Subordinate Legislation
Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No 2) (Scotland) Regulations 2010 (Draft)
Our next item of business is consideration of subordinate legislation. I draw members’ attention to the instrument and to the cover note, which is paper 1. The Subordinate Legislation Committee had no points to make on the instrument.
I welcome Kenny MacAskill MSP, the Cabinet Secretary for Justice; James How, head of the access to justice team; and Fraser Gough, from the Scottish Government legal directorate. I invite Mr MacAskill to make an opening statement.
The Cabinet Secretary for Justice (Kenny MacAskill)
The Tribunals, Courts and Enforcement Act 2007 created a new common framework for tribunals in England and Wales and tribunals with cross-United Kingdom jurisdiction. The 2007 act creates two new tribunals—the first-tier tribunal and the upper tribunal, which are collectively known as the tribunals—which take over functions from a range of existing tribunals.
Two sets of regulations will enable state-funded legal representation to continue to be available following the transfer, and it is the affirmative regulations that we are discussing. The Government takes very seriously access to publicly funded legal assistance for people who could not otherwise afford it, and we do not intend that those who seek such help should be worse off as a result of the transfer of tribunal jurisdictions. I propose that the committee recommends that the draft Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No 2) (Scotland) Regulations 2010 be approved.
Do members have any questions?
Robert Brown (Glasgow) (LD)
I just want some clarification. Executive notes are often of help in these situations, but they sometimes lose sight of the wood for the trees. Am I right that the essence of the regulations is simply a transfer to the new tribunals of the existing assistance by way of representation arrangements? There are no additions or subtractions from where we began, with the possible exception of some extensions of jurisdiction.
Yes, that is it. The regulations basically ensure that ABWOR is available.
There being no other questions, we will proceed to agenda item 4, which is formal consideration of motion S3M-6284.
Motion moved,
That the Justice Committee recommends that the Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 2) (Scotland) Regulations 2010 be approved.—[Kenny MacAskill.]
Motion agreed to.
Arbitration (Scotland) Act 2010 (Consequential Amendments) Order 2010 (Draft)
I draw members’ attention to the second instrument and to the cover note, which is paper 2. The Subordinate Legislation Committee had no points to make on the instrument.
I point out that the Justice Committee is dealing with this instrument for reasons of expediency. The instrument follows on from the Arbitration (Scotland) Act 2010, which was scrutinised at stages 1 and 2 by the Economy, Energy and Tourism Committee. I also point out that no precedent is being set in relation to any future instruments arising from the act, lest there should be other applications for us to deal with subordinate legislation that might be a little bit more controversial than that which is before us today.
In respect of this instrument, the Cabinet Secretary for Justice is joined by Hamish Goodall, the Arbitration (Scotland) Bill team leader, and Graham Fisher, of the Scottish Government legal directorate.
I invite Mr MacAskill to make an opening statement.
This order makes some minor, non-controversial amendments to certain pieces of reserved legislation, in consequence of the passing of the Arbitration (Scotland) Act 2010, which received royal assent in January. As you said, convener, during stages 1 and 2 of its passage, the bill was considered by the Economy, Energy and Tourism Committee, not the Justice Committee, and it might be helpful if I took a moment to explain briefly how arbitration works, for the benefit of any members who are unfamiliar with the concept.
Arbitration is a private form of dispute resolution outside the public civil courts, in which one or more arbitrators gives a binding ruling on a dispute that parties to the dispute have agreed to refer for decision. In choosing arbitration, parties give up the right to go to court. Arbitration is, therefore, one form of alternative dispute resolution, like mediation.
The 2010 act reforms, modernises and codifies the Scots law of arbitration, which was previously out of date, obscure and incomplete. It is hoped that the reform of the law will encourage the use of arbitration domestically and will, eventually, attract international arbitration business to Scotland.
Basically, the order amends references to part I of the Arbitration Act 1996 in the listed pieces of reserved legislation. The 1996 act governs arbitration in the rest of the United Kingdom. The Scotland Act 1998 specifically allows the Scottish Parliament to make limited consequential amendments to reserved legislation in consequence of acts of the Scottish Parliament.
The very limited amendments that we are concerned with today are considered necessary only because, where a procedural code in or under the particular reserved statutes makes no provision, the general law of arbitration in Scotland in the 2010 act might be argued, rightly or wrongly, to fill those gaps in Scotland. We think it unlikely, but it is important to keep the law clear in order to avoid spurious arguments in court.
We are happy to take any questions that members might have.
There being no questions, we can move to formal consideration of the motion to recommend approval of the instrument.
Motion moved,
That the Justice Committee recommends that the Arbitration (Scotland) Act 2010 (Consequential Amendments) Order 2010 be approved.—[Kenny MacAskill.]
Motion agreed to.
10:13
Meeting suspended.
10:13
On resuming—
Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No 1) (Scotland) Regulations 2010 (SSI 2010/166)
The third piece of subordinate legislation before us today is a negative instrument. I draw members’ attention to the instrument and to the cover note, which is paper 3. The Subordinate Legislation Committee did not draw any matters to the attention of the Parliament in relation to the instrument. Do members have any comments?
I have a query. Regulation 3(3) talks about the withholding of payments to solicitors when assistance by way of representation has been provided in relation to proceedings before certain bodies and the board finds that its provision
“was not (wholly or partly) in accordance with the relevant rules ... or ... was otherwise unjustified”.
Obviously, nobody has any objection to payments being withheld in such a circumstance. However, the explanatory note says that that will happen when a solicitor has not correctly applied the relevant tests, whereas regulation 3(3) seems to be more general and objective than that, and to indicate that it would apply when the board itself has made judgments.
I am concerned that there is not an ex post facto withdrawal of funding in a situation in which people have done work in good faith. I would like to know how far the provision goes. It might simply repeat something that was in the earlier orders, or it might be something new. I am not entirely clear about the background to it. It is not a matter that should hold up our approval of the instrument, but it is a query to which I would like an answer.
I am perfectly happy for us to query the issue. However, I think that the intent might concern the ability to recover money in a situation in which a payment has been made erroneously, not one in which there has been a retrospective withdrawal of the consent for payment.
With respect, I do not think that that is quite right. I think that it concerns a situation in which a solicitor is certified as being suitable for ABWOR payments, in terms of the rules, and has got that wrong in some respect, according to the guidance from the Scottish Legal Aid Board. I am interested in how the whole scheme operates. Does it go too far? Does it lead to any injustice? Is there a problem with it? I suspect that there is not and that I am making an issue about not very much, but I would like a little more information about the background.
That is quite appropriate. I suggest that we note the order and write to the Scottish Government accordingly. Does the committee agree to that suggestion?
Members indicated agreement.