Justice Committee

Meeting date: Tuesday, January 25, 2011

Official Report 448KB pdf

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Subordinate Legislation

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Civil Legal Aid (Scotland) Amendment Regulations 2010 (SSI 2010/461)

There are two negative instruments for consideration under agenda item 2.

On the first Scottish statutory instrument, I refer members to paper 2. The Subordinate Legislation Committee drew no matters to the attention of Parliament in respect of the instrument. Do members have any comments, or are they content to note the instrument?

I am curious as to the purpose of the instrument. The

“person who owes an obligation of aliment to a child”

would usually be one of the parents, whether they are present or estranged. On the face of it, that could have some rather odd effects. I am not sure that I fully follow the policy view behind it.

The executive note states that the provision would not apply if it produces

“an unjust or inequitable result”,

but that is a fairly broad discretionary element, which does not usually exist in that way in legal aid regulations. I wonder whether we might have a bit more background on the policy intention.

The thinking appears to be that there is a wish to ensure that all matters are taken into consideration in assessing a child’s eligibility for civil legal aid, and that if that were not to be, there could be an inequitable result in comparison with other types of cases. I am happy to continue with the matter for a week.

I understand the point, but my recollection of the matter when I was in practice—which may have gone with the passing of time—was that the child’s circumstance was taken into account in its own right, which was a slightly different position, as opposed to a family position. That allowed a number of cases to proceed under legal aid that would not otherwise have done so.

I do not follow the concern about the inequitable results that would follow from the present position; I do not see the logic of that. I would appreciate a bit more background from the Government on the instrument.

I support Robert Brown. I am not necessarily against what is being proposed; I just want a bit more information on the detail. I know that there are financial savings attached to the provisions, which are welcome. However, I would not want a situation in which the Government, because its legal aid budget is under pressure, is considering potential schemes to save money that may result in inequitable access to justice.

On the basis that there is some unease, I propose that we reconsider the matter next week. In the interval, we will write to the Government to suggest that someone comes to speak to the instrument.

I would just like a bit of information on the type of cases to which it would apply.

We will keep our options open, but we will continue the matter and see what the response is when we write to the Government. That may well be sufficient, but if we need to get someone in, we shall do that. Is that agreed?

Members indicated agreement.

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Advice and Assistance (Scotland) Amendment Regulations 2010 (SSI 2010/462)

We come to the second SSI, to which paper 3 refers. The Subordinate Legislation Committee did not draw any matters to the attention of the Parliament in relation to the regulations. I invite comments from members.

The issue regarding the regulations is the same as that which we have just discussed. I know that there are other issues involved, too, and I am certainly not against tightening up verification, if it is helpful. Perhaps we can proceed on the same basis.

That would be sensible—we can continue on the same basis.

11:30 Meeting continued in private until 12:03.