Legal Aid (Scotland) (Hansard, 20 December 1982)

§ The Under-Secretary of State for Scotland (Mr. Allan Stewart)
I beg to move, That the Legal Aid (Scotland) (Exclusion of Proceedings) Regulations 1982, a copy of which was laid before this House on 1st December, be approved. The regulations provide that legal aid will not be available for divorce proceedings which are, or could be, initiated under what has come to be known as the Cowie procedure. Legal advice and assistance will be available instead, if sought by the parties involved in divorce proceedings.
The Cowie procedure will be introduced into the Court of Session on 11 January 1983 by the Act of Sederunt (Rules of Court Amendment No. 6) (Simplified Divorce Procedure) 1982 and will apply to those undefended divorce actions on the grounds of non-cohabitation for two or five years, where there are no children of the marriage under 16 years of age, where no order for financial provision is sought and where neither party suffers from mental disorder.
The new procedure is intended to be simple enough to be genuinely "do—it—yourself", so that individuals will be able to seek a divorce without necessarily needing the professional advice of a lawyer. Nevertheless, should there be any uncertainty about the operation of the new procedure, or doubt about the questions to be answered on the various forms, a solicitor may be consulted under the legal advice and assistance scheme.
The removal of legal aid from actions in the Cowie category will have among its principal benefits the elimination of the need for an often time-consuming and costly assessment of the applicant's financial means by DHSS.
The Scottish Association of Citizens Advice Bureaux has been involved in the preparation of an explanatory leaflet on the new procedure. Both the leaflet and application forms will be widely available through sheriff courts and citizens advice bureaux as well as in the Court of Session. Legal aid will, of course, continue to be available for all other categories of divorce actions in the usual way.
We have given careful consideration to prescribing a higher limit in connection with Cowie divorces. However, after consultations with the legal aid central committee of the Law Society of Scotland, we have not thought that necessary. The committee considered that such a provision was unnecessary and was, indeed, likely to lead to confusion, administrative problems and needless expense to the legal aid fund. It is, however, intended to monitor the position, and if it appears administratively desirable to prescribe a higher limit, further regulations will be made.
The regulations represent a sensible measure to complement the Act of Sederunt so that the savings that the new procedure will bring to divorcing couples may also benefit the legal aid fund. I commend the regulations to the House.

§ Mr. Donald Dewar (Glasgow, Garscadden)
These regulations have a rather unpleasant ring. Exclusion of proceedings is not normally liked by the legal profession—nor necessarily by those who have the future 776 of legal aid in Scotland at heart. However, on this occasion at least we intend to support the Government. We think it perfectly fair that in the not insignificant category of divorces which have been recommended for a special expedited procedure by Lord Cowie's committee the provision for legal aid should be withdrawn.
The Minister explained the category in plain and succinct language. It is well known to those who follow these matters that the Government expect that between 17 per cent. and 25 per cent. of all divorce actions will be covered by the new procedures Presumably they will be even more streamlined with the first orders under clause 2(2) of the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Bill, which is now in Committee. I have no objection in principle to that, leaving the parties who may think of using the Cowie procedures to rely on the legal aid, advice and assistance scheme to get preliminary guidance on what may still be the comparatively complicated questions that can arise. After all, divorce deals with fundamental rights. It is no good coming back later and asking the courts for a capital payment. Once one has lost the opportunity by using the divorce procedures—perhaps the almost do-it-yourself divorce procedures that are being introduced—there is no going back.
Anyone who has studied the new forms—incidentally, I congratulate those who designed them; it is a complicated matter, and they have done their best—will see a number of questions that will puzzle the laymen. There is a number of calm assumptions about giving up rights on which the prudent person would need some guidance and help.
Perhaps the Minister will tell us how much money he expects will be saved by this procedure. That would give us interesting evidence which could be dovetailed into other calculations that have been made. We know from the explanatory and financial memorandum to the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Bill that the Government expect from the transfer of jurisdiction to the sheriff court a considerable saving in legal aid in a full year. I believe that the figure mentioned was between £1.3 million and £1.8 million. Presumably, over and above that, there will be a substantial saving from the abolition of legal aid in Cowie-type undefended divorces. I do not know whether the Government know the figure, but I should be interested to hear it. It should not be too difficult to ascertain. We know that in the year to 31 March 1982 divorces cost about £6.1 million, and if we assume that the figure of 17 per cent. to 25 per cent. is right, and the offset on the cost of the LAA3 scheme, presumably the Minister's ever-ingenious advisers will have produced a figure which will be in addtion to the savings which are expected from the transfer of jurisdication to the sheriff court. At a time when divorce is very much in the public eye in Scotland, it would help the House if the Minister would say something about that.
The Minister rightly picked up the point about whether there should have been an extension to the present automatic £40 limit on the LAA3 expenditure. I agree with him, although I expressed some doubts the other day in Committee. I have now 'had the opportunity to consult interests in Scotland, and I have discussed the matter with the Law Society. It takes the view that, for administrative reasons, it would be too complicated to have an automatic extension to a higher expenditure limit for this one 777 category within the broad range of undefended divorce actions. I take that as a fair comment and make no complaint about the Government's decision.
I understand that in the year to 31 March 1982 there were just over 111,000 applications under the scheme and in only 30,375 of those—27 per cent.—was an extension granted. I imagine that in the case of the Cowie divorces, despite the Minister's refusal to make an automatic extension for reasons which I understand, the practice of applying for an extension will become almost automatic and that the proportion granted will be high. Therefore, in practical terms the difference between the extension of the limit at this stage as a blanket measure and the granting of it on a one-off basis will not be as great as some might imagine.
As I say, this is an interesting and important little experiment which we are partially completing in the regulations tonight. It is a sensible experiment, although the matter is now rather complicated in the sense that Cowie comes in on 11 January with corroboration still retained in the forms and in the procedures. The Minister knows my views on this. We know that as soon as the present divorce legislation reaches the statute book we shall have a change in the Cowie procedures with an order under section 2(2) of what will then be the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act which will remove corroboration from the Cowie subsection of the undefended divorce range. Ultimately, probably in January 1984, we shall have the major change of the extension of divorce jurisdiction to the sheriff court. Therefore, we have a confused overlapping position which will make considerable difficulties both for the legal profession and indeed for those who, unfortunately, will become part of the 10,000 or so couples who will be seeking a divorce in 1983 unless there is a significant and unexpected change in the present trends and statistics.
However, the regulations make sense. We welcomed the Cowie procedures when they came out and we complained about the delay in implementing them. Therefore, it would be ungracious if I were to make too much of a song and dance about them tonight. I do not know whether I am grateful for the support of the hon. Member for Edinburgh, South (Mr. Ancram), but I shall be charitable and record his presence at this point.
It is right that we should have a sound warning note at the end of this short debate. Although we are entirely in agreement on these regulations and the withdrawal of this form of legal aid, I do not want the Minister to take that as a trailer for general unanimity on the Government's approach as I understand it and as it has been hinted at in recent speeches. It is important that we should try to extend and improve the legal aid scheme, not to dismantle it in the interests of general Government economy.
Hon. Members may have heard the Minister talk, as he is fond of doing, of value for money, particularly in legal aid. As I am in the mood for handing out compliments, may I say that one area in which the Government have got value for money is from the Scottish Office of Information. We have had more puff pieces in Scottish newspapers about the startling personalities who now adorn the Government Front Bench than we have seen for a long time. Today's Glasgow Herald has a headline: Softly, softly style of the new Solicitor-General". 778 There is a large and prominent picture of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), which must be a mistake. In any event, I observe that the present incumbent of the job, the hon. and learned Member for South Angus (Mr. Fraser), says at the end of the article: In any event, I think it is very much open to question whether the administration of the law can ever be geared to providing a salary opportunity for lawyers. I do not think that anybody would dissent from that, although it is quaintly put. It is not really open to question whether the law can be so geared—it certainly can. The point is that that never should be. I should have thought that the Solicitor-General might have managed a slightly more definitive view of the matter. I accept that one cannot have the legal aid system geared to suit lawyers and the demands of their bank managers.
Recently a certain theme has run through Government speeches, and I warn the Minister that it is equally bad to say that the legal aid system should be tailored not in the interest of the administration of justice in Scotland, but to satisfy the dictates of an implacable Chancellor of the Exchequer. There is a danger that that may happen in the next year or so if present Ministers have their way.
Perhaps that is an issue for another day. I do not want to depress the Under-Secretary of State, but it is, in fact, an issue for tomorrow morning's sitting of the Committee debating the Divorce Bill. I intend to return to that theme with renewed vigour at about 10.30 am. However, on the narrow point of the withdrawal of legal aid from Cowie undefended divorces, I willingly give our support to the regulations, as long as it is not misunderstood or misrepresented.

§ Mr. Allan Stewart
I am grateful to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for having pledged the Opposition's support. Of course, I take the point that his support is for the proposals before us, and does not necessarily carry any implications for other Government proposals. No doubt my hon. and learned Friend the Solicitor-General for Scotland will be interested in the hon. Gentleman's quotation from that very objective and well-balanced article in the Glasgow Herald.
I confirm that when the Divorce Jurisdiction Court Fees and Legal Aid (Scotland) Bill is enacted it will be possible to implement the Cowie procedure in the sheriff court. Of course, we fully intend that that should happen. The hon. Member for Garscadden asked me how much the Cowie procedures would save. I am sure that he will appreciate that it is impossible to give a precise figure, but, given that we expect about 2,000 cases to be taken under the Cowie procedure, we estimate that there will be savings to the legal aid fund of up to about £1 million. However, I am sure that the hon. Gentleman will not take me to task if the figure varies somewhat.
The hon. Member for Garscadden referred to the higher limit and I confirm that his understanding of the Law Society's position is correct. We shall monitor that point, among others, and if new regulations should prove necessary, they will be implemented. The hon. Gentleman spoke about introducing the new procedure in the Court of Session before the enactment of the Divorce Jurisdiction Court Fees and Legal Aid (Scotland) Bill. The experience that we gain in the Court of Session will prove valuable before the procedure is introduced in the sheriff court.
779 I look forward, as always, to listening to the hon. Member for Garscadden in Committee tomorrow morning when we shall deal with some of the wider questions relating to legal aid. There I rest my case for the moment. I commend the regulations to the House.