§ 4.40 p.m.
§ The Lord Advocate (Lord Hardie) rose to move, That the draft regulations laid before the House on 27th November be approved [15th Report from the Joint Committee].—
§ The noble and learned Lord said: My Lords, with your Lordships' permission I shall move these regulations en bloc. It may be convenient if I give an explanation to the main purpose of both draft statutory instruments amending the legal aid regulations.
§ First, the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1997 extend the availability of assistance by way of representation to cover certain forfeiture and confiscation proceedings under the Proceeds of Crime (Scotland) Act 1995.
§ Under that Act there are provisions which enable someone other than an accused person to make representations in relation to certain proceedings to confiscate and forfeit proceeds and property. Legal aid is not currently available to cover representation of such persons at such proceedings. Given Parliament's intention that an individual other than an accused person should be able to make representations in relation to this, we believe that it is only right that legal aid should be available in appropriate cases. Extending assistance by way of representation is the most practical. straightforward means of ensuring that this happens.
§ Secondly, the regulations extend assistance by way of representation to ensure that it covers all situations involving amendment or revocation of community service and supervised attendance orders under the Criminal Procedure (Scotland) Act 1995. At present assistance by way of representation is available in 803 relation to a breach of an order and any amendment or revocation associated with that. It is not, however, available in non-breach proceedings. If amendment or revocation of an order arises in a non-breach case, persons can get criminal legal aid if they had previously received it in relation to the original procedures which resulted in the order. But if they did not previously get criminal legal aid it cannot be made available. Extending advice and assistance by way of representation resolves this minor anomaly.
§ Thirdly, the regulations extend the availability of assistance by way of representation to ensure that any person likely to be imprisoned in civil proceedings can obtain legal representation. This arises from a case brought before the European Court of Human Rights. The case in question is that of Stephen Benham. who was refused legal aid to cover representations at proceedings relating to his failure to pay poll tax. The European Court held that this was a breach of Article 6(3)(c) of the European convention because in such circumstances an individual is entitled to be given legal assistance free where he has insufficient means to pay for it. The change which is brought forward gives effect to the European Court judgment and reflects similar change which was brought forward earlier this year in England and Wales.
§ On the second statutory instrument, the main changes to the Criminal Legal Aid (Scotland) (Prescribed Proceedings) Regulations 1997 are entirely consequential on the extension of assistance by way of representation. They ensure that there is no duplication in the system and that no administrative inefficiencies are introduced.
§ While the regulations make only minor changes to legal aid arrangements in Scotland, they improve access to justice for individuals who require it. I commend the draft instruments to your Lordships' House. I beg to move.
§ Moved. That the draft regulations laid before the House on 27th November be approved (15th Report from the Joint Committee1.—(Lord Hardie.)
§ On Question, Motion agreed to.