§ The Lord Advocate
I beg to move in page 26, line 7, to leave out "expenses are awarded," and insert "the expenses are taxed."
This Amendment, and the following four Amendments can be taken together, because they are connected with the same point we are trying to effect. As the Schedule was originally framed we made provision for two types of expenses in the sheriff court. The two scales were the ordinary scale of expenses in the ordinary court and the lower scale of expenses normally applicable in the summary court. It appeared on reflection that the criterion we were using was the expenses awarded, but the expenses awarded between party and party might not be the appropriate expenses to use as a criterion on which a solicitor's account on the Law Society should be taxed. It might well be that the expenses awarded as between party and party were not the normal expenses appropriate to that particular type of case and for some reason or other it might be that the sheriff may say, "I am not going to award full expenses, but only limited expenses." Perhaps he might not award any expenses at all.
Therefore, we thought it better to get another formula to determine how the solicitor's expenses against the Law Society would be taxed. These Amendments give effect to that alteration, which is, that where expenses between party and party are expenses normal to that particular type of case, the solicitor's account against the Law Society will be taxed on that scale. If the scale for the expenses is not the normal or appropriate expenses to that type of case then the party entitled to his expenses can apply to have his account against the Law Society taxed on some other scale, and it will be for the sheriff to determine on what scale it will be taxed.
§ Amendment agreed to.
§ In line 27, leave out "expenses are awarded," and insert "the expenses are taxed."
§ In line 29, leave out "expenses are awarded on the lower," and insert "the expenses are taxed on any other."
In page 27, line 7, at end, insert:
4. The expenses incurred in connection with civil proceedings in the sheriff court shall, for the purposes of this Schedule, be taxed on the like scale as applies to the expenses awarded in those proceedings as between the parties thereto:
Provided that if no award of expenses is made, or expenses are awarded on a scale other than the scale which, apart from the special circumstances of the particular proceedings, would be applicable, the expenses shall, for the purposes aforesaid, be taxed on such scale as the sheriff, on application made to him, may direct."—[The Lord Advocate.]
§ The Lord Advocate
I beg to move, in page 27, line 11, at end, insert:5. Where regulations so provide, an amount whether on account of outlays or fees, fixed by agreement between the Law Society and the solicitor to whom such amount is payable in the first instance out of the legal aid fund shall for the purposes of this Schedule be treated as if it were an amount allowed on taxation:Provided that this paragraph shall not have effect in relation to any amount if any person to or by whom such amount is payable in whole or in part requires it to be fixed by taxation.This Amendment enables the regulations to make provision for a solicitor to render his account to the Legal Aid Fund and to be paid any amount agreed between him and the Law Society without reference to taxation. As originally drafted every account put in by a solicitor against the Law Society would require to be taxed. That would have thrown a tremendous burden on the auditors, and we came to the conclusion that if the solicitor and the representative of the Law Society can agree that the solicitor's account was well founded and they can adjust it between themselves there was no need to refer it to taxation. On the other hand, other people may be interested in that taxation, and accordingly in the proviso we reserve the right of any persons entitled to payment out of the account to insist on the account being taxed by the auditor so that they may not be prejudiced.
§ Amendment agreed to.2054
§ Motion made, and Question proposed, "That the Bill be now read the Third time."—[Mr. Woodburn.]—[King's Consent signified.]
§ 10.56 p.m.
This is a Bill about which we on this side of the House are, I am afraid, still not quite happy, though we have done all we can to improve it during the Committee and Report stages. As I said in opening the Debate on the Second Reading for the Opposition in December last, we favour the general intentions of the Bill in so far as they are designed to reduce the cost of litigation to persons of modest means and to lessen the burdens which are at present borne by a good many members of the legal profession who at present undertake very important duties without any remuneration at all.
At the same time we feel, unhappily, that it is bringing nearer the day—which I personally hope I shall never live to see—when the lawyers of Scotland will become a species of State servant and the old traditions upon which the administration of justice in Scotland has been founded will gradually fade away. I speak only as a layman, but I do know something of the debt which we in Scotland owe to the great jurists of the past, and I and my hon. Friends on this side of the House are uneasy about the tendency of the Executive to trespass in the realm of jurisprudence. During the eight years that I have been a Member of the House, I have seen all too often cases where the ancient rights of the individual have been swept aside by the streamlined methods of the Statutory Rule and Order, and I cannot welcome this development as being in the real interests of a live and democratic nation. We find that our apprehensions are shared by quite a number of persons who are intimately associated with the administration and practice of the law in Scotland.
In support and illustration of that statement, I should like to read a passage from a speech made by an eminent Judge of the Court of Session, Lord Blades, at the dinner of the Law Society of Glasgow University on 22nd April. According to the "Glasgow Herald" of 23rd April, Lord Blades said:I am bound to say that unless you band together as a strong united professional body, ready to fight to the uttermost for the great 2055 traditions that the old Scottish lawyers have handed down to you, these traditions will fade away, and you will become simply the hand of the Legislature.In other words, you will find yourselves some kind of legal civil servants. God forbid that such a day should ever come to pass; but unless you stand shoulder-to-shoulder in defence of the Common Law of Scotland, which is recognised all the world over for its soundness and sense, it will come to pass.Those remarks certainly are calculated to increase our suspicions and make us wonder whether there is not some attempt to undermine the ancient and honourable legal traditions of our country. Whether those fears are right or wrong time alone can show, and it is idle to speculate on that tonight.
So far as the Bill itself is concerned in its amended form, I have only a few things to say as we have devoted a good deal of time to discussion of its details in Committee. First, although we recognise that Clause 12, which is the Clause empowering the Secretary of State to make a wide range of regulations, is a very definite improvement upon Clause 11 in the Bill as originally drafted, we still feel that it leaves extremely wide powers in the hands of the Executive. It may be that this re-drafted Clause will meet with more approval among the members of the legal profession than did the original Clause 11, but it does seem unlikely that all fears will be set at rest. All that we on this side can say is that we hope that in the making of those regulations, the Secretary of State and the Lord Advocate will act with discretion and will seek the advice of the Law Society.
My second point is in regard to the service which is to be given to the public under this Bill. We cannot approve of the supercession of the existing form of statutory declaration of means by an intending litigant by the much more complicated procedure which is laid down in Clause 4 of the Bill as amended. We are not satisfied, as we made clear during the passage of the Measure, that this new procedure is essential. We feel that it will act as an impediment and will frighten off a number of people for whom the services of this Bill are designed, as many people may not like to subject themselves to the process of investigation which is laid down in that Clause. We feel that this is an unfortunate provision of the Bill. It is certainly one which departs from the recommendations in paragraph 2056 24 of the report of the Cameron Committee, upon which report the Bill is to a large extent based. Moreover, I would remind the Secretary of State and the Lord Advocate that this procedure also departs from the views expressed by the Society of Writers to the Signet in the memorandum circulated last December, and also from the views held by the Muir Society.
Finally, I should like to say a word about the legal profession in Scotland in relation to this Bill. Here I can, I think, speak objectively as I am not a lawyer, nor have I been concerned in any way with the consultations or discussions that have gone on during the preparation of this Measure. Unfortunately, it seems that the proceedings have not been very harmonious. There have been misunderstandings and accusations, and unhappily, there still seems to be much resentment in certain quarters. Even the Lord Advocate will, I think, agree that the recent statement issued to the Press by the General Council of Solicitors was couched in terms which I can only describe as rather less than modified rapture.
I am sure, however, that the Secretary of State and the Lord Advocate will agree that the legal profession in Scotland has great and proud traditions and has given a long record of disinterested service to the public. I hope, therefore, that when the Bill becomes an Act, and that when they are making regulations and arrangements under the Bill, they will seek to co-operate with the Law Society in every way possible to ensure that the services given will be both efficient and smooth working. We shall not oppose the Third Reading of this Bill, but we remain convinced that there are a number of unfortunate provisions in it and, indeed, some dangerous features about it. We hope therefore that in due course further improvements will be made to it in another place.
§ 11.5 p.m.
§ Mr. N. Macpherson
When legislation comes before this House, a gruesome picture is usually painted of the scandalous situation which the legislation is designed to remedy. A feature of the passage of this Bill is that no such allegations have at any time been made, and it would not be right to complete the Third Reading without a tear for a system which has much that is worthy 2057 and noble and much to commend it. That is true of the Scottish legal system. It has been said—and I think it was quoted by the Lord Advocate—of one great Scot jurist that so long as there were jurists, no Scotsman need want for a champion. It has been widely true throughout Scotland that where there was a good cause it was rare that it went without an advocate to defend it.
That is the system which, in this Bill, we are out to change. It certainly could not be changed more cheaply for the country in terms of finance. The question is whether it could be changed more cheaply to the country in terms which cannot be reckoned in finance. The training given in the sense of responsibility and service to young solicitors and young advocates by being called upon at one time or another during their careers to act as poor persons' lawyers—as the phrase was—or, again, to take briefs for no remuneration whatever, was something which was bound to inculcate that sense of service, pride in profession and sense of responsibility. That is now passing away. There may be advantages. We hope there will be, but do not let us delude ourselves into the belief that by putting this Bill through today we are making quite certain that everybody in future will have equal access to the courts.
I shall put the Secretary of State for Scotland completely at case when I say that I believe this is a faltering step in faint pursuit of England. If hon. Members choose to look once again through proceedings in Committee, they will find that time and again the Secretary of State has laid emphasis on the fact that we have to approach the new system with caution and must be very careful that we do not waste public money. Therefore, we have to have a National Assistance Board to control the whole affair and make certain that nobody shall have access to the courts with legal aid except within terms laid down for it in the National Assistance Act. There are these very strict regulations concerning those who are entitled to that aid.
I made a point during the Second Reading stage which still stands out now at the end of our Debates. It is that if you happen to fall just within the limit of £420 you can get unlimited assistance and your maximum contribution would 2058 be, I think, something like £130. But if your net income comes just over £420 you get no justice whatever. That does not give equal access to the courts, or equality before the law. In so far as it is true, this is an imperfect Bill and is a faltering step. It may be a step in the right direction; that is something we have to find out.
§ Mr. Hector Hughes (Aberdeen, North)
What the hon. Member is saying is a perversion of the purpose of the Bill, which is giving as a right to poor persons what was before a matter of grace.
§ Mr. Macpherson
There are perhaps advantages in giving a right, but what we have also to remember is that we are taking away a sense of duty to the other side which was of inestimable advantage to justice in Scotland. Although there was no legal right, there was that sense of duty on the part of the legal profession which did ensure that, by and large, few good causes were left without an advocate.
§ Mr. Woodburn
Is the hon. Member suggesting that the legal profession will lose that sense of duty because of this Bill?
§ Mr. Macpherson
I am not saying they will do so. What I am saying definitely is that one of the trainings in the sense of duty and of responsibility will now be removed, and that this is bound to have an effect. I do not say that the sense of duty will be removed. Obviously it will not. But it is all in the same direction as we have seen in the Health Service and in everything else, where you are creating rights in the interests of certain people and at the same time you are destroying moral duties and the sense of responsibility, which in the long run may prove much more disastrous.
§ Mr. Hector Hughes
Surely the hon. Member is wrong in saying that is being removed. It still remains. What is being given now is a legal right to legal aid.
§ Mr. Macpherson
The hon. and learned Gentleman has already made that point, and I have already answered it. If he sticks to his point of view, I in turn stick to mine. That is why I regard this as a very imperfect Bill, and although we on this side are not opposing it, we certainly do not welcome it with any vast enthusiasm.
§ 11.13 p.m.
§ Mr. Willis
I think the hon. Member is less than fair to members of the legal profession in suggesting that because we are passing this Bill they will become less conscious of their civic duty. I welcome the Bill for a number of reasons, some of which the hon. Member ignored. The scheme of legal aid in Scotland had become very unsatisfactory. There could be no doubt about that on the part of anybody who cared to spend any time looking at the scheme in operation. In the first place, the income limit was too low. It debarred most people from receiving free legal aid. In the second place, the work that fell on the legal profession had become too great for the profession to continue to carry. In view of these conditions it was obvious that something had to be done. I do not know what the hon. Member feels should have been done.
What was the alternative to this Measure? We have never heard that put forward by any learned Member of the party opposite during the whole course of the discussions on this Bill. I welcome this Bill as being a step in what I consider to be the right direction. It is true that there are parts of the Bill which some of us do not like. I found myself in agreement with hon. Members opposite on certain parts and raised these points during Second Reading. But we have had our fight; it is finished and we have got the Bill. I hope now we have it, every effort will be made to operate it to the best advantage of the litigants.
I must say it seemed to me that we have heard very little from the point of view of the litigant during the passage of this Bill. The consumer interest has not been stated very well. It is true that the legal profession have spread themselves very widely in the Press—in "The Scotsman," the "Glasgow Herald" and other Scottish papers—and have expressed their point of view forcibly. The result is that most of the time we have been presented with what undoubtedly has been predominantly the point of view of the legal profession. I cannot help feeling that possibly that is reflected in some parts of the Bill, and I am not too sure that is altogether in the best interests of the litigant. I trust that now the legal profession have had their say and debated the matter with my right hon. Friend, and the Bill is becoming law, 2060 they will try to give what this House would like them to give—that is, the best possible service to litigants. I feel that they will do that, and I sincerely hope that now we have finished our debates we shall do all we can to make the Bill a success.
§ 11.17 p.m.
§ Mr. T. G. Galbraith (Glasgow, Hillhead)
In spite of the lateness of the hour, I have ventured to catch your eye, Sir, because I am rather a hybrid. I am a layman, but I am also to a certain extent trained in the law, so I should like to speak for a moment or two on this Bill. I think the main purpose of the Bill is good and that it is right that legal aid should be available to poor people and that justice should not depend upon wealth. In that I agree with the hon. Member for North Edinburgh (Mr. Willis), but where I do not agree with him is that, as so often happens with Measures proposed by this Government, the ideas behind the goodness are obscured by the inept way in which they are put into practice. So far as one can gather in reading this Bill, there might never have been a legal aid system in existence in Scotland before. The Secretary of State, instead of building on an existing system, has started de novo. What he is doing in this Bill is to pursue the familiar path of adapting Scottish institutions to an English Measure.
§ Mr. Willis
Would the hon. Member remember that never during the passage of this Bill has it been demonstrated how we could have done what he suggests without reaching something similar to what is contained in this Bill?
§ Mr. Galbraith
If the hon. Member will wait for a moment until I develop my argument, he will see what I mean. The right hon. Gentleman became very angry the other evening when we were discussing the Housing Bill because he was accused of following the English example. I think his irritancy in that instance must have been because he had a guilty conscience. In this Bill the right hon. Gentleman is doing exactly the same thing. In 1937—and this is the point to which the hon. Member for North Edinburgh wishes me to apply my mind—the Morton Committee sat on the very subject of legal aid, and it recommended that the defects which existed should be remedied by alteration and 2061 amendment within the present system. The Secretary of State has not done that. The Government appointed the Cameron Committee not to bring the recommendations of the Morton Committee up-to-date, but to apply to Scotland the recommendations of the Rushcliffe Committee, which means that the foundation of this Bill is an English foundation.
I do not want hon. Members to think that I am opposed to England or to English things. I am not. What I am opposed to is the blind urge which has compelled the Government, and compelled particularly the Secretary of State, to ignore the difference between, the legal systems of the two countries and to force upon Scotland a measure which is suitable for England. For instance, the fixing of £420 of disposable income to qualify for aid. If that is right for England, it is not right for Scotland, because legal expenses in England are at least two or three times as high as in Scotland.
I mention these facts not only because they are defects in this Bill, but because they seem to illustrate a tendency on the part of the Government to ignore the situation in Scotland, and to try to cure the situation in Scotland by applying remedies only suitable for England. Another example, though I may be out of Order if I mention it, was in saying that 6 per cent. was suitable for Scottish landlords as well as English landlords, without taking into account that the rating systems of the two countries are entirely different. I do not complain if the two countries are treated as one in matters which are common to them, but I do complain that, for the sake of uniformity and for ease, the Secretary of State, whose prime duty it should be to uphold the dignity of Scotland, seems to welcome and even to encourage measures which are an affront not only to national sentiment, but also to common sense and logic.
I should like to turn to another matter; that is the very chilly reception which this Bill has received from legal opinion in Scotland. The Lord Advocate said in Committee that he had had meetings with representatives of the profession; but he knows that there is no body in Scotland today which can adequately represent the opinion of lawyers in Scotland.
§ Mr. Deputy-Speaker (Major Milner)
The hon. Member seems to be referring to 2062 details which have no relation to the present contents of the Bill. I hope he will keep to what is in the Bill.
§ Mr. Galbraith
I apologise, Mr. Deputy-Speaker. All I was trying to do was to draw the attention of the Lord Advocate to various criticisms. If I ought not to have done so, I apologise for trying to do so, and I shall therefore pass on and leave out a point which I wanted to bring to his notice. I shall only say that, in my mind, it seems to be a great pity that this Bill, and this great, noble project, should have been conceived in an atmosphere of suspicion and uncertainty, which has been the case so far as the legal profession is concerned. The Secretary of State had a great opportunity this evening, if he had allowed us to carry our Amendment and to modify——
§ Mr. Deputy-Speaker
The hon. Member is now dealing with something which has been dealt with and does not, therefore, appear in the present Bill.
§ Mr. Galbraith
Then, Mr. Deputy-Speaker, may I end by saying that this Bill has in it the capacity to do a great deal of good by providing legal aid for poor people, but I also think that it can do a great deal of harm by subordinating the independence of lawyers to the convenience of politicians. If that danger ever comes to Scotland I hope our lawyers will remember their independence and their great and old traditions and will not sell them for a mess of pottage.
§ Mr. Woodburn
The hon. Member is a Member of a party which was in power for many years and I should like to ask if he can give any instance of what he is saying about not working in harmony with England. He has spoken a great deal on that point and I should like to know what he has to say.
§ Mr. Galbraith
It is not a question of working in harmony with England, but what I object to, and what my hon. Friends on this side of the House object to, is that when something like the Scottish Housing Bill was brought in, exactly the same figures were applied to Scotland as were applied to England although the figures in each were quite different.
§ 11.27 p.m.
It is really rather amazing to try to follow the arguments of the Opposition. Hon. Members opposite shout about an injustice done to Scotland 2063 because we are not treated as people in England are treated; yet, on the very next day, we hear from them that we are being trailed at the heels of England because we are given equal benefit. Then their speeches always end by accepting, as they are accepting this Bill, as something which is a reasonably good Measure. They belie all they have said before, and all the statements about the nationalisation of lawyers and the sweeping away of individual rights that have been expressed during the Third Reading speeches make me ask why they should not oppose the Third Reading. We are here sweeping away no individual rights, as the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) suggested. What we are surely doing is to make available a useful service.
I do not think that I said we were sweeping away individual rights in this Bill; what I said was that I have often seen rights swept away by Statutory Rules and Orders.
I thought that I had made myself clear; it has for a long time been the right of the people of Scotland to obtain some aid in this direction, but there has not been the right to enable people to take advantage of that provision because of the financial difficulties. This applies not only to poor people, but also to people of small and moderate means. This Bill, carrying that right, should be welcomed by everyone. As for the suggestion that we are applying de novo, we are creating a very much wider and bigger scheme of legal aid, and I doubt very much if we could have built it up entirely on the old basis. We recognise the advantages of the old scheme, and we pay tribute to those who made it work; but this new scheme is of advantage, not only to the poor, but to a wider section of the Scottish populace.
In Clause 4, we are bringing in the National Assistance Board to administer a certain part of the scheme, and I must say I feel no great enthusiasm for that. But I think that if the Lord Advocate will follow out the suggestion that he made, but which he unfortunately did not confirm tonight, of seconding officers from the National Assistance Board to this work, he will go far to dispel the 2064 fears that have been expressed about discouraging people from entering into and taking advantage of the legal aid.
The only other point I want to make is that in the Central Committee I hope that the Secretary of State for Scotland will suggest the advisability, when drawing up their schemes regarding the local committees, of having lay members. Because it is, as I say, a very much wider and more extensive scheme, lay people are interested and would prefer to have a certain amount of representation there to give, as my hon. Friend the Member for North Edinburgh (Mr. Willis) said, the point of view of the would-be litigant. As far as the lawyers' attitude is concerned, I think it has really been absolutely disgraceful from the start. The smoke-screen of controversy and allegations and accusations has been raised right from the start, and then for the Bill to be passed without a Division surely shows that these fears and allegations have been quite unfounded. I am rather inclined to agree with Robbie Burns when it comes to the question of lawyers when he said:I will have nothing to do with them professionally. The faculty is beyond my prescription.But, quite apart from my own personal feelings about it, there will be people who will have to take advantage of the scheme and I sincerely hope the lawyers will forget quickly their controversy and make the scheme, which is going to be their scheme, work for the advantage of the people of Scotland.
§ 11.33 p.m.
§ Mr. Carmichael
I want, in view of the many discussions we had on this Bill, to make known even at this hour that I welcome the Third Reading and the passing into law of this Measure. I think we should make perfectly clear the meaning of the Bill because there seems to be some doubt still in the minds of Members of the Opposition. It states quite clearly:The Bill will make legal aid and advice in Scotland more readily available for persons of small or moderate means.No one can dispute the fact that there was a great need for a measure of this kind. Previous experience on legal assistance was far from satisfactory. Indeed, no one with any knowledge of the worries of ordinary poor people seeking legal advice and legal aid, disputes that. Therefore I say that this 2065 House must welcome a Measure of this kind.
There are two schools of thought associated with this Bill. One is the legal profession and the other is public opinion, the public representatives. There can be no doubt about the power behind the legal fraternity. First of all, and I think rightly, the Cameron Committee was appointed to examine the first report in regard to legal aid for the poor. In other words, they examined the Rushcliffe Report. That was the first opportunity the profession had to give its views on such legal aid. Further, all kinds of meetings were held between the Lord Advocate and the people associated with the profession. No one has any right to quarrel about that. That is the proper and businesslike way to handle a situation of this kind. It was followed by all sorts of, if I may use the phrase, pressure groups, and in addition to the pressure groups we had pamphlets issued and statements made at dinners and other kinds of gatherings by the legal profession. It is not surprising that in every profession or craft when any change——
§ Mr. Deputy-Speaker
I am sorry to interrupt the hon. Gentleman, but he seems to be dealing with many matters which preceded the question we are discussing. We are discussing what is in the Bill and what will follow when it is passed.
§ Mr. Carmichael
If I may come back to what I was going to say, this Bill has had a considerable contribution from the bodies I have mentioned. They have been well represented, and there has been in the preparing of this Bill objections raised not only from the Opposition but from hon. Gentlemen on the Government benches, and these would have been well left out. I hope that this will not be unduly stressed. The only way we can watch the interests of the people who will benefit by this Bill is by the procedure of this House of Commons, and the Lord Advocate said in the early stages with great accuracy that this was a Measure brought in to assist poor people who cannot find legal aid themselves. If I had any objections, as I had to certain parts, these have now been passed.
I was worried by subsection (6) of Clause 4, but this has now been accepted. It did not please me and I was sorry that the Secretary of State should have had havoc played with his intellect by 2066 his blood pressure so that he did not reason on this particular part of the Bill. If he had done so he would have seen that all I was trying to do was to improve the Bill as I was anxious to do. Shortly the Bill will become an Act and will be largely the property of the legal profession in Scotland. I have every faith in their association with the ordinary people and I have sufficient in the Government that as they feel it necessary in future to bring forward amending orders and legislation they will have the courage to do so. In that spirit I welcome the Bill and give it my support on Third Reading.
§ 11.38 p.m.
§ Commander Galbraith
The hon. Gentlemen the Members for North Edinburgh (Mr. Willis), Kilmarnock (Mr. Ross) and Bridgeton (Mr. Carmichael) have devoted most of their speeches to the legal profession in Scotland and the attitude it adopted towards this Measure. I do not object to the steps they have taken. I believe with the hon. Member for Bridgeton that it has helped us in our consideration of the Bill. I believe any statement made by the legal profession, however misguided it may have been, was done with the primary intention of endeavouring to protect the litigant. It is my honest conviction that a profession which has acted so nobly in the way in which it has looked after the interests of the poor for 400 years was not going to act in any way derogatory to the best interests of the ordinary litigant.
I join with the hon. Member for North Edinburgh in believing that we shall get the best of services from the legal profession once the Bill becomes law. We have done our best in all quarters of this House to make this a better Bill, and there is no one who can say it is not a much better Measure now than when it was originally introduced. The right hon. Gentlemen opposite have endeavoured to assist us but we are sorry they could not go the whole way. If they had I am sure this would have been a better Bill still. Be that as it may, we hope our misgivings and the misgivings of the legal profession will prove unfounded and that this Bill will introduce an ever better system than we have had in the past.
§ Mr. Hector Hughes
I had not intended to say a word on the Bill, but having 2067 regard to the observations from hon. Members opposite, I feel constrained to say that it is a sad thing to see them damn this excellent Bill with faint praise. The real value of this Bill has tended to be obscured by what some of them have said. One of them said that justice should not depend upon wealth; neither should it be a matter of grace. The fact that this Bill gives as a matter of legal right to an intending litigant what was a matter of grace in the past is the real feature of the Bill—and that fact has tended to be obscured tonight. Hon. Members opposite have called in aid the excellent services given by the lawyers of Scotland in the past as a matter of grace, but they have used that for the purpose of obscuring the real purpose of the Bill, which is to give, as a matter of legal right, what was merely a matter of grace in the past. This is an excellent Bill, doing good service, and I wish to add my voice to those who have welcomed it.
§ 11.42 p.m.
§ The Lord Advocate
We should not like to part with this Bill on its voyage to another place without expressing appreciation of the various people who have contributed towards making it a better Bill than when it was first introduced. I think that is the fate of most Bills. I should therefore like to say a word of appreciation to the hon. Members in the House and the people outside the House who have worked towards that end. I think that we on this side of the House have tried to give effect to the various wishes and desires of a reasonable nature which were put to us. We have tried to explain these in a reasonable and understandable way, and if I have certain doubts as to whether we have been properly understood, those doubts were rather reinforced by some of the speeches from the other side of the House tonight.
I should like to take this opportunity of thanking members of the legal profession who had the courtesy to take up my offer on the Second Reading of consulting me on every conceivable occasion. Many of the Amendments were made to the Bill as a result of the meetings. I thank the representatives both of the Faculty of Advocates and of the solicitors in Scotland. The representatives of the solicitors whom I met represented all the 2068 leading societies in Scotland and must be accepted by this House as representing that branch of the profession in Scotland.
It has been suggested that we have done wrong in this Bill in setting up a fresh system. It is said that we should have built on existing conditions. In accepting the position that we had to start afresh we were bowing to the inevitable, because the existing system was such that it could not be extended to comprehend the large scope of persons whom we wished to incorporate within the provisions of this Bill. I have made that challenge outside and inside this House, and I have never yet heard an answer to it.
The rich people can afford to get legal aid on their own initiative, but the in-betweens, as I have called them, are afraid to risk the little money that they had saved in pursuance of their legal rights in court. They are the people who will greatly benefit under this Bill. That ought to be appreciated.
Quite a lot of unfounded statements have been made tonight. Unfortunately, some hon. Members opposite were paying more attention to the form of their phrases than to the substance. As long as they got something which sounded well they were happy, although their statements were quite divorced from the realities of the situation. It was said that we followed blindly on the heels of England and disregarded Scottish customs. That is not so. Starting off with the same general principle of the right to make legal aid more readily available to people of small and moderate means, together with a similar policy that the same range of persons ought to be able to benefit, we have then adopted our own peculiar Scottish system.
The hon. Member for Hillhead (Mr. T. G. Galbraith) said that because the costs in England were higher than those in Scotland, we displayed our hand in accepting the same figure of £420 per annum as the maximum figure of net income under the Bill to qualify for legal aid. That shows a complete lack of comprehension of the principles in this Bill because the question of the qualification of £420 is made irrespective of the cost of litigation. Whether the litigation is £200 or £2,000, the contribution itself is exactly the same. Accordingly the question of the comparative costs between the two countries is no criterion. 2069 We are saying the people below a certain income limit in both countries will contribute an equal amount towards the expenses if the cases are similar, and that irrespective of the total amount of the expenses involved, the same thing will apply under this Bill in Scotland. Exactly the same contribution would be payable, whether the case went to the sheriff court and stayed there, or whether it left there and pursued its way right to the House of Lords.
§ Mr. N. Macpherson
I think the right hon. and learned Gentleman is pushing that point a little too far. It would be true, of course, if in every case the contribution was the maximum, but in many cases of assisted litigation the contribution from the assisted litigant will be well below the maximum of the case that he is making, so that the total contributions will be far less, in proportion, in Scotland than they are in England. That must remain true.
§ The Lord Advocate
That is not the case. One cannot take comparable cases because of the difference in our procedure. The actual costs bear no relation to this problem. The problem is what the applicant for legal aid will be called upon to pay. If he is called upon to pay beyond his limit he gets legal aid in both countries. That effectively disposes of quite a number of the arguments that we are following England. We have built around our own structure, having regard to the general principles.
Some surprising statements were made by the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison)—that he was afraid that solicitors were going to turn into a species of State servant, that the Executive was going to trespass into the realm of jurisprudence, and that the ancient rights of the individual were going to be destroyed. The ancient rights of the individual did not extend very far with regard to the obtaining of legal aid in the past because, apart from the old system, the individual did not have the rights that he now has under this Bill. It is perfectly true that when the Bill was introduced, the phrasing of Clause 11 as it then was, now Clause 12, certainly did leave it theoretically open for the Secretary of State or any of his successors to make regulations which would trespass on the relationship of the profession with their clients and the court with the parties appearing before it.
2070 As a result of the Amendments to the Bill that doubt has been resolved because we have incorporated three different sorts of rule-making authorities. The first is the Secretary of State and embraces those regulations which refer to the limit of the scheme, which is a purely political matter and should not be taken out of the hands of Parliament. Secondly, the administration of the scheme is left entirely in the hands of the Law Society of Scotland in conjunction with the Faculty of Advocates. Thirdly, the court machinery and ancillary matters affecting the actual court machinery associated with legal aid has been left to the court. Each branch has been compartmented. How, in the light of that, it can be said that there is a danger of the solicitor becoming a species of State servant I fail to see.
I gave an illustration, from a very eminent source, on the same lines.
§ The Lord Advocate
With due respect, I did not think that was an illustration. I do not know whether or not the learned judge was referring to the Legal Aid Bill in that speech. If he was—and I am not accepting that he was—I would disagree entirely with what he says and leave it to the House to judge whether the provisions of the Bill create those dangers or whether they are quite unfounded. In the circumstances I feel that no good purpose is being served, and it does not make for the promotion of the good will necessary to carry out this scheme, if bogy men are erected, and if among a minority of the legal profession who have never been prepared to face the realities of this Measure and who have never been prepared to meet me and state the objections which they have stated elsewhere, views of that nature are propagated.
By this Measure we can do a great deal of good in Scotland, but success will depend on the manner in which the legal profession carry out their functions under this Bill. I believe that the legal profession will give their fullest service toward that end, and I wish them the best of luck in the venture on which they have set out. We are beginning a new era and are going to bring justice truly within the compass of the people—and not just theoretically, as in the past. On that note I should like to part with this section of the Bill.
2071 We should not leave the Bill without a reference to the second part, and to the setting up of a single, unified Law Society—a provision which, I think, will be of the greatest use in the domestic affairs of the legal profession—and the setting up of a guarantee fund to recompense those who are disadvantaged through the act of a solicitor and are unable to recover their money in a court of law because of the financial situation of the solicitor. I think that, rather than detracting from the profession, it will add to its prestige that it is prepared to undertake this liability and to secure that no person need go disadvantaged because of some act on the part of a wayward member of the profession.
This Bill is a landmark in our legal history, and I wish that the tenor of the speeches had been rather more like that of the speech of the hon. and gallant Member for Pollok (Commander Galbraith), in wishing it God speed on its way, in the hope that it will prove of that benefit to the people of Scotland which we so earnestly desire.