Seòmar agus comataidhean

Good morning, minister and colleagues. I have a couple of quick questions. I appreciate that the SSI before us specifically concerns the payment of legal aid fees and the consequences of the pilot for that, but I want ask to ask about the pilot in a wider sense.

Would it be fair to say that the purpose of the pilot, or one of its potential outcomes, is to reduce the number of cases that proceed to a trial diet? What might be the benefits or consequences of that? I ask because it appears that it might encourage lawyers to sit in a smoke-filled room and do deals together rather than proceed cases to trial. Might we see an increase in the number of deals done in private meetings? There is already a feeling that there is a lack of transparency around what is discussed in those meetings and the outcomes that are delivered from them. The committee has heard numerous concerns from victims and victims’ organisations about the consequences of not being kept in the loop on such deals. What are the Government’s thoughts about the pilots and how they will be received?

Thank you. It answers it, partially. I can read between the lines of what you said about the current arrangement and why it may not necessarily benefit both parties to resolve cases in the way that is being suggested, rather than in the traditional fashion, but it still raises a flag about who it benefits most. You said that it benefits the accused, but surely we should not make any changes to the system that benefit anyone in particular; the system should be fair and transparent as appropriate. What are the parameters for the types of case that it would be appropriate to deal with in that way? If we move in that direction, would certain types of case be excluded, and who would make decisions on whether a case would be resolved in that more informal setting?

The policy notes state that

“No public consultation was carried out due to the technical nature of the proposed regulations,”

but I would say that this is not just a technical move but quite a substantial shift in how we try and clear the backlog of cases by dealing with them in a more efficient but, perhaps, less public way. Could you comment on that?

That is helpful.

I echo that comment. The EBA’s letter was received only lately, so it might not necessarily be widely available in the public domain. Nonetheless, it is relevant, because it clearly suggests that the dispute is still on-going.

A number of members have asked questions both in committee and in the chamber of the Minister for Community Safety, who is responsible for the relevant portfolio, about the dispute around legal aid. The letter that the committee received from the EBA yesterday clearly shows that the matter is far from resolved—indeed, quite the opposite.

It is not necessarily that there is disagreement just on the numbers or on the quantity of money being offered by the Government. There is clearly disagreement on the facts, and the historical journey that both parties have been on to get to where they currently are.

From my own neutral standpoint, I am struggling with this. What are the facts, and who is right in this instance? Both parties cannot be right, given the vocal and vehement disagreement between them. Perhaps the Scottish Parliament information centre or other colleagues can provide us with a timeline that outlines the exact journey that the parties have been on, including the assignment of a budget to legal aid; any changes that were made; and any additional funds that were made available by the Government and how those were received. That will enable us to see how we have got to where we are today.

Two parallel conversations are happening. Those in the sector, and therefore on the front line, are clearly in huge disagreement with the Government, to the point of stating yesterday in the EBA letter that the minister was being less than forthcoming with the facts. The minister herself has a robust point of view, which she feels is an appropriate response.

We should get that information before we hear anything further on the matter. We will simply get into a tit-for-tat situation if we keep writing back and forth between the parties; we are not a mediator in the situation, and it is not our job to solve the problem. However, I am coming to feel that criminal lawyers are clearly at their wits’ end with the matter. They are warning of all sorts of things down the line, which I think should be of concern to the committee, but equally the Government seems to be quite robust in its defence.

I am struggling to get to the nub of the problem. What are the numbers? What was promised and not delivered? What was overdelivered but not promised?

That is my only comment—I am not taking either side in the dispute.

I apologise, convener—I do not want to prolong the debate on this too much. However, I should say that the budget scrutiny point is a valid one, albeit there are limitations on our involvement, in that we can identify only what the Government has to offer; whether or not that is received well is out of our control. Aside from that, though, there is the other issue of headcount and resource in the sector. Given the other work that the committee is doing, what is more important to us in yesterday’s letter from the Edinburgh Bar Association is the paragraph that reads:

“The Scottish Government is presently consulting on proposals to give complainers in sexual offence cases the right to legally aided independent legal representation in their case. Who does the SG propose represent them?”

The association is warning of a delta between the number of people coming forward with cases and the number of people available to represent them or to offer them independent advice. As we already know, the lack of representation has been an issue throughout the country for a while not just because of the backlog but, clearly, because of a lack of resource. We do not want people going through the justice system on either side—accused or complainers—to face unnecessary delays to cases or trials or to have no access to representation.

It is a different issue, but we need to keep a watchful eye on it. If the warnings come to fruition, we could be facing a substantial crisis in the sector during this session of the Parliament, and it would have a knock-on effect on clearing the backlog and for people who are being held on remand, waiting for their day in court. We know all about the consequences of such delays on folk. I just wonder how we can work the issue into our workload to ensure that it does not creep up on us in a year or two.

This is perhaps a slighter wider issue, but I think that purposeful activity among the remand population is still an unaddressed issue. I appreciate that that was not the subject of the question that we asked so it is not covered in the answer, but I am not 100 per cent convinced that enough is being done in that respect.

I appreciate that there are legal ramifications in that regard, and perhaps statutory duties that apply, but nonetheless I would like to think that the SPS is actively looking, even within the confines of what the law states, at what people’s rights are, and at what it can and cannot force people to do. I would like to think that it would go above and beyond in that respect. The statistics that came out yesterday point to a dire situation with people being held on remand for lengthy periods due to court delays, so I would like to think that more than just the bare minimum is being done. I wonder whether we could ask for more information about that.

May I make a suggestion, convener?

If the responsibility for healthcare before, during and after someone is in the custody of the SPS is not its responsibility at any point during that journey, asking the SPS more questions about it will probably elicit very little. It may be more helpful for us to write the health secretary, who is responsible for the NHS.

Each health board will be responsible for the institutions in its area. From a nationwide point of view, however, it is evident that, although people have access to certain levels of care and treatment—especially around addiction, mental health and so on—while they are in custody, there is a disparity of services when they leave custody, especially if they were held somewhere that was not in their home health board area, meaning that they were, if you like, a visitor there. There are issues with data and records moving around. The system is not as seamless as some people might like us to think it is. However, those are not only justice questions; they are ultimately health questions because the NHS is responsible for folk in custody.

That seamlessness, which we are not seeing, is part of the throughcare conversation that we have been having, as we saw at first hand on our committee visit to the Wise Group. It is important for keeping people on the straight and narrow, which it is easy to do in a managed environment and less easy to do it out in the real world. Those are questions that perhaps only the Cabinet Secretary for Health and Social Care could answer.

I found the letter to be very helpful—it certainly speaks to my personal lack of understanding of the status quo. Who is placed where and why can often be confusing or confused, and the letter was eye-opening. Clearly, there are enough beds in Scotland—there are 78 of them. The letter provides a snapshot of use. At that time, only 39 were being used. Interestingly, of those, the majority were there on care and protection grounds and only one was sentenced. That is important, because it is the responsibility of local authorities to fund those who are placed through care and protection and it is the responsibility of the Scottish Government to fund those who come through the justice system. I do not know what the numbers are today but, at that time, in January 2022, only one young person was in secure care, having been sentenced.

Those of us who have less experience of the system than others could maybe do with some help in understanding, especially in the context of the children’s care and justice legislation that was announced yesterday. On what grounds would someone be placed in secure care, in a young offenders institution or in an adult prison? Clearly, there is crossover. Clearly, there are also people in the wrong place at the wrong time. However, that does not seem to make sense, given that we know that secure care is available. I have a lack of understanding of that flow chart and journey.

As we will be looking at the new legislation, it would be helpful to understand the landscape, so that we know what the right path is for people and what the Government wants to do next, if changes are to be made. Clearly, the Government is getting some flack about young people being seen to be in the wrong institution, yet we are hearing that there is plenty availability—so much so that we are shipping people up from south of the border, presumably because that is being funded by others. I would like more understanding of that.

I am also interested in the short-term model that is mentioned in the letter—a six-month trial will start this month. I do not really understand it, although I see what it does. The letter says:

“the Scottish Government has agreed to pay for the last bed in each of the four contracted secure centres, as it becomes available.”

I am not 100 per cent sure what that means.

Perhaps we could have an offline session so that we could have someone explain to us what happens. They could explain the difference between someone who is in protective care and someone who has gone through the justice system, having committed some form of offence. They could also tell us what options are available to people who interact with the criminal justice system during childhood. I do not know whether that falls within the remit of the committee, but the letter has raised a bunch of questions for me.

That is a useful idea. It is always more powerful to hear from people who have been through the journey than people who turn up with briefcases and suits and tell us how wonderful everything is.

It might also be helpful to keep the Parliament’s Health, Social Care and Sport Committee abreast of what we are doing in this space or, indeed, invite it to participate somehow by writing to the convener and copying it into the correspondence that we send on the matter.