§ 7.50 p.m.
§ Lord Fraser of Carmyllie rose to move, That the draft regulations laid before the House on 18th November be approved [1st Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, the two sets of draft legal aid regulations before us are subject to the affirmative resolution procedure. They were approved after a debate in another place on 7th December.
§ These regulations make legal aid available to two categories of prisoners, in the light of recent 1087 developments in both statute and case law. It may be of assistance to the House if I describe briefly the effect of the regulations.
§ The first category of prisoners who will benefit from the new arrangements includes discretionary life prisoners as defined in Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. When a court imposes a life sentence as the maximum penalty for a crime or crimes other than murder, it may under Section 2 of the 1993 Act make an order specifying a period known as the "relevant part", which is in effect a period to be served as punishment for the offence. Once the prisoner has served that period, he is entitled to require the Secretary of State to refer his case to the Parole Board. If the board is satisfied that the prisoner no longer needs to be confined for the protection of the public, it is empowered to direct the Secretary of State to release the prisoner on licence.
§ For the purpose of such referrals, the Parole Board will take the form of a tribunal appointed by its chairman and itself chaired by a judge. That is in accordance with the Parole Board (Scotland) Rules 1993 which, like the relevant provisions of the Act, came into force on 1st October. Under these rules, the proceedings of such a tribunal will be akin to those of a court. Among other things, the prisoner will be entitled to be present and to be legally represented.
§ During the passage of the Prisoners and Criminal Proceedings (Scotland) Bill, undertakings were given that prisoners appearing before such tribunals would be entitled to legal representation. These undertakings were implemented by the rules to which I referred, and the regulations before the House today make the necessary provision for legal aid in connection with that representation.
§ I should perhaps add that the category of prisoners concerned also includes prisoners sentenced before 1st October who have, by virtue of the transitional provisions of the Act, been brought within the scope of the relevant provisions in Section 2 and elsewhere. We expect the first hearings before discretionary lifer tribunals of the Parole Board to be held early in the new year.
§ The second category who will be entitled to legal aid in future comprises those prisoners who are permitted by the governor to be legally represented at disciplinary hearings before him. Extending legal aid to cover representation at disciplinary proceedings simply aligns the Scottish position with the English one.
§ We have tried to make the provision of legal aid in these cases as simple and straightforward as possible. The form of legal aid provided will be assistance by way of representation—known in shorthand as ABWOR. ABWOR, which is already available for certain other types of case, is an extension of the concept of advice and assistance and can be provided by any solicitor.
§ ABWOR adds to the standard arrangements for advice and assistance coverage of the costs of legal representation of a person at a court or other hearing—in this case, in front of a Parole Board tribunal or the prison governor.1088
§ We expect that ABWOR will be available to all prisoners who have to appear before the hearings in question. They will be subject to the normal means test for advice and assistance, but in the vast majority of cases prisoners will not have significant means of their own.
§ We are not providing for any test of the merits of their case, since by definition the hearings will be looking at serious issues such as the possible release of life prisoners and it can therefore be taken that the provision of ABWOR is in the interests of justice. I commend the regulations to the House.
§ Moved, That the draft regulations laid before the House on 18th November be approved [1st Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
§ Lord Macaulay of Bragar
My Lords, both sets of regulations are welcomed on this side of the House. I am sure that they will add to the fairness of and ensure fairness in the proceedings and may indeed eliminate unnecessary complaints emanating from the areas within which they will apply. We welcome them.
§ On Question, Motion agreed to.