Justice 1 Committee, 23 Oct 2001

Meeting date: Tuesday, October 23, 2001

Official Report 265KB pdf

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Subordinate Legislation

Criminal Legal Aid (Scotland) Amendment Regulations 2001 (SSI 2201/306)

There are three negative instruments to be considered under agenda item 3. As I understand it, unless a member initiates a debate on a negative instrument, the instrument will simply go through after a certain period of time. The first instrument is the Criminal Legal Aid (Scotland) Amendment Regulations 2001. Members should have a paper on that but, to refresh the memory of those who have forgotten, the instrument concerns the new drugs courts and the need to amend legal aid regulations so that legal aid will be available to those courts in the form that the working party recommended. Does any member want to comment, or are members prepared simply to note the instrument?

The accompanying notes highlight the fact that there does not appear to have been any consultation on the instruments. Consultation would have allowed us to get guidance from those who will be on the receiving end of what is to be implemented. For example, I am not sure whether the amount that is specified in the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2001 is appropriate. Consultation would have allowed interested parties to highlight concerns about the proposed amounts.

I take that point on board. As I understand it, the regulations came into being, to some extent, as a response to the working party that dealt with the drugs courts. I am pretty sure that the working party would have taken all those interests into account.

I take it that, apart from putting that point on the record, members are content to note the Criminal Legal Aid (Scotland) Amendment Regulations 2001. Is that correct?

Members indicated agreement.

Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2001 (SSI 2001/307)

The second instrument is the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2001. I think that that is the instrument that Michael Matheson referred to. Are members content simply to note the instrument at this stage?

Members indicated agreement.

Parole Board (Scotland) Rules 2001
(SSI 2001/315)

The third instrument is the Parole Board (Scotland) Rules 2001. Members will realise that the rules are being brought into force to deal with changes to the composition and work of the Parole Board. Do members have any comments?

One comment in the accompanying notes says that there should have been wider consultation, but it appears that that point has been acted on since then and that there has been adequate consultation. Is that your understanding?

That is my understanding. The other matter that members will have noted is that the Subordinate Legislation Committee—of which, for my sins, I am also a member—raised a whole range of issues with the Executive. We have a copy of that committee's comments.

The number of drafting mistakes in the instrument was, to put it mildly, not entirely satisfactory. On at least four occasions, the Executive said, "We have made a mistake and we will try to correct it in future." It is important to note the Executive's comments, although I do not think that the mistakes or difficulties contain anything that would justify an attempt by us to annul the instrument. However, members should note that a range of errors was made when the instrument was drawn up.

What is the process by which such faults are rectified?

On one view, the faults are comparatively minor. For example, the Executive did not put footnotes where it should have done and, on another occasion, it referred to the wrong section. I do not think that the faults can be rectified at this stage—if they were major, the Executive would be required to redo the regulations. However, as the faults were minor, they will be corrected the next time that the regulations are issued or consolidated.

It is for members to decide, but I do not think that the errors will affect the day-to-day working of the rules. However, I thought that it was fair to mention to members how many mistakes were made, bearing in mind the fact that the Subordinate Legislation Committee passed that information to us. My view is simply that it is appropriate for us to note the work that has been done by the Subordinate Legislation Committee.

As a layman, the most significant point seemed to me to be that raised in paragraph 24 of the Subordinate Legislation Committee's report, which refers to the

"failure to include an obligation on the Board to give reasons for a refusal to permit representation".

The previous paragraphs indicate that such a situation has never arisen, but that seemed to be an issue of principle, or certainly of importance. That may not be sufficient to cause the committee to annul the instrument, but perhaps we could say that, as a matter of principle, the Executive and all public bodies should always give reasons for their actions. That is an important point.

Wearing my Subordinate Legislation Committee hat, I think that members of that committee would all agree with Donald Gorrie's point. We felt that, as a matter of principle, it was a mistake not to include such an obligation in the instrument. However, we were told that, in practice, tribunals always give reasons. We were also told that the Executive would discuss the giving of reasons with the Parole Board, and I presume that the sub-text is that, as a matter of practice, tribunals will always give reasons. We took the view that annulling the instrument would have been a bit draconian. For my part, I record that I agree with Donald Gorrie that the Executive should have included the giving of reasons in the body of the instrument.

Apart from that point, can I assume that the committee agrees simply to note the instrument and that we hope that others will note our comments?

Members indicated agreement.