HC Deb 05 February 1969 vol 777 cc539-52

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Fitch.]

10.25 p.m.

Mr. Donald Dewar (Aberdeen, South)

First, I ought to make it clear that I am the possessor, although I am not sure whether I should say the proud possessor, of a legal qualification. I worked in a solicitor's office for a period before being elected in 1966. This does not in a technical sense constitute an interest, but it is a direct connection with the subject under discussion. I hope the House will accept that this is not the only reason for which I have chosen to raise the matter. The operation of the criminal legal aid scheme is important obviously to the person accused whose future may depend upon its efficiency, and to the health of society. It is important for the community as a whole to know that a person on trial will have the benefit of proper representation.

It is, therefore, with some alarm that I and many other people have watched the views of the Government who finance the scheme diverging on one or two important administrative points from the views of the lawyers who service it.

I do not wish to weary the House in the short time at my disposal by going into the technical details of the dispute. It is well known that there is strong opposition to the proposed change in the Act of Adjournal of 1964 bringing in certification that a case is of exceptional difficulty or complexity as a necessary preliminary to a claim for payment above the maxima laid down in the Act of Adjournal.

In the interval between my application for this Adjournment debate and my success in obtaining it, the withdrawal from the legal aid scheme of the services by about 100 Glasgow lawyers has been ended. It occurred to me that it might be more tactful in these circumstances to drop the Adjournment debate but, as the matter is still in dispute and as negotiations in the conventional sense are not in progress, although the Law Society of Scotland is considering what further proposals to put forward, I still feel that the matter should be given an airing. It would be helpful if the Under-Secretary would say exactly how the Government see the situation and how they justify the changes.

It is unfortunate that a matter which has aroused such strong emotions and such sprited debate has not been aired in the House. I do not know how important the Under-Secretary considers the changes to be, but they are certainly thought to be important, and it is a pity that the Government's case has not yet been stated. If changes of more than a technical nature are to be made in the Act of Adjournal in future I hope that Ministers will find an opportunity for allowing discussion in the House.

The debate that has taken place on the issue has been well padded out in terms of principle, legal theory and ethics, but when it is boiled down it is a debate about finance and about fees. As I understand it, the Government are alarmed that excess payments above the maxima were made last year in 25 per cent. of summary cases, in 50 per cent. of sheriff and jury trials and in 80 per cent. of High Court criminal trials, altogether in some 2,600 instances. The simple aim of the change is to cut this expenditure.

In general terms, I wish to express my worry about this. I am not sure that we spend too much on criminal legal aid, and there may be a case for saying that there are areas not covered by the scheme which ought to be. One obvious example is the police courts, where the vast majority of people who regularly appear make their debut as offenders and where the treatment meted out to them may have an important influence on future events.

The £460,000 that we spent last year sounds an enormous amount in isolation, but, in the context of massive Government expenditure, I am not clear that it is such a significant sum. I understand that the rise in criminal legal aid expenditure is very much in line with that in civil legal aid and more or less on course with what has happened in England, where, in 1963–64, the bill was about £1½ million and rose in 1966–67 to £3 million. If it costs as much as £½ million to run in Scotland an efficient criminal legal aid scheme, I would prefer to see that money spent rather than risk the scheme being inhibited or cramped on financial grounds.

I am not clear that the right question is to ask whether we are spending too much. I suspect that it is whether we are getting value for the money that we are spending. That is very much more of an open question. It would be unfortunate, and I have noticed this tendency in the Press and other quarters, for the dispute about the scheme to broaden into a wide attack upon expenditure on legal aid generally.

If the economic case is so pressing, perhaps my hon. Friend could look again at the possibility of a contribution scheme. I am well aware that this was rejected by Lord Guthrie's Committee on Legal Aid in Criminal Proceedings (Command 1015) as impracticable, but no doubt my hon. Friend will remember that there was a qualified note of dissent from the present Solicitor-General on the point. Since then, of course, the Widgery Committee in England, in paragraphs 89 to 135 of Command 2934, has reported in favour of a contribution scheme, and I understand that it is now being implemented south of the border as from October, 1968.

I can see the practical difficulties. If a man is convicted and sentenced to imprisonment, his income stops and it is difficult to expect him to contribute to his defence. Equally, it would be wrong if the effect was that only those acquitted were expected to contribute. However, a practical way round the problem has been found in England, and, if we are so worried about the cost of legal aid, I hope that the possibility of a contribution scheme will not be regarded as a closed question. It is worthy of re-examination.

One of the troubles is that the cost of litigation is ever-spiralling. The skill of the lawyer, traditionally only available to the rich, has become available to the very poor, thanks to the arrival of legal aid. But there are still an enormous number of people in the middle category who find the cost of litigation daunting if not prohibitive. I hope that the introduction of a contributory scheme will widen the range of help and do something at least to minimise—

Mr. Speaker

Order. This can be done without legislation, can it?

Mr. Dewar

Mr. Speaker, I am asking for a re-examination of the problem. But I take the point and leave it hurriedly if it is an embarrassment.

If I may return to the subject of the dispute which is before the Scottish Office at present and which is, as yet, unresolved, my view is that it would be unfortunate if the criminal legal aid lawyer found himself in a position where he ought, in the interests of his client, to do a great deal of work, but was not sure that he would be recompensed for it.

There are obvious disadvantages in any maxima being laid down in a scheme of this nature. As the scheme was constituted, even if the account presented, fell below the legal limit, still it had to be taxed and audited. The situation was not the same as it is in, say, conveyancing, where what is lost on the swings is gained on the roundabouts, where a fat killing can be made on some transactions which compensates for what has to be carried on other sections of work. If the system was being worked as it was constituted and as I understand it, there ought to have been careful auditing of even those accounts which fell below the limit.

I should like to hear what abuses the Under-Secretary thinks there were in the scheme, and not in general terms, that too many cases were getting excess payments. I should like to hear in what way he thinks that certification by the sheriff will effect the limitation that he has been looking for. My feeling is that if there are abuses—and few lawyers to whom I have talked would deny that there are a certain number of abuses—they are to be found in the work entered in accounts not properly done or, in the small minority of cases, not done at all. I do not see, if it is getting through the auditor, how the sheriff can be expected to end that.

I should not like to see a situation in which there was to be a reduction effected in the money spent on legal aid at the expense of those practising in general at the criminal bar. The abuses would be left untouched and might still crop up on those cases where certification for extra payment is not needed. Criminal legal aid work in the past has been the poor relation—an unattractive part of legal work. There is a grave danger that we will perpetuate that situation if we cut back on the money that is available.

I do not pretend that I find all the points made against the changes attractive or valid. Some of the allegations have been highly coloured. The campaign that has been waged has been at times over dramatic. I do not accept the points made about confidentiality and the lawyer-client relationship. I do not think that this should necessarily carry great weight.

I should be interested too if the Under-Secretary could say something about the rôle of the Procurator-Fiscal in applications for certification.

I do not accept that relationships between the Bench and the bar would necessarily be jeopardised by the introduction of these changes. The fact is however that it is still firmly held and believed that this is so and for this reason alone it is worthy of comment and rebuttal by the Under-Secretary.

There is a strong feeling, which may be exaggerated, that lawyers might find themselves in the situation of saying that if they prepare an elaborate case it will depend on which sheriff is on the bench whether they would get the certification they were looking for. This is not a unique situation. These are valid complaints that, in the initial application for legal aid by the accused, there are considerable variations in practice, depending on who is on the bench at the time. Looking at Section 2(2) of the 1967 Act, the only consideration that should be taken into account is the accused's financial circumstances. But I understand that there is a tendency to have a general wide-ranging inquiry into the type of defence that is likely to be available before a legal aid certificate is granted. I am unhappy about that situation. It is unfortunate, it may be inevitable, but that is not necessarily a good reason for extending it.

The last point I should like to mention is the definition of "exceptional length, complexity or difficulty." It may be said: who is better to judge what happens in this connection than the man sitting in judgment on the case? It makes a fine rallying call and, to some extent, it is fair. But it is only fair to say that he is a good judge of what happens in his own court. I am sure that the Under-Secretary will accept that there may be circumstances in which a great deal of massive preparation can be done and perhaps, owing to the excellence and thoroughness of that preparation, the proceedings in court are shortened. There may be a last minute arrangement to plead to a lesser charge as a result of facts which have been uncovered. There may be many other circumstances which I need not enumerate. It would represent a fairly radical departure from the old principle on which certification was supposed to be given if preparation was to be excluded.

I need hardly remind my hon. Friend of a recent judgment in the High Court handed down by Lord Wheatley, which has been widely commented on: Counsel had argued that the length of time meant the time spent in preparing the case, and he could not agree with that interpretation. He was satisfied that it related to the time the case occupied in court. I shall be interested to hear my hon. Friend's explanation of what was in the Government's mind at the time when they introduced this scheme, as to whether preparation was a valid factor to be taken into account.

I have raised this Adjournment debate largely because this is an unsolved dispute which has raised a great deal of fierce debate. I have, in a sense, raised it as a probing debate, in the hope that we may have from my hon. Friend a clear exposition of where the Government stand. It is an unfinished story. As my hon. Friend knows, the Law Society has a committee at work on this at the moment—its first meeting was tonight—to try to come up with a compromise which will be acceptable to all the parties concerned. I hope that it is successful. My feeling is that in the past the Law Society has been a little tentative in its actions. The abuses which exist are very much abuses, I suspect, which can be eradicated only by the lawyers themselves, and the Law Society, with its power to exclude someone from the criminal aid list, with its powerful position—a monopoly position—on the question of entry into the profession, could have done more to stamp out the causes of complaint which have led to the imposition of these changes.

I hope that we shall get some useful and effective suggestions from this Committee. I hope, too, that this evening we shall get from my hon. Friend a firm pledge that he is not prepared to be inflexible, and that he will look with an open mind, and possibly with a sympathetic mind, at any proposals which flow from their deliberations.

10.42 p.m.

The Under-Secretary of State for Scotland (Mr. Norman Buchan)

I can give my hon. Friend the Member for Aberdeen, South (Mr. Dewar) the assurance for which he asked on the last point he raised. I am well known for my flexibility in handling all these matters.

Before I start on the general debate, I want to say that I am pleased that my hon. Friend has raised this matter because it gives me the opportunity of explaining the circumstances in which the new Act of Adjournal was brought into operation at the beginning of this year, and it also gives me the opportunity of dispelling some of the misconceptions which appear to exist about the procedure.

I should like to make one or two general points. First, I accept completely the argument of my hon. Friend that criminal legal aid is socially desirable, and indeed socially necessary. We fully accept this, and I hope that my hon. Friend is not correct in saying that this has been used to broaden the attack against the scheme of legal aid as such. Certainly that is a view which we would reject. Indeed, it is because we are concerned to strengthen, and to be seen to strengthen, the rôle of criminal legal aid as fitting into society in this way that we want to produce the best kind of scheme. One of the things, however, which the Government must demonstrate is that they take proper care of the public purse in this matter. By doing this, even more confidence will be given to such a scheme.

There is one misconception which I think I can dispose of briefly, namely, that the Act of Adjournal was somehow mysteriously brought into effect without going through the appropriate statutory procedure, or at any rate that it was not brought out and discussed. My hon. Friend is not under any misapprehension about this. The fact is that the statutory provisions under which this and all previous Acts of Adjournal have been made reserve to Parliament no further powers. They are delegated powers. They are delegated to the High Court of Justiciary, and no Parliamentary procedure is prescribed. Therefore the opportunity to debate this Act of Adjournal did not arise, and for this reason I welcome this debate.

I should like to look, first, at the historical background to this. The traditional Scottish system for the defence of poor persons in criminal proceedings rested on the willingness of the legal profession in Scotland to give their services virtually free. From 1953 they were subsidised by an annual payment from the Exchequer, which in 1964–65 was increased from £8,000 to £16,000. Even so, according to the Report of the Guthrie Committee in 1960, there was, at least in Glasgow, competition for appointment to the list of agents for the poor. That Committee nevertheless recommended, rightly, that it was unreasonable to expect the legal profession to continue to act for accused people in the criminal courts without remuneration and the present scheme was brought in in 1964. This Act prescribed maxima which could, however, be exceeded at the discretion of the Law Society of Scotland.

In its first full year of operation, 1965–66, that statutory criminal legal aid scheme cost £242,000. In the current financial year, it is expected to cost £490,000. The cost of the scheme has, therefore, doubled in three years. It is hardly surprising that, when the Government are exercising the most rigorous control of public expenditure, my right hon. Friend should question the justification for this very large increase and should look into it, not because we have criticisms of the legal aid as not being socially necessary—we have none—but to see whether the public purse is also being looked after. Accordingly, when my hon. Friend the Member for Glasgow, Maryhill (Mr. Hannan) asked a question on this subject on 22nd May last, I said that my right hon. Friend was examining ways and means of containing this rapid growth of expenditure.

Mr. Speaker

Order. It would help the Official Reporters if the Under-Secretary would address the Chair.

Mr. Buchan

I am sorry, Mr. Speaker.

Fees to solicitors naturally account for a high proportion of the total cost of the scheme—over 90 per cent.—and it was therefore in this direction that we had to look for economies in the use of public funds for the defence of accused persons.

In May last year, my right hon. Friend put forward proposals to the Law Society, drawing their attention to the renewal of public concern about the cost of criminal legal aid and seeking their co-operation in measures, particularly in summary cases, to bring it more closely into line with what we felt we could afford and what the administration of justice required, and to place the remuneration of solicitors and counsel more firmly on the basis of payment for work actually and reasonably done. My hon. Friend was right to stress that this is not just a matter of principle, although much of the discussion has taken this form, but that much of it is due to a question of money, of costs and fees. One of the factors was the imbalance between expenditure on the defence of accused persons, which has risen in a remarkably short period to almost half a million pounds and the cost of the procurator fiscal services which, in the same period, has risen only from £350,000 to £450,000.

The Law Society, which has statutory responsibility for the administration of the legal aid scheme, felt unable to accept all the proposals put to them, but they responded with certain constructive proposals of their own, which were then embodied in a memorandum dated 24th June, 1968.

We were especially concerned at the extent to which solicitors had been invoking the so-called "escape clause"—Section 13(2) of the 1964 Act of Adjournal—which enabled them to claim fees in excess of the maxima. For example, the nominated solicitor acting for an accused person in summary proceedings in the sheriff court is allowed a maximum fee of 45 guineas, with an additional daily fee not exceeding 15 guineas for an adjourned hearing; and for a sheriff and jury trial, the solicitor is entitled to claim 75 guineas, with an additional daily fee of up to 20 guineas, or 15 guineas if counsel has been instructed, for an adjourned hearing. The Act of Adjournal recognises, however, that, in exceptional circumstances these maxima may not give enough remuneration to the solicitor for work actually and reasonably done, and Section 13(2) provides for that in cases of exceptional length, complexity or difficulty.

In the memorandum of June, 1968, the Law Society accepted that this "escape clause" had been excessively invoked. My hon. Friend asked me to be more precise. I would rather not, with respect, but the Law Society has accepted that the "escape clause" has been excessively invoked. An analysis had shown that, in 1966–67, fees in excess of the prescribed maxima had been paid in almost 20 per cent. of the accounts submitted in respect of summary proceedings and over 40 per cent. of those relating to sheriff and jury trials. A similar analysis in 1967–68 has disclosed an upward trend, for in that year the proportions were about 25 and 50 per cent. respectively.

The Law Society rejected a suggestion that the "escape clause" should simply be revoked, and proposed instead that the duty should be placed on the court at the termination of a trial, on application by the defence, to say whether in the circumstances of the trial Section 13(2) should be applied.

At a subsequent meeting held on 27th June, representatives of the Law Society and of the Department agreed to adopt this proposal, which was later submitted to the Lord Justice-General along with certain other proposals for the amendment of the 1964 Act of Adjournal and thereafter embodied in the new Act of Adjournal, which came into operation on 2nd January.

I am well aware that, after the meeting I have referred to, the Law Society had second thoughts and retracted this particular proposal. The point I am trying to make, however, is that the notion of the court's certifying whether a case had been one of exceptional length, complexity or difficulty was not so outrageous or revolutionary as to inhibit the Law Society from advancing it in the first place as worthy of consideration. In view of comments which were made later, this point should be kept in mind.

What is the practical effect of the amendment to Section 13(2) of the Act of Adjournal? Hitherto the solicitor who considered that the work he had done on a case entitled him to claim fees higher than the maxima prescribed required only to justify his claim to the Law Society or, on appeal, to the auditor of the court. Under the new Act of Adjournal, he has to get a certificate from the judge who has presided at the trial to the effect that the case has necessarily been one of exceptional length, complexity or difficulty. If he is successful in his submission to the court, he then submits his account in the usual way to the Law Society which, as in the past, has complete discretion in determining how much would be "fair remuneration" for the work done. The trial judge does no more than decide that the case comes within this category. He does not decide the amount.

If the solicitor's application is unsuccessful, his remuneration is still determined by the Law Society, subject to a maximum which has not been altered. The question, therefore, to which the court must address itself in considering an application under Section 13(2) is not, "How much should this solicitor be paid for his trouble?", but simply, "Has the case which has just concluded been exceptionally long, complex or difficult?" The High Court is satisfied that a decision of this kind is entirely within the competence of the judiciary, and I deprecate any suggestion that we are asking the judges to perform a duty for which they are not qualified.

I refer my hon. Friend to a letter written by Mr. Norman Walker, a distinguished former sheriff, which appeared in The Glasgow Herald of 8th January, in which Mr. Walker said this: The sheriff's duty under the new regulation is not to decide fees but to decide whether the case was exceptional. There is nothing new in this. In civil cases the sheriff has had power for over 50 years to allow higher fees to be charged against the unsuccessful litigant, and where such fees are allowable similar fees are charged by each solicitor against his own client". It was even more complex than this, because various other factors had to be taken into consideration at the same time. Therefore, there is nothing totally new in this principle.

I cannot accept the argument either that this must be opposed because different sheriffs will have different attitudes. If we accept that the trial judge is competent to decide whether a man should be sent to prison for 5 or 10 years, we should not see this problem as being quite so difficult. I cannot accept that reflection on the bench. Nor can I accept that confidentiality is necessarily impugned in this way or that specialised knowledge may be altogether necessary.

What was the old procedure which was, at least by implication, so much better? This allowed the solicitor to submit his account weeks, sometimes even months, after the case was over, to the Law Society, which had no knowledge, as the trial judge does, of the nature of the work done. I accept that the amount of work done may not necessarily show itself in the length of the actual trial, but it should be disclosed by the nature of the trial in precisely the same way.

My hon. Friend was also anxious about the presence of the prosecutor. The rôle of the prosecutor is simply to provide any information about the case which the judge may ask for and to secure that the court is not misled as to matters of fact. This is the only reason for the presence of the prosecutor.

Mrs. Winifred Ewing (Hamilton) rose—

Mr. Buchan

With respect, I have little time. I hope I have said enough to explain the considerations which led my right hon. Friend to propose some adjustment in the procedure for claiming higher fees. I regret very much that a section of the legal profession in Scotland should have carried their dislike of the new arrangements to the point of withdrawing from the criminal legal aid scheme altogether. I am pleased that wiser counsels have now prevailed and that the lawyers concerned have applied for readmission to the criminal legal aid lists in Glasgow. I am aware that a working party has been appointed by the Law Society. I welcome the establishment of this working party. I have no doubt that the Bar Association in Glasgow will be willing to bring forward points of view—

The Question having been proposed after Ten o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at five minutes to Eleven o'clock.