Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2015 [Draft]
We are back in business. Item 2 is subordinate legislation. First, we will consider an affirmative instrument. I welcome to the meeting Paul Wheelhouse, the Minister for Community Safety and Legal Affairs, and his Scottish Government officials: Hazel Dalgard, and Alastair Smith from the directorate for legal services. Good afternoon.
This is an evidence session, but I understand—these are wonderful words—that the minister does not need to make an opening statement. [Laughter.] That is very welcome. You have made friends immediately. We will move straight to questions from members.
As members are still rattling through their papers, I will ask a question. Interestingly, the draft order follows from the Counter-Terrorism and Security Act 2015. [Interruption.] Oh—that is the next instrument. I am on the wrong one. You see, I am too fast.
Do members have any questions on the courts reform order? As there are none, we move to item 3 and I invite the minister to move motion S4M-12522.
Motion moved,
That the Justice Committee recommends that the Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2015 [draft] be approved.—[Paul Wheelhouse.]
Motion agreed to.
12:04 Meeting suspended.Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 2) Regulations 2015 [Draft]
We move to agenda item 4. We have the minister and the same officials. [Interruption.] I am told that we have Catriona Mackenzie, but she has the nameplate for Hazel Dalgard in front of her. That is unfair. I can confuse myself without the assistance of labels.
We will take evidence on the regulations. This is quickly falling apart, but I now know that we are on to the instrument that is interesting and which I wanted to ask you about earlier, minister. The Counter-Terrorism and Security Act 2015, which received royal assent just last month, is quite draconian in some respects, although I am not saying that that is a bad thing or a good thing. The act aims to prevent people from travelling overseas to fight for terrorist organisations or to engage in terrorism-related activity. Under the act, people’s travel documents can be taken away and temporary exclusion orders can be made. Why do we require assistance by way of representation in those circumstances?
That is a fair question, convener. From United Kingdom Government sources, we know that 550 UK citizens have travelled to Syria potentially to participate in the war that is going on there, of whom about half have returned. Until now, there has been no provision to prevent those individuals from travelling or returning to the UK. Under the 2015 act, where there is a suspicion that someone is involved in such activity, their passport can be taken from them temporarily, so that they cannot travel again.
The provisions that we are discussing today ensure that, in circumstances in which someone’s passport or travel documents may be removed, they will have access to legal support more quickly than if they had to wait to apply through the normal legal aid process. The regulations will enable such people, through their solicitor, to have relatively quick support in addressing the issue.
Is it a kind of appeal procedure?
If there is potential for a retention of travel documents for an initial period of 14 days—it can be extended to 30 days—or a temporary exclusion order, which prevents an individual from returning to the UK, the regulations will allow the individual involved to access legal support far more quickly than would otherwise be the case. Under the provisions, people would be entitled to apply for legal aid in a criminal case or in a civil process, but it would take time to get that into place. The regulations will allow people to access legal aid far more quickly.
I think that the UK Government is guilty of rank hypocrisy on the issue, as it initially probably commended some of the people who went to fight. I for one do not want anyone to go abroad to fight for anyone. As the convener says, the 2015 act is seen as draconian, and I welcome the fact that a mechanism has been put in place to assist people. My concern, once again, relates to the issue of consultation. We are told that the turnaround and speed of the process did not facilitate that. The UK Government has got itself confused as to who the goodies and baddies are—it has switched its mind a few times on issues in the middle east—but, whatever the issue, it is never good to make legislation with such speed that there cannot be due consideration. Do you agree, minister?
There is always a risk associated with a speedy process. We recognise that the UK Government and Ministry of Justice saw the need for urgent legislation, and we are doing our best to support that process and ensure that it is done as smoothly as possible. Obviously, in an ideal world, we would have liked to have had more time to consult stakeholders. We made the Scottish Legal Aid Board aware of what we were doing and the Law Society of Scotland was made aware of the draft provisions that were being laid before Parliament. They obviously had the ability to bring anything that they were concerned about to the committee’s attention. We have done the best that we can in the circumstances. However, I appreciate that, ideally, we would want to have time to allow Parliament proper scrutiny and to go through the normal process. Unfortunately, on this occasion, it was not possible.
For the avoidance of doubt, I was not being critical of you or your officials. However, once again, we are being reactive rather than having any say on what we would ultimately react to.
As I said, in an ideal world, we would have liked to have had more time, but we feel that we have done the best that we can in the circumstances. I appreciate that Mr Finnie’s point is not addressed to the Scottish Government. Equally, I appreciate that the UK Government is in a difficult position, as it wanted to put in place measures quickly to deal with what it sees as a risky situation. We are just doing our best to ensure that the process is as smooth as possible.
That is a welcome response from the Scottish Government. Thank you.
Good afternoon, minister. Without wishing to be too difficult, I will ask about the financial effect of the regulations and the estimate of less than £10,000 per annum. Is there any magic to that figure? Is it something that has been considered, given the time constraints?
My colleagues may wish to come in on this issue. I looked at the numbers, because they are relatively modest and I wanted to be sure that I understood where they came from. Of the 550 people who have left the country to go to Syria, we believe that about half have returned to the UK already. The UK Government Ministry of Justice has taken into account a number of factors in building its estimate, which it has informed us of. It believes that the proportion of cases in Scotland will work out at about 4 per cent of the total, although there might be civil proceedings involved. We have based our costing on four cases per annum.
We have looked at what the consequences would be if the figure were higher. We believe that even if the figure doubled—if the proportion in Scotland matched the UK proportion of 8.5 per cent or thereabouts—we would be looking at an estimated cost to the legal aid fund of around £12,000 to £16,000. We do not anticipate a huge expense, but clearly we will keep the matters under observation. If there were to be an issue, we would raise it with colleagues in Parliament.
I clarify that the figures that are given with the instrument are in relation to the costs of the changes that we are making specifically. The figures are specifically in relation to the two types of proceedings.
So there is some magic to it.
I am not sure whether I would describe it as magic, but certainly there is some thinking behind the figures.
Is it hocus pocus?
My question relates to the costs. Which court do you imagine will hear the proceedings?
It would be helpful if you could tell us how the application is made to take away travel documents, if people are trying to leave, or, if people are coming back in, to have an exclusion order. Where would that take place? What is the process and timescale?
I do not have in front of me the relevant papers on the detail of the process, but from what I recall it is a question of travel documents being retained at the port of exit, by an official and a senior police officer who can authorise that, for up to 14 days. The authorities have the possibility of applying for an extension of the period for which the documents are retained. There might be proceedings in connection with that application that would attract ABWOR under the instrument. In Scotland that would be an application to the sheriff.
That is helpful.
I was looking at the £10,000 figure. Some of these cases could be quite challenging, especially when you think about the cost of having a couple of Queen’s counsels arguing. [Interruption.] These are serious issues about not letting people back into the country or taking their travel documents from them. The issue is not just about Syria; it is about terrorist organisations. The instrument is not just for tomorrow or this year, but for a long time.
I am sorry if I have upset somebody from the faculty—well, I am not really. There could be serious challenges here under the Human Rights Act 1998.
I agree, convener; it is certainly a serious matter. The board expects the cost of a hearing to be between £750 and £1,000. However, as you rightly say, in a more complicated case each applicant may have a number of hearings and on occasion counsel may be required. If we assume that each case might require two hearings, the annual cost to the legal aid fund would be between £6,000 and £8,000, based on the 4 per cent figure that the Ministry of Justice assumed for us in its costings.
If the figure were higher—if we matched the UK’s population share of cases—the costs may be up to £16,000. It would be in that sort of ball park, but we will keep the matter under review and if it presents any particular difficulties we can raise them with Parliament.
Are there any further questions? Having upset the faculty, I had better not need its help at any time.
Motion moved,
That the Justice Committee recommends that the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2015 [draft] be approved.—[Paul Wheelhouse.]
Motion agreed to.
I thank the minister and his officials. As members are aware, we are required to report to Parliament on all affirmative instruments. Are members content to delegate to me authority to sign off this week’s report?
Members indicated agreement.
Thank you very much.
Our next meeting will take place on 17 March, when we will take further evidence at stage 1 of the Human Trafficking and Exploitation (Scotland) Bill and consider a draft stage 1 report on the Prisoners (Control of Release) (Scotland) Bill.
Before members leave their seats and pack their schoolbags, I should tell you that evidence next week will come from the Scottish Trades Union Congress, the Gangmasters Licensing Authority, immigration enforcement and the UK human trafficking centre.
Thank you very much; you are dismissed.
Meeting closed at 12:15.