§ Order for Second Reading read.
§ Mr. Speaker
Before I call upon the Minister, I must tell the House that I have selected the reasoned amendment in the name of the Leader of the Opposition.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. John MacKay)
I beg to move, That the Bill be now read a Second time.
Although legal aid in litigation has a long history in Scotland, it has existed in its modern form only since the implementation of the Legal Aid and Solicitors (Scotland) Act 1949. One of the opponents of that Act suggested that its provisions were virtually the liquidation of the profession in Scotland, but the rapid expansion of the legal profession in Scotland has demonstrated how inaccurate that was. The 1949 Act was implemented initially for civil actions only and the problems of providing criminal legal aid were not resolved until the passage of the Criminal Justice (Scotland) Act 1963 which allowed its introduction in the following year, with an extension to district courts as recently as 1975. The availability of advice and assistance in matters not involving litigation was clarified in the Legal Advice and Assistance Act 1972. I have mentioned briefly the developments since 1949 to illustrate the piecemeal fashion in which the present system has evolved.
There have been continuing criticisms of certain aspects of the legal aid arrangements, some from their very inception. The Royal Commission on legal services in Scotland, in its report published in May 1980, highlighted some of these. The Government concluded that changes were necessary and eventually we issued a consultation paper, over a year ago now, seeking views on what these changes should be.
The Royal Commission, which contained a fair sprinkling of lawyers, supported the view that it was wrong in principle for the Law Society, as the governing body of the solicitors' profession, to be responsible for supervising the payment of public funds to its own members, as it could not assert effectively the interests of the public purse where these conflicted with those of the profession. The scope for conflict of interest was subsequently increased through the assumption by the Secretary of State under the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 of responsibility for determination of legal aid fees.
In our consultation there was general support for the proposition that there should be established an independent board to administer most aspects of legal aid. This view was indeed reflected in the debate in the Scottish Grand Committee last July when the Opposition spokesman indicated that an independent body would be acceptable. Indeed, all those commenting attached great importance to the independence of the board, in particular in reaching decisions on legal aid applications. Although it was never the intention that the Secretary of State should be involved in such decisions, we have made it clear on the face of the 366 Bill in clause 3(4) that any guidance given by the Secretary of State shall not affect the consideration or disposal of applications.
I am also certain that a board containing members with the knowledge or experience referred to in clause 1(4) covering business, finance, information technology, management and administration, and consumer and social affairs as well as law and court procedures, will be better qualified to administer the legal aid arrangements than a body consisting entirely or predominantly of lawyers. It is important that there should be one body with express responsibility for the administration of legal aid and for reviewing its operation. In a sense, we are not so much establishing a new non-departmental public body to administer legal aid as changing the nature of an existing body and strengthening its management. The staff carrying out the functions will be broadly the same as those carrying them out at present.
While some improvements in administrative arrangements have been made in recent years, I am convinced that there is considerable scope and a real need for further rationalisation. The need stems in part from the vast expansion of legal aid expenditure in recent years. If administrative costs are left out of account, net expenditure on legal aid has increased from £7.8 million in 1978–79 to £38.5 million in 1985–86, an increase of over 390 per cent. compared with an increase in the retail price index of about 90 per cent. over the corresponding period. We simply do not know enough about the reasons for this expansion, especially in relation to criminal legal aid. One of the main defects of the present arrangements is the absence of management information to assist in the determination of how effectively and efficiently the system is operating and where changes should be made. There is also a very strong case for making better use of suitable management and other systems, including those relevant to public sector administration and accounting. I do not think that anyone could reasonably object to changes designed to secure that legal aid is available where it is needed and that it represents, and can be seen to represent, value for the increasingly large amounts of taxpayers' money expended on it.
The board will, of course, be taking over not only the various responsibilities of the Law Society and its legal aid central committee, but also those of the Scottish Home and Health Department in relation to the assessment of financial eligibility for civil legal aid. This will result, for the first time, in the same body considering both the general merits and the financial eligibility of applications for civil legal aid.
The board will also assume from the courts responsibility for dealing with applications for legal aid in summary, but not solemn, criminal cases. The inconsistency in the application of the various criteria for the award of legal aid, notably interests of justice and undue financial hardship, has been the subject of continuous criticism since criminal legal aid was introduced. The Royal Commission echoed this criticism and it has been repeated since then. In its 1983–84 annual report on the Scottish legal aid scheme, the legal aid central committee suggested that the procedure for granting criminal legal aid should be altered in the interests of uniformity, justice and possible economy. Such reservations as have been expressed about the arrangements envisaged under the Bill have tended to centre not on the transfer of responsibility designed to ensure greater 367 consistency but on whether the new arrangements can be introduced without materially increasing delays in court proceedings. All concerned are anxious to avoid delay wherever practicable.
The Bill in fact provides for the automatic availability of legal aid in the most urgent cases and I am satisfied that it will be possible to devise arrangements designed to limit to a minimum any delays in the consideration of applications. This is one of the matters to which special attention will be given by the management consultants whom I have recently appointed. I should perhaps emphasise that they will be advising on the administrative arrangements and not on policy questions.
Another all too valid criticism of the legal aid arrangements is the difficulty of finding a way through the maze of primary and secondary legislation. The Bill seeks to remedy this by adopting a clearer and more systematic approach. It deals separately with administration, with advice and assistance, with civil legal aid, with criminal legal aid and other forms of legal aid, and makes separate provision for each category. The consolidation of the primary legislation will serve to make it more intelligible. For example, the text of section 1 of the Legal Aid (Scotland) Act 1967 has been amended in previous legislation in nine different ways. The Bill also provides for a reduction in the number of types of secondary legislation through the abolition of schemes which account for much of the existing corpus of secondary legislation. These will, to a significant extent, be replaced by regulations. This has led to some criticism which I regard as unfair. We are replacing schemes which are not subject to parliamentary scrutiny by regulations which are.
I have referred to the major criticisms of the present arrangements and what might be done to meet them. Hon. Members will note that much of the Bill re-enacts existing legislation in a clearer form and that—criminal legal aid apart — it changes the administration rather than the substance of legal aid services. It may be helpful to the House if I outline the main new provisions in the Bill and how we envisage that arrangements might operate in future.
Clause 1 provides for the establishment of the Scottish Legal Aid Board which will unite most aspects of legal aid. I am confident that the combination of the various responsibilities in one body will lead to significant improvements in the administration in Scotland by overcoming the present fragmentation. I have already referred to the knowledge and experience which it is desirable that the board should have and we are inviting suggestions for board members from the Law Society, the Faculty of Advocates, the Scottish Consumer Council, the Scottish Association of Citizens Advice Bureaux and the Convention of Scottish Local Authorities. When my right hon. and learned Friend the Secretary of State comes to make the appointments, the deciding factors will be personal qualities and experience rather than representation of particular interests.
§ Mr. Nicholas Fairbairn (Perth and Kinross)
Can my hon. Friend advise us of the sort of salaries that the 30 members of that wonderful board are likely to receive?
§ Mr. MacKay
I am not sure whether my hon. and learned Friend asks that question out of interest or 368 disinterest. However, my hon. and learned Friend the Solicitor-General for Scotland will give the figures if we come to any conclusion on the matter at the end of the debate.
As to the staff of the board, personnel at present engaged on legal aid work will have the opportunity to transfer and the appropriate safeguards are set out in schedule 1. Part I and schedule 1 which relate to the establishment, functions and operations of the board, including its financial duties, are broadly in line with the provisions for other non-departmental public bodies.
Part II covers advice and assistance, and part III civil legal aid. Apart from the transfer of supervisory responsibility to the board there are few changes of substance.
I now turn to part IV which deals with criminal legal aid, and I should take the opportunity to explain how we propose to introduce assistance by way of representation for certain criminal cases.
The arrangements for criminal legal aid in the more serious cases dealt with under solemn procedure will remain essentially unchanged. The responsibility for considering applications will continue to rest with the courts. As at present, the courts will have to consider the financial criterion of whether undue hardship will be caused to the accused or his dependants, but not whether the award of legal aid will be in the interests of justice.
As for summary cases, there have always been doubts as to how far the courts which try cases should be involved in the award or refusal of legal aid on interests of justice grounds. There is accordingly a good case for transferring responsibility from the courts. Indeed, my understanding is that this will be welcomed by many sheriffs. As I have mentioned, the main concern is that this might in some instances result in delay in court business. This is why in developing our proposals we are paying special attention to the need to reduce to a minimum the time taken for the submission and consideration of applications. It should be practicable for the board to deal with urgent applications in a matter of days and other applications within a time scale that should not materially delay court proceedings.
§ Mr. Dick Douglas (Dunfermline, West)
I confess that I am not an expert in these matters, but representations have been made, particularly during the miners' strike, about the anomalies in the granting of legal aid. May I take it that there will be a more uniform standard in Scotland and that legal aid will be granted more expeditiously?
§ Mr. MacKay
The hon. Gentleman has drawn attention to something that has been raised before. He is right to suggest that, if consideration of granting legal aid in summary cases is taken away from individual courts and given to this body, there is every possibility that the granting of applications will be done on a more uniform basis throughout Scotland. Some of the criticisms of Opposition Members will then no longer be valid.
§ Mr. Donald Dewar (Glasgow, Garscadden)
We all have at least some respect for the principle of consistency. The figures were given by the Lord Advocate in the House of Lords, so that the Minister will be aware that the granting of legal aid for summary cases in the sheriff courts varies from a 90 per cent. to 58 per cent. success rate. Has the Minister formed a view about what the success rate will be under the new system?
§ Mr. MacKay
The hon. Member for Glasgow, Garscadden (Mr. Dewar) rightly draws attention to the variations. The success rate is sometimes over 90 per cent. I should not like to form a view because that will be a matter for the board to decide. It will have to try to impose a uniform system throughout Scotland. Clearly the rate will be between 60 per cent. and 90 per cent. —that is logical.
The hon. Member for Garscadden appears to agree that variations of 60 per cent. to over 90 per cent. show that we should have a more uniform system. The board's independence is important. If I said that the rate would be 80 per cent. or 72 per cent. hon. Members would immediately say that I was preordaining what the board should do. I am not doing that. I would expect something between the two extremes.
§ Mr. James Wallace (Orkney and Shetland)
The Minister refers to the time that the board might take to determine applications. Has he considered what may happen if a foreign skipper is brought into Orkney or to the Western Isles because of a contravention of a sea fisheries regulation? His catch might be left rotting on the quayside. How quickly could that skipper's application for legal aid be settled?
§ Mr. MacKay
I am not sure whether the hon. Gentleman's premise is right, because means have to be taken into account. I am not sure whether a foreign skipper with a large catch would be able to apply for legal aid. That is a bad example, but the hon. Gentleman makes a reasonable point. We must ensure that legal aid decisions are given quickly. We shall be looking to the board and the management consultants to find a way of administrating the scheme so that no undue delay is involved.
§ Mr. Barry Porter (Wirral, South)
I am sorry to involve myself in Caledonian matters, but what would happen to an Everton supporter who had been to watch Celtic playing and it was alleged that to finance that expedition he had robbed or burgled in Glasgow and he was arrested? According to the Minister, the board would deal with the matter in days. What would we do with that Everton supporter? Would we lock him up during those few days or would the matter be dealt with as it would be in England where a duty solicitor would appear for him —or is the solicitor supposed to do the job for nothing?
§ Mr. MacKay
My hon. Friend intervenes at the right moment because I was about to deal with the question of people in custody. People in custody will receive automatic legal aid until the conclusion of the first diet at which a plea of guilty or not guilty is tendered. In cases where the accused is in custody and pleads guilty, he will be entitled to automatic legal aid up to the final disposal of his case. Where the accused remains in custody after a not guilty plea at the first diet, he will be entitled to receive legal aid from the time he submits an application until the application has been determined. This should help to avoid delay in the preparation of cases.
§ Mr. MacKay
I am always cautious about crossing swords with my hon. and learned Friend the Member for 370 Perth and Kinross (Mr. Fairbairn), but I draw his attention to clause 22 in which I hope he may find something that will help him.
As at present, solicitors will be able to provide advice and assistance to those charged with an offence. Where an accused being dealt with under summary proceedings is not in custody, the intention is that criminal legal aid should be available in general after the accused has pled not guilty at the first diet. For other proceedings we are proposing to introduce by regulations made under clause 9, assistance by way of representation — inelegantly described as ABWOR. Where the accused pleads guilty at the first diet he will receive ABWOR, if certain requirements are met up to the final disposal of the case. The intention is that the decision whether ABWOR should be provided should rest, initially at least, with the solicitor who will have to satisfy himself that the applicant is financially eligible and that the provision of ABWOR is justified in accordance with prescribed criteria. These criteria are likely to be related to the factors taken into account in determining whether the interests of justice criterion is met, insofar as they are relevant in the case of a guilty plea.
§ Mr. Fairbairn
On a point of order, Mr. Speaker. The Minister referred me to clause 2 of the Bill——
§ Mr. MacKay
While the decision will rest with the individual solicitor, he will require to obtain the approval of the board in any case where he wishes to exceed the prescribed financial limit, as for other advice and assistance cases.
Those accused who plead not guilty at the first diet will, after any necessary consultation with their solicitor, make their applications to the board on a form which will in effect require the applicant to provide information designed to show that the relevant criteria are met— notably those relating to the interests of justice and undue financial hardship. Consideration of interests of justice where a legal opinion is required will be undertaken either by the board's legal staff or, more probably, referred to a reporter—a solicitor in private practice—for his view. The board will issue its decision in the light of any recommendation on interests of justice and of its own consideration of the financial factors. We shall be bringing forward in Committee an amendment to clause 24 to spell out factors to be taken into account in considering whether the interests of justice criterion is met. The granting of legal aid is not dependent on the accused person's criminal record.
§ Mr. Porter
Why is a not guilty plea treated as rather more important than a plea in mitigation of a guilty plea, which appears to be of significance in the Bill? That has not been my experience over 20 years. I should have thought that pleas in mitigation by people who have pleaded guilty are as important, if not more important. than pleas of not guilty.
§ Mr. MacKay
I have already dealt with that matter in the proposals for ABWOR. That deals adequately with those who plead guilty.
371 Part V deals with the employment of solicitors by the board. It is largely based on part II of the Legal Advice and Assistance Act 1972 which has never been brought into operation. Nor is it the intention that part V should be brought into operation at an early stage, although it is desirable to retain this reserve power to supplement legal aid arrangements if this should be required some time in the future.
The miscellaneous provisions in part VI are again largely based upon those in existing legislation — for example, those covering the arrangements for legal aid in proceedings arising out of children's hearings and in contempt of court cases, those setting out the responsibilities of solicitors and counsel and powers to regulate procedure, fees and other matters.
While I have not covered all the provisions in the Bill, I trust that the House will agree that it was right to concentrate on the major changes. I am confident that the House will agree with the main aims of these changes—to achieve greater consistency in the award of legal aid to increase efficiency, effectiveness and economy in the system, and to eliminate the possibility of abuse.
Although I have no doubt that hon. Members will wish to examine certain provisions of the Bill in greater detail in Committee, I very much hope that they will give general support to measures which are designed to improve materially the legal aid arrangements in Scotland. I accordingly commend the Bill to the House.
§ Mr. Donald Dewar (Glasgow, Garscadden)
I beg to move, to leave out from "That" to the end of the Question and to add instead thereof:This House declines to give a Second Reading to a Bill which does not adequately safeguard the independence of the proposed Scottish Legal Aid Board; provides no satisfactory appeal procedure for an applicant refused legal aid; and offers no effective guarantee that the right of the individual citizen to legal representation in the civil and criminal courts will not be eroded under the Government's policy of public expenditure restraint by the use of the powers given to the Secretary of State for Scotland to regulate such matters by order.Even the most unpromising Scottish debates always turn out to be diverting in the event. This debate is improving at the sight of the Parliamentary Under-Secretary promising us ABWOR from SLAB. I have every sympathy with the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) who seems to be having some difficulty with his two times table. I know that there are occasions when all of us see double, but on this occasion he seems to be seeing single. That must be disconcerting.
I start by lodging something of a muted protest. I think that the Minister would agree that the time for the debate is short. We are being invited to dispose of an important Second Reading debate in some haste. I recognise that one reason for that is the debate on shipbuilding. I certainly welcome the fact that there is to be discussion of the serious and tragic consequences of the announcement by British Shipbuilders. However, I certainly do not welcome the fact that this debate is being telescoped into about three hours. Many of my colleagues who would have liked to be here are engaged with constituents. In fact, a group of stewards are down from my constituency. Obviously I have to be present for the debate, otherwise I would be in the same position. I know that protests were made about 372 that, but they were blocked or ignored and the word came back that the Government felt that they might not be able to sustain a full debate on this matter. That was the rumour. I sympathise with them. I know that in many areas of Scotland Conservatives are not thick on the ground. They are about as common as a breeding colony of great auks.
We work in rather special circumstances in the House. Conservatives are more plentiful and they are artificially protected, at least until the next election. I should have hoped that there would be enough to sustain a full——
§ Mr. Porter
On a point of order, Mr. Speaker. Is there any chance of the hon. Gentleman getting to the content of the Bill?
§ Mr. Dewar
All I can say is that I have read the Bill, as the hon. Gentleman may discover. That is certainly more than he has done, judging from his earlier intervention.
I regret that we do not have more time. I am sure that the Minister will accept that I regret the fact that the Secretary of State for Scotland will not be with us during the debate. I understand that he is in Scotland. It may be that he is looking for Tory supporters and in that case, like Captain Oates, he may be some time. This is an important piece of legislation and it is unfortunate that the Secretary of State has not decided to take part in the discussion of one of the few Bills that is part of the Government's Scottish programme for this Session.
Before I turn to the merits of the measure, I should declare an interest. I am still a partner in a Glasgow firm of solicitors which, although it has a wide and varied practice, undertakes a certain amount of legal aid work. I am also, of course, as are other right hon. and hon. Members, a member of the Law Society of Scotland. Therefore, I have at least an indirect interest in legal aid in Scotland and, who knows, at some future date I may have a direct interest.
The Minister has represented the Bill as a sensible reorganisation and has predictably prayed in aid the Royal Commission on legal services in Scotland chaired by Lord Hughes. Although I accept the case for the independent Legal Aid Board, I do not think that it is an animal which is in any way related to the Legal Services Commission proposed in the report of the Royal Commission. I think that anyone who has read or remembers that report will agree. Of course, there is a case for making sure that there is no conflict of interest or, perhaps more accurately, apparent conflict of interest. That should always be avoided.
I think that it is a little bit of an anomaly that the Law Society of Scotland should have been in sole charge of the administration of legal aid when its own members so clearly had a direct interest in how that duty was discharged. I hasten to say that, not against the background of any criticism of the Law Society but merely because I believe that independence must be a public and visible virtue. I accept that, against that background, there is an argument for the transfer of the responsibility to an independent Legal Aid Board for Scotland. Therefore, I give my broad support to that key proposal, which I accept is the foundation of the Bill.
Having said that, I must remind the House that we have some doubts about how the change is being introduced and what lies behind the rather spare outline of reform that 373 appears in the legislation. The reasoned amendment reflects our caution and our substantial reservations on a number of points. I intend to invite my right hon. and hon. Friends to divide on the reasoned amendment, although not on Second Reading, at the end of the debate.
I shall try to run through my doubts rather quickly. This is very much an enabling Bill. It is only a sketch. I think that it is an example of a dangerous trend whereby the House delegates an enormous amount of power to Ministers. There are wide areas in the legislation which will have to be defined by administrative order and it is possible that if the Minister was so minded he could do what he likes when he likes, irrespective of opinion from other interested parties and bodies. I know that there is a check of parliamentary scrutiny but in the world in which we operate, one and a half hours, often squeezed in after 10 o'clock, with no prospect of amendment, is not an adequate or important safeguard. We would be left with a brief and, no doubt, symbolic outbreak of lamentation from the Opposition. We would become professional mourners, no more than that, if the Minister abuses the power that is proposed in the legislation.
I suspect that there will be widespread support for my next point, even from Conservative Members. We do not know a great deal about how this will work. I keep asking the most fundamental questions of colleagues who have been involved in negotiations and discussions with the Government, and they say "We do not know the answer." It is bad to ask us to put legislation on the statute book when we do not know about the nuts and bolts and have no real vision of what will happen. I hope that the Minister will be able to make draft regulations available either during or before the Committee stage so that those hon. Members who are engaged in the detailed consideration of the Bill are in a happier position than we are now.
The measure has been through the House of Lords and perhaps I could take a moment to pay a tribute to the work that was done by some of my colleagues. Lord Morton of Shuna was making his debut on the Front Bench on a law reform Bill. His expertise is certainly of great help to me. Lord Wheatley has retired from the rarefied atmosphere of the courts. We certainly value his views on these matters, whatever other people may think. The Government have had a good deal of time to prepare the regulations. I do not think that it is unreasonable at least to see drafts at this stage.
I want to raise one or two points, if only to give the Minister notice that they will almost certainly come up in Committee. I do not think that he will be surprised by them. We are proposing to take the granting of criminal legal aid from the courts. I think that I understood this from the Minister's speech, but I want to confirm that it is proposed that there should be a local solicitor who will get the application as the delegated man from the Legal Aid Board and, presumably, he will take the initial decision as to whether legal aid should be granted. Perhaps I have an interest as someone who used to work professionally with the children's panel system, but I am not sure that the term "reporter", which the Minister used and which is often used, is the happiest. That may be a small point to which some further thought could be given.
I would still put in a plea to the Minister—again I think that I will have widespread support—that there should be a residual power to the court to grant legal aid in criminal cases. It will, of course, exist for a plea in mitigation if the court is thinking of a sentence of 374 imprisonment and it will exist in solemn procedures where the courts will retain their present primacy of position. It is possible, without any great ingenuity, to imagine many cases in which circumstances may arise which would not be known to the reporter—if that is his term—when he initially considers the application but in which there might apparently be a pressing need for representation at the trial. It would be wrong if the sheriff could not deal with such an emergency.
The applicant may have a handicap, either a speech or hearing defect. Perhaps the witnesses are children and there are special difficulties about young children. It might become evident to the sheriff that it was in the interests of justice that legal aid should be granted. As I understand it—and I am open to correction—that power would not exist as the Bill is presently drafted. The Minister should consider that omission.
I hope that in the Minister's reply we shall hear something about the negotiations and discussions that have taken place between the justices of the peace. I know that they were looking for a departure from the principle of the Bill and I suspect that the Minister will not be prepared to make that change. The justices of the peace wanted the magistrates to continue to be the main granters of legal aid in district courts. I should be interested to know what happened in the discussions and whether any accommodation or agreement was reached with that important group.
The Opposition are keen to see the definition of the interests of justice. I have seen many ingenious shots at defining the interests of justice. We will want to consider that closely in Committee and it is important that those Members who will be members of the Committee should have an early opportunity to consider the Government's attempt at defining what some would consider to be the indefinable.
I recognise the case for consistency of approach in courts over the granting of legal aid. I accept the point about the variations. The 90 per cent. that I mentioned in my intervention is the all-Scottish figure. The Lord Advocate mentioned variations between 99 per cent. and 58 per cent. Anyone who was aware of the proper anxieties that existed during the miners' strike will know that the Opposition have sympathy with the idea of that variation and that the evident injustices that arose during the miners' strike, based upon geographical charts, should not be tolerated.
A consistent approach must depend on a right of appeal; I stress that point very strongly. In civil legal aid, as the Bill is presently drawn—again, I am open to correction —the right of appeal will be lost. At present, someone seeking aid who is refused by the local committee can go to the central committee. There is no such provision, as I understand it, in the Bill as drafted. That provision should be restored and extended. All of us have experienced cases where a sheriff or, under the new proposals, the reporter, has refused legal aid and the constituent has gone to his Member of Parliament. Many of us have felt that such people have had a raw deal, that the person is at risk, that the charge is a serious one and that the person involved will rind it very difficult to finance his defence.
If we are to change the position, it is important that we should include a right of appeal. That should he to an independent body, but if that is too ambitious there should be a right of appeal to the legal aid board, or some sub-committee of that board. There should be an Internal 375 review from the reporter's decision. That would strengthen the liberties of the subject and would be an important improvement. We will push that point hard in Committee.
I believe that the Committee stage will be interesting. Although I might be accused of putting forward a vested interest, there will be an argument about whether the Bill should contain a commitment of fair and reasonable remuneration. That has been strongly resisted by Ministers. I would not have thought that fair and reasonable remuneration was a challenging concept. However, the adventures of Lord Hailsham in courts in other parts of the world, and the possible arrival of the applied right to consultation, have sent a shiver down the Department's collective spine. The Opposition will want to probe that point.
It is universally accepted that there is a need to ensure the independence of the board. I welcome the concessions that have been made about membership. As I understand it, the Minister went a little further in his speech today when he said that there would be direct consultation with the Law Society, the Faculty of Advocates and other institutions. We will want to consider the Minister's words to decide whether that formula is satisfactory. I hope that the appointments, and particularly that of chairman, whatever the salary, will not simply be a matter of plucking someone from the top of the queue of the departmental list of the great, the good and the simply deserving. That is an important matter, and I hope that the Minister will give careful attention to those appointments.
In Committee we will have to take a hard look at clause 3(4), to which the Minister referred. The clause states:The Board shall have regard … to such guidance as may from time to time be given by the Secretary of State.The Minister went on proudly to say that there is a proviso to that and that that will not prejudice the consideration of an application. I take the Minister's point. However, we are worried that the guidance that may be laid down by Ministers will prevent many people and certain classes of people from making applications. If there are no applications to consider, because people are ineligible, it is little consolation to say that applications should not be prejudiced by that guidance.
I know that other hon. Members wish to speak, but I have several other matters to which I shall refer in passing. They are of a general nature, but they are important. The Minister may believe that my colleagues and, may be said, I myself, take an unduly suspicious and grudging view in our approach to this legislation. I recognise that many of the powers are contained in the Legal Aid (Scotland) Act 1967. However, we must decide whether we can trust the Government and their attitude on these matters. I am not making a personal judgment about the Minister; I am talking about the policy which he must implement. Like all junior Ministers, he receives messages from on high. The policy he must follow has some dangerous overtones.
There should be an adequate and comprehensive legal service and any citizen who has a legitimate interest to pursue or who is at risk in the courts should genuinely be able to promote his own defence or representation. If he is not able to do that, there should be the provision for him to do so. That is the bottom line. I want to be sure, during the remaining stages of the Bill, that the Government share that priority.
376 There have been some worrying signs and there is an atmosphere of hostility about legal aid. There has been talk of escalating costs, about value for money and the need for control. In its most perjorative form, it would seem that, when talking about legal aid administration, the Minister was addressing himself to local government in Scotland. I cannot think of a more damaging way to express that.
I have an uneasy feeling that the reorganisation might be an excuse to cut expenditure and put the right to representation at hazard. I concede immediately that there is no doubt that there has been a massive increase in legal aid costs. The Minister quoted the figures, and his are more up to date than mine. I have the figures for 1979–80 and 1983–84. Criminal legal aid costs rose between those years from £5.7 million to £18 million and civil legal aid rose from £3.9 million to £13.4 million.
I accept that those are formidable figures. However, they must be put into perspective. When we consider the figure of £18 million for criminal legal aid in 1983–84, it is worth remembering that the procurator fiscal service Crown office in that year cost more than £11 million. That is also a large sum, but no one grudges it. I am sure that only a small proportion of that figure was taken up by the activities of the Solicitor-General.
As one of my hon. Friends has said, legal aid is bound to be on a rising curve as crime increases. I will not get into a slanging match about who is responsible for that. However, on the same time scale of 1979–85, there has been a 36 per cent. increase in crimes reported to the police in Scotland. That is bound to work its way through into legal aid costs. The applications over four years rose from 43,077 to 68,402. Court appearances have risen and the prison population has increased and that will have an impact upon legal aid requirements. Sometimes we quote the legal aid figures in a vacuum and that can create an alarmist picture of what is a genuine problem but is explicable and perhaps inevitable in many ways.
§ Mr. Albert McQuarrie (Banff and Buchan)
The hon. Gentleman says that there has been an increase in crime of 36 per cent.—my figure is 40 per cent. —over the past six years. Surely legal aid cases should similarly have gone up by 40 per cent.
§ Mr. John MacKay
I appreciate some of the points that the hon. Gentleman is making, but between 1978–79 and 1984–85 the number of people assisted in criminal proceedings rose from 84,000 to 96,000—a 14 per cent. rise, which is not on the sort of scale that the hon. Gentleman was surmising from the crime figures.
§ Mr. Dewar
I was putting the figures in context and saying that there are factors that must be given weight. I accept that there is a problem and I am not trying to sweep it under the table. The Minister and I may disagree about the weight to be given to various factors, but we are all concerned about the same matter.
The argument is almost always about criminal legal aid, but I find the civil legal aid figures a great deal more alarming. Those costs have increased from £3.9 million to £13.4 million in four years. The cost per case rose from £298 to £615. The rise per head—if that is the right term—on the civil side is very much higher, and a 377 number of anxieties follow from that fact. People of modest means faced with a legal aid contribution of £500 or £600 do not know how to meet that cost.
There is a genuine and sharp cause for anxiety about the cost of litigation, a wider issue, which we cannot discuss now but which we should note. Criminal courts receive considerable public scrutiny but what happens in the more genteel and labyrinthine passages of civil litigation sometimes escapes attention.
No one wants to ignore the problem of cost, but the answer is not to reach for the Treasury axe. That would put liberties at risk. We must have a more subtle and graded approach.
We ought to consider court proceedings and methods of charging fees as well as the level of fees. The hon. and learned Member for Perth and Kinross has taken a particular interest in procedure matters and I have never been convinced by the argument of the Law Society, of which I am a member, that there is no profit in looking at English experience on the availability of statements. A number of such areas might merit continuing study.
I hope that our worries are not justified, because I recognise that the Bill will reach the statute book. Our worries have been reinforced by the Minister's consultation paper, in which some fairly extraordinary suggestions were canvassed about the number of times that someone had received legal aid in the past being a consideration in whether he should be granted legal aid in the present and about attempts being made to gauge the likely penalty in a case and to weigh its seriousness against the cost to public funds. Some of those suggestions were marks that were set up to be knocked down, but they caused anxiety and I do not believe that we have been too suspicious in mentioning them.
The Legal Advice and Assistance (Financial Conditions) Regulations 1986 provide that many people, particularly those in need, should be disqualified from benefiting from the legal aid advice and assistance scheme. That action was taken almost by administrative fiat. The Government said that, when income was being assessed, the offset for dependants should be reduced from 50 per cent. of the supplementary benefit scale to 25 per cent. The certain result of that is that very many people, often from the poorest groups in society, will be deprived of contact with a solicitor or other legal advice when they are considering whether they have a defence or a claim that should be pursued.
The Government's decision was petty and mistaken. It was penny-pinching of the worst sort and will cost a considerable price. It will bring into Scotland and other parts of the United Kingdom unmet need with a vengence. If that is the shape of things to come, our suspicious scepticism of some of the proposals on the table is justified.
I have made a long speech, and perhaps I am compensating myself for not serving on the Standing Committee. However, I think that the length of my speech has been justified, because this is an important subject and the Government have proposed a major reform.
The key is the attitude of Ministers and the Government. The Bill is a neutral framework and we must examine what the Government intend to do. One argument in the consultative document that was never knocked down and was the basis of the Minister's approach to legal aid 378 was deeply mistaken and I hope that it will not taint his view of how matters should develop. It was the argument
that legal aidshould permit those of insufficient means the same opportunity to pursue or defend their rights as is available to those of moderate rather than abundant means. It should not in general be available in a case which would not be pursued by a person of moderate means.The trouble is that we are reaching the stage when many good cases cannot be pursued by a man of moderate means, because of the cost of litigation. The cost of proving oneself innocent in a criminal court, when the system provides no recompense to a person who is acquitted, is a serious matter which is not addressed in the Bill.
If the consultation paper approach to legal aid is carried through, it will have serious consequences. Rights will not be enforced, because it will be too expensive to enforce them, and courts will be faced with many people who are unrepresented. That will be bad for justice, because a person who is not represented does not put forward a proper defence. It would be even worse if more people pleaded guilty and paid the fine or served the sentence of 30 days as the line of least resistance, because the prospect of raising £300 or £400 for their defence was beyond their energy or beyond their means.
The Lord Advocate said in the House on 20 February that there were discrepancies. He quoted the figures and said that people were not receiving what they might obtain elsewhere. That is obviously true in the sheriff courts where there are 60 per cent. success rates for legal aid applications. The Lord Advocate said that somewhere there had been injustice. I agree with him. The problem is how to cure the injustice. It is implied that we must move one way or the other, and it is not good enough to say that we shall stand in the middle and that there will be an arbitrary figure to which the legal aid board will have to conform, irrespective of the circumstances.
It is important that we accept that legal aid is demand-led and that the legal aid board or its reporters should 'lave the right to use their judgment. That is not a frivolous point. The section on the financial effects of the Bill includes a phrase that is not reassuring. It says:greater consistency in the award and refusal of legal aid … may result in savings.The word used is "may", but the person who wrote that is clearly hoping that by getting greater consistency we shall save money. That suggests that there is. An assumption that legal aid will be refused to a large number of people who would receive it at present.
§ Mr. McQuarrie
Will the hon. Gentleman give way? Mr. Dewar: No; I am just finishing.
If legal aid is to be refused to more people, our suspicions are justified and the right to representation is in danger. It is fundamental to freedom that those at hazard in the courts and from the complexities of our legal system should receive the aid that their situation deserves, We are determined to ensure that everything that we do throughout the remaining stages of the Bill is aimed at achieving that end.
§ Mr. Nicholas Fairbairn (Perth and Kinross)
I congratulate the hon. Member for Glasgow, Garscadden (Mr. Dewar) on his speech. I regret that both time and, 379 probably, his interest prevented him from putting many matters more robustly, but he has done the House and Scotland a service by raising the issues that he mentioned.
No doubt I, too, should declare an interest, which is that, when instructed by the hon. Member for Garscadden and his partners and others, I have been the recipient on occasion of legal aid funds. In mitigation, I am bound to say that whereas criminal legal aid was authorised for Scotland and England in 1949, it was not effective in Scotland for 11 years, until 1960, and I defended many people for capital murder for the sum that one then received of £1.98 travelling allowance. It cannot be claimed that anything that I say on this matter is inspired by my interest in the fees that I might have received.
There has been a tradition in Scotland since King James V passed his Act in 1424 thatsic a manspeaking of a man accused by the Crown—shall have a wyse and lyl advocate to pled his cause.The honourable tradition of Scotland is that no man goes without the best lawyer, whatever charge is made against him, presuming as we do his innocence. If the Crown is to be represented by a lawyer, as it is in Scotland, even on the most minor occasion, it is right that the accused man, whose innocence is presumed, should also be entitled to be defended by a lawyer.
I was not elected at the last election to enlarge the number of quangos. I am against quangos. It was argued by the hon. Member for Garscadden that the Law Society appeared to be offending against the great principle of natural law, that it is judex in sua re—judge in its own cause—in granting legal aid. That is not a proven case, and I have not heard any complaint about it. The Law Society and those who serve on it have conducted the granting of legal aid with judgment, parsimony and humanity.
I have never heard complaints about the Law Society's administration of the legal aid fund. I want to address my remarks to the Prime Minister, and I hope that my hon. Friend the Member for Aberdeen, South (Mr. Malone) is listening and will transmit them to the Prime Minister, because I know her views on these matters. We are setting up a new quango. Any hon. Member who wishes to find out about the motivation of a quango will find that it is inadvertently included in the introduction, the explanatory note as it was called, to the Bill. Perhaps it should be called the indiscreet note. It says on page IV:The Bill should reduce the number of staff working in the Scottish Office by about 50.No doubt the permanent secretary will be able to say, "Prime Minister, I am a great guy. I have decreased my staff by 50."
The Bill goes on to say:These posts, and around 220 Law Society posts will be transferred to the Board"—that is not our board, so we will not accept responsibility for adding 270 people to the Civil Service, and no doubt somebody will be rewarded for that enlargement—which will initially employ about 300 staff including those transferred.I understood that the Government were supposed to be reducing numbers in the Civil Service, but by a complete fraud they have managed to increase the number from 220 in the Law Society to 300 extra civil servants.
380 I want to know from the Minister what salaries these people will be paid. It is all very well for the hon. Member for Garscadden to say that it is marvellous that there will be a toffee-apple merchant and a consumer and a one-armed bandit on this board because that will be awfully fair. I have never held the view that we should have quangos on which everybody who is anybody or nothing is able to have a voice. I do not regard that as a sane way of running the granting or refusing of legal aid. I can say who the 30 people on the board will be: they will be the bored. They will get the jobs and some of them will probably receive the rises recommended in the top people's salary review. They will be the people deciding whether Mrs. Pennysmith, who is charged with stealing a postal order worth 5p, should get legal aid. I find that offensive and absurd.
I was not elected to pass legislation which has no meaning and which is not for the decision of this House, but merely says that we will set up a game of draughts and the Secretary of State — whether he is a Socialist Secretary of State, God help us, or an alliance one, which is a fantasy anyway, or a Conservative Secretary of State —will invent the rules. He will tell us whether all the draughts will be of the same colour, whether there will be only seven squares or whether the board will be triangular. That is what the Bill will allow, because it attempts to set up a statute which any person who understands English and has the intelligence required to win Mastermind could not understand. It sets up a situation in which 23 subsidiary opportunities of regulation are supplied by the Secretary of State.
I do not know who the Secretary of State will be, but whoever he is, whether he is a Labour, Tory or alliance Secretary of State, he will not write the regulations. They will pass across his desk with a whisper of wind and then come to the House. At 11 o'clock at night, after we have been voting on whether we should have bombed Libya, they will pass through the House without notice.
The questions raised in the Bill are fundamental, because the Bill says that the lawyers will get fair and reasonable remuneration. What is fair and reasonable? I understand that the words fair and reasonable are used. Let us assume that it is defeated lawyers who define a reasonable man, perhaps a man on the top deck of a Clapham omnibus, which does not help us in Scotland. I have always taken the view that the phrase "beyond reasonable doubt" is an amazing concept in the law of Scotland, where we have majority verdicts. If eight people think the chap is innocent, or if seven think he is guilty, or the other way round, I should have thought that that was a fair doubt.
§ Mr. John MacKay
My hon. and learned Friend made a point about fair and reasonable remuneration. Where is that in the Bill?
§ Mr. Fairbairn
If it is not in the Bill, why not? That is the point that I am making, and I am thrilled to know that, having slowly dug a little trench, the Minister fell into it.
As the hon. Member for Garscadden said, there may be many occasions in a summary trial when the grant of legal aid ought to be immediate. Difficult points of law or evidence may arise, and if the sheriff must then go to the board—given that it is a bureaucracy, and particularly if there are 30 more members than at present all subject to these huge salaries—it will be no more than a farce.
381 One of the great traditions in Scotland is that a man in custody on a summary charge must be tried within 40 days. How many of those days will be taken up while this wretched board considers whether legal aid should be granted before those who represent the person can investigate the crime or know that they will be paid for doing so?
Clause 22 appears to contradict what I have said, but as the hon. Member for Garscadden said, the concept is that this will save money. How will it do so? When the concept of cash and the interests of justice come into conflict, in which way will this glorious universally representative board jump? We need only look at clause 3(4), which states:The Board shall have regard, in the exercise of its functions, to such guidance"—it sounds like a meeting of Jehovah's Witnesses—as may from time to time he given by the Secretary of State; but such guidance shall not affect the consideration or disposal of applications for legal aid or advice and assistance.What will the guidance be about? Will it say, "You are only allowed to talk in turn; you will have to have green hair when you turn up at board meetings, but it will not affect your decision."?
The Bill is a bluff that says nothing comprehensible to the sensible person. It is not addressed to principle. Its purpose is to save money on the legal aid scheme.
§ Mr. Fairbairn
It is not cuts again. It is a wrong approach to a correct attitude, which is how to save public money being wrongly spent on lawyers. I can tell the House how to do so, but the last way in which I would do it is to do what is proposed in the Bill. If legal aid was given to everyone who applied for it, and if we cut the leash of all lawyers and they ran for ever, be it in respect of planning inquiries or whatever, the money spent on the administration that the Bill introduces would be saved and legal aid would cost less. I believe that to be a truth.
There are abuses and wrongs in the legal aid system, and there are advantages in going to trial when one should not. There are advantages in giving a client advice that should not be given, which I trust neither I nor the hon. Member for Garscadden have ever done. There are methods which I have consistently suggested to my hon. and learned Friend the Solicitor-General for Scotland, and which I proposed when I was Solicitor-General for Scotland — which have never been in doubt — which could stop such abuses.
The Bill is not the way to do so. It will enlarge bureaucracy and decrease justice, and it misunderstands the concept of equity which King James V introduced as long ago as 1424, and which the lawyers of Scotland were happy to do for nothing.
This is a bad Bill. Justice will not be done, because since 1979 the fees paid for legal aid have fallen substantially by 40 per cent. I do not want to see bad justice. I do not want to see lawyers advising their clients to go to trial because the fees are so low that they would benefit from doing so, or because the fees are so low that they have to benefit by doing so.
This is a bitter and wrong circle that is contrary to the principles of equity and justice. I am sorry that this scheme has been proposed. It is bad. It inspires a bureaucracy that is interested in its own enlargement and mitigation. It will 382 do nothing for justice. Let us not forget the principle of justice in Scotland, which is who matters most. Each of them is accused by the state.
§ Mr. James Wallace (Orkney and Shetland)
Following the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) and the hon. Member for Glasgow, Garscadden (Mr. Dewar), I find that many of the most formidable points against the Bill have already been made.
I share the view expressed by the hon. Member for Garscadden. It was disappointing that the Secretary of State for Scotland did not introduce the debate on this extremely important Bill. Instead, that was left to the Minister who, when he moved the legal advice and assistance regulations in November 1984, had difficulty in distinguishing between the green form under the English procedure and the pink form under the Scottish procedure. From his knowledge of ABWOR and so on, the Minister today showed that he is not as green as he was on that previous occasion. However, it is a pity that for such an important piece of Scottish legislation the Secretary of State was not present.
Any Bill that deals with the individual and his relationship with the administration of justice is by definition of importance, the more so when the provisions of a Bill such as this amount to a fundamental reform of our legal aid system. We are dealing with an insidious Bill, not only for what it says in parts but more significantly for what it does not say. In effect, it is a Trojan horse of a Bill. On the outside it does not look particularly dangerous, but once it is enacted all sorts of regulations might come tumbling out that could badly affect the interests of justice in Scotland.
Almost one in two of the clauses provide for secondary legislation. It is undoubtedly much more convenient for the Executive to operate by way of secondary legislation particularly, as is the case with some of the Bill's provisions, if the negative procedure is to be used. The hon. and learned Member for Perth and Kinross referred to the fact that regulations may well be discussed at 11 o'clock at night, but in some cases, particularly under the negative procedure, they may be shunted upstairs to a Committee, where hon. Members cannot possibly deal with the issues, where the regulations are incapable of amendment and where effectively they cannot be stopped. It would amount to an abdication of our duties as a legislature if we left almost entirely in the hands of the Executive the circumstances in which one may qualify for legal assistance or the criteria for determining whether it is reasonable for a person to receive civil legal aid.
Turning to the provisions for criminal legal aid, where a person's liberty, livelihood or reputation may be at stake, it cannot be right to give the Secretary of State a free hand, as clause 21(2) purports to do. It says:The Secretary of State may, by regulations made under this section, prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available.That will not necessarily apply to the present Administration. Even if one were dealing with a Secretary of State on whom one could rely to be benevolent, it would still be important that the House should have a positive input on these matters and that regulations should not be left on a "take it or leave it" basis.
383 Even if we have a benevolent Administration today —which is perhaps—we cannot be sure about what will happen in future. Any class of proceedings for which legal aid might be made available could, if a future Secretary of State wished, exclude offences arising out of an industrial dispute. That might not happen, but one has to provide for circumstances in which there could be political motivation.
In April last year, in answer to an oral question from the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes), the Solicitor-General for Scotland said:The hon. Gentleman reveals what I have always suspected. He believes that the prosecution system should be used for political purposes.Replying to the hon. Member for Glasgow, Cathcart (Mr. Maxton), he said:Once again, the hon. Gentleman shows that he wants to introduce a political element into prosecutions." — [Official Report, 17 April 1985; Vol. 95, c. 260.]It may be unlikely that either of those hon. Gentlemen will ever occupy the position of Secretary of State for Scotland, but it is not impossible. If the Solicitor-General for Scotland fears that they might use the prosecution system for political purposes, might they not use the legal aid system for political purposes? We must be on our guard against that, and we cannot do that effectively by leaving so many important areas of eligibility for legal aid to secondary legislation.
The very minimum that many of us will want in Committee will be the affirmative resolution procedure for some regulations which are currently to be subject to annulment by either House. As an example, I cite clause 9 which deals with the regulations on eligibility for legal advice and assistance. Amendments will be tabled to attempt to circumscribe the secondary legislation. In other cases amendments should set out expressly what the regulations should include.
Reference has already been made, particularly by the Minister in opening the debate, to the interests of justice. There are some advances in the Bill on what happens at present, because there is wide diversity in the granting of legal aid applications by sheriffs in different parts of the country. It is unsatisfactory that in some smaller sheriffs' courts the sheriff who is asked to determine whether it is in the interests of justice to grant legal aid will also be the sheriff who will subsequently preside at the trial.
There is merit in the case for greater consistency, but I would rather not have this qualification in the Bill. As the hon. and learned Member for Perth and Kinross has indicated, if the full weight of the Crown is being brought against an individual, with the Crown using a qualified lawyer to prosecute the case, then, particularly having regard to the penalties which might follow, it is only right, if the financial qualifications are satisfied, that the accused person should be granted legal representation.
If the phrase "interests of justice" is still to be considered by the board, it should not be left to be determined by the Executive by means of regulation. The suggestions in the consultative document do not fill one with great confidence about what may happen. The consultative document suggested that it might not be in the interests of justice to give legal aid to people who have had legal aid on several previous occasions. I see no reason why persistent offenders should not be given the same presumption of innocence as others.
§ Mr. Wallace
If the Minister can assure me that that will not be in the regulations, I shall gladly give way.
§ Mr. MacKay
I can only assume that the hon. Gentleman did not listen to what I said. On the two points that he has just raised, I made it clear in my speech that in Committee we shall be bringing forward an amendment to clause 24 to spell out the factors to be taken into account in considering whether the "interests of justice" criterion is met. Immediately after that I said:The granting of legal aid is not dependent on the accused person's criminal record.Therefore, I do not see the point in the hon. Gentleman's raking up these matters again.
§ Mr. Wallace
I apologise to the Minister. I listened carefully to his speech but I did not hear him say that. I thought he was indicating that there would be draft regulations. I did not understand that he intended to table an amendment. I am pleased to be corrected. Nevertheless, it does not detract from my main point. I do not think that the "interests of justice" should be a qualification when dealing with the granting of criminal legal aid in summary cases.
I endorse what has already been said about the absence of any appeals mechanism following the refusal of legal aid. Attention must be given to that in Committee. We must also consider the scope of legal aid. Increasingly the matters on which individuals have their rights challenged, or on which they wish to make claims, arise in areas where legal aid is not available, such as industrial tribunals, medical appeal tribunals, and the many other tribunals which have proliferated recently. Those often affect individuals in their everyday life, so we should consider how the scope of legal aid might be extended.
Small businesses, as corporate bodies or sometimes as unincorporated partnerships, may find themselves involved in taxation cases and feel that they cannot go the whole way in challenging the Inland Revenue because of lack of resources. An examination might be made of how such firms could qualify for legal aid.
I have had complaints from people in my constituency who have been non-assisted parties and who, when they have won the case, have not been able to get their expenses back, so they have been much worse off at the end. The severe hardship test, which exists at the moment and which is to be re-enacted, is not necessarily the fairest way of dealing with such a person.
The board will be a major innovation following the 36 years during which the Law Society of Scotland has administered legal aid. The Opposition Front Bench and the Scottish Consumer Council, in letters to all Scottish Members, have said that it is not right that the professional body that manages the legal aid scheme should at the same time have what might be seen as a competing professional interest. It is only fair to record that during the period when the Law Society of Scotland has administered the scheme, there have never been specific charges of mismanagement or substantive evidence of impropriety on the part of the Law Society in the administration of the fund. The only justification for the establishment of the board, therefore, is that not only should justice be done but that it should be seen to be done.
If independence is important, it is equally important that the board should be seen to be fully independent of 385 the Secretary of State for Scotland, not least at a time when an increasing number of actions are being brought against the Secretary of State for Scotland or other Ministers because of the increasing availability of judicial review. Nevertheless, the Government have decided upon a board, to which the Secretary of State will appoint the members, to which he will appoint the chairman and to which, under clause 3(4) he will give guidance. We have heard that guidance will not affect individual applications for legal aid. I should be interested to know from the Minister or the Solicitor-General for Scotland what sort of guidance is envisaged under clause 3(4). In Committee, we shall wish to satisfy ourselves that, when set up, the board will be as independent as possible from the Government.
It is important to look at the purposes of the Bill, apart from the establishment of a board which may be seen to be independent. One always comes back to the financial constraints and the give-away in the explanatory memorandum regarding the Bill's financial effects which has already been quoted. There are undoubtedly ways of improving efficiency and getting better value for money for legal services in Scotland. In recent years we have seen the development of divorce actions moving to the sheriff courts and now involving a minimum amount of work. That is one way of saving money. There are now a number of fixed penalties for motoring offences, and there is a diversion from prosecution, and the motor vehicle rectification schemes. They all save money. We should look to save money through our procedures rather than through the mechanism of legal aid.
The long title of the Legal Aid and Solicitors (Scotland) Act 1949 said that the measure soughtto make legal aid and advice in Scotland more readily available for persons of small or moderate means.Yet the consultative document that preceded this Bill said that legal aid should in general not be available in a case which would not be pursued by a person of moderate means. That is contradictory. I fear that in a number of cases people of moderate means will feel that they cannot assert or fully defend their rights because of the present structure of legal aid. As legal aid limits have failed to keep pace with inflation, some people have found themselves beyond its scope.
As the hon. and learned Member for Perth and Kinross said, the legal profession in Scotland has a long tradition of making its services available free, particularly for criminal legal aid. I fear that the Bill goes a long way to undermining that tradition.
For the reasons given, my right hon. and hon. Friends and I will happily support the reasoned amendment.
§ Mr. Michael Hirst (Strathkelvin and Bearsden)
I accept that I am a fairly unusual animal on the Government Back Benches, in that I have no direct or indirect interest in the law. However, as a graduate in law from a Scottish university, I have been intrigued to discover how many of my acquaintances from 20 years ago have sought to renew that acquaintance, and, in particular, to ensure that they have access to my right ear. I must pay tribute to their skills of advocacy, because the many lawyers in my constituency —the cream of the west of Scotland legal fraternity — have been singularly effective in lobbying me during the past few months. Indeed, they were so well organised that they started the lobbying process last summer even before the Bill was published.
386 In a year in which I have constantly been lobbied by many interest groups, I must compliment them on having done so in the most civilised way possible. They got themselves together, organised a most agreeable buffet supper, and over a second helping of excellent salmon mousse I agreed to make robust representations on Second Reading today. In fairness, they presented their case most succinctly and honoured their bargain not to bombard me with lengthy letters that would require long answers. That was before they deployed their secret weapon—a most agreeable and charming young lady who put the points to me most effectively. [Interruption.] Fortunately, everything that I say in the House is privileged, and the legal community has no right of recourse against me.
I accept the need for a review of the system after 36 years, and the Minister cogently argued why reform was needed. It would be wrong of me to delay the House by saying anything further on that point. However, the separation of the powers of the judiciary and the Executive should in no way be compromised. That is a vital constitutional principle. I understand the fears that have been expressed on both sides of the House about the extent of the use of regulations under the Bill. Equally, I can appreciate the problems if, instead of regulatory powers, the Government were to try to introduce in primary legislation a prescriptive structure for legal aid. The disadvantage in that is that it would not allow the legal aid system to respond to the undoubted changes that will take place in future. I have argued that the content of the regulatory powers seems to be about reasonable.
I should like my hon. and learned Friend the Solicitor-General to assure me that there will be appropriate parliamentary control over these regulations. I have looked quickly at the Bill, and it seems that relatively few of the regulatory powers which are being granted involve an affirmative resolution of the House. I should like to know what is in the Government's mind regarding some of the areas where there will be regulations. I seek reassurance that the regulations will not be used in any way to exclude a category of crime from eligibility for legal aid.
The paragraph on the financial effects of the Bill confirms the expectation of higher administration costs, which it is hoped, will be offset by savings and a greater throughput of cases, hut it then states:greater consistency in the award and refusal of legal aid, in particular criminal legal aid, may result in savings.I repeat the point expressed by the hon. Member for Glasgow, Garscadden (Mr. Dewar), that many lawyers and members of the public fear that there is an intention to cash-limit legal aid. To summarise the weight of representations that I have received from many lawyers in my constituency, there is an impression that the intention may be to cash-limit legal aid. I have assured them that that is a misconception, but I invite the Solicitor-General to assure the House that there is no intention to deny legal aid in any way because of that.
The hon. Member for Glasgow, Garscadden referred to Dumbarton district court. According to my figures, 99 per cent. of applications for legal aid there are granted, whereas only about 60 per cent. are granted in the Dundee district court. He questioned how there could be justice when in one area the level of awards granted is high, and in another it is low. There may be special circumstances of which I am unaware, but in a constituency case, which I have referred to the Minister, when three young men 387 were accused of a crime in identical circumstances, two were granted legal aid, and one was not. For the sake of my constituent and for my information, I should like to know why that was so.
Questions have been asked about the composition of the board, and the importance of its independence has constantly been reiterated. I notice from the Bill that two of its members will be members of the Faculty of Advocates and two will be members of the Law Society. I hope that there will be appropriate consultation to establish in advance the breadth of experience and suitability for the job of those who represent those interests on the board. I echo the point made about the need for independence of the board.
The Minister was asked about the speed of reaction of the board. It is critical to establish that. My hon. Friend showed a touching, and I hope justified, faith in the ability of the management consultants to come up with a scheme which allows speedy approval or otherwise of applications for legal aid. I beg him to forgive my cynicism about what management consultants can achieve. Bearing in mind that legal aid applicatons in summary cases will go straight to the board and bypass the court, I want to be satisfied that there will be no question of the board's not responding sufficiently quickly and of the person facing the problem of obtaining a suitable defence before he appears in court.
Is there any case for a residual power in the court to grant legal aid, instead of it being hog-tied to the board? It is perhaps because many hon. Members tend to get cases from aggrieved constituents for whom the system has gone wrong that we recognise the fallibility in the organisation of administrative structures. It is important in the interests of justice to be sure that the boards can take appropriate action to let the accused or the person involved in litigation know precisely where he stands on a legal aid application.
I am well aware that there has never been a right of appeal against the refusal of legal aid in criminal cases in Scotland. I notice that such a right of appeal exists in England and Wales, and, unlike the hon. Member for Dundee, East (Mr. Wilson), who always perceives a slight upon the Scottish people, I simply raise this point to seek some information as to why there should be no right of appeal in Scottish cases.
For example, I should be interested to know how many cases in England and Wales result in an appeal against the refusal to grant legal aid. I should further be interested to know in what proportion of these cases the appeal is upheld, because if these figures are significant it would show that the system is a vital safety net in the right of appeal. In that case, I should want an assurance that my hon. and learned Friend will at least consider whether a similar arrangement would be appropriate in Scotland.
§ Mr. Fairbairn
My hon. Friend should know, and I dare say that the hon. Member for Dundee, East (Mr. Wilson), although he always casts slights on the people of Scotland, will know, as a solicitor, that there is a right of appeal in civil legal aid cases, which the Bill takes away.
§ Mr. Hirst
I have no doubt that my hon. and learned Friend, as a member of the Committee, will follow up that point. I am seeking to fly a kite for the right of appeal in criminal cases. I wonder whether, if a formal right of appeal is not being given, there can be a review of the procedure.
388 Clause 15 deals with financial conditions, and perhaps it is appropriate that somebody who escaped from the law to the accounting profession should automatically turn to this clause. It deals with the financial limits in civil legal aid. I notice that a person may be refused civil legal aid if his disposable capital receipts are £4,710—a modest. sum of money—or if his disposable income does not exceed £5,415 a year after making allowances for his domestic circumstances, mortgage and the rest.
The clause gives me slight unease, because we have established in the legislation a prescriptive limit which, in the case of an individual whose disposable income is El above the limit, will bar him from eligibility. I notice the hon. Member for Falkirk, East (Mr. Ewing) shaking his head. If my hon. and learned Friend the Minister cannot give me clarification, perhaps the hon. Gentleman would like to do so.
§ Mr. Hirst
I am aware that this is a replication of what we now have. However, a Second Reading debate allows Members to raise points of principle about the continuation of the system after we move on to the new arrangements. I have frequently made the point that the people who have middling incomes are those who are probably least able to embark on litigation, for the simple reason that they could be exposed to substantial costs. I should be interested to know how disposable capital is defined. This has produced a novel concept. For example, a man who, like myself, has tried to make provision for his family and has invested in a retirement policy, or a life assurance policy, may find that such policies are regarded as disposable capital because they have a potential surrender value. Will the man who has stuck some money into a bank or building society against a rainy day find that he will be discriminated against for legal aid purposes?
Would it not be more reasonable to make legal aid available, provided that one can establish probabilis causa, subject to the litigant being required to make a contribution depending on his or her circumstances, as determined by the board? I appreciate that that would have a revenue implication, because it would bring into the net people who at the moment are debarred. The House has properly shown a concern for the rights of a person without a modest income to obtain legal aid, and I hope that in its wisdom it will not overlook those who, because of their material circumstances, do not qualify, and will not under the new Act, but who nevertheless do not have the resources to embark with confidence on satisfying their rights in a court of law.
I have no brief from the legal profession to raise the point of its members' financial remuneration. However, I was interested in the amusing exchange between my hon. and learned Friend the Minister and my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn). The latter asked about fees for those engaged in legal aid work. I understand that in English legislation it is 389 necessary for fees to be "fair and reasonable", but Scotland has never had such a definition, and the Bill simply restates that position.
Will my hon. and learned Friend the Solicitor-General address himself to this problem and introduce something in the Bill about the fairness and reasonableness of fees for those engaged in legal aid work? If the figure of remuneration drops below a reasonable and realistic level, there must be a danger that more experienced legal practitioners will cease to take legal aid work and will pass it on to much less experienced junior people.
I recognise that a balance needs to be struck, and I am aware that many people who went through university with me were able to found firms, and invariably nowadays seem to be extremely prosperous, on legal aid, which in a sense has helped them on their way. However, I should not like to think that the remuneration from legal aid would be such that competent, talented and experienced legal practitioners, who could give the defendant or the accused the chance of a decent experienced representation, would be deterred from undertaking the work, and the cases would be left to the mercy of relatively junior and inexperienced legal practitioners. I am sure that the Minister will agree that the interests of justice would not be best served in that way.
I seem to be adopting an alliance sense of fairness and balance. The argument that legal aid cases are not being dealt with by skilled practitioners has not been made positively, nor has it been established.
It has perhaps been a little indulgent on my part to have bored the House so long with my points. Because of my membership of the Committee discussing the Finance Bill, there is probably no chance of my being on the Committee on this Bill to move amendments and raise these points. However, in view of the fact that I represent many legal practitioners, I feel strongly that the points of concern that they have represented to me should be aired in the House, and I am grateful to the House for letting me do so.
§ Mr. Willie W. Hamilton (Fife, Central)
I am modest enough to believe that I am well qualified to speak in the debate, first, because I am an Englishman; secondly, because I am a layman: thirdly, because I do not like lawyers very much; and, fourthly, because I am a Socialist. It is well to approach the matter in that mood. I have occasionally met lawyers whom I respected and liked a little, but I could count them on the fingers of one hand. I have considerable affection for the hon. and learned Member for Perth and Kinross (Mr. Fairbairn), not least since he spoke earlier in the debate. Everyone who has spoken in the debate has adduced reasons why we should treat the Bill with the gravest of reservations.
I echo the tributes paid by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) to Lord Morton, Lord Wheatley, Lord Wilson and Lord Hughes—
§ Mr. Hamilton
And Lord Ross. English peers such as Lord Foot and even Lord Denning have expressed the gravest reservations about the Bill.
The worries might be encapsulated under four headings. The first and most important is the questionable independence of the board. The hon. Member for Strathkelvin and Bearsden (Mr. Hirst) made an extremely 390 valid point. It is critical that the judiciary is seen to be separate from the Executive, but the Bill is a big step in the opposite direction. Secondly, the Secretary of State has enormous powers in this area. He is almost saying, "You get on to the field and play the game and I will decide the rules as we go along. Moreover, we shall decide the rules at midnight, when most hon. Members have decided to go to bed."
Thirdly, many hon. Members have said that the right of appeal is being eroded——
§ Mr. Hamilton
I hope that the Solicitor-General will make it clear that the right of appeal is not being eroded. It is certainly not being extended. The Scots are in a worse position on this matter than are the English. Where the Scottish law is inferior to the English law, we should not allow it to continue a moment longer.
The fourth cause for concern relates to my point about being a Socialist. I have long believed that, in 1945, the Labour Government should have treated legal aid in the same way as they treated health, so that every man and woman had the right to protect himself, his honour arid his reputation in the law courts in the same way as the individual had access to medical treatment, irrespective of means. That is not possible now. I doubt whether any Government would lift their eyes up to that height and that ideal in the foreseeable future.
On 2 July last year, the Scottish Grand Committee debated the law and legal services. My hon. Friend the Member for Falkirk, East (Mr. Ewing) asserted that we wanted an independent body to administer legal aid. He specifically said that we did not want a Government quango where legal aid would be restricted by the annual edict of the Treasury. That is precisely what we are getting. The hon. and learned Member for Perth and Kinross was right. My hon. Friend's fears have been realised in the Bill.
The Parliamentary Under-Secretary of State for Scotland—the hon. Member for Edinburgh, South (Mr. Ancram) —had not spoken for more than a few minutes in that debate before he began to moan about the escalating cost of legal aid. The figures that he quoted, excluding administrative costs, were about £7.5 million in 1978–79 and about £33.5 million in 1983–84. Despite the challenge from my hon. Friend the Member for Garscadden, the Minister said that he did not know what the causes were. The Minister who spoke today, the hon. Member for Argyll and Bute (Mr. MacKay), mentioned the escalating cost again without referring to the causes or how to eliminate or reduce the causes of the escalation.
The hon. Member for Aberdeen, South (Mr. Malone) has been elevated since he spoke in the debate. He had similar misgivings about the contents of the consultative document and the Government's real intentions in the matter. Does he have the same reservations now that he has seen the Bill? His reservations should have been fortified by the contents of this wretched Bill.
In replying to that debate, the Solicitor-General said nothing special — that is not unusual for him — but quoted again the Government's alleged motives for introducing the legislation, including the ominously repeated Government phrase, "the need to get value for money." When I hear a Minister use that expression, I 391 reach for my gun, because it is another word for slashed expenditure, whether on education, housing, health or local government.
The Bill got a rough reception in the other place. On 20 February, on Second Reading, the Lord Advocate repeated the expression "value for money", the threat or the promise to put available resources to better use and pointed further to the scope to eliminate the possibility of abuse, although there has been no sign in this debate or then of where that abuse occurred. The hon. and learned Member for Perth and Kinross made it clear that the abuse lies in the high charges of the lawyers, and I entirely agree with him.
§ Mr. Hamilton
I am not here to justify it. The lawyers are better able to justify it, although I suspect that they will not. The trade union leaders have much to learn about organisation and greed from the lawyers. I have never seen a poor lawyer.
§ Mr. Porter
Is there the slightest possibility of the hon. Gentleman adducing some evidence in support of that assertion? Does he have any idea how much solicitors are paid in Scotland, England, Wales or Timbuktu? Does he have any idea of the legal aid rates for counsel in Scotland, England or Wales? If he does not, will he kindly shut up?
§ Mr. Hamilton
I am grateful for the hon. Gentleman's courtesy. I shall reply to him in kind. He is here as an English lawyer — he is not especially interested in Scottish matters—but he is not a poor lawyer. I repeat that I have never seen a poor lawyer.
§ Mr. Porter
If the hon. Gentleman addressed his remarks to the managers of the Midland bank, he might find that they had something different to say.
§ Mr. Hamilton
I shall ignore that as I wish to continue my speech.
None of the seven peers who spoke in the Second Reading debate—from both sides of the House—gave the Bill his wholehearted support. I think I am right in saying that they were all eminent lawyers. I had a great affection for them as I read their speeches. Lord Morton of Shuna said:It is far from clear how the proposed arrangements are to improve efficiency and effectiveness." — [Official Report, House of Lords, 20 February 1986; Vol. 471, c. 762.]The Lord Advocate made that claim also. Lord Morton continued ——
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. It is not permissible to quote directly from the House of Lords record of the current Session, other than to quote a Minister.
§ Mr. Hamilton
I had hoped to escape that, through ignorance in certain quarters.
There is no doubt that almost every one of those peers expressed his reservations about the matter. Lord Hughes, who had been the chairman of the Royal Commission on legal services in Scotland, whose report was published in May 1980, expressed the view, contrary to the claim made by the Lord Advocate, that the Bill did not encapsulate the recommendations of the Royal Commission. The Lord Advocate sought to create the impression that they proposed the board that the Government now proposes. 392 They did nothing of the kind. Indeed, they went out of their way to say that the board must be independent of the Executive and of Government. He concluded, despite his reservations, by saying that the Bill might be amended sufficiently to make it acceptable to him and the House. How wrong he was. During the Committee. Report and Third Reading stages, not a single amendment of any substance was accepted by the Government.
The Government intend to scrap the existing system of legal aid in its entirety and to substitute an instrument that is wholly and solely in the Executive's control. Moreover, the Government intend to do so by a whole series of regulations about which the House knows nothing. I suspect that in Committee we shall still not know anything about the regulations. In other words, we are legislating in the dark, thus enabling the Government to get on with their dirty work.
All members of the proposed Legal Aid Board will be appointed by the Secretary of State for Scotland. One Member of the House of Lords, which is a civilised and moderate place, used the expression "Executive stooges". One Member said that any man of honour and respectability would not serve on the board, because he would be expected to be guided and directed by the Secretary of State. The Secretary of State will have complete control over legal aid and cash limits. I suspect that cash limits will be decided annually by the Treasury. There is bound to be an increase in the legal aid bill for all sorts of reasons. The Treasury will then say, "You will not get more than EX million". It will be just too bad if a man or a woman in Scotland wants legal aid. If the money has run out, they will have to do without it.
That is why virtually every organisation in Scotland which is interested in the Bill — the Law Society of Scotland, the Scottish Consumer Council, the Scottish Council for Civil Liberties, the Scottish Association of Citizens Advice Bureaux, and so on—have expressed grave concern and anxiety about the contents of the Bill. There are built-in reasons why the legal aid bill is bound to increase.
§ Mr. Fairbairn
It should not be assumed, if we are to start cutting out the cheaper or more trivial cases, that the principle involved in each of them is any less important than the principle involved for those who will receive legal aid.
§ Mr. Hamilton
I entirely agree. The hon. and learned Gentleman and I had better be on the Committee which considers the Bill, because I, as a layman, and he, as a skilled lawyer, are thinking pretty much along the same lines. I am an enthusiastic amateur in that respect. The hon. and learned Gentleman cannot claim that. However, the basic concept is right. Every individual in Scotland and Britain must have available to him the advice and guidance of a lawyer, irrespective of his ability to pay for it. The Bill is a missed opportunity in that sense. We should have looked at the whole basic principle, about which the hon. and learned Gentleman intervened, to see how a system could be worked out to underpin that basic principle.
It is well known that the law of our land is necessarily voluminous and perhaps needlessly complex. I often think that Bills have been drafted by lawyers for lawyers, because the more complex they are, the bigger the pickings for the legal profession in the law courts. It is difficult for the average layman to comprehend the law 393 which he is expected, and adjured, to obey. He is also rightly fearful of lawyers and their colossal expense. In my view, the principle of equality of all men before the law has always been a joke in very bad taste. One gets the justice for which one can afford to pay. I fear that the basic principle on which legal aid was originally introduced in Scotland is being seriously eroded by the Bill.
I return to the point I made about the inevitable in-built escalation of costs for legal aid. The combination of the growing crime rate, increasing unemployment and poverty, and the large and increasing number of workers on low pay, will increase costs. Lord Wheatley made the point in the other place that there has been an increase in the number of court cases as a result of legislation introduced by the Government. Acts such as the Tenants Rights, Etc. (Scotland) Act 1980, the Matrimonial Homes (Family Protection) (Scotland) Act 1981, and the Rent (Scotland) Act 1984 give more scope for litigation. That combustible collection has led, and will inevitably continue to lead, to an escalation in the demand for and cost of legal aid.
§ Mr. John MacKay
The hon. Gentleman has said time and again that the Government are about to indulge in great cuts in legal aid. I draw his attention to page iv of the Bill, which deals with the financial effects of the Bill. The last sentence states:It is not possible to forecast what the effect will be on legal aid expenditure, which is demand led".There is nothing there that would allow the hon. Gentleman to make the assertions he has made.
§ Mr. Hamilton
Indeed there is. The Minister did not read on. It continues:but greater consistency in the award and refusal of legal aid, in particular criminal legal aid, may result in savings.It might result in increased expenditure, but the record of this Government during the last seven years leads the Opposition and an increasing number of people to believe that the purpose of this exercise, as in so many other instances, is to cut public expenditure. The basic purpose of this legislation is to give control to the Treasury over cash limits and to say, irrespective of the needs of the individual who might be suffering injustice, "You will not get it."
§ Mr. McQuarrie
Is it not fair to say that one of the greatest dangers might be that the cuts will be made by an independent board, not necessarily on instructions from the Government?
§ Mr. Hamilton
I am not referring to instructions from the Government. I am dealing with what, in my view, will happen. The Treasury will impose a cash limit. Irrespective of the merits of individual cases in Scotland, they will be subject to limits and controls and to the possible refusal of aid.
The Bill attacks the fundamental principle upon which legal aid ought to be based. For that reason, if for no other, the Opposition will oppose it.
§ Mr. Barry Porter (Wirral, South)
The hon. Member for Fife, Central (Mr. Hamilton) says that all lawyers are evil and wicked and that the English versions are even more evil and wicked than their Scottish counterparts. If he were able to refer to the manager of a certain local 394 branch of the Midland bank, he would find that I am not a rich lawyer. He may wonder, therefore, why I am taking an interest in this debate.
I am English. However, it seems to me and to the Law Society, for which I do not speak but which has drawn my attention to this matter, that what is likely to happen in Scotland could impinge upon the legal aid system in England and Wales. As an Englishman, I suppose that I have as much right to plead an interest in Scotland as the hon. Member for Glasgow, Cathcart (Mr. Maxton) who, certainly in this generation, is as English as I am. At least my father served in the 1st Battalion of the Liverpool Scottish and later in the 51st Highland Division, and a kilt of an indeterminate hue still hangs in the family wardrobe. That has very little to do with this debate.
My interest in the debate does not relate to the fees that lawyers receive either in Scotland or in England and Wales. My view is that legal aid fees for lawyers in England and Wales and, I assume, in Scotland are fair and reasonable. They are neither over-generous not under-generous, but nobody who is concerned with criminal matters can complain about that.
I suspect that this Bill is no more than a cost-cutting exercise. I have no particular objection to that, except that I believe that it is being approached from the wrong direction. I want no part in trying to prevent those who are perfectly entitled to it from obtaining legal aid.
Another method of approaching an exercise of this nature has been put forward by the Law Society for England and Wales. Nobody denies that the expenditure of £300 million on legal aid justifies investigation. One could say that public money should not be spent to uphold restrictive practices that are not in the public interest. Furthermore, the money paid to solicitors while they waited for cases to come on accounted last year for 20 per cent. of legal aid expenditure. More sensible listing procedures would reduce that expenditure. We should also consider the simplification of court procedures in substantial trials, both criminal and civil. Again, that would reduce legal aid expenditure.
I do not understand why a Government who are committed to the protection of the individual and to the right of the individual to be properly represented in both civil and criminal cases should adopt this view. However it may be presented, the board that is proposed will not be regarded as independent. It will be a Government body. There are to be many regulations, but I do not intend to reiterate, to the point of boredom, what has already been said about that in the other place, or in this House today.
We do not know what the regulations will be. I doubt whether we shall know what they will be, even when the Bill has been considered in Committee. They will be in the hands of the Government. It has already been said that this is all in the minds of Ministers. They may be similar to the convivial, genial fellows who are here at the moment, but what happens if uncongenial, unconvivial Ministers, Conservative, Labour or alliance, replace them? We cannot adopt a system that depends upon the whims of those who happen to be sitting on the Treasury Bench. That would be absolutely ridiculous.
§ Mr. Fairbairn
My hon. Friend does not seriously imagine, does he, that Ministers write regulations? If so, he has not watched "Yes, Minister" with sufficient perspicacity.
§ Mr. Porter
I did not intend to go as far as that, but I take my hon. and learned Friend's point. I am sure that the present Ministers deal with their civil servants in a vicious and hard-headed way. However, I take his point that other Ministers would not have the same backbone as they display. That makes my point for me.
Another matter of concern to me is that, in this Bill, guilty pleas are to be treated as though they are of no consequence. The Law Society has put that point of view to me. It has been said that guilty pleas can be left to magistrates, sheriffs or social workers and that those who plead guilty do not need the benefit of legal advice. After 20 years' experience, I believe that is absolutely contrary to any kind of justice, and I hope that is not what the Bill means.
I object to the fact that Ministers will have the power to decide that in any kind of criminal case, or at any stage within a case, legal aid should not be made available. If I am right about that, it is appalling.
My last point is even more appalling. Under this system, an accused person might not have the right to choose his own advocate and adviser. That is not right. We should be moving towards the establishment of state defenders. After 20 years' experience I know that those who have consulted either my partners or me—most of whom have pleaded guilty on one occasion or another, although on other occasions they have pleaded not guilty —have chosen those whom they respect and honour and whom they have known over the years. They do not want an "odd bod" whom they have never seen before to be forced upon them. The Bill cannot and should not deprive them of the right to choose.
On those bases, I have little confidence in the Bill. Perhaps the Whip will take notice that my invitation to dinner at 7 o'clock will be honoured.
§ Mr. Gordon Wilson (Dundee, East)
The Bill makes a fool of the legislature. The primary complaint that any of us can make in dealing with legislation is that it does not give us an adequate clue as to the powers that a Government are seeking to obtain. By every standard of parliamentary draftsmanship the Bill fails. The draftsmen, or the Ministers who authorised the Bill, should hang their heads in shame. If one reads through it one gets the odd clue as to what the Government might be about, but, again and again, we are told that regulations will be prepared. We all know the farcical way in which the House, through its procedures, deals with regulations. Statutory instruments cannot really be controlled by us. We cannot alter them in any way. At the end of the day we have to vote for or against them, and it is usually the Government's majority that passes them into effect. However, basically, we do not have the time or the opportunity to deal with them.
A material criticism of the Bill—a criticism which was justified in the other place—is that the Bill is a blank cheque. In no way does it seek to lay out the changes that the Government have in mind. One could argue—the Hughes commission said that there should be a change in the administration of legal aid—that the Government are justified in what they are about. But, in the absence of any information in the Bill, we must assume that there is a reason why the Government do not wish to come clean with the House.
396 In answering the criticism of lack of information about what they intend, the Government have made the rather peculiar suggestion that a firm of management consultants is now working on smoothing out the procedures to see whether savings can be made. If they intended to do that, they should have done it before the Bill was brought before the House so that we could try to quantify what the changes might be.
Another thing that I find rather peculiar about the Bill is that it seems to break every rule in the parliamentary rule book on the way in which these things should be done. It is particularly disquieting that the Government have sought the kind of legislation that attempts to railroad through substantial changes without giving hon. Members an opportunity to debate them in the full knowledge of what the Government intend.
The first major change in the Bill is the proposal to set up a Scottish Legal Aid Board. The Hughes commission proposed that there should be an independent board and that the administration of the legal aid system should be taken away from the Law Society. I was not over-enthused by that recommendation. When such a change is made, one should be able to point to its administration and financial advantages.
The Minister is a great adherent of privatisation in the National Health Service. He has said many times that savings could be made on cleaning and other facilities in the Health Service and that such things should not be left to the public sector. The Bill is a complete and utter reversal of Government policy. In plain language, the Government are nationalising the legal aid system and taking it away from a private contractor. It would be interesting to see how the Government can justify that in ideological, if not financial, terms. It is rather amusing that this Minister of all Ministers was responsible for that.
§ Mr. McQuarrie
Does the hon. Gentleman agree that as legal aid has been run efficiently and effectively in Scotland since 1949, a Bill of this nature is not justified at this time?
§ Mr. Wilson
I am glad that the hon. Gentleman has made that point.
I speak for myself, not as a nominal solicitor. I am on the roll and I am a net contributor to the finances of the Law Society every year, for which I receive a magazine. That is the sole benefit. In all fairness, I have to say that I have rarely come across any complaints about inefficiency or delay in the way in which the Law Society of Scotland organises the legal aid service. There have been plenty of complaints about the nature of the legal aid system. Plenty of complaints have come in from people of limited means, particularly those involved in matrimonial cases, who have to pay a share of the costs, which they find difficult, particularly if they have married a second time. There have been complaints from those who have been refused legal aid with no redress. But little complaint has been made of the administrative procedures, or, indeed, the way in which the Law Society has carried out that function.
If the Government really wanted to make a change, they should have considered the possibility—I am not blind to English experience, although I do not necessarily approve of it automatically—of adopting one particular example. In England, the Lord Chancellor has an independent policy advisory committee which helps him 397 to adjust the overall distribution of legal aid—to extend it in other ways and perhaps to withdraw some of it from matrimonial causes as the procedures made recourse to legal action less likely. We do not have that system in Scotland. The Scottish Legal Aid Board will have to accept instructions from the Government rather than have a policy advisory role. I am not convinced that the board will necessarily be independent. Those who are appointed to it and accept office will find that they are given instructions by the Government as to what should be done. They will be managerial and executive by nature, rather than policy formulators.
The Minister has explained to me to some extent how the Government intend to deal with the tens of thousands of legal aid applications for summary criminal cases, but I am still perplexed about the practicability of that. At present in a sheriff or district court, when the application for legal aid is presented, it is possible for the sheriff to ask what the defence is, which can be stated then and there, and other questions can be asked to ascertain whether the application is in pursuance of justice. When it has to be put down on paper and referred to a reporter, who will no doubt have to make his recommendation back to a centre, which will have to cross-check it in order to make sure that uniformity is being adopted and that all the criteria are essentially available, one can see that growing.
The hon. and learned Member for Perth and Kinross (Mr. Fairbairn) pointed to the provisions in the Bill which affect manpower. He made great play about the transfer of staff from the Scottish Office, over and above the existing 220 members of staff in the Law Society. That is hardly paring away at manpower. There is also the question of another 300 staff. But who will pay for the reporters and solicitors who carry out the adjudication? Have the extra staff per year been worked out? I would like to know what the overall manpower requirement will be, taking into account the man hours of solicitors who will have to be paid for looking at the tens of thousands of summary legal applications that presently go before the courts every day.
I also take the point forcefully, vigorously and effectively made by the hon. Member for Fife, Central (Mr. Hamilton), that when it came to costs, one should remember the sinister sentence at the end of the passage on the financial effects of the Bill:It is not possible to forecast what the effect will be on legal aid expenditure"—I am not sure whether that is true, and it may be indelicate for the Government to specify the possible effects, but I am sure that they have a shrewd idea of the savings that they hope to make—which is demand ledthat may be so at present but it may not be in future—but greater consistency in the award and refusal of legal aid, in particular criminal legal aid, may result in savings.The Minister rightly pointed to the astronomic increases in legal aid caused by the very success of the system. If savings are to be made, where are they to be found? Are they to be made from a reduction in the cost of administration? On the very information that we have been given about effects on manpower, the Bill will lead to an increase in the cost of administration.
The Government complain about the variations in the cost of legal aid. However, paragraph 3 of the consultation paper put out by the Home and Health Department says: 398The need for change arises also from the Government's policy of improving accountability for, and the control and monitoring of, expenditure for public services including those like legal aid which are demand-led.
§ Mr. Willie W. Hamilton
Under "Financial effects of the Bill", we read:the provision of more detailed management information will increase initially the cost of administering legal aid by a small amount.The Bill does not specify how small that amount is, but there will be some increase in the administrative cost.
§ Mr. Wilson
The Bill says that the cost will be increased by "a small amount", but, as extra people will be needed, the cost will obviously increase. If the present system can be operated by the Law Society, why do civil servants have to be transferred from the Scottish Office? Is it that they might otherwise be made redundant, and that that would not be acceptable to the Government?
§ Mr. John MacKay
The civil servants who are involved from the Scottish Office are those currently in the Home and Health Department who are looking at the financial aspect of eligibility. They will be transferred, because financial eligibility will be covered by the Scottish Legal Aid Board.
§ Mr. Wilson
It remains to be seen what the final effect will be. When we start looking at the accounts for that department in a couple of years, I think we will see that the cost has rocketed out of control.
Even if the costs of administration are neutral, which I do not accept, how will savings be made? The figure of between 58 and 90 per cent. has been given for the range of refusals and grants of legal aid. Does consistency mean that the 58 per cent. figure will be brought up to 90 per cent., or that the 90 per cent. figure will be dragged down to 80, 70 or even 60 per cent? A tremendous amount could be saved by doing that. One of the briefing papers on the Bill says:Those cases that are left become by definition major cases where a man's liberty, livelihood or reputation may be at stake.If the aim is to increase the refusal rate in legal aid cases, substantial savings will obviously be made, but perhaps at the cost of justice. No hon. Member, apart from those on the Government Front Bench, would want that.
§ Mr. MacKay
I am grateful to the hon. Gentleman for giving way again. Is he quite happy for 60 per cent. to be accepted in some places and for 99 per cent. to be accepted in others? Is he quite happy about such inconsistency continuing?
§ Mr. Wilson
The Minister shows signs of excitement and overheating. I am perfectly willing to deal with that question, as I was about to touch on it. From the outset, there should have been a system of appeal for criminal legal aid. Those refused legal aid could then appeal to another body instead of having their case heard before a sheriff. That would introduce more equity into the system. But as far as I can see from the Bill, the Government want to reduce the number of successful grants of legal aid at the expense of justice.
The Government should have looked further at ways in which the system could be adapted. I do not intend to spell out all the criticisms that could be made, but I have a copy of the observations of the Criminal Sub-Committee of the Joint Committee with the Faculty of Advocates in relation to the smooth running of the Supreme Court in Scotland. A saving could have been made right there, by using a 399 shorter title. That committee made it clear that there are tremendous problems that add to the cost of the prosecution service, even though the Government rightly decided that more cases could be taken on indictment for those involved in the sale or spreading of drugs.
The Government have had plenty of opportunity to attack those aspects of the process of justice that inhibit the system and that add to the cost that is ultimately met by the state. There is also an impact on the Crown. Both tabs are, of course, picked up at the end of the day by the taxpayer. The Government could have made plenty of other reforms if they wanted to reduce costs. I have always thought that a benefit of our legal aid system was that it helped those who would otherwise not have the ability to express themselves in court or to hire legal aid. As a result of the Bill, legal aid applicants will not be any better off. Indeed, the reverse is true—they will be worse off. The Government, by disguising their intentions, are deceiving the House disgracefully.
§ Mrs. Anna McCurley (Renfrew, West and Inverclyde)
When I first see a Bill that is proposed by the Government, I look for the good in it. I have tried very hard to find the good bits in this Bill. As I read it, and as I listened to my hon. Friend the Minister this afternoon, I was reminded of the word "chutzpah". My simple dictionary defines it as "effrontery". Although it has far more generous and subtle connotations in its normal application, and is a term of admiration rather than condemnation, I believe that in this case it took some chutzpah to bring a piece of primary legislation to the House that is quite so devoid of detailed information.
No doubt some flesh will be put on the bare bones in Committee, but there are some questions that need serious answers which may or may not be given. I proposed to go into the aspects of legal aid that concern those on the financial margins, but I am grateful to my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Hirst) for having already outlined the plight of some people who are not poor but who can be impoverished by the legal system and who do not qualify for legal aid. I doubt whether this legislation will assist them.
Of course I believe that the legal aid set-up as it exists is not wholly satisfactory, and appears to be uneven in its application throughout Scotland's courts, but I wonder whether the Bill ensures that it will be satisfactory, without destroying the very concepts under which it was established—equity, efficiency and economy. I wonder what the definition of economy is in this case. From my reading of the Bill I could not decide whether it meant a reduction in the administrative costs of legal aid or that there was to be a reduction in awards.
As primary legislation, the Bill leaves a lot to be desired and a great deal to chance. It is open to political manipulation. Perhaps I should not say that, as generally I am a supporter of the Government, but I am thinking not for now but for the future. How can we wholly support a Bill if we do not know exactly how the Secretary of State will apply the system?
Schedule 2 provides that the new board is to be independent. How independent is independent if the Secretary of State operates extensively by regulation? Will laymen be represented on the new board, and will they be 400 independent? Would it not be a good idea to include by right, in addition to the two solicitors, the two advocates and one other legal expert—as set out in clause 1(5)—representation from some of the important bodies in Scotland such as the Scottish Council for Civil Liberties, the Scottish Association of Citzens Advice Bureaux and the Scottish Consumer Council?
I do not believe that the Bill is a cost or manpower-cutting exercise. Arithmetic was never my strongest talent, but, according to the preamble to the Bill, this nice new quango is to employ more than 300 people—an increase of 30 rather than a decrease of 50, as stated. Perhaps my arithmetic is similar to that which the Chinese invented, but if I slide beads to different parts of the abacus it makes no difference to the number of beads making the tally. On this abacus I find 30 extra beads. I think that the Scottish Office should take note of that ancient and worthy system.
What about efficiency? Will the Bill ensure a better job than that which is done under the current set-up, which is reasonably efficient? It is completely computerised and all the committee work is centralised already.
On equity in criminal legal aid, by regulation, what is the definition of "class"? Surely one cannot make regulations to control class or type of proceedings. Should not legal aid be available to everyone who qualifies financially? The state pays for the prosecuting system. Should it not also be prepared to pay for legal representation? What is meant by the termin the interests of justice"?Will that be defined in Committee? The Bill certainly is not precise enough.
The issue of appeal in criminal cases has been well argued by my hon. Friends, and I agree with their views. I worried when the Minister became bogged down in the percentages of approved cases. It sounded as though a covert quota system was to be applied. What do percentages matter so long as each case is judged on its merits?
I welcome some aspects of the Bill. I believe that everyone should have access to justice. Although the Bill does not state this, the spirit is embodied in it. Public confidence in representation needs to be improved. I hope that the Bill will operate to the advantage of the hard-pressed legal profession.
§ Mr. Fairbairn
My hon. Friend might imagine that the new Legal Aid Board will operate to the benefit of the hard-pressed legal profession, but she must remember the creation of the Scottish courts administration which, for the first time, is now headed by someone who is not a lawyer but is responsible for the administration of the courts. That has created a huge bureaucracy which is not satisfactory to the legal profession.
§ Mrs. McCurley
I am grateful to my hon. and learned Friend for his comments. I have no detailed knowledge of the matter, but I know that some members of the legal profession do not come into the category which the hon. Member for Fife, Central (Mr. Hamilton) described. There are lawyers and lawyers. There are the rich and the not so rich. If a firm takes on an extensive case under legal aid, cash flow problems can arise because there might be a delay of several months before the bill is paid. The bigger bills tend to be pushed aside while the smaller bills are 401 attended to. The large bills look horrific and are cast aside, so the firms have to wait. I hope that that problem will be solved.
If my questions are answered satisfactorily, I can assure the Minister that I shall have no hesitation in supporting the Bill.
§ Mr. William McKelvey (Kilmarnock and Loudoun)
I congratulate my hon. Friend the Member for Fife, Central (Mr. Hamilton) on his pugnacious speech. He showed that he had no great love for lawyers. The hon. Member for Wirral, South (Mr. Porter), who is a lawyer, made a fine speech which revealed that he pursues the course of justice, as do the majority of lawyers. I like lawyers. I am fond of honest and good lawyers.
The Minister has missed yet another opportunity. There are flaws in the present system of granting legal aid in Scotland. I am not a lawyer, but I might be regarded as an amateur lawyer because of my trade union activities. Mine was a great trade union and I was an honest trade unionist.
We are discussing a lousy and scabby Bill. I am a man of simple words. I do not know who conjured up the Bill or who its author was, but it is a smokescreen. I am looking forward to the Committee and I volunteer for membership of it. I shall be a willing prisoner.
Once again, the Secretary of State for Scotland is not content with the immense powers that he has already seized. He is entering another domain to seize even greater powers. How on earth can he say to the people of Scotland that the body—including the chairman—which is to administer legal aid in Scotland should be hand-picked by the Secretary of State and that not one elected representative will be on what is supposed to be a democratic body? We are asked to believe that the Secretary of State will not try to influence that body, yet some of the cases with which it will have to deal will be brought against the Secretary of State. The board will have to put to one side the fact that its members have been hand-picked by the Secretary of State and make an honest judgment. That simply cannot be done. It will put a tremendous pressure on the members of that board.
§ Mr. Fairbairn
If the hon. Gentleman, or any other hon. Member who has attended this debate, and I were to put on the back of an envelope the names of the sort of drips who should be on the board the names submitted by each hon. Member would be very different.
§ Mr. McKelvey
Of course they would be different. The names should be put to the appropriate bodies so that they can be elected as representatives. Earlier an hon. Member suggested that representatives should be elected from bodies such as the citizens advice bureaux. If such representatives were elected, we should then have a truly representative body. Why should we not have a secret ballot since the Government are pushing for such legislation? On this occasion I would support them.
The Bill is shrouded in terms which leave much to the imagination, yet the Minister shakes his head vigorously when we conjure up what we regard as horrors and defects in the Bill. All those defects will be picked out in Committee and, if we are not satisfied with the answers, we shall vote against Third Reading.
I now return to the question of the formation of the body, the manner in which it will operate and the cost. 402 Some hon. Members have referred to the figures showing the effects of the Bill on public service manpower. It may be that there will be no more people employed, but the Bill says:The Bill should reduce the number of staff working in the Scottish Office by about 50.That does not mean that 50 jobs will be lost; we do not have to worry about that. Those 50 staff will be transferred, along with 220 Law Society posts, to the board, which will initially employ about 300. I am not an expert at figures, but 220 plus 50 is 270. If one takes that away from 300, it leaves 30. Therefore, I assume that there will be an additional 30 staff.
This is one area in which the Bill has some merit. We are at last producing jobs. They may not be real jobs, but at least they are jobs. My worry is that 30 salaries may have to come from the budget. If that happens, 30, 50 or 100 appellants may be refused legal aid simply because the necessary finance is not available. I am seriously concerned about that.
For years there has been anxiety in various establishments about the cost of legal aid. Some years ago lawyers were accused of milking the system, of lining their pockets and of suggesting that clients should first plead not guilty and then guilty when they appear before the bench. Lawyers had been warned by the Government to keep their house in order or there would be cuts. They did not keep themselves in sufficient order and these cuts are to be made.
The purpose of the consultative process was not to find defects in the legal aid system but to find a way of cutting costs. There was a great opportunity to change the system. One of the defects was that there was no right of appeal if one appeared before a sheriff and did not receive legal aid on the ground that it would not be in the "interest of justice". That is a marvellous phrase, and I look forward to having it explained to me in Committee.
We know what happened in Kilmarnock where some people were refused legal aid. There were differences across the country on how legal aid should be applied. The problem was that one had no right of appeal. I want to know what kind of appeal body we will have under this system and who the appeal body will be. The Secretary of State is already to pick the committee to administer the legal aid, and, if there is to be an appeal body picked by him and answerable to him, it makes the whole system a mockery. It is a complete injustice, and the best thing we can do is to scrap it and start again.
§ Mr. Harry Ewing (Falkirk, East)
It must have been a tremendous relief to the Parliamentary Under-Secretary and to the Solicitor-General for Scotland to hear the hon. Member for Renfrew, West and Inverclyde (Mrs. McCurley) say that she supported the Bill. It is significant that the hon. Lady is the only Member who has said that she supports the Bill. The hon. Member for Strathkelvin and Bearsden (Mr. Hirst) said that if he had satisfactory answers he would consider supporting the Bill. One thing about the hon. Gentleman is that he always asks questions to which he knows he will receive satisfactory answers.
My hon. Friend the Member for Kilmarnock and Loudoun (Mr. McKelvey) put his finger on the nub of the debate. The Government have lost a golden opportunity to reform the legal aid system Very few argue that there should not be some change in the administration of the 403 legal aid system in Scotland. Indeed, my hon. Friend the Member for Fife, Central (Mr. Hamilton), in a reference to my contribution to the debate in the Scottish Grand Committee, put our position clearly. We argued then, and our reasoned amendment argues now, for an independent board to administer legal aid. The Under-Secretary says that we have that, but we have not. Clause 1 provides for a board that comprises no fewer than 11 and no more than 15 members, all appointed by the Secretary of State. Two of them are to be appointed in consultation with the Faculty of Advocates, two in consultation with the Law Society, and one must have qualifications or qualities in relation to court administration and court work. The other 10—it need not be 10—will come from some other source, all appointed by the Secretary of State. That may be good or bad.
If the Secretary of State were to make the 11 or 15 appointments and then leave the matter, there would be a strong argument for claiming that it was an independent board. The hon. and learned Member for Perth and Kinross (Mr. Fairbairn) made it clear that the Bill provides an opportunity for 23 different kinds of direction to be given to what the Solicitor-General and the Under-Secretary are trying to convince us is an independent board. Some of those directions are very dangerous.
The Under-Secretary has intervened in speeches from both sides of the House on the question of a reduction in the resources available for criminal and civil legal aid. The financial memorandum is quite clear. It was quoted by my hon. Friends the Members for Glasgow, Garscadden (Mr. Dewar) and for Fife, Central and by the hon. Members for Orkney and Shetland (Mr. Wallace) and for Dundee, East (Mr. Wilson). It makes it clear that it is expected that the amount spent on legal aid, not administrative costs, will be less than the present sum.
The Under-Secretary says that it is demand-led. Of course it is demand-led. However, there are various ways to control something which is demand-led. Clause 24 provides opportunities to create a situation in which one can control a demand-led service. Under clause 24 the Secretary of State will define certain conditions under which criminal legal aid will not be available. We look forward with keen anticipation to seeing what those conditions are.
§ Mr. Ewing
I shall give way shortly.
The Minister has twice said that he will bring forward an amendment to clause 24. I do not know what that amendment will be, and I suspect that the Minister is not yet clear about it. However, I would guess that the amendment will cover the point made by my hon. Friend the Member for Garscadden in seeking to give a definition of what is not in the "interest of justice". As my hon. Friend said, we have seen attempts over the years to produce definitions of what is not in the interest of justice. The definition of what is not in the interest of justice would dictate the number of people in criminal cases who qualify for legal aid.
Before I leave my comments on the board, may I say that a false impression may be created that the board will consider applications for legal aid. The board will not do 404 that. The reason for the increase in administrative costs is that the board will employ people to consider the applications.
The most interesting points made by the Minister were made in interventions. It would have been better if the Minister's good points had been made in his speech. He said that the financial qualifications were important. He also said that the reason for 50 members of staff being transferred from the Scottish Office to the board was that these people were the staff in the Scottish Home and Health Department who dealt with financial qualifications. They were to be transferred to the board.
Does the Minister mean that the responsibility for deciding financial limits, if and when the Bill reaches the statute book, and for deciding disposable capital and income levels will be transferred to the board? That responsibility has always rested with both Houses of Parliament. If the Minister is not saying that, he will have to produce a different explanation as to why the 50 members of staff are being transferred to the board. Parliament must always have a say in financial qualifications for legal aid. With great sincerity, I must say that that was not the impression that the Minister gave. We will have an opportunity to discuss that in greater detail in Committee.
I have already argued for an independent board. I would be the first to admit that successive Governments ought to have introduced an appeal procedure when criminal legal aid is disallowed and I take my share of the blame for that omission. In recent years there has been even greater trouble about the refusal of criminal legal aid by the sheriff or the justice in the district courts.
There has always been an appeal against the refusal of civil legal aid. The applicant would apply to the local committee for civil legal aid and, if his application was refused, he had the right of appeal to the central committee. As the hon. and learned Member for Perth and Kinross said, the Bill removes the right of appeal in cases of civil legal aid. If the Bill reaches the statute book in its present form, applicants for civil legal aid will no longer have a right of appeal. The Solicitor-General for Scotland is shaking his head. but that is what the Bill will achieve. It will remove the right of appeal for applicants for civil legal aid.
Never has there been a more opportune moment to introduce an appeal system for criminal legal aid than in our consideration of the Bill. I give advance notice to the Ministers who will be dealing with the Bill that we will pursue this point in Committee.
We will be pressing for the restoration of the appeal mechanism in cases of civil legal aid applicants and for the introduction of an appeal mechanism for applications for criminal legal aid. We will pursue many other points in Committee. As my hon. Friend the Member for Kilmarnock and Loudoun said, the House will be guilty of missing a first-class opportunity to bring our legal aid system up to date if we do not get the Bill right.
Over the years we have reviewed and extended the system of criminal and civil legal aid, and we have extended the system of tribunals and appeals. We are not suggesting that the system does not need modernising, but we will not accept a cheap way out. We believe that the Bill presents those who use the legal aid system with a cheap option, and that is not acceptable to the Opposition.
§ The Solicitor-General for Scotland (Mr. Peter Fraser)
The hon. Member for Glasgow, Garscadden (Mr. Dewar) put his finger on the central point when he said that the existing arrangements for the administration of legal aid in Scotland and the Law Society's role was, contrary to the way that he approached that matter in the Opposition's amendment, something of an anomaly. He said that the Bill provided a neutral framework.
The starting point for these matters can be found in the provision and recommendation made by the Royal Commission headed by Lord Hughes which reported in May 1980. As the hon. Member for Orkney and Shetland (Mr. Wallace) said, removing the power from the Law Society of Scotland is not an attack on the society. Nor is it accurate to say that there have been gross abuses by the Law Society in the past.
The Royal Commission, in paragraph 8.68 of its report, states:No-one has suggested that anything the Law Society has done is improper; nor have we found anything to suggest that. Rather the argument is that lawyers benefit financially from legal aid, and it is not proper that their professional organisation should be seen to be the body responsible for administering it. We think that the principle of this argument is sound.Some indignation has been expressed during the debate, but I have not perceived in the arguments advanced that in principle the line taken by Lord Hughes and by the Government is in any way essentially unsound. Although hon. Members have received many representations from lawyers in Scotland, the Scottish Consumer Council has said that in principle it believes it is appropriate that there should be an independent board.
A number of criticisms have been made of the board. Some hon. Members believe that in some way the independence of the board is not properly guaranteed. In answer to that criticism, I must stress that clause 1 states:The Board shall consist of not less than 11 and not more than 15 members".I must tell my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) that there will not be 30 members on the board. We would not permit that kind of growth. There will be two members of the Faculty of Advocates, two members of the Law Society and one member who has experience of the procedure and practice of the court. There will be a minority of people therefore with legal experience. I believe that that is the right balance.
As my hon. Friend the Under-Secretary of State said in answer to my hon. Friend the Member for Renfrew, West and Inverclyde (Mrs. McCurley), we will arrange to consult those interested bodies, such as the Scottish Consumer Council and the Scottish Association of Citizens' Advice Bureaux, to determine who they might put forward for inclusion on the board. It is not a substantial argument that a body of people would always be present as placemen of the Secretary of State, simply to do his bidding. It is important to examine the extent to which they can be subject to the Secretary of State's discretion and control in the running of the board.
A number of hon. Members have referred to clause 3(4):The Board shall have regard, in the exercise of its functions, to such guidance as may from time to time be given by the Secretary of State".We may wish to examine that provision in Committee, but I should tell hon. Members that it is intended that the 406 guidance will deal with administrative matters and will be mainly intended to safeguard the position of those in the Scottish Office who are responsible for accounting matters. It will be connected with the setting out of accounts, the arrangement of internal audits——
§ The Solicitor-General for Scotland
I appreciate the hon. Gentleman's interest, but I do not have time to give way.
The guidance will be to do with the matters that I have outlined rather than to tell the board which cases it should deal with and which applications it should not deal with. I should have thought that it was clear from that clause that the guidance should not affect the consideration of applications for legal aid.
It has been suggested that, by the introduction of a board, the Government are trying to reduce the amount of legal aid that is granted. Detailed consideration has been given to the section headed "Financial Effects of the Bill". With customary skill, the hon. Member for Fife, Central (Mr. Hamilton) read the first part of the first sentence, but missed out the last parts of the second and third sentences. That section states:It is not possible to forecast what the effect will be on legal aid expenditure, which is demand led, but greater consistency in the award and refusal of legal aid, in particular criminal legal aid, may result in savings.That is the most that could be said with regard to expenditure being demand-led. Indeed, it is arguable that, if there is consistency between the courts that allow legal aid in 58 per cent. of cases and those that allow legal aid in all cases, there may be an increase in the sum spent on legal aid.
We look for savings in the existing arrangements for the administration of legal aid. I was a little surprised that some hon. Members think that there has never been criticism of that administration. A number of independent lay members of the legal aid central committee have criticised the arrangements from time to time.
§ The Solicitor-General for Scotland
I am sorry, but I cannot give way. I have only a few minutes in which to reply.
Clause 40 requires the Secretary of State to pay to the boardsuch sums as are required … to meet payments out of the legal aid fund.It has been suggested that too much is left to regulations that Parliament cannot adequately scrutinise. I appreciate that it is some time since the hon. Member for Dundee, East (Mr. Wilson) was in private practice, but even he must recall that many arrangements for legal aid are promulgated through schemes under the Legal Aid (Scotland) Act and are made by the Law Society. Those provisions come nowhere near Parliament and there is no requirement on the Law Society to put them before Parliament. We shall ensure that there will be a requirement to make regulations covering about 23 topics, and the core regulations will be subject to the affirmative resolution procedure.
It might appear to those who know nothing about the existing framework and have little regard for its present operation that greater powers are being given to the Secretary of State to make regulations, but he is not taking 407 greater regulatory powers to deal with matters that were previously covered by primary legislation. I challenge the hon. Member for Falkirk, East (Mr. Ewing) to find any area in the Bill where the Secretary of State is taking additional powers. Great play has been made of the number of powers that the Secretary of State has, but no one has said where those additional powers are to be found.
§ The Solicitor-General for Scotland
The hon. Gentleman can rise to that challenge in the weeks that lie ahead.
The hon. Member for Garscadden had anxieties about clause 21(2), but the power there is a repetition, with one slight modification, of a power that has been available to every Secretary of State for Scotland since 1949, when civil legal aid was first introduced. The regulation-making power will be used primarily to set up a dividing line between summary proceedings covered by criminal legal aid and those covered by assistance by way of representation. I do not accept that our proposals are a significant innovation.
Under clause 24 we shall make regulations setting out the factors to be taken into account in determining "the interests of justice". I repeat for the third time, to ensure that there is no further confusion, that the granting of legal aid will not depend on the criminal record of the applicant.
As the debate drew to a conclusion, it seemed to be suggested that we were trying to restrict the circumstances in which legal aid could be granted and that that was being done at the bidding of the Chancellor of the Exchequer to ensure that there were fewer successful applications for legal aid in Scotland. I ask hon. Members to look at what Lord Hughes said in his report:We therefore recommend that the criteria for granting criminal legal aid to defend a summary prosecution should be laid down in statute.We intend to follow that route.
There has been confusion about appeals. A number of my hon. Friends seem to be under the misapprehension that the existing right of appeal in civil cases is being removed. That is not the case. The difficulty arises because the existing right of appeal is contained in regulations. We intend to introduce new regulations that will continue to allow a right of appeal in civil matters. I understand how the confusion arose, and I hope that I have reassured hon. Members that we have no sinister motives.
We have made it clear that we do not expect to introduce a formal procedure for appeal in criminal matters, but we can discuss that matter further.
I do not have time now to answer all the points put to me, but I shall attempt to do so in writing or in Committee.
I emphasise that the primary aims of the Bill are, first, to improve the administration of legal aid in Scotland by bringing together under the control of the board the various functions which are at the moment fragmented between several different bodies; secondly, to increase consistency in the award of legal aid; and, thirdly, to clarify, simplify and consolidate legal aid legislation in Scotland. Contrary to some opinions that have been expressed during the debate, I have little doubt that once this legislation is on the statute book it will be widely welcomed in Scotland, because it will allow members of the public — not 408 lawyers, but people who need legal aid — to defend themselves in the criminal courts or to pursue their actions in the civil courts. They will recognise that we are introducing a wise and proper provision.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 166, Noes 266.410
|Division No. 191]||[7 pm|
|Adams, Allen (Paisley N)||Godman, Dr Norman|
|Alton, David||Gould, Bryan|
|Anderson, Donald||Gourlay, Harry|
|Archer, Rt Hon Peter||Hamilton, James (M'well N)|
|Atkinson, N. (Tottenham)||Hamilton, W. W. (Fife Central)|
|Bagier, Gordon A. T.||Harrison, Rt Hon Walter|
|Banks, Tony (Newham NW)||Haynes, Frank|
|Barnett, Guy||Hogg, N. (C'nauld & Kilsyth)|
|Barron, Kevin||Holland, Stuart (Vauxhall)|
|Beckett, Mrs Margaret||Home Robertson, John|
|Beith, A. J.||Howells, Geraint|
|Bell, Stuart||Hoyle, Douglas|
|Bennett, A. (Dent'n & Red'sh)||Hughes, Dr Mark (Durham)|
|Bermingham, Gerald||Hughes, Robert (Aberdeen N)|
|Bidwell, Sydney||Hughes, Roy (Newport East)|
|Boothroyd, Miss Betty||Janner, Hon Greville|
|Boyes, Roland||Jenkins, Rt Hon Roy (Hillh'd)|
|Brown, Gordon (D'f'mline E)||John, Brynmor|
|Brown, Hugh D. (Provan)||Johnston, Sir Russell|
|Brown, N. (N'c'tle-u-Tyne E)||Jones, Barry (Alyn & Deeside)|
|Brown, R. (N'c'tle-u-Tyne N)||Kaufman, Rt Hon Gerald|
|Bruce, Malcolm||Kirkwood, Archy|
|Buchan, Norman||Lambie, David|
|Caborn, Richard||Lamond, James|
|Callaghan, Rt Hon J.||Leadbitter, Ted|
|Callaghan, Jim (Heyw'd & M)||Leighton, Ronald|
|Campbell, Ian||Lewis, Ron (Carlisle)|
|Campbell-Savours, Dale||Lewis, Terence (Worsley)|
|Canavan, Dennis||Litherland, Robert|
|Carlile, Alexander (Montg'y)||Livsey, Richard|
|Cartwright, John||Lloyd, Tony (Stretford)|
|Clark, Dr David (S Shields)||McCartney, Hugh|
|Clay, Robert||McDonald, Dr Oonagh|
|Clelland, David Gordon||McKay, Allen (Penistone)|
|Clwyd, Mrs Ann||McKelvey, William|
|Cocks, Rt Hon M. (Bristol S)||MacKenzie, Rt Hon Gregor|
|Coleman, Donald||Maclennan, Robert|
|Conlan, Bernard||McNamara, Kevin|
|Cook, Frank (Stockton North)||Madden, Max|
|Cook, Robin F. (Livingston)||Marek, Dr John|
|Corbyn, Jeremy||Marshall, David (Shettleston)|
|Craigen, J. M.||Martin, Michael|
|Crowther, Stan||Maxton, John|
|Cunliffe, Lawrence||Meadowcroft, Michael|
|Cunningham, Dr John||Michie, William|
|Dalyell, Tarn||Millan, Rt Hon Bruce|
|Davies, Rt Hon Denzil (L'lli)||Morris, Rt Hon A. (W'shawe)|
|Davies, Ronald (Caerphilly)||Morris, Rt Hon J. (Aberavon)|
|Davis, Terry (B'ham, H'ge H'l)||Nellist, David|
|Deakins, Eric||O'Brien, William|
|Dewar, Donald||O'Neill, Martin|
|Dixon, Donald||Orme, Rt Hon Stanley|
|Dormand, Jack||Park, George|
|Douglas, Dick||Parry, Robert|
|Dubs, Alfred||Patchett, Terry|
|Eadie, Alex||Pavitt, Laurie|
|Eastham, Ken||Pendry, Tom|
|Edwards, Bob (Wh'mpt'n SE)||Penhaligon, David|
|Ewing, Harry||Pike, Peter|
|Fairbairn, Nicholas||Powell, Raymond (Ogmore)|
|Fatchett, Derek||Prescott, John|
|Faulds, Andrew||Randall, Stuart|
|Fields, T. (L'pool Broad Gn)||Redmond, Martin|
|Fisher, Mark||Rees, Rt Hon M. (Leeds S)|
|Flannery, Martin||Roberts, Ernest (Hackney N)|
|Forrester, John||Robertson, George|
|Foster, Derek||Rogers, Allan|
|Foulkes, George||Rooker, J. W.|
|Freeson, Rt Hon Reginald||Ross, Ernest (Dundee W)|
|Garrett, W. E.||Ross, Stephen (Isle of Wight)|
|Ryder, Richard||Wallace, James|
|Sheldon, Rt Hon R.||Wardell, Gareth (Gower)|
|Shields, Mrs Elizabeth||Wareing, Robert|
|Silkin, Rt Hon J.||Weetch, Ken|
|Smith, Rt Hon J. (M'ds E)||Welsh, Michael|
|Soley, Clive||White, James|
|Spearing, Nigel||Wilson, Gordon|
|Stewart, Rt Hon D. (W Isles)||Winnick, David|
|Stott, Roger||Woodall, Alec|
|Strang. Gavin||Wrigglesworth, Ian|
|Thomas, Dafydd (Merioneth)||Young, David (Bolton SE)|
|Thomas, Dr R. (Carmarthen)|
|Thompson, J. (Wansbeck)||Tellers for the Ayes:|
|Tinn, James||Mr. John McWilliam and Mr. Chris Smith.|
|Adley, Robert||Dicks, Terry|
|Aitken, Jonathan||Dorrell, Stephen|
|Alexander, Richard||Douglas-Hamilton, Lord J.|
|Alison, Rt Hon Michael||Dover, Den|
|Ancram, Michael||du Cann, Rt Hon Sir Edward|
|Arnold, Tom||Durant, Tony|
|Ashby, David||Dykes, Hugh|
|Atkins, Rt Hon Sir H.||Edwards, Rt Hon N. (P'broke)|
|Atkinson, David (B'm'th E)||Eggar, Tim|
|Baker, Nicholas (Dorset N)||Emery, Sir Peter|
|Baldry, Tony||Evennett, David|
|Banks, Robert (Harrogate)||Eyre, Sir Reginald|
|Batiste, Spencer||Fallon, Michael|
|Bellingham, Henry||Farr, Sir John|
|Bendall, Vivian||Favell, Anthony|
|Bennett, Rt Hon Sir Frederic||Fenner, Mrs Peggy|
|Benyon, William||Fletcher, Alexander|
|Best, Keith||Fookes, Miss Janet|
|Bevan, David Gilroy||Forman, Nigel|
|Biffen, Rt Hon John||Forsyth, Michael (Stirling)|
|Blackburn, John||Forth, Eric|
|Blaker, Rt Hon Sir Peter||Fowler, Rt Hon Norman|
|Bonsor, Sir Nicholas||Fox, Marcus|
|Boscawen, Hon Robert||Franks, Cecil|
|Bottomley, Peter||Fraser, Peter (Angus East)|
|Bottomley, Mrs Virginia||Freeman, Roger|
|Bowden, A. (Brighton K'to'n)||Fry, Peter|
|Bowden, Gerald (Dulwich)||Galley, Roy|
|Braine, Rt Hon Sir Bernard||Gardiner, George (Reigate)|
|Brandon-Bravo, Martin||Gardner, Sir Edward (Fylde)|
|Brinton, Tim||Garel-Jones, Tristan|
|Brittan, Rt Hon Leon||Glyn, Dr Alan|
|Brooke, Hon Peter||Goodhart, Sir Philip|
|Brown, M. (Brigg & Cl'thpes)||Gorst, John|
|Bruinvels, Peter||Gow, Ian|
|Buchanan-Smith, Rt Hon A.||Gower, Sir Raymond|
|Buck, Sir Antony||Grant, Sir Anthony|
|Budgen, Nick||Greenway, Harry|
|Bulmer, Esmond||Gregory, Conal|
|Butler, Rt Hon Sir Adam||Griffiths, Peter (Portsm'th N)|
|Butterfill, John||Grist, Ian|
|Carlisle, John (Luton N)||Ground, Patrick|
|Carlisle, Kenneth (Lincoln)||Grylls, Michael|
|Carlisle, Rt Hon M. (W'ton S)||Hamilton, Hon A. (Epsom)|
|Carttiss, Michael||Hamilton, Neil (Tatton)|
|Cash, William||Hampson, Dr Keith|
|Channon, Rt Hon Paul||Hanley, Jeremy|
|Chapman, Sydney||Hannam, John|
|Chope, Christopher||Hargreaves, Kenneth|
|Clark, Dr Michael (Rochford)||Harris, David|
|Clark, Sir W. (Croydon S)||Harvey, Robert|
|Clarke, Rt Hon K. (Rushcliffe)||Havers, Rt Hon Sir Michael|
|Clegg, Sir Walter||Hawkins, C. (High Peak)|
|Cockeram, Eric||Hawkins, Sir Paul (N'folk SW)|
|Colvin, Michael||Hawksley, Warren|
|Coombs, Simon||Hayes, J.|
|Cope, John||Hayhoe, Rt Hon Barney|
|Cormack, Patrick||Heseltine, Rt Hon Michael|
|Couchman, James||Hickmet, Richard|
|Critchley, Julian||Hicks, Robert|
|Crouch, David||Hill, James|
|Currie, Mrs Edwina||Hind, Kenneth|
|Dickens, Geoffrey||Hirst, Michael|
|Hogg, Hon Douglas (Gr'th'm)||Murphy, Christopher|
|Holland, Sir Philip (Gedling)||Neale, Gerrard|
|Holt, Richard||Nelson, Anthony|
|Hordern, Sir Peter||Newton, Tony|
|Howard, Michael||Nicholls, Patrick|
|Howarth, Alan (Stratf'd-on-A)||Norris, Steven|
|Howell, Rt Hon D. (G'ldford)||Onslow, Cranley|
|Howell, Ralph (Norfolk, N)||Oppenheim, Phillip|
|Hubbard-Miles, Peter||Ottaway, Richard|
|Hunt, David (Wirral W)||Page, Sir John (Harrow W)|
|Hunt, John (Ravensbourne)||Page, Richard (Herts SW)|
|Hunter, Andrew||Patten, J. (Oxf W & Abgdn)|
|Jackson, Robert||Pawsey, James|
|Jessel, Toby||Percival, Rt Hon Sir Ian|
|Johnson Smith, Sir Geoffrey||Pollock, Alexander|
|Jones, Gwilym (Cardiff N)||Portillo, Michael|
|Jones, Robert (Herts W)||Powell, William (Corby)|
|Jopling, Rt Hon Michael||Powley, John|
|Kellett-Bowman, Mrs Elaine||Prentice, Rt Hon Reg|
|Kershaw, Sir Anthony||Price, Sir David|
|Key, Robert||Proctor, K. Harvey|
|King, Roger (B'ham N'field)||Pym, Rt Hon Francis|
|King, Rt Hon Tom||Raffan, Keith|
|Knight, Greg (Derby N)||Rees, Rt Hon Peter (Dover)|
|Knight, Dame Jill (Edgbaston)||Rhodes James, Robert|
|Knowles, Michael||Rhys Williams, Sir Brandon|
|Knox, David||Rost, Peter|
|Lang, Ian||Rowe, Andrew|
|Lawler, Geoffrey||Rumbold, Mrs Angela|
|Lawrence, Ivan||Sainsbury, Hon Timothy|
|Lee, John (Pendle)||Shaw, Giles (Pudsey)|
|Leigh, Edward (Gainsbor'gh)||Shaw, Sir Michael (Scarb')|
|Lennox-Boyd, Hon Mark||Shepherd, Colin (Hereford)|
|Lester, Jim||Silvester, Fred|
|Lightbown, David||Sims, Roger|
|Lilley, Peter||Skeet, Sir Trevor|
|Lloyd, Ian (Havant)||Smith, Sir Dudley (Warwick)|
|Lloyd, Peter (Fareham)||Smith, Tim (Beaconsfield)|
|Lord, Michael||Soames, Hon Nicholas|
|Lyell, Nicholas||Speller, Tony|
|McCrindle, Robert||Spencer, Derek|
|McCurley, Mrs Anna||Spicer, Michael (S Worcs)|
|Macfarlane, Neil||Stanbrook, Ivor|
|MacGregor, Rt Hon John||Stewart, Allan (Eastwood)|
|MacKay, Andrew (Berkshire)||Stewart, Andrew (Sherwood)|
|MacKay, John (Argyll & Bute)||Stradling Thomas, Sir John|
|Maclean, David John||Taylor, John (Solihull)|
|McLoughlin, Patrick||Taylor, Teddy (S'end E)|
|McNair-Wilson, M. (N'bury)||Temple-Morris, Peter|
|McNair-Wilson, P. (New F'st)||Terlezki, Stefan|
|McQuarrie, Albert||Thompson, Patrick (N'ich N)|
|Madel, David||Thorne, Neil (llford S)|
|Major, John||Thurnham, Peter|
|Malins, Humfrey||Trotter, Neville|
|Maples, John||Viggers, Peter|
|Marland, Paul||Waddington, David|
|Marlow, Antony||Wakeham, Rt Hon John|
|Marshall, Michael (Arundel)||Walker, Rt Hon P. (W'cester)|
|Mates, Michael||Waller, Gary|
|Mather, Carol||Ward, John|
|Maude, Hon Francis||Warren, Kenneth|
|Maxwell-Hyslop, Robin||Watson, John|
|Mayhew, Sir Patrick||Wheeler, John|
|Mellor, David||Wiggin, Jerry|
|Merchant, Piers||Wolfson, Mark|
|Meyer, Sir Anthony||Wood, Timothy|
|Miller, Hal (B'grove)||Yeo, Tim|
|Moate, Roger||Young, Sir George (Acton)|
|Monro, Sir Hector|
|Morris, M. (N'hampton S)||Tellers for the Noes:|
|Morrison, Hon P. (Chester)||Mr. Donald Thompson and Mr. Gerald Malone.|
§ Question accordingly negatived.
§ Main Question put forthwith, pursuant to Standing Order No. 41 (Amendment on Second or Third Reading) and agreed to.411
§ Bill accordingly read a Second time and committed to a Standing Committee, pursuant to Standing Order No. 42 (Committal of Bills).
That, notwithstanding anything in paragraph (2) of Standing Order No. 63 (Constitution of Standing Committees) and Standing Order No. 72 (Scottish Standing Committees), the Bill be considered by a Scottish Standing Committee.—[Mr. John MacKay.]