HC Deb 16 December 1948 vol 459 cc1394-407

Order for Second Reading read.

3.49 p.m.

The Solicitor-General for Scotland (Mr. Douglas Johnston)

I beg to move, "That the Bill be now read a Second time."

The objects of the Bill are, first, to make legal aid and advice more readily available in Scotland for persons of moderate or small means; second, to make provision for the establishment of a Society of solicitors in Scotland; and, third, to make provision for the establishment of a fund out of moneys provided by solicitors in Scotland for the purpose of compensating persons who have suffered loss through the defalcations of solicitors or their assistants in Scotland.

Since the fifteenth century, counsel and solicitors have been available to assist with their professional advice and help poor persons in Scotland. The Act of the Scots Parliament of 1424, which appears to be the origin of this practice, is in striking and imperative terms. I think the House may care to know what it states. It provides that: if there be any poor creature who, for lack of cunning, cannot pursue his cause, the King, for the love of God, shall ordain the judge, before whom the cause falls to be determined, to purvey and get a loyal and wise advocate to follow the poor person's cause…and if the judge refuses to do the law evenly as is before laid, the party complaining shall have recourse to the King, who shall rigorously punish such judges so that it shall be an example to all others. The obligation laid by this Act upon the legal profession has gradually developed into a well-recognised, well-established and comprehensive legal system for the assistance of poor persons in the courts in Scotland. Under the system, legal advice and assistance in litigation is available in the Court of Session, in the High Court of Justiciary and in the Sheriff Courts.

The existing arrangements for litigation in the Court of Session, are that the Faculty of Advocates, which occupies the same position as the Bar in England, annually nominates six counsel, known as counsel for the poor, and the two main societies in Edinburgh, the Society of Writers to the Signet and the Society of Solicitors in the Supreme Court, nominate certain persons to act as solicitors in poor causes. These persons carry on, under the supervision of the court, causes on behalf of these poor persons. In the Sheriff Court, practitioners practising before the court elect from volunteers a number to act for poor persons. In the event of there being insufficient volunteers, the Sheriff nominates sufficient persons to act.

The workings of the present procedure may be illustrated by detailing what happens to a poor person in Scotland who wishes to make use of the procedure. He ascertains from a lawyer, his friends or the Sheriff's Clerk who are the poor person's lawyers. He goes to the poor person's solicitor, lays the facts before him and gives him some details of his means. He completes a declaration in the form of an affidavit as to means. If the solicitor is satisfied about the matter, he completes a memorandum setting out the facts. The certificate of means and the memorandum are sent to what are called the reporters on probabilis causa. These are members of the profession whose task it is to decide whether or not the applicant has a reasonable prospect of success in his proposed action. If the reporters on probabilis causa decide that he has a reasonable prospect of success in the action, the matter is remitted formally to the court, and the court formally appoints a solicitor and counsel, who is selected from the six poor person's counsel appointed from the Faculty, to appear and conduct the litigation on behalf of the applicant. Thereafter, the case proceeds exactly in the same way as if it were for a wealthy client, with the perhaps noteworthy exception that neither solicitor nor counsel is entitled to demand or receive any fees whatever for their services. This system has continued for some 500 years.

The main criticisms of the system are these. First of all, there is the fact that it is limited to persons of very small means. At the present moment, it is limited to a person of an income of about £3 week, with an allowance of 12s. 6d. for each dependant. The result is that many persons who perhaps have good grounds of actions against someone are unable to pursue their legal rights because of inability to pay. The second limitation is that all that is provided is legal advice and assistance. The poor litigant is still required to pay the solicitor's outlay, such as bringing witnesses, the cost of copying documents, and so on, and that, of course, as members of the profession will know, is a very substantial part of any bill of costs or expenses.

Thirdly, the litigant is always faced with the prospect of meeting the other side's costs or expenses if he loses the action, and, as the learned Attorney-General mentioned yesterday in dealing with a somewhat similar Bill, the law is not an exact science, and, accordingly, no lawyer can advise that an applicant is certain of success. Fourthly, the system does not extend to the smaller courts, such as the Burgh court and the J.P. court. The last objection to the system is that the burden placed on the profession is very heavy. It takes time and trouble to appear for a poor person, and, very often, solicitors incur substantial expense which they can never hope to recover. Very often, they do so because they think that it is essential to justice that they should do so. I know that, in a recent murder case which had some notoriety in Scotland, a solicitor incurred a bill of over £40 most of which he had to pay out of his own pocket. The Crown endeavoured to assist in so far as it could, but the powers of the Crown to pay for costs properly incurred by the defence is very limited.

It was in somewhat similar circumstances in England, that the committee was set up under the chairmanship of Lord Rushcliffe. Following upon the Report of Lord Rushcliffe's Committee, a somewhat similar committee was set up in Scotland under the chairmanship of Mr. John Cameron, now the Dean of the Faculty of Advocates in Scotland. The terms of reference of that committee were: To consider the detailed recommendations of the Rushcliffe Committee and to frame a corresponding scheme for Scotland. The report received wide publicity in Scotland and in the legal and other Press, and the principles embodied in the report are duly followed in this Bill and in the White Paper which sets out the proposed scheme.

Following the King's Speech recently, in which was announced the Government's intention of proceeding with a scheme for legal aid in Scotland, the Lord Advocate called a meeting and invited to it a representative of the Faculty of Advocates and the Presidents of the larger societies of solicitors in Scotland. I should explain, as I will in greater detail later, that there is no one society in Scotland which represents solicitors. The presidents or their representatives of the societies who were invited came from the Society of Writers to the Signet, the Society of Solicitors in the Supreme Court, the Society of Advocates in Aberdeen, the Faculty of Procurators in Glasgow, the Faculty of Procurators in Dundee, and the Scottish Law Agents Society.

There were two meetings. The first was on 11th October, 1948, at which the general principles now contained in the Bill and the White Paper were discussed. After that meeting, the draft of what is now the White Paper was transmitted to the gentlemen who had attended the meeting, and they were asked to discuss it with their Bills Committee. Thereafter, on 29th October, these same gentlemen attended upon the Lord Advocate at his invitation, and as far as he understood, and as I understood, expressed approval of the general principles embodied in this Bill and in the scheme set out in the White Paper. There were, it is proper to say, reservations on minor points, but I understood, and my right hon. and learned Friend understood, that there was substantial and complete agreement on the principles.

It is proper to say that the draft Bill was not shown to these gentlemen for the good reason that it had not been presented to Parliament at that date. It would, I understand, have been a breach of the Privilege of this House to have shown these gentlemen the draft Bill. I regret having to trouble the House with these details, but I have done so because in the Scottish Press in recent days it has been represented that there was no consultation with the legal profession in Scotland before the presentation of the Bill to this House. My right hon. and learned Friend had no intention of not consulting the legal profession, and, indeed, has consulted it so far as he could consistent with his duty to this House.

Now I turn to the Bill. In doing so, may I say that I intend dealing only with the general principles and not with the details which will require consideration in Committee.

Mr. Spence (Aberdeen and Kincardine, Central)

Can the hon. and learned Gentleman say whether the legal profession were fully aware of the terms of Clause 11 when they gave general agreement to the Bill?

Mr. Johnston

No, Sir, the legal profession were not fully aware of Clause 11 because it could not be shown to them, but they were told the objects of the Bill and the scope of the Bill.

The Bill provides that legal aid, that is, assistance in litigation—and "aid" has a very wide connotation—shall be available in the more important courts in Scotland. These courts are set out in the First Schedule to the Bill and are: the House of Lords, the Court of Session, the Lands Valuation Appeal Court, the Scottish Land Court, the Sheriff Court, the High Court of Justiciary, and the J.P. and the burgh Courts. They are what an ordinary person would term "the courts" in Scotland.

It will be noted from examination of the Schedule that certain proceedings are excepted. All the tribunals before which an advocate or a solicitor might appear have not been included, and certain proceedings have been excepted. The reason is that while we are very conscious that this Bill is an extension of something which has gone on before we are not quite sure how burdened the profession may become as a result of an extension of the present measure. Accordingly, it is the desire of my right hon. and learned Friend that we should proceed slowly. It will be noted that there is the power by the affirmative Resolution procedure to extend both the courts before which this procedure will he available and the causes of action.

The Bill goes on to provide by Clauses 2, 3 and 4 that legal aid shall be made available to a person whose disposable income does not exceed £420 a year and whose capital does not exceed £500, and it appears that he cannot proceed without legal aid. I emphasise the words "disposable income and capital" for it will be seen from Clause 4 and from the, Second Schedule that in assessing a person's disposable income or capital, what is meant is his income or capital after the deduction of tax, rates, rent and other items specified in the Bill. Further, it is provided that certain items are to be disregarded in assessing a person's total income. The result is that a substantial number of persons in Scotland will have made available to them a system of legal aid.

A person who has a disposable income—that is, a single person—of less than £156 a year and a disposable capital of less than £75 a year will not be asked to contribute anything at all to the scheme. If his disposable income and capital are beyond those limits, he may be required to contribute to the cost of the litigation, subject to certain maximum amounts, part of which are set out in the scheme, and others which will be provided for by regulation. The ascertainment of a person's means will be a matter for the Assistance Board.

I would particularly draw the attention of the House to Clause 2 (3) which provides that an assisted person's liability under an award of expenses against him, in the event of his being unsuccessful in litigation, is limited. My own experience is—and I am sure it is that of most persons who practice in the courts—that a large number of persons are deterred from the pursuing of their rights because of the fear that if they are unsuccessful they will have to meet what may be a substantial bill of costs or an account of expenses for the other side's counsel's fees, solicitor's fees, and so forth. Clause 2 (3) gives the court or the tribunal power to modify the award of expenses which may be made against the losing assisted litigant. It is, I think, an important provision. A further right which is created is the right of any person who appears to need it to receive legal advice—that is, oral legal advice—for a nominal fee of half a crown. When I say half a crown, that is the fee suggested in the Bill.

The members of the legal profession who will provide this legal aid are such advocates and solicitors who care to volunteer. They will join panels to be set up under the scheme. The assisted litigant may select any solicitor and any counsel whom he favours from these panels. The counsel and solicitors will be remunerated from the Legal Aid Fund—that is, partly from monies provided by Parliament and partly from contributions from such of those persons who are called upon to make payment into the fund, but no person will be called upon to pay directly to any solicitor or counsel. That is provided by Clause 5.

I understand that the terms of Clause 5 (2) have caused uneasiness in the legal profession. This Subsection provides that: Any practising solicitor or advocate shall be entitled to have his name on the appropriate panels…unless there is good reason for excluding him…. The intention is that under Clause 7 (8) the scheme will provide that the disqualification of undesirable persons will be in the hands of a committee of the solicitors' branch of the profession and in the hands of the Faculty of Advocates or a committee thereof. But in view of the disquiet which has been aroused, my right hon. and learned Friend intends at a later stage to add a further provision to the effect that in any such case of disqualification there shall be a right of appeal to the court.

Clauses 7, 8 and 9 provide for the administration and formulation of the scheme. I emphasise that it is intended that the scheme shall be formulated and operated by the profession itself. The legal profession in Scotland has had a long and honourable record, and has much experience in the administration of the present Poor Persons procedure on which the scheme in this Bill is largely based. It is, therefore, thought advisable that the main burden of the scheme should rest on the profession. As the Cameron Committee realises, there must of course be a Minister responsible to Parliament for the scheme and for the expenditure of public money on the scheme, and the Bill provides that the Secretary of State shall be that Minister.

The scheme will be formulated by the Law Society and the Faculty of Advocates, anal will be administered through, first, a central committee, then local committees in the more populous places, and local representatives in other areas. The administration of the scheme departs a little from the Cameron Report in that it has been made more simple. A tier or a level of administration has been removed. It will be the duty of those local committees to do two things: first, to decide what contribution, if any, the assisted person shall make to the fund; and, second, to decide whether or not he has a reasonable prospect of success in the proposed litigation.

I think the operation of the scheme might best be explained by considering what would happen to a person who feels that he has suffered a legal wrong and wishes to make use of the scheme. If he knows who are the persons on the panel, or if he knows of a solicitor on the panel in his district, he will presumably go to that solicitor. If he does not know, he will make application to the committee in his area, who will give him a list of solicitors whom he may consult. He will go to the solicitor of his choice and give him some account of his means and of the legal wrong which he alleges he has suffered. If there appears to be a prima facie case, the solicitor will then prepare the application and remit it to the local committee for their consideration. If there appear to be reasonable grounds for taking proceedings, the local committee will refer the matter to the National Assistance Board who will then ascertain whether or not his means are such as to bring him within the scheme.

If the applicant's disposable income and capital—I again emphasise the word "disposable"—are within the limits which I have described, he will be entitled to the benefit of the scheme. If the applicant is eligible, the local committee will then assess the contribution, if any, which he will make to the scheme, subject to this, that the maximum amount which he may be called upon to pay will be assessed by the National Assistance officer. A legal certificate entitling him to full legal aid will then be issued, and after that the litigation will proceed in the normal way. If the solicitor thinks that it is advisable to obtain the services of counsel, that will be available and will form a charge upon the fund. If the assisted litigant wins the case, any expenses recovered will be paid in to the Legal Aid Fund and will so diminish the applicant's liability for any payment that may be necessary. If the assisted litigant loses the case, his liability for the expenses of the other side will be limited to such sum as the court considers reasonable, having regard to his means and the other circumstances.

The procedure in criminal cases has to be somewhat more simple. There will be a simple procedure in these cases in which it is not possible to investigate means because of lack of time, but in cases where there is time—that is, in most cases where the man pleads not guilty—he will receive assistance up to a certain stage, and after that it will be necessary to make inquiries as to the person's means before the assistance is continued.

It is difficult to estimate the number of persons who will benefit as a result of the proposals contained in this Bill and in the White Paper, but it is certain that the majority of persons charged with criminal offences in Scotland will receive assistance under this scheme, and that a large number of persons who are involved in civil litigation will receive assistance or will be eligible to receive assistance under this scheme. The estimate by the Cameron Committee was that the whole operation of the scheme would cost approximately £250,000.

May I turn from the legal aid part of the Bill to Part II, which deals with other matters? I will be very short on this part. First, it provides for the establishment of the Law Society of Scotland and a solicitors' guarantee fund. This part of the Bill reproduces, with certain modifications, the provisions of the Solicitors Amendment (Scotland) Bill which was introduced into another place last Session by Lord Normand, and which by agreement was not proceeded with. It is a Measure for which solicitors in Scotland have pressed for a considerable period, and which has been agreed by the General Council of Solicitors and my right hon. and learned Friend.

At present there is no unified legal society in Scotland which can speak with one voice for the profession and I know that, so far as the law officers for Scotland are concerned, such a society would be welcomed. I should add that there will be no restriction on membership of this society apart from the possession of a practising certificate which will be issued by the society and which, in the meantime, will be issued by the Commissioners of Inland Revenue. Any person can get a practising certificate who has the ordinary professional qualifications.

The second thing which this part of the Bill does is to provide for the establishment of a guarantee fund to compensate persons who may suffer loss by reason of the dishonesty of a solicitor to whom money has been entrusted or his servants. These cases are fortunately rare, but for a very long time the profession has felt that such cases are a blot upon the profession and that provision should be made so that persons who suffer such loss should be recompensed. This fund will be set up and each solicitor will contribute to it. It is anticipated that the annual subscription will be approximately £5.

The third thing done by this part of the Bill is that it requires a solicitor to keep a separate banking account for clients' money and ensures that solicitors will not unknowingly use clients' money for business purposes. This provides for proper accounting and it is also an essential safeguard both for the solicitor and his client and for the operation of the guarantee fund. There are a number of other minor matters in this second part of the Bill, but perhaps it is unnecessary for me to touch on them at this time. There are also, no doubt, a number of points in the Bill which require detailed examination in Committee. My right hon. Friend and I shall receive gratefully any suggestions for the betterment of this Bill. I commend the Bill to the House as an endeavour to meet several acknowledged defects in the law of Scotland.

4.23 p.m.

Lieut-Commander Clark Hutchison (Edinburgh, West)

As the opening speaker for His Majesty's Opposition in this Debate this afternoon, I have, first, a very pleasant and rather unusual duty to perform. It is to congratulate the hon. and learned Solicitor-General for Scotland on the double event which has taken place in that today he has made his maiden speech both as an hon. Member of this House and as a Member of His Majesty's Government. I am particularly pleased to have the privilege of tendering my congratulations because I know of and share in the esteem in which the hon. and learned Solicitor-General for Scotland is held both by all hon. Members in all parties in this House and by his legal brethren in Scotland. During the past eight months it has been the fate of the hon. and learned Gentleman to concentrate mainly on legal work and when he took his seat last February, he also, if I may use an ecclesiastical expression, took the veil so far as making public utterances in this House was concerned. Today, however, the veil has been cast aside, with most pleasing results, and we have listened to a most lucid and persuasive speech upon a subject in which we know the hon. and learned Solicitor-General is deeply interested and on which he is particularly well-informed. We hope, therefore, that henceforth he will take a leading part in discussions on Scottish affairs, both on the Floor of this House and in the Grand Committee.

This is undoubtedly a Measure of very great importance and interest to the people of Scotland and to the legal profession in Scotland—and, of course, in Scotland we rejoice in a large number of lawyers, being an argumentative race. As the Solicitor-General remarked in his opening speech, it is necessary that this Measure should be examined with great care. I am sure it will receive the scrupulous attention of Scottish hon. Members both today and later, when the Bill is remitted to Grand Committee. We on this side of the House have been appalled during the last few days to learn from the correspondence and editorial columns of the Scottish Press, and from representations which we have received from the various legal bodies in Scotland, that there has been a lack of consultation and discussion on the proposals laid down in this Bill between the Members of His Majesty's Government and the appropriate representatives of the legal societies.

In his opening speech the Solicitor-General made reference to the fact that two meetings were held in October between the Lord Advocate and certain representatives of the legal societies, but it seems that these consultations have not been very fruitful, or perhaps they have not been fully understood by the parties concerned, because unhappily some professional people in Scotland are labouring under a distinct sense of grievance. We hope therefore that adequate time will be given between the Second Reading and the Committee stage for the fullest consultation to take place so that the various legal bodies may hold their meetings and that there may be full discussion of the provisions of this Bill.

The general intentions of the Bill are, first, to provide legal aid free or at small cost to persons of modest means over a very wide field of legal problems and, second, to remove some of the heavy financial burdens which are at present shouldered by representatives of the legal profession in providing free assistance. We consider these objectives are highly commendable. At the same time, I must say we are extremely critical of some of the provisions of this Bill which seem to us to depart in a somewhat radical manner from the principles and proposals which were laid down in the Cameron Report, a Report which has been generally acceptable to the people of Scotland. For that reason we shall, during the later stages of this Bill, seek to delete or amend various of the Clauses in order to meet these objections.

I find myself in some difficulty this afternoon, for I am not a lawyer although, strangely enough, by coincidence, I succeeded in the representation of West Edinburgh two gentlemen who afterwards occupied the highest judicial position in Scotland, so I think I have some sort of connection with the law through my constituency. I, therefore, embark upon an examination of the terms of this Bill with something of the sentiment and spirit of adventure of the explorer advancing into a strange land. Sailors as a rule are apt, perhaps mistakenly, to be a little shy of lawyers, but I have it on the authority of no less a person than Mr. Rudyard Kipling that the converse is also true and, as the season of greater leisure is approaching, I commend the works of that gentleman to the Members on the Government Benches because they might find them very much more stimulating than the works of the late Mr. Marx. Perhaps, the Lord Advocate and the Solicitor-General will remember a particular passage which appears in Kipling's short story entitled "The Devil and the Deep Sea": The mariner cannot tell or act a lie in the face of the sea or mislead a tempest; but, as lawyers have discovered, he makes up for chances withheld when he returns to shore, an affidavit in either hand. I hope, however, we shall be able to keep the proceedings on this Bill on a much higher plane than was envisaged by Mr. Kipling in that story.

I want first to say a word on a matter of general principle, and that is the relationship which exists between the legal profession and the State as represented by the Secretary of State for Scotland, as this is a matter which looms very largely indeed in this Measure, and is one which we and the members of the legal profession in Scotland regard as being of vital importance. Then I shall proceed to a brief review of some of the main provisions in the Bill. I begin by reminding the House that the rule of law is something worth preserving, and is, indeed, the only true basis upon which any civilized community can exist. The position was, I think, put with admirable clarity by Lord Blades in his speech at the centenary dinner of the Glasgow Juridical Society on 12th March this year, an extract from which I should like to read to the House. He was replying to the toast of the Courts of Justice. According to "The Scotsman" of 13th March, 1948, he said: The Courts of Justice were the guardians of tile liberty of every man and woman, and the strong bulwark between the Executive and the subject. Never more were they necessary than in modern times. Those now in middle-age have been brought up to the idea that the freedom of the subject was freedom from interference by the Crown. Now, in the name of planning, our freedom and activities were cribb'd, cabin'd and confin'd by countless regulations which nine-tenths of the population of the country never saw, and the other tenth, including the Judges of the Court of Session, did not understand. They on the Bench could do nothing about ridding the country of those fetters; they must interpret them in accordance with the law of the land, and it was for those who were not fettered to see to it that the great influence and power of the Courts was not impinged upon by any bureaucratic control. Others of our judges and professors of law, I would add, have within the past two years on several occasions referred to the dangers of the Executive's taking over functions which should more properly be exercised by the courts. It is interesting and reassuring to know that their views have been sustained by no less a person than the present Lord Chancellor. For example, an address of his to the English Assembly was quoted by Lord Birnam at a dinner of the Glasgow Juridical Society on 14th March, 1947. The Lord Chancellor had said: The English Bar is the inheritor and the trustee of the great tradition of independence. We have fought for that independence against kings, and we are ready today to fight for it against the Executive. Those sentiments will, I am sure, be echoed by most if not all—I am not sure about the attitude of the Communist Party on matters of this description—but by most if not all Members of this House. However, we make the point that they must not be regarded as being mere platitudes. So it is very necessary that we should examine the provisions of this Bill very carefully in the light of the views which have been expressed by these eminent members of the legal profession.

Part I of the Bill deals, as the Solicitor-General has explained, with legal aid and legal advice, and both it and Part II are based, to some extent—and I make the qualification very definitely—to some extent upon the Report of the Cameron Committee. It is our view—and I do not think that it can be disputed—that, so far as Part I is concerned, there has been a considerable and significant departure from certain of the recommendations made by the Dean of Faculty and his colleagues The changes which have been made are viewed with profound disquiet by the Dean of Faculty, and by such important persons as the Deputy Keeper of the Signet and the President of the S.S.C. Society. If hon. Members will look at paragraph 5 of the Cameron Report, Cmd. 6925, they will see that note is taken of the fact that there is no Officer of State in Scotland whose position and functions are directly comparable with those of the Lord Chancellor in England.

4.40 p.m.

Forward to