Ministers back down over Sheriff Appeal Court legal aid – for time being

The Scottish Government has backed down – temporarily – over its proposed legal aid fee levels for solicitors acting in summary criminal appeals before the new Sheriff Appeal Court.

Legal Affairs Minister Paul Wheelhouse has withdrawn the draft regulations that provided only for 1992 fee levels for solicitors appearing by themselves, and no enhanced rates for solicitor advocates, and has instead laid a negative instrument – one that comes into force unless voted down in the Parliament – that will continue meantime the fee levels that apply to cases heard in the High Court.

They also mean that solicitors will not require the prior approval of the Scottish Legal Aid Board if they wish to instruct counsel, or a solicitor advocate, to argue an appeal.

Earlier this week Holyrood's Justice Committee refused to approve the draft regulations, which had prompted several local faculties of solicitors around Scotland to announce that they would refuse to act in such appeals. This threatened the operation of the new court, which will begin sitting this coming Tuesday, 22 September.

Ministers intend the replacement regulations to operate for an interim period of six months while further discussions take place over a new fee structure.

In a letter to Justice Committee convener Christine Grahame, Mr Wheelhouse said it was “disappointing that solicitors have indicated that they are not willing to support the work of the new court and to guarantee representation for their clients”.

With the substitute regulations, “no legal representative should be worse off than under the current High Court arrangements during this transition period. It will allow time for us to discuss the fee structure further with the profession”.

He added that the regulations addressed the concerns of the Law Society of Scotland on equality of representation and allowed legally aided clients to have access to counsel if their solicitor considered this appropriate.

“The new regulations will also allow solicitor advocates to receive the junior counsel fee where they are acting as counsel in a summary criminal appeal in the Sheriff Appeal Court. This is in recognition of the concerns raised by the committee and the Law Society on the position of solicitor advocates under the new arrangements for the court."

He intended to use the coming months to work with the profession to “seek a basis for a sustainable and appropriate fee structure in support of the new Sheriff Appeal Court and the interests of those appearing before the court”.

Welcoming the move, Christine McLintock, President of the Law Society of Scotland, commented: “We are very pleased that the Scottish Government has listened to the concerns we raised and has brought forward a new set of regulations before the opening of the new Sheriff Appeal Court next week.

“We are also pleased that the role of solicitor advocates has been recognised and under the new regulations brought forward, solicitor advocates will be able to provide the benefit of their experience and expertise in the new Sheriff Appeal Court as they do currently in the High Court."

She added: “We are very supportive of the current court reforms overall. We will continue to work with the Scottish Government and 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 – without the need to appoint an advocate or solicitor advocate – when this is appropriate and as was intended by the reforms.”