Justice 1 Committee, 14 Dec 2005

Meeting date: Wednesday, December 14, 2005

Official Report 300KB pdf

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Subordinate Legislation

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Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2005<br />(SSI 2005/584)

Item 2 is consideration of subordinate legislation. I refer members to the clerks' note on the Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2005. At our previous meeting, we discussed the matter at length with the dean of the Faculty of Advocates and Scottish Executive officials—members should have had a chance to look at the evidence in the Official Report. Do members have any other comments to make?

I note the suggestion that the regulations will save £150,000 in one year. If that is the case, I welcome them.

I learned a lot about the situation from last week's helpful evidence-taking session, and certainly feel that it was important to get the Executive and the Faculty of Advocates around the table. I am clear about the issues that are still to be negotiated on, but I am quite happy to note the regulations. That said, the paperwork could have made it clearer that, as we now know, the first set of regulations that we passed were the interim regulations and that these regulations are not the final ones. The reference in the title to "No 2" indicates that the Executive has had a second go at the issue, but these regulations are not the final set. Are members happy to note the regulations?

I am happy to do so. However, I should say that, although it was useful to hear evidence from both parties at the same meeting, I am not sure that they came to the same conclusion on the outstanding issues. There seemed to be a gap between them in that respect.

I agree. For example, there was a clear difference of opinion over the role of the auditor of court.

The role seems to have evolved over time.

A further set of regulations will be laid, which means that we will have another opportunity to comment on them. Bruce McFee is quite right to point out that the Executive and the faculty did not necessarily agree on certain matters. The committee will simply note that for the time being.

I should also make members aware of the Subordinate Legislation Committee's opinion. The committee wondered whether the regulations were not intra vires because they are retrospective. However, the Executive feels that they are fine as long as no one loses out retrospectively. Indeed, the regulations have been introduced primarily because the faculty was unhappy with the first set of regulations and, because these regulations seek to correct the situation temporarily, the provisions have to be backdated.

I acknowledge the case that the Executive has made. The Executive seems to feel that because the regulations disadvantage no one, no one will challenge them and so they will not be ruled ultra vires. The only remaining question is whether a challenge could be made on behalf of the public purse, which will clearly be disadvantaged by the regulations as it will have to pay out more money. After all, if someone receives more money, either someone has to pay more or someone has to receive less. Money is not magicked out of thin air. That said, although we should note the concerns of the Subordinate Legislation Committee, I am quite happy to proceed on the basis of the advice that we have been given.

Are members agreed?

Members indicated agreement.