4th Report, 2016 (Session 4): Subordinate Legislation

SP Paper 912 (Web)

Contents

Introduction

REHABILITATION OF OFFENDERS ACT 1974 (EXCLUSIONS AND EXCEPTIONS) (SCOTLAND) AMENDMENT (NO. 2) ORDER 2016 [DRAFT]

The draft instrument
Scrutiny by the Delegated Powers and Law Reform Committee
Justice Committee consideration
Recommendation

COURTS REFORM (SCOTLAND) ACT 2014 (CONSEQUENTIAL PROVISIONS) ORDER 2016 [DRAFT]

The draft instrument
Scrutiny by the Delegated Powers and Law Reform Committee 2
Justice Committee consideration
Recommendation

ADVICE AND ASSISTANCE AND CIVIL LEGAL AID (FINANCIAL CONDITIONS AND CONTRIBUTIONS) (SCOTLAND) AMENDMENT REGULATIONS 2016 [DRAFT]

The draft instrument
Scrutiny by the Delegated Powers and Law Reform Committee
Justice Committee consideration
Recommendation

Annexe A
Annexe B

Remit and membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Christine Grahame (Convener)
Elaine Murray (Deputy Convener)
Christian Allard
Roderick Campbell
John Finnie
Margaret McDougall
Alison McInnes
Margaret Mitchell
Gil Paterson

Subordinate Legislation

Introduction 

The Committee reports to the Parliament as follows—

1. At its meeting on 9 February 2016 the Committee considered the following instruments:

Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No. 2) Order 2016 [draft];

Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016 [draft];

Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016 [draft].

2. The instruments were referred to the Justice Committee as lead committee and were subject to affirmative procedure. The Cabinet Secretary for Justice, Michael Matheson, attended the meeting to give evidence on the first instrument and also to move the relevant motion recommending approval of the instrument. The Minister for Community Safety and Legal Affairs, Paul Wheelhouse, attended the meeting to give evidence on the other two instruments and also to move the relevant motions recommending approval of the instruments.

REHABILITATION OF OFFENDERS ACT 1974 (EXCLUSIONS AND EXCEPTIONS) (SCOTLAND) AMENDMENT (NO. 2) ORDER 2016 [DRAFT]

The draft instrument

3. The draft Order was made under sections 4(4), 7(4) and 10(1) of the Rehabilitation of Offenders Act 1974. The instrument excludes air weapons licensing from the protections under section 4(1) and (2) of the 1974 Act in the same way as firearms licensing under the Firearms Act 1968 is currently excluded.

Scrutiny by the Delegated Powers and Law Reform Committee 

4. The Delegated Powers and Law Reform Committee considered this instrument at its meeting on 26 January 2016 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.

Justice Committee consideration 

5. The draft Order was considered by the Justice Committee at its meeting on 9 February 2016, when Michael Matheson, Cabinet Secretary for Justice, attended to give evidence on the instrument1.

6. The Cabinet Secretary explained that in the interests of public safety, the order would exclude air weapons from the protections included in the Rehabilitation of Offenders Act 1974. This would mean that spent convictions would be considered when an individual applied for an air weapons license, similar to the way firearms are already excluded under the Firearms Act 1968. However, added that there would still be discretion to allow an air weapons licence to be granted, notwithstanding a prior spent convictions.

7. The Committee asked the Cabinet Secretary to confirm that spent convictions would not only be considered in instances where a person had a conviction involving an air weapon. The Cabinet Secretary clarified that any spent conviction would be considered when applying for an air weapons licence.

8. There being no further questions for the Minister from members, the Cabinet Secretary moved the motion in his name: S4M-15427—That the Justice Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No. 2) Order 2016 [draft] be approved.

9. The motion was agreed to without division.

Recommendation 

The Justice Committee recommends to the Parliament that it approve the draft instrument.

COURTS REFORM (SCOTLAND) ACT 2014 (CONSEQUENTIAL PROVISIONS) ORDER 2016 [DRAFT]

The draft instrument

10. The draft Order was made under section 137 of the Courts Reform (Scotland) Act 2014. The instrument abolishes, on 1 April 2016, the office of stipendiary magistrate and introduces the office of summary sheriff, and transfers the remuneration of certain judicial office holders from the Scottish Government to the Scottish Courts and Tribunals Service.

Scrutiny by the Delegated Powers and Law Reform Committee 

11. The Delegated Powers and Law Reform Committee considered this instrument at its meeting on 26 January 2016 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.

Justice Committee consideration 

12. The draft Order was considered by the Justice Committee at its meeting on 9 February 2016, when Paul Wheelhouse, Minister for Community Safety and Legal Affairs, attended to give evidence on the instrument along with Scottish Government Officials2.

13. The Committee asked about the numbers of stipendiary magistrates who would effectively be abolished following the implementation of the Order. A Scottish Government official explained that there would be two fulltime and seven part time stipendiary magistrates who would be transferring to the position of summary sheriff as of 1 April.

14. There being no other questions for the Minister from members, the Minister moved the motion in his name: S4M-15423—That the Justice Committee recommends that the Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016 [draft] be approved.

15. The motion was agreed to without division.

Recommendation 

The Justice Committee recommends to the Parliament that it approve the draft instrument.

ADVICE AND ASSISTANCE AND CIVIL LEGAL AID (FINANCIAL CONDITIONS AND CONTRIBUTIONS) (SCOTLAND) AMENDMENT REGULATIONS 2016 [DRAFT]

The draft instrument

16. The draft Regulations were made under section 8A(1) and (1A) of the Legal Aid (Scotland) Act 1986. The instrument removes any requirement for suspects who are questioned by the police to pay a contribution toward the cost of their advice and assistance.

Scrutiny by the Delegated Powers and Law Reform Committee 

17. The Delegated Powers and Law Reform Committee considered this instrument at its meeting on 12 January 2016 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.

Justice Committee consideration 

18. The Committee received a submission on the instrument from the Law Society Scotland (Annexe A). While supportive of the instrument itself, the submission raised concerns about other “fundamental difficulties regarding the payment mechanism for police station work.”3

19. The Minister for Community Safety and Legal Affairs responded to these concerns and explained that the purpose of the instrument was to remove some of the unnecessary bureaucracy. Mr Wheelhouse agreed to consider the wider points raised by the Law Society and would work with the Scottish Legal Aid Board to review legal aid provision (Annexe B).

20. The draft Order was considered by the Justice Committee at its meeting on 9 February 2016, when Paul Wheelhouse, Minister for Community Safety and Legal Affairs, attended to give evidence on the instrument4.

21. During consideration of the instrument, the Committee asked about the wider concerns raised by the Law Society and in particular sought views on the suggested use of a system of block fees. The Minister re-affirmed his commitment to work with the Law Society and other legal practitioners to create an efficient system while ensuring wider access to justice. Mr Wheelhouse went on to cite the involvement of the Scottish Legal Aid Board who would also be party to ongoing discussions with the Law Society. A Scottish Government official outlined ongoing discussions between the Government and the Law Society, citing their approach, which included looking at the various elements of work that a solicitor might do to support a client in any aspect of criminal procedure. Officials also indicated that they were looking at a system of remuneration, which would allow solicitors to apply for additional funds in exceptional cases.

22. The Minister moved the motion in his name: S4M-15426—That the Justice Committee recommends that the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016 [draft] be approved.

23. The motion was agreed to without division.

Recommendation 

The Justice Committee recommends to the Parliament that it approve the draft instrument.

Annexe A 

Written submission from the Law Society Scotland

Comments

Following the decision in Cadder v HMA,1 legislation was passed to make legal assistance automatically available to suspects at the police station. Whilst this means a suspect is automatically entitled to legal advice, he or she might still be required to pay a contribution and a means test is therefore still necessary.

These regulations remove the requirement for suspects to pay a contribution toward the cost of their advice.

We have consistently maintained that contributions are not practical in police station advice cases.2 We are therefore pleased that the Scottish Government is taking these steps and we welcome these regulations.

However, we would like to make clear that these regulations do nothing to resolve other fundamental difficulties regarding the payment mechanism for police station work.

  • First, the Advice and Assistance (A&S) payment mechanism involves time-recording and requires solicitors to seek prior SLAB sanction for increases in the A&A grant. The administrative burden involved in these activities incurs the time and cost of both solicitors and SLAB staff. Removal of this additional bureaucracy would mean that solicitors could spend more time helping their clients.

  • Second, the A&A payment rates do not adequately remunerate solicitors for the work involved. The rates, set out in the Advice and Assistance (Scotland) Regulations 1996, are currently £11.60 per quarter hour which increases only to £15.47 per quarter hour when work is undertaken between 10pm and 7am. The rates do not reflect the role of the solicitor during the interview to represent, protect and advance the legal interest and rights of a suspect as well as the length of time spent at the interviews and the out-of-office hours often involved in attendance. The rates do not reflect that firms require appropriate staffing levels for 24/7/365 staff cover or that firms have to ensure there are appropriate systems and infrastructure in place to travel to police stations, communicate with the SLAB helpline and submit forms online.

As set out in our recommendations paper, we believe the most efficient framework for providing suspects with free legal advice is through a system of block fees, automatically payable to the solicitor on completion of the work. Such a system would benefit clients, solicitors and SLAB and we query why this proposal has not yet been explored by the Government.

The Policy Note to the regulations states that our concerns in relation to the payment mechanism will be taken into consideration as part of implementation of the Criminal Justice Bill, which will further affect the delivery of advice and assistance in police stations. We are keen to work with the Scottish Government and the Scottish Legal Aid Board on these issues.

There is no doubt that these regulations are to be welcomed. Removal of contributions from police station advice cases will ensure that every member of the public who needs the services of a solicitor whilst questioned in a police station is able to get free automatic legal assistance thus increasing access to justice. It also removes the practical difficulties involved in trying to assess finances and collect contributions when the suspect will not have the relevant documentation to hand. Therefore, notwithstanding our ongoing concerns about the payment arrangements, we are pleased to support these regulations.

Law Society of Scotland
January 2016

Annexe B

Letter from the Minister for Community Safety and Legal Affairs

Following a commitment made by the Cabinet Secretary for Justice during the passage of the Criminal Justice (Scotland) Bill, I have laid the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016.

These regulations ensure that suspects being questioned at a police station will not have to pay any contribution toward the cost of the publicly-funded legal advice they receive. This not only removes any financial disincentive that might prevent suspects from accessing legal advice at this critical early stage, but also removes a piece of bureaucracy for solicitors who would otherwise have to assess and collect those contributions.

As the Committee is already aware, the Bill as passed will bring in a number of significant changes to the criminal justice process. This includes the earliest stages, such as questioning at a police station and the terms on which a person may be released from police custody. A number of changes to the structure of legal aid will be needed to support those reforms, which will be developed and discussed with the Scottish Legal Aid Board and the Law Society of Scotland ahead of implementing those measures.

In commenting on these regulations, the Law Society has taken the opportunity to raise two areas that it would like to be considered for review within the delivery of legal advice in police stations: the fees available, particularly for late night work; and the levels of bureaucracy involved in payment. While this instrument will remove some of that bureaucracy, I will be happy to consider these points as we restructure police station advice to facilitate implementation of the Criminal Justice Bill, in the context that remuneration for criminal legal aid work must be considered in the round.

Further, I have already made it clear to the Law Society that we plan to work with both them and the Scottish Legal Aid Board to review legal aid provision more widely. This is with a view to achieving a simpler and more efficient system, which manages expenditure while maintaining access to justice.

I expect these discussions to cover delivery as whole, including appropriate fee structures and administrative processes, to ensure that we have a sustainable legal aid system for Scotland.

The regulations I have laid therefore do not seek to make further alterations to publicly-funded legal advice in police stations ahead of those discussions. Instead, these regulations seek to make a straightforward change that will provide immediate benefit to both clients and solicitors.

Paul Wheelhouse
Minister for Community Safety and Legal Affairs
2 February 2016


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.

Footnotes:

1 [2010] UKSC 43

2 E.g. Our consultation response on the Introduction of Financial Contributions in Criminal Legal Aid and Changes to Financial Eligibility: http://www.gov.scot/Resource/Doc/254431/0119256.pdf

1 Scottish Parliament Justice Committee. Official Report 9 February 2016. Available at: http://www.scottishparliament.tv/Archive/Index/fb47f191-8a64-43e7-a581-42108956ff5c?categoryId=02b0ce45-3c90-4738-9580-25467469c73b&parentCategoryClicked=False&pageNumber=0&orderByField=ScheduledStart&queryOrder=DESC

2 Scottish Parliament Justice Committee. Official Report 9 February 2016. Available at: http://www.scottishparliament.tv/Archive/Index/fb47f191-8a64-43e7-a581-42108956ff5c?categoryId=02b0ce45-3c90-4738-9580-25467469c73b&parentCategoryClicked=False&pageNumber=0&orderByField=ScheduledStart&queryOrder=DESC

3 The Law Society Scotland, written submission to the Justice Committee (Annexe A) paragraph 4

4 Scottish Parliament Justice Committee. Official Report 9 February 2016. Available at: http://www.scottishparliament.tv/Archive/Index/fb47f191-8a64-43e7-a581-42108956ff5c?categoryId=02b0ce45-3c90-4738-9580-25467469c73b&parentCategoryClicked=False&pageNumber=0&orderByField=ScheduledStart&queryOrder=DESC

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