Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 1999 (SSI 1999/48)
The next item on the agenda is the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 1999 (SSI 1999/48). If members have read their papers assiduously, they will realise that there is an issue in connection with this Scottish statutory instrument which has been highlighted by the Subordinate Legislation Committee. Members will have seen a submission from the Law Society of Scotland to that committee.
The SSI raises a serious question for the committee. The main point of concern is the definition of when a trial starts. The definition that has been included in this SSI is that a trial starts from the swearing of the first witness. However, there is a possibility of trials taking place where witnesses are not sworn. That does not happen frequently, but it happens. Some trials can last for a day or two before witnesses are sworn. As the Subordinate Legislation Committee rightly pointed out to the Executive, there could be an argument that this SSI was not drawn competently. We need to consider that.
I have to declare an interest, not so much on what you have just been speaking about, but on the provisions about Wick sheriff court. My husband represents in the Law Society of Scotland a lot of solicitors who practise in that court.
Does anybody else want to declare an interest related to criminal legal aid?
The Subordinate Legislation Committee wrote a carefully drafted note to the Executive and there has been an Executive response. I am bound to say that I do not think that the response is entirely satisfactory because it brushes the issue off by saying that the regulations do not affect many people. I am concerned about that: if they do not affect very many people, why can they not be fixed? That would deal with what seems a small but unintended negative consequence for solicitors, who may conduct a trial that lasts for considerably longer than half an hour but in which the first witness is not sworn. I know that this is not a huge point, but for small legal firms it could have an unfortunate and considerable financial consequence.
There are one or two issues about how we proceed with this matter. Under standing orders, we can lodge a motion seeking to have the instrument annulled. If we take no action, on a certain date—in this case, 4 November—the instrument will pass into law. We would need to attempt actively to have it annulled. If we choose to go down that road, we must have a debate at a meeting of the committee about this specific matter, which
"shall last no more than 90 minutes"—
although it could last less than 90 minutes.
Depending on the outcome of that debate, at the end of which we would take a vote, we may report to the Parliament, setting out our recommendations and taking into account any recommendations made by any other committee—in this case, it would include the Subordinate Legislation Committee. All that must be done no later than 40 days after the instrument is laid, which ties us to the next meeting of the Justice and Home Affairs Committee on 26 October. Depending on the outcome of that meeting, the Parliamentary Bureau would need to consider the committee's response.
I am not entirely clear about the procedure. Standing orders state:
"If the lead committee makes a recommendation as mentioned in paragraph 1"—
that is, that we recommend that it be annulled—
"the Parliamentary Bureau shall, no later than 40 days after the instrument is laid, by motion propose that nothing further is to be done under the instrument. Only the member moving the motion and the member of the Scottish Executive or junior Scottish Minister in charge of the instrument may speak in any debate on such a motion. Each such person may speak for no more than 3 minutes."
So the motion to annul could conceivably come before the full Parliament for an extremely brief exchange in the chamber. However, it appears to me that, if we decide that this instrument should be annulled, the bureau must accept that.
That is a big step for this committee to take. There are two ways in which to consider this issue. One is that it is a minor matter that, in the long run, may not be hugely important. We could simply note the comments of the Subordinate Legislation Committee, note the Scottish Executive's response and choose to do nothing about it. The other side of the argument is that, as the lead committee, we should not knowingly allow an instrument to go through that we perceive to be defective and flawed, regardless of the Executive's response.
While that has consequences for the committee's business, I, as convener, would be extremely uncomfortable, having had the matter drawn to our attention, simply to turn a blind eye to it. I would appreciate members' views on this matter. Gordon Jackson has specifically requested that I associate him with my concerns about this motion. Should the committee choose to take more drastic action, he will support that decision.
I am not closely associated with the legal system, but you are right, Roseanna; the matter has been drawn to our attention and it would be remiss of us knowingly merely to note it and say that it will not affect many people. In light of the papers that were laid before us, I do not think that we have any option, albeit we have other competing business, but to debate it as has been suggested.
I support that view. We are already amending a flawed regulation from 1999; it would be a bad step to make an amendment that is also flawed. It is a great error to have a distinction between when a trial starts in common law and when a trial starts for purposes of criminal legal aid. I am not a criminal practitioner and have no interest in the criminal legal aid system, but I know from observing it that a person can come and tender a plea before the court and the diet for the trial does not start until hours and hours afterwards. That is through no fault of the practitioner, witnesses or anybody else; it happens because the criminal justice system is so overcrowded. This would be a great injustice to parties who are present and there would be injustices to small firms. Our only remedy is to go through the route that you have explained. Tough: we must do that because this is bad legislation.
I associate myself with other members' comments. Having had this matter drawn to our attention, there is no alternative but to proceed as you suggest.
I go along with Christine's comments. The last thing this committee and the Parliament should do is accept flawed legislation. You have identified a flaw that must be rectified, and the action that you propose is right.
I associate myself with others' comments. Am I the only person here who has sat on the bench?
Yes.
At the lower end of the court system, in the district court, there is a considerable amount of legal aid work. I have seen the volume of work. I know how busy it can be. There can be hours between arrival and being called.
Waiting time is not the issue here.
I appreciate that, but the amount of time that can pass between when trials start and when the oath is taken is quite different.
That is different from waiting for a trial to start.
On top of that is time spent waiting after the trial starts, so the waiting can be considerable. Having had this pointed out to us, I do not think that we ought to perpetuate it.
As an observer, I have sat through five days and two adjournments before the first witness was called. Although not a practitioner, I have seen what would have been the consequence of this flaw. This must go back as it is bad legislation and it would be remiss of us not to take the steps that have been proposed.
Can I take it that the view of the committee is that we make the relevant motion? It must be in an individual MSP's name [Interruption.] It is being suggested to me that we should simply decide at this stage to have a debate on this and we will sort the motion out. Are we certain that that is the correct procedure? I do not want to get us in a procedural wrangle on a matter of this nature. I am looking at rule 10.4 of standing orders, for people who are interested in these matters, because that is the rule that covers motions for annulment, which is what we are considering.
Part 1 states:
"In the case of any instrument which is subject to annulment"—
which is this case—
"in pursuance of a resolution of the Parliament, any member (whether or not a member of the lead committee ) may, not later than 40 days after the instrument is laid, by motion propose to the lead committee that the committee recommend that nothing further is to be done under the instrument."
We can timetable the motion for debate at the next committee meeting. The motion will be read out at the start of the debate—that will kick the debate off. We will have to advise the Executive that we are pursuing this route as the Executive will need to have the opportunity to come to the meeting. Indeed, the Executive may wish to make representations. Is everybody happy with that?
Members indicated agreement.