Justice Committee

Meeting date: Tuesday, February 21, 2012

Official Report 372KB pdf

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Subordinate Legislation

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Advice and Assistance (Assistance By Way of Representation) (Scotland) Amendment Regulations 2012 [Draft]

There is one affirmative instrument for the committee’s consideration. Agenda item 3 is an opportunity to take evidence from the Cabinet Secretary for Justice and his officials before we formally debate the motion on the regulations under agenda item 4. In the first part of the process, it is possible for officials to speak, if the cabinet secretary wishes. I say that simply to inform the committee—I do not anticipate thrusting the officials into the limelight. We have with us James How, head of the Scottish Government’s access to justice team, and Felicity Cullen, solicitor with the Scottish Government. I welcome back the cabinet secretary, whom I believe has a short opening statement.

The regulations amend the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 to make assistance by way of representation available for application proceedings under the Double Jeopardy (Scotland) Act 2011. That act reformed and restated the rule on double jeopardy, which prohibits a person from being placed in jeopardy of criminal prosecution twice for the same offence. The act also set out certain exceptions to the rule and made a number of related and consequential reforms.

Before the Crown can bring a double jeopardy prosecution under sections 2, 3 or 4 of the 2011 act, the High Court must first set aside the original acquittal and grant authority to bring a new prosecution. Section 5 of the act envisages that the High Court will hear the parties before doing so. That will be done by means of the application proceedings that are established by sections 2(2), 3(3)(b), 4(3)(b), 11(3) and 12(3) of the act. The regulations that are before us will ensure that legal representation is available for those proceedings for a person who is subject to those proceedings, provided that the person’s application meets the statutory test for assistance by way of representation.

Yes. What a morning we are having.

As members have no questions, we move to agenda item 4, which is the formal debate on motion S4M-01901.

Motion moved,

That the Justice Committee recommends that the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2012 [draft] be approved.—[Kenny MacAskill.]

Motion agreed to.

I thank the cabinet secretary for attending.

The committee will have to make a short formal report on the regulations. The deadlines are tight, and the clerks will set to work on the draft immediately. Are members content to delegate to me the authority for the final wording of the report, which relates to a simple and technical piece of legislation?

Members indicated agreement.

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Act of Sederunt (Fees of Sheriff Officers) (Amendment) 2012 (SSI 2012/7)

We have one negative instrument for consideration under agenda item 5. The Subordinate Legislation Committee has drawn the Parliament’s attention to the instrument on the ground that there was a failure to lay it at least 28 days before it came into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. That committee nevertheless found the explanation for the failure that was provided by the Lord President’s office to be acceptable. As members have no comments, are we content to make no recommendation in relation to the instrument?

Members indicated agreement.

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Act of Sederunt (Fees of Messengers-at-Arms) (Amendment) 2012 (SSI 2012/8)

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Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (Commencement) Order 2012 (SSI 2012/20)

Agenda item 6 is consideration of two instruments that are not subject to any parliamentary procedure. The Subordinate Legislation Committee has not drawn either of the instruments to the Parliament’s attention on any grounds within its remit. Do members have any comments on either of the instruments?

In relation to the commencement order for the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, I would like it to be noted that I voted against that act. I remain of the view that it is unnecessary and unworkable and I fear that we will find over time that it has far-reaching implications.

I will not repeat all that Alison McInnes has just said, but I concur with it.

I, too, associate myself with Alison McInnes’s comments.

That is now on the record.

Having made those comments, do members agree simply to note the instruments?

Members indicated agreement.

11:15 Meeting continued in private until 12:03.