12th Report, 2015 (Session 4): Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 3) Regulations 2015

SP Paper 770 (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:

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

Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 3) Regulations 2015

The Committee reports to the Parliament as follows—

Introduction

1. At its meeting on 23 June 2015 the Committee considered the following instrument—

Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 3) Regulations 2015 [draft]

2. The instrument was referred to the Justice Committee as lead committee and it was subject to the affirmative procedure. The Minister for Community Safety and Legal Affairs, Paul Wheelhouse, gave evidence on the instrument and also moved the relevant motion recommending approval of the instrument.

Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 3) Regulations 2015 [draft]

The draft instrument

3. The draft instrument was made under the powers conferred on the Scottish Ministers by section 9 of the Legal Aid (Scotland) Act 19861 and all other enabling powers.

4. The Regulations amend the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (“the Principal Regulations”). They add applications under the Double Jeopardy (Scotland) Act 2011 to the list of prescribed proceedings in regulation 9 of the Principal Regulations in respect of which assistance by way of representation is available without reference to the financial limits under section 8 of the Legal Aid (Scotland) Act 1986 (availability of advice and assistance) and in respect of which section 11(2) of that Act (client’s contributions) does not apply.

Scrutiny by the Delegated Powers and Law Reform Committee

5. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 16 June 2015 and agreed that it did not need to draw it to the attention of the Parliament on any grounds within its remit.2

Justice Committee consideration

6. The draft Regulations were considered by the Justice Committee at its meeting on 16 June 2015, when it took evidence from Paul Wheelhouse, Minister for Community Safety and Legal Affairs.3

7. The Committee noted that the Law Society of Scotland had reviewed the draft Regulations and that it had no comments to make on their terms.

8. The Minister stated that an application had been made to the High Court by the Lord Advocate under the double jeopardy provisions and that the person the subject of the application did not currently qualify for assistance by way of representation. Mr Wheelhouse explained that, as the individual concerned had been acquitted of a crime, it was considered that public funding should be made available to secure the person’s access to justice in terms of article 6 of the European convention on human rights.

9. The Minister assured the Committee that this change would have little impact on the overall expenditure from the legal aid fund given that the double jeopardy provisions were rarely used. He confirmed that to date only three such applications had been made and that he was confident that this level of expenditure could be borne by the legal aid budget.

10. Mr Wheelhouse then moved the motion lodged in his name: S4M-13502—That the Justice Committee recommends that the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 3) Regulations 2015 [draft] be approved.

11. The motion was agreed to.

12. 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 1986 c.47; section 9(2)(dd) and (de) was inserted by the Access to Justice Act 1999 (c.22), section 32. There are other amendments to that section which are not relevant to these Regulations. The functions of the Secretary of State were transferred to the Scottish Ministers by section 53 of the Scotland Act 1998 (c.46).

2 Scottish Parliament Delegated Powers and Law Reform Committee. 38th Report, 2015 (Session 4). Subordinate Legislation. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/90668.aspx

3 Scottish Parliament Justice Committee. Official Report, 23 June 2015. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10036

Back to top

This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.