§ Mr. James Wallace (Orkney and Shetland)I beg to move amendment No. 1, on page 3, line 14, after `functions', insert under section 1(2)(b) of this Act'.
§ Mr. SpeakerWith this it will be convenient to take Government amendment No. 2.
§ Mr. WallaceClause 3(4) was well discussed in Committee. That discussion revolved around two questions — did the clause as it stood mean anything, and, if so, did it have a sinister meaning? Those of us who fear that it may have sinister possibilities were frightened that because of the way in which it was drafted it could give the Secretary of State for Scotland virtual carte blanche when telling the board what to do. That was a particular fear, having regard to the debate about the board's composition and its being a creature of the Secretary of State in terms of appointments. The Bill also gives wide powers to the Secretary of State to remove people from the board.
There was a fear that in the guidance given to the board by the Secretary of State under this subsection, it could affect a certain class of applications and in some way be restrictive of the board's ability to grant legal aid.
During the debate in Committee, the Minister sought to reassure us that this subsection had no insidious purpose, and said that it was designed purely to give the Secretary of State the power to issue guidance on the way in which the board conducted the administration of its affairs. Hence my amendment. The House will note that the general functions of the board are set out in clause 1(2), which are:
Taking the Minister at his word, the purpose of the guidance in terms of the subsection is purely administrative. The purpose of my amendment is to restrict that guidance to the functions of the board which fall under clause 1 2)(b), namely that of administration. It does that simply, and excludes any possibility that the guidance could be used by the Secretary of State to interfere with the granting of legal aid in particular cases.
- "(a) of securing that legal aid and advice and assistance are available in accordance with this Act; and
- (b) of administering the Fund."
The amendment in the name of the Secretary of State probably achieves the same result, and I concede that, but my first question — whether it means anything — still stands. It is said to be the issuing of guidance to which the board shall have regard, but in Committee the Minister was anxious to stress that this was in no way a directive from the Secretary of State. The word "regard" means that the board is in no way obliged to follow that which emanates from the Secretary of State. I wonder whether 774 the clause is necessary. Surely the Secretary of State does not need statutory power to send messages to the board. As I said in Committee, it is unlikely that at a board meeting a member would move that the board passed over a letter from the Secretary of State and ignore what he has to say. Obviously, the board, by its nature, must have regard to what the Secretary of State says to it.
The question whether this provision is necessary remains. The political reality is that it must stand. The Government have made a concession and that is welcome. I would, perhaps, suggest that my amendment is neater, but I would not go to the stake about it.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. John MacKay)As the hon. Member for Orkney and Shetland (Mr. Wallace) said, we debated this matter in Committee at some length. Amendment No. 2 in the name of my right hon. and learned Friend the Secretary of State fulfils the undertaking that I gave in Committee to reconsider the wording of the guidance power in subsection 3(4) in order to make it even clearer that while the Secretary of State can give guidance to the board on administrative and financial matters, he cannot give guidance affecting the manner in which the board deals with applications. The new subsection (4A) does two things. First, it says in terms that any guidance given by the Secretary of State cannot affect the consideration or disposal of applications in general, as well as individual applications for legal aid or advice and assistance. Secondly, it says that guidance cannot affect consideration or disposal of supplementary or incidental applications to the board. This would prevent the Secretary of State giving guidance on such matters as the circumstances in which the board should agree to the employment of counsel.
I gave careful consideration to the possibility of amending clause 3(4) to restrict the guidance power to matters covered by clause 1(2)(b), as suggested by amendment No. 1. However, clause 1(2)(b) refers in general terms to the function "of administering the Fund". This could be interpreted widely or narrowly, and if it was interpreted widely, could be taken to include many of the matters which hon. Gentlemen are anxious to exclude. Equally, there would be aspects of the function under clause 1(2)(a), of securing that legal aid is available, in relation to which guidance would be perfectly appropriate and unobjectionable. I think, for example, of guidance as to the manner in which the board publicised the legal aid arrangements and as to the situation of its offices. Both these would be functions under 1(2)(a) rather than 1(2)(b).
Therefore, I prefer the rather more precise provisions in new subsection (4A), and I, therefore, commend amendment No. 2 rather than amendnent No. 1 to the House.
§ Mr. Donald Dewar (Glasgow, Garscadden)I am never clear about the rules on declarations of interest, but perhaps I should say that I am a partner in a Glasgow solicitors firm and a member of the Law Society of Scotland. That may be thought to give me a certain point of view on the proceedings before the House. I regret, as I am sure many hon. Members do, that we are starting an interesting, significant debate at 10.30 pm. Protests were made about that earlier, but, unfortunately, in vain. It means that we shall debate for some time at a rather 775 uncivilised hour of the day, and I regret that. I promise that I have no intention of making up for my absence from the Committee by reliving all the arguments in the amendments. Although I shall not artificially prolong our proceedings, I am sure many hon. Members will support me when I say that we shall not artificially curtail the debate. I hope that there will still be an opportunity for getting further concessions, or, at least, further assurances, from the Minister.
The point was well made by the hon. Member for Orkney and Shetland (Mr. Wallace) that some of us do not like clause 3. The Law Society made it clear that the Government's amendment
goes some way towards a response to the criticisms in respect of the clause.That disguises the fact that the Law Society and others have doubts about whether we need such a form of words in the Bill. I cannot help quoting the somewhat magisterial advice of the Law Society. It said:The Board is required to have 'regard' to 'guidance'. 'Guidance' is very different from 'direction', and 'regard' is very different from 'accept'. The Law Society cannot therefore comprehend the significance of this clause. The purpose is shrouded in mystery.I have a pleasant picture of the Law Society as a corporate body failing to comprehend, but that is for another time and place.It is clear that the Minister's amendment is meant to be helpful, and while he does not solve the problems, conscious of the fact that the more important debates will come later on the agenda, I am prepared to accept his good intentions. Some of us were worried that there would be a possibility of directions being given, not about individual applications, but about classes of applications. The original and generally held fear was that there might have been a general sign from the Government that individuals who were single and living at home with his parents and charged, for example, with a breach of the peace, should be charged for legal aid. That was perhaps an extreme of the argument and we were anxious to see it ruled out. I accept that the amendment goes a long way towards doing that, making it clear that even a generic instruction pertaining to who is eligible for legal aid, or the criteria on which it should be granted, will not be part of the guidance that will be offered by the Secretary of State under this clause.
§ Mr. Nicholas Fairbairn (Perth and Kinross)Will the hon. Gentleman accept that the mere fact that the Government have given in to our anxieties is a sign that they were justified, and the fact that one has to say in a statute that one will not be doing anything naughty shows that there are powers to do things naughty?
§ Mr. DewarI did not want to rub the Minister's nose in it, so perhaps that comes best from a Conservative Member. I am grateful to the hon. and learned Gentleman for his help.
To some extent, the fears have been allayed. I gather that largely this will be advice about administration, accountancy and related matters, and I can see the Minister helpfully nodding. On that basis, and in the hope that he will continue to nod on more substantial matters later. I welcome the Government's amendment.
I was interested in the dialogue between the hon. Member for Orkney and Shetland, who saw his efforts, as "neat", and the Minister, who saw his efforts, somewhat 776 ambitiously, as "precise". I do not want to adjudicate, because I know where the big battalions lie. I shall be happy to accept the Minister's advice and his amendment.
Amendment negatived. Amendment made: No 2, in page 3, line 15, leave out from 'State' to the end of line 17 and insert—
'(4A) Guidance under subsection (4) above shall not relate to the consideration or disposal (whether in general or in respect of individual applications) of—
- (a) applications for legal aid or advice and assistance;
- (b) supplementary or incidental applications or requests to the Board in connection with any case where legal aid or advice and assistance has been made available.'.—[Mr. John MacKay.]