§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
I beg to move,That the draft Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991, which were laid before this House on 20th March, be approved.With your permission, Mr. Deputy Speaker, I intend to submit for consideration by the House a package of regulations to uprate the financial limits for legal aid, increase the fees paid to solicitors and advocates for legal aid work and improve the administration of legal aid in Scotland.
The regulations will, first, uprate the limits of income below which legal aid is available free and ensure that the most vulnerable sections of our community continue to have that reassurance and protection. Secondly, the level of financial authority delegated to the profession in respect of legal aid advice and assistance is to be increased, with consequent benefits in terms of speed and efficiency for the profession, clients and the Scottish Legal Aid Board. Thirdly, legal aid fees have been substantially increased, particularly fees for civil legal aid work.
The first two sets of regulations increase the income limits below which legal aid is available free of any contribution, so the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991 and the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991 increase the lower disposable income limit for civil legal aid from £2,645 to £2,860 a year and increase the weekly disposable income above which a person is required to pay a contribution for legal advice and assistance from £64 to £70.
The latter regulations also prescribe the scale of contributions to be paid where weekly disposable income exceeds £70 but does not exceed £135. These proposed changes represent an increase of around 8.1 per cent., which matches the uprating level of income-related social security benefits. These increases maintain consistency with the corresponding eligibility limits in England and Wales. The regulations will ensure that those members of the public who are most in need will continue automatically to qualify for free legal aid and for free advice and assistance.
We are, not at present proposing to uprate the upper eligibility limits. The whole question of the provision of legal aid and the role of eligibility criteria is being addressed in the current review of legal aid. The first consultative paper is likely to be published shortly. We shall make certain that Scottish interests are fully consulted and that in the consideration of any proposals full account is taken of Scottish circumstances. Pending the outcome, the Government consider it appropriate to leave the upper eligibility limits unchanged. It is nevertheless important to ensure that the income threshold for free legal aid is uprated, and this is what is proposed.
§ Mr. Menzies Campbell (Fife, North-East)
Are we to understand that there will be a separate review of Scottish legal aid, conducted in Scotland at the instigation of the Scottish Office, or is Scotland to be included in a United Kingdom consideration of these matters?
§ Lord James Douglas-Hamilton
I am very glad to confirm that that is indeed the case. [Interruption.] Like 383 me, the hon. and learned Gentleman is an advocate, and he knows that it is very important that I should provide correct information. As for the courts and this House, we believe in presenting nothing but the truth.
The third set of regulations is the Advice and Assistance (Scotland) (Prospective Cost) Regulations 1991 and its associate, the Advice and Assistance (Scotland) (Prospective Cost) Amendment Regulations 1991. These will substantially increase the financial authority delegated to solicitors to incur expenditure on legal advice and assistance without prior reference to the Scottish Legal Aid Board. Their purpose is to increase the financial limit from £60 to £80. This will give solicitors more discretion to proceed with their important and urgent work without having to wait for the board's formal clearance, and will be of benefit to solicitors, clients and the board. It will thereby speed up their service to their customers. All the foregoing proposals are intended to come into force on 30 April 1991.
With your permission, Mr. Deputy Speaker, I shall now explain the purposes of the regulations that have been prayed against. The following regulations, which came into force on 1 April 1991, increase the level of fees payable to solicitors and advocates for legal aid work: in the Advice and Assistance (Scotland) Amendment Regulations 1991; the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1991; the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1991; and the Legal Aid (Scotland) (Fees in Civil Proceedings) Amendment Regulations 1991.
In combination, these regulations increase from 1 April 1991 the level of legal aid fees by the equivalent of 9 per cent. in expenditure terms. In the case of advocates, an across-the-board increase of 9 per cent. in fees for civil and criminal work has been awarded. On the solicitors' side, the detailed civil legal aid fees have been increased by an average of about 12 per cent. By bringing the main detailed fees for civil work carried out by solicitors up to the levels available for criminal work, the regulations conclude a significant step in the rationalisation of legal aid fee structures. This work started in 1988, and has proceeded with the co-operation of the Law Society. I am particularly pleased to have achieved this objective. The work on simplification and further rationalisation will continue.
The fees for criminal legal aid work and for legal advice and assistance have been increased by 8.5 per cent. The fee for assistance by way of representation has been increased by 16.5 per cent.—from £60 to £70. I am sure that all hon. Members will see that those increases are significant and should help in the further improvement of the Scottish legal aid service. I draw the attention of Scottish Members in particular to the fact that both the Faculty of Advocates for Scotland and the Law Society of Scotland have accepted the increases and have urged their implementa-tion as from 1 April.
Finally, I refer to the Civil Legal Aid (Scotland) Amendment Regulations 1991. These are subject to the negative resolution procedure and should come into operation on 22 April 1991. Their purpose is to provide clarification as to certain aspects of legal aid administration.
I have referred to the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991 and other 384 proposals to revise legislation on legal aid in Scotland. They represent worthwhile improvements, and show our resolve to continue to maintain an effective legal aid service in Scotland and our willingness to respond to the changing needs of the service.
§ Mr. John Maxton (Glasgow, Cathcart)
I welcome the Secretary of State for Scotland to the Chamber. We are delighted to see him here at this time of the morning for a debate on an important but relatively minor issue. He could not find the time to attend the debate on national testing, which is such a major issue in Scotland.
I am not surprised that the Minister received the consent of the Law Society and the Faculty of Advocates to increase fees in line with or higher than the rate of inflation. It would have been surprising had they not given their full-hearted support. Many other workers are not receiving increases in line with inflation, and certainly not above it.
We welcome the uprating of the eligibility levels for legal aid, but the debate offers an opportunity to ask one or two questions about the failure to increase the upper levels of eligibility where a contribution must be made. The Lord Chancellor's working party is reviewing legal aid in the United Kingdom, as the hon. and learned Member for Fife, North-East (Mr. Campbell) said. Separate legal aid regulations have always applied to Scotland because of the two different jurisdictions. I served on the Standing Committee that established the Scottish Legal Aid Board, quite separately from the rest of the United Kingdom. I am concerned that the regulations are being considered on a United Kingdom rather than a Scottish basis.
Concern is being expressed in Scotland because nobody knows who is on the Lord Chancellor's working party and because the legal profession in Scotland has not been consulted. The regulations appear to pre-empt decisions that have been taken by the working party. It is feared that there will be a major review of civil legal aid and that someone who is on a certain income, instead of having to pay a set amount, will have to pay between £2,000 or £3,000 towards the costs before applying for legal aid. That appears to be what the Lord Chancellor will do, and he is quoted in Law Society documents as saying exactly that.
Before legislation, or even a report from the Lord Chancellor's working party, regulations are being laid which, by refusing to uprate the upper levels of eligibility, appear to pre-empt that decision. There are questions which the Minister has to answer. The regulations mean that eligibility for legal aid will he reduced in Scotland. There will be people in Scotland who will no longer be eligible. We are entitled to know whether it is Government policy to reduce the number of people in Scotland who will be eligible for civil legal aid. If so, why? Is it simply an exercise to cut costs, or is it the first step towards changing the basis of legal aid?
What is the proportion of people in Scotland who are eligible for legal aid compared to the number in, say, 1979? The Law Society pointed out that that date was chosen not because of the general election in that year when the Government came into power, but simply because it represented a high point in regard to eligibility for legal aid.
385 I hope that the Minister can tell us exactly what Government policy is on legal aid. Will he promise that, instead of tinkering with the legal aid system he will try to find a means of making it more efficient and cheaper for ordinary members of the public to have recourse to legal assistance when they are in dispute over an issue rather than having to go through a costly and lengthy court procedure? Without that, the legal aid bills will continue to grow, and large numbers of ordinary people will not be able to go to the courts to settle genuine grievances. I hope that the Minister will make a statement on that.
§ Mr. Menzies Campbell (Fife, North-East)
I should begin by declaring an interest in that I am still, in a limited way, a practising member of the Faculty of Advocates and at least one set of regulations which is sought to be approved would have some financial benefit for those who practise as advocates in Scotland.
I should also declare that before being elected to the House I was a member of the Scottish Legal Aid Board and before that of the Legal Aid Central Committee, and that since resigning from the Scottish Legal Aid Board upon election to the House I have from time to time been asked to provide professional opinions to it on matters of construction of either the principal Act or regulations made under it.
As the hon. Member for Glasgow, Cathcart (Mr. Maxton) pointed out, the legislation in Scotland is separate and distinct from that in England and Wales. Of course, to a large extent that springs from the separate legal tradition in Scotland in which there was established, I think as long ago as the 15th century, a system of legal assistance afforded by the legal profession to those who were impecunious.
In my judgment, the separate Scottish system justifies separate consideration in any review. For that reason, I am extremely disappointed to hear from the Minister that the review is being conducted on a United Kingdom basis. May we know how many persons, apart from the Lord Chancellor himself, with experience in the law of Scotland have been appointed to the review? May we know from what bodies and organisations in Scotland evidence is to be taken to ensure that proper conclusions are reached? Will evidence be sought from lay bodies as well as professional bodies, and will the interests of the consumer be taken into account?
Since the regulations are in part conditioned by the fact that the review is under way, the House should he given rather more detail about its terms, about those who are participating in it and about the extent to which the interests of those who either have recourse to legal aid or who are funded by it will be taken into account in Scotland.
The regulations do not expand on professional eligibility—in terms of the merits of a case—or financial eligibility. Do the regulations contain anything to remedy the problem that arose in the Granger case against the United Kingdom Government, about which I have written to the Minister? That case exposed that our procedure contained a defect in the arrangements for making legal aid available in some criminal trials for accused persons. That matter ultimately went to the European Court, and although some attempt has been made to meet the Court's criticism, it has not yet been enshrined in legislation. The 386 regulations might have proved the proper opportunity for that important change in the system of eligibility for legal aid to be made.
The failure to uprate the higher income limits means that during the period of the review and perhaps afterwards, depending on its conclusions, some people will not be eligible for legal aid who would have been if the higher income limits had been uprated in accordance with the percentage by which the lower income limits are uprated. That means that some people will be denied the opportunity of legal aid. That cannot be seen as anything other than a policy decision by the Government.
I hope that the Minister will spend a little time, even at about 8.50 am to explain why it was thought necessary to embark upon that policy change in advance of the review. There might be an argument for saying that we will have a review and then change the policy, but to change the policy in advance of the review seems to deny the effectiveness of the review.
I do not wish to detain the House much longer. As has been said, these are modest upratings. They do not address the continuing gap between the extent of fees for private, non-legal aid cases and legal aid cases. In Scotland, there has never been any difficulty in persuading either branch of the legal profession to accept instructions on the basis of a legal aid fee. But there is growing evidence to suggest that, for many solicitors, the cost of maintaining practices and the overheads that they face are likely to make taking on legal aid work increasingly unprofitable—to the extent that, for some of them at least, it may represent a loss. There must be a limit to the extent to which the solicitors' branch of the profession can be expected to sustain that loss. That is a matter that the review should certainly address, because the gap between legal aid fees and private fees is known to be increasing all the time.
For those who practise the law in Scotland, the regulations will represent a modest increase in the fees that they are entitled to charge in accordance with the rate of inflation. Clearly it is no one's interests that the regulations should fail to gain the approval of the House, and I would not seek to suggest that for a moment. However, the regulations raise more questions than they answer and, in due course, the Government will have to come to the House with a comprehensive view of the future of legal aid and the extent to which they believe that it is still to be regarded as demand-led.
There is more than a little evidence to suggest that there are some people in the Government who believe that legal aid should be the subject of financial capping. Whereas previously people who were eligible were entitled to access to legal aid, there may be cash limits so that the amount of legal aid available will inevitably be determined by the number of people who apply in any one year. That would be wholly contrary to the terms of the original legislation. It would drive a horse and cart through the right of every citizen to have recourse to the law to vindicate any legal rights which he or she may have. It would be a serious departure from what many people view as a fundamental liberty of the subject in the United Kingdom, and the Government will in due course have to address it.
§ Mr. James Wallace (Orkney and Shetland)
I shall not detain the House, but I wish briefly to ask the Minister about a case involving the administration of legal aid—a 387 case in my constituency that has received considerable national prominence. It would certainly be improper to go into any question of the merits of the case of the alleged child abuse in Orkney, but the Minister is well aware that legal aid issues arise from it.
The House may be interested to know that two solicitors from local firms have been acting for two families each. The circumstances of this case have meant that they have taken telephone calls, sent out fax messages, and intimated notices of motions on behalf of each other's clients. I can confirm, from my own observations, that the solicitors involved have been working most hours of the day to pursue the interests of their clients.
The legal aid regulations do not neatly cover such circumstances, especially when it comes to feeing. The question that I ask the Minister to address—I have already put it to him in correspondence—is whether, with the fiat of the Secretary of State, and under the principal statute, the Legal Aid (Scotland) Act 1986, a simplified method of feeing can be provided for in this case. The solicitors were heavily engaged in instructing counsel and in preparing for a proof before the sheriff; if they had had to follow the detailed regulations of the legal aid provisions, they would probably have spent most of their time filling in time sheets relating to every telephone call taken, every fax sent and every letter read or dictated, which would have detracted from the main purpose of what I think that every hon. Member would accept was a case of considerable concern and seriousness.
The other matter will be partly covered by the regulations that we are debating which increase the level of fees. It is my understanding that in a case such as the one in Orkney the sheriff is entitled to allow an uplift of the fees of up to 50 per cent. I understand that that has been accepted by the Scottish Legal Aid Board. However, even if one accepted the increase proposed in the fees, and an uplift of 50 per cent. granted by the sheriff, that would still fall considerably short of what their counterparts would have got in England and Wales for undertaking similar work. Some explanation is required as to why that difference has been allowed to occur.
I should emphasise that it is certainly no part of the solicitors' concern that these cases should be their great profit-making work for the year. They seek fair remuneration and the effort that they have shown has been in the best traditions of the legal assistance provided by the Scottish legal profession, as my hon. and learned Friend the Member for Fife, North-East (Mr. Campbell) said, for centuries. They have shown dedication to their clients that is consistent with that tradition.
Finally, in correspondence, the Minister has certainly acknowledged and praised the dedication with which those solicitors have set about their work. Although they acknowledge and accept the Minister's praise for their dedication, I think that they would prefer, or would seek to have in addition, simplified procedures for dealing with the feeing of this case and slightly more generosity than would appear to be possible even under these regulations.
§ Lord James Douglas-Hamilton
This has been a good debate, and I congratulate hon. Members on raising some extremely important and relevant questions.
388 In relation to the Orkney case, as the hon. Member for Orkney and Shetland (Mr. Wallace) suggested, the Scottish Legal Aid Board is in a position to make an increase. We believe that the existing arrangements are adequate to meet the needs of the case. The board has said that, following consideration of Sheriff David Kelbie's interlocutor, it is prepared to allow a 50 per cent. increase in the fees for work concerned with the proceedings coming before the sheriff for which a legal aid certificate has been granted. The hon. Member for Orkney and Shetland and the solicitors involved will be advised accordingly if they have not already received that information. If they have not already done so, the lawyers involved should submit their accounts and fee notices to the Scottish Legal Aid Board for consideration so that all funds due to them can be paid as quickly as possible.
I should like to reflect on the points that have been made about simplified procedures and the discrepancy between that case and other comparable cases in Britain, and I shall write to the hon. Gentleman who raised that matter as quickly as possible.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
I had hoped to be here for the start of the debate but was delayed. I sincerely apologise to the Minister for that and thank him for giving way. Are there any means by which a decision of the Scottish Legal Aid Board can be challenged? I ask that on behalf of a constituent, Mr. Edward Rodgers, who was seriously injured in a car accident and whose application was turned down on the grounds of probabilis—
§ Dr. Godman
I am grateful to the hon. and learned Gentleman.
My constituent was seriously injured in a traffic accident and, as far as I am concerned, has every cause to seek legal and financial compensation for his injuries, but he received what I can describe only as a casually worded missive from the chairman of the board to the effect that, because of "probable cause", he cannot receive legal aid. Is there any means by which Mr. Rodgers can appeal against such an unchivalrous and uncivilised decision?
§ Lord James Douglas-Hamilton
Given that the hon. Gentleman has made that appeal to me, I shall look into the case and correspond with him about it. "Probable cause" means a legal case that is capable of being proved. The criterion to be applied by the Scottish Legal Aid Board to any application is not whether the board feels that the proposed action would be successful but whether, on an assessment, the case looks on paper as though the applicant has shown that he has a case that could be proved. I give way to the hon. and learned Member for Fife. North-East (Mr. Campbell), who has been a member of the Scottish Legal Aid Board and whose questions I am anxious to answer.
§ Mr. Menzies Campbell
I follow the point made by the hon. Member for Greenock and Port Glasgow (Dr. Godman). When the Minister considers that matter, perhaps he would also turn his attention to the question 389 whether such a decision raises questions of an unreasonable exercise of statutory discretion and might therefore give rise to the possibility of judicial review.
§ Lord James Douglas-Hamilton
The hon. and learned Gentleman has been a member of the Scottish Legal Aid Board and his concern on this issue carries some weight. I shall look into the points that he mentioned.
We have considered the terms of the court's judgment on the Granger case and, following consultations with the court authorities, arrangements have been made so that when the Appeal Court considers that the circumstances of a case require it, the court will adjourn the hearing and recommend that the decision to refuse legal aid should be reviewed by the Scottish Legal Aid Board. We consider that that provision will effectively ensure that cases similar to Granger do not arise in future.
I can reassure the House that legal aid is demand-led, and has increased enormously in recent years. In 1981–82, for example, it ran to £23 million in Scotland; by 1984, that had risen to £35 million and in 1989–90 it was £59 million. We have reason to believe that it will be about £64 million for 1990–91. The figure has therefore trebled in the past 10 years, which is an indication of the Government's good will on this issue.
We have increased the lower eligibility limit for civil legal aid and advice and assistance to ensure that those most in need will continue automatically to obtain free legal aid. We are currently reviewing the wider aspects of eligibility and a consultation paper will be issued in due course.
The hon. Member for Glasgow, Cathcart (Mr. Maxton) asked about the upper limits. The present proposals will ensure that those most in need of legal aid will continue to get it free. The question of how legal aid should be provided in the future and the part to be played by any other form of eligibility test is being addressed by the review and will be resolved following consultation with interested bodies on the discussion paper.
The hon. and learned Member for Fife, North-East asked who will be on the working group. The group consists of officials from the Lord Chancellor's Department and the Legal Aid Board with advice from the Department of Social Security and elsewhere, as appropriate. The Scottish Office and the Scottish Legal Aid Board are participating fully in the group on questions of equal application in Scotland.
In addition, Scottish consultations will be undertaken at appropriate stages to make certain that Scottish needs and circumstances are fully catered for before any proposed changes are implemented. That is exactly what the hon. Member for Cathcart would wish.
The first consultation paper is likely to be published soon and we shall make certain that Scottish interests are taken into account throughout. Pending the outcome of the review, the Government consider it appropriate to leave the upper income limits unchanged.
§ Mr. Wallace
What the Minister has just said is important. We need some clarification. Is the Minister telling the House that Scottish Office and Legal Aid Board officials are not full working members of the group but will merely be consulted for their opinions? Are they full working members of the group and, if so, how many will 390 there be compared with the number from the Lord Chancellor's Department and the Legal Aid Board in England and Wales?
§ Lord James Douglas-Hamilton
I said that they will be fully participating members of the group. There is no question about that. My exact words were that the Scottish Office and Scottish Legal Aid Board were participating fully in the group on questions of equal application to Scotland. [Interruption.] Hon. Members can be absolutely certain that anything relating to legal aid in Scotland will be fully and properly considered. I have not the slightest doubt that the Secretary of State and I will make absolutely certain of that. That would, indeed, be the wish of the hon. Gentleman.
Ultimately, a line has to be drawn somewhere. The review is considering bringing more flexibility into the criteria for legal aid, but of course we do not seek a contribution from those on income support.
§ Lord James Douglas-Hamilton
May I just answer the hon. Gentleman's point about narrowing the criteria?
The proportion of the population which may be eligible for legal aid at any time is not an appropriate measure of the performance of the system. We believe that the proposed uprating of the lower eligibility limits will continue for those most in need. One object of the review is to ensure that the resources that can be made available for legal aid are distributed reliably in accordance with need.
The hon. Member for Cathcart asked what proportion of the population was eligible for legal aid. I shall have to look at the statistics as he gave particular dates. More people were assisted in 1989–90. Some 261,991 accounts for legal aid, advice and assistance were paid, which is approximately 40 per cent. more that were paid five years ago. Since 1980 annual provision of Government grant for legal aid has risen from £15 million to £55 million in 1989–90. The indications are that the totals for this year will be about £64 million, which is a huge increase.
The hon. and learned Member for Fife, North-East asked about the decline in civil legal aid—
§ Mr. Maxton
I sought to intervene earlier when the Minister said that the Lord Chancellor's review was ongoing and that the working party would produce reports. But the regulations pre-empt that review by keeping down the upper levels of eligibility. Essentially, the regulations do exactly what the Lord Chancellor has made it clear in one or two public statements that the review is about. What is the point of having a review if the Lord Chancellor has already made up his mind exactly what is going to happen with legal aid and intends to implement it? What is the point of consulting anyone?
§ Lord James Douglas-Hamilton
I made it clear in my original remarks that, pending the outcome, the Government considered it appropriate to leave the upper eligibility limits unchanged. But none the less, it is important to ensure that income thresholds for free legal aid are uprated. That is what is proposed.
We consider that legal aid should go to those most in need and that will certainly continue to be the case. Legal aid will continue to be non cash-limited. I hope that the debate has been helpful in demonstrating the importance 391 we attach to the provision of legal aid in Scotland and our determination to make certain that the Scottish legal aid service is effective and is efficiently administered.
We remain committed to funding those cases where applicants qualify. I stress once again our continuing commitment to an efficient and effective legal aid system. We appreciate the need in all this for the continuing co-operation of the Law Society of Scotland and the Faculty of Advocates for Scotland, as well as the Scottish Legal Aid Board.
This has been an extremely useful debate. There is one last point that I should mention before I sit down. Hon. Members have asked for more effectiveness. One particular matter that is being considered under the current review of legal aid is whether legal aid service can be more effectively delivered through franchising whereby a number of firms in an area contract with the legal aid board to provide legal aid services. There would be full consultation on the proposals emerging from the review. If the Opposition have other suggestions, we will look at them with great care.
I commend the regulations to the House—
§ Mr. Campbell
I am grateful to the Minister, who shows his usual courtesy in these matters, even at this somewhat unusual hour.
I take the Minister back to the question of the constitution of the review. If I understand him correctly, he is telling us that there is a United Kingdom review, which appears to have been established at the instigation of the Lord Chancellor. The Scottish input to that review is reflected in representatives of the Scottish Legal Aid Board and of the Scottish Home Department. But the Minister's explanation revealed that the particular contribution of those two individuals is to questions that are raised regarding Scotland. It does not appear from what he said that those two individuals are participating in the United Kingdom review of the legal aid system. If that is true, does it not point up the fact that we should have two separate reviews: one for England and Wales and one for Scotland? That way we can all be assured that the Scottish interest will be properly taken into account.
§ Lord James Douglas-Hamilton
The hon. and learned Gentleman is not correct in his interpretation of what I 392 said. This is a United Kingdom review. The Scottish Office will be fully represented. I would not necessarily accept the figure that he gave; it may be more. Obviously, Scotland's interests will be properly and fully considered at every stage with appropriate consultations in Scotland to take fully into account the Scottish circumstances. We all appreciate that Scotland has a different legal system the needs of which need to be particularly taken into account and they will be.
§ Question put and agreed to.
That the draft Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991, which were laid before this House on 20th March, be approved.
That the draft Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991, which were laid before this House on 20th March, be approved.—[Lord James Douglas-Hamilton.]
That the draft Advice and Assistance (Scotland) (Prospective Cost) Regulations 1991, which were laid before this House on 20th March, be approved.—[Lord James Douglas-Hamilton.]