Contents
- Attendance
- Subordinate Legislation
- Children (Scotland) Bill: Stage 2
Subordinate Legislation
Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 [Draft]
Good morning and welcome to the 16th meeting in 2020 of the Justice Committee.
Item 1 is consideration of a draft affirmative instrument. I welcome Ash Denham, Minister for Community Safety, and her officials from the Scottish Government: Kieran Burke, bill team leader on access to justice; and Martin Brown, solicitor in the legal directorate.
I refer members to paper 1, which is a note by the clerk. I invite the minister to make a short opening statement.
Good morning and thank you, convener. The regulations will introduce temporary amendments to existing legal aid legislation to help to support legal aid providers during the coronavirus pandemic.
I am sure that committee members are aware of the important role of legal aid providers in supporting their clients and the Scottish justice system, and of the Scottish Government’s stated aim of finding ways to support cash flow for legal aid lawyers. The Coronavirus (Scotland) Act 2020 therefore included in primary legislation changes to the Legal Aid (Scotland) Act 1986 to extend so-called interim fee arrangements to facilitate cash flow for legal aid providers. It was right that, with uncertainty as to when cases could conclude, payment should be accessed for services that had been provided to date.
Residual barriers exist in secondary legislation that prevent payment of interim fees for aspects of legally aided work, and the regulations will remove those barriers. Regulation 2 will do so for work in respect of civil legal aid at the sheriff court and regulation 3 will do so for criminal legal aid work undertaken by advocates.
Regulation 4 will enable payment of interim fees in advice and assistance matters, despite there being a possibility that property may be recovered or preserved, or expenses obtained. In such cases, there is normally recourse to the legal aid fund only if payment for the legal services provided cannot be met through those other means. The change will align advice and assistance matters with other aid types in terms of arrangements for accessing interim fees. To safeguard the legal aid fund, there are recovery provisions. In the event that, ultimately, property is recovered or preserved or expenses are obtained, there will be repayment to the fund to reflect the moneys that it would not otherwise have made available. My officials have worked closely with the Scottish Legal Aid Board. It is understood that involved system development is required to give effect to that change, so a later coming-into-force date of 5 August 2020 is set.
Given the expectations to adhere to social distancing arrangements and travel restrictions, not to mention self-isolation, provisions have been developed to facilitate greater delegation by solicitors. The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 prohibit delegation to a duty solicitor by a nominated solicitor, although the services of another solicitor may be sought if a personal appearance cannot be given effect under certain circumstances. Regulation 7 will extend that provision to all solicitors, including duty solicitors, during the emergency period. In the interests of the health of individual solicitors and wider public health, it is appropriate to facilitate such delegation, where necessary.
Regulation 5 makes provision for payment of a full fee in the event that a duty solicitor is instructed, when otherwise a half fee would have been payable, in cases where a duty solicitor makes an initial plea of not guilty on the instruction of another solicitor, and that solicitor later tenders a plea of guilty prior to trial. During the emergency period, a solicitor with a pre-existing solicitor-client relationship will receive the full fee, even when they do not make the initial plea on their client’s behalf in person.
Finally, the regulations will enable non-means tested assistance by way of representation to be made available to individuals, with a right of appeal to a sheriff where special requirements or restrictions have been imposed as a consequence of coronavirus legislation. That will help facilitate access to justice and align with the policy of non-means tested ABWOR being available in other areas where civil liberties are subject to restriction, such as detention under mental health law. ABWOR is solicitor granted, without determination by the Scottish Legal Aid Board.
I hope that that has been a useful overview for the committee.
Thank you, minister. Do members have any questions or comments?
That was indeed useful, minister.
This Scottish statutory instrument temporarily amends the existing legal aid regulations. As I read it, the intention is that the regulations will expire in line with the Coronavirus (Scotland) Act 2020.
Looking through the regulations, I see that each regulation has a definition of the emergency period, with one exception at regulation 6. I suspect I know why that is, but, to relax me, will you explain why regulation 6 does not have an expiry date but every other regulation does?
The member is quite right. The regulations expire in accordance with the 2020 act, and, as I have already explained, in most of the regulations, the emergency period starts from 1 July, but in one regulation it begins from 5 August. One of my officials will give a fuller explanation.
The regulation in question provides for an appeal where there are measures taken under the United Kingdom’s Coronavirus Act 2020. When that act expires, the provisions will no longer be required, so there is no need to make them available for only a certain time.
Does that answer Liam Kerr’s question?
Possibly—I think that I know the answer. If I understand Martin Brown correctly, he is saying that it is that, perhaps unlike for the other regulations, there is a natural expiry date for that regulation by virtue of the matters that it deals with. I ask him to confirm that that is what he is saying and that there is no need for a bespoke expiry date because, by definition, there will be a natural expiry date by virtue of there being a finite point, with measures under the Coronavirus Act 2020 no longer hanging over.
Exactly. The regulation will be in effect only for the period during which the UK act has effect. The measures for which it will provide legal aid will be possible only while that act has effect. Therefore, on the expiry of the UK act, the regulation will no longer be required. It has, in effect, a natural expiry date. If that is what you are saying, you are correct.
I think that we have resolved that one.
As no other member has asked to speak, we move to agenda item 2, which is formal consideration of the motion on the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has no comments on it. The motion will be moved with an opportunity for formal debate, if necessary. I ask the minister to move motion S5M-21964.
Motion moved,
That the Justice Committee recommends that the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 [draft] be approved.—[Ash Denham]
Members have no questions or comments.
Do members agree to the motion? I see that we are all agreed.
Motion agreed to.
Is the committee content to delegate to me the publication of a short, factual report on our deliberations? I see that members are content. Thank you.
Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2020 (SSI 2020/175)
Agenda item 3 is consideration of SSI 2020/175, which is subject to the negative procedure. I refer members to paper 2, which is a note by the clerk. Do members wish to make any comments on the instrument? No member has indicated that they have comments to make.
Are members content for the committee not to make any comments to the Parliament on the instrument? I see that members are content.
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