HC Deb 14 July 1986 vol 101 cc779-87
Mr. John MacKay

I beg to move amendment No. 7, in page 10, line 22, at end insert— '(3) The Board shall establish a procedure under which any person whose application for legal aid under this section has been refused may apply to the Board for a review of his application.'.

Mr. Deputy Speaker

With this it will be convenient to take Government amendment No. 35.

Mr. MacKay

These amendments fulfil the undertaking that I gave at the start of the ninth sitting of the Standing Committee to provide on the face of the Bill for the establishment by the board of a review procedure in relation to refusals by the board of applications for legal aid for both civil cases and summary criminal cases.

I have phrased the amendment in the form of a review procedure because it seems better to have a review procedure involving reconsideration of the application as a whole, ab initio, rather than an appeals procedure based on what may be comparatively narrow objections to the original refusal. An appeals procedure could become over-formal arid legalistic. It would be much more difficult for the person seeking legal aid—indeed he might need a lawyer to present his appeal—and might mean that new material produced by him could not be considered. Review, on the other hand, will leave the necessary freedom to reconsider all aspects of the application including any new material.

We discussed in Committee who might sit on a review committee. My amendment provides for the board to establish a procedure for review of refusals of applications and it will therefore be for the board to consider how best this can be done, although my right learned and hon. Friend the Secretary of State could make regulations if necessary.

I should explain that the board can establish committees which can consist either partly or wholly of members who are not members of the board. That power was included in the Bill with this appeal procedure arrangement very much in mind, both to ensure that an independent review was possible and because such review committees will no doubt consist mainly of lawyers and would thus not in practice consist mainly of board members. There would not be enough lawyers on the board to allow that to happen.

I do not wish to be too specific about how the committee will be formed and so on, because I shall incur the criticism of pre-empting the board's decisions, but I believe that the amendments honour my undertaking in Committee. I believe that they go all the way to satisfy the misgivings of my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) and of Opposition Members.

Mr. Dewar

I welcome the amendments. I am glad that the Minister listened to the almost unanimous advice from both sides of the Committee and many interested outside organisations. There was widespread anxiety about the possibility of losing the present right of review of civil legal aid applications and an equally strong feeling that there was a gap in the present system.

Many hon. Members who had been approached by constituents who had been refused legal aid felt uncomfortable about the fact that there was no right of review. It is a positive strength of the new system that that right will exist in civil and criminal legal aid. It would be ungracious not to give a warm welcome to the Minister's comments. He put the case for his review, ab initio, very fairly. Goodness knows what Latin law is still to come! We shall watch as the evening unfolds.

It was useful to be reminded by the Minister that it is possible for the Scottish Legal Aid Board to form subcommittees that include people who are not members of the board. Presumably there is provision for paying the expenses and other outlays of such people.

Can the Minister assure us that the review procedure will be in place from the beginning?

Mr. Wallace

Ab initio.

Mr. Dewar

Yes, that springs to mind as a useful phrase on this occasion. Will there be a review procedure from the beginning? It is important that there should be, and I am sure that that is the intention.

The briefings from the Law Society have been useful throughout the passage of the Bill and the society says that it must withhold its final comment until it has had sight of the regulations, but I understand that there will be no regulations, because the amendment merely instructs the board to establish a procedure, which will be the business of the board.

There will be no question of regulations being laid or of scrutiny. Perhaps the Minister will confirm that fact and say whether there is an understanding that the scheme will be submitted to the Secretary of State. That is not an uncommon procedure, and I thought of tabling an amendment to have that done, but I was anxious not to delay matters and build in extra stages. Will there be a duty on the board to produce the plan within a set period and to make it public and satisfy the Secretary of State that it has carried out the legal duty that we shall lay upon it?

Mr. Fairbairn

I thank my hon. Friend the Under-Secretary and my right hon. and learned Friend the Secretary of State for putting on the face of the Bill the requirement to have a review procedure for legal aid in civil and summary criminal cases.

The Government have been sensitive and sensible in their reaction to criticism that came in comparative silence from the profession, but not entirely in silence from those of us who represent the interests of justice in the House.

Some matters worry me. First, one criticism made in Committee was that we were constantly writing blank cheques. We have written le plus blanc cheque because the Minister has written in the simple concept that the board will set up a procedure.

We are between two stools. The Secretary of State does not interfere with the board, but the Minister says that we do not know what it will do. We do not know whether it will be a dinosaur with four legs, or a kangaroo with two pouches. It is worrying that the Government say that they will set up the procedure, without the Minister explaining what form that procedure will take.

There are two forms of procedure. I understand that the Minister prefers the second form. The first form is that if a reason can be found for disallowing or refusing the first time, the review process can find that that is wrong. The second form is to have a replay, and no account is taken of the reason for refusal.

The Minister's view is that the second form is preferable, but if an original application merely goes into committee, it goes to an official. One does not know to which official it goes. It might go to Mr. Nice or to Mr. Nasty, who might be in a good mood or in a bad mood. If the review does not take into account the grounds on which the official decided against an application, that might be prejudicial—or very beneficial. The official's decision might be right and the review might miss the point. An applicant is entitled to know the grounds upon which a refusal is decided. That is basic natural justice.

If the Bill becomes law, the Secretary of State will set out a number of procedures. We shall be able to negative only in total any regulations applying the law. We shall be unable to alter them. I should like, as a matter of natural justice, to know why Mr. Unknown Official refused my application.

I see the Minister's argument. If three wise men judge a cause after one unknown man has judged it, a second chance should be given. But that is not the concept of justice in Scotland. In Scotland three wise men judge upon the judgment of the first person who judged the cause. That is a different concept. So I ask the Minister to consider carefully. We are considering going, not before courts or the Law Society, but before an official whose opinion or identity we shall never know. The name of the official and the reason for his judgment should be put before the appeal procedure. That is the minimum justice. He can consider that in addition to the concept of ordering a retrial, or a replay.

Dr. Norman A. Godman (Greenock and Port Glasgow)

Is not the decision and the reason for it more important than the naming of the official?

Mr. Fairbairn

I am sure that it is, but it is the anonymity of the process that worries me. I am sure that the hon. Gentleman will understand. One just does not know why a decision has been taken and one has no means of discovering who has taken it. I shall use the concept of the seven dwarves—Happy, Grumpy, Doc and so on. If one happens to get Grumpy, that might be the reason for the decision. That is not a good thing. Therefore, I feel that the review board should have before it a statement of fact. It can start again if it wishes, but it should at least know why the initial application was refused.

I am in no way criticising my hon. Friend the Minister. I hope that I am being helpful. I should like once again to congratulate him on the sensitivity with which he approached the anxieties put before him in Committee.

Mr. Gordon Wilson (Dundee, East)

I should like to add my voice to the thanks which have been directed to the Minister. I am sure that he is in an unusual position and I trust that he is not over-embarrassed by it.

The hon. and learned Member for Perth and Kinross (Mr. Fairbairn) put his finger on one of the doubts that still exists and which was perhaps behind the somewhat cynical comment of the Law Society of Scotland that it would withhold final judgment until it saw the mysterious regulations. I think that we all accept that this is an improvement on the previous position, especially in relation to criminal legal aid, where there was no such appeal. That has been one of the aggravations that not only the legal profession, but those who have been refused legal aid have had to put up with.

I am concerned about another aspect. My concern is of a practical nature. The Minister has probably adopted this approach to reduce the amount of bureaucracy involved. It is easier not to give an explanation and for an official or group of officals to look again in the review procedure. When one has to frame reasons for a decision from a tribunal conscious thought has to be taken, especially in those proceedings which might end up in a higher court.

It would not necessarily follow, in relation to the refusal of a legal aid application, that a complex statement of reasons would have to be produced. It could almost be reduced to a code. However, it would help legal aid applicants and their advisers if they knew where their argument should be directed if they write in to support an application in the review procedure. Otherwise they are in the dark.

It may well be that the legal Aid Board official or the committee which has looked at the papers has a valid reason for refusing an application according to the information available. It could be that, if given additional information directed to the point at issue, the board or committee might well be satisfied of the usefulness of granting the certificate.

One of the features of the existing system which, in some ways, could be beneficial is the way in which decisions are taken by sheriffs or justices in chambers, I presume, on each application. Solicitors frequently turn up with the applicant, and the judge can direct questions to the applicant about the nature of the defence and so on. Therefore, if there is any doubt as to the reasons why legal aid should be granted or refused it can be made clear. Without the appeal procedure in criminal legal aid cases that might not necessarily provide a solution that would satisfy everybody. However, I think that it would be helpful if the Minister could outline what direction his mind is taking in relation to the system to be put into operation.

There is a practical matter which perhaps lay behind the original decision not to have a review, which is the increase in the volume of business. I have no doubt that a substantial number of appeals will be directed towards the Scottish Legal Aid Board that will require the time of staff or consultants under a fee-paying arrangement in considering them. Under the new centralised system which is in force, how much delay is likely to be encountered in dealing will the review cases? I was not a member of the Committee, but I understand that the Committee addressed itself to legal aid applications and dealing with them in a given time scale so that they would not get in the way of preparation of trails, especially in areas where trails take place fairly swiftly. If there is a review procedure, it will be necessary for the board to receive an answer quickly so that the necessary work in preparing a defence can proceed. I think that the House would find it of substantial interest if the Minister could lighten our darkness.

Mr. Wallace

I join those who have expressed appreciation to the Minister for deciding to introduce amendments that will allow a review procedure in both civil and criminal legal aid. Many of us still have misgivings about the Bill as a whole, but if the amendments are carried it will emerge from the House as a better measure.

The Minister should take on board the valid points made by the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). The person who has his application refused should be told in what way it was defective and did not match what was required for him to be awarded legal aid. I can understand the Minister's reluctance to say too much lest it be thought that he is speaking for the board, setting out what it should do and being unnecessarily interfering. If the Minister expressed a view, I am sure that the board would have regard to it, as it will to those who have said what the board should do in setting up the procedure. If it includes in its procedures the giving of an indication to the applicant why, in a general area, his appeal was unsuccessful, the applicant and his advisers will be able to provide more information. The indication might signify that there was a misunderstanding, which the applicant might be able to clarify.

If there is an internal mechanism and a file, to which papers are attached, the file will be passed on under the review procedure to three of four wise men or women. It is not impossible that the reason why the official of first instance thought that the application should be refused will be set out on a document within the file. The applicant may not know why he has been refused and it would not be impossible for the reason for the refusal to be made known to the appeal procedure as a whole. It would be unfair if it were put into minds of the wise men or women why the decision to refuse the application had been made at first instance, especially if the applicant had not had an opportunity to furnish more information.

Mr. Fairbairn

That would be the ultimate of unfairness. When I considered the alternatives I said to myself, "You might lessen the chances of the appeal board granting the appeal if you told it why the application had been refused in the first place." That is one possibility. That might restrict the way in which the board would consider the appeal. It would be heinous if the board were able to tip the wink to the appeal procedure why the original decision was made and the applicant was not informed. The board would then be able to produce an entirely different reason for refusing the appeal.

Mr. Wallace

I completely share the fears expressed by the hon. and learned Member for Perth and Kinross. I hope that the points that have been made in this debate are considered by the board when it sets up the review procedures so that such infairness as have been mentioned can be excluded and such positive means which might enhance the fairness of the review procedure might be included. In conclusion, I welcome the fact that a review procedure is to be set up.

Mr. John MacKay

Clearly the hon. Member for Orkney and Shetland (Mr. Wallace) was listening to me during the Committee stage when he suggested that I might say that I am not running the board. I do not wish to go into detailed prescriptions as to how the board might set up the procedure.

Mr. Wallace

The Minister has always said that.

Mr. MacKay

I have not said that this evening.

Mr. Wallace

Yes, the Minister has.

Mr. MacKay

Oh dear. Well, the more I say it the more I might be believed on this subject because some people think that the board is to be entirely the creature of my right hon. and learned Friend the Secretary of State for Scotland. I am trying to explain that that will not be the case.

In response to the hon. Member for Glasgow, Garscadden (Mr. Dewar), I can state that the appeal procedure will be in situ when the new system gets under way. The power to appoint to the sub-committee comes in paragraph 12(3) of schedule 1. The hon. Member for Garscadden also asked what role my right hon. and learned Friend might have in ensuring that the board does what we have said that it ought to. There is the possibility under clause 36(2)(a) of making regulations about these matters. Whether we proceed by regulations or not is a matter which will be discussed by the board and my right hon. and learned Friend. There will be discussions between the board and the Scottish Office with regard to the appeal procedure.

Mr. Dewar

I understand that there will be discussions, but I am sure that the Minister's views will be very persuasive to the board. Do I take it that the Minister favours the possibility of regulations being laid in dealing with the review procedure? That would be useful to know because it would tell us a little about the possibility of influencing the form and style of the procedure.

Mr. MacKay

I can understand the hon. Gentleman's point. However, the question whether this will need to be carried out through regulations or by the board setting up the procedures under its powers is a matter upon which I am broadly neutral at present. I can see the force of regulations because they would give the House the opportunity of having its say. However, I hope that the hon. Member for Garscadden can be content with fact that I have listened to the various points that have been made in this short debate and when the board discusses this matter it will also examine the points made by hon. Members who have contributed to the Committee and the Report stages.

My hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) posed a difficult question about the nature of the procedure. He asked whether it should be a review procedure or—if I may describe it in this way—a legal-type appeal in which the reasons for the decision must be given. The present position on civil matters is that in an appeal the committee handling the appeal cannot take new factors into account. I have made it clear that when someone appeals to the board under the new procedure, I envisage that that person would be able to include anything new that he wanted to draw to the review committee's attention. When an application is refused on grounds of the interests of justice, that is exactly what the person will be told, just as at present. It will not be possible for the board to go into great detail as its decision involves a balancing of the various factors.

Nor would it be practicable to name an official, partly because several officials may be involved and especially because the decision will be taken in the name of the board, not in the name of one official.

11.15 pm
Mr. Fairbairn

I am not happy with this at all. The interests of justice are not defined, but the matters to be taken into account are adumbrated in the Bill. It would be ludicrous if a person was to appeal imagining that the ground upon which he had been refused was that his defence was frivolous, when in fact the ground upon which the matter had been refused was one of the others. He must be told, if he is to be allowed to give additional facts, which wing is missing or the ground on which he has failed. For example, it would be ridiculous if, in a French examination, a child thought that he had failed because he did not understand the plays of Moliere when in fact he had failed because he did not know how to decline the verb "aimer" — je t'aime, to l'aime, and so on. He must be given some idea of the ground upon which he can improve.

Mr. MacKay

My hon. and learned Friend's argument holds together only if one considers an appeal-type system. With such a system, the appeal committee would need to know the grounds upon on which the application had been refused. But if we have a review procedure, with the committee considering the case completely anew and not taking into account whether the initial decision was rightly based, it is a different matter. Indeed, we should insert in the system a fairness—a second look—which does not involve the original decider or deciders arguing their case in front of the review committee and, presumably, the applicant arguing his case again. It would be unfair if one side could defend its case in person or on paper while the other side could not do likewise. Although my hon. and learned Friend's point would be valid in an appeal-type system, it would not have so much strength in a review system.

The hon. Member for Orkney and Shetland said that it is conceivable that, when the file reached the review committee, it would contain some scribbled notes which would tell the committee why the person or persons involved had turned down the application. That is a fair point. The board will have to ensure that its people do not make notes on the face of a file which might later go to a review committee.

Mr. John Maxton (Glasgow, Cathcart)

That is ridiculous.

Mr. MacKay

The hon. Gentleman says that that is ridiculous, but he has not been listening to the argument. The hon. Member for Orkney and Shetland made the valid point that if there is to be a review ab initio, the papers should not contain remarks made by the decider showing the committee how he arrived at his conclusion. That would be wrong, so the board must take steps to ensure that its people do not write on the face of files that might come before the review committee.

Mr. Fairbairn

That would be absolutely outrageous, because if the decider was Mr. Grumpy from among my gnomes, he need not give a reason. He need only say, "Never liked the hon. Member for Argyll and Bute (Mr. MacKay); refuse." He would be prevented from giving any reason because someone else might read it. Therefore, he can refuse the application without giving a reason, which would be outrageous. Let us look at the Bill. This would be absurd. In the context of legal aid in clause 24, official No. 1 who is not Grumpy, but an honourable gentleman, might say that in his opinion the offence is such that if proved it is unlikely that the court would impose a sentence which would deprive the accused of his liberty. So he comes to that conclusion. It does not matter if he consults 200 others, but that is the reason why he refuses legal aid. Along comes the review committee, which is not allowed to consider that matter because this guy is not allowed to write down lest it prejudice the review committee, and says that in its opinion, the defence to be advanced by the accused appears to be frivolous. That is not a review. One cannot have one official coming to a conclusion that is not subject to test by those who are reviewing it and who come for a totally different reason to the same decision, which is a refusal. That is not a review. It is not even justice.

Mr. MacKay

I am well aware that I shall not convince my hon. and learned Friend about this matter. I have given it some thought since he raised it in Committee. We spoke about it as well after the end of the Committee stage.

I understand my hon. and learned Friend's point, but those are factors that have to be taken into account. There could be other factors in a particular case that the officials might take into account. It is better that we have a review procedure. A review procedure without the official or officials who made the original decision having any influence on the review committee is a perfectly fair and reasonable way to proceed. I understand that my hon. and learned Friend would like to do it in a more legalistic way, dare I say, as if it were an appeal court, but there are other circumstances, not perhaps in the law, where appeals are taken as reviews by another body, which looks independently and separately from the original body, or decision-makers, at the subject under appeal.

That is the fairest way. I think that it is likely to be the quickest way of dealing with the problem, rather than hearing arguments and allowing them to carry on between the original officers who made the decision and the applicant, or indeed the applicant's lawyer. For example, if the person who made the original decision is a lawyer, and he argues in front of the review committee why his decision should stand, the poor old applicant should have a lawyer defending his corner. Before we know where we are, we shall add great complications to what should be a simple and fair issue of a straightforward review by new and independent people, afresh.

Mr. Wallace

Much of the debate has taken place on the basis of a refusal of criminal legal aid in summary cases, where the interests of justice come into play.

However, one could be considering the refusal of civil legal aid, because in the view of the official who deals with it first, there is no probabilis causa litigandi. That might involve important matters of legal consideration. I recall one case in which I was involved, about the granting of legal aid for an appeal to the House of Lords. It may have been legalistic, but a legal point was there to be argued. It was thought by some that there was probabilis causa. In such a case there is some advantage of knowing exactly what the barrier is to the granting of legal aid.

Mr. MacKay

I understand that point, but equally I must point out that the composition of the review committee will be heavily weighted in favour of lawyers, dare I say it, at the risk of being thought to be setting up a body composed of lawyers. The committee will be largely composed of lawyers, a bit like the House at this stage of the evening. If the hon. Gentleman is saying that, in the case of civil legal aid, there may be considerable legal matters to be considered by the review body, I should have thought that the type of review body that I envisage would be well qualified to consider the matters that will be brought to its attention by the applicant.

I know that I have not convinced my hon. and learned Friend the Member for Perth and Kinross, but I hope that the fact that I have conceded the argument about having a review or appeal in civil and criminal cases will find merit in the House and that the House in general will agree that we are served better with a review procedure than with the type of appeal procedure which my hon. and learned Friend has argued in favour of fairly persuasively and often.

Amendment agreed to.

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