7th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 692 (Web only)

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:

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

Committee Clerking Team:

Joanne Clinton
Neil Stewart
Christine Lambourne

Subordinate Legislation

The Committee reports to the Parliament as follows—

BACKGROUND

1. At its meeting on 10 March 2015 the Committee considered the following instruments—

Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2015 [draft];

Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2015 [draft].

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

COURTS REFORM (SCOTLAND) ACT 2014 (CONSEQUENTIAL PROVISIONS) ORDER 2015 [DRAFT]

The draft instrument

3. The draft Order was laid under the powers conferred by section 137 of the Courts Reform (Scotland) Act 2014 and all other enabling powers. The instrument makes consequential amendments to other legislation to take account of changes made by the 2014 Act. It also makes amendments in consequence of the creation by the Act of the office of summary sheriff.

Scrutiny by the Delegated Powers and Law Reform Committee

4. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 3 March 2015 and agreed that it did not need to draw the attention of the Parliament to it on any grounds within its remit.1

Justice Committee consideration

5. The draft Order was considered by the Justice Committee on 10 March 2015, when Paul Wheelhouse, Minister for Community Safety and Legal Affairs was present to answer any questions on the instrument and to move the motion recommending approval.2

6. Mr Wheelhouse moved the motion lodged in his name: S4M-12522—That the Justice Committee recommends that the Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2015 [draft] be approved.

7. The motion was agreed to.

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

ADVICE AND ASSISTANCE (ASSISTANCE BY WAY OF REPRESENTATION) (SCOTLAND) AMENDMENT (NO. 2) REGULATIONS 2015 [DRAFT].

The draft instrument

9. The draft Regulations were laid under the powers conferred by section 9 of the Legal Aid (Scotland) Act 1986 and all other enabling powers. The purpose of the instrument is to amend the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 to make Assistance by Way of Representation (ABWOR) available for proceedings under the Counter-Terrorism and Security Act 2015. The proceedings for which ABWOR is made available are proceedings relating to the review of decisions relating to temporary exclusion orders (under section 11 of the 2015 Act) and proceedings relating to an application by a senior police officer under paragraph 8 of Schedule 1 to the 2015 Act for an extension of the 14-day period during which a travel document may be retained.

Scrutiny by the Delegated Powers and Law Reform Committee

10. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 3 March 2015 and agreed that it did not need to draw the attention of the Parliament to it on any grounds within its remit.3

Justice Committee consideration

11. The draft Regulations were considered by the Justice Committee on 10 March 2015, when it took evidence from Paul Wheelhouse, Minister for Community Safety and Legal Affairs.4

12. The Minister stated that, under the Counter-Terrorism and Security Act 2015, where there is a suspicion that a person has travelled abroad to participate in a war, their passport can be taken from them temporarily so that they cannot travel again. He then explained that, in circumstances where someone’s passport or travel documents had been removed, the Regulations would provide them with access to legal support more quickly than if they had to apply through the usual legal aid process.

13. In response to concerns about the consultation process, the Minister explained that, in view of the UK Government’s need for urgent legislation, the Scottish Government had a limited time in which to consult stakeholders. He confirmed that the Scottish Legal Aid Board and the Law Society of Scotland were made aware of the draft provisions but there had been insufficient time to carry out the normal process of consultation.

14. When asked to explain the financial effect of the Regulations and the estimate of less than £10,000 per year, the Minister stated that the UK Government estimated that the proportion of cases in Scotland would be around 4 per cent of the total, therefore the Scottish Government had based its costing on four cases per year. Mr Wheelhouse added that, even if the figure doubled and the proportion in Scotland matched the UK proportion of 8.5 per cent per year, the estimated cost to the legal aid fund would be around £12,000 to £16,000.

15. When asked about the process for removing a person’s passport or travel documents, a Scottish Government official explained that these documents would be retained at the port of exit by an official and a senior police officer, who can authorise their retention for up to 14 days. He went on to state that the authorities are able to apply to the sheriff for an extension to this retention period and that the proceedings in connection with that application could attract ABWOR under the instrument.

16. Mr Wheelhouse then moved the motion lodged in his name: S4M-12524—That the Justice Committee recommends that the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2015 [draft] be approved.

17. The motion was agreed to.

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


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 Scottish Parliament Delegated Powers and Law Reform Committee. 16th Report, 2015 (Session 4). Subordinate Legislation. Available at: http://www.scottish.parliament.uk/S4_SubordinateLegislationCommittee/Reports/suR-15-16w.pdf

2 Scottish Parliament Justice Committee. Official Report, 10 March 2015. Available at:

http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=9828&mode=pdf

3 Scottish Parliament Delegated Powers and Law Reform Committee. 16th Report, 2015 (Session 4).

4 Scottish Parliament Justice Committee. Official Report, 10 March 2015.

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