Legal Aid and Advice (Scotland) (Hansard, 19 November 1984)

§ The Parliamentary Under-Secretary of State for Scotland (Mr. John MacKay)
I beg to move, That the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations 1984, dated 24th October 1984, a copy of which was laid before this House on 31st October, in the last Session of Parliament, be approved.
The two sets of Scottish regulations that require an affirmative resolution this evening, the Legal Aid (Scotland) (Financial Conditions) Regulations 1984 and the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations 1984, make the same increases in the financial limits for Scotland. I shall remind the House of what they are.
The advice and assistance regulations raise the upper disposable income limit for the green form scheme from £103 a week—[Laughter.] Sorry, am I reading the wrong thing? The Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations raise the weekly sum from £103 to £108, and the Legal Aid (Scotland) (Financial Conditions) Regulations 1984, as my hon. and learned Friend the Solicitor-General has explained, raise the lower limit from £2,050 to £2,145 and the upper limit from £4,925 a year to £5,155.

§ Mr. Harry Ewing (Falkirk, East)
Will the hon. Gentleman give way?

§ Mr. MacKay
I am going to sit down so that the hon. Gentleman can make his speech. I commend the regulations to the House.

§ Mr. Harry Ewing
We sympathise with the Parliamentary Under-Secretary who has drawn the short straw. As the Minister who should have dealt with the regulations is absent, he has had the great misfortune to have to pick up the brief without even beginning to understand it. We objected to the regulations for Scotland and for England and Wales being taken together. It was no reflection on the Solicitor-General, because he will appreciate that there are major differences between the two systems. The first major difference is that for the legal advice and assistance scheme in Scotland the colour of the form is pink, whereas in England and Wales it is green. The form in Scotland is known as the pink bomber. I am sure that the House is interested in that.
I am sure that the Minister will appreciate that there is a major difference in the system for criminal and civil legal aid in Scotland compared with England and Wales. Civil legal aid in Scotland is granted by the legal aid committee and criminal legal aid by the court. In England and Wales, all legal aid is granted or refused by the legal aid committee.
My first question relates to those charged with offences arising from the dispute in the mining industry. There appears to be a variation of practice in the sheriff courts. I understand that the responsible Minister has given information to my hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) to the effect that in Kilmarnock and Dunfermline little or no legal aid has been granted to such persons. What is the current position for the granting of legal aid for such accused persons? I assure—

§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. I hope that the hon. Gentleman will not take us too far outside the scope of the regulations.

§ Mr. Ewing
I assure you, Mr. Deputy Speaker, that my feelings are hurt by you thinking that I would take the House too far. I hope that I have left sufficient with the Minister to receive an answer to my question. It affects the granting of legal aid. I trust that the Minister will especially refer to the granting of criminal legal aid.

§ Mr. Gordon Brown (Dunfermline, East)
We want an assurance that the limits will be properly applied. My hon. Friend the Member for Falkirk, East (Mr. Ewing) referred to legal aid, advice and assistance to miners involved in the present dispute, some of whom have been charged with offences. We want an assurance that everything is being done to ensure that they receive legal aid. In my constituency and that of my hon. Friend the Member for Dunfermline, West (Mr. Douglas), the evidence is that no miner who has been charged with an offence has received legal aid, advice or assistance paid for by state funds.
Is a notional income assumed to have been earned by the miners, as is the case with social security regulations? Is there another, more sinister reason? It is that which prompts us to ask whether the limits are properly applied?

§ Mr. Ewing
I am grateful to my hon. Friend for his intervention, to which I hope the Minister will give a definitive answer. I would be astonished if anyone, whether a miner or anyone else, was refused legal advice and assistance. That is a different matter from an application for legal aid when a person comes before a court to defend himself—whether it be a miner charged with an offence arising from the dispute, a person charged with a traffic offence, or anyone else. I hope that the Minister will give us a definitive answer to the question, particularly in relation to my hon. Friend's constituency and Dunfermline and Kilmarnock sheriff courts. Through the years—it was the case when I had some responsibility for these matters—we have always discussed the possibility of extending the legal aid scheme to tribunals and to other areas of representation throughout Scotland. Even at this late hour, could the Minister enlighten the House as to the thinking—

§ Mr. Deputy Speaker
Order. I hope that the Minister will not respond to that question. The regulations do not allow hon. Members to discuss legal aid. They may discuss only the increases in the capital allowances and returns.

§ Mr. Ewing
I can see that I shall have to ask for legal advice and assistance in dealing with the matter. We have traditionally asked questions about the way in which the scheme could be extended. I hope that the Minister will respond in the traditional fashion and tell us that serious consideration is being given, and that some advance can be expected next year.

§ Mr. Archy Kirkwood (Roxburgh and Berwickshire)
I declare an interest, in that I am technically still a partner in a small provincial firm of solicitors, Messrs Andrew Haddon and Crowe, in Hawick. Anything that I say should be taken in that context.
I heard what the Minister said about the opportunity being taken at this time of the year to uprate the legal aid limits in the context of and in proportion to the social 121 security increases. That, as far as it goes, is right and proper, but I should like to refer to the pink form scheme, which had its genesis in the 1972 legislation. There was a much more accurate reflection of the increase in costs when increases were made in the capital and income limits. It related to the increase in litigation costs, rather than the movement in the retail price index.
If the Minister speaks to whichever of his colleagues is dealing with these matters, and does the arithmetic in the cold light of dawn tomorrow, he will find that, measured by that yardstick, the income and capital increases necessary to keep pace with the position in 1972 will be far higher than the figure of nearly 5 per cent. that we are discussing this evening. In future, when the Minister is battling with the Treasury to get the necessary annual upratings, I hope that he will bear that calculation in mind rather than the change in the RPI.
My next point derives directly from my experience in administering the pink form scheme. It was £600 prior to June 1983. That was the disposable capital limit for the pink form. It is now increased in the orders from £730 to £765. That is a very restrictive disposable capital limit. As a practising solicitor, I frequently had to tell people that because of that limit they could not go to the courts. There were old age pensioners who had saved up a nest egg so that they could have a proper burial. They had legitimate causes to take to the courts and could not do so because they had £800 or £900 put aside for burial costs. It happened on several occasions in a small provincial office, so I assume that it is a much greater problem in some of the bigger city offices. That matter, more than anything else, requires urgent attention.
I hope the Minister will consider the points that I have raised, and that he will have some answers next year, apart from trying to do something about them in the meantime.

§ Mr. John MacKay
First, I respond to the contribution of the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) on his point about the the pink form. He urged that the limits should be increased at a faster rate. I repeat what has already been argued—that the priorities for Government spending must be balanced. The balance is being achieved in the form of upratings— a method which has been adopted by previous Governments. The regulations limit the cost which the applicant has to meet even if legal costs increase at a greater rate. There is a departmental review of legal aid, both civil and criminal. My right hon. Friend will read with interest what the hon. Gentleman and the hon. Member for Falkirk, East (Mr. Ewing) have said.
The hon. Member for Falkirk, East had a little fun at my expense at the beginning of his remarks. My hon. and learned Friend the Solicitor-General tells me that in England and Wales legal aid is provided for criminal cases and that the issue is decided by the courts, not by a legal aid committee.
I am in some trepidation about following the course which I was invited to take by the hon. Member for 122 Falkirk, East. Most of his questions turned on legal aid for criminal cases, whereas we are talking about civil legal aid. That point should be remembered. Criminal legal aid is determined by the courts, which consider whether the award would be in the interests of justice and whether it would occasion financial hardship to the accused or his dependants if he were not to be granted legal aid. That is a matter entirely for the courts. There can be no intervention in these matters by my right hon. and hon. Friends. The comments that have been made about the miners and other matters will be considered in the departmental review. I shall draw my right hon. Friend's attention to the issues that have been raised.

§ Mr. Gordon Brown
Will the Minister give us an assurance that the inconsistencies in the administration of legal aid to miners during the course of the current dispute when they have appeared before the courts will form the subject of at least part of the review that is being conducted by his right hon. and noble Friend the Minister of State?

§ Mr. MacKay
Opposition Members are always drawing attention to inconsistencies in the courts, whether in sentencing or in other respects. The answer is always the same. The courts are free to make their own decisions on the cases before them. That applies to sentencing and the granting of legal aid.

§ Mr. Donald Dewar (Glasgow, Garscadden)
There have been allegations—I cannot verify them because I have not been involved— that some sheriff courts—Dunfermline and Kilmarnock are two examples— are denying certain categories of accused persons legal aid as a generality and almost in universality. Presumably legal aid is being denied on the basis that it would be against the interests of justice to make it available. There is widespread concern about this, but there is no general beef about the administration of legal aid. Will the Minister give an assurance that the suggestion that legal aid is being denied in some instances will be examined as part of the review to which he has referred, or perhaps more urgently, to ascertain whether something can be done?

§ Mr. MacKay
The hon. Gentleman has fairly said that he has heard general allegations. If hon. Members representing the relevant constituencies wish to write to my right hon. Friend, I am sure that he will respond.