Subordinate Legislation Committee
Meeting date: Tuesday, June 12, 2012
Official Report
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Scottish Civil Justice Council and Criminal Legal Assistance Bill: Stage 1
Under agenda item 3, the committee will consider the delegated powers in the bill. In doing so, the committee is invited to agree the questions it wishes to raise with the Scottish Government. It is suggested that those questions are raised in written correspondence. On the basis of the responses received, the committee could expect to consider a draft report on the delegated powers at its meeting on 26 June 2012.
Section 18(2) of the bill, which inserts new section 9B into the Legal Aid (Scotland) Act 1986, enables the Scottish ministers to disapply the existing eligibility criteria for assistance by way of representation. A new scheme of eligibility, prepared and published by the Scottish Legal Aid Board, would have to meet certain criteria, including on the avoidance of undue hardship to clients or their dependants. Separately, the Scottish ministers may give the board directions on the preparation and publication of a scheme of eligibility, and the board must comply with those directions.
Does the committee agree to ask the Scottish ministers to explain why the power to make a scheme of eligibility is not expressed as a power to make subordinate legislation, given their stated position that the extension or alteration of eligibility for criminal legal assistance requires thorough parliamentary scrutiny, and why the direction-making power in section 9B(5) of the 1986 act is necessary, given the Scottish ministers’ extensive powers in relation to the approval, modification and withdrawal of a scheme of eligibility?
Members indicated agreement.
Section 24 allows the Scottish ministers to make such ancillary provision as they consider necessary or expedient for the purposes of or in connection with the bill. However, there is an overlap between this provision and the bespoke ancillary powers provision in section 6(5), which may be used when making provision under section 6(3) on the number of members of the Scottish Civil Justice Council.
Does the committee agree to ask the Scottish Government whether, given the existence of the specific power in section 6(3) to modify that section, and the limited nature of that power, it is intended that it should be possible to modify section 6 by means of an order under section 24 and, if that is not the case, whether it intends to exclude the possibility of using an order under section 24 to modify section 6?
Members indicated agreement.