Subordinate Legislation
Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011 (Draft)
Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 2) Regulations 2011 (Draft)
Debt Arrangement Scheme (Interest, Fees, Penalties and Other Charges) (Scotland) Regulations 2011 (Draft)
We move on to item 4. I apologise to the Minister for Community Safety and his team for the delay in starting the item—I know that they have waited for some time.
The committee will consider three draft affirmative instruments. The relevant cover notes are papers 5 to 7. Item 4 provides the opportunity to take evidence from the minister and his officials on the instruments, before we formally debate the motions to recommend their approval under item 5. The Subordinate Legislation Committee drew none of the instruments to the attention of the Parliament or the committee.
I welcome the minister, who is accompanied from the Scottish Government by James How, head of the access to justice team, and Fraser Gough and Graham Fisher, from the directorate for legal services; and from the Accountant in Bankruptcy by Sharon Bell, head of the policy development team, and Claire Keggie, head of policy and compliance.
First, we will consider the draft Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011. I invite the minister to make a short opening statement, after which committee members can ask questions.
I am happy to appear in a combined panel of myself and officials.
The regulations will uprate the financial eligibility limits and contribution thresholds for advice and assistance and for civil legal aid. The annual uprate is calculated according to figures that the Department for Work and Pensions supplies, which are based on the consumer prices index. The CPI, which is currently 3.1 per cent, is the headline measure of inflation in the UK, as well as the target measure that the Bank of England uses, and it is internationally recognised.
Demand from those who seek financial help towards court costs for civil actions has risen sharply because of the economic downturn. Against that background, and to preserve access to justice, it is important to uprate the figures to reflect inflation.
Regulation 8 disapplies the financial eligibility test for advice and assistance when a suspect is detained for police questioning, which is done by means of the new power that the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 inserted into the Legal Aid (Scotland) Act 1986. Members will be aware that the 2010 act was introduced in response to the Supreme Court ruling in Cadder v Her Majesty’s Advocate.
Disapplying the financial eligibility test will make it easier for advice to be provided to suspects in some circumstances. It will enable solicitors from the Public Defence Solicitors Office to provide advice and assistance to suspects, which broadens the range of solicitors who can be included in any future police station duty scheme. At present, the PDSO can provide advice and assistance only to those who are eligible for legal assistance. The provision will also provide certainty about the method of payment for those who are in private practice. We have consulted the Law Society of Scotland, the Scottish Legal Aid Board, the Crown Office and Procurator Fiscal Service and the Association of Chief Police Officers in Scotland on regulation 8.
As a result of the regulations, 6.2 per cent of suspects who would not previously have been eligible for advice and assistance will become eligible. However, the newly eligible will still have to pay contributions towards the cost of their advice and assistance and will be likely to contribute the maximum amount. Given that, the measure is estimated to be largely cost neutral.
12:00
Good morning, minister. Can I say how pleased I am to see such things in front of us? It would be easy for a Government to allow creep on these things and for inflation to reduce access to justice. That would be a big temptation and I am pleased that you are not succumbing to it. I am also pleased to note that regulation 8 introduces something that we brought forward as a result of Cadder, which we discussed earlier. I was not sure what had happened to that, but the regulations answer the question.
At the risk of opening up a previous discussion, can I ask what has happened in the meantime? Have there been any cases where the PDSO has had to knock back people in these circumstances? Have any problems arisen? Such concerns were one reason for the speed of the legislation, one imagines.
James How is going to help us out.
James How (Scottish Government Directorate for Justice)
The PDSO has regularly been involved in providing advice and assistance since June last year, first under the Lord Advocate’s guidelines and then under the new legislation, but it is not allowed by statute to provide advice to people who are not eligible for advice and assistance, so there will have been cases where it has been unable to do that and people in private practice will have had to do it. The number of such cases will be small, because the Scottish Legal Aid Board estimates that only 6 per cent of suspects in police stations are not eligible. Taking forward the measure will assist us when we come to put together a police station duty scheme, which is what SLAB and the Law Society are negotiating as a long-term solution to the interim arrangements.
I was not challenging that. I was asking whether there have been cases where people have been knocked back. I suppose that what I have at the back of my mind is whether there is scope for people to protest these matters in legal challenges of any kind.
In terms of the interim measures?
Yes.
My understanding is that they have been working well and that the legislation has been complied with since it and the Lord Advocate’s guidelines came into force. As I said, the regulations will move us towards a police station duty scheme. ACPOS will probably have the latest figures, and I think that you agreed to invite it to the committee next week.
As there are no further questions, we move on to the second instrument, which is the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 2) Regulations 2011. I invite the minister to make a short statement, which will be followed by questions from committee members.
Thank you, convener. These draft amendment regulations will enable assistance by way of representation, which is commonly termed ABWOR, to be made available in relation to disability discrimination in schools cases that appear before the Additional Support Needs Tribunals for Scotland.
The UK Equality Act 2010 will move disability discrimination in schools cases from the sheriff court to the ASNTS. That will take place on 18 March. Currently, civil legal aid is available for those cases. The Government has concluded generally that ABWOR is the most appropriate aid type for proceedings before tribunals, which are generally designed to be informal in nature. The priority going forward will be to maintain a reasonable level of access to legal assistance for such cases. The Scottish Legal Aid Board and the Law Society of Scotland have been consulted on the regulations and relevant stakeholders have been informed. There are only a few such cases per year, so there are not expected to be any significant cost implications.
The regulations take the opportunity to remove paragraphs that provide that ABWOR could only be provided under regulation 6A(1) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 by an assisted person’s appointed solicitor, as defined by regulation 6A(1)(e). Provision to similar effect is to be made in a separate set of regulations that will cover duty arrangements in a comprehensive manner. Those separate regulations, which will ensure continuity, will come into force at the same time as regulation 2(3) of these regulations.
As there are no questions, we will move to the third instrument, which is the draft Debt Arrangement Scheme (Interest, Fees, Penalties and Other Charges) (Scotland) Regulations 2011. I invite the minister to make a short opening statement, which will be followed by questions from members.
Thanks again, convener. These are technical regulations that replace the provisions in the Debt Arrangement Scheme (Scotland) Amendment Regulations 2007. The regulations are made under powers in section 7A of the Debt Arrangement and Attachment (Scotland) Act 2002, which were inserted into that act by the Bankruptcy and Diligence etc (Scotland) Act 2007.
These technical regulations provide that any debt included in a debt payment programme will be frozen when that programme is approved. That means that creditors will be prevented from adding any further interest, fees, charges or other penalties to the debt from that date. That has been purposely defined as generally as possible to prevent a creditor from reintroducing interest by the back door in the form of charges.
The intention is that what the debtor owes on the date that the debt payment programme is approved will be the full and final amount that they have to repay to clear their debt. That makes things much clearer for the debtor and removes an undesirable element of uncertainty from the process.
The regulations support the main Debt Arrangement Scheme (Scotland) Regulations 2011, which I believe that I wrote to the committee about on 2 February and which, among other changes to the scheme, introduce the ability to apply for a joint debt payment programme where the debtors have a joint and severally liable debt. I am happy to answer questions on the main regulations if members wish to pose them today. As a result of the proposed change in those regulations, the regulations before the committee today add a minor consequential provision to prevent creditors from adding interest and charges on to debts where a debtor has been party to a joint debt payment programme—as part of a couple with joint and several debt—that has had to be revoked because the couple are no longer together or wish to enter into separate plans, where the debtor applies within 21 days for a new debt payment programme. I think that the committee will agree that people should not be penalised if their relationship breaks down if they are still able and willing to pay their debts.
This change has been made with full consultation of stakeholders, including the money advice sector.
I commend the regulations to the committee.
I have a brief question. An issue that citizens advice bureaux in my constituency have raised with me—I am sure that other members have had similar experiences—is that creditors south of the border do not always recognise the scheme as something that they will adhere to. What is the Scottish Government doing to try to encourage awareness of the scheme south of the border? Could anything further be done to try to address the concern that has been raised?
You are right to say that the take-up of the scheme was not as high as we would have liked initially. That has now improved as a result of changes that were made to the scheme, particularly the innovation of freezing the principal amount due so that interest would not continue to run, so that when people entered into the scheme they knew where they were in relation to the full amount being charged.
On the gateways to the scheme, which of course are covered by some of the main provisions in the regulations that I understand that the committee will come on to consider in more detail next week, I am not aware that we have devoted any budgetary resources to educating the good people south of the border to encourage them to enter into schemes north of the border, but perhaps my officials could tell me whether any information on that could usefully be provided to the committee. I think that Claire Keggie is able to do so.
Claire Keggie (Accountant in Bankruptcy)
We have had a number of stakeholder events that we encouraged creditors from throughout the country to attend. As part of the launch arrangements for the new scheme, we will produce publications, one of which will be targeted at creditors. We will continue our awareness-raising programme and will seek to hold further events where we explain the content of the new system to creditors. We hope that that process will raise awareness and encourage them to interact with the new system. Incidentally, the new IT system that will be launched as part of the new arrangements will make it much easier for creditors to engage with the process. It will make the process simpler and reduce the administrative burden on them. Again, those measures should be helpful to creditors generally.
On the changes to the main scheme, I am supportive of measures that ensure a more orderly process for the repayment of debts. However, one of the proposals is to allow for a six-month payment holiday for debtors in appropriate circumstances. Will the minister provide some clarification on that and reassure me that its introduction will not lead debtors to regard it as a way to take advantage by slowing down the payment of their debts, to the disadvantage of those to whom the money is owed?
Last week, I spoke at a conference about that topic, among other things. The benefit of the debt payment programme is that it allows people to pay their debts. It is debt management rather than debt relief. Therefore, we wish to encourage it in Scotland. We wish people to pay their debts, where possible, and that they are not simply relieved of them. In addition, if people pay their debts, they do not risk the downrating of their credit in future to the extent that that happens if they enter into a trust deed or bankruptcy.
In general, as a nation, we would like people to pay their debts when they can. We provide a vehicle to enable them to do that—a diligence stopper, which prevents creditors from attacking the house and allows an orderly payment over an appropriate period. The average period is eight years, I believe, and the average amount of money is £26,000 or thereabout.
Last year, the DAS was used in more than 1,500 cases, and in the first quarter this year, it has been used in nearly 500 cases, so the trend is upwards—perhaps to 2,000 a year. More people are using the scheme. That is good, and I welcome James Kelly’s support. However, there was one lacuna with which we wanted to deal. We all know that, in life, events occur that may have significant impact on the household income, whether unpleasant events—redundancy, bereavement, separation or incapacity, for instance—or pleasant events, such as maternity, paternity or adoption.
If there is a shock to the household income and it diminishes substantially, the arrangement that was entered into beforehand to pay, say, a couple of hundred pounds a month may be unsustainable. Therefore, we felt that it was right to give the opportunity in certain clearly defined circumstances to allow a payment holiday to take place, for which we thought that six months would be a reasonable length of time.
The regulations provide a fairly tough gateway to that provision. To satisfy the criteria for a six-month payment holiday, the person must demonstrate that their disposable income has reduced by 50 per cent or more in the following circumstances:
“(a) a period of unemployment or change in employment;
(b) a period of leave from employment for maternity, paternity, adoption or to care for a dependant;
(c) a period of illness of the debtor;
(d) divorce, dissolution of civil partnership or separation”
recognised by decree of judicial separation of the debtor from any other person; and, lastly,
“(e) death of a person with whom the debtor shared care”.
Those are some of the major, life-changing events that we would all accept may adversely affect an individual’s capacity to continue to pay a DPP. Plainly, we would like the DPP to be renewed after the individual has been able to find their feet, recover from the event, get a job back, regain employment or whatever.
That is an innovative method. Scotland is leading the way. There is no such measure south of Hadrian’s wall, as far as I am aware. We are proud to introduce that measure today, and I am pleased that it has in-principle support from members.
There are no more questions. The next item of business, item 5, is formal consideration of the motions on the three affirmative instruments that we discussed under the previous item.
Motions moved,
That the Justice Committee recommends that the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011 be approved.
That the Justice Committee recommends that the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2011 be approved.
That the Justice Committee recommends that the Debt Arrangement Scheme (Interest, Fees, Penalties and Other Charges) (Scotland) Regulations 2011 be approved.—[Fergus Ewing.]
Motions agreed to.
I thank the minister and the other witnesses for attending. I will suspend the meeting briefly to allow the tables to be cleared.
12:14
Meeting suspended.
12:14
On resuming—
Under item 6, we will consider seven negative instruments. The relevant cover papers are papers 8 to 14. The Subordinate Legislation Committee drew none of the instruments to the attention of the committee or the Parliament.
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 2011 (SSI 2011/86)
Sale and Hire of Crossbows, Knives and certain other Articles to Children and Young Persons (Scotland) Order 2011 (SSI 2011/129)
Licensing (Local Licensing Forum) (Scotland) Order 2011 (SSI 2011/130)
If members have no comments on the first three instruments, are we content to note them?
Members indicated agreement.
Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (SSI 2011/134)
Do members have comments on the regulations?
This is a brief observation. Clawback in matrimonial home cases has been a long-standing issue in relation to legal aid regulations. I cannot quite remember on what basis it was introduced, but I think that it came in after much dissatisfaction. Ought we to ask for more background on why it was brought in in the first place and whether those reasons still apply? I am not against the approach per se, on the basis of the information that I have, but the issue has been controversial, as you will know, convener.
Do you think that we should seek written clarification or ask for oral evidence from the cabinet secretary?
No, no. It is not a matter of seeking oral evidence; I just seek a bit of background on the regulations.
We could defer consideration of the regulations until next week.
Yes.
Are members content with that?
Members indicated agreement.
Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2011 (SSI 2011/135)
Bankruptcy Fees (Scotland) Amendment Regulations 2011 (SSI 2011/142)
Disclosure (Persons engaged in the Investigation and Reporting of Crime or Sudden Deaths) (Scotland) Regulations 2011 (SSI 2011/146)
If members have no comments on the instruments, are we content to note them?
Members indicated agreement.
There is a further decision to be taken under item 6. One of the negative instruments that we will consider at next week’s meeting is the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 (SSI 2011/162)—an instrument that has generated controversy in the legal profession. James Kelly has lodged a motion to annul the regulations, which we will need to consider at the meeting next week.
The question for the committee today is whether to take oral evidence on the regulations at next week’s meeting. As is suggested in paper 15, we could invite representatives from the Law Society of Scotland and the Glasgow Bar Association, as well as hearing from the Scottish Government. Is the committee content to seek oral evidence on the basis that is set out in paper 15?
Yes, although I question whether it is safe to have the GBA and the Law Society together. That is another matter.
We will just have to take our chances.
Will we have one or two panels of witnesses? I want us to have a sensible discussion about the issues. I accept the principle in relation to panels, which I know that we have agreed, but would it be more sensible to hear from everyone together? If we do not do so, the lawyers will give their side and then the cabinet secretary will give his, and that will be the end of it.
Perhaps that is a debate for another time.
If that is what we do in principle, that is what we do, but I am not sure that it is the best way of having the discussion.
Are you proposing that we have a single panel?
I am just reflecting that having a single panel would enable us to have a discussion.
Given our earlier discussion, I think that we agreed the principle. There might well be a valid debate to have about the matter, but this is not the place to have it. There is perhaps a wider question for other committees and the Parliament to consider. Perhaps the Conveners Group will want to look at the issue. I think that we should stick to what we agreed.
Fine. Do members agree to invite oral evidence on the basis that is set out in the paper?
Members indicated agreement.
Thank you.
12:19
Meeting continued in private until 13:12.