Justice 1 Committee, 22 Jan 2002

Meeting date: Tuesday, January 22, 2002

Official Report 213KB pdf

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Subordinate Legislation

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Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2002 (Draft)

We move to item 5 on the agenda. I refer members to the note on the regulations. I welcome the new Deputy Minister for Justice. This is his first appearance before the committee. On the face of it, we are kindly persons. I ask the minister to move and speak to motion S1M-2608.

I thank the convener for her kind words. I welcome the fact that members are kind people and will treat me kindly on the subject of legal aid, which is a complex issue and one to which I am sure we will return. I understand that the committee does not want introductory remarks.

If you wish, you can say a few words.

I have some lofty and lengthy sentences to read. The important point about the regulations is that they complete the committee's historic piece of legislation, the Protection from Abuse (Scotland) Act 2001, which we welcome. The act will come into force on 7 February and will provide legal aid for those arrested under it. That honours the commitment Jim Wallace made to the committee last year.

The regulations should be read in conjunction with the Legal Aid (Scotland) Act 1986 (Availability of Solicitors) Regulations 2001, which Jim Wallace signed on 17 December and which also come into effect on 7 February. They ensure that the duty solicitor will provide the representation that is required in the custody courts.

The purpose of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2002 (Draft) is to ensure that any person who is detained and brought before a sheriff under section 5 of the Protection from Abuse (Scotland) Act 2001 or section 17 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 has representation in the custody court. That representation will be provided in the form of free assistance by way of representation—known as ABWOR.

During the passage of the Protection from Abuse (Scotland) Bill, the Scottish ministers agreed to provide representation under the legal aid scheme to those arrested under the new act. In addition, ministers agreed to deal with a lacuna in the existing arrangements for the Matrimonial Homes (Family Protection) Scotland Act 1981. The regulations deal with both those types of procedure.

I move,

That the Justice 1 Committee recommends that the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2002 (Draft) be approved.

I have a question about a small detail. I applaud the purpose behind the regulations, which is to ensure that a duty solicitor is available to represent a person in court. What happens if the duty solicitor does not turn up because of illness, a car crash or some act of God? Would the case be postponed?

There is a roster of duty solicitors, so another one can be called fairly rapidly. In such cases, duty solicitors do not have to prepare; they simply provide representation in the custody court. Therefore, it is feasible to call another duty solicitor.

Are you saying that the person concerned will be represented by a duty solicitor at the first available opportunity?

Absolutely.

If there are no other comments, I will put the question on the motion.

The question is, that motion S1M-2608, in the name of Mr Jim Wallace, be agreed to.

Motion agreed to.

The committee is now required to report to Parliament on the affirmative instrument. Our report need only be short and formulaic. Should I submit the report to members by e-mail?

Members indicated disagreement.

Perhaps the minister will stay to hear us while we deal with the next item, which is a negative instrument that is connected with the SSI that he has just addressed.

I do not particularly desire to stay, but am perfectly happy to do so if required.

As the minister would prefer his visit on this occasion to be brief but happy, I thank him for his attendance.

Thank you.

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Legal Aid (Scotland) Act 1986 (Availability of Solicitors) Regulations 2001<br />(SSI 2001/464)

Item 6 on the agenda is the Legal Aid (Scotland) Act 1986 (Availability of Solicitors) Regulations 2001, which is a negative instrument. I refer members to the clerk's note J1/02/02/8. If no members wish to comment on the instrument, shall we simply note it?

Members indicated agreement.

My only concern is with the number of amendments that are being made to the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1997. I believe that the regulations are to be consolidated at some point. I hope that that occurs shortly, as there have been so many amendments.

If no members want to make any comment, that is item 6 dealt with.

We should note that the sums concerned in the amendments to those regulations are very small. There seems to be a tightening up of the provisions.

I hope that the clerk managed to catch that.