LEGAL AID IN SUMMARY PROCEEDINGS

HC Deb 14 July 1986 vol 101 cc790-823

Mr. John MacKay

I beg to move amendment No. 11, in page 16, line 28, after 'Act', insert ',to section 21(3) of this Act'. This amendment is consequential on the insertion in Committee of clause 21(3).

Amendment agreed to.

Mr. Wallace

I beg to move amendment No. 14, in page 17, line 4, after 'offence', insert 'taking into account the surrounding circumstances (including any previous convictions or any other findings of guilt) against the accused'.

Mr. Deputy Speaker

With this it will be convenient to take the following amendments: No. 15, in page 17, line 6, at end insert 'or impair his prospects of future employment'. No. 16, in page 17, line 6, at end insert 'or impairment of his employment prospects'. Government No. 28.

No. 29, in page 17, line 18, after 'but', insert 'except insofar as provided by paragraph (a) of this subsection'. No. 30, in page 17, line 19, at end insert 'except when considering an application under subsection 3 (a) above'.

Mr. Wallace

These are important amendments. They relate to the factors that we took into account in determining whether it was in the interests of justice that criminal legal aid should be made available in any case. Right hon. and hon. Members will recall that when the consultation paper that was the forerunner to the Bill was produced there was an indication in it that one of the factors that might be taken into account in determining the interests of justice was whether the accused person had a criminal record. That met with widespread criticism. It was felt by many, myself included, that it struck at the heart of our system, which is that a person should be regarded as innocent until proved guilty. On Second Reading the Minister properly pointed out that it would not be the Government's intention to include such a factor in those that they would put forward as relevant when assessing the interests of justice. The Government did that when they eventually tabled their amendment setting the factors, and that appears in lines 18 and 19 of the clause.

It became clear during the debate in Committee that any previous conviction or other findings of guilt could be relevant in considering whether the court would be likely to impose a sentence that would deprive a person of his liberty or lead to the loss of a person's livelihood. Clearly a first offence would not necessarily lead to a prison sentence, but if it were a person's fourth or fifth offence, that could lead to a prison sentence. That could be highly relevant in determining whether a person was likely to lose his liberty or livelihood. For that purpose, it was thought that a person's previous convictions should be taken into account.

Linked with amendment No. 14 is amendment No. 29, which would qualify lines 18 and 19 to the extent that the passage would read: except insofar as provided by paragraph (a) of this subsection the Board shall not take account of any previous convictions —that is, for the purposes of determining whether it is likely that the court will impose a prison sentence or a substantial line leading to the loss of a person's livelihood." Unfortunately, the Government's response to the criticisms that were made in Committee about Government amendment No. 28 has been to delete lines 18 and 19 together. That is a regrettable deletion, after the Minister had given us an assurance on Second Reading that previous convictions would not be taken into account by the board in determining whether it was in the interests of justice that criminal legal aid be made available.

The amendments proposed by my hon. Friend the Member for Roxburgh and Berwickshire (Mr. Kirkwood) and myself, or that tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar), which has the same effect, meet the point made in Committee. They allow the board to have regard to previous convictions when considering subsection (a), but will not allow it to do so generally when assessing whether it is in the interests of justice that criminal legal aid should be granted. These amendments encapsulated the mood of the Committee although they criticised the provision, it was never the intention of members that the requirement not to have regard to previous convictions should be entirely deleted. I ask the Minister seriously to consider these points.

The other amendments add that apart from a sentence leading to the loss of livelihood, it might also impair a person's employment prospects. That concern was aired in Committee. If a person is fortunate enough to be in employment, a court sentence might affect his livelihood. Equally, those who are unemployed might find that their employment prospects are impaired, perhaps irreparably, or damaged by the imposition of a prison sentence or even a substantial fine. The Committee felt that it was just as important to protect their rights as the rights of those who are fortunate enough to have jobs.

11.45 pm

I hope that the Minister will look sympathetically at the amendment. It is not intended to be a wrecking amendment. It takes account of the interests of those who are unemployed and who might find that their prospects of obtaining employment are seriously harmed if a sentence of imprisonment is imposed upon them after having had no legal representation at their trial.

Mr. Dewar

I agree with the hon. Member for Orkney and Shetland (Mr. Wallace) that this is an important group of amendments that raise a number of interesting issues. They plunge us straight into an argument about a clause that tries to define the interests of justice. The amendments go to the heart of many of the problems relating to the Bill. I enjoy the inestimable advantage of not having been involved in the Committee debates. I do not know whether that means that I come to a consideration of the Bill with an uncluttered mind, but that does not prevent me from approaching the argument with some fairly firm opinions.

One of the problems about defining the interests of justice — a controversial concept that many hon. Members thought that it would be better not to pursue —is that the Minister finds that having listed a number of factors that have to be taken into account—and it is by no means an exhaustive list—he now has to invite those hon. Members who are interested in the subject to consider what should be added to them. By doing so, he lays himself open to attempts to improve upon the draftsmanship.

I support what has just been said by the hon. Member for Orkney and Shetland about amendments Nos. 15 and 16. Both of them strike at exactly the same point, although the wording is slightly different. In both cases the wording is perfectly satisfactory, although obviously I prefer my own: to add at the end of the subsection the words or impair his prospects of future employment. However, I should not take umbrage if the Minister preferred amendment No. 16. Both amendments are self-explanatory, and it is not for me to labour the point.

The Bill fairly lays down that one of the points to be included in this core collection of factors is the likelihood of conviction leading to the loss of livelihood. None of us would quarrel with that conclusion. The trouble is that in the brave new world in which we live — certainly the world that has evolved during the last six or seven years —the number of people in Scotland for whom the loss of livelihood is an academic concept has increased to shameful proportions.

The amendments say that there should be another consideration—the impairment of the applicant's future employment prospects. That seems to be particularly important. I had hoped that atht concept would commend itself to the Minister. He may say that if there is such a special factor, the board can take it into account in the case of that application. But there is some merit in covering the position of the unemployed. For example, a man might have interviews pending. It would be extremely difficult to go to them with any hope if he had a recent conviction against his name. Obviously, legal representation might be enormously important in putting a proper defence.

Anyone applying for a job with a conviction is likely to be ruled out. It would be an extremely good way of winnowing through the enormous list of applicants for any job vacancy in Scotland. That applicant's chances might be devasted until he is rescued by the terms of the Rehabilitation of Offenders Act, and his conviction is spent. I need not urge on the Minister the significance of a conviction for someone searching for a job. If he is guilty and has been convicted, that is the end of the matter, but it would be a tragedy if he had not been represented and if a genuine defence had not been properly stated, because he might then find himself ruled out of the job market.

The amendments are straightforward and make the case. I do not see why the Minister should not show us his new-found virtue. As yet, I am not quiet convinced that he is sensitive. That is not an adjective that would occur to me when contemplating his activities. Several epithets come to mind, but I shall not spoil the atmosphere by dwelling on them. But the Secretary of State, with his Shogun and Rambo images, which his press officer is so assiduously cultivating, is probably aware that the Minister is capable of putting on verbal bovver boots with the rest, so "sensitive" does seem a little incongruous. But I should be happy if he lived up to that reputation, and I hope that the Minister will look kindly upon these amendments.

I warned the Committee that the later groups of amendments were the most important, and I now wish to mention the significant matters represented by them. In Committee, there was an interesting debate about lines 18 and 19, which the Government propose to take out with amendment No. 28. They say that the Board shall not take account of any previous convictions or other findings of guilt against the accused. I accept that there was a genuine problem, and the Minister and the Committee had to wrestle with an apparent clash between the survival of those lines, and the very proper terms of subsection 3(a), where the board would have to take into account the possibility of loss of liberty. In assessing loss of liberty, the client's previous record might well prove important.

There was an argument about that incompatibility, and a good deal of dispute about the best way of proceeding. Perhaps I should give my hostage to fortune right away, in that during the course of that debate, my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) impetuously he is, on occasion, impetuous—suggested tersely to the Minister that the answer was to, "Take it out." That appears in column 292 of the Committee's proceedings, and excise was the message. The Minister might well argue that he has done just that, and might question what we are complaining about. But I do not need to remind him of his reaction to that concise suggestion. He said: No, I will not take it out, but I shall think about how I might get around it". — [Official Report, First Scottish Standing Committee, 1 July 1986; c. 292.] I offer those examples of the Minister's prose strictly in the context in which they were uttered, which was on this very point.

Therefore, we had a firm commitment from the Minister that he did not want to take out lines 18 and 19 and the reference to the fact that no account was to be taken of previous convictions. He specifically committed himself to finding a way round the difficulty.

I am sorry that he did not keep to that intention. His thoughts on that occasion were the best thoughts and I regret that amendment No. 28 is now on the Order Paper. It is of some importance that the general statement of principle about disregarding previous convictions should remain as part of the Bill and that some other way should be found of overcoming any ambiguity or inconsistency between that and the terms of subsection 3(a).

I say that because one of the foundation arguments that was used in Committee was that the Royal Commission said: Accordingly, the grant of legal aid should not depend on the accused person's criminal record. That was common ground among all parties and clearly it was important to put that on the record, particularly —I say this with no malice—because there has been a suggestion in the original consultative paper, which I think was something of an Aunt Sally, put up to be shot down, that the number of occasions on which an accused had applied for legal aid in the past might be a consideration in whether his most recent application should be granted.

We had that background of doubt and against it it is important that the general point about previous convictions should stand in the Bill. It is on that basis that I argue strongly against amendment No. 28 in the Minister's name. I notice that the Law Society in its briefing for the debate described that amendment as hastily conceived, wrongly inserted and ill serves the spirit of the clause within the Bill". I endorse that view.

I hope that I have reasonably clearly set out the arguments. I am suggesting that we should go back to the Minister mark 1— the Minister who was apparently in charge in Committee until someone got at him at a later stage. We invite him to consider a version of amendment No. 29, or amendment No. 30 in my name, on the basis that they carry out the spirit of his commitment not to excise lines 18 and 19 but to find a way round the difficulties to which I have referred.

The proposition that we should leave in but the Board shall not take account of any previous convictions or any other findings of guilt against the accused. and add to that the words except when considering an application under sub-section 3 (a) above. is a simple straightforward and effective way of meeting the difficulty and still preserving the general point about not taking account of previous convictions, which I think commended itself to both sides of the Committee.

I do not think that there is a matter of principle between myself and the Minister. I hope that there is not. It is a matter of how we achieve a neat and workable clause. The best way, without sacrificing something of importance, which the Minister's formula does, is to retain the reference and add the important exception in favour of considerations of applications under subsection 3(a), which is done by my amendment.

This is an important matter. I do not argue it to hold the Committee for a few minutes late at night. I feel strongly about it. I know that I am supported in that feeling by many hon. Members and people with an interest outside and I am comforted in my argument by the Minister's observations in Committee which I believe were good.

Mr. Fairbairn

I sympathise with the hon. Gentleman's view and I think that the Government's amendment will achieve the reverse of its intention. However, how would the official ever come to a conclusion about whether a prison sentence was likely to result from a conviction unless he considered the person's previous record? If he said, "This offence only involves throwing a stone at a pigeon," he would have to add, "But let us see what this person has been doing previously." It seems to me that in almost all cases a person's record would have to be considered.

12 midnight

Mr. Dewar

I understand what the hon. and learned Gentleman is saying and I do not think that there is anything between us. It would be possible to argue that the retention of the general point about not taking account of previous convictions is struck at by the implication in subsection (3)(a) that in the consideration of the likelihood of a prison sentence a person's previous record will have to be weighed in the balance.

The important distinction is that my amendment would make it clear that an exception to the general rule about not taking previous convictions into account when deciding whether legal aid should be granted would be a narrow exception that was entirely related to the consideration of the likely loss of liberty and that, in general terms, when applying other criteria or when taking an overall view of the interests of justice, the official, the solicitor, the committee or whoever, would have to put that information from their minds.

It may be said that that distinction is artificial and that once that fact was before the committee its members could not put it from their minds, but we often ask members of juries to put facts from their minds and we do not think that that strikes at the nature of the system. There are many legal occasions when men of legal training and skill have to put facts to one side when considering a decision. I hope that it will not be beyond the discipline of the board to go through the same process.

I should like to preserve the general reference to the importance of disregarding previous convictions and make them relevant only in the narrowly defined exceptions set out in my amendments and those of Liberal Members. I certainly prefer that to the Minister's solution, which is the easy way out of merely excising the reference to the general principle.

I urge the Minister to look at the matter sympathetically. It is an issue of substance and I hope that he will give a positive reply.

Mr. John MacKay

I underline what the hon. Member for Glasgow, Garscadden (Mr. Dewar) said at the beginning of his speech. The list that we are considering is not exhaustive and cannot be a definition. We are not defining the interests of justice, but are setting out factors to be taken into account. The words "shall include" are clearly on the face of the Bill.

When we discussed the concept in Committee on 1 July I gave an undertaking to look again at my amendments to clause 24 setting out those factors, and Government amendment No. 28 responds to the disquiet expressed in Committee about the interaction between the interests of justice factor in subsection (3)(a), which refers to the likelihood of an accused person losing his liberty or livelihood on conviction, and the tailpiece to subsection (3) which says that previous convictions or findings of guilt are not to be taken into account.

My amendment deletes the requirement that the board shall not take account of an applicant's previous conviction or convictions or any other finding of guilt against him. The tailpiece was in line with the recommendations in paragraph 8.55 of the report of the Royal Commission on Legal Services in Scotland and also took account of strongly expressed response to my Department's consultation paper that previous convictions should not be taken into consideration in the awarding of criminal legal aid. I listened carefully to the argument — and I understand it — that those with previous convictions are more likely to go to gaol and that such accused should be allowed to refer to their previous convictions in support of an application for criminal legal aid, but only if they wish to mention them. The amendment leaves the options open by deleting the tailpiece. An accused will, no doubt, be advised by his lawyer whether it is likely to be in his interests to draw the board's attention to the existence of previous convictions. It remains clear that the mere fact of a previous conviction is not put forward as a factor for the board's consideration.

Mr. Dewar

This is interesting, but alarming. The Minister seems to be saying that the applicant and his solicitor must weigh up the pros and cons of mentioning previous convictions. They can mention them and so strengthen the possibility of getting legal aid and because liberty is at risk, or not mention them on the ground that it would prejudice the legal aid board's view. I do not like that implication.

If that is the Minister's view it is important that it is in the Bill. I do not want that unfortunate Hobson's choice to be presented to the defence. The White Paper made us fear that previous convictions might become a factor in whether an accused is allowed legal aid. My point reinforces strongly the good sense of approaching the problem in the way that Opposition Members suggest.

Mr. MacKay

I see the hon. Gentleman's point, just as I saw the point of the hon. Member for Glasgow, Cathcart (Mr. Maxton) in Committee. Perhaps I was in error in deciding to accede to the hon. Gentleman's request. I resisted the argument for a long time.

I shall try to explain. The lawyer must decide whether previous convictions are relevant to the offence before the court. Previous convictions might be quite different. A motoring offence might be being considered and the previous convictions might be under the freshwater fisheries legislation. The lawyer might decide that previous convictions are irrelevant and do not influence the court when imposing a sentence. But that balance might change when the court takes previous convictions into account. The lawyer makes the judgment.

Mr. Fairbairn

The applicant might not be advised by a lawyer and the lawyer will be in a dilemma if the applicant has a previous conviction for culpable homicide and is charged with careless driving or breach of the peace. Will he mention the previous conviction or keep it quiet? The essential principle is that legal aid should not be refused on the basis of a chap being a criminal before and therefore likely to be guilty on another occasion. That has nothing to do with whether he is likely to be imprisoned for a contravention of the litter legislation, or of whatever other minor offence he might be accused. I beg my hon. Friend the Minister to reconsider the issue that the board shall not take account of any previous convictions or any other findings of guilt against the accused in its determination of whether he should get legal aid. That is the point. He must be regarded as innocent when the final decision is made.

Mr. MacKay

I see the argument, but I wish that hon. Members had not put an argument the other way round in Committee.

Mr. Dewar

They did not.

Mr. MacKay

Oh yes they did. I was there. The hon. Member for Glasgow, Garscadden (Mr. Dewar) was not. I can tell him.

Clause 24(3), as modified by amendment No. 28, achieves the purpose of amendment No. 14 and, as I understand it, what hon. Members wish to achieve. Under subsection 3(a) as it stands, the board, in considering the likelihood of a custodial sentence, will be both entitled and obliged to take into account, apart from previous convictions, all the circumstances of the offence and of the accused himself—anything which a court, if he is found guilty, will take into consideration in sentencing him. We all agree on that. Amendment No. 28 further ensures that the board is able to take the accused's previous record into account, as was pointed out in Committee, because previous convictions may be very relevant to the likelihood of a custodial sentence on this occasion. Nobody disagrees with that as I understand it.

Mr. Wallace

I do not think that there is much that separates us on this issue. My amendment, and the amendment in the name of the hon. Member for Glasgow, Garscadden (Mr. Dewar) makes previous convictions relevant, solely for the purposes of subsection 3(a). In other words it acts in a positive way to ensure that a person gets legal aid. By retaining lines 18 and 19 at the same time we wish to ensure that the knowledge of previous convictions cannot act in a negative way. By accepting either my amendment or that of the hon. Member for Garscadden that purpose is achieved. It allows previous convictions to be taken into account for the purposes of considering whether a sentence is likely to be one of imprisonment, in other words to enhance a person's chances of getting legal aid, but makes it clear that the previous convictions are to have no other sway on the board and are certainly not to have any negative influence in determining whether legal aid should be granted.

Mr. MacKay

The fact that my amendment takes out the tailpiece does not mean that the board shall take into account previous convictions in the way that hon. Members seem to fear. The fears being expressed that the board might refuse legal aid because a person has previous convictions are thoroughly misplaced. I have not said that. In Committee I was persuaded that there was a danger in the way in which the Bill was worded. I am satisfied that Government amendment No. 28 meets the concerns that were expressed on that occasion and does not take us into the concerns that are being expressed tonight. The only circumstances in which the board has to take account of previous convictions are the ones I have outlined.

Mr. Dewar

rose—

Mr. MacKay

I made the point earlier that there is no obligation on anyone to inform the board of his or her previous convictions. That was a fear expressed on a previous occasion in response to a discussion document earlier. The board will not have a record of anybody's previous convictions unless the person involved feels that it is relevant to 3(a) and to the likelihood of being sent to prison if found guilty of the offence.

12.15 am

Mr. Dewar

To some extent, the Minister has made difficulties for himself. If he is right in saying that there is no reason for fearing that previous convictions will colour the board's approach to the general proposition that legal aid should be granted in a particular case, why did he raise the issue of the difficult choice of whether to let the board know about previous convictions? That fear was specifically in the Minister's mind when he suggested that someone might be well advised not to rely on subsection (3)(a) and instead to hide the fact that there are previous convictions. The Minister cannot get out of that difficulty. This underlines that he was right in Committee to say that it was necessary to find another way of reconciling the general prohibition on considering previous convictions and the specific circumstances outlined in subsection (3)(a). The Minister has not told us why he has changed his mind. He has not explained to me why my fears are spurious given the arguments that he has been advancing.

Mr. MacKay

I have changed my mind on listening to the discussion that took place in Committee and thinking about it afterwards. I took on board the simple argument that in some circumstances the fact that an accused has a previous conviction may have a major bearing on the danger of him being sent to prison if he is found guilty. That seems perfectly clear. I decided that the easiest way to respond to that justifiable fear was to remove lines 18 and 19. It appears that hon. Members are frightened that that will lead to the other extreme, and I have made it as clear as I can that it does not. That could be envisaged only if an applicant were obliged to tell the board what his previous convictions were. The applicant will tell the board about his previous convictions only if he and his lawyer—I accept that there will not always be a lawyer — think that that is something that the board should take into account when it is judging whether he may be sent to prison if he is found guilty.

Mr. Maxton

The Minister seems to be being especially obtuse on this issue. We all agree that the words in question in subsection (3)(a) should not be taken into account. Paragraph (e) reads: the defence to be advanced by the accused does not appear to be frivolous. In that circumstance one can think of cases where it would be wrong for the board to take account of previous convictions. The accused might have said on three occasions in the past, "No, it wasn't me. I have an alibi", and the court has said, "You have not. We do not agree with you." If the accused claims for the fourth time that he has an alibi, the board might say, "He is saying it again and it is a frivolous defence." Of course, the fourth time might be the time when there is an alibi. The Minister is right to take account of subsection (3)(a), which we are asking him to do, but what about the other four paragraphs? That is why we think that the amendment should be limited to paragraph (a).

Mr. MacKay

I have made it as clear as I can why it is my view and that of my advisers that the danger which is being exposed by hon. Members does not exist and that the concession that I am making to the request made to me in Committee meets the objective put to me by the hon. Member for Glasgow, Cathcart (Mr. Maxton) and others. I understood the objective and took it on board, and I have met it without exposing the applicant to the danger which are being rehearsed.

Mr. Fairbairn

With great respect to my hon. Friend the Minister, I caution him on this matter. I do not think that this was a discussion in which I was a protagonist—

Mr. Maxton

Are you sure?

Mr. Fairbairn

I am not sure about that and I am willing to be corrected. It is important that we establish the principle and leave in the words the Board shall not take account of any previous convictions or other findings of guilt against the accused. It is not a question of whether one's lawyer cares to advance the matter. These matters are frequently notorious. It was part of the argument in the Meehan case that the defendant was guilty because he had given the explanation of picking up people in the north of Scotland when he broke into a petrol station. He was convicted of that and because he gave the same explanation again — which was notorious and would undoubtedly be known to the legal board—he must be guilty. That explanation was even drawn into the Hunter report.

I hope that my hon. Friend the Minister will understand that it is absolutely essential that that should be excluded as a concept in principle. It is matter of argument whether that should he dealt with in 3(a). I would be surprised if the board relied on the information that it received to decide on the matter, rather than deciding on the basis of the information already known to it.

This is important. The lines in the Bill to which the amendment relate, simply state that the presumption of innocence should be presumed. The Government would not be getting into trouble if they accepted—or at any rate agreed to consider—the points made by the hon. Member for Orkney and Shetland (Mr. Wallace) and the hon. Member for Glasgow, Garscadden (Mr. Dewar) and reconsidered the matter. The Minister is beating against an important principle, namely that the lines contain the eventual concept that the board must presume the innocence of the accused whatever his record.

Mr. MacKay

I appreciate the point that my hon. and learned Friend has made. However, if amendments Nos. 14 and 29 were made, the board would have to take into account previous convictions when considering factor of paragraph (a). In turn, that would imply that the accused would have to provide such details. I do not believe that hon. Members want that. We are agreed that if the accused believes these facts to be relevant to the discussion under (3)(a) as to whether he may or may not be sent to prison if found guilty, he ought to be able to tell the board that he has these previous convictions so that the board can make a proper assessment. If my hon. and learned Friend the Member for Perth and Kinross had previous convictions and I did not, in my case the board might decide that I would not be sent to prison for an offence even if I was found guilty. It would be different for my hon. and learned Friend who may have a few previous convictions for the same kind of offences. He may be in danger. That was the argument that was put to me. I accepted that, I understand that and I have presented the amendments today. However, I do not believe that the fears expressed by hon. Members about the proposition in the consultation paper that previous convictions should be taken into account are justified other than in the simple case we have already referred to, in that, it increases the chance of an applicant going to prison. The amendment does not go beyond the particular point upon which we are all agreed.

Mr. Wallace

Why were these lines inserted in the first place?

Mr. MacKay

They were inserted simply because the reaction to the proposal in the consultation paper was such that it was felt that they ought to be there.

Mr. Wallace

They are very limited.

Mr. MacKay

I do not think that they are limited, and (3)(a) is one of the principal factors. Whether or not someone will be sent to prison if he or she is found guilty is an important factor which the board must be able to consider properly. I have accepted the argument that the board can do that only if someone with previous convictions can give that information to the board and it can take that into account in a positive way. That is the purpose of the amendment.

I understand that hon. Members are frightened that the amendment does more than that, but I assure them that, after much consideration and discussion with my advisers, I am satisfied that my amendment does what I believe it does, not what other hon. Members fear that it does, in addition to what we all want it to do.

In amendments Nos. 15 and 16, I understand the fear that the present formulation might discriminate against those not currently in employment. However, the amendments are too nebulous. Conviction for all but the most trivial offences could be represented as impairing a person's employment prospects at some time in the future. Therefore, the test could be interpreted so as to cover almost any accused. It is not justifiable to make criminal legal aid available for offences which are minor in themselves and in their effect on the accused.

However, if it was interpreted more narrowly, there would still be the problem of assessing what employment prospects were relevant. The board will be perfectly entitled, and I should expect it, to take into account the likely effect on the prospects of employment where, in special circumstances, it was of special relevance. As the hon. Member for Garscadden said, we are not defining the interests of justice, we are simply listing some factors. It is not an exhaustive list. If, in the opinion of the hoard, considering the applicant and the case, other factors are relevant, the board will take them into account.

It is not desirable to have a specific provision, because it cannot be written other than very vaguely.

Mr. Wallace

I have listened to the Minister's reply and to the exchanges which have taken place, and I remain unconvinced. On employment factors, we all know of cases where the plea in mitigation is that the accused has a reasonable prospect of gaining employment, which could be knocked on the head if he is imprisoned. Since we are excluding that, the signal might go out to the board—despite what the Minister says here—that that was not a proper factor for it to consider. It is regrettable that he has not accepted the amendment.

What is more fundamental is the Minister's intransigence with regard to the amendments in my name and in the name of the hon. Member for Glasgow, Garscadden (Mr. Dewer). None of them undermines the principle which we have been trying to uphold. Indeed, they show concisely what was in the mind of the Committee. The Minister accepted that those two lines were inserted in the Bill because widespread anxiety had been expressed. By removing them from the Bill, he gives rise to that anxiety once again. I invite hon. Members on both sides of the House to join us in the Lobby in support of the amendment.

Question put, That the amendment be made:—

The House divided: Ayes 13, Noes 40.

Division No. 256]	[12.28 am
AYES
Beith, A. J.	Maxton, John
Bermingham, Gerald	Raynsford, Nick
Clelland, David Gordon	Steel, Rt Hon David
Dewar, Donald	Wilson, Gordon
Evans, John (St. Helens N)
Foulkes, George	Tellers for the Ayes:
Hughes, Simon (Southwark)	Mr. James Wallace and
Kennedy, Charles	Mr. Archy Kirkwood.
McKay, Allen (Penistone)

NOES
Ancram, Michael	Needham, Richard
Blackburn, John	Neubert, Michael
Boscawen, Hon Robert	Nicholls, Patrick
Cope, John	Norris, Steven
Douglas-Hamilton, Lord J.	Page, Richard (Herts SW)
Durant, Tony	Pollock, Alexander
Fairbairn, Nicholas	Rathbone, Tim
Fraser, Peter (Angus East)	Rhys Williams, Sir Brandon
Garel-Jones, Tristan	Rifkind, Rt Hon Malcolm
Gregory, Conal	Rowe, Andrew
Hamilton, Hon A. (Epsom)	Sayeed, Jonathan
Hargreaves, Kenneth	Spencer, Derek
Hunt, David (Wirral W)	Stern, Michael
Jones, Gwilym (Cardiff N)	Stewart, Allan (Eastwood)
Lennox-Boyd, Hon Mark	Thompson, Donald (Calder V)
Lloyd, Peter (Fareham)	Thurnham, Peter
MacGregor, Rt Hon John	Wolfson, Mark
MacKay, John (Argyll & Bute)	Wood, Timothy
Malone, Gerald
Mather, Carol	Tellers for the Noes:
Maxwell-Hyslop, Robin	Mr. Tim Sainsbury and
Merchant, Piers	Mr. Francis Maude.

Question accordingly negatived.

Mr. Wallace

I beg to move amendment No. 17, in page 17, line 8, leave out 'substantial' and insert 'non-frivolous'.

Mr. Deputy Speaker (Mr. Ernest Armstrong)

With this, it may be convenient to take the following amendments: No. 18, in page 17, line 8, leave out 'substantial' and insert `positive'.

No. 19, in page 17, line 8, after 'of evidence', insert 'or procedure'.

No. 20, in page 17, line 8, at end insert 'technical, confused'.

No. 24, page 17, line 17, at end insert— (f) the facts and circumstances surrounding the charge or charges are complex or confused.'.

Mr. Wallace

These are somewhat technical but nevertheless important amendments concerning the interests of justice. Many of us would rather that there was no requirement that the interests of justice should be satisfied before the granting of criminal legal aid in summary proceedings. We accept, however, that such factors are part of the law and hope that we can make amendments to improve them. Amendment No. 17 concerns clause 24(3)(b) which provides: the determination of the case may involve consideration of a substantial question of law, or of evidence of a complex or difficult nature". We are proposing that the word "substantial" should be deleted and the word "non-frivolous" inserted. Frivolous is a word that is not entirely common in our statutes—certainly not in Scotland—but the Government have set the precedent in subsection (3)(e).

This is important because the Government are proposing a relatively high test— a substantial question of law"— before the applicant is entitled to have legal representation. If any question of law is to be involved, it seems only fair that an accused person should have the right to legal representation. One would like to see equality of arms without any reference to the interests of justice, but when we introduce matters of a legal nature it seems unfair that the accused individual should not have the benefit of legal advice and representation in preparation for his trial.

Amendment No. 19 relates not only to the question of evidence but to cases in which an accused person gets into difficulties as a result of the procedures.

Amendment No. 20 relates to cases where the evidence or procedure is not only difficult and complex but technical. We are again dealing with an individual who is charged with a criminal offence, and it is only fair that he should have the advantage of legal representation if matters of a technical nature—which he could not be expected to understand—are involved.

Amendment No. 24 extends that to the facts and circumstances surrounding the charges, not simply to narrow questions of evidence or procedure. These are perhaps limited and small amendments, but they are intended to be advantagous to the person who stands accused and who otherwise would not have the benefit of legal representation.

Mr. Dewar

We can now get back to the even tenor of our ways after the excitements of the Division. I am sure that hon. Members, particularly on the Conservative Benches, are grateful to the Liberals for calling that vote, as it has proved that they are alive and well and doing their duty—all 40 of them. [Interruption.] Government Back Benchers have duties as undistinguished and unromantic foot soldiers in the Lobby—[Interruption.] I genuinely did not hear what the Secretary of State for Scotland said. I am not always as fortunate as that. If he goes on like this, I shall have to ask for the protection of the Chair.

I do not want to follow the hon. Member for Orkney and Shetland (Mr. Wallace) through the Liberal suggestions, which he described as modest. I notice that one amendment seeks to import into the Bill the words "technical" and "confused". That had a certain symbolic importance that I found quiet attractive. I was also attracted to the amendment that put "procedure" after the work "evidence". That may be because I remember the headings of the examination syllabus at Glasgow university many years ago.

I wish to speak to amendment No. 18, which stands in my name. This strikes at a point raised by the hon. Member for Orkney and Shetland, when he referred to the use of the word "substantial" in relation to a substantial question of law", as one of the criteria that should be taken into account in deciding whether legal aid should be granted. I believe that the word "substantial" might give rise to difficulty.

I must confess that despite the engaging precedent in subsection (3)(e), which contains the word "frivolous", it does not strike me as being entirely suitable. When one adapts it to "non-frivolous" it does not have the right ring. It is a liberal word and does not appeal to me in any way.

12.45 am

My suggestion is that there is, perhaps, some virtue in removing the word "substantial" and inserting "positive". All these phrases are subjective in their definition, but clearly there is an invitation to the Legal Aid Board in the word "substantial" to take into account only questions of law of some weight. The board may look at it from the point of view of a lawyer in practice rather than as a layman. Questions of law may not seem profound to a solicitor and, indeed, may well be the stock in trade of a solicitor in daily practice. If that test were applied, a solicitor in daily practice may say that the provisions of the Prevention of Crime Act 1953 for the adaption of a weapon were hardly a substantial question of law. If that line were taken and the accused were left unrepresented, that person could not be reasonably expected to wrestle with that point. The same point could properly be made about the law of reset or the doctrine of recent possession.

I see that the Solicitor-General for Scotland has appeared and taken his place. He will take my point. All those matters may reasonably he said not to be substantial, hut they are important for the defence, if they are grasped, and if the defence is unrepresented, those matters would probably not be grasped and properly put. To overcome that it would be fairer and more sensible to insert "positive" as a qualification on the question of law that might arise.

Mr. Fairbairn

The hon. Gentleman will remember the case of the taxi driver who kept a tool of trade in his cab but was nevertheless convicted of contravention of the Prevention of Crime Act. Nobody would think that was a substantial matter, any more than they would think it was a substantial matter to argue whether a skean-dhu would be in contravention of that Act.

Mr. Dewar

The hon. and learned Gentleman is making my point perfectly fairly. There are all sorts of concepts in that area, for example about intention, which might arise and would be simple enough to a solicitor who knew the game, but which would go wholly unremarked by a client if he were unrepresented.

There is no point in making the point again and again, as I am sure that the Minister has grasped it. I should like him to say how he imagines the board would interpret the phrase. Let us imagine that the Minister lost his seat in Argyll and on the rescue operation principle for which the Conservative party is noted found himself sitting on the Scottish Legal Aid Board. How would he interpret "substantial" in connection with a question of law? How would the word "substantial" measure against recent possession, reset and the Prevention of Crime Act? They are three of the most obvious examples in this area. Would he not admit that it might be fairer slightly to downgrade the qualification to a positive question of law rather than to retain the word "substantial"? I await with interest the Minister's remarks.

Mr. John MacKay

I shall resist following the hon. Member for Glasgow, Garscadden (Mr. Dewar) down the road on which he invited me to go with the suggestion that I might end up on the Legal Aid Board. I shall have to rest on my previous statement, which is that I shall not say much about what the Legal Aid Board should do in detail, because if I do I shall be accused of giving it instructions, or guidance.

Our discussion is about "substantial" versus "non-frivolous" or "positive". I am not a lawyer, but I would have thought that all legal proceedings involved "questions of law". The distinction is that we are suggesting that the word "substantial" should be in here. Hon. Members have suggested that there should be some qualification, and the two suggested words are "non-frivolous" and "positive".

I cannot recommend amendment No. 17, because it is a fairly inelegant formulation, even if the hon. Member for Orkney and Shetland (Mr. Wallace) firmly rests on the fact that I use the word frivolous in another context later on. "Positive" raises the question of negative questions of law. If there can be a positive question, there can be a negative one. The concept of a "substantial" question of law is well understood and well-precedented, and it is reasonable in this context to use that as the qualifying word for a question of law.

Mr. Dewar

I recognise that the Minister does not wish to be seen to be anticipating the decisions of the board, but I am not asking him to make a decision in the normal sense of the word. If the term "substantial" is well understood, perhaps the hon. Gentleman would like to tell us what he means by it? I wanted to help him by giving three sectors that are highly relevant and which will turn up frequently in applications. Does he think that they constitute substantial questions of law?

Mr. MacKay

That is up to the board to decide. If I were to start laying down, even at this late hour, what I think the board should be looking at on this or any other issue, hon. Members would rightly say that I was attempting to give the board guidance beyond that which I have said all along I would not be prepared to do. The board must look at these cases.

Every question is a question of law. The Bill points the board towards looking at those that are substantial, but it must decide. It is the only body that can decide what is or is not a substantial question of law.

Amendment No. 19 would cause the paragraph to refer to the consideration of … evidence or procedure of a complex or difficult nature. Merely as a matter of drafting, that seems to me an unsatisfactory formulation. It is possible for difficult questions of law to arise in relation to criminal procedure, but that, as I think the House will know, is already covered by the first part of paragraph (b) in its present form. Amendment No. 20, again, seems to miss the point. The fact that evidence is technical will either make it difficult or it will not. If it does, it is already covered. If it does not, it is difficult to see why it is a factor which particularly points towards a need for legal aid.

As to amendment No. 24, if the facts and circumstances surrounding the charge are complex or confused, it seems likely that that will result in consideration of complex or difficult evidence being involved, so that paragraph (b) will come into play. The same applies to the reference to "confused" in amendment No. 20. The proposed new paragraph would certainly overlap with paragraph (b) in a confusing way, but where there were special circumstances which made it desirable in the interests of justice that legal aid should be available, the board would of course have to take account of them. I emphasise again that the specified factors are not the only factors which must be taken into account—the list is not a restrictive one. The test remains, as it always has been, whether it is in the interests of justice that legal aid should be made available. Therefore, I hope that the hon. Gentleman will withdraw his amendments.

Mr. Fairbairn

My hon. Friend the Minister knows that I do not like this clause, and my fondness for it has not been improved by his remarks. I noticed that he substantially avoided the substantial question that he was substantially asked by two substantial Members of the House about what he meant by "substantial."

Mr. MacKay

Positive.

Mr. Fairbairn

I do not know whether my hon. Friend meant "positive." However, he was very positive in being negative about being positive.

It is important that we should not pass over this definition without understanding its implications. It is no good saying that it has no implications or that it has any implications. If substantial means anything — and positive would mean nothing different—either it means something, or it means nothing. That is what I find offensive about it.

It is a fallacy, into which even the hon. Member for Glasgow, Garscadden (Mr. Dewar) fell — possibly because he did not take part in the Committee proceedings —to imagine that the factors to be taken into account by the board in determining whether it is in the interests of justice, will be taken into account by the board. It is not the board that will take them into account. It will be a single official to whom the file goes who will take them into account. It is a fictional board. That may be another example of where one may use the word "substantial". Substantially it is the board, but in fact it is an official. The file will be interpreted by an official.

As for the idea that it will be interpreted by a lawyer or by anyone who has the slightest concept of what is a substantial point of law, what do we as lawyers mean by "a substantial point of law"? We mean a point of substance—in other words, a point that is valid. That is what we mean in law when we talk about a point of substance. We talk about substantial law. There is a branch of substantial law.

Unfortunately, in this clause we have created a variety of both meaningful and meaningless phrases that are capable of any interpretation. That task will not be undertaken by the board. That is not its function. Even if it were its function, we do not know that it is its function, because the Minister has been careful to tell us that we do not yet know what its function is. So let us forget about that. We must be quite clear that when we are dealing with a substantial question of law, we are not talking about anything that cannot be denied by an official who decides to deny it, or about anything that cannot be admitted by an official who does not understand it. I do not know what it means. An official will not know what it means. It is capable of any interpretation whatsoever in any circumstances. It is unfortunate— I say it again and I hope that it will be written into the hearts of this board when eventually it discovers what its purpose is—that here again we have, in just one adjective, an illustration of a meaningless direction, even on the face of the Bill.

I should like to know what an insubstantial question of law is. I have argued many such questions, and won. I have even defended people who stood to suffer the death penalty on what might be regarded as insubstantial questions of law. Therefore, we have to remind ourselves again that the language of the Bill is unfortunate and capable of any interpretation. The warning must go out that the interpretation must be on the side of justice, not on the side of bureaucracy.

Mr. Wallace

I very much share the view expressed by the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). He has reiterated the difficulties encountered when considering the interests of justice. Although the Minister said that the idea of a substantial point of law was common and well precedented, he refused to accept any intervention that might have asked him to spell out what he meant by "substantial". He has often told us that he does not want to lay down instructions about what the board may or may not do, but I almost think that he is protesting too much. His failure to explain almost amounts to an unwillingness to perform his duties to the House. He has said that a substantive point of law is well documented and precedented, so there is an obligation on him to tell us what is meant by that phrase.

1 am

Mr. Fairbairn

The hon. Gentleman made an important lapsus linguae. He referred to a substantive point of law, which is very different from a substantial point of law. A substantive point of law is comprehended, but a substantial point of law is not. Does the Minister mean a substantive point of law? If the factors to be taken into account by the board in the interests of justice include a substantial question of law — it should, of course, be substantive—does it include the certificate that a judge may grant under the Act of Adjournal for additional funds to be granted? That might be an important purpose. It would be a substantial point of law, but not a substantive point of law.

Mr. Wallace

I think that I understand what the hon. and learned Gentleman has said. The Minister said that the phrase was well precedented, but he probably meant "substantive", and I fell into the trap of using the wrong term as a result. I do not think that a substantial point of law is necessarily well documented or precedented. The Minister certainly gave us no idea of the origin of that precedent and was not prepared to expand on it.

The Minister seemed to think that the procedure would be covered by the earlier part of paragraph (b), where if says: the determination of the case may involve consideration of a substantial question of law". Procedure inevitably involves points of law, but the point is that just as evidence is separate from questions of law, so is procedure.

I am disappointed that the Minister has been so negative about these constructive amendments.

Amendment negatived.

Mr. Wallace

I beg to move amendment No. 21, in page 17, line 17, at end insert— (f) 'the accused has been remanded in custody pending trial.'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 22, in page 17, line 17, at end insert— '(f) the accused supplies with his application a detailed statement of his defence which if held true by the Court would be bound to result in the accused's acquittal of all or any of the charges libelled or in the deletion of any material part of a charge.'. No. 23, in page 17, line 17, at end insert— '(f) that the nature of the defence involves the tracing and interviewing of witnesses or the expert cross examination of a Crown witness.'. No. 25, in page 17, line 17, at end insert— (f) the accused is charged in some special capacity within the meaning of section 312(x) of the Criminal Procedure (Scotland) Act 1975.'. No. 26, in page 17, line 17, at end insert— `(f) it would be unlawful or inappropriate for the accused to seek to prerecognise a Crown witness.'. No. 27, in page 17, line 17, at end insert— (f) the conviction might involve substantial prejudice in related civil proceedings (whether actually anticipated, contemplated or could be anticipated).'.

Mr. Wallace

These amendments again relate to factors that should be taken into account when the board determines whether any application for criminal legal aid in summary cases is in the interests of justice. The amendment states that it would be in the interest of justice for legal aid to be granted if the accused has been remanded in custody pending trial". At present, under clause 22, if a person is in custody and is being prosecuted under summary procedure, he is automatically granted legal aid if he has tendered a plea of not guilty, and if he has made application to the board for legal aid in connection with those proceedings. Legal aid is automatically available to him until his application has been determined by the board.

The amendment seeks to make it a relevant factor—because of the Government's scheme it can be no more than that—for the board to consider that the accused has been remanded in custody pending trial, and, by implication, is unlikely to be liberated from custody until such time as his trial takes place.

That is an important amendment, put forward in a non-partisan way, and I hope that the Minister will consider it favourably. When we discussed it in Committee he was unable to give any satisfactory answer to the simple question of how, if one does not have legal representation, one goes about preparing a defence from prison? The things that must be done in preparing a defence, not least taking prerecognitions from witnesses, all involve some degree [Interruption.] I do not know whether the Minister is suggesting that I should wind up or carry on. If he tells me that he will accept the amendment I shall be only too pleased to wind up quickly.

If somebody is in custody, preparing himself for trial, he should at the very least have legal aid to enable him to do it properly. If he is to be prosecuted by a lawyer who will have had all the advantages which go with that, his not having legal aid in such circumstances is virtually to expect him to defend himself with one hand tied behind his back.

Amendment No. 22 says: the accused supplies with his application a detailed statement of his defence which if held true by the Court would be bound to result in the accused's acquittal of all or any of the charges libelled or in the deletion of any material part of a charge. That was canvassed in Committee. It requires a detailed statement of the defence so that one which says, "It wasn't me" or "I wasn't there" would not be sufficient. The Minister's response to that in Committee was that every cock-and-bull story under the sun would be put forward. With respect, it is not for the Minister or the board to determine what is or is not a cock-and-bull story. That is, in a summary case, properly the province of the sheriff or possibly the lay magistrate. It is for him to determine whether the defence put forward by the accused is a cock-and-bull story. For the board to in some way determine that involves a degree of subjective judgment which would not be welcome.

Amendment No. 23 says: that the nature of the defence involves the tracing and interviewing of witnesses or the expert cross examination of a Crown witness". Again, that almost speaks for itself. The person who does not have legal assistance and all the advantages that go with that could well be put at a disadvantage if the preparation of his defence involved considerable work in trying to track down witnesses. In particular, if there was an expert cross-examination of a Crown witness.

Amendment No. 25 says: the accused is charged in some special capacity within the meaning of section 312(x) of the Criminal Procedure (Scotland) Act 1975. That includes, for example, where someone might be charged in the capacity of a licence holder, the master of a ship or the occupier of a house, not a person in any straightforward individual capacity but where there is some additional complicating factor. That may not be sufficient in the eyes of the board to qualify under any of the headings in part III, but nevertheless it puts someone into a slightly different position for which legal aid would seem to be fair.

Amendment No. 26 says: it would be unlawful or inappropriate for the accused to seek to prerecognise a Crown witness. It can happen as a condition of bail that a person is not allowed to go anywhere near, let alone, speak to and take prerecognition from, a Crown witness. If he is not allowed legal representation, how in the world is he meant to prepare a proper defence? I hope that the Government will accept the amendment. It would not drive a coach and horses through the factors. The Minister has often said that his list of factors is not exhaustive and I believe that the amendment would improve the list.

It has been put to me that perhaps the last part of amendment No. 27, which refers to civil proceedings that could be anticipated, goes too far and if the Government will consider the principle, I shall draw back from having it expressed so widely. However, it is a matter of considerable relevance if a person charged with, say, a DHSS fraud involving a considerable sum pleads guilty, but it turns out that the sum involved is actually much less. There are cases where a conviction for an offence carries considerable weight in subsequent civil proceedings. A person could be seriously prejudiced if a charge went through because he had not had the benefit of legal advice.

Mr. Fairbairn

Surely a much more obvious example is the fact that under road traffic legislation a conviction can be taken as evidence in civil proceedings.

Mr. Wallace

The hon. and learned Member anticipated my next point. Perhaps the Minister feels that the amendment would open the legal aid door too wide, but if a conviction is virtually conclusive in ensuing civil proceedings, a significant sum of damages could be awarded against a person and have as much effect on his livelihood as the provisions in the clause. It would seem only right that such a person should have the benefit of legal representation. I hope that the Minister will respond more constructively to these amendments than he did to the previous group.

Mr. Dewar

The hon. Member for Orkney and Shetland (Mr. Wallace) is an eternal optimist. I do not hold out much hope of a more positive response from the Minister.

I sense a slight feeling in the House that the debate is outstaying its welcome and we still have to deal with the important amendment No. 36. That will take some time, so I shall not indulge in list-building with the hon. Member for Orkney and Shetland, but I cannot resist saying that if the Government's business managers had listened to suggestions that this business could have been disposed of between 7 pm and 10 pm, we might have had a more concise debate. I fear that it takes considerably longer if we start at this strange hour of the night.

I shall not work my way laboriously through the list. All the factors come from the equality of arms stable, moving towards the principle that professional should be pitted against professional, which the Law Society endorses. Many cases are not brought to trial, but are diverted into other areas and it is said that when the procurator fiscal is on one side, there should be legal representation on the other. I do not go that far, but some factors mentioned by the hon. Member for Orkney and Shetland are valid and I hope that they are the sort of matters that could be added as necessary when individual cases are being scrutinised.

1.15 am

We could spend time scrutinising. I am fascinated by Amendment No. 22 which adds the accused supplies with his application a detailed statement of his defence which if held true by the Court would be bound to result in the accused's acquittal". I do not think that we need that. It asks for more than, "It was nae me." There must be an explanation of why "it was nae me." That problem is covered by subsection (3)(e) which states: the defence to be advanced by the accused does not appear to be frivolous". If a man explains what he was doing, he does not need a special defence but just to explain that he was not there and knows nothing about the offence. That cannot be described as a frivolous defence. It is a relevant and complete defence, if it is believed.

Amendment No. 23 states: `that the nature of the defence involves the tracing and interviewing of witnesses or the expert cross examination of a Crown witness.'. Any case which goes to trial and is properly prepared will involve Crown witnesses. Some solicitors would argue that even when a plea of guilty is likely to be entered, the Crown witnesses should be investigated to see whether the case stands up before the client pleads guilty. The Minister might say that amendment No. 23 might allow legal aid to be given in every case. There might be problems about that.

It is obviously unlawful to approach Crown witnesses, but I must comment on amendment No. 27, with which I sympathise. It says that the conviction might involve substantial prejudice in related civil proceedings". To say that proceedings "could be anticipated" takes the suggestion very broadly.

The point is substantial. We have discussed DHSS fraud. The adjustment to a plea is often an important service to the system, not just to the accused, but to the Crown. In complicated fraud cases, and smaller cases in terms of the sums involved, establishing the figure can be of importance. Amendment No. 27 has merit and my endorsement of it will gather strength from the fact that I have not urged the Minister to take all the others as a job lot. The amendments are worthy.

Mr. Fairbairn

Let us suppose that the Legal Aid Society is confronted by someone who says, "I didn't do it" and Crown evidence says that he did. That cannot be regarded as a frivolous defence. It is a substantial defence.

Mr. Dewar

I tremble to ask the Minister to consider the definition of "frivolous" because I shall be told that that impinges on the proper role of the House and that he is mute on the subject.

The hon. and learned Member for Perth and Kinross (Mr. Fairbairn) tempted me. I imagine that he is wrong in assuming that the Legal Aid Board would have evidence from the Crown. Presumably it would have nothing from the Crown in the same way as, at the moment, a sheriff merely has the complaint in front of him and the legal aid application and anything that may be said on behalf of the application. I may be wrong because I have not been through the Committee proceedings, but it did not occur to me that the Crown would be submitting evidence or that something like the summary to the fiscal would be available to the Legal Aid Board in considering an application.

The Minister might clarify that point. I assumed that that would not be so. Therefore, I agree that the term "frivolous" is difficult to envisage because clearly, if someone is denying the offence in the circumstances I have described by saying "I do not know anything about it. It must be mistaken identity. I was not there. I cannot give any details of the offence because I was not involved", it cannot be frivolous, whatever else it may be. It may turn out that the man is a blackhearted liar but it is certainly not a frivolous defence. If it stands up it is as good a defence as it is possible to imagine. I am not clear about the meaning of the word frivolous in subsection 3(e) or about the circumstances that are envisaged. If the Minister wishes to break the habit, I will not say of a lifetime, but of the life of the Bill, and give us some helpful information on that point I would be grateful.

Mr. John MacKay

Amendment No. 22 would appear to suggest that the production of a detailed but obviously totally spurious statement should be a factor that might support the grant of legal aid. Yet it is perfectly possible for an accused person to have a defence which is not a frivolous one but as to which he cannot produce any detailed statement, or his defence may simply be that he did not do it.

On amendment No. 23, which derives from one of the tests suggested by the Widgery committee for England and Wales, we share the view which was put by the Law Society of Scotland to the Royal Commission on legal services in Scotland, and which was accepted by that commission, that the formulation was not acceptable, since almost any case could be presented in such a way as to justify it. The real point which arises is dealt with in a clearer and more effective way by paragraph (b), which takes account of the possibility of complexities of evidence being involved, whether in preparation of the case or as requiring expert cross-examination.

Amendment No. 25 suggests that the mere fact that the accused is charged in a special capacity should necessarily be a factor supporting the grant of legal aid. I accept that in some cases such a special capacity will complicate matters, but that will not by any means always be the case. Where it is, the board will certainly be able to take account of it. Again, paragraph (b) will point it in that direction.

I have similar objections to amendments Nos. 26 and 27. Each refers to matters which, it is argued, could in particular circumstances be relevant to the board's consideration of the interests of justice. However, they are imprecise and are not of general application. For example, how is the board to judge that it is "inappropriate" for the accused to precognosce a Crown witness or know whether related civil proceedings are likely? It is true that the facts on which someone is convicted on a criminal charge could involve civil consequences which may be quite serious. For example, it could lay someone open for an action for damages. However, the civil consequences may be quite trivial in relation to the criminal charge. In such cases the decision should, in general terms, primarily depend on the criminal charge, not on the civil consequences. The difficulty with amendment No. 27 is that although it refers to substantial prejudice in civil proceedings, it makes no mention of whether the civil proceedings are of comparative importance in themselves or in relation to the criminal charge. Therefore, it seems better to leave the board to take into account any civil proceedings, if relevant, together with anything else that is relevant.

I again emphasise that the list of factors is not exclusive. The board's duty is to decide whether the grant of legal aid will be in the interests of justice, and in doing so it will take all these matters into account in so far as they are relevant.

Amendment No. 21 proposes that the fact that the accused has been remanded in custody pending trial should be a factor taken into account by the board in determining whether the interests of justice criterion is met. This would clearly be an important consideration for the board, whether it is specified on the face of the Bill or not. I was trying to show the hon. Member for Orkney and Shetland (Mr. Wallace) that if he speeded up he might hear some good news because, on that basis, there is something to be said for spelling it out and I accept amendment No. 21 but not, I regret to say, the rest.

Mr. Wallace

I tried to tell the Minister that such a response would have the effect of shortening my remarks. I am grateful to him for accepting amendment No. 21. I heard what he said about the other amendments, and I accept that in some instances paragraph (b) is sufficient. I regret the hon. Gentleman's attitude to amendments Nos. 26 and 27, but he has suggested that if the degree of importance of the civil proceedings was spelt out there could be an addition at a later date.

Amendment agreed to.

Amendment made: No. 28, in page 17, leave out lines 18 and 19.— [Mr. John MacKay.]

Mr. Wallace

I beg to move amendment No. 32, in page 17, line 21, leave out from 'Section' to end of line 23 and insert 'amend the list of circumstances in subsection (3) by adding new circumstances to the list'.

Mr. Deputy Speaker

With this it will be convenient to discuss the following amendments: No. 33, in page 17, line 21, leave out from 'above' to end of line 23 and insert 'by adding new factors to the list'. Government amendment No. 34.

Mr. Wallace

The amendment is directed to the final part of clause 24(4). As things stand, the Secretary of State could delete any of the factors by regulation. In other words, he could use secondary legislation to delete primary legislation. The Government's amendment would remove the offending words about deletion but would still allow the Secretary of State to amend any of the factors set out in subsection (3).

The purpose of the amendment and amendment No. 33, which stands in the names of the hon. Members for Glasgow, Garscadden (Mr. Dewar) and for Glasgow, Cathcart (Mr. Maxton), is to limit any variation to addition. To allow the Secretary of State to amend or add leaves it open to possibility that he could amend existing provisions out of recognition, or even insert would what could amount to a negative provision. Allowing the Secretary of State to amend only by means of adding would ensure the integrity of the primary legislation.

Mr. Dewar

The hon. Member for Orkney and Shetland (Mr. Wallace) has said that the Opposition's amendment, No. 33, strikes at the same point as the Liberal amendment. The arguments are similar. The Law Society of Scotland took the view—I paraphrase— that clause 24 contained within it the seeds of its own destruction. It was referring to the apparent possibility of primary legislation being changed by regulation. The Government's amendment does something to help by removing the possibility of subtracting one of the factors in clause 24(3). We want to go a little further by stopping the possibility of variation which may be so radical as to destroy. It is a simple issue which has been outlined succinctly by the hon. Member for Orkney and Shetland and I am prepared to leave the matter on that basis and listen to what the Minister has to say.

Mr. John MacKay

Government amendment No. 34, like amendments Nos. 33 and 34, is designed to meet the fear that was expressed in Committee that a power to the Secretary of State to delete factors might lead to the deletion of them all. My amendment would provide for existing factors to be amended or new ones to be added, whereas the other two amendments would confine the power to the addition of new factors alone.

It is essential that there should be the necessary flexibility to amend the present list. Changes may be required to take account of changes in criminal procedure or practice which mean that the wording of a factor is no longer apt, or it may be that the wording of one factor proves to be ambiguous in some unenvisaged way. Amendments Nos. 33 and 34 seem to assume that any new factors will be completely separate and free-standing. It is surely possible, however, that there will be an overlap between a new factor and an old one, so as to require consequential amendment of the existing factor. Indeed, the number of amendments tabled this evening to the factors in the Bill would seem to support the desirability of a power to amend. Any amendment would, of course, be made by regulations subject to affirmative resolution, and would therefore require the positive approval of both Houses. I therefore recommend amendment No. 34, which I believe meets the concerns which were expressed.

Mr. Wallace

There is not much that can be added to what I have said.

Amendment negatived.

1.30 am

Mr. John MacKay

I beg to move amendment No. 36, in page 17, line 23, at end insert— '(6) Where a person who is being prosecuted under summary procedure is not represented by a solicitor or counsel and has either—

1. (a) not applied for criminal legal aid in connection with the proceedings; or
2. (b) applied for criminal legal aid but been refused it on the grounds that it is not in the interests of justice,

the court at the trial diet may, if it considers that owing to the exceptional circumstances of the case it would be inequitable to proceed with the trial without such representation and without legal aid being made available to him, adjourn the diet to enable an application for legal aid to be made to the Board which shall consider the application expeditiously. (7) Where the trial of an accused person is adjourned as is mentioned in subsection (6) above, and he has made an application to the Board, criminal legal aid shall be available to him until his application is determined by the Board. (8) Where any person to whom criminal legal aid has been made available in pursuance of subsection (7) above has his application for criminal legal aid under subsection (6) above refused by the Board on the ground that it is satisfied that subsection (1)(a) above does not apply in his case, the Board may require him to pay to the Fund the whole or part of the amount of any sums paid out of the Fund under section 4(2) (a) of this Act in respect of the criminal legal aid so made available.'.

Mr. Deputy Speaker

With this we may also consider amendments to the proposed amendment: (a) in subsection (6) at end insert 'or alternatively, if it is in the interests of justice that the trial should proceed, grant legal aid forthwith'. (b), leave out subsection (8).

(c), in subsection 8, at end add 'but in deciding what if any payment should be made the Board must have regard to the circumstances of the applicant and his ability to pay.'.

Mr. MacKay

This amendment fulfils an undertaking that I gave in Committee on 1 July to provide for the exceptional case, where a person who is not legally represented in summary proceedings appears for trial and the court concludes he should be represented—either in his own interests or in the interests of someone else, such as a child witness. Under subsection (6), the court is enabled to adjourn the trial to allow the accused to apply for legal aid — or re-apply if he had previously been refused under the interests of justice criterion. The board is obliged to handle the application expeditiously and we would envisage that it could be dealt with in a couple of days. As I said in Committee, we would not wish to give a court a general power to overrule decisions by the board—or substitute itself for the board—since this could reintroduce the present inconsistencies between courts in the award of legal aid — at least for some types of cases. Reference of the case from the court to the board avoids this difficulty. Where legal aid had been refused by the board earlier, the court would in effect be asking the board to review the case in the light of the court's expressed view that legal aid should be available. However, subsection (7) also provides that automatic legal aid will be available from the date of application until the application is determined, so legal aid will be available to cover the preparation of the defence. Subsection (7) could also be used to ensure that the accused was legally represented if, very exceptionally, the court decided that the trial had to proceed more or less immediately—perhaps because it was undesirable or difficult to recall witnesses for a later diet. Subsection (8) provides for the situation where the board refuses an application on grounds of financial eligibility. As the legal costs will have to be paid by the board under the automatic provisions of subsection (7), it is only right that the board should have power to recover those costs from an accused who is able to afford to meet them himself.

I cannot recommend amendment (a), as this would in effect give the court power to award legal aid in all cases where it considered the trial should proceed. This would, on my understanding, be contrary to the wishes of bodies representative of the courts who no longer want to be involved in the actual award of legal aid and in the determination of interests of justice. My amendment makes legal aid available in the exceptional cases where the court considers legal representation necessary. It reduces to a minimum the disruption of court business, and preserves the essential principle of the new system that all applications for legal aid in summary criminal cases should be dealt with by the board for the sake of maximum consistency. I appreciate the reasons for amendments (b) and (c), but I cannot commend them to the House.

Clearly we would not wish legal aid to be given to someone who can pay for his defence. This is the reason and the need for subsection (8), which in general should come into play only when the accused has not applied for legal aid. Where he has previously applied the board will normally have considered his financial circumstances and whether the expenses of the case can be met without undue hardship to him or his dependants.

When the board considers an application referred to it under subsection (6), it will, as with other applications, have regard to the financial circumstances of the accused and as indeed subsection (8) states, require payment only where it is not satisfied that the expenses of the case cannot be met without undue hardship to the accused or his dependants.

The amendment in my name clearly and adequately fulfils the undertakings that I gave. It achieves what many people want, as it creates a fallback position which the courts can exercise, but it preserves the board's right to decide finally on the granting of legal aid. I commend the amendment to the House.

Mr. Dewar

I genuinely regret that we come to this matter at 1.30 in the morning. We would normally have a lengthy debate on such a matter and that would be the correct way to proceed. There has been a long and well-argued campaign on the question whether the courts should have a residuary power to grant legal aid. I am now conscious of the fact that the debate will have to be telescoped into a few minutes. That is not good for the process of law reform in Scotland or for the legislative process.

The Minister said very briskly and definitively that the amendment that he has tabled meets the promise that he gave in Committee. He knows that that arguably is not the case. I do not wish to weary my colleagues but the matter is clearly dealt with in columns 275 to 277 of the Committee proceedings. The Minister said, whimsically, that there had been some disagreement on the matter during the previous sitting, so I took the opportunity offered by the lovely weather in my constituency over the weekend to sit and contemplate these questions. Some may think that a dangerous occupation, but I succeeded, and in between I attacked the odd weed. That is a rather ungracious way of referring to his colleagues. He continued: Mostly, I sat and thought. On this occasion, the Minister's thought was fairly productive, because he went on to say: It has been put to me, and I entirely appreciate, that there may be circumstances in which it is desirable that the trial should proceed more or less immediately. For example, if very young or old witnesses have been called, the court may decide that, whatever else may be involved, it is not in the interests of these young witnesses that they be stood down until another day. In such circumstances we would propose that it should he possible to apply for legal aid on the spot —possibly by giving the application to the Clerk of Court, automatic legal aid would be immediately available and the trial could proceed." — [Official Report, First Scottish Standing Committee; 1 July 1986, c. 275–77.] To a layman, that would suggest that the Minister was in complete agreement with what I am trying to achieve: that in unusual circumstances, where the sheriff is satisfied that the matter should proceed, the court should have power to grant legal aid. The clerk of court shall receive the application, legal aid shall be granted and the court will proceed with the trial. That was the scenario specifically stated by the Minister. It is not what appears in the amendment, and he is being a little disingenuous—I put it no higher than that, because I am sure that no malice is involved—when he says triumphantly that he has fulfilled the obligation that he gave to the Committee in this amendment.

The Minister should not have departed from what he appeared to say in Committee. The compromise that he has produced is clumsy and unsatisfactory. It is common ground between us that, in some circumstances, it will be proper and necessary for the trial to proceed. It is merely an argument over how to meet those circumstances. It is not just a question of trial witnesses. Witnesses may have come from abroad—perhaps from very far away—and cannot be sent away and brought back other than at enormous inconvenience and public expense. It may be a case of the witnesses being assembled in the court and the solicitor for the defence being ready to proceed and familiar with the case. There is an argument for allowing the matter to proceed rather than to adjourn the case and resubmit or submit for the first time an application to the Scottish Legal Aid Board.

The Minister said—I gathered that this would be his position — that that objective can be achieved, because the court can adjourn for an hour, half an hour or even a notional 10 minutes, and that the trial can proceed on the basis that the Legal Aid Board will ultimately consider the application and grant or refuse legal aid. That is an artificial way of meeting the difficulty.

I do riot deny that the circumstances should be exceptional. After all, we have trusted the courts in the past to be responsible about acting only in narrow confines of special circumstances. I have in mind the residual power in the Bail Act to set money bail, which has not been abused by the courts. There is no reason to believe that sheriffs would abuse a residual power if it was left to them. It is better to do it in that open and above-board way than to do it by straining the meaning of the amendment, which adds this new procedure to clause 24.

There may be some difficulties—I shall not canvass them at length, but I cannot resist mentioning it—about what constitutes an adjournment. I have not done much research into it, but someone drew my attention to Stroud's Judicial Dictionary, a publication with which I am not familiar—

Mr. Fairbairn

Oh!

Mr. Dewar

It may shock and horrify the hon. and learned Gentleman, but I assure him that Stroud's Judicial Dictionary is not upon the desk of every jobbing solicitor in the west of Scotland. Perhaps it should be. I give him that insight into the real life of the legal profession.

I went to Stroud to discover what an adjournment was. I came across the first and hopeful sentence — 1Interruptionl I cannot engage in this badinage. Let me give just a suspicion of the argument: The word 'adjourn' must be construed with reference to the object of the context, and with reference to the object of the enquiry.

Hon. Members

Hear, hear.

Mr. Dewar

I thought that that would be considered broadly helpful by the House. The paragraph went on in an equally lucid and helpful fashion.

I concede that I then went to the fifth edition of Renton and Brown, a work with which I am not familiar, but I remember it at least. I thought that I was on to a good thing because I found in paragraph 10.12: Every trial must proceed from day to day until concluded, unless the court sees cause to adjourn over a day or days. A footnote on the following page says: Trials no longer proceed uninterruptedly, but arc adjourned overnight and over weekends as necessary. That is an extremely good point. It suggests that short adjournments may not be competent, but I concede to the House that if one reads paragraph 10.13, it becomes clear that one can adjourn for short periods for lunch or almost any other reason that the court gets into its mind. It seems to be wide. Perhaps the Minister is right in saying that a half-hour adjournment might be possible before starting the trial, thus getting within the ambit of the amendment that he has tabled. However, it seems to be a forced and unlikely way of achieving that. Paragraph 10.14 of Renton and Brown says that An adjournment at the trial diet ought always to be avoided, if possible. Serious expense and inconvenience may be caused to jurors and witnesses, and there is always the danger of losing valuable evidence in consequence of the delay. Perhaps that would not happen if there were a short adjournment, but the general message is valid. I do not like the artificial way in which the matter is being managed. The Government have seen a difficulty, and apparently have recognised it, but they are trying to meet it by stretching subsections (6) and (7), which is adding to clause 24 in a way that I do not think does anyone much credit.

The Minister says cheerfully that he is giving an important new power in his amendment. I ask him seriously to answer this question. Is it not true that the power to adjourn in that way would have been open to the court anyway? The statutory power that he is giving is adding nothing to the range of options open to the court. It could have adjourned to give a chance for a legal aid application to be submitted in any event if it wanted. It would have been valuable to give the residuary power to the court. That would have met the narrow range of circumstances that we have been discussing.

It is a shame that the Minister has not taken a more open attitude. I notice that the Law Society has described his amendment as very disappointing and indeed seriously defective. I do not expect the Minister to take the Law Society's point of view. Obviously, he has to strike a balance between his advisers and those who advise him from outside the House, but it is interesting to remember that before the amendment had been produced, the Law Society was saying in an earlier memorandum after the Committee stage: In particular, we are grateful to the Government for agreeing to the principle of a residual right being given to Sheriffs and Magistrates to grant legal aid in exceptional cases. As at the time of writing this memorandum we have not had sight of the actual Government amendment, we are grateful to the Government for the acceptance of this very important principle. Of course, the Law Society had been reading the Committee proceedings, which I quoted. Understandably, it has been very disappointed by what the Minister has produced, because it is a departure from what he apparently promised. I repeat that point. The Minister is not doing himself justice in this matter. I do not see the danger of giving that residual power—it would be a much more sensible and logical way in which to meet the difficulty that everyone accepts may arise. I do not want to build any hopes on a positive response. The Minister has already said that he does not favour amendment (a), but it is simple, effective and available. I should have thought that he would have considered it favourably.

The Minister made it perfectly clear that he wanted nothing to do with amendments (b) or (c). I quite understand his argument, although I do not accept it, concerning amendment (b), which would leave out subsection (8). I have some doubts about importing into the legal aid system in Scotland a recovery of costs. I recognise that it is a special circumstance in which someone has gone ahead with a trial and been refused legal aid on the ground of means, but that is still a breach of an important principle that we do not have a contributory legal aid system for criminal legal aid. I am not sure that the Minister is wise to breach it in this way. If he had accepted amendment (a) he would have done much to mitigate that risk, because if he had allowed the sheriff to make a decision on whether legal aid should be granted, he could inquire into the accused's means and we would not have been in this position. That is a reasonable argument for the amendment.

If the Minister is against me on amendment (b), I do not see why he should not look more sympathetically upon the modest amendment (c), which proposes: in deciding what if any payment should be made the Board must have regard to the circumstances of the applicant and his ability to pay". I should like to give an example of what might happen. A young man, who has not applied for legal aid, comes to trial, and it becomes evident for a variety of reasons that we could suppose that he ought to have applied for legal aid, but the sheriff wants the trial to proceed because of wider interests. He says that the young man should apply, and the preparation for the trial goes ahead while the legal aid application is being considered. It might be rejected for means. The accused will suddenly discover that, even if he is aquitted, he might very well be faced with a bill of £400 or £500, which it is proposed to claw back from him on the grounds that he was not awarded legal aid because of his means.

1.45 am

Means are a very difficult concept. I know—I have no reason to believe that it would be different under the Scottish Legal Aid Board — that there are people deciding legal aid who may take the view that someone who lives on benefit, but at home with his parents, has sufficient means, if he saves hard, to afford his defence. Very real hardship could be involved. To guard against that, it is no bad thing to write into the Bill the proviso that payment should be asked for only after having had regard to the person's ability to pay and his circumstances. That is not committing us to anything very dearly, but it might guard against the type of hardship that I have outlined.

The Minister has shown a willingness, perhaps on a rather random basis, to take one of a selection of amendments offered to him. I would prefer him to take amendment (a), which is a key and by far the most important of the group. If he is not minded to do that, I do not think that it is unreasonable to ask him to consider amendment (c) in a reasonably positive way, especially as it would apply only in the type of circumstances I have outlined.

I hope that I have advanced my arguments at not too wearisome length. This is an important matter and Government amendment No. 36 is an important importation at a late stage. I only regret that I have had to detain the House at such an unearthly hour of the morning, but I do not apologise for that.

Mr. Fairbairn

I assure the Minister that, if I had thought that he would produce an amendment such as this, I should have regarded it as in complete contradiction to what he said to the Committee, for he told the Committee that he would give a residual power to the court to grant legal aid in circumstances exceptional, not to have a second bite at the cherry, not to provide another way around a refusal but when it was just to do that. This amendment does nothing whatever of that kind. It involves a system that is incomprehensible and absurd. First, if it occurs to a court that a person should be granted legal aid, for any of the reasons adumbrated in Committee — that the person should have applied, that difficult matters arise, that witnesses cannot understand the language, it matters not — are we seriously suggesting that the sheriffs and magistrates of Scotland should be less trusted than the unknown officials of the new legal aid board? What superior criteria will be applied by the board that will not be applied by the courts?

Let us be clear about what will happen, if that is possible. If a person has not applied for legal aid, or he applied and it was refused, the court at the trial diet may, if it considers that owing to the exceptional circumstances of the case it would be inequitable to proceed with the trial without such representation and without legal aid being made available to him, adjourn the diet to enable an application for legal aid to he made to the Board which shall consider the application expeditiously. Let us think about what will happen. Let us suppose that little John Smith is being tried for hooliganism at a football match and it is discovered that the charge is defective, that he cannot speak, that he does not understand or that he has witnesses whom he has not called who can demonstrate his innocence. Let us also suppose that the sheriff takes the view that it would be in the interests of justice that he should exceptionally have legal aid. If the sheriff adjourns, what does John Smith do? Does he telephone the legal aid board and say, "The sheriff has just told me that I should have applied for legal aid. I wanted to do this expeditiously so I am ringing up to ask you if you will give me legal aid." The reply will probably be, "Why? Who am I speaking to?"

The whole thing is absurd. The courts should be able to grant it as a residual power. But instead of a residual power, the amendment is an absurd second best. I do not comprehend how this unfortunate, unrepresented person will activate the mind of the sheriff to ensure that the Legal Aid Board expeditiously grants, or considers an application for, legal aid.

The amendment also states that: criminal legal aid shall he available to him until his application is determined by the Board. What does that mean? Subsection (7) also states: Where the trial … is adjourned … and he has made an application to the Board". Therefore, the person has to make an application. How will he do so? By telephone from Glasgow sheriff court? Will he say, "The sheriff tells me I should have been legally aided because I cannot speak English properly"?

This is an absurd misunderstanding of the promise given by the Minister, which was that in the circumstances the court could say that it is right that legal aid should be granted. This amendment is not an answer to what the Minister said. It allows the court to hold up proceedings while the applicant, unaided, attempts to contact the board.

I do not understand the procedure or mechanism. It would at least be sensible to accept amendment (a). If that is not accepted, the complicated procedure that the Minister is introducing will not solve the problem, and in no way does it answer the promise that he gave us. It merely makes a complicated, expensive and impossible mess of a simple position in which a court may say to itself, "I wish to be aided by having the person before me represented." That is essentially what the matter is about. I ask the Minister to consider that because his amendment is nonsense, its process is unworkable and it does nothing for justice. It does not give a court the residual right to grant legal aid. The purpose of the Bill is to avoid expense, but I cannot imagine a more complicated way of adding to it.

Mr. Gordon Wilson

Again, I agree with the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). I do not understand why the Government have made this mistake. I cannot imagine how one could come across a more convoluted, awkward, absurd solution. The residual right of the courts to grant legal aid would be the simplest, most effective way of dealing with the position. It beggars the imagination that the Government have gone to all this difficulty in concocting an amendment which is nonsense.

If legal aid is granted under the Government's amendment, it will effectively guarantee the fees of the solicitor or counsel, but there will be no guarantee to the accused. He must accept the lottery until the application is decided by the court that legal aid may be provided, if the trial proceeds and if the court finds it necessary to recommend that legal aid should be granted. It may do so, not necessarily to help the accused, but because of the need to protect child witnesses and to ensure that things are done properly and decorously, and that justice also applies to them. An accused person who is granted legal aid in those circumstances has no guarantee that the expenses will be paid. It is remarkably unsatisfactory.

Why are the Government seemingly not prepared to trust our courts to administer properly? The Minister says that he has told us that the people connected with the courts are not keen to accept the burden. I do not care tuppence whether they are keen to accept the burden. If it is in the interests of justice that they should be given that burden, let them carry it out. If that obligation is placed on them, I trust them to do it with the delicacy one would expect of them in the circumstances.

The Minister has come up with a dog's breakfast. I do not know why he has gone to such efforts to avoid the simple solution to deal with the exceptional circumstance. [Interruption.] The Solicitor-General for Scotland mutters on the sidelines. I would have thought that he might be able to give better advice to the Minister.

Mr. Wallace

Perhaps I may be permitted to a limited extent to come to the Minister's assistance. What he has come up with is much in line with what he said in Committee, which was why I was not as overjoyed as other members of the Committee seemed to be when he made it clear that the board should consider the application, although the sheriff or magistrate felt that it was in the interests of justice that legal aid should be granted. That is why I was not quite as excited by the part concession as some hon. Members were, and why I do not find what has been proposed this morning, while it is in line with what the Minister has suggested, is what I wish to see.

2 am

I say that as someone who has in general welcomed the role that sheriffs and magistrates have played up to now in determining whether criminal legal aid should be given, or, in some cases, taken away. However, there are inconsistencies between one sheriff court and another, and some of them are quite glaring, and were mentioned in the Committee. Another problem will be appreciated by hon. Members who have constituencies where there is only one sherfiff presiding in the sheriff's court, and he, invevitably, has to determine the legal aid application, and later the case.

The general rule for transferring these applications to the board is a good one. Nevertheless, there will still remain cases — no doubt rare ones — where in the circumstances that the sheriff or magistrate has to face, he believes that the interests of justice and the way that the case is conducted means that legal aid should be granted. The amendment of the hon. Member for Glasgow, Garscadden (Mr. Dewar) talks about the "interests of justice", not solely about the interests of the accused. It may be in the interests of a child witness. The Government's proposal for a contrivance that is intended to operate in a way that one can get on with the trial, and the application for legal aid can go to the board later, is a second best option.

The double condition that has to be fulfilled before criminal legal aid will be made available is even worse. There is not only the danger of the trial being adjourned, but, as the hon. and learned Member for Perth and Kinross pointed out, the problem that the accused has also to make application to the board. Both conditions must be fulfilled before legal aid can be made available. The position would be improved by letting the matter rest solely on the adjournment of the trial, so that a lawyer could be appointed to assist and make an application. That is not what it says here—perhaps it is not what the Minister intended.

The Bill is not satisfactory to meet the special conditions that have been envisaged. I hope that the Minister will be prepared to listen to what has been said, and look at it with some sympathy.

Mr. John MacKay

I apologise to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for not dealing with amendment (c) but I do not consider it necessary, in so far as there is already a requirement on the board to take financial circumstances into account. In any case, the board would be considering whether to exercise its powers under subsection (8), which is a power only to take into account the individual's ability to pay. I do not think that a specific provision on the face of the Bill is needed to achieve it.

The Shorter Oxford dictionary defines adjournment as to "defer", or "put off". I am advised that there is no authority for the proposition that in the context of court proceedings, adjournment means only to put off to another day. There is English authority to the effect that it is the popular, as opposed to the technical, meaning of adjournment, which imports a requirement to put off to another day.

It is difficult to imagine a situation in which a case can proceed without enabling the solicitor to take instruction. I have read carefully what I said to the Committee. I can tell my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) that having done so, I believe that the amendment honours the commitment that I made. It preserves the position of the board, and gives an important safeguard to anyone who ends up in a court. If the sheriff or the justice, looking down from the bench, sees that something is amiss and that a person ought to be represented, this is a procedure and mechanism by which—

Mr. Fairbairn

Will my hon. Friend give way?

Mr. MacKay

I am about to conclude, but I shall give way.

Mr. Fairbairn

I am grateful to my hon. Friend. Will he tell me what the mechanism is? It says: Where the trial of an accused person is adjourned"— assuming that it is competent in summary proceedings— as is mentioned in subsection (6) above, and he has made an application to the Board". What does my hon. Friend imagine will happen? What does a 14-year-old boy do? Does he ring up the board? It has to be done expeditiously. What happens if he is not represented?

Mr. MacKay

My hon. and learned Friend was much more charitable when he heard me explain the matter in Committee. If he looks at column 277 he will see that I said: In such circumstances, we would propose that it should be possible to apply for legal aid on the spot—possibly by giving the application to the Clerk of Court, automatic legal aid would be immediately available and the trial could proceed." — [Official Report, First Scottish Standing Committee, I July 1986; c. 277.] That is a sensible way of dealing with very special circumstances. As they will be very special and will not happen often, the procedure I have set out in my amendment will do what we all wish it to do.

Mr. Dewar

I am disappointed by the Minister's reply, although I am not surprised by it. We are looking at a man who has made up his mind, or who has had his mind made up for him; I am not quite sure which.

I am puzzled. It would have been much neater and saner and much more sensible to trust the courts, with their residual powers. No one has suggested that their powers are other than residual. That is why amendment (a) was drafted as it was: to make it clear that we were not trying to open the equivalent of a legal floodgate and that we were not inviting the courts on a daily basis to grant legal aid in an effort to circumvent the powers of the Scottish Legal Aid Board.

If the Minister is right in saying that the courts do not wish to be involved in legal aid, there is little danger of the power being abused. He was contradicted to some extent by his own argument on that point. However, the Minister is clearly determined that there shall be no breach of the general rule that the courts shall not be involved in the granting of legal aid. I find that strange. In solemn procedure the courts will be the principal grantors of legal aid.

In both the summary and the solemn procedure the courts will have the important residual power to decide on certification under the relevant section. The courts will also have the power to grant legal aid applications for findings of fact under the children's hearings system. The courts will be involved in a large area, and I do not think that it would have been dangerous to trust them with the residual power that we envisage. A mistake is being made. The system is being made to look a little silly. Interpretations and expectations that cannot be justified are being built upon this form of words.

The Minister did not deal with my specific point about whether the power to adjourn of the kind that is envisaged in his amendment already exists. I believe that it already exists. I am advised by those who are more skilled than I in these matters that that is the position. The Minister has been left with something of a nonsense, and he is asking that nonsense to deal with a problem with which it is incapable of dealing.

It is disappointing. I do not intend to withdraw amendment (a). I am not sure that I moved it formally. I do not know whether I have to do so, but if I have to move it formally I do so now. I have no intention of withdrawing it at this stage.

Amendment to the amendment negatived.

Amendment made: No. 36, in page 17, line 23, at end insert— '(6) Where a person who is being prosecuted under summary procedure is not represented by a solicitor or counsel and has either—

1. (a) not applied for criminal legal aid in connection with the proceedings; or
2. (b) applied for criminal legal aid but been refused it on the grounds that it is not in the interests of justice,

the court at the trial diet may, if it considers that owing to the exceptional circumstances of the case it would be inequitable to proceed with the trial without such representation and without legal aid being made available to him, adjourn the diet to enable an application for legal aid to be made to the Board which shall consider the application expeditiously. (7) Where the trial of an accused person is adjourned as is mentioned in subsection (6) above, and he has made an application to the Board, criminal legal aid shall be available to him until his application is determined by the Board. (8) Where any person to whom criminal legal aid has been made available in pursuance of subsection (7) above has his application for criminal legal aid under subsection (6) above refused by the Board on the ground that it is satisfied that subsection (1)(a) above does not apply in his case, the Board may require him to pay to the Fund the whole or part of the amount of any sums paid out of the Fund under section 4(2)(a) of this Act in respect of the criminal legal aid so made available.'.—[Mr. John MacKay.]