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Justice Committee 13 November 2012

13 Nov 2012 · S4 · Justice Committee

Item of business

Scottish Civil Justice Council and Criminal Legal Assistance Bill: Stage 2

Mitchell, Margaret Con Central Scotland Watch on SPTV

Amendments 19 and 20 seek to require Scottish ministers to make regulations that explicitly state what the bill means by “disposable income” and “disposable capital”. I accept that the definition of disposable income will inevitably be complex, which is why I am not suggesting that it be included in the bill. Nevertheless, it is important to have a legally binding definition and that Parliament be given the opportunity to consider it.The definition of “disposable income” is central to the working of the legislation, because it determines the point at which an individual is required to contribute to their legal representation. If the threshold is wrong, poor and vulnerable people could be forced to pay when they might be unable to afford to do so. Although the cabinet secretary and the Scottish Legal Aid Board have assured the committee that disposable income would be determined only after a long list of necessary costs were deducted, evidence given to the committee shows that stakeholders disagree on what exactly should be included as disposable income. For example, some witnesses have expressed concern that non-passported benefits will be taken into account, while others have called for the disability living allowance and its replacement to be disregarded.10:45 The inclusion of the resources of spouses or partners could also cause confusion and I believe that it could be controversial. Does it mean that, if the total household disposable income exceeds the threshold, one member of the household who has been accused of a crime and who earns below the threshold will have to make a contribution? Equally, there is much confusion over what is to constitute disposable capital. The policy memorandum to the bill states:“Capital includes savings and anything else of value owned by the client”,with some essential exceptions. That, in turn, could result in elderly individuals who may have significant capital but no disposable income being forced to contribute to legal aid. Such questions cannot be left to interpretation and should be set out in subordinate legislation. In the interests of clarity, the cabinet secretary must come up with a definitive list that can be debated so that those accused of a crime know exactly what will be taken into account as income and capital and what will not.Amendment 19 would oblige ministers to make regulations about contributions for criminal legal assistance. The bill currently gives ministers that power without requiring regulations. Amendment 20 would ensure that ministers include a definition of both disposable income and disposable capital in the regulations.I am sympathetic to the intent behind the amendments in Jenny Marra’s name, but they would result in uncertainty as to the precise threshold. At this point in time and for that reason, I cannot support them.

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Justice Committee 13 November 2012

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