Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No 2) Order 2016 [Draft]
Item 3 on the agenda is consideration of the first of three affirmative instruments: the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No 2) Order 2016.
I thank the cabinet secretary for staying for this item and welcome to the meeting Scottish Government officials Keith Main, from the safer communities division, and Carla McCloy-Stevens, from the directorate of legal services. I remind everyone present that the officials can take part—under the cabinet secretary’s direction, I suggest—because this item is an evidence-taking session.
I invite the cabinet secretary to make a brief opening statement if he wishes.
The Rehabilitation of Offenders Act 1974 allows individuals whose convictions are spent to say legally that they have not been convicted of a crime. The aim is to help to rehabilitate offenders by not making their past mistakes affect the rest of their lives if they have been on the right side of the law for some time. That means that a person who has a spent conviction does not generally have to disclose it and is protected from being prejudiced by that conviction or the failure to disclose it.
However, there are exclusions and exceptions to that protection, which are set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013. In particular, the 2013 order removes the protection in cases in which a person applies for a firearms or shotgun certificate. That permits the chief constable to elicit and consider information about spent convictions when assessing a person’s suitability to hold such a certificate.
The draft order that is before the committee aims to add airgun licensing to the exclusion and exception in the 2013 order, thereby bringing airgun applications into line with those for other types of guns. That is necessary to protect public safety and prevent air weapons from falling into the wrong hands. In passing the Air Weapons and Licensing (Scotland) Act 2015, the Parliament agreed with the Scottish Government that airguns are potentially lethal weapons that should be subject to greater control. The draft order helps us to achieve that greater control by requiring a person to disclose all spent and unspent convictions and allowing the chief constable to take that information into account when deciding whether to grant an air weapons certificate or permit.
It is worth emphasising that the existence of a past conviction does not necessarily mean that an application will be refused. The chief constable will take all the circumstances into account before deciding on each case. In addition, the chief constable’s reliance on spent convictions information in any particular case must be justifiable and compatible with convention rights, and any refusal to grant an application is appealable to the sheriff.
That is helpful. I clarify that the draft order applies not only to previous incidents involving air rifles or airguns; it can be any kind of conviction. I see that animal cruelty would be an issue. It could be disturbances of any kind—perhaps aggressive behaviour or assaults. It is not just connected to the possession of weapons.
No, it is not. It is any spent convictions.
That is useful.
If there are no other questions from committee members, we move on to formal consideration of the motion on the draft order.
Motion moved,
That the Justice Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No. 2) Order 2016 [draft] be approved.—[Michael Matheson.]
Motion agreed to.
I thank you and your officials for attending, cabinet secretary.
I suspend briefly to allow the next set of witnesses to come in for item 5.
11:39 Meeting suspended.Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016 [Draft]
The next item is consideration of our second affirmative instrument today: the draft Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016. I welcome to the meeting Paul Wheelhouse, Minister for Community Safety and Legal Affairs, and Scottish Government officials Walter Drummond-Murray, civil law and legal system division, and Greig Walker, directorate for legal services.
This is an evidence session and I do not need to say all the usual stuff because members know all about it. I invite the minister to make a brief opening statement.
I am happy to waive that.
Do members have any questions on the order?
Is the minister able to advise how many stipendiary magistrates will be abolished? How many are there?
I believe that there are two, but I will check with my colleagues.
There are two full timers and seven part timers, who will transfer to being summary sheriffs on 1 April.
They are not going; they are becoming something else.
Yes.
They will be happy to know that.
We now move to the formal debate on the motion on the draft order. I invite— [Interruption.]
Sorry, convener.
Do not cut my part—it is not allowed.
Motion moved,
That the Justice Committee recommends that the draft Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016 be approved.—[Paul Wheelhouse.]
Motion agreed to.
11:41 Meeting suspended.Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016 [Draft]
The next item is consideration of our third affirmative instrument today: the draft Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016. The minister is staying with us and we have Scottish Government officials Denise Swanson, civil law and legal system division, and Alastair Smith, directorate for legal services.
Again, I remind everyone that this is an evidence session. Do you want to make an opening statement, minister?
Again, I am happy to waive that.
Minister, can you comment on the concerns raised by the Law Society of Scotland—which is supportive of the instrument overall—on the fundamental difficulties regarding payment mechanisms for police station work?
I recognise that the issue has been the subject of debate for some time. People who are questioned at a police station will no longer have to consider costs when accessing legal advice. I understand that the Law Society supports the removal of police station contributions. We think that that is also a positive step in reducing bureaucracy for solicitors, who will no longer have to assess and collect contributions for such work.
There is potential for significant efficiencies in and simplification of the current legal aid system to deliver savings while maintaining wide access to legal aid in both criminal and civil cases—that is a high priority, as I have said to the committee previously. We are committed to working with the legal profession, the Law Society and other stakeholders to deliver those efficiencies. The issue has also been flagged up with the justice board as an area in which practitioners and policy colleagues should try to work together to ensure that our system is as efficient as possible.
Some concerns have been raised about individual fee rates and so on. The Law Society has also focused on the elements of contributions and contracting. We are discussing all those issues with the Law Society in the context of how we take forward wider reform of the legal aid system. I hope that the instrument that we are dealing with today will simplify the process for solicitors, advocates and solicitor-advocates, and that it will make life easier for their clients, too.
11:45
I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates.
In its paper, the Law Society talks about moving to a system of block fees. Could you comment on the implications of that?
The comments made by the Law Society in its response will be taken into consideration as part of the implementation of the Criminal Justice (Scotland) Act 2015 and the wider review of criminal legal assistance, which we have committed to carrying out. As part of the review of the legal aid system to achieve a simpler, more efficient system, we have asked the Scottish Legal Aid Board to look at the management and administration of court duty schemes, including fee structures and the required standards of service.
As in any area of legal aid work, we will work with the Law Society of Scotland and justice partners to ensure that the system fairly rewards the work that is required in the round. I emphasise that point. There is a lot of focus on the individual elements of legal aid fees, but we are looking at the overall cost of and payment for taking forward a case on behalf of a client. We want to incentivise practices that promote clients’ best interests and the effective operation of the wider justice system.
We have already made it clear to the Law Society that we plan to work with it and the Scottish Legal Aid Board to review legal aid provisions as a whole in order to achieve a simpler and, I hope, more efficient system. That is the theory at least—it is difficult to deliver in practice. We want to manage expenditure effectively, while maintaining access to justice and ensuring that Scotland has a sustainable legal aid system.
Block fees will feature in that discussion. There are advantages in terms of simplicity for the legal adviser because it cuts down on the bureaucracy and the need to specify the time committed to individual clients. However, we need to have as much evidence as possible to inform that discussion about what the appropriate block fee would be.
Perhaps I can bring in Denise Swanson to talk about the level of discussion that we have had with the Law Society on block fees.
The Law Society and practitioners are broadly supportive of block fees, as mentioned in the Law Society’s paper. The work that is currently under way initially focuses on criminal work and how the various elements of work that a solicitor might carry out to support a client in any aspect of criminal procedure—right from the police station through to the sheriff appeal court—might be structured.
It is important to say that, in our block fee arrangements, there is currently provision for exceptional case status. If there are exceptional cases that fall outwith the normal, routine work that a solicitor might do, they can apply for additional remuneration for the additional work. We are trying to balance block fees and the desired simplicity and reduction in bureaucracy, ensuring that there is capacity in the system to deal with exceptional circumstances.
As there are no other questions, we move on to the formal debate on the motion.
Motion moved,
That the Justice Committee recommends that the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016 [draft] be approved.—[Paul Wheelhouse.]
Motion agreed to.
As members are aware, we are required to report on all affirmative instruments. Is the committee content to delegate authority to me to sign off the report on the three instruments that we have considered today?
Members indicated agreement.
As we have already dealt with item 9 on the agenda, that concludes today’s meeting. Our next meeting will be on 23 February.
Meeting closed at 11:49.Previous
Commission on Women Offenders