Subordinate Legislation Committee, 21 Sep 1999
Meeting date: Tuesday, September 21, 1999
Official Report
103KB pdf
Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 1999 (SSI 1999/48)
We have received extensive legal advice on the Executive's response to this order. Do members have any comments? I see no one does. As a practising member of the Law Society of Scotland, I should declare an interest in this item.
The instrument does not appear to address the issues satisfactorily. The legal advice makes it clear that there are three problems. First, there is a lacuna in respect of trials where no witness is sworn, which constitutes defective drafting. Secondly, there is the question of whether the provision constitutes
"an unusual or unexpected use of powers conferred by the parent statute".
A trial starts when a trial starts. If the sheriff or judge believe that a trial has started, why does the Scottish Legal Aid Board not take the same position? Thirdly, it would have been clearer to include a transitional provision.
The third point is probably not as important; however, the lacuna and the use of the powers should be drawn to the attention of the Parliament.
I also received a telephone call from the Law Society confirming that, while it wants a lot of the content of the statutory instrument to go through—it is not opposed to it in whole—it is worried about those two aspects. I believe that we should flag them up.
I also declare an interest, as a member of the Law Society.
I was concerned that the Executive's response included the suggestion that, because there may be a problem in a small number of cases where trials proceed without witnesses, a meeting should be held once the instrument has been passed. I would have thought that the issue should be sorted out before the instrument is passed. To say that an instrument may cause a number of problems and that a meeting should be held to sort them out after the instrument has been passed is a dangerous precedent to set. That is not the way in which I want the committee to proceed.