Justice Committee

Meeting date: Tuesday, June 15, 2010

Official Report 496KB pdf

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Subordinate Legislation

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Criminal Legal Aid (Scotland) (Fees) Amendment (No 2) Regulations 2010 (SSI 2010/212)

Item 2 relates to subordinate legislation. There is only one negative instrument for consideration today. I draw members’ attention to the Scottish statutory instrument and the cover note, which is paper J/S3/10/20/1. The Subordinate Legislation Committee has not drawn any matters to the Parliament’s attention in relation to the instrument. Do members have any comments, or are they content to note the instrument?

I am a little concerned about some of the press publicity that there has been on the issue, including an article in this morning’s edition of The Herald, which indicates that the background to the instrument is the publication of new guidelines by the Lord Advocate’s department. Those guidelines had still not been published by the time that the article appeared.

In addition, there are definite issues in relation to the terms of what seems to be a complicated instrument, which may have some effect on the new right to have a lawyer when one is facing questioning in a police station. I wonder whether it might be sensible to continue consideration of the instrument for a week, so that we can get more background information. We could ask the minister or Scottish Government officials to update us on the background details and the concerns that have been the subject of publicity.

You have an advantage over me, as I have not seen this morning’s press coverage.

I support Robert Brown’s move to continue consideration of the matter until next week. Some important issues require clarification. According to the Executive note that backs up the SSI, its financial implications are £900,000 for cases of this nature that may go back to April 2008 and in-year financial costs of £2 million. In my estimation, that could result in costs for this year of £2.4 million.

I am not aware that that has been budgeted for, so there are budgetary implications in addition to the points that Robert Brown raises about what has been discussed this morning and over the weekend in the newspapers about changes to access to solicitors for those who have been arrested. I am not aware that the SSI takes account of those changes, which could mean further financial implications. The background note that we have been given states that the instrument relates to an increase in fees that was announced in November 2007 and that the backdating of the fees was announced in January 2009. I wonder why it has taken so long to bring the SSI to the Parliament.

There are a number of issues that I think need to be considered further and addressed again next week.

I am puzzled by James Kelly’s comments on the instrument. I point him to the cover note, which clearly states under paragraph 2:

“If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government”—

as Mr Kelly has just indicated—

“in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received.”

I do not believe that any of the questions that members have for the Government were passed to the committee clerks in advance of the meeting. It seems odd for members to wait until the committee meeting and then to ask for the committee’s consideration of the instrument to be postponed to a future date. The procedure is clear: every committee member had the opportunity to read the papers and raise points of clarification in advance of the meeting. If members have not done that, I do not think that it is reasonable for them to come to the meeting and ask for further delay so that the points that they raise can be clarified.

I take that point. However, I am concerned about the fact that external events may have overtaken—

I am sorry to interrupt, convener, but that is a different issue from the points that have just been raised.

Yes.

It is helpful for the clerks to state in any paper that comes before us that their door is open for discussion and clarification of any point. Nevertheless, I do not accept Stewart Maxwell’s argument. This is the democratic table that we sit around when we come together as a committee, and any member at any time is entitled to ask questions in public. I have concerns about the instrument, especially in relation to the press coverage and the e-mails that some of us have received over the past couple of days. If we cannot get answers to those questions today, I support Robert Brown’s suggestion that we continue our consideration of the instrument for a week.

Thank you. Do members have any other comments?

I will deal specifically with the point that Stewart Maxwell raises. Members will be aware that the committee has had a heavy workload with the Legal Services (Scotland) Bill. In relation to this morning’s agenda, my main focus was the bill. I looked at the instrument on the train coming through and did not have time to raise my concerns with the clerk. Nevertheless, my concerns are relevant and I am quite within my rights to raise them at the committee meeting and to ask for a continuation of the discussion.

I do not think it appropriate to put the minister on the spot today, on the basis that he has come to deal with other matters. The proper course of action would be for the committee to continue its consideration of the instrument over the next seven days. There is no desperate urgency for us to come to a decision on it. We will have the appropriate minister before us next week in order to get explanations, particularly with regard to the latest events surrounding the appeal that was heard last week at the Supreme Court. Do members agree to continue our consideration of the instrument for seven days?

Members indicated agreement.

I take it that there is a technical mistake on the front page of the briefing note. It talks about

“solicitors providing civil legal aid in relation to solemn proceedings”.

I take it that that is a typo and that the reference should be to “criminal proceedings”. That adds another layer of oddity to the matter.

Yes. I noticed that. I think that it is a typo. Consideration of the matter will be continued for seven days.