HC Deb 29 January 1997 vol 289 cc427-34
Lord James Douglas-Hamilton

I beg to move amendment No. 45, in page 45, line 1, after '(b)' insert 'subject to subsection (3A) below,'.

Madam Speaker

With this, it will be convenient to discuss also the following amendments: Government amendments Nos. 46 to 52.

No. 160, in page 46, leave out lines 36 to 47.

Government amendments Nos. 53 to 59.

No. 161, in page 48, line 37, after 'shall', insert 'refer the matter to the Law Society of Scotland and upon receiving the Law Society's ruling that the solicitor's name should be removed from the Register, it shall.'.

Government amendments Nos. 60 to 69.

No. 152, in clause 46, page 50, line 44, leave out 'require' and insert 'offer the opportunity to'.

Government amendment No. 70.

No. 153, in page 51, line 1, leave out 'requiring' and insert 'offering to'.

No. 154, in page 51, line 2, leave out 'to use' and insert 'the opportunity to instruct'.

Government amendments Nos. 242, 71 to 74 and 243.

No. 158, in clause 49, page 52, line 41, leave out 'The Board may', and insert 'Where a sheriff is satisfied, by evidence on oath given on behalf of the Board by a person authorised by the Board for that purpose, that there are reasonable grounds for believing that, circumstances specified in section 35B(1)(a), (b) or (c) arise he may authorise the Board to.'.

Government amendment No. 75.

No. 155, in page 52, line 42, leave out 'wholly or partly' and insert 'only'.

No. 157, in page 53, line 13, after 'documents', insert 'relating only to the provision of criminal legal assistance'.

Government amendments Nos. 76 and 77.

No. 159, in page 55, line 25, at end add— '(3A) Where the Board has referred a matter to the Law Society or any of the bodies mentioned in subsection (2) above it may withhold payment of any fees due to him in respect of such work, pending the outcome of the investigation by the body or bodies to which the matter has been referred.'.

No. 156, in page 55 leave out lines 26 to 33.

Government amendment No. 78.

Lord James Douglas-Hamilton

The Government amendments in this group affect the part of the Bill relating to criminal legal aid and implementing improvements suggested in Committee by my hon. Friends the Members for Eastwood (Mr. Stewart) and for Ayr (Mr. Gallie). They cover the registration of solicitors, a pilot scheme for public defenders, the code of practice, the involvement of the Law Society and other matters.

Mr. Wallace

I should like to speak to the amendments standing in my name and those of my hon. Friends. This part of the Bill opens up some important issues concerning the relationship between the Scottish Legal Aid Board and the Law Society of Scotland, and the circumstances in which additional powers are being given to the Scottish Legal Aid Board without sufficient case having been made to justify the need for those powers.

Amendment No. 160 would delete the provision that relates to the Scottish Legal Aid Board's code of practice, which governs those who provide criminal legal aid assistance in Scotland. The code of practice should not include provisions concerning the conduct of defence work. It is inimical to our system of justice for a state body to be able to dictate to defence lawyers, who should be independent, how they should conduct relations with the prosecution.

The Law Society of Scotland is the statutory regulator of solicitors and, since its inception, it has set standards of conduct in its rules and regulations for those who enrol as solicitors to follow. If the rules are broken or complaints are made, the Law Society of Scotland investigates and, if the complaints are substantiated, prosecutions may be brought before the Scottish Solicitors Discipline Tribunal.

The Scottish Legal Aid Board is not a professional regulator: it is a non-departmental Government body. It is mixing two concepts that do not mix well to give a Government-appointed body the power to lay down codes of practice that could affect the way in which solicitors are able to defend their clients. Clause 45 provides that the board could regulate the manner in which a solicitor should conduct a case and represent his client, including … the passage of timeous and accurate information to the client … the frequency of meetings … the giving of advice to the client as to the consequences of any decision made … the taking of such precognitions as may be necessary … the conduct of relations with the prosecution. That goes to the heart of the relationship between a client and his professional adviser. I do not doubt that the parameters were set with good intentions, perhaps to prevent slipshod service, but the Law Society of Scotland can already do that.

Dingwall sheriff court is currently being clogged up with the cases of people protesting against the payment of tolls on the Skye bridge. Many fine legal points have been raised, appeals have been made to the Court of Session, and Government policy has been challenged effectively. It would not be in the interests of justice that a code of conduct for solicitors defending people charged with the non-payment of tolls should be determined by a Government-appointed body. That is a potential conflict of interest.

Clause 45 also provides that the Scottish Legal Aid Board could remove the name of a solicitor who did not comply with the code. Amendment No. 161 would ensure that the matter was referred to the Law Society of Scotland, which is the appropriate body to rule on the removal of names from the register. After referral, and if the Law Society agreed, the board could then remove the name. The amendment would clarify that what is effectively a disciplinary action should be taken by the Law Society and not left solely to the board.

Clause 49 would give further powers to the Scottish Legal Aid Board. Amendment No. 158 would require judicial authority for certain actions and activities of members of the board. I declare an interest as parliamentary adviser to the Institute of Chartered Accountants of Scotland. The institute is concerned that the provisions are too wide. In particular, it is concerned that information might be sought by officials of the board without proper judicial authority.

It is necessary in some cases for the police to be given powers to obtain information, but almost exclusively those powers are sought under judicial authority. The Bill would give powers to the Scottish Legal Aid Board, which—as far as I am aware—has no proper training in how police powers might be used, to seek information without judicial authority. Such powers are not even given to the police.

I draw a parallel with the Finance Act 1994. The Treasury sought to give similar powers to the officers of the Inland Revenue. The attempt was strongly opposed on several grounds, including the unacceptably wide powers, the possibility that they could be misused by an over-zealous officer and the need to strike a balance between exposing bad practitioners and protecting the innocent.

The powers in the Bill go too far, without sufficient judicial discretion, and could allow an over-zealous official of the Scottish Legal Aid Board to go on a fishing expedition on an unfounded allegation or on a hunch. That is not acceptable and does not strike the proper balance. In any case, the House has been given no evidence that a serious problem exists that has to be addressed by such sweeping powers.

Amendments Nos. 155 and 157 are important and technical amendments which relate to the requirement to produce documents under the powers. Amendment No. 155 would ensure that only documents relating to criminal legal aid cases could be recovered. Clause 49 would allow SLAB officials to seek documents that did not relate to the application for criminal legal aid and in which the board had no interest.

As the clause stands, the powers would allow the officials to obtain documents that related to other, civil matters which had no connection with the criminal case, but which were part of one file in a solicitor's office. Again, that power goes to the heart of the relationship between client and solicitor, and should be outwith the scope of the Bill. I ask the Minister to address the point that the powers would allow a wider discretion to request documents than even he might think necessary.

Clause 49 states: The power under this section to require production of information and documents includes power … to require any person, who is a present or past partner or employee of any such solicitor or firm and who appears to the Board or one of its officers to have any information or documents, to produce them". No qualification whatever is included. At least proposed section 35A(1) includes the qualification that the information and documents should relate wholly or partly to the provision of criminal legal assistance. I sincerely hope that the lack of a qualification is a drafting error and, if so, I offer the Minister the opportunity to accept amendment No. 157 to limit the power to obtain documents.

Amendments Nos. 159 and 156 would delete the current provision that would allow the suspension of all payments to a solicitor who might be guilty of a criminal offence. Amendment No. 159 would allow the suspension of payments to the solicitor only in respect of work related to the offence.

The reason behind that is that the power of the board should not be to suspend solicitors from legal aid entirely pending the outcome of a complaint because such a suspension can proceed only on suspicion and without the benefit of any judicial hearing. I believe that that is contrary to natural justice. Suspending a solicitor from earning a large part of his or her livelihood without any judicial process cannot in any way be seen as fair; it flies in the face of the presumption of innocence.

The Bill makes inadequate provisions to ensure that the client is protected in such circumstances. What would happen not only to the client concerned but to other clients of a solicitor if he or she were suspended? We believe that a right of retention of payment of fees claimed from the fund is reasonable. Amendments Nos. 159 and 156 would allow that objective to be achieved without going into much more principled and procedural objections.

I know that the amendments are wide-ranging, but they all seek to ensure that any power given to the Scottish Legal Aid Board is properly accountable and defined, and does not overstep the mark or duplicate work that ought in the first place to be done by the Law Society of Scotland. I await the Minister's reply with interest.

7.30 pm
Lord James Douglas-Hamilton

The Opposition's amendments on legal aid go too far in seeking to curtail the powers to be conferred on the board by part V. Many of the issues raised by the hon. Member for Orkney and Shetland (Mr. Wallace) were explored in great detail in Committee, so I shall give an overall summary of the view that the Government have taken.

The code of practice must deal with the manner in which a solicitor should conduct a case and represent his client. We consider that an essential area. It is for the Scottish Legal Aid Board to monitor compliance with the code and decide who is to be included on the register. There are provisions for appeal on the merits of the decision to safeguard those affected by such decisions. I must therefore resist amendments Nos. 160 and 161.

We have made substantial changes to clause 46, but cannot concede amendments Nos. 152 to 154. They would prevent the board from ensuring that directly employed solicitors have an adequate throughput of cases. If we are to report to the House within three years on the pilot scheme, it is essential to ensure an adequate work load for the solicitors from the outset.

Amendments Nos. 155 to 159 seek to restrict the powers of the board to obtain information and documents to support a full investigation where there are grounds for suspicion, and in the last resort to suspend a solicitor from providing criminal legal assistance. Those powers are, however, an important safeguard for the public from potential fraud and the use of legal aid. I therefore urge the hon. Member for Orkney and Shetland to withdraw the amendments.

The hon. Member referred to the proposed section 35A(4), and asked whether there was a drafting error. The powers to acquire information from past partners are conditioned by the purposes for which information may be required under the proposed section, which are made clear by amendment No. 157. The overall view of members of the Committee was that the powers were necessary. I therefore commend them to the House.

Mr. Allan Stewart (Eastwood)

Unusually for me, I must say that my right hon. and learned Friend the Minister did not give a wholly adequate reply to the hon. Member for Orkney and Shetland (Mr. Wallace) on the powers of entry. Such powers have been described as iniquitous by bodies such as the Glasgow Bar Association. One can of course argue that it comes at the question from a particular angle, but I hope that my right hon. and learned Friend has an opportunity to reconsider what he has said.

From listening to the hon. Gentleman, I certainly felt that, at the very least, he deserved a detailed reply to his important points. [Interruption.] I can tell the Whips that I shall not detain the House for very long. I think that I am entitled to a couple of minutes of the House's time, having served on the Committee.

I should like to put two questions to my right hon. and learned Friend. I accept that, under the circumstances, he may want to write to me rather than detain the House.

First, how will the pilot scheme to which he has referred work? My understanding is that a proportion of accused persons within the jurisdiction of the court covered by the public defender will be directed to the public defender. Although that could work in various ways, I do not think that the public have been informed of the details. I hope that my right hon. and learned Friend can assure the House that, if he is not going to inform people of the details in this debate—that may not be the will of the House—he will find a method of doing so.

Secondly, how will the fixed payment system work in practice? There are two or three possible ways in which it could work, but—again—I understand that they have not been made public. I would wholly accept my right hon. and learned Friend's assurance that he will make the matter public as soon as possible to those who are especially interested in the details if he does not want to detain the House tonight.

Mr. McFall

I shall be brief, because clauses 45 to 49 were well covered in Committee.

The Minister knows that the official Opposition are very much behind his public defenders system pilot scheme. I remind him that he must make adequate resources available for the scheme to ensure that it works properly. The best information must be available, especially in the light of the rising legal aid budget. We are interested not only in value for money but in access to justice for many people. We consider that the pilot scheme is extremely important, and we want the Government to support it as much as possible.

I draw the Minister's attention to amendment No. 152, which concerns a matter that we debated in Committee. As he knows, the Law Society of Scotland, which has very successfully lobbied the Government, was concerned about freedom of choice. Amendment No. 152 would ensure that clients have freedom of choice in whether they instruct solicitors employed by the Scottish Legal Aid Board or private practitioners. The Law Society of Scotland believes that such a choice is worth preserving and protecting. It reminds the Government of their obligations, especially in relation to article 63 of the European convention on human rights, which states: Everyone charged with a criminal offence has the following minimum rights … (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interest of justices could be in breach of the European Convention. I remind the Minister of comments made by the Law Society and others, and seek his response.

Lord James Douglas-Hamilton

I should confirm, to correct the point that I made in haste a moment ago, that the drafting error relates to amendment No. 75, not amendment No. 157.

I welcome the comments of my hon. Friend the Member for Eastwood (Mr. Stewart). I say to him, and to the hon. Member for Orkney and Shetland (Mr. Wallace) that it would not be possible for the board's officials to go on a fishing expedition. Before obtaining a warrant, they must convince a sheriff of the grounds specified in the proposed section 35B(1).

Mr. Wallace

The Minister is, of course, right to say that a shrieval warrant will be necessary to obtain powers of entry to premises to investigate. The point that I was making concerned the fact that no prior judicial authority will be needed to make a requirement of solicitors. He will note that a failure to respond to such a requirement can lead to conviction. The question that the Minister must address is why judicial authority is required for the board to enter premises to investigate, but a similar judicial authority is not required where the board issues a requirement for information.

Lord James Douglas-Hamilton

I shall examine that point and write to the hon. Gentleman. I shall also thoroughly examine the way in which the pilot schemes will operate and write to my hon. Friend the Member for Eastwood on that point.

The method of directing counsel to the public defender is under consideration. The arrangements will be announced when the Scottish Legal Aid Board and the Scottish Office have resolved the details, but I shall write to my hon. Friend and to the hon. Member for Orkney and Shetland in due course.

Amendment agreed to.

Amendments made: No. 46, in page 45, line 6, leave out from beginning to 'only' in line 8.

No. 47, in page 45, line 10, leave out '(b)' and insert ', subject to subsection (3A) below,'.

No. 48, in page 45, line 12, at end insert— '(3A) A solicitor employed by the Board under section 28A of this Act shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed: but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered.'.

No. 49, in page 45, line 17, at end insert— '( ) Before making any decisions as to the matters mentioned in subsection (4) above the Board shall—

  1. (a) send to the Law Society and to such other persons and bodies as it considers appropriate a draft of its proposals in that regard, inviting their comments on those proposals within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify: and
  2. (b) consider any such comments timeously received by it.
but, where it amends those proposals in the light of any such comments, it shall not be required to re-intimate the amended proposals to any of those who were invited to comment.'

No. 50, in page 45, leave out from line 41 to line 10 on page 46 and insert— '(10) Where the Board decides to refuse an application it shall forthwith intimate that decision to the applicant, and shall as soon as practicable thereafter send him or them, by recorded delivery, a written note of its reasons. (11) An applicant aggrieved by a decision of the Board to refuse registration may, within 21 days of the receipt of the notification of the Board's reasons under subsection (10) above, appeal to the Court of Session against that decision. (12) An appeal under subsection (11) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit.'.

No. 51, in page 46, line 18, leave out ', other than solicitors employed by the Board by virtue of section 28A of this Act,'.

No. 52, in page 46, line 30, at end insert 'and professional ethics'.

No. 53, in page 47, line 9, leave out from '(ii)' to 'the' in line 11.

No. 54, in page 47, line 14, at end insert 'and professional ethics'.

No. 55, in page 47, leave out lines 25 and 26 and insert— '(1A) The code may make different provision in relation to firms and solicitors including, in relation to solicitors employed by the Board by virtue of section 28A of this Act, different provision to reflect the fact that they are so employed.

No. 56, in page 47, leave out lines 27 to 30 and insert— '(2) The Board shall—

  1. (a) send a copy of the draft code prepared by it under subsection (1) above to the Law Society and to such other persons and bodies as it considers appropriate, inviting their comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify: and
  2. (b) consider any such comments timeously received by it,
but, where it amends the draft code in the light of any such comments, it shall not be required to re-intimate the amended code to any of those who were invited to comment. ( ) After carrying out the consultation mentioned in subsection (2) above the Board shall submit the draft code to the Secretary of State for his approval.'.

No. 57, in page 48, line 17, leave out 'is not' and insert 'may not be'.

No. 58, in page 48, line 32, leave out 'is no longer' and insert 'are not'.

No. 59, in page 48, line 36, leave out 'no longer' and insert 'not'.

No. 60, in page 49, line 8, leave out ', or a solicitor employed by the Board by virtue of section 28A of this Act'.

No. 61, in page 49, line 13, leave out from 'Register' to 'but' in line 17 and insert 'it shall forthwith intimate that removal to the firm or solicitor concerned, and shall as soon as practicable thereafter send them or him, by recorded delivery, a written note of its reasons for its decision. (8) A firm or solicitor aggrieved by a decision of the Board under subsection (4) above may, within 21 days of the receipt of the notification under subsection (7) above, appeal to the Court of Session against that decision. (9) An appeal under subsection (8) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit;'.

No. 62, in page 49, leave out lines 20 to 25.

No. 63, in page 49, line 30, leave out 'is not, or'.

No. 64, in page 49, leave out from line 33 to line 4 on page 50 and insert— '(2) Subsections (6) to (9) of section 25D of this Act apply in relation to a solicitor whose name is removed from the Register under subsection (1) above as they apply in relation to a solicitor whose name is removed from the Register under subsection (4) of that section.'.

No. 65, in page 50, line 12, leave out 'but' and insert 'and'.

No. 66, in page 50, line 13, leave out 'need not' and insert 'shall'.

No. 67, in page 50, line 16, leave out 'April' and insert 'December'—[Lord James Douglas-Hamilton.]

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