Scottish Government back down over Sheriff Appeal Court legal aid rates

Government ministers have backed down over proposed changes to legal aid rates for solicitors appearing before the new Sheriff Appeal Court.

Legal Affairs minister Paul Wheelhouse has withdrawn draft legal aid regulations that solicitors had argued would make taking on summary criminal appeals “uneconomical”.

Instead, solicitors, solicitor advocates and counsel will now all be paid the same fees for summary criminal appeals in the Sheriff Appeal Court as they are paid under existing arrangements in the High Court.

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The u-turn comes after MSPs on the Scottish Parliament’s Justice Committee earlier this week refused to endorse the changes being put forward by government.

Solicitors had also declared their intention to boycott the new court, which will sit for the first time next week, saying that defence solicitors arguing appeals would be expected to work at a fee rate first introduced in 1992.

In a letter to Justice Committee convener Christine Grahame, Wheelhouse said it is “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”.

The government minister has now withdrawn the Legal Aid and Advice And Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 and instead laid what is known as a negative instrument.

“This will make provision to ensure suitable legal aid arrangements are in place for the Sheriff Appeal Court’s opening on Tuesday but will allow more time for engagement on the issues involved,” he writes.

“Having noted very carefully and acknowledging the concerns that the Committee raised during the debate about sanction for counsel and solicitor advocates, these new regulations will allow solicitors, solicitor advocates and counsel all to be paid the same fees for summary criminal appeals in the Sheriff Appeal Court as they are currently paid for these cases in the High Court.

“Therefore 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.”

These new regulations will not require the prior approval of the Scottish Legal Aid Board if a solicitor wishes to instruct council to take an appeal, writes Wheelhouse.

“This addresses the concerns of the Law Society of Scotland on equality of representation and allows legally aided clients to have access to Counsel if their solicitor considers this appropriate,” he added.

“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.

“Together, these arrangements aim to allow the court to start its important work, provide assurance on access to justice and equality of arms and has the additional effect of ensuring that legal professionals are not worse off compared with the current arrangements.”

The government minister said he will 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”.