Justice 1 Committee, 26 Nov 2002

Meeting date: Tuesday, November 26, 2002

Official Report 348KB pdf

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Subordinate Legislation

The next agenda item is subordinate legislation. We are running 15 minutes late. The three statutory instruments are subject to the negative procedure. I refer members to paper J1/02/40/10 by the clerk.

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Civil Legal Aid (Scotland) Regulations 2002 (SSI 2002/494)

Do members want to make any comments on the Civil Legal Aid (Scotland) Regulations 2002 or are we simply content to note them? I have some comments to make. I have been a civil legal aid practitioner for a long time and am pleased that the limit for the money preserved in matrimonial cases is going up at last. Recently, I lodged a parliamentary question on the matter. The sum disregarded has increased from £2,500 to £4,200. I think that the figure has been the same for more than 20 years and has had a considerable impact on matrimonial proceedings. Other elements in the regulations will help the public when they are following proceedings.

I refer members to the report from the Subordinate Legislation Committee, which mentions resources. Members will be interested to note the matter. Part III of the regulations deals with the assessment of resources for legal aid purposes and the financial test. Regulation 11(2) states:

"A man and a woman who are not married to each other and who are living together in the same household as husband and wife shall be treated for the purposes of section 42 of the Act as if they were spouses of each other."

In other words, their resources are added together. However, that is not the case for same-sex couples living together. Resources may be treated separately for the purposes of calculating whether they are entitled to legal aid. Our very alert Subordinate Legislation Committee, under the leadership of Ms Margo MacDonald, felt that that could breach article 14 of the European convention on human rights, which prohibits discrimination. If same-sex couples who live together are allowed to treat their resources separately for calculations, why are different-sex couples not allowed to do so? I raise that as a matter of interest.

Do you wish us to pursue that issue, convener? It seems worth pursuing.

Are we going to do something about it?

I think that that is a matter for the lead committee.

Are we the lead committee?

No, we are the secondary committee.

I beg your pardon. The instruments were laid on 7 November 2002 and, under the Parliament's standing orders, are subject to annulment until 16 December 2002. The procedure is that, unless a motion for annulment is lodged, no further action by the committee is required. The committee may wish to consider whether a committee member should lodge a motion to annul the regulations. If so, we could debate such a motion at our next meeting on 10 December.

Would it not be wise to write to the minister as a matter of urgency, saying that we need clarification before 10 December? If the clarification is satisfactory, we need not discuss the regulations further. The problem is that, by 10 December, we will have no choice about lodging a motion to annul. We would want to give the Executive the chance to withdraw the regulations and resubmit them.

Wendy Alexander is quite right: any motion to annul would have to be considered at the meeting on 10 December and so would have to have been lodged before that. The suggestion that we write to the minister is prudent. We will request a response, which we can copy to the Subordinate Legislation Committee. I thank everyone for their guidance—I had thought that we were the subordinate, or secondary, committee. Other than that, does the committee agree to note the regulations?

Members indicated agreement.

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Advice and Assistance (Scotland) Amendment Regulations 2002<br />(SSI 2002/495) <br />Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2002<br />(SSI 2002/496)

I refer members to the other two sets of regulations: the Advice and Assistance (Scotland) Amendment Regulations 2002 and the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2002. Do members have any comments? I do not think that there is anything contentious in the regulations. Is the committee content simply to note them?

Members indicated agreement.