicitor advocates, who will be able to provide the benefit of their experience and expertise in the new Sheriff Appeal Court as they did in the High Court.
“However, solicitors will have difficulty in conducting the appeals themselves because of low payment. The fee rates available for this work were fixed in 1992. In a little over a year, the fee rates will have been frozen for a quarter of a century. It is a matter of concern that rates of remuneration have not been kept under review by the Government and have reduced in real terms."
She added: "We will participate fully in the review process to ensure that in the longer term the Sheriff Appeal Court can operate effectively and efficiently and that full consideration can be given to the rates for solicitors to enable them to undertake appeal work directly as was intended by the reforms.”