§ Question again proposed, "That the Bill be now read a Second time."
§ 4.50 p.m.
Before the interruption occurred, I was explaining that the Cameron Committee in its report took note of the fact that there was no officer in Scotland comparable to the Lord Chancellor in England. The Committee recommended that it would not be either appropriate or desirable to place the sole responsibility for any scheme for the reorganisation of the legal profession to provide free legal aid on the shoulders of the Lord President of the Court of Session. They said that, in their opinion, the Lord Advocate should be jointly associated with the Lord President in the supervision and the administration of the proposals which they made. I understand—and the Solicitor-General confirmed it this afternoon—that the Bill is, in the main, supposed to be based upon the principles laid down in the report of the Cameron Committee.
I would, however, call the attention of the House to the closing words of paragraph 5 where, although the signatories to the report agree that there may be an anomaly, they said:We consider that this is an anomaly which may be accepted and one which is unlikely to cause difficulty or embarrassment in practice.However, when we come to the Bill as drafted we find no mention in the key Clauses—that is Clauses 7, 8 and 11—of either the Lord President or the Lord Advocate; in every case the Secretary of State for Scotland is made the responsible authority for issuing regulations. Strong exception is taken to that, certainly by hon. Members on this side of the House, and I am sure by most, if not all, members of the legal profession. Sheriff Cameron himself has this to say about it in the letter which appears in "The Scotsman" of 14th December:It may be urged that the wide powers which the Bill confers on the Secretary of 1409 State—not, be it observed, on the Lord Advocate who discharges so many of the functions of a Minister of Justice in Scotland—will not he used; the simple answer to that is if unnecessary they should find no place in a Parliamentary enactment.I feel very strongly that this departure from the proposals laid down in the Cameron Report is wrong in principle, in that it involves a Member of the Executive, in the shape of the Secretary of State for Scotland, making a wide variety of regulations on matters of fundamental concern to the administration of justice in Scotland.
As my hon. Friend the Member for Central Aberdeen (Mr. Spence) pointed out a little earlier, in an interjection, Clause 11 is objected to very strongly by all the legal bodies, such as the General Council of Solicitors, the Faculty of Advocates, the Society of Writers to the Signet, and the Society of Solicitors in the Supreme Court. The very wide powers taken by the Secretary of State can be appreciated if hon. Members realise that in no fewer than eight of the 15 Clauses in Part I there are powers for the issuing of regulations. We feel that this is not a satisfactory state of affairs; we ask the Government to drop Clause 11 altogether, and to amend those other Clauses in such a way as to substitute the Lord President of the Court of Session and the Lord Advocate for the Secretary of State for Scotland as the authorities charged with the duty of making such regulations as may be necessary.
§ Mr. McAllister (Rutherglen)
The hon. and gallant Member says that these regulations are fundamental to the administration of justice. I wonder if he could amplify that, and show us how they are fundamental, and how it would make any difference if they were made by the Lord Advocate instead of the Secretary of State.
The Secretary of State is, if I may put it this way, a political officer, a Member of the Executive, but the Lord Advocate is in rather a different position because he is a Law Officer, in the same way as the Attorney-General is in England; I should say he has judicial functions to exercise and is really, in a sense I suppose, the head of the Bar in Scotland. I am not a lawyer, and I should not like to make a precise distinction between the duties of 1410 the Dean of Faculty, the Lord Advocate and the Lord President of the Court of Session. However, we feel, as did the Cameron Committee—and they were lawyers—that the Lord Advocate and the Lord President combined would be a more appropriate authority to issue regulations than the purely political head, the Secretary of State.
§ Mr. McAllister
I fully accept the distinction drawn between the Lord Advocate and the Lord President, but the hon. and gallant Member said that the administration of justice was fundamentally affected by this Clause. Surely, this is a purely machinery Clause.
That is, of course, so. Making rules for the administration of justice is, of necessity, a mechanical process. That is a matter the hon. Member for Rutherglen (Mr. McAllister) can perhaps argue later. I and my hon. Friends feel that this is quite definitely a question of the political head operating in a sphere which should be left to the judiciary, and to the legal head of the Government.
At this stage it is, I think, appropriate to refer briefly to the three main grievances felt by the legal profession in Scotland and by my hon. Friends in regard to this Bill. The first is that, although the Cameron Committee published their Report in May, 1946, there were no subsequent consultations or discussions as to the details of the Bill with the professional bodies in Scotland, although, as the Solicitor-General pointed out, there were apparently two informal discussions in October, a couple of months ago.
The second grievance, to which I referred a little earlier, is that insufficient time has been given to the members of the legal profession to study the Bill in all its details, and to hold meetings of their respective societies and associations before this Second Reading Debate. I took the trouble to ascertain that the Bill was actually published and available in the Vote Office on 22nd November, which would probably mean that it would be available in the Stationery Office in Edinburgh two or three days later. We are now at the 16th December, so there really has not been very much time, or indeed adequate time, for those concerned to get together in conference to consider the proposals put forward in 1411 the Bill. For that reason we urge the Government to give us plenty of breathing space before the Committee Stage so that all interested parties will have time carefully to study the Bill and to put forward Amendments, which the Solicitor-General said he would welcome.
The third grievance is that, we feel that in some respects the Bill goes beyond the scope of the Cameron Report, and does not take sufficient regard of the long-established and proved system of legal aid which has existed in Scotland ever since the passage of the original Act of 1424, to which the Solicitor-General made reference. We think it is regrettable that the Scottish system should be rather lightly cast aside, or suppressed in favour of a somewhat hybrid scheme based on the English Rushcliffe Report. We feel that our system has passed away and been lost, owing to the fact that the Cameron Committee were limited by their remit to follow the remit given to the Rushcliffe Committee.
§ The Lord Advocate (Mr. John Wheatley)
Would the hon. and gallant Member explain in what respects, apart from the extension of the scheme and the consequential developments of the machinery as a result thereof, this new proposal in any way differs fundamentally from the old system of poor law assistance that we had in Scotland?
I understand that in the opinion of the legal profession this scheme, as proposed, closely follows the proposals laid down in the Rushcliffe Report. We think that the gradual growth of the Scottish system has been rather overshadowed in its details by the proposals in the Bill. I put that forward as the information which has been given to me. I must admit that when we come down to points of detail I am at a disadvantage in arguing with the learned Lord Advocate.
§ The Lord Advocate
I should explain that, naturally, I did not expect the hon. and gallant Member to be conversant with the details of a matter which is largely technical. I wondered whether perhaps the people who had put forward this complaint, had given him a sufficient briefing to enable him to explain it to me, because I am interested in any such points.
I would say this, that they ate technical rather than general points.
The provisions of Part II are, on the whole, very much more acceptable, I think, to the members of the legal profession in Scotland than are those of Part I. I am informed, nevertheless, that in many quarters they are not greeted with any great enthusiasm. Some lawyers dislike the idea of the guarantee fund, which they feel may be regarded as rather a slur on an honourable profession. On the other hand, as a layman, one can see it has undoubted virtues from the point of view of the general public.
I merely say that some sections feel it is rather a slur—this idea that they have to be insured against the black sheep in the flock.
As I have said, it has its virtues from the public point of view. I do not propose to say anything more on the details because they can be discussed during the Committee stage. I agree that it is to a large extent an agreed part of the Bill.
As regards the provisions of Part I of the Bill, perhaps I may say a word about Clause 1. Fears have been expressed, both by advocates and solicitors, that in Subsection (6) the deciding authority as to whether or not legal aid shall be given is to be the Secretary of State, but I understand from the Solicitor-General that it will be the local committee, which clears up a point about which there was uneasiness. With regard to Clause 2, my attention has been drawn to the fact that there is some vagueness as to the actual expenses that may be incurred by a litigant. It is very desirable that anyone who is embarking on the tortuous course of legal proceedings should know before he sets forth how much he is likely to be involved in by way of payments and expenses. I know the intention is that legal aid shall be free, or at very modest cost, but provision is made for contributions to the Legal Aid Fund and in the case of unsuccessful actions for payment of expenses. I do 1413 not claim to be a mathematical genius, but it may be that a person will find himself liable for a considerable payment in respect of the provisions of Subsection (3,c ande). This is a matter we shall require to look at with some care when we come to the Committee stage.
Clause 5 has also given rise, so I am advised, to considerable concern in legal circles. Put briefly, these are some of the doubts and criticisms. First, there is some uncertainty as to who is to draw up the panels of solicitors and advocates referred to in Subsection (1). Clearly, this is a matter which ought to be dealt with by the Law Society and by the Faculty of Advocates, but it appears, from the Bill as drafted, that this function can be exercised by the Secretary of State under the terms of Clause 11. No doubt the Lord Advocate will be able to deal with that in his reply, because apprehension has been expressed on this point.
As regards Clause 5 (2), which deals with matters of discipline, it is the view of the legal profession, and of Members on this side of the House, that all questions concerning standards of professional conduct shall be dealt with by the respective legal bodies, that is the Faculty of Advocates and the Law Society. The Solicitor-General referred, in passing, to this point in his reference to a right of appeal to the courts, but I do not think he made it clear whether or not the Law Society and the Faculty of Advocates were to have charge of disciplinary matters.
I shall be interested to know—it is rather a technical matter—just how this Clause is harmonised with Section 24 of the Solicitors (Scotland) Act, 1933, which establishes the Discipline Committee whose members are nominated by the Lord President of Court of Sessions from a panel recommended by the General Council. I suppose the intention is that the Discipline Committee will continue to function under this Bill, but perhaps the Lord Advocate can make some reference to that in his reply.
The third point that arises in regard to Clause 5 is contained in Subsection (5), with which I might link the Third Schedule. This deals with the question 1414 of payment of fees to counsel and solicitors. I am told, and I have no reason to doubt it, that many members of the Faculty of Advocates, and doubtless many law agents, are quite willing to continue to perform the traditional social duty that has been imposed upon them of representing persons in poor circumstances without any payment, but that as that system is now being departed from in this Bill they feel—and I agree with them—that all members of the legal profession should be paid the full and: proper fees, or, to use an industrial analogy, should receive the trade union rates for the job. Members of the legal profession do not understand why the Government have decided to cut the fees to the rate of 85 per cent. of the amount allowed on taxation. If a law agent is undertaking the duty of representing a person, they claim that he ought to be paid the full and proper rate for so doing, and I hope that the Lord Advocate makes due reference to that in his reply. As regards Clause 6, there are certain obscurities; indeed, one eminent counsel of my acquaintance has briefly described it as "fantastic." There does not seem to be any machinery by which a solicitor, under the terms of Subsection (7, a) can find out whether or not a client is able to pay the 2s. 6d. fee for advice.
§ Mr. Willis
Surely the hon. and gallant Member knows that this is already in practice and has been for many years.
But there is no reason for re-embodying it in this Bill unless it can be implemented; it is no use putting it in unless it can be done.
It must be a matter of opinion as to whether it is functioning well, upon which I can express no opinion based on experience. I hope the Lord Advocate will say why it is put in, because it seems of rather doubtful value. On the question of oral advice, it is not clear whether the advice is to be given by a solicitor on the panel, or if it is the intention that this function shall be exercised only by solicitors on the staff of a legal aid centre, organised perhaps somewhat like the Edinburgh Legal Dispensary, only operating on a full-time and paid basis.
1415 Finally, there are some general points upon which I hope the Lord Advocate will comment. I should like an explanation of the meaning of Clause 14. I am told, and here again unfortunately I cannot speak from personal knowledge as a lawyer, that the expression, "This Part of this Act shall bind the Crown," is an unusual one. It sounds satisfactory as far as it goes, but I do not know what it means. Secondly, the provisions of Clause 15 (4) and of Clause 26 (2) are, I think, without precedent; at least I have never heard of any single statute being divided into two parts and each part being cited as a separate Act, on its own. I should have thought the proper course would be to have two Bills, one dealing with legal aid and the other with the establishment of the Law Society of Scotland and the other appropriate administrative matters. It is rather a pity that the Government did not follow that course. Perhaps the hon. and learned Gentleman will explain why this procedure, which seems to me unusual, has been adopted.
The real test of the Bill is however whether it will give the public in Scotland an effective and cheap legal service and will, at the same time, preserve the independence of the legal profession. I hope it will, but I must admit to being uncomfortable about some of the provisions of the Bill especially in Part 1. My views are reinforced by no less a person than the Lord President of the Court of Session, who, in an address to the Glasgow Juridical Society on 12th March this year, drew attention to the dangers which might accrue to the citizens of our country if the solicitors and advocates in Scotland were to become in any way virtual servants of a Government Department. I would like to quote one paragraph from the report of the speech by Lord Cooper, which appeared in the "Glasgow Herald" of 13th March, 1948. He was discussing proposals which might be incorporated in a parliamentary Bill, and he said:It might mean that a large number of solicitors and advocates in Scotland would become virtual servants of a Ministry of Justice, drawing their remuneration from a Government department, and inevitably, taking certain instructions from that department.1416 He also said:If the proposals were carried into effect as outlined in the Rushcliffe and Cameron Reports, it seemed that the legal profession would have reached at one stride a position more advanced than was reached by the medical profession when the first National Health Insurance Act was passed. Events had shown that Act to be the thin end of a very large wedge. He urged lawyers to give serious consideration now to the implications of its legal counterpart.I would like to think that the dangers to which the Lord President referred, and which I also have endeavoured to indicate, do not exist in this Measure but, having regard to the very extensive powers taken by the Secretary of State to issue regulations, I must say that my mind is by no means easy in this respect. Sheriff Cameron has said just the same thing in his letter which I mentioned previously. He said:There are, however, grave apprehensions that something more is at stake than the mere provision of a system of legal aid—independence of action and freedom of judgment—and the haste with which this Measure is being hurried through Parliament does nothing to allay these apprehensions. I wish also to make it clear that the provisions of this Bill are in certain important particulars at variance with the recommendations of the Committee over whom I had the honour to preside.One can say that our fears and anxieties are amply backed up by those opinions.
For that reason, although we do not seek to oppose the Second Reading of the Bill, we shall certainly put forward substantial Amendments at a later stage to safeguard the interests of private individuals, in the hope that these Amendments will be accepted by the Government. Failing such improvements during the Committee stage and later stages we shall reserve our right to divide the House on the Third Reading of the Bill.
§ 5.15 p.m.
§ Mr. Willis (Edinburgh, North)
I join with the hon. and gallant Member for West Edinburgh (Lieut-Commander Hutchison) in congratulating my hon. and learned Friend the Solicitor-General for Scotland, upon his speech in opening the Debate. Listening to the hon. and gallant Member, it occurred to me that, unlike the English Debate yesterday, the present Debate is certainly not a lawyer's holiday. Apart from the Law Officers, we have no lawyers in the House to discuss the Bill. The hon. and gallant Member has certainly 1417 turned himself into an excellent advocate on behalf of the lawyers and of the legal profession. I only wish that he had devoted the attention to the needs of the poor litigants that he devoted to preserving the privileges of the legal profession.
There is another and more important aspect of the Bill, concerning the person who needs legal aid. The hon. and gallant Member told us, as we have learned from what has appeared in the Scottish Press during the last few days, that the Bill departed from the proposals of the Cameron Committee's Report. Later on I shall ask him if he will join with me in this matter. First, however, I would point out that hon. Members opposite had the opportunity before the war of doing something along these lines in the manner that they would have wished. They had an excellent report, the Morton report, upon which to base a Bill to give legal aid to poor people, but hon. Members opposite, with their characteristic neglect of the needs of the poor people, failed to do that. I am therefore rather surprised that they come along at this stage to criticise our efforts.
The terms of reference of the Cameron Committee were certainly too limited. We have a cause of complaint because the Committee to consider the Bill for Scotland was limited to the consideration of a report framed on an examination of the working of legal aid for the poor in England. Those limitations were exceedingly unfortunate because they precluded the Cameron Committee from examining any alternative proposals. In fact, one member of the Cameron Committee found himself completely unable to sign the report at all because he did not agree with the method proposed in the Rushcliffe Committee's Report for dealing with legal aid for the poor. Had we been able to consider other proposals we might have done much better than we have done in this Bill.
The Bill is based upon a system that has been built up in Scotland since 1424. We have read a lot about that recently in the Press. We have heard a lot about the excellent service which is being rendered by the legal profession in providing assistance for the poor. It has been called "ancient and honourable," I have no quarrel with that; I think every credit should be given to the legal 1418 profession for what they have done to try to meet the needs of the poor. But let us look at this system from the point of view of the poor person who desires assistance. I would like to read extracts from a letter from a solicitor who has had practical experience of the operation of the present system. He says:It is doing great work, but it is hopelessly inadequate…It smacks too much of poor people being used once again as guinea pigs…the eight lawyers who are appointed each year…are usually young, newly qualified, with not a great deal of experience. The six advocates…who are appointed are…usually newly called, young, untried men.The litigant is not getting the best possible advice; he is getting the advice of some one who has little experience.
§ Mr. Henderson Stewart (Fife, East)
That may be true of the cities, but I assure the hon. Gentleman that it is not true of the county boroughs.
§ Mr. Willis
I know it is true in the City of Edinburgh. This is what a solicitor says, and from my personal experience in Edinburgh I can confirm it. The solicitor who is busy—and if he is competent he will be busy—and who has been long established, will not want to be placed on the Poor's Roll. It is also the case with the advocate. This solicitor then refers to the low income limit governing the grant of legal aid. He ends by saying:It is degrading for these people; in my experience the majority are decent hard-working folk, to be labelled as poor and to be forced to trudge from the Dispensary to Register House to lawyer's office, to a J.P. back to a lawyer's office, and so on and to be kept in suspense all the time.That is a comment on the present system, and it contains a considerable element of truth.
I wish to examine the Bill from these points of view: To what extent does it remove the criticisms in that letter? To what extent does it get rid of the low income limit? To what extent does it remove the feeling of people that the are being used as guinea pigs for the young and inexperienced? To what extent does it remove the stigma of poverty? To what extent does it speed up procedure? These are good tests to apply to the Bill. The income limit has been fixed at £420, after certain deductions have been made.
I do not know how this figure was arrived at, but let us see how it works 1419 out in practice. A person is liable to be charged up to half his disposable income, after £156 has been deducted. Suppose his disposable income is £300. He is still liable to pay £72, that is, 30s. a week—a considerable sum. I should have thought that that went a long way towards doing what the Cameron Committee were afraid might happen if we adopted the Rushcliffe Committee's Report, namely, to bear hardly on that section of the community which, they felt, stood most in need of legal aid and assistance—persons with small businesses or moderate wages or salaries. I am not convinced that the Bill goes far enough towards getting rid of the low income limit.
The Bill goes against the recommendations of the Cameron Committee—and this is where I hope the hon. and gallant Member for West Edinburgh will join me—in making the applicant go through a form of means test. The applicant must go to the Assistance Board for his income to be assessed. That is not what the Cameron Committee recommended. Will the hon. and gallant Member join me in wanting to see the abolition of this means test? The Cameron Committee reported:We therefore recommend that it should be open to a litigant to apply for legal aid at any stage of a cause, and that he should have the right to assist to enable that application to be made. We further recommend that a Certificate of Means, setting out fully the requisite information as to capital and income, should be furnished by way of Statutory Declaration, to be made before any Solicitor.The Report then goes on to show how any declaration can be fenced around. The Cameron Committee were against the means test, which is a most undesirable element in this Bill.
Now for my second point. I cannot see any reference in the Bill ensuring experience in those operating the system. In Clause 5, dealing with solicitors and counsel, there is no guarantee that the applicant seeking legal aid will be in any different position from that in which he was before the Bill was introduced. Why is it that people in the lower income groups must always be given second best? That is a principle which we on this side of the House should violently oppose on every occasion. Too long have the poor been given second best: it is time they were given the best.
1420 With reference to the stigma of poverty that is attached to the scheme, there is no doubt about the real feeling of those who have to apply for assistance. By virtue of the fact that we introduce a means test, and make the applicant go to the Assistance Board, we aggravate that feeling. I would ask my right hon. and learned Friend to remove the word "poor" from the system proposed to be set up under this Bill. Further, the Bill does not speed up procedure. A person requiring assistance goes to the local member of the panel, and from there to the local committee. He has to have his case prepared. Then he goes to the Assistance Board, and then again to a solicitor. This is just as wearisome as the procedure of which complaint was made in the letter I have read to the House. We not only want the law to give us justice, but we want it to be speedy and I hope my right hon. Friend will look into that matter.
With regard to legal aid, I consider it will become increasingly important, because the main bulk of legal work is of a consultative character—the seeking of advice. It is non-litigious; it does not require to go into the courts, and in view of the great mass of legislation which goes through this House, that is bound to become increasingly so. No ordinary person for instance, understands the various Rent Restriction Acts for one thing. No ordinary person who has got a house at the present time understands his position under the Town and Country Planning Act. Therefore, it seems to me that the necessity for legal advice becomes increasingly important.
This Bill, of course, is on rather a more permanent footing than the present system, which it slightly extends. I cannot help feeling that if the Cameron Committee had been allowed to take evidence regarding the working of the system in Scandinavia, for instance, they might have thought of something better for this Bill. I welcome the fact that in this part of the Bill the person makes a declaration of income and does not have to go to the National Assistance Board. Why, if it is satisfactory for a person requiring legal advice simply to make a statutory declaration rather than go to the National Assistance Board in this case, should it not also be applicable in the case which requires legal aid in the courts?
1421 Examining this Bill with regard to the points I have mentioned, it seems to me that it goes a considerable way to make legal aid more readily available to the lower income groups, but it fails in my opinion to remove many of the undesirable features of the present system. I am confident that my right hon. Friend will certainly do all he can to assist in removing these undesirable features, but he cannot remove the means test unless we amend the Bill in Committee. So whilst I welcome this Bill as far as it goes, I am confident that in the course of time people will want something better. This Bill does not give them all that they will want. In time when they demand something better I trust that we shall examine the question from the point of view of the litigant, and that when the evidence concerning the matter is taken it will not be confined, as in the case of the Cameron Committee, purely to legal bodies.
After all, the legal profession is an institution that has grown up in society to perform certain tasks for society, and society has not got to be moulded in accordance with the wishes of the legal profession. I hope, therefore, that we shall approach it from the point of view of the litigant—the ordinary man in the street who is usually half frightened of the law, very resentful of inquiry into his private affairs, and anxious to retain his self-respect. If we do that I am confident that we can get a much better Bill than the Bill which is at present before us.
§ 5.34 p.m.
§ Mr. Spence (Aberdeen and Kincardine, Central)
I approach this Bill not from the angle of the lawyer but from the standpoint of someone who is anxious to see this scheme become a real success. On both sides of the House, we are agreed on the merits of its general terms, but I have a feeling that either through stupidity or arrogance, the Government have got off to a very bad start. It is surely of prime importance that complete understanding and confidence should prevail between the Law Officers of the Crown and the legal profession as to the general outline of the Bill. It is upon the lawyers and the work that they do that the success of the Bill depends. That is why it was rather puzzling and disconcerting to hear, on the one hand, the Solicitor-General tell us there had been 1422 consultations with the different branches of the legal profession, and, on the other, to read in the Scottish Press in the last few days of the misgivings that have been aroused and, indeed, in the case of Mr. Cameron, the actual paragraph in his letter where he says that no consultation of a general nature took place and, further, that no request was made for representations to be made by his society to the Secretary of State's office. It is quite clear that there is some divergence.
Listening to the Solicitor-General we had the impression that there had been consultation. We found out how this came about when I put my question to the Solicitor-General during his speech, which he was good enough to answer, as to whether Clause 11 was contained in the outline of the Bill which was shown to the legal profession. That is where the trouble lies. The Bill without that Clause is like hell without the Prince of Darkness. With Clause 11, it is dynamite, or might be, because it gives the Secretary of State enormous powers if he likes to take them.
It is because of that, that alarm has been created in the minds of the legal profession in Scotland. The Solicitor-General indicated that between now and the Committee stage he would have consultations with the various bodies concerned. If he does, I hope there will be a broad measure of agreement on Amendments in the Committee stage to improve the Bill. I believe that he would be taking the right action in consulting the law societies, to overcome the suspicion and the difficulty arising out of the feeling that the integrity of the law is being encroached on by the Government. I beg the Secretary of State to take such action, so that the Bill will be a really good one and will bring the benefit we all seek, to the people of Scotland.
§ 5.39 p.m.
§ Mr. Rankin (Glasgow, Tradeston)
In proffering a welcome to the Bill, I largely subscribe to the speech which has been made by my hon. Friend the Member for North Edinburgh (Mr. Willis), but we have to remember that the Bill before us is largely of an experimental nature and because of that, we have to be cautious in any initial approaches, we make towards the solution of the problems which my hon. Friend has so ably outlined. We have here an exploratory 1423 Measure which is also capable of expansion. I am certain that under the present Government, the services which are provided in the Bill will, in due course, as the result of the knowledge which we gain, be expanded to include those various aspects with which my hon. Friend dealt.
A good deal has been made of Clause 11. I, too, have criticisms, but that Clause is not among them. If we are to accept the changes proposed by the Opposition, there would result a subtraction from the authority of the Secretary of State and therefore a subtraction from the authority of Parliament. There is nothing which the Secretary of State can do in the making of statutory instruments without the authority of this House, and that authority must be supreme. In seeking to transfer any of the authority of Parliament to any other body outside Parliament, the Opposition are attacking the authority of Parliament itself.
A criticism which I do make relates to Clause 4 (4) which deals with savings. I want my right hon. Friend to realise that the savings of a great many people reside largely in the Co-operative societies. Clause 4 says:Except in so far as the regulations otherwise provide, any resources of a person's wife or husband shall be treated for the purposes of this section as that person's resources.I realise that Co-operative societies place a limit on individual savings, but it would seem that under this Clause the savings of the wife and those of the husband which are held separately within a society, will be aggregated for the purposes of the Bill. The result would be that we should be doing something completely wrong because savings in a Cooperative society are largely savings made as a result of purchases of essential commodities. From that point of view, the limit of £500 is far too low, and it ought to be raised immediately. I recognise that in any event that is something which we can look forward to in the future, and I hope that the future will not be a remote one.
§ Commander Galbraith (Glasgow, Pollok)
I am very interested in that argument, but will not the hon. Gentleman extend it to all savings? Where-ever they are, savings are surely one and the same thing?
§ Mr. Rankin
Obviously. If the limit is raised from £500 to, say, £1,000, it must naturally include savings other than those in the Co-operative societies.
§ Mr. McAllister
Is my hon. Friend satisfied that the raising of the limit would be enough? Is not his point of view that if action is taken by the husband, the wife's savings should be disregarded, and if it is taken by the wife, the husband's should be disregarded?
§ Mr. Rankin
I am very glad to have that interruption. The savings of husband and wife held separately in a society, ought not to be aggregated to the total sum indicated in the Clause, and then utilised in any legal action affecting the husband or wife separately.
Here is a rather difficult point which was raised in a letter in the "Glasgow Herald" of yesterday's date. The writer points out that, in practice, in certain cases the savings Clause would mean that a person getting £15 a week might be included in the provisions of the Clause and a person getting £5 a week might not come under it, on the ground that the person with £15 a week might live up to his income completely and have no savings, whereas a person with £5 a week might save a great deal. There is substance in the point, but we must have limits somewhere, and I do not think the objection is a general one. We have no right to assume that an individual getting £15 a week spends more than a person getting £5 a week. I notice that in certain cases the solicitor will give oral advice. I know that solicitors do give oral advice, but in the interests of the person who is seeking the advice, that oral advice ought to be confirmed in writing. Difficulties which might arise in certain cases could easily be overcome if the advice had to be confirmed in writing.
I welcome the Bill. I regard it as largely experimental and an experiment which can be expanded as we gain knowledge. Dealing with the benefits, the Solicitor-General said it was difficult to estimate the number who would be affected by this scheme. I hope that before the Debate concludes an attempt will be made to give us a rough approximation of the number, because they are important. The number for the English scheme was given. It was stated that 1425 something like 12 million people in England—whether that was the working population or not, I do not know—would benefit. I hope we shall be able to get a rough idea of the number in Scotland, because it is important that we should be able to say what number, approximately, will be benefited by this Bill.
§ Major Guy Lloyd (Renfrew, Eastern)
I do not see why it is of such importance to the hon. Member and to others to be able to say how many are involved. Is it because of the General Election that he wants to be able to say it?
§ Mr. Rankin
No. We approach the problem a little more honestly than the hon. and gallant Member for Eastern Renfrew (Major Lloyd). It is in our own interest and in the interest of the people on whose behalf we are passing this Measure, that we should have an idea of the numbers who will be benefited. We are not thinking merely of the lawyers but of the ordinary people who will come under the scope of the Bill. I do not think the legal profession have much to grumble about so far as the Bill is concerned. I think we should recognise that they have set their professional brethren on the medical side an example that the doctors might well have shown in cooperating with the Government in the application of the National Health Services Act.
It is not true to say that no consultations have been held in the framing of this Measure. I am assured that such consultations were held. We can well understand why a House in which the legal profession are represented in larger numbers than any other section of the community, is a House that will not do much harm to their interests. I think we should notice, however, that while the lawyers will gain so far as the cases of poor persons are concerned, there will be a loss in the income they now get from the wealthier section of the community. Against that, however, we have to set the fact that under the Bill they will have far more clients than they ever had before, so that what they lose on the swings they will gain on the roundabouts.
§ Mr. Willis
Would my hon. Friend develop the point which has been made several times in the Press and now by himself, that because the lawyer is to 1426 receive payment from another source than the client, he will lose money as a result?
§ Mr. Rankin
I have been speaking longer than I intended and so I will not develop the point which my hon. Friend incites me to develop. All I am pointing out is that where, formerly, the lawyer had no income as regards many of the cases of poor persons, now he is assured of an income and, because of the scope of the Bill, he will now get from a certain section of the community a smaller income than formerly because they will come under the Bill. However, that has to be related to the fact that he will have more clients. So I think that the interests of the legal profession are well served on the whole by the Bill, and I hope that as the scheme develops, the ordinary person will be as well served as the lawyer.
§ 5.55 p.m.
§ Major Guy Lloyd (Renfrew, Eastern)
I begin straightaway by telling the Government and hon. Members opposite, if they are not yet aware of it, that certain aspects of this Bill are viewed with grave suspicion by many people in Scotland, not by any means confined to the legal profession. I have had a considerable amount of correspondence on this subject. Many people are extremely indignant at the way the Bill has been rushed upon us, with no real opportunity either to consider it ourselves in all its important, tricky, legal aspects which the average hon. Member is not well qualified to examine rapidly, and also to take consultation with those who are qualified to advise us on the effects of this Bill and its weaknesses.
I do not wonder that the Bill has excited a certain amount of misgiving and mistrust, because the longer this Government stays in, the more distrust and misgiving the people of Scotland have towards it. Every time the Government brings forward a Bill, people are beginning to inquire into the underlying motive, and whether or not the Bill really means what it pretends to mean. I had a feeling—and others have written to me in the same strain—that all this stuff about legal aid 1427 for the poor was to some extent laid on with a brush, in order to camouflage at least one of the major points behind the Bill, and that is the Socialist theory of getting hold of the legal profession, if it possibly can, and bringing it under some measure of control.
I have had several people warn me that that would probably be the case, and I had a most interesting conversation the other day with someone who had been reading what I suppose is the Socialist bible on this subject, the pamphlet issued by the Haldane Society. I understand that this society, under that respectable title, confines its membership entirely to Socialist lawyers and members of the legal profession who hold these strange theories of Socialism; that it is a closed shop to anybody else, and that in any case, no other kind of person would want to join it.
I understand that this pamphlet—which I have not read but which I have had at second-hand—makes the point again and again throughout its discourses, that if Socialism is to succeed it must control the legal profession, and that every means—I underline those two words—must be taken to get control of the legal profession. However, it obviously cannot be done at once; the public must not be, alarmed; the thing must be done with every form of subtlety—a Bill must be rushed through quickly, just before the Christmas Recess.
§ Mr. William Ross (Kilmarnock)
Does it say that in the pamphlet which the hon. and gallant Member is quoting?
§ Major Lloyd
I am telling hon. Members the gist of what the pamphlet says but, as I have stated, I have not read it and neither has the hon. Gentleman.
§ The Secretary of State for Scotland (Mr. Woodburn)
Obviously one can develop all kinds of fears about things. Could the hon. and gallant Gentleman explain how it is that none of these fears has reached the hon. Gentlemen on his own side of the House, who congratulated the Government on bringing in a somewhat similar Bill yesterday for England and Wales; and how all the legal profession in England and Wales seem to be unaware of the sinister, dark business which 1428 the hon. and gallant Gentleman has suddenly conjured up?
§ Major Lloyd
I do not represent a seat in England or Wales; I represent a seat in Scotland. I am talking about Scotland and the people who have been telling me these things in Scotland, and I say that this pamphlet, which is an authoritative pamphlet issued exclusively by Socialist lawyers—
§ Mr. Woodburn
Is not this pamphlet written by Socialist lawyers—if they are Socialist lawyers—in England, and why, if the hon. and gallant Gentleman is talking about Scotland, does he quote something which emanates from England?
§ Major Lloyd
Because Socialism now governs Scotland as well as England. That is the whole point. It is the theory of Socialism which I am discussing. This pamphlet says that because Socialists and a Socialist Government which, unfortunately, controls Scotland as well as England—I wish it did not—
§ Major Lloyd
The hon. Gentleman is quibbling. I will repeat what I have already said. The pamphlet is now out of print. I presume all its copies were exhausted, or, perhaps, that Socialists wanted to conceal it before they issued the Bill. Therefore, no one can read it now. I have a friend, however, who read it not more than three days ago and has told me what is in it. I am doing my best to repeat the gist of it. Under such circumstances no one can expect me to give verbatim quotations.
§ Mr. McAllister
The hon. and gallant Member has made very wild allegations about a pamphlet, which he admits he has not read, and he has reflected very seriously, I think on an important body of legal opinion outside this House which has no immediate opportunity of replying. Would it be in Order for me to present the hon. and gallant Gentleman with a copy of the Haldane Society's 1429 statement in order that he may find some slight evidence for the monstrous nonsense he has just been talking?
§ Major Lloyd
The hon. Member has not got the Haldane Society's pamphlet to which I am referring. If he had, I should be glad to have it. It is not a sheet of paper like that which the hon. Member is holding. It is a pamphlet which was issued some time ago.
§ Mr. Deputy-Speaker (Major Milner)
The hon. and gallant Gentleman may be entitled to refer in this Debate to the document which he has mentioned if it is relevant but he is not entitled to go into details which, as I gather, he is not in a position immediately to substantiate.
§ Major Lloyd
I welcome your words, Mr. Deputy-Speaker. I was not going to spend more than a moment or two on this matter but one hon. Gentleman opposite after another was irritated and made me go on.
In Scotland many people, not confined to the legal profession, profoundly distrust the major motive behind the Bill. They think that under the excuse, with which we all sympathise, of more generous legal aid to poor people an attempt is deliberately being made—the thin end of the wedge—to get some control of the legal profession in Scotland. Having read the Bill, I believe that those people are right in their belief and that one of the underlying motives of the Bill is to get hold of the legal profession in Scotland, and eventually to control it as much as possible.
I want to take up a point with which other hon. Members have dealt. It is quite obvious from complaints made by very responsible people in the legal profession in Scotland, and in responsible leading articles in the Press, that they and a great many others, are entirely dissatisfied with the prior consultations which took place. That is what is said by extremely responsible individuals and bodies of opinion. Doubtless, some kind of consultation did take place. I am informed that at one consultation at which the Lord Advocate was present, when there was not a very good attendance, the Lord Advocate said that he hoped no publicity whatever would be given to the consultations.
§ The Lord Advocate
Would the hon. and gallant Member kindly inform the 1430 House who was the author of that remark in order that I may have the opportunity of meeting it, and, if necessary, of refuting it?
§ Major Lloyd
The author of that remark was a member of the legal profession, a solicitor—[An HON. MEMBER: "Who?"]—who told me he had been told by someone who was present—[Interruption.] If the Lord Advocate will say outright that he made no such remark, I will immediately withdraw my remark. There were plenty of people present who heard him. If he did not make that kind of remark let him say so now, so that I may withdraw it. Obviously, then, the Lord Advocate is not prepared to withdraw it, even though my information, of course, came secondhand because I could not be there myself. As, apparently, he is not prepared to contradict me, I leave it in HANSARD that I have been informed that he said he hoped there would be no publicity as a result of those consultations and I have said that if he wished to contradict me there would be others who could say whether he was right or wrong.
§ The Lord Advocate
Let me explain that at the meeting referred to by the hon. and gallant Member I said that these meetings had to be treated in a confidential manner at that stage, because it was prior to the publication of the Bill, but that confidentiality should extend to and not beyond the members of the society or their council, who would require to be consulted in connection with the proposals.
§ Major Lloyd
In other words, what I said was perfectly true, that the Lord Advocate did, in fact, demand that there should be no publicity, and, only because there was no publicity, I quite understand the reasons which the right hon. Gentleman has given. He may have been reasonable in making that request, but people in Scotland who are concerned with this matter have had no real opportunity to consider it at all because the Bill has been rushed. Since their lips were sealed as a result of that request of the Lord Advocate before the Bill was published, and the Bill has been rushed along, there has been practically no opportunity at all for discussion or consultation. That is the major protest which is coming to me and to other hon. Members from Scotland.
1431 The Bill is most unhappy in so far as it deliberately attempts to impose a measure of control on the profession through the Secretary of State for Scotland. That vitiates to a very large extent that part of the Bill which we welcome so much in all parts of the House, the provision of more facilities for legal aid to the poorer sections of the community. As the representative of a constituency, I am, inevitably, the mouthpiece of other people. I am informed that a strong element among solicitors in Scotland believes that some 85 per cent. of the clients of the average solicitors' firms in Scotland will come under the auspices of the Bill. If that is so, it will in practice almost compel 85 per cent. of the solicitors to register under the scheme and, therefore, come under the control of the Secretary of State, a Government department, and all the rest. This is very important, because so much emphasis has been laid on the voluntary aspect. If it were anticipated that only a comparatively small section of the legal profession would become involved, no one would have objected.
§ Mr. Rankin
When I was addressing the House, the hon. and gallant Member seemed to underestimate the importance of numbers. Now he is emphasising them. Why?
§ Major Lloyd
I am not very much impressed with it. After that interruption, I will proceed to the point I was trying to make, that this idea, will in fact bring in, willy-nilly, a very large proportion of the solicitors of Scotland. If the figure of 85 per cent. which has been given to me is a correct estimate, then it is most unfortunate that so many solicitors will be virtually compelled to belong to the scheme. It means that a very large proportion of the solicitors and the legal profession in Scotland will come under the control of the State. That, I say again, is one of the underlying motives of the Bill. One of the underlying principles of Socialism is to control the legal profession. Socialism has already got hold of the medical profession, and the legal profession will be 1432 controlled more and more as Socialism develops. This is the beginning, the thin end of the wedge, the hand of the State getting a grip on the collar of the legal profession—and a far bigger grip than even the Lord Advocate and the Secretary of State for Scotland may have imagined, because the Bill undoubtedly affects a large number of solicitors in Scotland.
I want to touch on another point which is causing great indignation among the public and which has nothing to do with the legal profession at all. It is the fact that the public must undergo a means test by the Assistance Board. I think a means test is a sound and practical thing, and hon. Members opposite only continue to oppose it for political reasons, but why should it be done through the Assistance Board? That will be greatly resented. If I did not misunderstand the hon. Member for North Edinburgh (Mr. Willis), I thought he also made that point, and if so, I entirely agree with him. Many people all over Scotland will be very indignant when they have to give all their particulars and, as they consider, lower their pride and demean themselves by getting a sort of certificate from the Assistance Board. A great many middle-class people in my constituency will resent it intensely, and on their behalf, I protest strongly against it. I hope the Secretary of State and the Lord Advocate will seriously consider eliminating that factor as the Bill goes through the Committee stage.
I want to make it perfectly plain that there are many people in Scotland who are thoroughly suspicious of this Bill. Why should counsel who are employed under the Bill be paid direct by the State and not through solicitors? So far as I know, this is the first time that solicitors do not pay counsel for free or any other legal aid. Counsel in Scotland will receive direct financial grants from the State. If that is not getting as near to the beginning of a salary as could be, I do not know what is. The whole thing smells of an attempt on the part of Socialism to begin to get a grip upon the legal profession. I believe that had we longer time to consult and had we more information in time from those in Scotland who are now beginning to worry, we might have had to move a reasoned Amendment against the Bill, however much we may approve of the general principle of extending legal 1433 aid. But because the Government have rushed it and because there has been no adequate consultation, we have not had sufficient opportunity so to do.
I hope we shall oppose this Bill very strongly in Committee, and especially those aspects of it which seem to get a grip on the control of one of the very few free professions left. Socialism, which wants to control in large measure the means of production and distribution, now wants to get hold of the free professions. It has already got the doctors and the dentists. Now it is after the lawyers. I protest on behalf of many people who believe this Bill is the thin end of the wedge.
§ 6.13 p.m.
§ Mr. Malcolm MacPherson (Stirling and Falkirk Burghs)
Although I am very glad to catch your eye, Mr. Deputy-Speaker, I am sorry that I have to follow the hon. and gallant Member for Eastern Renfrew (Major Lloyd). Although I am quite sure he believes sincerely in the arguments which he has put forward, I can hardly accept them with any degree of seriousness. His argument was one of great sensationalism, which I believe is disappearing from our political discussions today, and I do not think there is any part of the House where that sort of thing will make any impression. Although I agree with my hon. Friend the Member for North Edinburgh (Mr. Willis) that the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) tended to stress the point of view of the legal profession as against the point of view of the public, I must say that I much prefer his tone and method of stating his view to the much more sensational and inaccurate method adopted by the hon. and gallant Member for Eastern Renfrew.
I felt, too, that my hon. Friend the Member for North Edinburgh hit the nail on the head once or twice in one of two of his comments on the Bill. It seems to me that there remains in the Bill a very serious possibility of the wage earner who receives £5, £6 or £7 a week, being very severely hit by the contributions which he might have to make under the Bill. Perhaps that situation will be clarified at a later stage. I felt also that we should have some indication that the fear that the assistance, advice and representation of people under this Bill would 1434 fall to the lot of inexperienced solicitors and advocates is groundless. I think there is possibly still some ground for that fear, and naturally we do not want that sort of thing. The hon. Member for East Fife (Mr. Stewart) was correct when he pointed out an exception in that respect, but certainly my hon. Friend the Member for North Edinburgh made a sound point in relation to the cities.
I should like to draw attention to the part of the Bill which, while it is the least important of the two main parts, still deserves a certain amount of consideration and comment. The Bill has two main purposes; one is to extend a scheme of legal aid, and the other to bring the solicitors' profession in Scotland into one united organization—the Law Society of Scotland. The Bill is called the Legal Aid and Solicitors (Scotland) Bill, but I think it might more appropriately be called the Solicitors and Legal Aid Bill, because the organisation of the solicitors into one body is evidently a preliminary step towards the organisation of legal aid.
The House should note that this step of bringing the solicitors in Scotland into one body, which has been previously discussed on many occasions, has been brought about through the accepting by the solicitors of a public responsibility. The united profession starts its career as such under the best sort of auspices. The occasion for the uniting of this profession has been the acceptance of a very important public duty; and, speaking from outside the profession, one rather hopes that that attitude will develop and grow in the Scottish legal profession, the junior branch of which is just about to be united into one organisation.
Apart altogether from those subjects dealt with in the first part of the Bill, the organisation of the profession into one whole, which is contemplated in the second part of the Bill, can lead to a very great deal of good in Scottish life in general, if the profession is so willing. Both sections of the legal profession in Scotland in the past have done a great deal for scholarship and public life in Scotland, but there are a number of things seriously lacking in Scottish legal life and, therefore, in one of the main elements of Scottish life. I have felt for a considerable time that in a country which prides itself on having its own separate 1435 and distinct legal system, it is unfortunate that the legal schools in our four universities are all simply professional schools. There is not one of them which could be described as a school of jurisprudence of anything like the standing of the great English or American or Continental schools.
One cannot attend a Scottish University and have much of a chance—or indeed any chance at all—of finding the greatest and most fundamental legal topics dealt with in a liberal, as distinct from a professional, manner. I use the term "professional" in no sense of suggesting that it implies something small, but there is an important ethical and philosophical content in a legal system which it does not seem to me has ever been brought out in our Scottish law schools. I understand that in the whole history of the Scottish legal system there has never been a substantive work on Scottish jurisprudence. That is the kind of consideration which I have in mind when I welcome the unification of the solicitors' branch of the profession. I feel that if in subsequent years they follow the lead which they themselves are now giving, they can do a great deal to deepen our lives in one particular respect, that is, in respect of their own field of practice. I also feel that that will be of increasing importance to the ordinary person in Scotland.
That leads me to what I have to say about the first part of the Bill—the system of legal aid itself. I hope that this system of legal aid will be carried out in a spirit which will make for a growing and increased confidence among the people of Scotland in their own legal system. We certainly have a great deal of confidence in the courts of the land, but, as has been suggested already from one or two quarters, there tends to be a good deal of fear on the part of the ordinary wage earner of some things connected with the law. He does not understand why lawyers wear wigs and gowns, and he does not always like it. He does not understand why certain procedures are followed and is sometimes inclined to be suspicious that they represent a system which is run for the benefit of the people who run it. That is the kind of thing I mean.
I take the point of view that the business of a lawyer is not to be clever and 1436 smart, and to deal with technicalities and legal quiddities, but that the business of a lawyer is essentially the noble business of administering justice. I should like to feel that in the development of this legal aid system the legal profession was going to take the attitude of trying to use the closer connection which it will have with the Scottish people for the purpose of bringing its clients to a closer understanding not so much of the details of the law as of the nature and value of the law.
I say that because I feel that most professions have in the last generation, perhaps in the last 25, 30 or 40 years, been undergoing a number of changes in their relations with the public. Even the scientists—and we have been speaking a good deal about medical men—who, 15 or 20 years ago, lived in their ivory tower and paid no attention to what the public wanted, and who made their discoveries, presented them and took no responsibility for them, are now coming to think about their relations with the public.
This Bill and the Bill which the House discussed yesterday seem to me to represent a corresponding change in the legal profession. The law is being brought nearer to the ordinary people. I hope that when it is brought nearer to the Scottish people the spirit of the legal profession in administering the whole matter of legal aid and legal advice will be one not simply of dealing with the niceties and details of the law but a spirit of trying to make sure that the people of Scotland as a whole understand what the legal system is for, and understand its aims. I think that in spite of the fact that some legal authorities are now objecting to particular things, they have generally accepted the main lines of this Bill. I hope that because that general acceptance exists, it is an illustration of the spirit of co-operation which will grow more full and complete between the legal profession of Scotland and the people of Scotland itself.
§ 6.27 p.m.
§ Mr. William Ross (Kilmarnock)
I rise to welcome thin Bill as a solid piece of work and a step which I feel might well have been taken many years ago. It was stated. I think by the hon. and gallant Member who spoke first for the Opposition, that the law was a bulwark 1437 between the people and the Executive. He could quite well have said also that that bulwark has seldom, if ever, been available to the majority of the people of Scotland. In the circumstances that exist today it would be true to say that there are only two classes to whom the backing of the law or the resort to it to pursue their legal rights, is available. I refer to the very poor and the very rich.
Legal aid, which, surprisingly enough, despite what has been said in this Debate, is actually the subject of this Bill, only extends at the moment to people who are more or less "down and out." People of very ordinary or moderate means who have often had a desire to pursue their rights in the law court, or have sometimes been forced to do so, have been prevented from pursuing their rights at all or from following them to the full extent because of the cost of litigation in Scotland. Only last week I heard at a meeting an appeal from certain men in Scotland who are pursuing a legal battle with a land-owner—the men of Knoydart. Many other men who have been in the same position have had to give in just because they lacked the means. While there has been law in Scotland, there has not always been justice, simply because that bulwark has not been available.
In view of this simple Bill, which extends the possibility of that bulwark to a great many people in Scotland, I find it very strange that we can have speeches such as we have heard from the hon. and gallant Member for Eastern Renfrew (Major Lloyd). Like my hon. Friend, I believe that the hon. and gallant Member is sincere, but I think that we should have had a far different speech from him had he read the Bill as well as he has evidently read the memorandum from the legal profession. I tell him that since I have read that memorandum from the legal profession in Scotland, that profession has gone down considerably in my estimation. I deplore the memorandum because I consider it to be a very poor interpretation of a Bill by people who are, by profession, interpreters of Acts of Parliament.
I think that right from the start the sort of Press propaganda that has been going on, particularly in East Scotland, and in Edinburgh, has been quite unrealistic. 1438 I hope that a full account will be given of the replies that were given by the Solicitor-General—which, I hope will be followed up by the Lord Advocate—to suggestions that there has been no representation, and no consultation. I have even had a letter from the Kilmarnock Faculty of Solicitors saying that the legal bodies in Scotland did not get a single opportunity. Yet we hear today there were at least two opportunities of actually meeting the Law Officers of Scotland. I think there is something very far wrong, not only when these letters are written, but when the Press of Scotland, without hearing the Government's side of the story, goes so far as to accept these criticisms and to write leading articles about them.
I feel, too, that there has been considerable misrepresentation of the Secretary of State for Scotland in regard to this Bill. After all, the 1424 Act of Parliament states:The King, for the love of God, sail ordain the judge, before whom the cause should be determined, to purwey and get a leill and wise advocate to follow sic puir creature's cause.according to the old crabbit Scots language. In this Bill it really is the Secretary of State for Scotland, in the changing state of the situation, who is carrying out that job.
There is no question of nationalising the legal profession. The Law Society is to run this whole scheme. They have to organise the scheme and work it and where the Secretary of State for Scotland comes in is purely in approving it, to the satisfaction of this House and the people of Scotland.
§ Major Lloyd
Surely the hon. Gentleman must be aware of the fact that the Secretary of State does not merely approve, but makes regulations and other things which are not just a matter of approval? I cannot accept that he has only to approve.
§ Mr. Ross
He approves, according to Clause 7, and Clause 11 which is supplementary says he may:make such regulations as appear to him necessary…for giving effect…A great deal of harm has been done to this Bill, which could have been treated in a very sane and realistic way, as was done with the English Bill yesterday, 1439 without introducing all this unnecessary political controversy. After all, it is not the solicitors, the law agents and the advocates that we should be mainly concerned with, although naturally we want to see justice done to them. It is the people of Scotland, those who have been debarred from their rights simply because of economic circumstances. Not just the poor, not just the so-called working classes, but the middle classes who have been faced with very difficult circumstances and who have had to give in. This power of the law has been wielded as a weapon against others simply because it was realised they were people who could not afford to contest matters in the courts. If they could contest them in the Sheriff Court, they could not go so far as the Court of Session—
§ Major Lloyd
That is a sweeping accusation. Could the hon. Gentleman justify such a grave accusation? Could he give one instance?
§ Mr. Ross
—which I have already instanced where these peasants—the Scottish peasantry of whom the hon. and gallant Gentleman will be talking so very sentimentally on 25th January—have had to resort to passing round the hat in order to contest a case for the protection of what they consider are their rights.
We should look at the matter more from the point of view of the people of Scotland, and if we do so, we shall pay particular attention to this question of the means test. That is the kind of thing we should be discussing, and not sweeping generalities about nationalisation. We should be getting down to the actual Bill. I personally feel that the means test is something which should not be in the Bill at all. There is a stigma attached to the means test procedure. There is no reason why a declaration of means should not be given and accepted, and if the Lord Advocate feels that is not enough, let him put in some statutory penalities.
Above all, I feel that at the present moment, legal aid to the poor is under 1440 the sort of stigma that existed in the old days as regards the parish, and also public assistance—a feeling which we hope is being wiped out in the recent extension of the national system. But it is evident that the stigma remains. I feel that there is no reason why the National Assistance Board should come in at all. Let us treat the people of Scotland for what they are—on the whole, an honest race. It may be that that is where this Debate differs from the Debate that went on yesterday. Let us accept that declaration and carry on with it, knowing that the abuses, if any, will be very few and that we can take the necessary steps against them.
The actual working of this Measure should be on the same lines as National Insurance. People going for legal aid should be made to feel that it is just an ordinary service of the nation and that there is no condescension on the part of the people who are interviewing them, and no obligation upon them, but that it is a natural right. If we go along these lines, we shall make it a humane and reasonable scheme, although we must, in the future, make considerable changes in order to make this a service. I can see hon. Gentlemen looking up as though this was something which could be given as an argument for nationalisation. I do not think on those lines at all. I want to see this service available freely to the people of Scotland and for the law to be really what it is meant to be—a bulwark between the people and the Executive. I think the fact that the Government are making that bulwark available to the people destroys the argument about bureaucracy applied either to Edinburgh or to Whitehall.
§ 6.39 p.m.
§ Mr. Niall Macpherson (Dumfries)
I wish to confine my remarks to a very narrow channel because I have been unable to go very deeply into this Bill and I also deplore the fact that the legal profession, quite plainly, has not had much opportunity of discussing it. I want to follow on the remarks of the hon. Member for Kilmarnock (Mr. Ross) and remind the House of one of the basic principles that the Cameron Report laid down. That was that this Bill should be flexible. If we are going to have a Bill of this description—and I raise this matter now because this is the only 1441 chance we shall get of raising it owing to the way in which the Financial Resolution is drawn—I fail to see why we should put a limit at a definite figure. The limit is put at the figure of £420 net income after certain deductions. Assuming total costs of an action to be £500, if I am right in my calculations, that will mean that a man whose net income works out at £418 may if he loses, have to contribute half the difference between £156 and £418, which amounts to £131. But if his income is £422 he will have to pay £500—the whole cost of the action.
Surely something more flexible than that could have been designed. We are told in the report that flexibility should be the order of the day. Here, however, we have an absolutely rigid limit which cannot be altered. It is so rigid that, unlike the provisions of the National Insurance Act, it is put in the body of the Bill and not even in a Schedule. Definitely that is wrong. I do not know what should be done about it, but I suggest that there are a number of considerations in the Financial Resolution which will tie down the discussion in the Committee so greatly that it would be as well if we did not get to the Financial Resolution tonight.
My only other main point is to reinforce what has been said about the means of assessment. As I understand it, one goes first to the local committee and from there one is passed to a panel solicitor. Thereafter, if there is a probabilis causa, one is then subjected to this means test by the National Assistance Board. The other main principle laid down by the Cameron Committee was that we should build on existing foundations. We have an existing foundation in the statutory declaration that has always been made on means. Surely, that is satisfactory and sufficient. Cannot that be accepted? It would be possible to insert in the Bill legal sanctions in the event of the declaration being falsely made. Equally, it would be possible if the local committee or even the solicitor had reasonable doubts as to the validity of the declaration—then and in that case only—to submit it to the National Assistance Board. It seems to me that where we have a well-established and good practice it is a great pity to discard it merely in order to come into line with what is being put into force south of the Border.
§ The Lord Advocate
Is the hon. Gentleman aware that under the provisions of the Sheriff Court Act, 1907, the person responsible for making an investigation into means is the inspector of poor for the parish?
§ Mr. Macpherson
The right hon. and learned Gentleman might perhaps be able to say how that has been altered in the light of current legislation. It is on the basis of that statutory declaration that legal aid is given at present. I fail to see why that system should not be maintained in the future.
I feel, from my reading of the Bill, that it shows signs of speed in drafting. We shall have to go into that matter in the Committee stage. I also feel—and I say this with great regret—that the White Paper on the Scottish Bill is neither so clear nor so well written as the White Paper on the English Bill. That is unfortunate. It shows signs of haste and the fact that before the Scottish White Paper was drafted, the English Bill had to be prepared. I deplore that.
I deplore also the fact that at the time when the preparations were being made to put this legislation into force, there were no Scottish members on the Rushcliffe Committee so that Scottish interests might be more represented and so that when the time came for its application to Scotland, it would be made easier. The practice of legal aid for the poor is much more developed in Scotland than in England. Surely, this was a case in which England might very well and profitably have followed Scotland instead of Scotland following England. If that had been done, I feel that the Bill would have been more readily adaptable—for a lot of adaptation will be necessary during the Committee stage—to the needs of Scotland.
§ 6.46 p.m.
§ Mr. J. L. Williams (Glasgow, Kelvingrove)
I am glad to take part in a Debate in which lawyers and laymen mix so freely. I hope that this is symbolic of the co-operation which we shall have in the administration of this Measure. In fact, the place of the layman in the administration, is the chief point I wish to discuss. First, I should like to welcome the Bill. With other hon. Members, I agree that it is long overdue and that it meets a need that is felt very 1443 keenly among a great section of the population both in town and in country. I agree with the tributes paid to the good work already done by various agencies in this direction. That has been helpful because now there are foundations, upon which to build. The one adverse comment that I would make is that the present facilities are inadequate, as we all know. Speaking, like some of my colleagues, as one who has taken part in local government administration and who has sat on the magisterial bench for a few years, I consider that this Bill will be welcomed greatly by a large section of our people.
I come to the question of the position of laymen in the administration. Despite the words which appear in Clause 7 (4) about persons who are not members of the Law Society who may be put on the legal aid committee, I do not find any real guarantee that the "consumer" will have representation. After all, the litigant is the most important person under this Bill. I suggest that not only the persons who advise, but also the persons who are to be advised should have some voice in the administration. As far as I could gather from the Debate yesterday on the English Bill, and from correspondence I have received, the objection to more laymen being represented is that only lawyers can deal with the problems involved. That is true in many cases, but it is certainly not true of one important section of this provision. Another reason is that only lawyers can keep confidences and that laymen cannot. That reason is not very impressive.
It is most desirable to have laymen on these committees, because public money has to go to lawyers, and I suggest that persons other than lawyers should have some voice in its administration. There are various non-legal points to be discussed on these committees, such as questions of the time and place to meet the people concerned, and other matters which may be regarded as the external part of the work of a committee, rather than its strictly legal part. I suggest that a lot of this work would be done, not only as well, but much better by members of city councils who are in touch with their respective districts.
I have had correspondence—and mention has been made of it by the hon. 1444 and gallant Member for East Renfrew (Major Lloyd)—regarding the proposal to use the National Assistance Board as the testing machinery. I know that opposition has been expressed to that idea. I have had a letter from an organisation representing one section of the legal profession in Scotland, and they consider that this work should be done by officers under the legal aid committee. I suggest that to hand over the work in that fashion to another body and replace the machinery of the National Assistance Board by another type of machinery, would be quite undesirable. I think it would be unfair to the legal aid committee itself. At least some lawyers, I know, have a doubt about that, and there is the additional point that the body which will examine the ability of litigants to pay will also decide, in borderline cases, whether the lawyer will receive 100 per cent. or 85 per cent. I suggest that, to have a committee, with only lawyers on it, to decide that point would be highly undesirable.
Another objection which I have is that it is unfair to the taxpayer to burden him with the cost of two kinds of machinery to perform the same kind of work, and I suggest that it would be equally unfair to the National Assistance Board itself to suggest that there is still too much poor law atmosphere about it for this purpose. Most of us have been saying in this House and telling our constituents in the country that the old poor law has gone and that we now have a new machinery with a new outlook. I believe that a great deal has been done in the last few years, and especially in the last few months, in modernising and humanising the system which deals with public assistance. In fact, we have a Minister who has devoted a great deal of personal and special attention to this matter.
Further, it would be even more unfair to suggest to the applicant for national assistance that the National Assistance Board machinery is quite good enough for the purpose of obtaining food and clothing, but that, when it becomes a question of obtaining legal assistance, that machinery is not good enough. It is also unfair to suggest that that machinery is quite good enough in the case of a man with an income of £2 or £3 a week, but not good enough for a man who has an income of £7 or £8 a 1445 week. Those are some of the points that should be kept in mind before replacing the National Assistance Board with the other machinery suggested.
No doubt, there will be much experimental work in the next few years in connection with this Measure, and considerably more experience will be gained and much information obtained. This information will help us to know, among other things, to what extent we shall need to adjust our national insurance scheme to include the service embodied in the Bill. Having listened to the arguments from both sides of the House concerning the means level and the ways of testing income—which incomes should be excluded and which included—my view has been confirmed that there is no way out, and that the only solution, in the end, will be to bring this service into our social insurance system.
§ 6.56 p.m.
§ Mr. Henderson Stewart (Fife, East)
May I say, first, that the general purpose of this Bill is one which I personally accept? I think we must, in this age, do whatever is necessary to ensure that no person, on account of poverty, shall be precluded from getting a fair crack of the legal whip.
§ Mr. Stewart
So I support this Measure. I think the Rushcliffe Committee was set up by the Coalition Government, and we all felt that something of this order was needed. I have not myself moved away from that general view, but I confess that I am a little disturbed by some of the speeches made from the Government Bench today. They seem to me to be based on an incorrect assessment of the present position and to assume developments here which I can only regard as highly dangerous.
Let me take first, my view that hon. Members opposite have an incorrect appreciation of what is done now. The hon. Member for North Edinburgh (Mr. Willis) gave us a very interesting speech; he spoke of the idea that at present it was only the novices among lawyers and advocates who were allotted the task of looking after the poor. The poor, he said, were guinea pigs for young and inexperienced men.
§ Mr. Willis
I quoted from a solicitor who had practical experience of the legal aid scheme in Edinburgh and his words were that the poor were being treated as guinea pigs.
§ Mr. Stewart
The hon. Member will recollect that he supported the view of that letter. He said, in fact, that under the present system the poor are merely being handed over to the young and inexperienced men and that the poor were nothing but guinea pigs. I must protest against that. It is a completely false picture of what is happening, at any rate in those parts of the country that I know. I can quote the county burgh of Cupar, where the solicitors and lawyers in turn take the responsibility of looking after the cases of those who are designated as the poor, and every lawyer in Cupar—and we have some very good lawyers—takes his turn in that duty. It does not matter whether he is the weakest or the most brilliant lawyer, he takes his turn, and, therefore, the poor person in the county of Fife—I do not know why I must always be defending the county of Fife—is getting in his turn, like every other person, the best possible legal advice. I protest most strongly against any suggestion that at the present time the legal profession as a whole is handing over this great, humane public responsibility to the young and inexperienced, who regard the poor as mere guinea pigs. That is not the case. It may be the case in Edinburgh, but I am not responsible for that.
My second observation is that Government speakers are supporting this Bill upon an entirely wrong assumption as to its purpose and future character. The hon. Member for Kilmarnock (Mr. Ross) and the hon. Member for Kelvingrove (Mr. J. L. Williams) said in the plainest language that what they desired was a service of legal advice as a matter of right to the citizen just as the Health Service is a matter of right. The hon. Member said that it should be like an insurance service. If that is the view of the Government's supporters, sooner or later it will become the view of the Government themselves. That being so, we have got to realise that we are moving into a state where the lawyers and advocates of Scotland will be put in precisely the same position as doctors are in under the Health Service, 1447 with all the dangers of their being made State servants. I am opposed to doctors becoming State servants, but to make lawyers State servants, is to kill and destroy the whole of the traditions of the Scottish legal profession.
If that were the view of the Government, it would be much better if the Lord Advocate told us so tonight, so that we may know what we are doing. If he does not regard this Bill as a Measure leading to a public law service like the Health Service, then he must use the plainest language to disabuse our minds of that doubt. In these matters, I always come in the end to this conclusion. It does not matter what service we try to operate for the benefit of the people—health, education or legal aid—if we want that service to work, it is surely common sense to say that we must get the co-operation of those who are going to work it. Surely, that is clear. Why do the Government consult with the Trades Union Congress before they take any step with regard to the great problems of labour? They would never dream of introducing a Bill concerning matters of labour, without consulting the T.U.C. They would do it, not because the T.U.C. are their friends and paymasters, but, presumably, because the trade union leaders would have to work a Measure concerning labour and working conditions.
Similarly, this Measure will not work unless we obtain the sympathy and understanding of the legal profession. At the moment, the legal profession has not displayed any sympathy for or understanding of this Bill. Such evidence as we have is that it has very great doubts about it. Therefore, in Committee we shall have to propose a certain number of Amendments, or ask a number of questions.
I invite the Lord Advocate, who I am sure would desire this Bill to be a success not only now but in the future, seriously to try to meet the legal profession between now and the next stage, and to discuss the fears in their minds —fears which I thoroughly understand, and, on the present facts, share. He will then probably be able to propose certain changes in the Bill. I think I can make that plea with some effect because I am in favour of this kind of 1448 Bill. I agree that something should be done to make the law available to all people in the country. I want this scheme to work, but I am convinced that it will not work in its present form. It contains defects, it is based on entirely erroneous and unfair assumptions, and it foreshadows a future which I can only call dangerous.
§ 7.5 p.m.
§ Mr. Emrys Hughes (South Ayrshire)
I have had a certain amount of sympathy with the Opposition during the course of this Debate because they have suffered from a lack of decent legal spokesman like the right hon. and learned Gentleman who recently sat for Hillhead, Mr. J. S. C. Reid. What has happened to the right hon. and learned Gentleman? They have nationalised him.
§ Mr. Hughes
Throughout this Debate we have heard expressions of horror at the very thought of the legal profession being nationalised. I am not horrified by it.
I listened with great interest to the speech of the hon. and gallant Member for East Renfrew (Major Lloyd). It was not so much a speech as a nightmare. In this nightmare he had the awful vision of the State seizing the lawyer by wig and gown and nationalising him, thus making him a State servant. That is exactly what they have done to the right hon. and learned Gentleman who used to be the Lord Advocate. I have never heard any objection to hon. Gentlemen passing from this House to the courts of justice and becoming judges; I have never heard any objection taken to their becoming State servants. Indeed, the legal profession of this country is dying to be nationalised on terms such as those.
I welcome this Bill as a step towards making honest men of lawyers. To some extent, I do not think it goes far enough towards making the lawyer a respectable member of society and towards raising him to the level of the local medical officer of health or the local sanitary inspector. I see no objection at all to a lawyer being raised to a higher position in the regard of his fellows in the community than he occupies today. The hon. Member for East Fife (Mr. Henderson Stewart) said that it was the Government 1449 who had raised the right hon. and learned Gentleman the former Member for Hill-head to the level of a State servant. That is quite right; they returned good for evil. The result is that in the Debate today we have only amateur lawyers on this side, like myself, trying to criticise this Bill.
I was surprised to hear the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) quoting verses by Rudyard Kipling in support of the Bill. He might have quoted Burns, who I think is worth while quoting on this Bill. May I suggest to the hon. and gallant Gentleman that if he wants to read a good account of lawyers, as expressed from the point of view of the ordinary citizen of Scotland, he should read the Address of Beelzebub.
If I may interrupt the hon. Member for a moment, I would point out that I was not, of course, quoting Kipling either in support or against the Bill; I was only pointing out that solicitors are in the same position as the sailors. We are apt to be shy of them, but the converse might be true.
§ Mr. Hughes
The only point I am making is that if poetry is going to be quoted, we ought to have a Scots poet on a Scots Bill. I would remind the House of the verses which Burns wrote when he went to the Court of Session. He wrote:But what his common sense came short.He eked out wi' law, man.When hon. Members of the Opposition get enthusiastic about Government Measures, as did the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) yesterday, we who sit somewhere outside these little secret circles look upon it with a certain amount of suspicion. It makes us feel that when we come to the Committee stage, we should examine the Bill very carefully indeed.
I do not understand what objections hon. and gallant Members will have to a Bill of this kind when they consider how litigation works in the Services. In courts martial an officer puts the point of view of a man and a man is not subjected to a means test. The soldier tried before a court martial—I speak from personal experience—has the choice 1450 of an officer to represent him. There is no means test, but the officer puts up a very good case and a very fair case for the man, and in that respect I have to admit that military law is more commonsense than civil law. I hope under this Bill to see that the ordinary citizen will have access to a lawyer in the same way as a soldier has access to an officer in a court martial and that there will he no means test. In that way the lawyers will be raised to the level of responsible public servants such as medical officers of health and sanitary inspectors.
I should like to know if legal aid will be given to people whose children appear before the juvenile courts. That is not specifically mentioned in the Schedule, but I believe it should be. I know the point of view of the ordinary man towards the law in this country. I have had some experience of justice in a small town and for more than 12 years it was my painful duty to sit in the local burgh court on a Saturday morning to dispense mercy with justice. The dilemma which faced the people who came before the court was whether to consult a local lawyer and run up a heavy bill, or not. Frequently when they came before me they pleaded guilty, because they knew it was better to plead guilty before me, than to wait another month and consult legal advice and run up a lawyer's bill.
I will quote an instance. There was brought before me on one occasion a miner charged with the heinous offence of playing bagpipes at a late hour of the night on 25th January to the annoyance of His Majesty's lieges and the special annoyance of the local policeman. It was my painful duty in the court on that morning to dispense justice to a number of motorists, including a colliery manager, who had broken the law by motoring offences. This miner became more and more anxious as he found me fining the motorists at least £2. Then his turn came and he pleaded guilty. In view of the national festival, I admonished him and he did not come before me again. A few days later I met him in the street and asked him, "What do you mean by playing bagpipes so late at night?" He said, "I was not playing bagpipes at all. That was a fabrication of the policeman." I asked why he pleaded guilty and he said, "I thought 1451 it would be better to plead guilty and get it over than to wait for a month and consult a lawyer, as by that time there might be another sanguinary illegitimate on the Bench." That is the way in which local working folk regard justice in the ordinary courts of this country.
I welcome one provision of the Bill. The legal adviser who will be called upon to give necessary legal advice will be subject to the close scrutiny of some kind of legal body. At present everyone knows that although we have great tributes paid to the love of justice by the legal profession, we have very poor lawyers who often exploit the poverty and ignorance of poor people. It is true that the legal system in Scotland works and they tax lawyers' fees and lawyers' costs, but the poor man who goes to the lawyer to plead for him in cases of this kind does not know anything about legal costs and very often there is exploitation of the poorest of the poor. Because I believe this is a step towards ending the exploitation of the poorest of the poor, I am glad the Government have introduced this Bill.
One Clause I look upon with a certain degree of apprehension. That provides for the formation of a Law Society of Scotland. This looks suspiciously like egging on the lawyers of Scotland to form a trade union. It is going to engage lawyers in subversive activity and I can see the time coming when this Law Society of Scotland, having become a trade union of lawyers, will be captured by the Communist Party. The hon. and gallant Member for East Renfrew (Major Lloyd) made a great mistake when he spoke of the Haldane Society. He might have associated the Haldane Society with North Hammersmith and Finsbury and worked up a splendid case for the whole Bill having been instigated and originated in Moscow. If they are encouraged to form this trade union, we might even find lawyers sending gifts of £1,000 to the starving lawyers of France.
I suggest to the Government that they should not be too enthusiastic about giving too much power to lawyers. Lawyers are all right in their place. They are a necessary evil in our present system of society like journalists, Ministers and others, but they must be kept in their place, I hope that as a result of this Bill, 1452 after the hon. Member for West Fife (Mr. Gallacher), the hon. Member for North Edinburgh (Mr. Willis) and I have put in a few drastic Amendments, we shall make a step forward to the establishment of a better system of justice for Scotland.
§ 7.17 p.m.
§ Mr. Gallacher (Fife, West)
I wish to say a word or two in support of the hon. Member for South Ayrshire (Mr. Emrys Hughes). He referred to a question which was spoken of yesterday, namely, the means test. The right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe), who led the Opposition yesterday, said that all in this House were opposed to the means test. It is news to this side of the House to hear that hon: Members opposite are against the means test. Most of us on this side have been against it all along and I cannot see any reason for the means test in this Bill.
We have introduced a Measure whereby every citizen is allowed to have a doctor. If they wish to choose a particular doctor and pay for him, well and good, but any citizen can have a doctor or specialist just as, under this Bill, any citizen should be able to get a solicitor or barrister. Why should not the same principle apply to legal matters as applies to health matters? When the Government have had the experience which they have had on the working of the poor man's lawyer, I cannot see why they do not take the broad wide sweep and make the thing really efficient. We should aim at a national scheme of the broadest possible character. There is no reason at all why we should not do that. There has been a campaign against this Bill. Right hon. Members on the Front Bench this side and hon. Members on the other side who have been carrying on the anti-Red campaign are now getting some pf it back. The Lord Advocate is being accused of introducing Soviet law into Scotland. That is the tale which has been told in some of the Glasgow Press. I do not know what the Lord Advocate will have to say about an accusation of that kind.
I agree with the hon. Member for South Ayrshire when he says that at the present time the lawyer is a necessary evil. I remember debating with the then Solicitor-General, Mr. T. B. Morrison, K.C., in 1919, in Perth, and iris almost unbelievable, but in the course of his 1453 speech he raised the question, "Who will do the dirty work under Socialism?" I said, "There will be no dirty work; we will close down the law courts." I look forward to the day when we are rid of the Stanleys of this world and people can live as men and women should live. We shall then be able to do without the legal fraternity, but at present they are necessary, and they are often very valuable to the ordinary citizens who get into legal difficulties and cannot see their way to get clear of them.
I hope it will be possible to discuss Amendments, if the Money Resolution will permit it, to lead to a much wider extension of the terms of this Bill so that all the people of this country will have the right—as the hon. Member for South Ayrshire says the soldier has the right—if they are in difficulties of any kind which create legal problems and legal difficulties, to approach a solicitor or the best barrister there is in the country just as, if they were suffering from ill health or needing medical advice, they could approach a doctor or specialist under the National Health Service. I see no reason why the Bill could not have been built up on the same principle. We will do our best in Committee to extend it as far as possible.
§ 7.23 p.m.
§ Lieut.-Colonel Elliot (Scottish Universities)
On this side of the House we are all indebted to the Solicitor-General for Scotland for his courtesy and for his lucid explanation of the Bill. I should like, if I may, to congratulate him on the double event which he pulled off in making at the same time both his maiden speech and his first appearance on the Front Bench in charge of a Bill.
§ Mr. Gallacher
If the right hon. and gallant Gentleman the Member for the Scottish Universities (Lieut.-Colonel Elliot) will permit me, I want to say I forgot to draw attention to that point. The Solicitor-General for Scotland is my Member of Parliament and I wanted to express my appreciation of the fine way he represented me.
§ Lieut.-Colonel Elliot
I am not quite certain whether the Solicitor-General for Scotland will be more happy or more embarrassed at receiving the congratulations of the Third International. I will 1454 leave him to work that out with his constituent later. Nor would I advise him to rely wholeheartedly on the continued support of his constituent in all circumstances. I would advise him that he might fear even the Greeks when they bring gifts.
The Solicitor-General started a Debate which was completely different from the Debate we had yesterday. Almost everyone who spoke yesterday had legal experience, whereas nobody who spoke today had legal experience. I think that if we could have mixed the two Debates we probably would have achieved the ideal Debate. Undoubtedly we on this side of the House have suffered, and I am sure the whole House has suffered, from the absence of Lord Reid, formerly the Member for Hillhead, who on such an occasion would have been of the greatest value to the House as a whole and quite certainly to our party, on this side. We have to do the best we can, and I am sure that my hon. and gallant Friend the Member for West Edinburgh (Lieut.-Commander Hutchison) was able to develop a case to the admiration of all. Certainly he was able to bring forward some of the difficulties which we feel arise as a result of this Bill.
The Lord Advocate may well have said that the Bill was proceeding fairly well, with a reasonable chance of a friendly reception in Scotland, until the speeches to which we have just listened—that by the hon. Member for Kelvingrove (Mr. J. L. Williams), who suggested that the Bill might be turned into another kind of social service, and that by the hon. Member for South Ayrshire (Mr. Emrys Hughes), who came forward with the bright idea that the benefits of courts-martial should be extended to us all and that that was the aim to which we should bend our efforts.
This last suggestion naturally received the wholehearted support of the hon. Member for West Fife (Mr. Gallacher), who could not restrain himself at this point and who leapt forward to say that that was the line which he and his friends would follow in the Amendments which they hope to put down. Perhaps the Lord Advocate will now understand why legal opinion in Scotland would like to be sure that it is thoroughly at one with him in the Measure which has been introduced.
1455 It is quite true, as the Solicitor-General for Scotland said, that two occasions for consultation have been given, one as late, I think, as 29th October. But there were admittedly only these two. The position with the English Societies was quite different. I think it is worth while to call the attention of the House to the very different treatment which was extended to the profession in England. It is true that my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe) welcomed the Bill and drew attention to the close co-operation there had been between the profession and those bringing forward the scheme. He was, however, only dotting the i's and crossings the t's of the statement which had been made by the Attorney-General. In yesterday's HANSARD the Attorney-General is reported as saying:The Government have received the fullest support from both branches of the profession.He had said earlier:It was necessary to obtain the consent of the Law Society and of the Bar Council to undertake the very responsible and onerous duties which the proposals would impose upon them…This Bill is the result of the work done between the two branches of the profession and the Government in order to implement the proposals of the Rushcliffe Committee."—[OFFICAL REPORT, 15th December. 1948; Vol. 459, c. 1233.]The position in Scotland, as we have to deal with it tonight is quite different. We have here the criticism of the Writers to the Signet. We have all read the protests of the Dean of the Faculty of Advocates. I have here a telegram from the Society of Law Agents saying that they protest emphatically at being given insufficient time to consider Part I of the Legal Aid Bill and asking for postponement. When the Writers to the Signet, the Dean of the Faculty of Advocates, the Law Agents' Society all protest to us within the last few hours—and I have no doubt to other hon. Members—it is clear that a position exists quite different from that outlined by the English Attorney-General, on which he received the compliment and support of my right hon. and learned Friend the Member for West Derby.
Quite a different position exists in Scotland that will certainly have to be cleared up. I trust the Lord Advocate will be able to give us an assurance that 1456 the Bill will not be proceeded with, after we resume, at any rate during the month of January. I trust he can give an assurance that it will not be proceeded with until February so that the consultations, which for some reason or other were not completely satisfactory to the legal profession before Christmas, may take place after Christmas—all the more since when he was defending the proposals in the judges Bill he made a strong plea that we should not be asked to transact legal business in Scotland in the days immediately following Hogmanay. I trust that he will be able to give us that assurance.
I hope in the next place that he will be able to give us an assurance that the Financial Resolution will not be taken tonight but will be held over until our return. The Financial Resolution enshrines, and makes irrevocable, I fear, one of the provisions in the Bill to which all the bodies that have made representations to us have made the strongest objection, and that is on the position of the Secretary of State for Scotland. The Financial Resolution says:A. The payment out of moneys provided by Parliament of the net sums required …(subject to any discretion of the Secretary of State to modify the Act by regulations there under to meet special cases)…I fear that when that has been passed by the House, if it is passed by the House, the function of the Committee in dealing with the provision in the Bill will be difficult. An argument could be made on the Question that the Clause stand part, but to move Amendments to improve the proposed statute would be extremely difficult. This is the point to which so many representations have been addressed.
We have before us the Report of the Cameron Committee. Paragraph 5, which I think was quoted by the Solicitor-General, did draw attention to the special position of the Secretary of State, and, indeed, of the Lord Advocate. There is no parallel in Scotland to the position of the Lord Chancellor, who is both head of the legal profession and a Member of the Cabinet. I know well—I have had experience—of the position of the Secretary of State. It is quite true that in a way he is the legal heir to the Chancellor of Scotland: He is Keeper of the Seal, and thereby inherits, great precedence, and some responsibility. Nevertheless, 1457 he is more and more, and must be, an active politician, a fighting politician. I myself in my time certainly did not in any sense of the word try to pull my punches in any political battle into which I entered; nor do I think it would be fair to ask any Secretary of State to do so. But how unwise to put someone in that position as a superior in legal circles in which this Bill would inevitably place him. Paragraph 5 of the Cameron Report says:The Lord President of the Court of Sessions has no ministerial responsibility or departmental functions and is not answerable, as a minister or head of department, to either House of Parliament.That is true. He does not have the necessary staff to handle this work, and he has not got himself the power of appearing to defend himself in Parliament if criticised. However, I do not think that either of these things applies to the Lord Advocate. The Cameron Committee, under the Dean of the Faculty of Advocates reported:for this reason we recommend that the Lord Advocate should be associated directly with the supervision and administration of the Scheme which we propose.They went on to say:We are of course aware that there may be some anomaly in the Lord Advocate, who, as head of the criminal administration of Scotland, may be responsible for initiation of many criminal proceedings, the defence is which may be financed in whole or in part from public funds, having at the same time a direct supervisory responsibility for the very organisation which is providing the means to combat these proceedings, but we consider that this is an anomaly which may be accepted and which is unlikely to cause difficulty or embarrassment in practice.That is the argument which the Lord Advocate will have to answer. I have no doubt that he will address himself to it, and it may be that he will convince us; but that is a very strong recommendation, and it is there that the provisions of the Bill differ from the recommendations of the Rushcliffe Committee and the Cameron Committee's Report— I am thinking of the Cameron Committee's Report as the instrument for bringing into force the Rushcliffe Committee's recommendations. It is there that they differ from the Bill.
My hon. and gallant Friend the Member for Eastern Renfrew (Major Lloyd) spoke with some heat on this subject, and I think he was entitled to, more particularly because of the speeches which 1458 were deliverd afterwards; because if ever speeches were delivered suggesting the entire subordination of the legal system to the will of the Secretary of State for Scotland, they were the speeches that were delivered by subsequent speakers. Those who say that the legal profession should be subject to Parliament or this House are bringing in very novel and far-reaching doctrines.
The hon. Member for South Ayrshire said that Lord Reid had been nationalised and that he was in the position in which all lawyers should be. But he is not yet subject to regulations made by the Secretary of State for Scotland. I can imagine the arguments that my right hon. and learned Friend the Member for West Derby would address to this House if it were proposed to make His Majesty's judges subject to regulations to be prescribed by the head of the Executive, however powerful he might be. Wars have been fought on this, and heads have rolled. These are dangerous doctrines to bring forward in connection with a Bill with whose objects we all sympathise—the object that nobody should be debarred by lack of money from access to the courts of justice of this country.
Some of the arguments which were brought forward by the hon. and learned Member for North Edinburgh (Mr. Willis) in defence of the Bill were more wounding than any attacks on it. He said that the new provisions under which people are working, the new Acts which they had to understand, are so complicated that without legal aid they cannot understand them at all. He said that the Rent Restriction Acts and the Town and Country Planning Act—that darling of the Government mean that we have to introduce a legal system to enable people to get along despite these new lions in their path, because it is impossible for the ordinary citizen to understand them at all. I rather fear this new principle that first of all the Government make laws so complicated that nobody can understand them, and then introduce a free legal system so that they can be explained. I would suggest that the short cut may be not to introduce these laws; and then everybody would be much happier.
The hon. Member for Tradeston (Mr. Rankin) spoke of this Bill as a Bill of an exploratory nature. It is not of an 1459 exploratory nature in Scotland. As the Solicitor-General himself has said, we have been working under a procedure of this kind for 500 years in Scotland, and one of the points made by the profession in Scotland is that we should not attempt to sweep away so much of it as they think this Bill attempts to sweep away simply because a very learned Committee has reported on the subject in England. The difficulty in which the House is placed tonight is that we have the unusual difficulty for Parliament—the unheard of difficulty—that we have not enough lawyers. It has never occurred before. I do not know whether the ghosts of many who have been attacked in the past for crowding out the House with professional gentlemen are chuckling amongst the blessed, where no doubt they have appeared by this time; but here is the whole Scottish Grand Committee without a single back bench lawyer upon it and feeling the need of them greatly. That is an example, no doubt, why a Bill of this kind should pass through the House.
It is not true, I think, as has been said, that there has been no attention given to this problem in Scotland. Poor persons have had for many hundreds of years legal advice in Scotland and, as the hon. Member for East Fife (Mr. H. Stewart) said, there is a rota by which, in many cases, they are getting the highest possible advice which anyone could have. Even the suggestion of bringing the solicitors into a single organisation under Part II of the Bill follows quite closely the Bill which was introduced by Lord Normand in the last Session and which, in turn, was based on a Bill introduced before the war, and which got its Second Reading in 1938 but was stopped by the oncoming of the war.
In Scotland we have done our best to assure the access of the citizens to the courts. This is a development along historical lines and should be so treated. There are, of course, many points which we should like to raise in Committee and on which we shall, no doubt, have to lay considerable emphasis; the position, for instance, of certain of the solicitors under the Bill is one which will need very careful examination. But the fundamental principles which have been brought forward are principles which have been 1460 mooted and, in many cases, agreed to in principle, in Scotland for many years. But the translation of them into practice and into the Clauses of a Bill have undoubtedly led to a great deal of anxiety and uneasiness in legal circles in Scotland, not because it is going to mean hardship for the lawyers but because it is going to mean the weakening of the liberties of the people. If the executive becomes supreme over the judiciary, then the last barrier to free society has been swept away; and in so far as the Secretary of State and other executive officers find that it is beginning to be possible to bring the lawyers of our country into one group, and then to make regulations under which that group has to operate, that is undoubtedly a step towards that dangerous end.
The Cameron Committee suggested as a safeguard that an advisory committee should be closely associated with the working of the scheme—an advisory committee of three members of the Faculty of Advocates, three solicitors and three independent members to advise and consult with the Lord President. I do not know whether that advisory committee finds a place in the new scheme or whether it could be introduced into the scheme, but the new relations—
§ Mr. McAllister
Before the right hon. and gallant Gentleman leaves that point, which has been made by several speakers in the course of this Debate, is it really true that anywhere in this Bill there is the slightest interference with the judiciary? There is some help to lawyers but nothing that conceivably interferes with the judiciary.
§ Lieut.-Colonel Elliot
It was not I who said that Lord Reid had been nationalised. It was a supporter of the Bill who said that one of the highest leading legal officers in the land was a nationalised judge—and then went on to emphasise that and what he would like it to lead to. I was saying that from these incautious remarks we could see the way that some, at any rate, of the supporters of this Bill wish to go, and I said that in so far as the Secretary of State, a political officer, assumed control over a great portion of the legal machinery of Scotland, we were moving towards that end. I do not think that anyone can say that it is a step away from it.
1461 I believe that the difficulty of the relationship of the highest executive to the machinery of the law is a relationship which will need some further thinking out. I find the position of the Lord Chancellor in relation to the new tribunals a very difficult and obscure position. I am sure that all this will need some thinking out in Scotland, where the fact that we are linked together with the Lord Chancellor, who is a very special kind of officer and who has no opposite number in Scotland, has led us in numerous Acts—coal and gas and many others—into a rather awkward position. I am not at all sure that some new body should not re-define the position of our great officers the Lord President of the Court of Session, the Lord Advocate for Scotland, the Secretary of State and former Keeper of the King's Seal—whether some re-definition of their relationship will not be needed to be worked out before we finish with the new position in which the executive and the judiciary are finding themselves.
For the present, we strongly request that the Lord Advocate will give us an undertaking that the Bill will not be proceeded with before February; and we also request that the financial Resolution should be held over. If he can satisfy us on at least one of these points, I and my hon. Friends would certainly not wish to divide against the Bill, but we reserve our right to bring forward Amendments in Committee and our further rights on Third Reading if we are not satisfied with the Bill as it returns to the House.
§ 7.48 p.m.
§ The Lord Advocate (Mr. John Wheatley)
The Debate on this Bill has taken, as the right hon. and gallant Member for the Scottish Universities (Lieut.-Colonel Elliot) has said, rather a different line, so far as Part I is concerned, from the Debate on a similar Bill which applies to England which took place yesterday. The Debate has been interesting in that many lay points of view have been advanced in contradistinction to the rather overloading of legal views which characterised the English Debate. I am sure, however, that hon. Members on both sides of the House regret that the Opposition have not at their disposal at the present time a Scottish lawyer to 1462 advance the technical side of their argument. I personally sympathise with them in that respect, because it would make my job a little easier if I could deal with the technical aspects of it with one of my professional brethren. That rather indicates how the old order changes, because time was when we were bereft of any legal advisers on this side of the House and hon. Gentlemen opposite had a superfluity, even to embarrassment, of these riches.
The moderate and more responsible members of the Opposition have indicated quite clearly that, consistent with the new view held in Scotland, there is more or less general approval for the underlying principles of this Bill. That, I think, cannot be stressed too strongly, because many of the criticisms of the Bill proceeded on what I conceived to be misconceptions, and I trust that I shall convince the House that they were misconceptions before I resume my seat. If we proceed from the fundamental basis that the principles of the Bill are accepted and acceptable, both to the public and to the profession, at least we have a good starting off point.
The tone and tenor of the Debate strayed a little into what one might almost term party lines, directly as a result of and consequential upon the speech of the hon. and gallant Member for East Renfrew (Major Lloyd).
§ The Lord Advocate
He is apparently very proud of the fact that he can introduce politics into even a non-political Debate. I do not intend to occupy any of the time at my disposal by discussing the speech of the hon. and gallant Member, because on his own confession his information was not only second hand but third hand; he proceeded on false premises, he gave expression to a lot of party political propaganda, which I am sure was embarrassing to his colleagues, particularly on the Front Bench, on a Bill of this nature, and I really must say that he followed a line which is characteristic of certain sections of the Scottish Press, with which I shall deal in the course of my speech.
We are very pleased to introduce this Bill, and I am very pleased and proud to be associated with it and to have the 1463 honour and privilege of helping to pilot it through Parliament and make it part of our legal machinery in Scotland, because Part I of this Bill is a landmark in the history of our administration of justice. This is not a complete Measure representing the millennium. Now, I do not want that to be misunderstood, and I do not want any sinister interpretation to be put on that remark. Everyone will, I think, realise that we are starting off in this scheme in a modest way as experience shows how it can best be expanded and developed, then it would be the desire of every one that it should so be done. But it is a distinct advance towards removing the anomalies and restrictions which have clothed our juridical system heretofore. If it errs, it errs on the side of caution; but in this new enterprise it is desirable to build on the existing machinery and not to overload the machine to such an extent that it might cease to function.
Provision is made to allow us to extend the operation of the scheme as experience shows that extension to be desirable and physically practicable. I am sure that it would be the wish of the House that the public and the profession should be satisfied that we should start by providing an efficient machine which can be so expanded, rather than attempting to set up an over-encumbered machine and lose the good in a hasty attempt to achieve the better.
The Bill is designed in the interests of the public. Let us be quite clear about that. That is the one underlying fundamental principle of the Bill. It is not a Bill designed in the interests of the legal profession as such; they are, I think, inherent beneficiaries under the scheme, but the principal purpose of the Bill is the interests of the public, to give them freer and more uninhibited access to our courts of justice. The scheme will be operated by the legal profession in a manner unique in our constitution, because, subject to certain financial safeguards, which will be governed by regulations, the Government will hand over a very substantial sum of money to the legal profession to allow it to operate the scheme on its own.
I ask hon. Members opposite who have taken the view that we are making the legal profession State servants—as if that 1464 were a crime; but I do not want to argue that point in this Debate—to take note of the fact that, subject to certain restrictions so far as the financial expenditure is concerned—because, after all, we are responsible to Parliament for the expenditure of that money—a very substantial sum of money is being handed to the legal profession to allow them to operate this scheme on their own. But I should be less than frank if I did not say that it is my intention that the financial provisions of the scheme shall be to the benefit of the profession, despite the limitation of the fees to 85 per cent.—
§ The Lord Advocate
—because the loss of the 15 per cent. Will be more than offset by the guarantee of payment and the fact that payment is on a solicitor and client basis.
So far as counsel are concerned, again a sinister motive was interpolated into the scheme by the hon. and gallant Member for East Renfrew because counsel were to be paid direct out of the scheme. That arrangement was reached as a result of our consultations with the legal profession; it was reached in the interests of the Faculty of Advocates so that there would be no delay in paying over the fees due to counsel by the solicitor. It sometimes happens—although I am not suggesting anything improper about it—that in. the welter of work a solicitor finds it difficult to make up the fees due to counsel, and delay sometimes occurs between receipt of the fees by the solicitor and payment of the fees to counsel. This particular proposal was introduced in order to make direct and more expeditious payment to counsel for their services.
In passing from the old system of legal aid for the poor into this new era, I should like to pay my own tribute to the voluntary work done by the legal profession in this connection in the past 500 years. One of my predecessors, Henry Erskine, had a reputation drawn from the following phrase used by one of his friends:There's nae a puir man in Scotland need want a friend nor fear a foe while Henry Erskine lives.This was the tradition in which the legal system for the poor was carried out by lawyers, great and small, and that era 1465 should not be allowed to pass without tribute and due acknowledgment being made of the services which the profession has given in the past.
However, for the reasons given by my hon. and learned Friend, this system is no longer appropriate for present-day conditions, and so the new system is evolved. While I am sure the Bill is now welcomed by all sides of the House and by the general public in Scotland, despite what may have appeared in the Press, a certain degree of apprehension has been expressed as a result of certain letters in the Scottish Press, certain statements made by individual solicitors in Scotland, and by certain articles appearing in the Press consequential upon those different letters and statements.
§ Lieut.-Colonel Elliot
The right hon. and learned Gentleman will admit that representations have also been made by organisations of high legal standing?
§ The Lord Advocate
I was coming on to deal with that, because the representations which are made by the organisations are representations in relation to the machinery of the scheme. They do not impute to the promoters of this Bill the motives that are being imputed, at least by certain writers to the Press and by certain writers of leading articles in the Press. That is the vital distinction. The hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) said that he was appalled at the reception this Bill had got in the Press. Well, so was I; and when I tell my story perhaps hon. Members on both sides will appreciate why I was appalled. If there was a distinct grievance on the part of the legal profession, I leave it to hon. Members to decide whether I did not have an equal grievance.
Some of these criticisms proceeded from a misapprehension of the true facts of the Bill. Some are definitely based on bigoted anti-Government feeling.
§ The Lord Advocate
The hon. and gallant Member says, "Why not?" and accordingly he is an advocate of bigoted anti-Government feeling. Characteristic of the latter, although I am sure the hon. and gallant Member was not the author, are the views expressed by a correspondent in "The Scotsman," writing from the 1466 Advocate's Library in Edinburgh, stating that it is high time to protest strongly against the Labour Government's attempt to foist a system of legal aid in Scotland without consulting the legal profession. He goes on to query this faux pas on their part as just further proof of the fact that those responsible have no background or tradition of governance behind them. He signs himself "Advocatus," thereby disclosing his classical education, but he has not the courage to come out in the open to support his bigoted views, preferring to seek refuge under a cloak of anonymity. Characteristic of some of the other criticism is that we are Anglicising Scottish law, or that we are Sovietising it. I do not know whether the terms are supposed to be synonymous or not, but they are sheer unthinking propaganda directed against the Government without the slightest justification for this vicious campaign.
§ The Lord Advocate
It may not be unthinking, but to my mind it is unthinkable.
The more restrained criticism is based on the allegation that this legislation has been rushed, that the legal profession has not been consulted, and that the Bill permits regulations to be made whereby the profession can be dominated and controlled by the Secretary of State. But what are the facts? In May, 1944, the Rushcliffe Committee was set up by the National Government to consider the question in the case of England and Wales. If there had been any objection to a separate investigation not being made for Scotland, that was the time when the exception should have been taken and not on the eve of the presentation of this Bill. If it is a complaint that Scotland has been ignored, it is a complaint that cannot be put at the door of this Government.
§ The Lord Advocate
I was just coming to that. If I had to surmise why it was not extended to Scotland, I should venture the view that it is because we had the Morton Report in 1938.
The Cameron Committee was appointed on 1467 23rd November, 1945. There is no reason why its conclusions should be the same as the Rushcliffe Report.
§ The Lord Advocate
I was coming to that point. The Rushcliffe Report was published in May, 1945, and in November, 1945, the Cameron Committee was set up to frame a corresponding scheme for Scotland, based on the general principles of the Rushcliffe Report. If there had been objection taken to the limitation of the terms of reference, that was the time for the exception to be taken, and not following the issue of the Report and the subsequent formulation of a Bill based on that Report. Therefore, I can accept no responsibility whatsoever for the facts that have emerged. If there is any responsibility in this House for the limitations of the terms of reference of the Cameron Committee, it must be shared equally by all Scottish Members.
The Cameron Report was issued in May, 1946, and I wish to make two observations on that Report. Despite the apparent restrictions in terms of reference, the Committee were restricted only in two matters—the fundamental principle of the extension of the existing scheme of legal aid for the poor, and the financial limitations within which legal aid would be provided. Beyond that, it was only a question of dovetailing the Scottish machinery to fit it in with the extended system of legal aid. Members will remember that the Cameron Committee proceeded on the basis of building up on the existing structure and of extending it. That is what they recommended, and that is what we have done, subject to a number of alterations in the machinery, to which I shall make reference.
The recommendations of the committee have, by and large, been adopted in this proposed scheme, and any difference has been mainly in machinery. Since May, 1946, the legal profession has been aware of these provisions and has had time to consider and digest them. Any scheme based on that Report cannot be said to have come out of the blue, and the fact that it has not been adopted simpliciter is no cause for describing the scheme on which it is based as hasty and ill-advised. Following upon that Report, a draft scheme, incorporating the general 1468 recommendations of the Cameron Committee, was drawn up by the late Hugh Eaton, W.S., a member of the General Council of Solicitors in Scotland. That draft scheme is the basis of the White Paper that has been issued.
After it was announced in the King's Speech that legislation for legal aid would form part of the programme for the present Session, I invited, in the absence of a single unified solicitors' society for Scotland, representatives of the six societies and of the Faculty of Advocates to a meeting on 11th October this year. The reason why there was no meeting prior to that was that I felt it was not desirable to have a meeting prior to the date when we knew for certain that a Bill of this nature was to form part of the legislative programme. I can assure the House that these representatives of the six societies and of the Faculty of Advocates represented the whole of the legal profession in Scotland; the Scottish Law Agents Society alone claims to represent 75 per cent, of the solicitors in Scotland. At that meeting they were provided with a copy of the proposed scheme for legal aid, worked out in detail and generally following the recommendations of the Cameron Report.
After a general discussion lasting several hours, it was arranged to have a subsequent meeting on 29th October to discuss the proposals in the light of any observations and criticisms that the constituent societies might have to make on the original draft.
§ Major Lloyd
This is a very important point. The Lord Advocate has told us that he interviewed leading people on the subject and told them what he was planning, but did he tell them in confidence that the Secretary of State for Scotland was to come into the Bill and to have powers of regulation over the profession? The Cameron Report did not recommend that.
§ The Lord Advocate
Perhaps the hon. and gallant Member will wait. I am trying to give an historical review; and I think he will find that I shall deal with these points in due course. Between 11th and 29th October, the constituent bodies had an opportunity of examining these proposals in the White Paper. It was explained to them at the first meeting that they could not see a copy of the draft Bill before it was presented to 1469 Parliament, but that the contents of the White Paper would foreshadow the contents of the Bill.
The particular point raised by the hon. and gallant Member was mentioned to a certain extent; in other words, although Clause 11 (1) was not shown to them, it was explained to them that the Law Society would be expected to prepare the scheme, subject to the concurrence of the Secretary of State and the consent of the Treasury, and that the Secretary of State would require to come in to make regulations with a view to setting up the machinery for his side of the scheme, which was largely the financial side, for which he is responsible to Parliament. I tell the House that it was intimated to them that the Secretary of State would come in as a regulation-making body, that the nature of the regulations could not be explained to them until we actually had the draft of the Bill which could be shown to them, and that it could not be shown to them until after it was presented to Parliament.
The constituent bodies each considered the White Paper between the two meetings. They came back, and we had the second meeting at which we discussed the various proposals and suggestions. At the end of that second meeting it was agreed that the general principles of the scheme as embodied in the White Paper were acceptable to all present, and that they would reserve to themselves the right to criticise any particular point in the Bill when presented and when it came to the Committee Stage, because they had not had the opportunity of seeing the Bill. It is not a question of their asking for that reservation; I offered them the reservation before they asked for it.
It is said that great publicity has been given to the fact that no time was given for proper consultation, yet it is the fact that those seven representatives from the several societies left my room in the Crown Office in Edinburgh at the end of the second meeting, each of them giving me an assurance that the scheme as propounded in the White Paper, and as hon. Members now know it, was acceptable to them and that they were prepared to work it, subject to the one reservation that when the Bill came along they would reserve to themselves the right to criticise any particular point of machinery.
In view of the fact that it has been suggested that the Faculty of Advocates 1470 were not consulted in this matter, I want to read to the House a letter which is dated 23rd October, 1948, and addressed to me by the Clerk of the Faculty of Advocates. It is headed "Legal aid" and contains these words:I have to thank you for the copies of the draft White Paper on the above. It was received by"—a certain member of the Bar whose name I will not mention—from the Home Department following upon the meeting of 11th October. The draft White Paper has now been considered by the Faculty committee on legal aid, of which [the named member] is a member, and I now beg to enclose a copy of the draft paper with the committee's suggestions shown thereon in red, for the favour of consideration prior to the meeting to be held with you in the Crown Office on 29th October, at 2.30 p.m. The Faculty will be represented at the meeting by [the named member] and also, I hope, by myself.How, in the face of that letter, can it be said that the Faculty of Advocates were not properly consulted before the publication of this Measure. I must say, and I do it in all sincerity with every ounce of responsibility that I can muster, that while I do not think the particular letter, if strictly read, conveys the meaning which has been put upon it by certain organs of the Press, any suggestion that the Faculty or any other branch of the profession was not properly and fully consulted is quite disproved by the facts which I have put before the House and by the evidence of the letter which I have just read.
One of the points which we discussed at the second meeting was the suggestion, not from me but from the profession, that there should be a power to conscript lawyers into the scheme in the event of there not being sufficient volunteers to operate it. I opposed that suggestion, insisting that the scheme should be on a purely voluntary basis. Hon. Members will observe that the voluntary system is adopted in the Bill. I should say in parenthesis, and in fairness, that the White Paper now before the House is not the same that was before the societies in one particular respect, and that the confining of the scheme in the first instance to the courts of law and the exclusion of certain types of action, were not included in the White Paper. There were reasons for that. Hon. Members will realise that that fact in no way vitiates the point I am making and in no way 1471 gives ground for complaint to the people who have complained.
If the critics had only, had the decency to wait for the explanation which I have now given they would have been in a proper position to make their comments in full confidence. Even the Secretary of State for Scotland and the Lord Advocate are surely entitled to the presumption of innocence and to the benefit of the doubt.
With regard to the letter issued by the Dean of Faculty to the leading Scottish newspapers, and which reappeared in "The Times" this morning, I should like to make the following observation. In so far as criticism is made that the views of the Faculty were not sought in the preparation of the Measure, I am confident that the explanation I have given will refute it. On a strict reading of the allegation that the Bill has never been discussed in detail with the Faculty, there seems to be a complete misapprehension by the Dean as to the procedure which is followed, and which hon. Members of this House will understand. While it is customary to have discussion with interested parties prior to the drafting of a Bill, only general principles are discussed, because Parliament is very jealous of its rights, and properly so. It would have been a breach of Parliamentary Privilege, and quite improper, if I had discussed the details of the Bill with the Faculty of Advocates or with any other body, before it had been presented to Parliament.
I had a meeting with the Dean of Faculty last week and he expressed to me some preliminary doubts about the provisions of the Bill. I pointed out to him that these were committee points which could be discussed at a later stage in the proceedings, as they did not affect the fundamental principles of the scheme. With that view I understood him to concur. It is most regrettable that any misconception should have given rise to controversy in the Press in relation to the Bill, especially when a Bill of parallel structure has been so universally accepted in England. I hope that our Bill and the explanation which I have given will be equally well received by the profession as a whole in Scotland, and by the public.
We are told that we are Anglicising our law, and even Sovietising it, that there is 1472 something dark and sinister in the proposals, that the proposals are being unduly rushed, and that this is another example of the Labour Government's attempt to foist a system of legal aid on the profession with hidden motives underlying it.
§ The Lord Advocate
"Hear, hear," says the hon. and gallant Member. I should just like to test that. It is interesting to note that the counterpart measure for England, which is on exactly parallel terms, fitted to the structure of law in England with all the matters available to it that are available to our Bill, with the exception that it is the Lord Chancellor who will make the regulations and not the Secretary of State, was warmly welcomed by all sides of the House yesterday, and in particular by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) and the hon. and learned Member for Daventry (Mr. Manningham-Buller). May I quote what the latter in fact said in the course of the Debate? He started off by saying:I think that the House will agree this Bill has received as cordial a welcome as any legal Bill is likely to receive from a whole body of lawyers.He goes on later:It is one of the few Bills introduced by this Government to which I can give almost unqualified support.Further on he says:I can say with confidence that had we on this side been the Government since 1945, we would certainly have introduced a Measure of this sort at the earliest opportunity."—[OFFICIAL REPORT, 15th December, 1948; Vol. 459, c. 1314.]The complaint is not that the Bill has been hurried too much; it is that it was not introduced earlier. The complaint is not that this Measure is full of dark and sinister designs, but is one which the Conservative Party would have introduced for Scotland had they been in power since 1945. I ask the hon. and gallant Gentleman to reconcile that with his conscience and, if he has any difficulty, to have a consultation with his hon. and learned Friend—
§ Major Lloyd
My hon. and learned Friend was speaking about the English Bill. I am referring to the Scottish Bill and representations from people in Scotland, which is a different matter.
§ The Lord Advocate
I was dealing with the hon. and gallant Gentleman's own views, in so far as he was capable of formulating them at all.
§ Mr. Gallacher
Why say that the hon. and gallant Member for East Renfrew (Major Lloyd) has a conscience?
§ The Lord Advocate
I ask Members opposite to face this question; Is it likely that a Measure which Sovietised the law would have the approval of the learned Members—and I mean "learned" in the best sense of the word—to whom I have referred? Are we Anglicising the law because we accepted the principles of a wide extension of legal aid and equiparated the financial positions? Some of the critics, friends of the hon. and gallant Gentleman the Member for East Renfrew, have said that we should have accepted a lower financial maximum, as the English figures were based on English costs. I do not quite understand this argument, but if it is suggested that there should be a lower maximum qualification in Scotland than in England, we on this Front Bench will resist any such proposition. For all the avowed Scottish Nationalism—which is rather synthetic—which has been exhibited in parts by the hon. and gallant Member, I think he might find it difficult to square that with his case when he goes back to Scotland.
§ Mr. Deputy-Speaker (Mr. Bowles)
The hon. and gallant Member cannot pursue that point as the Lord Advocate has not given way.
§ The Lord Advocate
The principal feeling seems to be about Clause 11 (1) which empowers the Secretary of State to make regulations…for giving effect to this part of this Act or for preventing abuses thereof.What are these powers, and by whom should they be exercised. The framework of the Scheme provides regulations of two kinds—the first to increase the scope of the Bill, which are subject to affirmative Resolution procedure, to 1474 which I am sure there is no objection whatsoever; the second to give administrative effect to the scheme, which are subject to negative Resolution procedure. Following the recommendations of the Cameron Committee the Bill has been framed in general terms to provide elasticity for the scheme, which should be capable of simple and rapid amendment. Changes which will inevitably occur as the administration develops should be laid before Parliament by regulation, to obviate the need to bring forward an amending Bill.
What are the regulations required for? These are the regulations which, it is said, are affecting the whole life and future of the legal profession in Scotland: The regulations which the Secretary of State will be called upon to make under the negative Resolution procedure will be found in Clause 2 (4) and Clause 2 (5), which deal with the question of effecting the appropriate court or tribunal which will determine how much expenses will be paid by the unsuccessful litigant, and the extent to which any such determination is to be final—i.e. if there is to be advantage it may be necessary to have a time limit within which the successful party can come back and say that conditions have altered to such an extent that he is entitled to his full expenses, and not only to part expenses as originally decided.
Clause 3 (4) deals with finance, and various regulations under Clause 4 deal with finance or deductions from gross income in arriving at the net disposable income. Clause 6 provides regulations to deal with reciprocity with England as to legal advice and Subsection (6) of that Clause deals with the scope of legal advice to be administered under the scheme. Clause 10 provides regulations in connection with pension rights of employees under the scheme. These are machinery provisions; they have nothing to do with legal provisions, or legal rights under the scheme. It is expressly provided in Clause 1 (7, a) that:the fact that the services of counsel or a solicitor are given by way of legal aid shall not affect the relationship between or the rights of counsel, solicitor and client;That is only modified by the regulations to this extent: that they do not pay them as they did in the past. There is nothing sinister about that. When we examine the nature of the powers said 1475 to be exercised by these regulations the feeling that they are sinister should be dispelled, because an officer of State, responsible to Parliament, is given power to make regulations which are primarily and substantially designed to control the finances of the scheme.
Provision is made to formulate the scheme. As to whether Clauses like Clause 11 (1) require any amendment to make it clear that no sinister powers are being sought by the Secretary of State that can be considered in Committee. Let me say, here and now, that the Bill will not come before the Scottish Grand Committee until February. If the Bill is agreed in principle discussions will take place in Committee. Allegations that it has been hurried show a slight misapprehension—not on the part of Members here—about our Parliamentary procedure.
The Bill was published on 22nd November, and it may be that legal societies and other interested parties in Scotland have not been able properly to to criticise it—though a reading of the Scottish Press would not lead one to that conclusion. The Cameron Report admitted the need for provision to be made by an officer of State, responsible to Parliament. In England the officer of State is the Lord Chancellor, who has both judicial and executive functions. We have no comparable officer of State in Scotland. The Lord President of the Court of Session is a judicial officer, and is not answerable to Parliament. He does not fulfil the conditions, and I am sure that he would not be prepared or wish to accept the responsibility. The Lord Advocate, as the officer of State responsible for criminal prosecutions in Scotland, and who appears in court on behalf of the Crown, is perhaps not the appropriate officer of State, because he may be prosecuting people who are receiving the benefit of legal aid under the scheme he has to regulate, or he may even find himself in the invidious position of arguing about regulations for which he was responsible. That is an almost intolerable position in which to put any Lord Advocate—to instruct him to make regulations and then have him argue with the court as to the meaning of his own regulations.
That leaves us with the Secretary of State, who is the Keeper of the Great 1476 Seal and the person responsible for judicial appointments in Scotland and who is divorced from any intimate association with the courts. Looking at the matter broadly he is obviously the most appropriate person to choose for that job. I can tell the House, as my right hon. Friend will admit, that if there were a question of the rights of the Lord Advocate in this matter vis-à-vis the Secretary of State, I would not yield an inch in asserting the right of the Lord Advocate, but I feel, considering the constitutional position I am in, that the Secretary of State is the appropriate person. He is answerable to this House for the regulations, and those which are subject to negative procedure can always be prayed against and the abuse ventilated on the Floor of the House of Commons. The only alternative is to allow the Lord Chancellor to exercise his constitutional right as Lord High Chancellor of Scotland, but I doubt very much if we would wish to go back to Scotland and justify such a suggestion as that.
There are a number of points on the Bill with which I should like to deal. The hon. and gallant Member for West Edinburgh asked me on Clause 1 (6) who would be the deciding authority as to whether or not legal aid should be granted. Quite obviously that is a matter for the legal profession and for the various committees set up under the scheme, and quite a number of these points are dealt with in the White Paper which I commend to the attention of hon. and right hon. Members. The next point arose on Clause 2 and was about contributions and expenses. That is rather a Committee point. The explanation involved is rather detailed, but I might say that there is a responsibility beyond a certain point to make contributions and there is a responsibility for the unsuccessful litigant to pay the expenses of the successful litigant. The details are a bit involved for a Second Reading speech, and I trust the hon. and gallant Member will forgive me if I do not go into it in detail now.
The same applies to the question as to what constitutes disposable income. If one looks at the disregards in Clause 4 (c) it will be appreciated that a person with quite a substantial income would net only come within the scheme, but might have to contribute comparatively little towards the cost of his litigation. Under 1477 Clause 5 (1) the panels will be drawn up respectively by the Law Society and the Faculty of Advocates, and I trust that it is appreciated that we have set down general principles in the Bill, leaving the actual operation of the scheme which will be drawn up to the Law Society.
§ The Lord Advocate
The Bill does say so. I am reminded that the hon. Member prefaced his speech by saying he had not had time to read the Bill properly.
§ The Lord Advocate
HANSARD will show tomorrow which of us is correct. Clause 7 (1) says:Subject to this Part of this Act, it shall be the responsibility of the Law Society to make arrangements, in accordance with a scheme made by them with the approval of the Secretary of State and with the concurrence of the Treasury, for securing that legal aid and legal advice are available as required by this Part of this Act and generally to administer this Part of this Act.Regarding Clause 5 (2), as my hon. and learned Friend pointed out, the bodies responsible for moving solicitors from panels will be the Faculty of Advocates and perhaps a Committee of the Law Society. Since a big proportion of the work of lawyers, using the generic term, will be contained in this scheme in the future, we felt that it would be desirable to give a right of appeal from such a decision to the court, because a disqualification from a panel might virtually mean the end of the livelihood of a person so disqualified. We feel that it is only right that a right of appeal should be inserted at a later stage of the Bill.
The question of the 85 per cent. was raised. So far as I know, that is acceptable to the profession. It was included in the White Paper which was agreed with the representatives of the profession, and I think that at the end of the day the profession will not come off badly by getting a sure 85 per cent. for all the work they do.
My hon. Friend the Member for North Edinburgh (Mr. Willis) asked for information about the legal advice. It was suggested from the Opposition by the hon. and gallant Member for East Renfrew that an eminent K.C. had said that it was fantastic. I do not think so. It has 1478 been going on for a long time. We have had experience of it in Edinburgh. Under the scheme as we discussed it at very great length with the profession, it is contemplated that initial advice will be given by the simple expedient of going into the chambers of any lawyer in the scheme and asking him for advice.
§ Major Lloyd
I never said anything of the kind. Quite inadvertently the Minister has mixed up me with somebody else.
§ The Lord Advocate
It is difficult to, mix up the hon. and gallant Gentleman, with anybody else, but I accept his explanation.
The next question referred to the-National Assistance Board. As I pointed: out in an intervention to the hon. Member for Dumfries (Mr. N. Macpherson), under the sheriff court procedure the investigating officer is the inspector for the poor. It is true that in the Court of Session it is the Committee sitting in probabilis causa which discusses the means. We discussed it at great length and came to the conclusion that it would throw too great a burden on the committees to ask them properly to investigate means under the scheme. One must remember that this is a great extension of the old poor law system and that we are spending a lot of public money on it and there must be some safeguards.
We have come to the conclusion that a statutory declaration is not sufficient, that it is desirable that there should be an inquiry, that it would over-burden the committees to vest them with the responsibilities for the inquiries and that the National Assistance Board officer is the most appropriate person because he has the experience to deal with the various disregards to which reference is made in the Bill. I would again point out to hon. Members that if they refer to the White Paper they will see that that received the approval of the various bodies which were represented at the meeting dealing with that.
I should also like to repeat what was said by my hon. Friend the Member for Kelvingrove (Mr. J. Williams) in regard to the criticism that people should not go to the National Assistance Board to have their affairs investigated. I was going to make the same remark. We 1479 must get a new psychology in regard to the National Assistance Board. We must remove the stigma of the poor law from the minds of our people. We must realise that this is an assistance in cases where normal assistance from other sources is not available. I would repeat his strictures in answering the remark of the hon. and gallant Member for East Renfrew that his middle-class constituents would not like to go to the National Assistance Board. If that organisation is good enough for the people to go to it for the necessities of life, surely it is good enough for people who have to get financial assistance in connection with their litigation. I can tell my hon. Friend the Member for North Edinburgh that no longer will the assisted persons be known as poor persons.
§ Mr. Willis
Before leaving the point of the National Assistance Board, could my right hon. and learned Friend tell us why the recommendations of the Cameron Committee have not been accepted?
§ The Lord Advocate
That is a Committee point and I should prefer to deal with it in Committee, as with the various points made by the hon. and gallant Member for West Edinburgh, and I hope my right hon. Friend will not regard it as discourteous if I do not go into that question at the present time.
I am convinced that with that explanation the House will be satisfied that this is a Measure which has within its power the ability to give the type of system envisaged on both sides of the House for the benefit of the people. I think that on calm reflection this Bill will receive the acceptance of the main body of the profession and of the public. If it can be perfected, and doubts removed, we shall be pleased to consider any representations inside or outside the profession to accomplish that end. In the meantime let it go forth from this House that the general principles are welcomed and will be operated in a spirit of goodwill by the profession and will be accepted by the public, and that the acceptance of the Bill by the profession, on which its success so largely depends, will be the keynote to its ultimate success. On that note I commend this Bill to the House.
§ Question put, and agreed to.1480
§ Bill read a Second time, and committed to a Standing Committee.
§ The Secretary of State for Scotland (Mr. Woodburn)
I beg to move:That, notwithstanding anything in paragraph (2) of Standing Order No. 57 (Standing committees (constitution and powers)) and Standing Order No 59 (Scottish standing committee), the Bill be considered by the Scottish Standing Committee.The Legal Aid and Solicitors (Scotland) Bill which we have just considered is a Bill which in all its essential aspects affects only Scottish interests. It would, therefore, be appropriate that the Bill should be considered by the Scottish Grand Committee. Under the Standing Orders of the House, however, the only Bills which are automatically referred to the Scottish Grand Committee are those which relate exclusively to Scotland and, as hon. Members will have noticed, this Bill provides for legal aid in appeals from the Court of Session which may be taken to the House of Lords, and for the giving of legal advice in certain circumstances to persons who in Scotland require advice on the law of England or Northern Ireland. These matters are essentially parts of the Scottish legal aid system, and I think it will be agreed that, notwithstanding the reference to them, this Bill should be considered by the Scottish Grand Committee.
§ Question put, and agreed to.