Section 2 — Appointment of solicitor by court in such cases and availability of legal aid

Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:45 pm on 6th March 2002.

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Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I am aware that this matter was canvassed in committee at stage 2, but it received only a brief airing at that point and I thought that it was worth having a slightly longer discussion.

There are real concerns among practising solicitors about the position that they will be in when the legislation comes into force. The concern is that there is no specific provision for the regulation of the relationship between the court-appointed solicitor and the client in so far as their professional—and, indeed, statutory—duties to their clients are concerned. There is great concern that the amendment is necessary to define the altered nature of that solicitor-client relationship. There is a new role for solicitors, albeit one that will not occur very often. Solicitors' terms and conditions are, in a sense, already dealt with by statute—solicitors have statutory obligations in respect of their work. If there is to be a new court-appointed role for solicitors, we should consider regulation of that as well. The real concern is that solicitors could end up finding themselves breaching their professional responsibilities and that a knock-on effect might be internal disciplinary proceedings against them in the Law Society of Scotland. We must consider solicitors' concerns in that regard carefully.

It is fair to say that amendment 9 mirrors similar sections in other pieces of legislation that deal with court-appointed solicitors. It mirrors the Youth Justice and Criminal Evidence Act 1999, which invoked similar provisions in sexual offences cases in England and Wales. In that act, there is a clear indication that a court-appointed solicitor in sexual offences proceedings is not responsible in any way to the accused. The act appears to recognise the altered nature of the solicitor-client relationship in cases such are those that are suggested in the bill.

We must think carefully about where we are going. In other pieces of legislation—and not only in the one that I mentioned—the issue has been addressed more explicitly. The Terrorism Act 2000 has a similar specific provision in respect of solicitors appointed in connection with immigration appeals, which explicitly states that such a solicitor will not be responsible to the client, because the conduct of solicitors is defined by statute.

The amendment tries to bring the bill into line with the practice that appears in other legislation. Such a provision is necessary if we are to go down the court-appointed solicitor road in Scotland.

I move amendment 9.

Photo of Bill Aitken Bill Aitken Conservative

I support amendment 9. It is important to highlight the fact that the relationship that will exist between a solicitor appointed under the circumstances that we are discussing and the normal solicitor-client relationship are quite different. In cases where the solicitor is appointed by the court, he will have no particular duty or loyalty to the client. Indeed, in many cases, he will be dealing with the type of dysfunctional character who frequently appears in our courts.

Where a solicitor has been imposed on a client, the relationship between solicitor and client will, by necessity, be somewhat more difficult and complex and, on occasion, infinitely more fractious. Therefore, it is essential that there is something in the bill to provide protection for solicitors. As Roseanna Cunningham has quite correctly pointed out, other pieces of legislation, including the Terrorism Act 2000 and certain immigration proceedings, incorporate that protection. That is entirely appropriate.

Photo of Pauline McNeill Pauline McNeill Labour

The Justice 2 Committee examined carefully the role of the solicitor, particularly in cases where there is a difficult relationship between solicitor and client because the solicitor has been imposed on the client. Will Bill Aitken comment on the evidence from the Public Defence Solicitors Office witnesses, who said that there are often initial difficulties, but clients eventually realise that it is in their interests to have a solicitor and so co-operate with the solicitor who has been appointed against their wishes to represent them?

Photo of Bill Aitken Bill Aitken Conservative

Pauline McNeill is perfectly correct to point out that that was the evidence from the public defenders. However, we also heard evidence from the Law Society of Scotland, which flagged up the potential difficulties that could arise in such cases. I know that we are talking in a vacuum to some extent, because the number of such cases will be infinitesimally small, but it is important nevertheless that protection is in place so that solicitors can be reassured. If that protection is not incorporated in the bill, solicitors will be rather reluctant to take up such cases. There is significant merit in amendment 9, and the Conservatives will support it.

Photo of Richard Simpson Richard Simpson Labour

As Roseanna Cunningham said, amendment 9 attempts to define further the relationship between an accused and his court-appointed solicitor. Section 288D of the Criminal Procedure (Scotland) Act 1995, which section 2 inserts, will impose a duty on the solicitor

"to ascertain and act upon the instructions of the accused".

It also states that, where a solicitor receives

"no instructions or inadequate or perverse instructions", his duty is

"to act in the best interests of the accused."

Otherwise, a court-appointed solicitor has the same obligations and authority as a solicitor who is chosen by the accused.

Roseanna Cunningham and Bill Aitken both referred to other UK acts. The Terrorism Act 2000 relates specifically to security and terrorism matters, which are quite different from sexual offences. The Youth Justice and Criminal Evidence Act 1999 makes provision for a court-appointed lawyer, but only to deal with cross-examination, whereas the bill that we are now considering will deal with the entire proceedings. Therefore, a corresponding provision in the bill would be difficult to justify.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

Given that the bill's scope is wider than that of the acts that have been mentioned, is not there even more—rather than less—reason to ensure that the situation is clarified?

Photo of Richard Simpson Richard Simpson Labour

A solicitor's duty to act in the best interests of his client will cover that. Solicitors must always act professionally, within whatever limits are set, so the matter is already covered.

The first, second and fifth new subsections proposed by amendment 9 do not add to what is already in the bill. The term, "inadequate or perverse instructions", which the bill uses, is adequate to cover instructions that could not be carried out by a solicitor following the normal rules of professional ethics, which it is clear will continue to apply.

The third new subsection proposed by amendment 9 would allow the court-appointed solicitor to withdraw unilaterally from acting. If solicitors kept doing that, the trial of the accused could be prevented from taking place at all.

Photo of Bill Aitken Bill Aitken Conservative

Does the minister agree that questions remain from the case of Her Majesty's Advocate v Anderson, which to some extent defined the relationship between a solicitor and their client? Does he agree that part of the finding in that case could impinge on this legislation and that the legislation would be more comfortable if amendment 9 were to be incorporated?

Photo of Richard Simpson Richard Simpson Labour

I disagree. I want to continue.

It would be a serious discourtesy to the court whose appointment the solicitor had accepted if the solicitor were to withdraw unilaterally. We believe that, if the court appointed the solicitor, only the court should be able to end the appointment.

Section 288D(5A) would allow the court to discharge a solicitor that it had appointed and choose a replacement if the original appointee could provide genuine reasons for being unable to continue. That is an appropriate safeguard for the solicitor.

The third and fourth new subsections proposed by amendment 9 would allow a solicitor who could not obtain appropriate instructions to act according to their own professional judgment, with no responsibility towards the accused. We believe that court-appointed solicitors should continue to owe the accused a duty to act with ordinary professional care and skill.

Photo of Richard Simpson Richard Simpson Labour

I want to finish what I am saying.

It is clear that what that means may be limited if the accused has refused to co-operate fully. However, it would be unfair to the accused to allow the solicitor to escape all responsibility to him if the solicitor had, in fact, been negligent.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

Solicitors will not act irresponsibly because doing so would be a breach of the legislation under which they operate. The difficulty is that the minister is perhaps imagining a set of circumstances in which a solicitor is acting capriciously. However, if he acts capriciously, he will be subject to discipline in any case. The difficulty is that what solicitors understand, are well aware of, comfortable with and bound by professionally and statutorily will be taken away. They will be put into a more ambiguous position.

Photo of Richard Simpson Richard Simpson Labour

That we are having this debate is good. The argument seems to be that, if a solicitor believes that there are genuine reasons for them to be unable to continue to act, they can apply to the court to be discharged. The important point is that it should then be a matter for the court to discuss those reasons. Surely, that should provide adequate protection. A solicitor will not act against his professional interests or ethics. As Roseanna Cunningham pointed out, he will not act capriciously or he would be subject to disciplinary procedures. Therefore, I think that the present measures give adequate safeguards and continue to take the court—which appoints the solicitor—as the point at which the discharge should occur. The solicitor should not be able simply to give up because he feels that he is not managing.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

That raises another point. The minister's initial comments on amendment 9 related to a situation in which solicitor after solicitor withdrew and the trial did not go ahead. Let us turn that on its head. A solicitor could go to the court and say, "For these reasons, I absolutely cannot continue to represent someone." The court could say, "Okay, we understand." The next solicitor may have exactly the same problem and may come back to court. At what point will the trial not go ahead? If that is the basis of the objection to the amendment, is it not already implicit in the bill?

Photo of Richard Simpson Richard Simpson Labour 3:00 pm, 6th March 2002

We are dealing with something that is not highly defined and Roseanna Cunningham is trying to define it in absolute terms. It is capable of being defined, but it should be defined by the court, which will make the appropriate decision. In the interim, in appointing a new solicitor, arguments about whether he or she would find themselves in the same circumstances will have to be examined. I accept part of Roseanna Cunningham's argument, but I do not see the situation occurring.

The final new subsection proposed by amendment 9 refers to a code of practice drawn up by the Law Society of Scotland. The society already has the power to produce codes, which its members are expected to follow, so it is unnecessary to give it such a power again.

For all those reasons, I feel that amendment 9 should be rejected.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

We have had enough to-ing and fro-ing to hear the substantial differences between us. I press amendment 9.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 9 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Adam, Brian, Aitken, Bill, Cunningham, Roseanna, Douglas-Hamilton, Lord James, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Mrs Margaret, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McIntosh, Mrs Lyndsay, McLeod, Fiona, Monteith, Mr Brian, Morgan, Alasdair, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Robison, Shona, Scanlon, Mary, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, Welsh, Mr Andrew, White, Ms Sandra, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Curran, Ms Margaret, Deacon, Susan, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen
Abstentions: Harper, Robin

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 35, Against 62, Abstentions 1.

Amendment 9 disagreed to.