§ Considered in Committee under Standing Order No. 84 (Money Committees).—(King's Recommendation signified.)
§ [Mr. BOWLES in the Chair]
Motion made, and Question proposed:
That, for the purposes of any Act of the present Session to make legal aid and advice in Scotland more readily available for persons of small or moderate means, and to enable the cost of legal aid or advice for such persons to be defrayed wholly or partly out of moneys provided by Parliament; to establish a Law Society of Scotland; and for purposes connected therewith, it is expedient to authorise—
A. The payment out of moneys provided by Parliament of the net sums required to meet payments out of any fund set up under the Act in connection with the provision of legal aid and legal advice if (subject to any discretion of the Secretary of State to modify
the Act by regulations thereunder to meet special cases)—
B. The payment out of moneys provided by Parliament of any increase in the expenses of the National Assistance Board attributable to any provision of the Act relating to the determination of a person's disposable income or capital or to a person's contribution to any such fund as aforesaid."—[Mr. Woodburn.]
§ 8.44 p.m.
§ Lieut.-Colonel Elliot
This is the second request I have made to the Lord Advocate which I hope he will find it possible to grant, namely, that this Financial Resolution should not be taken tonight. This is the point at which the Lord Advocate pleads guilty. He carried out a, convincing defence of himself on the other points, but on this one he "came clean." This point had not been before the various bodies whom he met. He indicated that it had been mentioned that the Secretary of State for Scotland would come in in some way dealing with finance, but that he was not able to bring these points clearly before the various bodies whom he consulted. This, of course, is one of the main points to which they have taken exception.
Clearly, if we pass the Resolution tonight, the regulations thereafter will have to be made by the Secretary of State for Scotland, the House having so decided. I trust that the Lord Advocate will not desire to take it tonight. It is quite unnecessary to do so. He has already indicated—and for this we are grateful—that the Bill is not to be proceeded with until February. If we pass the Resolution tonight, the societies and the legal fraternity in general will feel 1482 that they have been sidetracked, but if they are to make the representations, which he has promised them, they will be able to have Amendments submitted in Committee. But then, if we do this tonight, they will find they cannot get Amendments on the points to which they attach major importance because these are blocked by the Financial Resolution.
I beg the Lord Advocate and the Secretary of State for Scotland to consider the effect of frustration and disillusionment it will bring about after the, very persuasive speech of the Lord Advocate, indicating not only that he had done his best to have all possible consultation with his legal brethren, but that they would be able to make representations during the further stages of the Bill. If the Resolution goes through tonight they will be able to make no further effective representations on that crucial matter.
It is true that the regulations in many cases deal with comparatively minor machinery matters, but the Lord Advocate himself drew the attention of the House to Clause 6 (6), that:Provision may be made by regulations for further defining or restricting the questions (whether of Scots or any other law) on which legal advice may be given.That seems something fairly far-reaching for a non-legal functionary to do. If we write the Resolution into the Bill tonight, we write the Secretary of State into it at the same time. I do not think the Lord Advocate will demur into the argument that the position of the Secretary of State has been one of the main citadels, around which the battle has raged. He indicated that he had convincing reasons for leaving the very strong recommendation of the Cameron Committee. Answering his points in advance, they say:We recommend that the Lord Advocate should be associated directly with the supervision and administration of the scheme which we propose.He made out a strong case for ignoring this, but the very strength of that case indicates that it is the sort of thing that may be reasonably considered after time has been allowed to elapse. When he has had opportunity to go over it with his learned brethren, they will be able to advance arguments to him and he will be able to advance arguments to them with much more force than by making cannon shots at them, ricocheting off the red of these benches tonight. Let these 1483 things be discussed directly with the learned gentlemen themselves; let them be discussed in Scotland, and freely, even if at the end of the time the Lord Advocate will say, Sic volo, sic jubeo; Sit pro ratióne voluntas. At any rate, let it wait. Let him go through the motions of consultation now.
§ Lieut.-Colonel Elliot
There is a certain brusqueness about the Lord Advocate which we did not expect from the most persuasive and, if I may say so, the cooing advance which he made to practically all of us tonight—except my hon. and gallant Friend the Member for Eastern Renfrew.
§ The Lord Advocate
I was demurring only to the suggestion that I should go through the motions of negotiations. If I could not go through real negotiations, I should not go through any.
§ Lieut.-Colonel Elliot
Then we are both at one. Let the right hon. Gentleman go through real negotiations. But if he puts the Resolution into the Bill tonight, he will be able neither to negotiate nor to go through the motions of negotiating. He has promised these gentlemen that he would negotiate and discuss Amendments on the Committee stage of the Bill. We have had a long and, I think, a useful discussion. I suggest that the holding over of the Financial Resolution until the House resumes would not delay our proceedings. It would certainly give considerable substance to the representations which the Lord Advocate and his learned brother the Solicitor-General have made to the House tonight that they are only too anxious to consider suggestions of all kinds which may be brought forward from outside, or inside the House, in order to improve the Measure.
§ 8.51 p.m.
§ Mr. Woodburn
I hope I might be allowed to put a point in reply to the right hon. and gallant Member for Scottish Universities (Lieut.-Colonel Elliot). I hope he will agree when I have spoken that the Government, in deciding not to postpone this matter, are taking the right line. Some remarks have been made about the scarcity of advocates on the other side of the House. After listening 1484 to the right hon. and gallant Gentleman I feel the legal profession cannot complain that they have not someone who can put their case very clearly here.
I suggest that here in Parliament we are not discussing what the lawyers of the country want, but what Parliament wants, and in this case we are not dealing with the legal profession's administration, but the administration of Parliament. That is the distinction between this part of the Bill that the legal profession are proposing to alter, and the administration of a scheme which they are going to run without any interference from the Secretary of State. I have a great deal of sympathy with workers' control, so long as it is exercised within the limits of the situation. I can understand that the legal profession would like a nice little syndicalist movement, where they would he able to have workers' control independent of Parliament. I think the right hon. and gallant Member suggested that it was a pity they had any interference at all and that this should be decided outside Parliament.
§ Lieut.-Colonel Elliot
I do not wish to prolong the discussion and, therefore, I will not tread on the tail of the right hon. Gentleman's coat, but if he will drag it up and down the Floor of the House, I am afraid that someone will tread on it.
§ Mr. Woodburn
I am glad the right hon. and gallant Gentleman brought that up, because, if he reads HANSARD, he will see that he suggested that the legal profession should have some sort of privilege outside Parliament. Regulations are subordinate to legislation and hon. Members on all sides of the House have been very jealous of the power of making regulations. There have been many arguments in the House as to whether regulations should be made in the quantity they have been made and whether they should not be under the direct control of Parliament at all times, and that many of the regulations should have been embodied in Bills. That is a point of principle and to surrender to any suggestion that Parliament can negotiate with an outside body as to the making of regulations would be a very dangerous precedent, because that is a Parliamentary point, and not a legal point.
The question is, who is to make the regulations? The Cameron Committee 1485 simply suggest that the Lord Advocate should be associated directly with the supervision and administration of the scheme which we propose. That is not ruled out in the Financial Resolution. The Lord Advocate will certainly be associated in some way with the scheme, and if someone has some idea how he should be associated with it, that is perfectly competent within the Financial Resolution. But that is a different thing altogether to an argument as to who is to make the regulations. Further, as the Lord Advocate pointed out, it would be a rather novel procedure if the Minister who made the regulations went into a court to debate whether the regulations meant what he meant them to mean and what they said. It would make the thing farcical.
This matter has not just arisen now. It has arisen on several occasions and I should like to put on record for the House what I gather is the constitutional opinion in regard to it. I have consulted my right hon. and learned Friend and he and I have consulted the constitutional records on the matter, and as near as possible, I would say that these have been the broad principles which have been laid down in the making of regulations. The broad principle is that regulations and rules such as those now under consideration should be made by a member of the Cabinet. They are subordinate legislation which should be regarded as an act of the Executive Government as a whole. In England, the Lord Chancellor makes such regulations and rules, as being equivalent to a Cabinet Minister of Justice.
The person who comes nearest to a Minister of Justice for Scotland is the Secretary of State, and certainly he is clearly the channel through which the authority of the Cabinet is exercised in Scotland. It is, therefore, right that these regulations and rules for Scotland should be made by the Secretary of State. The natural and legal adviser of the Secretary of State is, of course, the Lord Advocate, but for the Lord Advocate to share with the Secretary of State the duty of making such regulations or rules would, I am advised, be wrong in principle. It might lead to difficulties in practice, as the Lord Advocate has said, if the Government were concerned with any point of construction which arose on the regulations and rules in the 1486 Scottish courts, when the Lord Advocate would have to appear on behalf of the Government. The Lord Advocate has pointed out that several other contradictions would arise if he took part in criminal proceedings on behalf of the Government and was actually dealing with a legal suppliant who was being aided from the funds which were administered under his authority.
The control by the House of Commons of finance has always been jealously guarded. Clearly no scheme of this kind could be set free from the control of the House of Commons and the Government in regard to financial matters. This Resolution has been drawn in this rather strict way because we are launching a new scheme. We have not a great deal of knowledge as to how wide and how large it will be. Therefore, we must start within dimensions which we can be sure we can control and finance. It would be very easy to ruin the whole scheme by loosening up these controls so as to make it unworkable. It would become so large as to break the back of the legal profession.
I suggest to the right hon. and gallant Gentleman that, on constitutional grounds, he should agree that this Financial Resolution should be approved tonight. If in the course of the Committee stage Amendments are brought forward which seem to bring into the working of this scheme the association which seems to be envisaged by the Lord Advocate, such Amendments can be considered, but from the Parliamentary point of view the making of regulations, the making of subordinate legislation and the control of the purse by the State are quite definitely duties of the administrative head of the State. I am not saying that because I happen to be the Secretary of State. It is an important constitutional point.
I see no purpose in delaying the Financial Resolution. There can be no concession to any outside body in regard to the control of Parliament over regulations and the control of Parliament, through the Cabinet and the Government of the day, in the making of regulations. I suggest that the principles I have laid down should be accepted as applying to the law so far as subordinate legislation in Scotland is concerned, and that the Committee should allow the Financial Resolution to be approved tonight.
§ 9.0 p.m.
§ Mr. N. Macpherson
There is one alteration which it will not be possible to make on the Committee stage once this Resolution has been approved; that is there can be no alteration in the disposable income limits and the other limits imposed under paragraphs (a) and (b). I fully realise that these limits are in line with the English provisions, but I should like to ask the Financial Secretary to the Treasury what he estimates the cost will be. I know that this is an experimental scheme, but he must have some idea of what the cost of the Scottish Bill will be and what is the comparative figure of the English Bill.
§ The Lord Advocate
The Financial Memorandum appears in front of the Bill, if the hon. Member will look at it.
§ Mr. Macpherson
I am asking for the relationship of the cost to that of the English Bill, which is not before me. It is well-known that the costs of litigation in Scotland are much lower than those in England. Would it not be a good plan, in view of this much lower cost, to widen the scope in Scotland so as to remove this limitation? I spoke earlier about the lack of flexibility, and of this line that is drawn. In view of that, would it not be worth while making this experiment in Scotland? It does not cover the whole field of law. There are exceptions laid down in the Schedule to the Bill and there are many other considerations of law that do not enter into this Bill at all. It seems to me that it would be worth while if we could have a comparison, and if the same amount in proportion to England could be spent on this experiment of legal aid in Scotland.
§ 9.2 p.m.
§ Mr. Gallacher
In the earlier Debate, the hon. Member for South Ayrshire (Mr. Emrys Hughes) referred to the Law Society as an obvious effort to set up a trade union of solicitors in Scotland. A Law Society is mentioned in the Money Resolution. Are we to understand that moneys voted by Parliament are to be provided and used for the purpose of setting up a trade union of the legal fraternity in Scotland? I consider that they should be made to pay their own way and not depend on Parliament for a subsidy.
1488 Also in the Money Resolution there is a reference to people of "small or moderate means." That will prevent the hon. Member for Ayrshire and myself and others from getting the Amendment we desire to broaden out the scope of this Bill, unless we can be satisfied on what is being argued by the Opposition—that there is nobody left in the country with any wealth. We should have in a Bill of this kind much more scope for discussing Amendments in Committee. I think it would be desirable for the Minister to consider leaving out of the Money Resolution the words "small or moderate means" and also leaving out the reference to a Law Society, so that if a Law Society is set up, it will proceed under its own steam.
§ 9.3 p.m.
§ Mr. Woodburn
I sympathise with the hon. Member for West Fife (Mr. Gallacher) but I think that he and the hon. Member for South Ayrshire (Mr. Emrys Hughes) will manage even without this scheme. I understand that the hon. Member for West Fife gives free legal advice to the hon. Member for South Ayrshire with great success, and I have no doubt that the hon. Member for South Ayrshire will be able to reciprocate. The great thing is for people to give according to their means, and not according to their meanness, which is sometimes done.
In reply to the hon. Member for Dumfries (Mr. N. Macpherson), the estimated cost is £252,000 in Scotland, which compares with £2 million in England. At first sight it might appear that there are smaller legal costs in Scotland. That is true, but being a smaller country the administration costs for the country have to be spread over a smaller number of people. Therefore, per person, it may actually work out just a little dearer in Scotland. In any case, so far as Scotland is concerned, we are working on that basis.
§ Mr. N. Macpherson
Has any calculation been made of what the total cost would be if there were not this income limit of £420?
§ Mr. Woodburn
No. Clearly that would be incalculable. In fact, it is very difficult to see exactly the actuarial risk the country is taking in going thus far. This is not the last word and things will change. Once the scheme gets working 1489 we shall have facts to go upon. When we see what the facts are, we can consider extending the scheme. Purely from the point of view of national prudence we are introducing it in a way which we think will be controllable. We are not launching into a scheme which might plunge the country into incalculable costs to which we can see no limit. That is the whole reason why certain courts and certain kinds of action have been excluded. We want to keep these things within control. With an entirely new scheme, with no experience to go on, even these figures are necessarily bound to be to some extent speculative. They constitute only a rough guess. We hope we shall be able to keep within the limits. We cannot risk stretching the scheme so far that it would land us in serious financial troubles.
Moreover, the legal profession itself will have to undertake a great new amount of work. If we suddenly flooded the legal profession with the whole population demanding legal assistance, then the profession itself might break down under the strain. For all these reasons, we have to start in an experimental way and see how the scheme works. It is more important that the scheme should be a success, so that we can progress from the present stage to better things, instead of launching out with a scheme which might break down at the very beginning.
§ Question put, and agreed to.
§ Resolution to be reported Tomorrow.