Subordinate Legislation
Victim Statements (Prescribed Offences) (Scotland) Order 2009 (SSI 2009/31)<br />Victim Statements (Prescribed Offences) (No 2) (Scotland) Order 2009 (SSI 2009/71)
Agenda item 1 concerns subordinate legislation. First up, we have two negative instruments. The Subordinate Legislation Committee drew the first of the instruments, SSI 2009/31, to the attention of the Government on the ground that it was defectively drafted. The second instrument, SSI 2009/71, revokes and replaces the first, but not until 1 April.
Scottish Government officials have been invited to attend this meeting to answer any questions that members might have. I welcome Bill Hepburn, the head of the Scottish Government's victims of crime branch, Gordon McNicoll, the division head of the solicitors criminal justice, police and fire division of the Scottish Government, and Andrew Ruxton, a solicitor in that same division.
Thank you for attending today, gentlemen. Who is going to offer the explanation?
Gordon McNicoll (Scottish Government Legal Directorate):
I am going to do it today.
We acknowledge that an error appears in SSI 2009/31 in that no coming-into-force date is specified. The error was drawn to our attention by the Parliament's solicitors, who examined the instrument after it had been signed by the minister and laid. Obviously, we apologise unreservedly for the fact that the error occurred.
Once the matter was drawn to our attention, we decided that the appropriate way to correct the mistake would be to revoke the defective instrument and replace it with a correct version that includes the coming-into-force date. That is what SSI 2009/71 does. It is important to note that it has been possible to make and lay the second instrument and bring it into force on 1 April 2009 without breaching the 21-day rule. The first instrument will be revoked as soon as it comes into force, which is the same time as the second instrument comes into force.
We considered a range of options when the matter was drawn to our attention. The first was to do nothing in the hope that the coming-into-force date would be obvious, but we concluded that that would be inappropriate. As the Subordinate Legislation Committee noted, there would be a strong argument that the order came into force on the day on which it was made—3 February—and that, because it came into force at the start of that day, it had done so before the minister signed it. In any event, that approach would give rise to uncertainty, which seemed to us to be highly undesirable. The policy is that the order should come into force on 1 April, so we took the view that the best way forward would simply be to revoke the first order and replace it with the second.
We have taken the problem that has arisen very seriously and investigated how it happened. It seems that it arose during the drafting process. We adjusted what appears now as article 1 fairly late on and, during that process, we omitted to include the commencement date in what was article 1(1). We apologise unreservedly for that. Obviously, it is a matter of concern because the order, like every other instrument, will have been checked in the legal directorate before the final version was sent to the minister for signing. It will have been checked by the branch head and the division head—which was me in this case—and by Scottish statutory instrument advisers, who look at all instruments. To be honest, I cannot explain how none of us managed to pick up the error; we can only speculate about that.
I suppose that the one positive thing that we can say is that all drafting solicitors will now be more aware that such problems might arise than perhaps they were before, although it is clearly common knowledge that instruments need a commencement date.
As I said, it is fortunate that we have been able to rectify the problem before the first order comes into force, and we apologise unreservedly for the error.
You have been very up front, Mr McNicoll. You will appreciate that this is the second successive week that we have had to deal with similar issues. Is a pattern emerging?
No. I accept that I am at the committee for the second week running, but I have no plans to be here again. As Michael Carey explained last week, there was a version-control problem with an instrument, not a drafting problem as such. Perhaps that is no consolation to the committee, and the other error is also a matter of concern, but the problems are distinct so I do not think that there is a pattern as such.
If the proper order will not be in force until 1 April, will there be any detrimental consequence in the interim?
No. The first order was due to come into force on 1 April because the new scheme will start from that date. As I have said, it is fortunate that the problem was identified early enough for us to be able to revoke the first order, make the second order and lay it without breaching the 21-day rule. There should be no detriment to anyone.
It seems that no damage will be done in this case—apart from to reputations and pride perhaps—but there may be occasions when similar errors occur, because people make mistakes. The application of a statutory instrument could be much more significant, and its start date could be in dispute as a result of such an error. Will you reflect on whether there should be a statutory change to protect against such a problem? I understand the general principle that an instrument coming into force immediately after it is laid and signed could cause you a problem. Might there be value in introducing somewhere in legislation a presumption that, in the absence of a specified date, which instruments would normally include, an instrument will not come into force for a week or two after it is laid and signed? That would give us a chance to catch such errors and ensure that the date when a provision comes into force is clear.
I assume that what you have in mind is a stipulation that no instrument should come into force until X days have elapsed—
Or some form of saving provision, just in case we make a wreck of something at some stage.
That would be possible, but in some circumstances instruments have to come into force immediately. The 21-day rule is not absolute and can be breached if there are good reasons for doing so. If you were minded to go down the route that you described, you would need an opt-out to ensure that certain instruments could be brought into force early if required.
I was thinking of something that would make it clear that, if an instrument did not specify a date for its coming into force, the default period would be a certain number of days after it was laid and signed. That would give us a chance to establish what the date really is, instead of running the risk of signing off something after it has come into force.
I suppose that that would be possible.
Perhaps such an occurrence is so rare that we do not need to worry about it, but it might be worth putting precautions in place.
As there are no further questions, I ask members whether they are content to note the orders.
Members indicated agreement.
Mr McNicoll, thank you for attending the meeting. I certainly do not want to see you in committee on a similar exercise in the foreseeable future.
Meeting suspended.
On resuming—
Advice and Assistance and Civil Legal Aid (Priority of Debts) (Scotland) <br />Regulations 2009 (SSI 2009/49)
Item 2 is consideration of a negative instrument. Somewhat refreshingly, the Subordinate Legislation Committee raised no points on the regulations.
I see that members have no comments to make. Are we content to note the regulations?
Members indicated agreement.
As we are still waiting for the Minister for Community Safety to arrive for the next item, I suspend the meeting briefly.
Meeting suspended.
On resuming—
Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2009 (Draft)
We proceed with agenda item 3. The Subordinate Legislation Committee did not draw any matter on the draft regulations to the attention of the committee.
Prior to the formal procedure on the motion that relates to the regulations, members have an opportunity to ask questions of the Minister for Community Safety, Fergus Ewing, or his officials, Chris Graham, from the access to justice team in the Scottish Government's constitution, law and courts directorate, and Fraser Gough, a solicitor with the legal directorate. Mr Ewing, do you have an opening statement?
Yes. I will say a few words to give the committee some background on the regulations and what they mean.
The principal change that the regulations will bring about is a substantial increase to the upper disposable income threshold for civil legal aid from the present figure of £10,306 to £25,000. We intend to give formal guidance to the Scottish Legal Aid Board to set out the appropriate levels of contribution that will be payable by assisted persons. There will still be no contribution—zero—for those with disposable incomes of up to £3,355 and the current contribution rate of one third of the excess over £3,355 will still apply to disposable income of up to £10,995—a contribution of one third of the difference between the disposable income and the lower threshold of £3,355. A 50 per cent contribution will be payable on disposable income between £10,995 and £15,000, and 100 per cent will be payable on disposable income between £15,001 and £25,000. For example, someone with a disposable income of £25,000 would pay a contribution of up to £14,524 and someone with a disposable income of £12,000 would pay up to £3,024.
Disposable income is calculated by making deductions for maintenance payments and child care or travel costs that are associated with work, as well as an allowance for the costs of providing for dependents. About 42 per cent of people in Scotland are financially eligible for free or subsidised civil legal aid under the current limits. The higher limits will mean that three quarters of all Scots could be eligible for help in cases that involve, for example, maintaining families, ensuring financial security or adequate housing, or protecting employment rights. I hope that the committee agrees that the extension of eligibility for civil legal aid is welcome at a time when more and more people could require such assistance.
I move that the committee recommends that the—
You are a bit premature, Mr Ewing.
Ah—I do not want to be premature.
Do members have any questions for the minister?
I do not quite follow the effects of the higher levels. I think that the minister said that there was a 100 per cent contribution between the £15,000 and £25,000 levels of disposable income. What will that mean in practice? Will anyone with that level of disposable income get concessions?
It will mean that people with a disposable income of £25,000 will have to make a sizeable contribution. In other words, the contribution is tapered, so that those who are on lower incomes have to pay as little as possible but those who are on higher incomes have to pay a fairly substantial amount—I mentioned a figure of more than £14,000 for someone with a disposable income of £25,000. However, such a person will be entitled to legal aid and, as Robert Brown will know, the costs of a serious contested litigation in the Court of Session, for example, can exceed that amount by a considerable distance.
We are doing what the Justice 1 Committee in 2001 asked the then Scottish Executive to consider. The aim is to deal with the trap whereby it is perceived that only those who have virtually no income get legal aid and those who are reasonably, but not hugely, well off are denied it. Under the regulations, legal aid will be available to such people, subject to a high contribution.
Like Robert Brown, I was concerned about the size of the contribution in that, to put in bluntly, £14,000 is one whopper of a contribution. I checked that it is possible to make payment of contributions by instalments over a period of up to 48 months. Even in that situation, someone at the higher level would be subject to a fairly hefty contribution—but not an unmanageable one, I would suggest.
The main thing is that people with slightly higher incomes are not denied legal aid and thereby denied access to the courts. The regulations also address situations in which there is an unequal contest—for instance, in some matrimonial litigation in which one party to the cause receives legal aid but the party with the higher income does not. As I am sure Robert Brown will recall from his previous work, that creates an unequal contest in some cases—and legal aid can almost be used as a negotiating tool on some occasions. We do not expect a huge proportion of cases to be at the upper level; we expect that most cases in which legal aid is granted will involve a relatively small income.
It is possible—it happens at present—that some solicitors will advise clients not to apply for legal aid, even though they might qualify under the new rules, on the basis that the contribution will be so high that the lawyer estimates that the cost of a minor litigation does not merit all the processing, paperwork and delay that a legal aid application can involve. The application is normally dealt with before litigation, by sisting an action or not proceeding with it.
I hope that that broadly answers Robert Brown's question.
My question was getting at whether there is a maximum contribution of £14,000, notwithstanding the possibility that the costs might be higher, especially in the Court of Session.
Yes: as I understand it, that is the maximum. A mathematical formula will be used, and it will be contained in the guidance to be applied.
The £25,000 figure relates to the disposable income, which is arrived at after making deductions for the items that I mentioned—child care and dependents. If someone has a family, they will have more commitments than a single person and their actual net income will probably be substantially higher than £25,000.
Can the minister advise me whether the sums are before or after tax?
I understand that the disposable income is net income. Deducted from that net income would be allowances for child care and dependents—the permitted allowances at the present time.
So £25,000 of disposable income indicates quite a substantial gross income.
Indeed. As I said, we feel that three quarters of all Scots will be eligible on financial grounds. People will still have to satisfy the tests of probable cause of litigation and reasonableness, but those are separate tests. On financial grounds, three quarters of all Scots will be eligible.
Those tests have always governed the way in which legal aid matters have been proceeded with.
Yes, and they are very important tests.
Indeed.
There being no further questions, we go to item 4. I invite the minister to move motion S3M-3503.
Motion moved,
That the Justice Committee recommends that the draft Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2009 be approved.—[Fergus Ewing.]
Motion agreed to.
Meeting suspended.
On resuming—
Bankruptcy and Diligence etc (Scotland) Act 2007 (Inhibition) Order 2009 (Draft)
Item 5 is consideration of another item of subordinate legislation. The Subordinate Legislation Committee has not drawn any matter in relation to the draft order to this committee's attention. Prior to the formal procedure on the motion on the order at item 6, members may ask questions of the minister and his official, Linda Clark, senior policy development manager, Accountant in Bankruptcy. Do you feel the need to make any statement, Mr Ewing?
I was planning to make a statement.
Proceed.
The Bankruptcy and Diligence etc (Scotland) Act 2007 allows ministers to make, by order, incidental and supplemental provisions that are considered necessary or expedient for the purposes of the act. The act introduces reforms to inhibition, which is a personal diligence that prevents the debtor from conveying or granting any new security over his interest in heritable property to the detriment of his creditor. The act provides that certain inhibitions on the dependence of an action that are limited to specified property at the instance of the court convert to inhibition in execution on granting of decree. Moreover, the act also specifies that those inhibitions are no longer limited and that their effect extends to all the debtor's property.
A fundamental aspect of property transactions has always been that third parties can rely on the integrity of the personal and land registers when deciding whether to proceed. Concerns have been raised that the act did not include any requirement to notify the keeper of the registers of Scotland of the granting of decree in cases in which inhibition on the dependence had been limited to specified property. As a consequence, the registers would not necessarily reflect the true position in respect of a debtor's ability to transact with his property.
To maintain the comprehensiveness of the registers and to protect both third parties and the inhibiting creditor, the draft Bankruptcy and Diligence etc (Scotland) Act 2007 (Inhibition) Order 2009 amends the act to provide that, once granted, a copy decree is registered in the personal register, and prescribes the form of the accompanying notice. The order clarifies that the removal of the limited extent of the inhibition does not take effect until the beginning of the day on which the decree and notice are registered. The order will ensure that the trust that is placed in the accuracy of the registers can be maintained and that third parties are in no doubt of the true position when negotiating on property.
I was keen to read that out not because explanations to practising solicitors are always necessary but so that, if needed, it is on the record. In a practical sense, any house purchase transaction in Scotland can be thwarted and aborted at the last moment because of the appearance of inhibitions in the register. Therefore, the order corrects a loophole that could have jeopardised some purchase transactions, causing misery and mayhem to innocent third-party purchasers. I just wanted to place that on the record, although the circumstances to which the order applies will be relatively few in number.
The issue is perfectly straightforward. If members have no questions, we will move to item 6, which is formal consideration of motion S3M-3544, to recommend that the order be approved.
Motion moved,
That the Justice Committee recommends that the draft Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order 2009 be approved.—[Fergus Ewing.]
Motion agreed to.
I thank Ms Clark for her attendance.
Meeting suspended.
On resuming—