Justice Committee

Meeting date: Tuesday, June 27, 2017

Official Report 452KB pdf

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Subordinate Legislation

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Advice and Assistance (Proceedings for Recovery of Documents) (Scotland) Regulations 2017 [Draft]

Our next item of business is consideration of an affirmative instrument.

I welcome the Cabinet Secretary for Justice and his Scottish Government officials: Denise Swanson, head of the access to justice unit; Kevin Philpott from the criminal justice division; and Greig Walker, solicitor, from the legal services directorate.

I refer members to paper 1, which is a note by the clerk, and ask the cabinet secretary to make a short opening statement.

Thank you, convener, and I apologise for my slightly late arrival.

These regulations relate to the WF v the Scottish ministers judgment that was issued in February 2016. The case concerned a complainer’s right to receive legal aid when seeking to oppose release of their medical records in connection with a criminal case, and it was an important judgment that has led to a significant change in approach in cases in which an application is made to recover sensitive information in criminal proceedings.

The judgment clarifies that any person whose rights under article 8 of the European convention on human rights, which relates to respect for private and family life, may be infringed by an order for recovery of medical records and other sensitive documents must have the application for recovery of those records intimated to them and be given the opportunity for their opposition to the application to be heard. On 1 March, following the judgment, I advised the committee when I was before it as part of its scrutiny of the Abusive Behaviour and Sexual Harm (Scotland) Bill that, with the courts having established the right to be heard, interim provisions had been put in place to make legal aid available to allow a client to be represented where they were seeking to oppose release of medical or other sensitive documents.

The regulations before the committee regularise those interim provisions by amending the relevant statutory legal aid framework to make equivalent provision. Specifically, they make provision for assistance by way of representation to be available to a client who seeks to oppose recovery of their medical records or other sensitive documents in connection with criminal proceedings. As with the interim provisions, the assistance will be available without a means test being applied. The regulations also make incidental amendments to advice and assistance regulations to ensure that work is consistently carried out as assistance by way of representation, namely at the criminal legal aid rate.

Since the interim provisions have been in place, seven applications for legal aid have been received in connection with the potential use of sensitive records in criminal proceedings. Of those seven, five have received legal aid and the two other applications have been given in-principle agreement by the Scottish Legal Aid Board, with the checking of actual expenditure still to be undertaken.

The commitment to putting in place sustainable arrangements to protect the interests of individuals whose sensitive records and documents are requested in criminal court proceedings was set out in our programme for government for 2016-17, and these regulations seek to deliver on that.

I thank the cabinet secretary for those remarks. I particularly welcome this statutory instrument, not least because over the past four years, on no fewer than six occasions, in three different pieces of legislation—the Victims and Witnesses (Scotland) Bill, the Criminal Justice (Scotland) Bill and the Abusive Behaviour and Sexual Harm (Scotland) Bill—I have lodged amendments on complainers’ rights to oppose the release of their medical records, including psychological and psychiatric records.

The cabinet secretary will be aware that the last occasion was on 22 March 2016, during stage 3 of the Abusive Behaviour and Sexual Harm (Scotland) Bill, which followed Lord Glennie’s 2016 ruling to the effect that, in domestic abuse cases, denying a complainer legal aid to oppose the use of her medical records went contrary to the Victims and Witnesses (Scotland) Act 2014. At that time, the cabinet secretary rejected my amendment on awareness raising of the ruling, stating:

“As I have indicated, the Scottish Government is happy to undertake work to ensure that awareness of Lord Glennie’s judgment is raised.”—[Official Report, 22 March 2016; c 86.]

I very much welcome the fact that there have been seven applications and that the spirit of the regulations has been recognised, with five of those applications being approved and the other two under consideration. However, can the cabinet secretary provide us with some comfort by outlining what has been done so far to raise awareness of Lord Glennie’s ruling and judgment?

The interim arrangements have been put in place and that has been intimated to the relevant parties. My colleague Annabelle Ewing will write to the Law Society of Scotland and other parties to make them aware of the new regulations. You will also be aware that, in his ruling, Lord Glennie did not make any recommendation that there was a need for any rule changes or new primary legislation to be put in place. Instead, he referred to putting in place a process whereby the court would be required to intimate entitlement to any individual whose documents might be sought. That has been put in place, and I understand that it is being monitored by the Lord President’s office.

But nothing has happened to date to raise awareness specifically.

We have already written to various stakeholders to make them aware of the interim arrangements that were put in place last year. My colleague Annabelle Ewing will write to the interested parties to ensure that they are aware that arrangements are now in place and that new regulations have been put in place to make available a permanent arrangement for access to legal aid in these circumstances.

I welcome the interim provisions that were put in place—that was a positive action.

The policy note, which we have in our papers, says:

“Rape Crisis Scotland, supported by Scottish Women’s Aid, raised concerns with the reference to Article 8 rights, the use of the effective participation test and provision for appeals. These issues were addressed through separate correspondence and do not affect the content of these regulations.”

Were the issues addressed to the satisfaction of Rape Crisis Scotland and Scottish Women’s Aid?

I am not aware of our response being received but I can provide the committee with a copy of the letter that was sent to Scottish Women’s Aid. Denise Swanson can tell you more, as she wrote the letter.

As the cabinet secretary has said, we will send you a copy of the letter. Subsequently, I have met Sandy Brindley to discuss another issue, and the issue that we are discussing was not raised. We have not had any response from Rape Crisis Scotland to our letter, so I assume that there are no further issues that it wishes to raise on the matter. We continue to engage with Sandy Brindley, so we will confirm that with her.

We now move to formal consideration of motion S5M-06068. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and had no comment on it. I invite the cabinet secretary to move the motion. There will be an opportunity for formal debate if necessary.

Motion moved,

That the Justice Committee recommends that the Advice and Assistance (Proceedings for Recovery of Documents (Scotland) Regulations 2017 [draft] be approved.

Motion agreed to.

That concludes our consideration of the affirmative instrument. The committee’s report will note and confirm the outcome of the debate. Is the committee content to delegate authority to me as convener to approve the final draft of the report?

Members indicated agreement.

I thank the officials for attending. We will suspend briefly to allow for a change of officials.

10:14 Meeting suspended.  

10:15 On resuming—