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Election delays arrest and detention reforms – and legal aid tussle

16 May 2017

Reforms to arrest and detention law in Scotland have been put back until next winter – at the same time as the Scottish Legal Aid Board has put forward revised proposals regarding legal aid provision for the new procedures.

Part 1 of the Criminal Justice (Scotland) Act, which replaces the present procedures of detention and arrest with a single, more flexible concept of arrest, had been planned by the Scottish Government to come into force on 20 July 2017. But the announcement of the UK general election has stalled this, because orders have to be made by the Westminster Parliament, under s 104 of the Scotland Act 1998, to enable Scottish police officers to exercise their powers in cross-border situations, and to enable other officers such as those of HMRC and the British Transport Police to operate under the new framework in Scotland.

Commencing the provisions without a common timetable for the various forces and agencies affected "would be problematic for a variety of operational reasons", Justice Secretary Michael Matheson stated in a letter to Holyrood's Justice Committee. Current indications are of a delay of some months, putting back the commencement date until next winter.

The longer lead-in provides more time to resolve an issue between the Law Society of Scotland and the Scotttish Legal Aid Board over legal aid payments under the new provisions, along with the code of conduct proposed by SLAB for solicitors providing police station advice. Some solicitors had threatened to refuse to provide services under the new provisions in view of the low level of payments offered, while the Society regarded the code as clashing with its own regulatory duties.

A statement from SLAB said that the Minister for Community Safety & Legal Affairs "has now written to the Law Society of Scotland outlining her position on these new fees. This includes increases to the initial proposals for block fees for police station work, and increases to the time when a premium will be paid and applying this to travelling time and phone calls too".

It added that the rescheduling of part 1 "provides an opportunity over the summer months to engage with solicitors on the Scottish Government’s proposals for the provision of police station advice and on future wider changes to summary and solemn criminal legal aid fee structures. It will also allow for further discussions with solicitors as we respond to feedback and develop the new draft Criminal Code of Practice".

The statement includes details of the revised fee proposals.

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