Equalities, Human Rights and Civil Justice Committee [Draft]

Meeting date: Tuesday, March 26, 2024

Official Report 512KB pdf

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Subordinate Legislation

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Legal Aid (Miscellaneous Amendment) (Scotland) Regulations 2024 [Draft]

Welcome to the ninth meeting in 2024 of the Equalities, Human Rights and Civil Justice Committee. We have apologies from Meghan Gallacher.

Item 1 is consideration of a draft affirmative instrument: the Legal Aid (Miscellaneous Amendment) (Scotland) Regulations 2024. I welcome Siobhian Brown, Minister for Victims and Community Safety, and her Scottish Government officials: Emma Thomson, solicitor with the legal directorate, and Katie Case, legal aid policy officer in the access to justice team.

I refer members to paper 1, and I invite the minister to speak to the draft instrument.

Good morning. I congratulate you on your new role, convener.

Thank you for the opportunity to speak to the committee about the draft Legal Aid (Miscellaneous Amendment) (Scotland) Regulations 2024, which have been lodged to deliver changes to existing legal aid regulations, primarily to ensure continued access to justice in Scotland.

First, the regulations provide for children’s legal aid to be automatically available to the child in a children’s hearing system case in which a pre-hearing panel or the children’s hearing is considering the imposition of a compulsory supervision order that includes a movement restriction condition. The Children (Care and Justice) (Scotland) Bill seeks to ensure that 16 and 17-year-olds will not be sent to young offenders institutions from 2024 onwards. In order to achieve that, it is likely that there will be an increased use of movement restriction conditions. Legal aid is currently automatically available for children if a pre-hearing panel or children’s hearing considers that it might be necessary to impose a compulsory supervision order that will include a secure accommodation authorisation. However, it is not available in cases in which the panel or hearing is considering a compulsory supervision order that includes a movement restriction condition.

Secondly, the regulations make provision to uplift the current counsel accommodation allowance. Existing regulations provide that counsel who must travel to appear in cases, such as when the High Court goes on circuit and sits outside the central belt, may claim accommodation and subsistence allowance. It has become apparent that, in a number of instances, the current allowance is insufficient to cover the costs of accommodation. The regulations raise the accommodation allowance and introduce a new provision to allow for it to be exceeded if certain conditions are met, including the condition that counsel has received the prior approval of the Scottish Legal Aid Board. That will allow the board the flexibility to approve hotel costs above the standard limit, albeit that it is predicted that that will be a very rare occurrence.

Finally, regulations introduce specific counsel fees for written submissions when they are required by the court. In particularly complex or technical cases, albeit rarely, the court has requested written submissions in preparation for a trial. Due to the nature of the submissions, the preparation that is involved can take several hours or, in some cases, days. Currently, there is no separate fee for that work; it is simply subsumed into the preliminary hearing preparation fee. The regulations will amend the fee table to provide fees for junior and senior counsel to be payable for criminal cases in which a written submission has been requested by the court.

That gives you a brief overview of the regulations and their context, and I am happy to answer any questions.

Thank you, minister. I invite members to ask any questions that they may have.

Good morning, minister, and thank you for joining us this morning. I have a quick question about the expansion of the provision of legal aid to children who might be subject to MRCs. How do you expect that those who qualify will be informed of the fact that legal aid is provided? Will provision be automatic, or will some kind of application be needed?

My understanding is that it will be automatic, but I will bring one of my officials in on that.

It will be automatic.

Is no provision of information required for anyone in the process to ensure that it has happened?

It should be automatic. Any child who is going through the process will be entitled to legal aid.

Thank you.

As no other member of the committee has indicated that they wish to ask questions or make any comments, we move straight to item 2, which is formal consideration of motion S6M-12219.

Motion moved,

That the Equalities, Human Rights and Civil Justice Committee recommends that the Legal Aid (Miscellaneous Amendment) (Scotland) Regulations 2024 [draft] be approved.—[Siobhian Brown]

Motion agreed to.

I invite the committee to agree to delegate to me the publication of a short factual report on our deliberations on the affirmative Scottish statutory instrument that we have considered.

Members indicated agreement.

That completes our consideration of the affirmative instrument. I thank the minister and her officials for attending. We will have a brief suspension for a changeover of witnesses.

10:06 Meeting suspended.  

10:08 On resuming—