Legal Aid and Advice (Scotland) (Hansard, 16 March 1994)

§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
I beg to move, That the draft Advice and Assistance (Financial Conditions) (Scotland) Regulations 1994, which were laid before this House on 7th March, be approved.

§ Mr. Deputy Speaker (Mr. Geoffrey Lofthouse)
I understand that with this it will be convenient to discuss at the same time the following motions: That the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 1994, which were laid before this House on 7th March, be approved. That the draft Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1994, which were laid before this House on 7th March, be approved. That the draft Criminal Legal Aid (Scotland) (Prescribed Proceedings) Regulations 1994, which were laid before, this House on 7th March, be approved.

§ Lord James Douglas-Hamilton
The first two sets of regulations provide for the uprating of the financial eligibility limits for civil legal aid and for advice and assistance. They adjust the financial limits to effect changes in the level of social security benefits, which will be operative from 11 April.
The third and fourth sets of regulations provide for the extension of assistance by way of representation, which is a form of advice and assistance under the legal aid arrangements to cover a number of straightforward cases and to exclude the same cases from eligibility for criminal legal aid. They are technical changes designed to streamline and improve the administration of the legal aid system.
We shall also shortly be laying before the House further regulations under the negative resolution procedure to enact a number of further minor and technical amendments and improvements to the legal aid system in Scotland.

§ Mr. Tam Dalyell (Linlithgow)
Does the Under-Secretary of State have any evidence easily available on the effect of the changes in the past year to those regulations? I suspect that the evidence that we have is anecdotal and I do not know whether there is any factual basis for it.

§ Lord James Douglas-Hamilton
I can tell the hon. Gentleman what the effect has been on overall expenditure. In 1987–88, expenditure was £49 million for legal aid in general in Scotland and the estimated figure for 1993–94 is £118 million, which is, of course, a substantial increase, notwithstanding the changes that occurred and which the House debated at approximately the same time last year, if my memory serves me correctly.
It may be helpful if I briefly describe each of the sets of regulations in a little more detail. As hon. Members will know, eligibility for civil legal aid and advice and assistance depends on a person's disposable income. 'That is income after allowances have been made for central expenditure such as housing costs, local taxes, dependants' allowances and a number of others. People at or below the lower limit of disposable income are entitled to legal aid covering the whole costs of their case or of the advice that they receive without paying any contribution. The upper limit for civil legal aid and advice and assistance relates to the level of income above which no legal aid is payable. 928 People whose income falls between those two limits are eligible for civil legal aid or advice and assistance subject to the payment of a contribution which is directly related to their level of disposable income.
The Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1994 raise the lower disposable income limit for civil legal aid from £2,293 to £2,382 a year. The regulations also increase the upper limit from £6,800 to £7,060 a year. The Advice and Assistance (Financial Conditions) (Scotland) Regulations of 1994 provide for a similar uprating in relation to advice and assistance. In those cases, the calculation is carried out on the basis of weekly income. The regulations—

§ Mr. Dalyell
rose—

§ Lord James Douglas-Hamilton
I shall give way in a moment. The regulations raise the lower limit from £61 to £63 and the upper limit from £147 to £153. The regulations also revise the scale of contributions for applicants with disposable income between the upper and lower income limits for advice and assistance.

§ Mr. Dalyell
I understand clearly that legal aid does not apply to the work of the Child Support Agency, at least in general terms, but that, of course, legal advice and assistance does. Due to the difficulties that all of us have had with child support-related cases, which we see at our surgeries, is there any easily available figure—there may not be and I would not complain too much about it—of how much advice and assistance has been allocated to the general heading of child support?

§ Lord James Douglas-Hamilton
I do not have that figure readily available, but I can tell the hon. Gentleman that the mechanisms by which social security benefits are taken into account for the purposes of calculating legal aid vary according to the benefit and the provisions of the legal aid legislation. For example, income support and family credit recipients automatically receive free advice and assistance. Income support and various other non means-tested social security benefits, such as attendance allowance, mobility allowance and disability living allowance are disregarded in the calculation of disposable income for civil legal aid. I shall make inquiries on the point which the hon. Gentleman raises and I shall write to him in due course.

§ Mr. Dennis Canavan (Falkirk, West)
rose—

§ Lord James Douglas-Hamilton
May I develop my argument, then the hon. Gentleman can intervene?

§ Mr. Canavan
I wish to ask about the figures.

§ Lord James Douglas-Hamilton
I have said that I shall find out what information I can and I shall write to the—

§ Mr. Canavan
It is not on the same point.

§ Lord James Douglas-Hamilton
Very well.

§ Mr. Canavan
The Minister referred to increasing the upper limit of weekly disposable income from £147 a week to £153 a week and to an increase in the lower limit from £61 to £63. How on earth did the Government arrive at those figures?

§ Lord James Douglas-Hamilton
The uprating has taken place after consultation with the Law Society. The changes that we are making to eligibility limits for civil 929 legal aid and advice and assistance are essentially routine upratings of the current levels. I should make it clear that there is no need for formal consultation on those changes, either with the Law Society or with any other interests. However, over changes in other areas that we are proposing, we have had discussion and consultation with the Law Society as appropriate. For example, on the question of a revised fee structure for solicitors undertaking legal aid in cases in sheriff courts, we have benefited from detailed discussions with the Law Society on the background and the rationale for the categories of fees to be prescribed, while making it clear that, in accordance with Government policy, the overall effect of the restructuring should be cost-neutral. We have taken into account the views of the Law Society of Scotland, which it has developed in discussion with the Scottish Legal Aid Board on the revision that we proposed to the detailed provisions for the undertaking of work as a matter of special urgency in civil cases funded by legal aid.

§ Mrs. Margaret Ewing (Moray)
rose—

§ Lord James Douglas-Hamilton
I shall give way in a moment.
On the point raised by the hon. Member for Falkirk, West, the proposed changes represent an increase of 3.8 per cent., matching the uprating level of income-related social security benefits. They are entirely straightforward and do not introduce any new provisions into that area of the legal aid system. The regulations are proposed to come into force on 11 April, the day when the annual social security uprating comes into effect.

§ Mrs. Ewing
Will the Minister list in the Official Report or place in the Library details of the discussions that have taken place with the Law Society of Scotland and with the Scottish Legal Aid Board indicating who was present and what criteria were used to define the figures have been enunciated in the statutory instruments?

§ Lord James Douglas-Hamilton
If the hon. Lady reads the report of what I have said, she will see that I have explained clearly on what issues the discussions and consultations took place. We have benefited from the views of the Law Society on the revision of the rules governing the circumstances in which a solicitor may write off any contribution payable by a legally aided person towards the cost of advice and assistance. In addition, the Minister of State met representatives of the Law Society on 7 February to discuss, among other things, fees for solicitors in legally aided cases. We have therefore undertaken discussion and consultation wherever appropriate, but not in cases where clear Government policy would make consultation unnecessary and inappropriate.
The hon. Member for Linlithgow (Mr. Dalyell) asked about advice and assistance in child support cases. In answer to his question, I have just been advised that information on the breakdown is not available in the form requested.

§ Mr. John McFall (Dumbarton)
The Minister said that he had consulted the Law Society and others. For the record, will he tell us whether the Law Society and others agreed with the financial levels on which eligibility will be based?

§ Lord James Douglas-Hamilton
I was not present at the meeting with the Law Society, so I cannot give its views in detail. However, I can say that the changes represent an increase of 3.8 per cent., which I believe will be generally welcomed.
The Advice and Assistance—

§ Mr. Dalyell
rose—

§ Lord James Douglas-Hamilton
May I finish developing my point? The hon. Gentleman can intervene in a moment.
The Advice and Assistance (Assistance By Way of Representation) (Scotland) Amendment Regulations 1994 and the Criminal Legal Aid (Scotland) (Prescribed Proceedings) Regulations 1994 make slight changes to the legal aid system. They extend the availability of assistance by way of representation, which is a form of advice and assistance extended to include representation in court in certain straightforward cases, thus avoiding the need for the applicants to go through the more complex procedures for obtaining either full criminal or full civil legal aid.

§ Mr. Dalyell
The Minister courteously told me that the information that I asked for was not available in the form in which it was requested. In what form is it available?

Lord James Douglas Hamilton
The information is certainly not available in the form in which the hon. Gentleman requested it. A breakdown of figures is given, but not in that form. The fact that information is not available in the form in which it has been requested is a parliamentary answer given when statistics are not available in the form required by an hon. Member. All that I can say to the hon. Gentleman is that if he examines carefully all the statistics that have been issued he will see the form in which they have been expressed—

§ Mr. Dalyell
That is part of the trouble, as we are finding in Committee on the Local Government etc. (Scotland) Bill. It is preposterous—I use that word in the presence of the Secretary of State—that increasingly, as time goes on, our questions are being totally unanswered in any sensible form.

§ Mr. Gallie
On a point of order, Mr. Deputy Speaker. Is it not the habit of the House to refrain from discussing in the Chamber what is happening in Standing Committee?

§ Mr. Deputy Speaker
Order. There has been nothing out of order in the debate while I have been in the Chair. If there had been I would have put a stop to it.

§ Lord James Douglas-Hamilton
Thank you, Mr. Deputy Speaker.
I can make it clear to the hon. Member for Linlithgow that the statistics available are the aggregate figures for advice and assistance. He is welcome to table as many questions as he likes, and we shall endeavour to give as helpful replies as we can within the framework of what is readily available.
I was asked earlier about the Law Society's agreement. The Law Society was not consulted on the levels, which were increased as a matter of Government policy. I should also make it clear that the two sets of regulations to which I have referred make assistance by way of representation available in respect of proceedings under part V of the Mental Health (Scotland) Act 1984—that is, proceedings 931 before the sheriff in relation to detention or guardianship under that Act. I remember that the hon. Member for Moray (Mrs. Ewing) had an interest in that subject.
The regulations also make assistance by way of representation available in respect of proceedings in cases of failure to comply with the requirements of a probation order or in relation to offences committed during probation, of proceedings in relation to failure to comply with the requirements of a community service order or supervised attendance order, and in relation to applications under section 42 of the Road Traffic Offenders Act 1988 for the removal of a driving disqualification.
In all such cases, assistance by way of representation will be available directly from the applicant's solicitor, except that in the case of applications for the removal of a driving disqualification, where the issues involved may be slightly more complex, the provision of assistance by way of representation is subject to the approval of the Scottish Legal Aid Board.
The regulations make provision for the uprating—

§ Mr. Menzies Campbell (Fife, North-East)
If I understand what the Minister is telling the House, the two instruments will make available on an easier and much less formal basis existing representation which until now has required an application for a full legal aid certificate. That is a laudable effort by the Government to simplify proceedings in certain cases specified in the regulations.
Do I also understand the Minister to say that there is an addition, in the sense that proceedings under part V of the Mental Health (Scotland) Act 1984 are now eligible for support through assistance by way of representation? I believe that that is an addition to the existing scheme, and if I am right it will also be welcomed by people who have an interest in such matters.

§ Lord James Douglas-Hamilton
Yes, I believe that the provisions will be welcomed as an extension. The hon. and learned Gentleman will recall that such matters were about to be included in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, but that, if I remember correctly, time prevented us from going into the matter thoroughly. Supervised attendance orders were included in the context of that Act, and we are now taking the matter a stage further, which I believe will be welcomed in Scotland.
The regulations make provision for the uprating of eligibility limits and for other useful, if minor, changes in the system of legal aid in Scotland. I am glad that the hon. and learned Member for Fife, North-East (Mr. Campbell), who has served on the Scottish Legal Aid Board, welcomes those changes, which are small but important in their own right. I strongly commend them to the House.

§ Mr. John McFall (Dumbarton)
I state immediately that the Opposition do not quibble with the upratings. Indeed, we welcome them. However, we must remember the genesis, which goes back to last year's autumn statement. To satisfy the Treasury, 18 months ago the Lord Chancellor said: The overall cost of legal aid must be made more affordable. It must be better targeted towards those areas of work where it provides the most cost-effective service. When Opposition Members hear the word "targeting" we know that it means cuts, and I am sure that that is what happened with the legal aid provisions. I well remember a 932 written answer to the hon. Member for Ayr (Mr. Gallie) on 16 November 1992, which said that the Minister intended to reduce the free income limit for eligibility from £3,060 per annum to the equivalent income support level of £2,213 per annum. It was admitted that that reduction was in line with the proposals for England and Wales previously announced by the Lord Chancellor.
Despite that written answer, a campaign was launched in Scotland to impress upon the Government the folly of their intended action. We are glad that the regulations were slightly changed and the lower level was changed from the equivalent of £2,213 per annum—the income support level —to £61 per week. But that still excluded many people in Scotland from applying for legal aid. Last year, the number was 250,000.
While we cannot quibble with the uprating—I am sure that the Law Society and others will be happy with the 3 per cent. uprating—we must take it back to the beginning. No one was happy with. the way in which the Government introduced the scheme last year and their original intention to keep it at the income support level. We now find that the original intention was to eliminate the contributory scheme. However, after campaigning, that was reinstated, and the amount was increased from £61 to £147 on a sliding scale. The Minister mentioned £63 for the lower end of the scale. We must be grateful for small mercies.
I looked at the research in the Library of the House for the last time that £63 was available for advice and research, and I had to go back to 1989. It is the same in 1994. In 1991, it was £70; in 1990, it was £64; and in 1989, it was just over £61. What we have here is back to the future with a vengeance; it is a retrograde step for the justice system in Scotland.

§ Mr. Gallie
Will the hon. Gentleman give the corresponding totals for the money spent on legal aid by the Scottish Office during that period? Was not the amount spent in 1989 substantially less in real terms than the figure announced today?

§ Mr. McFall
I am the first to admit that perhaps the expenditure has increased.
I thought that justice was for all. A system that excludes 250,000 people is one which denies justice to many people. That is the point of our argument. I hope that the hon. Member for Ayr will agree that if there is a pressing case for an individual to take a matter to court, especially cases of domestic violence, it would not matter if the individual had £1 million per week or £60 per week. Labour Members have been arguing on the basis of equity and accessibility to the courts.

§ Mr. Gallie
I accept the hon. Gentleman's point. But at the same time, it does not matter what level is set—people just above the banding will always suffer. It is almost impossible to find an equitable banding.

§ Mr. McFall
I do not want to go too much into that argument. When the Lord Chancellor made the point about cutting back, he talked about the recession. In any recession, there will be casualties and references to the courts and justice. Therefore, the wider policies of the Government are contributing partly to the problem. The hon. Member for Ayr should keep that in mind. It is important to underline that fact, because we must look at the whole picture.
933 A major stumbling block in the achievement of efficiency is the way in which the courts are run. We have a massively underfunded prosecution system and the courts are clogged. An individual can get bail in the Glasgow sheriff court or district court, and find that it is one or two years before his or her case is taken up. In other words, the system is wasting money daily and the Government have done very little to rectify the problem.
I welcome the criminal legal aid regulations. I also welcome the point made by the hon. and learned Member for Fife, North-East (Mr. Campbell) about part V of the Mental Health (Scotland) Act 1984. I shall make one or two points about those regulations in the short time that is available.
I understand that we will see changes in probation order breaches, conviction and prevention, breaches of community service orders and disqualification for driving licence petitions. All those things will be taken out of criminal legal aid and put into the advice by way of representation scheme. The problem—I should like the Minister's opinion on this point—is that in the civil legal aid system there is not the same time for solicitors to have an in-depth investigation as there is in the criminal legal aid system.
Given that all participants have been through the criminal courts, will there be a duplication of administrative costs when there is a transfer from criminal legal aid to advice by way of representation? If there is such a duplication, will not that increase the costs for the Scottish Legal Aid Board, which will have to process two applications—one from criminal legal aid and one from the advice by way of representation scheme? We question the wisdom of simultaneously cutting costs and increasing administration.
As I said earlier, the Government will still exclude a section of society from one of the basic rights of citizenship, which is access to justice. As we heard last year, the Government's attitude could blight and wreck people's lives. That is why we will continue to argue against the principle of the Government's measures, although we welcome the 3 per cent. uprating provided in the regulations. However, there I give notice to the Government that the battle will continue on behalf of the many people in Scotland who will be excluded.

§ Mrs. Margaret Ewing (Moray)
Mr. Deputy Speaker, this is a time-limited debate and I know that other hon. Members want to catch your eye in the five minutes that remain. Therefore, I shall be brief and not talk about some of the points that I wish directly to raise with the Minister.
The Minister let the cat out of the bag when he admitted the importance of Government policy, which seems to take sway over any representations made by those who represent the legal fraternity in Scotland and, indeed, the people whom they in turn represent—our constituents. It is important to look at the historical aspect of the regulations and what has happened to legal aid in Scotland.
We welcome the uprating provided in the regulations. However, it seems that the very poor or the very rich will have access to justice while the vast majority of people —our constituents—will be denied assistance, be it in civil or criminal actions which they wish to raise in the courts 934 of Scotland. It has always been my fundamental belief that we are all equal before the law, irrespective of income and circumstances, and that right should be given to us.
Clearly, the Government are introducing a cost-cutting exercise in all aspects of legal aid. My final comment is a comment that was made by no less a person than Anthony Scrivener QC, who is the chairman of the Bar. In The Independent, he said: The legal system is for the people and not for the lawyers or the judiciary. We are all servants of the community and if our legal system does not cater for those who need legal aid, then it does not deserve to be called a system of justice. Clearly, in introducing these small improvements, the Minister has not addressed the issue of justice for the community.

§ Mr. Menzies Campbell (Fife, North-East)
I suppose that I should declare an interest as someone in full membership of the Faculty of Advocates. However, looking at the regulations, I think that it is unlikely that I will benefit either personally or professionally from any of the changes that the Government propose to institute.
I shall reiterate the point that I made when I intervened on the Minister earlier. I welcome the simplification with regard to what one might call, for shorthand purposes, the criminal elements of the regulations which the Minister introduced. Clearly, that is something to be welcomed. If it reduces any additional burden on the administration of the Scottish Legal Aid Board, it will be not only more convenient but more efficient in terms of the use of resources.
As for the availability of civil legal advice and assistance, however, if one tracks back over the history of the provision of civil legal aid since the first, principal Act was introduced into the House, it is clear from answers given by Ministers that the percentage of the population in Scotland that is eligible for legal aid has fallen continuously and that the original purpose of civil legal aid, which was to allow every individual in Scotland the opportunity of litigating without any restriction because of his or her financial means, has been substantially prejudiced. The Government may be perfectly happy for that to be so, but it is important on an occasion like this, while welcoming the uprating, which no one would want to vote against or to oppose, to reflect the fact that the number of people in Scotland who are eligible for legal aid is falling. That must mean more and more cases of the sort mentioned by the hon. Gentleman the Member for Ayr (Mr. Gallie). It must mean that more and more people who should have the right to go to law—