Chamber
Plenary, 14 Dec 2006
14 Dec 2006 · S2 · Plenary
Item of business
Legal Profession and Legal Aid (Scotland) Bill: Stage 3
Amendments 154 and 155 concern solemn criminal legal aid. Amendment 157 concerns legal aid in criminal appeal cases and cases before the Judicial Committee of the Privy Council. Amendment 165 concerns legal aid in certain proceedings that relate to children. The amendments widen the scope of the Scottish Legal Aid Board's condition-making powers. Such powers were introduced at stage 2 for civil and summary criminal legal aid, and the amendments introduce such a power in relation to solemn criminal legal aid. Amendments 156 and 164 are consequential amendments.
The amendments in the group will ensure that publicly funded legal assistance and representation is appropriately provided at all stages of cases in which it has been made available. Amendment 154 will allow the Scottish Legal Aid Board the flexibility to impose such conditions as it considers expedient during the currency of a solemn case. Solemn criminal legal aid will still be available under section 23 of the Legal Aid (Scotland) Act 1986 subject to the existing financial eligibility test, which determines that legal aid should be available for an applicant who cannot meet the expenses of the case without undue hardship to them or their dependants.
Amendment 154 will enable the board to ascertain that people who receive legal aid continue to meet the financial criteria throughout the currency of their case. At present, when solemn legal aid is granted, it is not reviewed to establish whether the financial conditions continue to apply throughout the case. Cases can last a long time and the person's financial circumstances might change considerably. Amendment 154 will enable the board to ensure that legal aid should remain in place.
Amendment 155 provides the safeguard of a review mechanism whereby the board will establish a procedure that allows anyone who receives criminal legal aid that is subject to such conditions to apply for a review of those conditions.
Amendment 157 will give the board greater flexibility in imposing conditions to grants of legal aid in criminal appeal cases and cases before the Judicial Committee of the Privy Council. Legal aid will still be available subject to the eligibility tests in sections 25(2) and 25AB(2) of the 1986 act.
Amendment 165 will allow the board similar flexibility to impose conditions in certain proceedings that relate the children. As before, legal aid will still be available subject to the eligibility tests in section 29 of the 1986 act.
Amendments 157 and 165 will allow the board to require a person who receives legal aid to comply with such conditions as it considers expedient. Conditions may be imposed either when legal aid is granted or subsequently. The amendments will ensure that there is a consistent approach to the various types of legal aid. As with solemn criminal legal aid, the amendments will provide a review mechanism whereby the board will review decisions to refuse legal aid or to grant legal aid subject to conditions, if an application is made to it.
In criminal appeal cases, there is an existing power under section 25(2A) of the 1986 act for the High Court to determine that it is in the interests of justice for legal aid to be available in criminal appeal cases where the board has refused legal aid on the basis that it is not satisfied that it is in the interests of justice for it to be made available. Amendment 157 seeks to add new section 25(2B) of the 1986 act to provide for an extension of the High Court's powers. It provides that where, as a result of a condition that the Scottish Legal Aid Board has imposed, it terminates legal aid on the ground that it is no longer satisfied that it is in the interests of justice for legal aid to be available, the High Court can determine that legal aid should be made available for an appeal if it thinks that it is in the interests of justice for it to do so. Following such a determination, the board shall make legal aid available.
I move amendment 154.
The amendments in the group will ensure that publicly funded legal assistance and representation is appropriately provided at all stages of cases in which it has been made available. Amendment 154 will allow the Scottish Legal Aid Board the flexibility to impose such conditions as it considers expedient during the currency of a solemn case. Solemn criminal legal aid will still be available under section 23 of the Legal Aid (Scotland) Act 1986 subject to the existing financial eligibility test, which determines that legal aid should be available for an applicant who cannot meet the expenses of the case without undue hardship to them or their dependants.
Amendment 154 will enable the board to ascertain that people who receive legal aid continue to meet the financial criteria throughout the currency of their case. At present, when solemn legal aid is granted, it is not reviewed to establish whether the financial conditions continue to apply throughout the case. Cases can last a long time and the person's financial circumstances might change considerably. Amendment 154 will enable the board to ensure that legal aid should remain in place.
Amendment 155 provides the safeguard of a review mechanism whereby the board will establish a procedure that allows anyone who receives criminal legal aid that is subject to such conditions to apply for a review of those conditions.
Amendment 157 will give the board greater flexibility in imposing conditions to grants of legal aid in criminal appeal cases and cases before the Judicial Committee of the Privy Council. Legal aid will still be available subject to the eligibility tests in sections 25(2) and 25AB(2) of the 1986 act.
Amendment 165 will allow the board similar flexibility to impose conditions in certain proceedings that relate the children. As before, legal aid will still be available subject to the eligibility tests in section 29 of the 1986 act.
Amendments 157 and 165 will allow the board to require a person who receives legal aid to comply with such conditions as it considers expedient. Conditions may be imposed either when legal aid is granted or subsequently. The amendments will ensure that there is a consistent approach to the various types of legal aid. As with solemn criminal legal aid, the amendments will provide a review mechanism whereby the board will review decisions to refuse legal aid or to grant legal aid subject to conditions, if an application is made to it.
In criminal appeal cases, there is an existing power under section 25(2A) of the 1986 act for the High Court to determine that it is in the interests of justice for legal aid to be available in criminal appeal cases where the board has refused legal aid on the basis that it is not satisfied that it is in the interests of justice for it to be made available. Amendment 157 seeks to add new section 25(2B) of the 1986 act to provide for an extension of the High Court's powers. It provides that where, as a result of a condition that the Scottish Legal Aid Board has imposed, it terminates legal aid on the ground that it is no longer satisfied that it is in the interests of justice for legal aid to be available, the High Court can determine that legal aid should be made available for an appeal if it thinks that it is in the interests of justice for it to do so. Following such a determination, the board shall make legal aid available.
I move amendment 154.
In the same item of business
Resumed debate.
Section 23—Duty of Commission to make rules as to practice and procedure
The Deputy Presiding Officer (Trish Godman):
Lab
Group 17 is about publication of and consultation on rules as to the commission's practice and procedure. Amendment 66, in the name of David Davidson, is gro...
Mr Davidson:
Con
Amendments 66 and 67 enhance accountability and transparency, which is essential in a process as technical as the workings of the Scottish Legal Complaints C...
Johann Lamont:
Lab
We continue this afternoon as we started this morning.Amendment 69 adds the Lord President to the list of those whom the commission is required to consult be...
Mr Davidson:
Con
I thank the minister for understanding what we are seeking to do to improve the bill. I very much welcome her support in these matters.
Amendment 66 agreed to.
Amendments 67 and 68 moved—Mr David Davidson—and agreed to.
Amendment 69 moved—Johann Lamont—and agreed to.
Amendment 70 moved—Mr David Davidson—and agreed to.
After section 27
The Deputy Presiding Officer:
Lab
Group 18 is on a report to Scottish ministers on conduct complaints. Amendment 5, in the name of John Swinney, is grouped with amendment 7.
Mr Swinney:
SNP
One of the matters discussed at length during consideration of the bill at stages 1 and 2 was whether complaints about services and conduct should be handled...
Mr Davidson:
Con
I am afraid that I cannot support John Swinney's amendment 5, for the simple reason that what he proposes involves a conflict of interests. If he is so keen ...
Colin Fox (Lothians) (SSP):
SSP
Mr Swinney raises an important issue that is at the centre of the bill. The Justice 2 Committee spent a lot of its time considering conduct complaints, and i...
Johann Lamont:
Lab
Amendment 5 has some attraction, in so far as it would require the commission to review its operations after its first two years. We commend such reviews as ...
Mr Swinney:
SNP
David Davidson seems to have fundamentally misunderstood or misread amendment 5. I am almost tempted to allow him to make a further speech in case he is more...
Members:
No.
Mr Swinney:
SNP
My colleagues are encouraging me not to be so generous, so I should perhaps withdraw that offer.The purpose of amendment 5 is not to ensure that the commissi...
The Deputy Presiding Officer:
Lab
The question is, that amendment 5 be agreed to. Are we agreed?
Members:
No.
The Deputy Presiding Officer:
Lab
There will be a division. There will be a five-minute suspension to allow members to come into the chamber.
Meeting suspended.
On resuming—
The Deputy Presiding Officer:
Lab
We will proceed with the division on amendment 5, in the name of John Swinney.
ForAdam, Brian (Aberdeen North) (SNP) Baird, Shiona (North East Scotland) (Green) Ballance, Chris (South of Scotland) (Green) Ballard, Mark (Lothians) (Green...
The Deputy Presiding Officer:
Lab
The result of the division is: For 33, Against 71, Abstentions 1.
Amendment 5 disagreed to.
Section 28—Obtaining of information from relevant professional organisations
Amendment 71 moved—David Davidson.