Equalities, Human Rights and Civil Justice Committee [Draft]

Meeting date: Tuesday, October 3, 2023

Official Report 597KB pdf

---

Subordinate Legislation

---

Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No 4) Regulations 2023 [Draft]

Agenda item 2 is consideration of an affirmative instrument. For this item, I welcome to the meeting Siobhian Brown, Minister for Victims and Community Safety, and her officials: Shona Urquhart, legal aid policy lead, and Martin Brown, solicitor, legal directorate, Scottish Government. Thank you for joining us this morning—you are all very welcome.

I refer members to paper 1 and invite the minister to say a few words about the instrument.

Good morning, convener, and good morning, committee. Thank you for the opportunity to speak to the committee about the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No 4) Regulations 2023.

The instrument has been brought forward to deliver changes to existing legal aid regulations, primarily to ensure continuing access to justice in Scotland. It makes provision to ensure that legal advice and assistance will be available to persons arrested under section 27 of the National Security Act 2023. Schedule 6 of that act will, if commenced, create a procedural framework for the arrest of persons reasonably suspected to be involved in “foreign power threat activity”.

Current provision for legal advice and assistance does not cover all the circumstances of detention for such activity, and the regulations will make further provision to ensure that an appropriate regime is in place so that advice and assistance by way of representation can be provided to persons arrested under these provisions in the 2023 act. Without additional provision, there is a risk of persons arrested under the 2023 act being unable to access legal advice, assistance or representation. Similar provision is already in place for those detained under anti-terrorism legislation.

The instrument will also make provision for any carer support payment to be disregarded by the Scottish Legal Aid Board when assessing a person’s financial eligibility for civil legal aid, or children’s legal assistance, and for such payments to be excluded from the recovery where a person has a liability to the Scottish legal aid fund as a result of civil legal aid proceedings. Carer support payment is intended to improve outcomes for unpaid carers by providing financial assistance to those providing regular and substantial care to someone in receipt of a qualifying disability benefit.

Finally, the instrument makes minor amendments and corrections to regulations relating to counsel fees in respect of civil and criminal legal aid.

Convener, that was a brief overview of the regulations and their context. I am happy to answer questions.

Thank you very much for that, minister.

I see that colleagues have no questions or comments, but I have one question that I would like to ask. The instrument makes provision for carer support payments to be disregarded. Is it your expectation that they will always be disregarded by the Scottish Legal Aid Board?

I will bring in Martin Brown to answer that question.

My understanding is that that would be the expectation. It is a policy question, but I expect that that will be done. The way in which we have disregarded these payments mirrors the way in which other payments have been disregarded to ensure that they are not counted for eligibility.

And there will be communication and clear information available to people to ensure that they know about this.

I think that that would be a question for the Scottish Legal Aid Board.

It is expected that those who qualify for this payment would always be eligible for legal aid. It means that, from the administration side of things, the Scottish Legal Aid Board can simply disregard it—it does not have to include it. However, people who receive the payment would qualify anyway.

Thank you—that was helpful.

I should let folk know that Fulton MacGregor has joined us online, as he has been unable to get here because of train issues.

As there are no other questions, I thank the minister very much for her evidence, and we will move straight on to item 3, which is formal consideration of the motion. I ask the minister to move motion S6M-10545.

Motion moved,

That the Equalities, Human Rights and Civil Justice Committee recommends that the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 4) Regulations 2023 [draft] be approved.—[Siobhian Brown]

Motion agreed to.

I now invite the committee to agree to delegate to me the publication of a short factual report on our deliberations on the affirmative Scottish statutory instrument that we have just considered. Are we agreed?

Members indicated agreement.

That completes consideration of the affirmative instrument, and I thank the minister and her officials for joining us.

There will be a short suspension while witnesses change over.

09:51 Meeting suspended.  

09:53 On resuming—