HC Deb 06 December 1960 vol 631 cc1218-25

10.55 p.m.

Mr. E. G. Willis (Edinburgh, East)

I beg to move That an humble Address be presented to Her Majesty, praying that the Legal Aid (Scotland) (Assessment of Resources) Regulations, 1960 (S.I., 1960, No. 1395), dated 28th July, 1960, a copy of which was laid before this House on 9th August, in the last Session of Parliament, be annulled. We have elected to discuss our Prayer separately from the English Prayer in order to elicit from the Joint Under-Secretary of State whether or not there are any differences in these Regulations as compared with the English Regulations. The hon. and learned Gentleman the Solicitor-General has given us a fairly detailed explanation of what the Regulations do.

I want, in the first place, to reinforce the plea made by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) concerning the Explanatory Note. I do not know what it is like in the English Regulations, but in the Scottish Regulations there is plenty of room in the document to publish al least rather more information than is published. There are two whole blank pages which could quite well have been filled with a little information about how the Regulations amend the existing ones.

Do these Regulations differ in any way at all from the English Regulations? I am not sure about that. Secondly, is there any one of the Regulations which is more stringent than the existing Regulations? I listened carefully to the Solicitor-General when he explained the English Regulations, and I heard him say that there were only two cases in which they were more stringent. I think those were his words. I did not hear him explain in what respects the new Regulations were more stringent. He went at great length into the details of the improvements which were being made, but he did not say anything about the two cases in which the Regulations were more stringent. Will the hon. Gentleman tell us about that?

One could debate the merits of some of these Regulations, but we have not much time, and to do so would mean entering into a great controversy. For my part, I am not altogether happy with Regulations 5 (1, ii) which calls upon grandparents or aunts or other relations to make contributions in respect—

Mr. Speaker

I am sorry to interrupt the hon. Member, but there is a difficulty about this from his point of view. These Regulations consolidate, with amendments, and the principle on which I am bound to go is that we may not discuss the detail of that which is consolidation. We may discuss the amendments or the principle of consolidation.

Mr. Willis

I am indebted to you for your Ruling, Mr. Speaker. I know from experience that that is the practice, but I understood that Regulation 5 is one which has been amended.

Mr. Speaker

If I am wrong—I have been out of the Chair—I apologise to the hon. Member. I would welcome help about it if I am wrong. I thought that Regulation 5 (1, ii) was a matter of consolidation. If that is wrong, I apologise.

The Joint Under-Secretary of State for Scotland (Mr. R. Brooman-White)

I think it has been amended.

Mr. Speaker

I apologise if I am wrong.

Mr. Willis

I thought that it had been amended, Mr. Speaker. As I was saying, I do not like this business of assessing the income of the grandparents on behalf of some child whom they happen to be looking after because the parents have parted. That seems to be rather hard. I wonder whether in the fourth line of Regulation 5 (1) the words there may, in addition to the resources of the juvenile, be taken into account the disposable income and disposable capital of such other person are permissive and not obligatory. In other words, is the case to be judged on its merits?

As you have pointed out, Mr. Speaker, where no change is made, it is rather difficult to discuss the matter, but I would like that issue to be cleared up, because it strikes me that unless this power is permissive, it is likely to be rather hard on people who are doing a useful job in case of distress, and I cannot see why they should be penalised because of that. I hope that the hon. Gentleman will give us the benefit of his wisdom on these Regulations.

11.5 p.m.

The Joint Under-Secretary of State for Scotland (Mr. R. Brooman-White)

I am replying to the debate because the responsibilities in England and Scotland are not exactly parallel. In England, I understand, it is the Lord Chancellor who has both political and administrative functions, but in Scotland my right hon. and learned Friend has purely legal functions and the administration of these Regulations is the responsibility of the Secretary of State.

In passing, I add that I have noted that the Statutory Instruments are signed, as is customary, by two Lords Commissioners of the Treasury. I was not one of those who signed the Instruments, but, if I had been, I can assure the hon. Member for Edinburgh, East (Mr. Willis) and the hon. Lady the Member for Lanarkshire, North (Miss Herbison) that I would have given it all the consideration which Lords Commissioners normally give to such matters before endorsing them.

I echo what my right hon. and learned Friend the Solicitor-General said about the Explanatory Note. It is brief. There is paper available, as the hon. Member for Edinburgh, East pointed out, but the difficulty was that a fuller explanation could have caused certain confusion in singling out instances. This brief explanation was intended to pinpoint the main subjects of change, which are quite comprehensible to those who are cognisant with the Regulations. But we have noted the wish of hon. Members that, where possible, in future the Note should be more explicit.

The general substance of the Scottish is very little different from the English Regulations, and I shall not weary the House by repeating what my right hon. and learned Friend has already said. The object is that the financial provisions on both sides of the Border shall be similar, and the Scottish Regulations simply put in our own phraseology and in our context the same provisions. We have common benefits on both sides of the Border, which, I think, are generally welcome.

With his usual perspicacity, the hon. Member for Edinburgh, East put his finger on the novel and perhaps most debateable of the new Regulations—5 (1, ii). This is a new provision in Scotland, and in some measure it is the one change of any substance which is less favourable to the applicant than were the previous Regulations. It is provided that account may be taken of the resources of anyone who has the care or control of the juvenile, which has not been the case before.

It seemed reasonable that if a person who had the care and control of a juvenile was able to contribute towards the legal costs, and if he was paying for the maintenance of a juvenile and might in compensation have certain benefits, he should make some contribution. The categories, which are broadly set out in Regulation 5, draw a distinction between the person who is employed, the foster parent, for a fee to look after the child—and it is readily accepted that there is no reason why he should be involved in risking his capital in an endeavour to remedy the position of the child—and the relative who is looking after the child virtually as a member of his own family. It is in the case of the relative who has accepted responsibility for the child and who is bringing him up as a member of his own family that it is left to the discretion of the Board, if the merits of the case in the opinion of the Board justify it, to decide that some contribution should be made by that person.

That was the main issue raised by the hon. Member for Edinburgh, East. The only other one in which there is a slight tightening of the Regulations, which is paralleled between England and Scotland, is in the assessment of resources, which my hon. and learned Friend the Solicitor-General has explained. I hope that, with that explanation, the hon. Lady the Member for Lanarkshire, North, and the hon. Member for Edinburgh, East, will accept these regulations for Scotland.

11.6 p.m.

Miss Margaret Herbison (Lanarkshire, North)

There is just one point I should like to raise. It arises on Regulation 5 (I, ii). I am glad that my hon. Friend the Member for Edinburgh, East (Mr. Willis) brought this into the open. The Joint Under-Secretary of State has said that one could not expect a foster-parent—in other words, one who has taken the child for payment—to pay any legal costs. All of us would accept that.

Supposing, however, that a relative takes a child. Relatives sometimes take in a child out of kindness or out of a sense of duty. It seems wrong in such circumstances that when they are providing a good home for the child, using income of their own to keep it—perhaps providing education as well—they should, when it comes to legal aid, have to make any contribution.

I know that this is permissive. Perhaps the Joint Under-Secretary of State would explain under what circumstances the Government expect that such people would be asked for a contribution. This is an innovation, and the Government must have had some specific cases in mind. The Joint Under-Secretary of State has not made a case for this change. I hope that even at this late hour he will be able to give us just those considerations which made the Government decide to bring in this further rule.

11.7 p.m.

Mr. Brooman-White

The essence of the matter is that this is permissive. The sort of circumstances which I would envisage, without having conducted very profound research into the subject, is that if, in the opinion of the Board, the people looking after the child were reasonably well-to-do, and were in a position, without serious hardship to themselves, to make a contribution, and their further responsibility for maintaining the child would be materially diminished by the success of the legal case, the Board might consider it fair to ask for a contribution. In addition, if the case succeeded, the child might be well-off and, out of the additional funds available to it, the cost of its future maintenance might be mitigated for the people looking after it.

11.10 p.m.

Mr. Willis

That is surely not the case envisaged by the Board. Let us take the case of a marriage breaking up, with an aunt or uncle or grandparent taking care of the child. It is surely wrong to penalise them if, because of the result of a court action, they might have to pay less for the upkeep of the child. After all, they are doing this in a voluntary and kindly manner. They are doing socially a very necessary piece of work. Why penalise them?

Mr. Brooman-White

The short answer is that they are not penalised. It is a question of the Board having discretion to take their resources into consideration when assessing the contribution that should be made by the child in pursuing this case on behalf of the child.

Miss Herbison

But if after the assessment is made it is decided that these people who have in a kindly manner taken the child have to make a contribution to this legal case—if it is decided after everything has been taken into account—then that is penalising.

Mr. Brooman-White

No, they are making a contribution. Their resources are being taken into account in assessing what contribution should be made on the child's behalf out of moneys available to the child in trying to further the case that would be beneficial to the child's future.

It is wrong to assume they are being penalised. It may mean a higher contribution is exacted from the child in pursuing the child's case rather than money being taken from the taxpayer. That is not a direct charge on them, it is an assessment for the pursuing of the child's case.

Miss Herbison


Mr. Speaker

At present there are three hon. Members on their feet. The hon. Lady requires the leave of the House to make a further speech.

Miss Herbison

By leave, it seems to me that, after all this probing by my hon. Friend the Member for Edinburgh, East (Mr. Willis), in that very last statement the Joint Under-Secretary completely changed his case. It seemed that he changed it by the Lord Advocate whispering to him. This seems to prove conclusively that when we asked to have this matter taken separately, which we would not have done if the Lord Advocate had been in his seat, we were right in thinking that legal knowledge was required.

It was completely unfair, therefore, to put into the hands of a new Joint Under-Secretary, with all the various departments which he is trying to get to know, something which needs legal explanation. I know, because I have had experience as an Under-Secretary. He has dealt with the matter as far as he is capable of doing, but we are not satisfied and I leave it to my hon. Friend to decide what to do.

11.13 p.m.

Mr. William Ross (Kilmarnock)

I had intended not to participate but to leave it to the more learned of my colleagues to try to persuade the Government to give a satisfactory explanation of the changes being made. I thought that the Joint Under-Secretary of State was doing very well until he started to explain what the thing really meant, and then he displayed a considerable amount of weakness. Fair enough; I do not blame him at all.

We are asking him to deal with hypothetical cases, but the point is, surely, that the Government must have had something in mind, something with which they could persuade the House, if this matter was questioned, as it has been, as to the justice of what they were doing. With all due respect to the Joint Under-Secretary of State, it does state that … there may, in addition to the resources of the juvenile, be taken into account the disposable income and disposable capital of such other person or persons … This is the point. Is it fair that the House of Commons, having examined this, and not having had a satisfactory answer, should allow it to go? This might well be doing an injustice to someone.

If the Board is not seized of the dangers and difficulties of this, there may well be injustice. We have with us the Lord Advocate. I know that he has had a hard day. He had a pretty tough time in the Scottish Grand Committee, but perhaps it would be out of order to refer to that. I think that the Lord Advocate owes it to the House to give us his views about this and tell us clearly why this change has been made, what the change means, what are the limits of the change, and why it was made permissive rather than mandatory.

I think we should insist that, instead of the Joint Under-Secretary of Scotland having a third or fourth go at this, we should have the views of Scotland's legal adviser. The Lord Advocate is not only a Government officer. He advises us on the state of the law in relation to Scotland. He is there for the benefit of the House. It is as such that I call on him to give us the advantage of his counsel in this matter.

Mr. Speaker

The Question is—

Mr. Willis

On a point of order, Mr. Speaker. May I respectfully draw your attention to the fact that as you rose to put the Question you were looking at the Order Paper and the Joint Under-Secretary of State for Scotland also rose to reply to the questions which were put to him.

Mr. Speaker

I understood from the words of the hon. Member for Kilmarnock (Mr. Ross) that no further leave would be given to the Joint Under-Secretary of State for Scotland to reply to the questions which were asked. I will allow an opportunity to see if it is the wish of the House that he should speak again.

Mr. Brooman-White

If hon. Members give me leave, I will make one brief comment. I accept the hon. Lady's backhanded compliment that I have given as good an explanation as I could. In fairness to my right hon. and learned Friend, as this is entirely administrative, responsibility for it rests on me and not on my right hon. and learned Friend the Lord Advocate.

The explanation is parallel to that given at considerable length by my right hon. and learned Friend the Solicitor-General about the English Regulations.

Mr. Willis

It was not a satisfactory explanation.

Mr. Brooman-White

I have amplified the position and hope that the House is satisfied with the explanation.

Question put and negatived.