Subordinate Legislation
Good afternoon, minister. It is nice that we are back in our usual positions—opposite each other—after our brief sojourn at the Justice 2 Committee last week.
The minister will move two motions, S1M-2177 and S1M-2178, which are linked to two statutory instruments. I ask the minister to move and speak to the motions separately. After he has done so, I will ask members for their comments.
I intended to move and speak to the motions together. Is that acceptable?
If you wish. That is not a problem.
I start by congratulating you on your elevation to the position of convener of the Justice 1 Committee. I do not think that I have appeared before the committee since that happened.
I am the third convener of this committee, minister. It is a revolving seat—just how revolving I do not know.
No doubt we will find ourselves sitting opposite each other for a period of time.
I believe that it would make matters clearer if I were to deal with both regulations together, although they serve two different purposes.
First, the regulations provide part of the legislative framework that we must put in place for the drug court pilot, which is to start in Glasgow sheriff court on 15 October. They follow the recommendations of the working group that was chaired by the sheriff principal and that involved the Glasgow Bar Association among other organisations. The regulations were developed with the help of the Scottish Legal Aid Board and the Law Society of Scotland. The other part of the legal framework for the drug court is contained in two negative regulations, which I shall say a word about in a moment.
Secondly, the regulations make a change that is required for the implementation of the Convention Rights (Compliance) (Scotland) Act 2001 on hearings for life sentence prisoners. The instruments are technical in nature but straightforward in intention.
The Criminal Legal Aid (Scotland) (Prescribed Proceedings) Amendment Regulations 2001 ensure that legal aid can be made available for accused persons who appear before the new court. Usually, summary criminal legal aid is available only when the accused pleads not guilty, but referrals to the drug court will take place only when there is a plea of guilty. The regulations also provide for automatic assistance by way of representation for the hearings that will take place under the Convention Rights (Compliance) (Scotland) Act 2001 to determine the punishment part of life sentences.
The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 3) Regulations 2001 are more straightforward. They simply ensure that ABWOR does not apply by default in the case of the drug court.
The other two pieces of the drug court jigsaw are contained in negative regulations that Jim Wallace signed on 10 September. They provide that the duty solicitor, who would otherwise represent an accused person who appears in court from custody, would not represent people who participate in the drug court pilot. The working group recommended that an accused person who is referred to the drug court should be able to use their own solicitor, on the basis that he or she would better understand the client's history, situation and needs. The negative instruments establish a tailor-made scheme of fixed payments for solicitors who represent clients at the drug court.
I commend the regulations to the committee.
I move,
That the Justice 1 Committee recommends that the draft Advice and Assistance (Assistance by way of Representation) (Scotland) Amendment (No 3) Regulations 2001 be approved.
That the Justice 1 Committee recommends that the draft Criminal Legal Aid (Scotland) (Prescribed Proceedings) Amendment Regulations 2001 be approved.
If members wish to speak to the regulations, I ask them to make clear which motion their comments address. The minister has made the debate a little more complicated by moving the motions together.
Do members wish to comment on motion S1M-2177, which deals with the drug court?
Will the minister confirm that legal assistance will be available to someone who was charged before the drug court but who did not have a solicitor?
Absolutely. The difference is that they will be able to ask their own solicitor to represent them and will not be restricted to representation by the duty solicitor. However, if they have no solicitor, the duty solicitor will be available to them.
It has been drawn to my attention that this is the third time that the Executive has amended the principal regulations, and it may have to amend them again.
The complexity of the regulations became apparent during the committee's inquiry into legal aid. Do you intend to bring in a better way of dealing with the regulations, perhaps by consolidating them?
We await the committee's report. I gave evidence to the inquiry and I know from the evidence gathered by the committee that members have an interest in the complexity of the regulations. I understand that the report is close to completion and we will wait for the committee's recommendations, to which we must respond.
Consultation is another issue that has arisen in relation to other regulations. How much consultation took place on these regulations? For example, did you consult SLAB?
Yes. We also consulted the Law Society. However, the key point is that the changes that were made in respect of accused persons who appear before the drug court were recommended by the working group, which we charged with turning the idea of a drug court into a practical proposition in Glasgow. Therefore, the working group proposed the changes made by the regulations, although we also involved the Law Society and SLAB in order to ensure that those organisations were satisfied with the changes.
I presume that they were satisfied.
Yes, they were.
Motions agreed to.
That the Justice 1 Committee recommends that the draft Advice and Assistance (Assistance by way of Representation) (Scotland) Amendment (No 3) Regulations 2001 be approved.
That the Justice 1 Committee recommends that the draft Criminal Legal Aid (Scotland) (Prescribed Proceedings) Amendment Regulations 2001 be approved.
That was short and sweet, minister. It might not always be.
I understand that we require to report to the Parliament only on affirmative instruments and that such reports should be short. If members are content, that report will be circulated by e-mail before it is issued.
Members indicated agreement.
I regret the fact that we must move back into private session. I ask members of the public to leave the meeting.
Meeting continued in private until 15:19.