Hansard

Amendments 4 and 12 delete section 2 from the bill and make a consequential amendment to the long title. The Government has been opposed to section 2, which removes the legal aid means test, throughout the bill proceedings, as committee members will recall from stage 1. We have concerns about costs, which might range up to £1.5 million per year. We also have concerns about how section 2 would work when an action covers a domestic abuse civil protection order and other matters such as divorce, or contact and residence orders. So there are two general concerns: costs, and the impact on cases in which there are many other craves and issues in dispute and how that will work in practice, as the committee will remember from the persuasive and practical evidence that it took from the Law Society and the SLAB. Accordingly, the committee expressed some of its concern about section 2 in its stage 1 report. Rhoda Grant lodged amendment 13, which would also remove section 2, and I appreciate that there has been a spirit of compromise; I alluded to that earlier. However, amendment 13 would also introduce substantial further provisions. Regrettably, the Government does not support amendment 13 for a number of reasons. We are concerned that it lacks clarity. There is also a possibility that it might make matters worse for victims rather than better, which is obviously not intended, but sometimes unintended consequences can arise.The first proposal in amendment 13 is that the SLAB would have to make legal aid available in the absence of an application, or without an application being determined, subject to three conditions being met. The conditions are set out in amendment 13 as conditions A, B and C—probabilis causa and other provisions. However, without an application, it is unclear how the board could satisfy itself that those three conditions have been met. An application would, by definition, be necessary for the board to be satisfied that the three conditions had been met.12:00 Even if the board could make those assessments, it might take longer than the current special urgency arrangements. I know that delay is most certainly not what is intended; in fact, I imagine that it is the opposite of what is intended. Any delay in the accessibility of legal aid in these circumstances can be a matter of severe concern for females, in particular, who are likely to be the pursuer seeking legal aid for these purposes.The current special urgency arrangements allow a solicitor in a set number of circumstances, which include moving for an order for a power of arrest, to carry out especially urgent work without consulting the board. Solicitors are merely required to tell the board within 28 days of starting the work that they have done so. That is the point at which the board makes the determination as to whether, at the time the work was undertaken, there was a probable cause and it was reasonable in the particular circumstances of the case.Condition B as proposed in amendment 13 is either that documents cannot safely be accessed or that the work is required as a matter of special urgency. That could suggest that the procedures might apply in cases where there is no special urgency, although I am not sure that that is the intention.Amendment 13 would require the board to disregard any resources if a person was unable to access them safely. In current law and practice, if someone has had to flee the home, the board can assess them as having no resources for legal aid purposes. I heard Rhoda Grant say that anecdotal evidence suggests that that might not happen. The fact is that it can happen. If there is a difficulty, I submit that it is a difficulty of practice and procedure, rather than one that requires legislative change. In any event, that is different from making a judgment about what is safe. Amendment 13 might make matters less clear for the victim than they are under the current system, whereby, as I said, the board can assess someone as having no resources for legal aid purposes if they have had to flee the home. That is a practical and real dilemma for many females, in particular. Rhoda Grant is quite right to seek to bring the issue to the Parliament in this way.The Scottish Legal Aid Board has produced a comprehensive statement of its support for victims of domestic abuse, which I have sent to Rhoda Grant. Part of that is a duty, which at my instigation was inserted into the Legal Services (Scotland) Bill, to monitor the availability of legal aid throughout Scotland—a proactive duty incumbent on the SLAB for the very first time.Although we entirely sympathise with the objectives, it is for those reasons, as well as our concerns on financial grounds, that we consider amendment 13 unnecessary and potentially confusing.Rhoda Grant’s amendment 14 relates to the changes made, but not yet commenced, to the Legal Aid (Scotland) Act 1986 by section 141 of the Legal Services (Scotland) Act 2010. Once commenced, section 141 of the 2010 act will give the board the function of monitoring the availability and accessibility of legal services.Amendment 14 would introduce a separate and express requirement on the board to report on the availability and accessibility of legal services for persons seeking civil protection orders in relation to domestic abuse. It would also require ministers to lay that part of the report before the Parliament. With respect, I do not believe that those additional requirements are necessary to help implement the board’s new role in reporting on the availability and accessibility of legal services. The board is setting up an access to justice reference group. Members might recall our discussions on this matter in relation to the Legal Services (Scotland) Bill and my determination—I am not sure that I can use the word “insistence”, because I cannot insist that the board do anything—and strong wish that the board include Scottish Women’s Aid on that forum. I am pleased to say that Scottish Women’s Aid has been invited to join the group. The Government already recognises that access to justice for domestic abuse victims is important. Adding further specific duties and burdens may risk creating unnecessary work for no discernible benefit.For those reasons, I invite the committee to reject amendments 13 and 14 and to agree to Government amendments 4 and 12.