HL Deb 14 April 1986 vol 473 cc451-76

5.10 p.m.

Report received.

Clause 1 [The Scottish Legal Aid Board]:

The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 1: Page 2, line 1, leave out ("8") and insert ("11").

The noble and learned Lord said: My Lords, with the leave of the House I shall speak also to Amendment Nos. 2 and 4 in my name. These amendments are designed to take account of comments on the composition of the board made during the first day on which your Lordships sat in Committee.

The Deputy Speaker

My Lords, I think I must interrupt the noble and learned Lord. The Marshalled List has been wrongly marshalled. In fact Amendment No. 3 comes before Amendment No. 2. Would the noble and learned Lord, in order to assist the House, deal only with Amendment No. 1 first?

Lord Cameron of Lochbroom

My Lords, I am obliged. Speaking simply to Amendment No. 1, the intention here is to increase the number of members of the board from eight to 11, consequent upon certain other amendments which would have the effect of increasing the number of members who would be taken from the Faculty of Advocates and the Law Society.

The increase in number, which would depend upon those amendments, is to leave the board with still a lay majority upon it. The Government consider that it is appropriate, where the board has a wide range of duties, that there should be a lay majority. Obviously we shall come to the issue of the membership in due course. In the meantime, I beg to move.

The Earl of Selkirk

My Lords, may I ask one question on this amendment and the other two amendments taken with it? Is it understood that there will be consultation with the Faculty of Advocates and the Law Society when these nominations are made?

Lord Cameron of Lochbroom

My Lords, we are perhaps going to go into that realm in a moment, and I do not think that it would be appropriate at this stage to deal with the point raised by my noble friend. I certainly intend to do so when I deal with the issue, which will come with the next amendments.

On Question, Amendment agreed to.

The Deputy Speaker

My Lords, Amendment No. 3. I should explain that if Amendment No. 3 is agreed to, I cannot call Amendments Nos. 2 and 4.

Lord Morton of Shuna moved Amendment No. 3:

Page 2, leave out lines 14 to 17 and insert—

  1. ("(a) at least two members of the Faculty of Advocates from persons nominated by the Faculty of Advocates;
  2. (b) at least two members of the Law Society of Scotland from persons nominated by the Council of the Law Society of Scotland;
  3. (c) at least one other person having experience of the procedure and practice of the Courts;
  4. (d) at least one person from persons nominated by the Scottish Association of Citizens Advice Bureaux;
  5. (e) at least one person from persons nominated by the Scottish Consumer Council; and
  6. (f) at least one person from persons nominated by the Scottish Council for Civil Liberties.

( ) Regulations made under this section may provide for the addition or deletion of organisations with the right of nomination to the Secretary of State for appointment as members of the Board.")

The noble Lord said: My Lords, this amendment is directed to the composition of the board. It is to set out that the various bodies—the Faculty of Advocates, the Law Society, the Citizens Advice Bureaux, the Scottish Consumer Council, and the Scottish Council for Civil Liberties—should have the right to nominate to the Secretary of State, who would then have the right to choose from the nominees those he would wish to appoint to the board.

Every person who spoke at Committee stage on this clause of the Bill emphasised the importance of the board being independent, and being seen to be independent. The noble and learned Lord the Lord Advocate would not accept any of the amendments proposed, though he undertook to consider the debate. Amendments Nos. 2 and 4 seem to be the extent of his consideration. That is to increase the number of lawyers from two to four.

However, everybody appointed to the board is still to be a nominee of the Secretary of State, chosen by the Secretary of State for his personal qualities, and there is no obligation in the Bill on the Secretary of State to consult anybody, either the legal bodies or any of the bodies representing consumer interests.

The necessity of showing the board to be independent and the dangers of the Secretary of State having this complete power were perhaps best illustrated by the noble Lord, Lord Campbell of Croy, who of course had great experience as Secretary of State. At Committee stage he pointed out the dangers in the Secretary of State appearing to accumulate all the power.

This amendment is designed to be a compromise between the position of the Secretary of State wanting the right to choose everybody and the position of the various bodies having a right to suggest. I would commend it to the House. No doubt it could be better drafted, but I have suggested the three bodies, the Citizens Advice Bureaux, the Scottish Consumer Council, and the Scottish Council for Civil Liberties. Each of them, in their response to the consultation paper prior to the Bill, commented on the necessity that the board should be independent. It would seem to me that the best way is that these people should have the right to nominate persons, with the Secretary of State having the right to choose somebody out of the nominees. There is a provision in my amendment that regulations may be made to delete from, or add to, the organisations which have the right of nomination. I hope that this amendment may commend itself to the House, and I beg to move.

5.15 p.m.

Lord Cameron of Lochbroom

My Lords, I would suggest to your Lordships that a more proper course to take is to accept the amendment put down in my name. The noble Lord opposite is correct that I undertook to consider what was said by your Lordships in Committee. The consequence is that in Amendments Nos. 2 and 4 I have increased the minimum number of members of both the Faculty of Advocates and the Law Society from one to two.

My noble friend Lord Selkirk asked me about consultation. I am happy to say that my right honourable friend has already made approaches to these bodies to suggest persons who might be suitable for appointment to the board. I am, however, bound to stress that it is my right honourable friend the Secretary of State who is responsible for making appointments, and I would suggest that it is not appropriate that he should simply be committed to selecting names suggested by the bodies named in the Bill at present, or indeed any other particular bodies, and not least because he is of course accountable to Parliament for the actions of the bodies that he funds, and this board will be one of them.

I should also say that my right honourable friend has also invited suggestions for board members from the Scottish Consumer Council and the Scottish Association of Citizens Advice Bureaux, and he is also consulting the Convention of Scottish Local Authorities, and this to ensure that the board will represent a broad spectrum of interests. But the important thing is that the board members should be appointed for their individual qualities, their expertise and their knowledge, as is set out in Clause 1(4).

I suggest that it is right that the Secretary of State should reserve the right to choose which individuals from each of the interests covered should serve. This is all the more vital for the first board setting up the new system—a testing task requiring a careful combination of qualities on the board if it is to be successful.

I has been suggested that the independence of the board is secured if there is this power which is sought by the amendment of the noble Lord opposite. Perhaps I may say that that argument was refuted at a much earlier stage in the passage of this Bill by the noble Lord, Lord Hughes, when he pointed out from his very wide personal knowledge that boards appointed by Ministers are not inhibited in expressing their views. Indeed, I suggest that many of my colleagues would give wry smiles if told that boards appointed by them would leap to their every command. I remind your Lordships that within our own jurisdiction in Scotland the Highlands and Islands Development Board, an independent board, is one where the Act provides that the board should consist of a chairman and not more than six other members and that the board shall be appointed by the Secretary of State. That is all. Only last year in the National Heritage Act the board of trustees for the National Museum of Scotland was to consist of not more than 15 persons and they shall be appointed by the Secretary of State. That was under a reference to having regard to their individual qualities.

There is one other technical point that I wish to make. Under the amendment it would be possible, where more than one member is to be appointed, for the particular bodies to close the list to the point where their nominations must be the appointees. I think even the noble Lord opposite accepted that that should not be the case. That is perhaps a more technical objection; but my principal objection is that this is an unnecessary constraint upon the Secretary of State. I suggest that what is in the Bill with the amendments which I propose follows ample precedent. In these circumstances your Lordships should not accept the amendment proposed by the noble Lord, Lord Morton.

Merely in passing I suggest that even at the end of his amendment the noble Lord accepts the power of the Secretary of State to delete organisations with the right of nomination, which presumably would mean that he could delete any one of the organisations included in the list. That goes far beyond what is proposed in the amendments in my name. For these reasons I cannot accept the amendment proposed.

Lord Hughes

My Lords, I was rather astonished to find the noble and learned Lord the Lord Advocate praying any remarks of mine in aid in refusing this amendment. It is perfectly true that at an earlier stage in our proceedings I did not accept the argument that a body appointed entirely by a Minister, without necessarily consulting other people, would be a body which was wholly dependent on the Secretary of State for its opinions or that it did not itself exercise an independent point of view. I felt obliged to say that because having on more than one occasion been a member of a body appointed by the Secretary of State, I should hate to think that at this late stage in my life I would be accused of merely being an obedient creature of the Minister who appointed me.

Having said that, we must consider what has been given as the reason for setting up this board. Everyone who spoke emphasised that they did not imply any criticism, any bad or improper administration of legal aid in Scotland by the Law Society. That was not the reason for this Bill coming forward; it was rather the old argument that Caesar's wife must be above suspicion. From that point of view if the Secretary of State makes his appointments from names which have been submitted to him rather than by plucking them out of the air without any guarantee of consultation, and if it is done in the way suggested by the amendment, the appearance of independence is greater still. I am strongly in support of the amendment.

I should go further. If this amendment were put in the Bill, the obligation would be that the Secretary of State would have to ask these bodies to submit nominations—not one nomination but a number of nominations. It is not unheard of for a Minister who has asked for nominations from a body not to like any of the names on the list, for reasons which seemed to the Minister to be sound reasons for not accepting them. But he did not then go ahead and appoint somebody other than a name suggested by the organisation. What happens in these circumstances is that a discreet message is passed to the organisation: "I wonder whether you could perhaps add some other names to those you have already submitted. I should like to have a wider choice available to me". There is nothing in the amendment of my noble friend which would prevent that procedure from being carried out.

Apart from what might be the views of the Citizens Advice Bureaux or the Consumer Council I am certain that both the Faculty of Advocates and the Law Society would be happier if they were providing the list from which the appointments would be made. I believe that the noble and learned Lord the Lord Advocate is making an unnecessary mistake—if there is such a thing as a necessary mistake. Sometimes I think that that is the way that governments operate; they are prepared to make mistakes and argue that it is because they are necessary. I will amend what I said, and say that it is an unnecessary decision to reject the amendment put forward by my noble friend. This board is a big change from all that has gone before. The more satisfactory the way in which it can start its life, the better the chance that it will operate successfully.

The Earl of Selkirk

My Lords, I have the highest regard personally for the Secretary of State. I should have no doubt whatever that he would make good appointments. But we are making law today. There will be dozens of future Secretaries of State; at least I hope so. They may vary a great deal. It is not unknown for politicians to make political appointments. It is not absolutely without precedent in life, and this may happen. Appointments may be made on personal grounds, and that has happened, too, on occasions. There is nothing in the Bill to say that the people appointed must be people of quality. It is curious that there is no suggestion of that sort.

The most fundamental weakness of my noble friend's argument is his comparing the board to the board for East Kilbride, a new town for which I have the highest regard. He compared it to the Highlands and Islands Development Board and he compared it to those for museums. We are dealing with something totally different from any of these important organisations. We are dealing with the administration of justice. This is something that bears no relationship to the organisations which the Secretary of State finds himself dealing with. It is something which is fundamentally important. These people will undertake a great deal of responsibility.

I do not know how the noble and learned Lord wants to do this. He says that he will consult; in fact, he says that he has already consulted the Faculty of Advocates and the Law Society. But there is nothing in the Bill to say that. That is what I should like. Even if the noble and learned Lord does not like the latter part of the amendment—that is, paragraphs (c), (d), (e) and (f)—paragraphs (a) and (b) should still stand. I feel very strongly that (a) and (b) should stand. They state:

  1. (a) at least two members of the Faculty of Advocates from persons nominated by the Faculty of Advocates;
  2. (b) at least two member of the Law Society of Scotland from persons nominated by the Council of the Law Society of Scotland".
if it is desired.

I think the principle of this Bill is the independence of the board. I am sorry to say—and I say it with great respect—that the other boards are necessarily representing the Secretary of State in their work, whether it be the Highlands and Islands Development Board or those for the museums. They are representing him and carrying out the duties on the basis which he says, exercising no doubt their own ability.

I should like the noble and learned Lord to consider very carefully whether he could not accept certainly paragraphs (a) and (b) and what other consultations he has; or to say quite clearly that he will make these nominations after hearing views. I think that that would make a great deal of difference to the attitude of independence with which the board will be regarded.

5.30 p.m.

Lord Morton of Shuna

My Lords, I am grateful for the support from my noble friend Lord Hughes and from the noble Earl, Lord Selkirk. It appears to me that this board has nothing whatever in common with a new town, or the Highlands and Islands Development Board, or the Heritage Trust. If the noble and learned Lord the Lord Advocate was proposing amendments suggesting that there would be nomination from bodies such as the Faculty of Advocates, the Law Society or the Citizens Advice Bureaux, that would be one thing; or if he was suggesting an amendment that before making appointments the Secretary of State would consult, that would be another thing. But there is no duty being put into this Bill for the Secretary of State to consult anybody.

No doubt the present Secretary of State has very eminent qualities; I am sure he has. But a future Secretary of State could well appoint people from the Faculty of Advocates or the Law Society who had no experience of criminal courts, for example, or no experience of legal aid work. There is nothing in the Bill or in the amendments that we are to discuss, other than this one, which suggests any independence for the board. I regret that I must press this amendment and seek the opinion of the House.

Lord Wilson of Langside

My Lords, I am sorry I did not get the opportunity to rise before the noble Lord, Lord Morton, did so. On this question of consultation, surely in the real world it is unthinkable that any Secretary of State appointing members of the board would not consult first of all closely and intimately with his right honourable friend the Lord Advocate and that, in turn, the Lord Advocate would not consult closely and intimately with the heads of the two branches of the legal profession before any appointment was made.

As far as I recall it is most unusual to put a provision into a statutory measure insisting on consultation. I well recall when the Sheriff Courts (Scotland) Act 1971 was passed suggesting that the matter of consultation between the then Lord Advocate and the Secretary of State should be given statutory form. After discussion, it was eventually accepted on all sides that this was a matter of sensible government which was bound to happen. I think that to divide the House as though this is a crucial point would be most unfortunate.

Beyond that, this amendment is a matter on the detail of which we could debate at great length and I am sure that your Lordships do not wish to do that. While I agree entirely with the noble Lord, Lord Hughes, when he says that it is all important that the board should, quite rightly, get off to a good start, I think it would get off to a much better start with the kind of balance on the board proposed meantime; and I have my own criticisms of the Bill and I would have done it a different way. But with the board as it is I think we will get a much better balance with what the Government propose than with what is proposed in this amendment.

I mention only one point of detail. I do not want to embark on criticism away from the central issue, but it would then give a majority to those who are, as it were, professionally involved. I do not think that that would be a good balance. It would be two members of the Law Society of Scotland and one person having experience of the procedure and practice of the courts. I think it important that this board should be independent. We must think of independence in relation to not merely the Secretary of State but also various other bodies. Accordingly, for my part I would oppose this amendment.

Lord Morton of Shuna

My Lords, with the leave of the House, the noble and learned Lord, Lord Wilson of Langside, is wrong in saying that this would give lawyers a majority; it would not. There would be under paragraph (a) two members of the Faculty of Advocates—and that is the amendment that the noble and learned Lord the Lord Advocate is going to propose—and there would be two members of the Law Society; and that again is the amendment that the noble and learned Lord the Lord Advocate is going to propose. The one other person having experience of the procedure and practice of the court might be a lawyer or he might not. The rest would not be lawyers, out of a minimum of 11 and a maximum of 15. Even five out of 11 would not be a majority.

Lord Wilson of Langside

My Lords, with the leave of the House, I did not say that the lawyers would have a majority. I said that there would be a majority with a professional interest. The person with the experience of the practice and procedure of the court is a clerk of court or a person of that kind. What I said was not that the lawyers would be in the majority but that there would be a professional interest, with the danger arising of questions of independence not in relation to the Secretary of State but in relation to other interests.

5.39 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 68; Not-Contents, 86.

DIVISION NO. 4
CONTENTS
Amherst, E. McIntosh of Haringey, L.
Ardwick, L. Mishcon, L.
Barnett, L. Molloy, L.
Briginshaw, L. Morton of Shuna, L.
Brooks of Tremorfa, L. Mulley, L.
Bruce of Donington, L. Nicol, B.
Caradon, L. Oram, L.
Carmichael of Kelvingrove, L. Parry, L.
Cledwyn of Penrhos, L. Phillips, B.
Crawshaw of Aintree, L. Pitt of Hampstead, L.
David, B. [Teller.] Ponsonby of Shulbrede, L. [Teller.]
Davies of Penrhys, L.
Dean of Beswick, L. Prys-Davies, L.
Denington, B. Ross of Marnock, L.
Elwyn-Jones, L. Selkirk, E.
Ennals, L. Serota, B.
Ewart-Biggs, B. Shackleton, L.
Falkender, B. Silkin of Dulwich, L.
Foot, L. Stallard, L.
Gallacher, L. Stewart of Fulham, L.
Galpern, L. Stoddart of Swindon, L.
Graham of Edmonton, L. Strabolgi, L.
Gregson, L. Taylor of Blackburn, L.
Grey, E. Taylor of Mansfield, L.
Hatch of Lusby, L. Turner of Camden, B.
Heycock, L. Underhill, L.
Hughes, L. Wallace of Coslany, L.
Jeger, B. Walston, L.
Jenkins of Putney, L. Wedderburn of Charlton, L.
John-Mackie, L. Whaddon, L.
Llewelyn-Davies of Hastoe, B. Wheatley, L.
Lloyd of Kilgerran, L. White, B.
Lockwood, B. Williams of Elvel, L.
Lovell-Davis, L. Wilson of Rievaulx, L.
McCarthy, L.
NOT-CONTENTS
Airey of Abingdon, B. Denham, L.
Alexander of Tunis, E. Denning, L.
Ampthill, L. Derwent, L.
Auckland, L. Drumalbyn, L.
Belhaven and Stenton, L. Elliot of Harwood, B.
Beloff, L. Elliott of Morpeth, L.
Belstead, L. Elton, L.
Bessborough, E. Erroll of Hale, L.
Boardman, L. Faithfull, B.
Brabazon of Tara, L. Fortescue, E.
Butterworth, L. Fraser of Kilmorack, L.
Caithness, E. Gardner of Parkes, B.
Cameron of Lochbroom, L. Geddes, L.
Carnegy of Lour, B. Glanusk, L.
Craigavon, V. Glenarthur, L.
Craigmyle, L. Gray of Contin, L.
Cross, V. Hanworth, V.
Cullen of Ashbourne, L. Harmar-Nicholls, L.
Davidson, V. Hooper, B.
Hylton-Foster, B. Rankeillour, L.
Kimball, L. Reay, L.
Kitchener, E. Renwick, L.
Lindsey and Abingdon, E. St. John of Bletso, L.
Long, V. [Teller.] Sandford, L.
Lucas of Chilworth, L. Shannon, E.
Macleod of Borve, B. Sharples, B.
Mancroft, L. Skelmersdale, L.
Margadale, L. Strathcarron, L.
Marley, L. Strathclyde, L.
Merrivale, L. Strathspey, L.
Milverton, L. Sudeley, L.
Mottistone, L. Swansea, L.
Mountevans, L. Swinton, E. [Teller.]
Mowbray and Stourton, L. Teynham, L.
Munster, E. Trefgarne, L.
Napier and Ettrick, L. Trumpington, B.
Norrie, L. Vaux of Harrowden, L.
Nugent of Guildford, L. Vickers, B.
Orkney, E. Vivian, L.
Orr-Ewing, L. Ward of Witley, V.
Pender, L. Whitelaw, V.
Perth, E. Young, B.
Portland, D. Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.46 p.m.

Lord Cameron of Lochbroom moved Amendment No. 2: Page 2, line 14, leave out ("one member") and insert ("two members").

The noble and learned Lord said: My Lords, with the leave of the House, I formally beg to move Amendment No. 2 standing in my name. I have already spoken to Amendments Nos. 2 and 4. I beg to move.

The Earl of Selkirk

My Lords, may I ask my noble and learned friend a question which I asked earlier and to which he did not refer in the course of his previous reply? Am I to understand that it is going to be clear that there will be consultations with the Faculty of Advocates and the Law Society in regard to the appointments which are to be made there? I say frankly that it is in the interests of the Government to do that, to show that there is at least some degree of independence in these bodies.

I hope my noble and learned friend will consider this very carefully. It should be in the Act. There will be many new Secretaries of State without perhaps the same experience of law or (may I say?) possibly without the same respect for the law that the present Secretary of State has. It is of great importance that this should be stated specifically in the Act. I ask my noble and learned friend to consider very carefully whether at a later date he cannot introduce something of that character.

Lord Cameron of Lochbroom

My Lords, with the leave of the House, perhaps I may respond to my noble friend. I think I have made it clear in relation to the last debate that in fact my right honourable friend has already been in touch with those two bodies. I can simply say that certainly I understand it would be his full intention to consult with them on the suitable membership from those two bodies. However, as I said earlier, I should like to make clear that he cannot be committed necessarily to selecting the names suggested by those bodies. I would, however, confirm that he is already in touch with them with a view to inviting them to suggest suitable people as members of the board. I would understand that to be essential to any consultation process.

The Earl of Selkirk

My Lords, with the leave of the House, may I ask my noble and learned friend what future Secretaries of State are to be bound by? If that is to be the normal procedure, let it be clearly stated in the Act that it is to be the normal procedure. That is all I am asking, and I think it is very reasonable.

The Earl of Perth

My Lords, I should like to support the noble Earl, Lord Selkirk, on this point because it is all very well to say that this is what we are doing, but we have to look to the future. It is coming up again in a different form at a later stage, and I would beg the noble Lord to say that he will look at it to see whether in the next Session he cannot introduce in legislation the practice he is proposing to follow.

Lord Morton of Shuna

My Lords, I should like to add my support to that suggestion.

Lord Cameron of Lochbroom

My Lords, again, with the leave of the House, perhaps I should simply say that I shall obviously take account of what has been said by your Lordships today, but I obviously cannot give any commitment so far as Third Reading is concerned.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 4: Page 2, line 15, leave out ("one member") and insert ("two members").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 4 formally. I have already spoken to it.

On Question, amendment agreed to.

Clause 2 [Powers of the Board]:

Lord Cameron of Lochbroom moved Amendment Nos. 5 and 6:

Page 2, line 34, leave out ("and").

Page 2, line 37, at end insert ("and (e) to give the Secretary of State such advice as it may consider appropriate in relation to the provision of legal aid and advice and assistance in accordance with this Act.").

The noble and learned Lord said: My Lords, with the leave of the House I shall speak to this amendment together with Amendment No. 6 standing in my name.

Your Lordships in Committee expressed views about the issue of advice being given by the new board. In consultation with my right honourable friend I have given careful thought to those comments and we are persuaded that this would be appropriate. Accordingly, Amendments Nos. 5 and 6 together make provision for the board to have power to give to the Secretary of State such advice as it may consider appropriate in relation to the legal aid and advice and assistance functions which it will have. I suggest that this power would, in fact, provide for the concerns which noble Lords expressed in Committee, and therefore I beg to move.

On Question, amendments agreed to.

Clause 3 [Duties of the Board]:

Lord Morton of Shuna moved Amendment No. 7: Page 3, line 13, leave out subsection (4).

The noble Lord said: My Lords, this amendment is directed towards one subsection of Clause 3 which appears to demonstrate, as so much of this Bill does, the fact that the board is to be merely the creature of the Secretary of State, because the subsection says: 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; but such guidance shall not affect the consideration or disposal of applications.

That, it appears to me, gives the board the duty of obeying directions, in effect, from the Secretary of State. Coupled with the immense power to make regulations, it appears an unnecessary power as put; especially if the other way, with the amendment we have just agreed to, there is advice being given to the Secretary of State, it might be better or less objectionable, if the clause has to remain at all. I would suggest that there would be no need for it if it dealt with "consider" rather than "having regard to" and "advice" rather than "guidance"

The Earl of Selkirk

My Lords, may I ask what really is intended by this subsection? What is the guidance which is to be given? It is not to do with the disposal of applications for legal aid. Legal aid is out altogether. What is in? It is not to do with property. That is already perfectly controlled at the present time under subsection (2). It is not finance, because that is wholly under the control of the Secretary of State already. It looks to me as though the only thing we can talk about is staff. Is it really needed to give guidance about staff? If that is not the case, what is the guidance required? There is a slight suspicion that this is a method undermining the independence of a board which I would have thought was not only unfortunate but wholly contrary to the intentions of the Government themselves. Can we have an explanation which would justify this subsection. What exactly is the purpose behind it?

Lord Hughes

My Lords, may I, too, ask a question about this? Would the board be entitled to interpret this subsection as giving it the right to disregard the guidance of the Secretary of State if it felt that though the guidance was given in good faith it was not the best way in which the board could operate? Would it be entitled just to regard it as advice and therefore be free not to follow it?

Lord Cameron of Lochbroom

My Lords, I would suggest to your Lordships that this amendment should not be accepted. I think I explained at Committee that the guidance powers which are intended in this clause relate essentially to the board's administrative and financial operations. One matter which is pre-eminently suitable for guidance would be the way in which the board, for instance, conducted its financial transactions. Those are matters for it—not in fact for the Secretary of State as my noble friend suggested. For example, it would be important that the Secretary of State should be able to issue guidance to the board in relation to its financial procedures, and these are things which it would not be appropriate to cover in regulations.

The guidance power is a restricted one and, of course, as I think I said earlier—and I do not repeat the argument ad longum—the Secretary of State could not appropriately give guidance contrary to what is laid down in statute. Secondly, he is of course limited with the qualification which appears in the clause itself. He can give no guidance on matters which impinge on consideration or disposal or applications for legal aid or advice and assistance. I would make quite clear—and perhaps this is a response to both my noble friends and the noble Lord, Lord Hughes—that this is a power of guidance and not a power of direction; that is to say, while the board would have to regard the guidance there is no obligation upon it to follow it. Indeed, I think I can say that it may well be that the Secretary of State would, in fact, ask the board's advice on draft guidance before he were to issue it, though at the end of the day it may well be that it does not feel impelled to follow it. So far as the power is concerned, it is not one of direction. It is not one which the board is bound to do more than have regard to, and it is not impelled to follow it.

I would simply say that there is nothing sinister in this. I would perhaps observe, since we had in Committee a reference to the position in England, that there the Law Society, which has functions in regard to civil legal aid has, I understand, to exercise its functions under the general guidance of the Lord Chancellor. I have never understood that to have meant that it is bound by his guidance. Obviously it would pay regard to it. I make it clear that the power is limited. It is not one of general guidance on those matters.

Lord Silkin of Dulwich

My Lords, I am obliged to the noble and learned Lord the Lord Advocate. One point that puzzles me, which perhaps he can explain, is that in relation to an earlier amendment, when we were considering whether there should be something in the Bill to provide for consultation by the Secretary of State, the reply was that of course the Secretary of State would consult without anything appearing about it in the Bill. Why does not the same apply here? Surely the board will have regard to guidance, and the Secretary of State will be able to give guidance, even if it does not appear in the Bill.

Lord Cameron of Lochbroom

My Lords, that might be said. I merely make it quite clear that in addition to what the Secretary of State may cover in regulations he will also be entitled to give some guidance on matters which are not covered in regulations. I should have thought that that was a matter suitable to be contained in the Bill. As I say, it appears in another Act. I dealt with the position of consultation in relation to the appointment of members of the board, which, I suggest, is a somewhat different topic.

For those reasons, I would suggest to your Lordships that this is a perfectly appropriate power for the Secretary of State to have. It is one that does not import any direction to be followed; it is simply material which the Secretary of State can place before the board as the board will now have the power to offer advice to the Secretary of State. If we have one, there seems to be no difficulty in also having the other on the face of the Bill.

Lord Foot

My Lords, when we were discussing this subsection in Committee it was universally condemned. The noble and learned Lord, Lord Denning, and the noble Lord, Lord Mishcon, expressed grave doubts about its advisability. That seems to have been reinforced by what has been said today. Surely it is correct to say that it is utterly unnecessary to have such a clause. The clause in effect says—subject to the qualifications that we have heard from the noble and learned Lord the Lord Advocate—that the Secretary of State may, if he feels inclined, give advice from time to time to the board but that the board shall be under no obligation to accept it, or to act in accordance with it.

It goes on—this makes it even worse—in the second part of the subsection and purports to put limitations on the advice that the Secretary of State can give. It appears to say that the Secretary of State must not give advice upon the granting of legal aid. Why put that into a statute? Why is it necessary to put into the statute that the Secretary of State shall have the right to give advice and then go on and say that the Secretary of State shall be limited in the advice that he can give? That all seems unnecessary in a statute of this kind. I hope that the noble Lord, Lord Morton, will take the matter to a Division, if necessary, because I think that it will find universal support on both sides of the House.

Lord Morton of Shuna

My Lords, with that encouragement I do not accept the explanation of the noble and learned Lord the Lord Advocate, and seek the opinion of the House.

6.4 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 73; Not-Contents, 85.

DIVISION NO. 5
CONTENTS
Airedale, L. Houghton of Sowerby, L.
Amherst, E. Hughes, L.
Ardwick, L. Jeger, B.
Barnett, L. Jenkins of Putney, L.
Briginshaw, L. John-Mackie, L.
Bruce of Donington, L. Kilbracken, L.
Caradon, L. Kilmarnock, L.
Carmichael of Kelvingrove, L. Lloyd of Kilgerran, L.
Cledwyn of Penrhos, L. Lockwood, B.
Crawshaw of Aintree, L. McCarthy, L.
David, B. [Teller.] McIntosh of Haringey, L.
Davies of Penrhys, L. McNair, L.
Dean of Beswick, L. Milner of Leeds, L.
Denington, B. Mishcon, L.
Diamond, L. Molloy, L.
Donaldson of Kingsbridge, L. Morton of Shuna, L.
Elwyn-Jones, L. Nicol, B.
Ennals, L. Northfield, L.
Ewart-Biggs, B. Parry, L.
Foot, L. Pitt of Hampstead, L.
Gallacher, L. [Teller.] Prys-Davies, L.
Galpern, L. Rochester, L.
Gregson, L. Ross of Marnock, L.
Grey, E. Seear, B.
Grimond, L. Selkirk, E.
Hampton, L. Serota, B.
Hatch of Lusby, L. Shackleton, L.
Heycock, L. Silkin of Dulwich, L.
Stallard, L. Wallace of Coslany, L.
Stewart of Fulham, L. Walston, L.
Stoddart of Swindon, L. Wedderburn of Charlton, L.
Strabolgi, L. Whaddon, L.
Taylor of Blackburn, L. Wheatley, L.
Taylor of Mansfield, L. Williams of Elvel, L.
Tordoff, L. Wilson of Langside, L.
Turner of Camden, B. Winstanley, L.
Underhill, L.
NOT-CONTENTS
Airey of Abingdon, B. Long, V. [Teller.]
Alexander of Tunis, E. Lucas of Chilworth, L.
Arran, E. Macleod of Borve, B.
Auckland, L. Mancroft, L.
Belhaven and Stenton, L. Margadale, L.
Belstead, L. Marley, L.
Boardman, L. Maude of Stratford-upon-Avon, L.
Brabazon of Tara, L.
Broadbridge, L. Merrivale, L.
Butterworth, L. Milverton, L.
Caithness, E. Mottistone, L.
Cameron of Lochbroom, L. Mountevans, L.
Carnegy of Lour, B. Mowbray and Stourton, L.
Coleraine, L. Munster, L.
Colwyn, L. Napier and Ettrick, L.
Craigavon, V. Newall, L.
Craigmyle, L. Norrie, L.
Cross, V. Nugent of Guildford, L.
Cullen of Ashbourne, L. Orkney, E.
Davidson, V. Orr-Ewing, L.
Denham, L. Pender, L.
Denning, L. Perth, E.
Derwent, L. Platt of Writtle, B.
Drumalbyn, L. Rankeillour, L.
Elliot of Harwood, B. Renwick, L.
Elliott of Morpeth, L. Rodney, L.
Elton, L. Sandford, L.
Faithfull, B. Shannon, E.
Fanshawe of Richmond, L. Sharples, B.
Fortescue, E. Skelmersdale, L.
Fraser of Kilmorack, L. Strathclyde, L.
Gardner of Parkes, B. Sudeley, L.
Glanusk, L. Swansea, L.
Glenarthur, L. Swinton, E. [Teller.]
Gray of Contin, L. Teynham, L.
Hailsham of Saint Marylebone, L. Trumpington, B.
Vaux of Harrowden, L.
Harmar-Nicholls, L. Vickers, B.
Hooper, B. Vivian, L.
Hylton-Foster, B. Ward of Witley, V.
Kimball, L. Whitelaw, V.
Kitchener, E. Young, B.
Lawrence, L. Young of Graffham, L.
Lindsey and Abingdon, E.

Resolved in the negative, and amendment disagreed to accordingly.

6.12 p.m.

Lord Morton of Shuna moved Amendment No. 8:

After Clause 3, insert the following new clause:

("Advisory Committee.

.—(1) The Secretary of State shall constitute an Advisory Committee to advise him on such questions relating to this Act as he may from time to time refer to it and to make to him recommendations on such matters as relating as they consider appropriate; and the Secretary of State shall appoint the members of the Committee with regard to their knowledge of the work of the courts and social conditions.

(2) The Secretary of State may pay to the members of the Advisory Committee such travelling and other allowances as he may determine and any expenses of the Secretary of State under this subsection shall be defrayed out of monies provided by Parliament.

(3) The Secretary of State shall refer the Board's Annual Report on the operation and financing of this Act to the Advisory Committee for its consideration and advice and when the Committee has considered it, it shall lay before each House of Parliament a copy of it and of any comments or recommendations made by the Committee.").

The noble Lord said: My Lords, this amendment is to give to Scotland the equivalent of the Lord Chancellor's Legal Aid Advisory Committee which has operated so successfully in England and Wales. This has been sought for Scotland, was recommended by the original Cameron Committee and is supported by the legal professions and by the Scottish Consumer Council. It is perhaps even more necessary now with the new board, which will have this composition that has not a majority of lawyers and has to do things which may be strange to many of them, that there should be some advisory body that can take a more cool and calculated look at their work and put forward ideas for change and improvement. That certainly appears to have been the position with the Lord Chancellor's Legal Aid Advisory Committee and it would be appropriate that Scotland should have the same beneficial committee. I beg to move.

Lord Denning

My Lords, I support this amendment because I have known the Lord Chancellor's Legal Aid Advisory Committee in England. I have known what it has done and I have known the members—not a majority of lawyers, most of them non-lawyers, but good people experienced in social work and the like. They provide the advisory committee's report every year. I hold in my hand a report which they made for 1983–84. It is very comprehensive, making recommendations with which I entirely agree and which I hope to bring in in one or two amendments which I shall move later. So I think that the committee is of great value and I support the amendment. It is of great value in England, and might it not be the same in Scotland?

Lord Elwyn-Jones

My Lords, I too support the amendment; indeed, I moved one to similar effect at the Committee stage. It was noteworthy then that the amendment received support from every political quarter in the House: from the Cross-Benches—and the Cross-Benches have spoken again in the person of the noble and learned Lord, Lord Denning—from the Government Benches, from the Official Opposition Benches and from the Benches up the hill over yonder, the Alliance Benches. There was unanimity in support of the proposal. There was only one opponent—I shall not call it a still, small voice, because certainly that is not the way one would describe the voice of the noble and learned Lord the Lord Advocate—and I venture to think that, if noble Lords have the energy and time to get up again on this important matter, the same result will follow.

But, seriously, the value of the advisory committee would be just as great in the new, differing set-up in Scotland as in England and Wales, if not more so. The degree of professional control by the profession of the legal aid scheme in England and Wales would seem to be rather more professional, if I may use that word, than what is proposed now by the appointment of this board which is to administer and run the scheme. It is not advantageous now to run over again the many objections that were made to the board, to its composition, to its potential dependence upon the Secretary of State and to the risk of its becoming a handmaiden of the wishes of the Secretary of State.

The power to oversee the legal aid scheme in operation, which we propose should be given to the advisory committee, with power also to report to Parliament, is, I submit, of enormous assistance to the Lord Chancellor—certainly, I found it so when I was Lord Chancellor—who has overall responsibility in regard to the administration of justice in England and Wales, and I feel sure that the relevant authorities in Scotland would be similarly assisted.

As I have said, the special position of the Scottish Legal Aid Board makes imperative an independent body, of the kind that the advisory committee would be, to advise from time to time and be, so to speak, a public watchdog on what is going on, representing the public interest in the widest sense. I confess that I did not quite find any strength in the objections by the noble and learned Lord the Lord Advocate. It would not be a simple overlapping of the board's functions. The committee would be functioning beside it and it would be invaluable to see that this vital part of social services—namely, a legal aid and advice scheme—is properly run in the interests of those for whom it is intended.

The Earl of Selkirk

My Lords, it is a peculiarity of this country that we have no minister of justice. We have a Lord Chancellor who, more or less, fulfills that duty and his name is the Lord Chancellor of Great Britain. But, in practice, I think he does not operate very much, if at all, in Scotland. In fact, I think he is always rather shy about taking any part in Scots affairs, so we cannot call on him. Practically every country in the world has a minister of justice. Justice is a tender plant. It is one that can go astray very easily indeed. I suggest that this is something which should be considered extremely carefully.

The Secretary of State is now and will in the future be still more concerned with money. Legal aid will be a very big problem in the sense of money and he will be biased by Parliament—biased by the political pressures on him—to reduce expenditure. I think it would help him to have an independent board which would say, "These are the fundamentals of justice; this is what really matters; and even if it costs a little money you must meet it". I suspect that the noble and learned Lord will turn this down out of hand but I do not think he should do so. I think he should think very carefully whether the structure in Scotland is such that it can do without some independent advisory body of this character.

To be absolutely frank, the Minister of Justice in Scotland is the person of the noble and learned Lord the Lord Advocate. His position is about as near as we can get to him. He authorises people inter alia to publish Bibles. One can see his name at the beginning of any bible published by William Collins. He is the authority for doing so. He is the nearest approach we get, but of course he has other functions to fulfil which make this kind of duty extremely difficult. I hope that the Government will think about this and see whether at perhaps the next stage something of this kind can be suggested.

Lord Silkin of Dulwich

My Lords, I rise to support the amendment and I do so only to deal, if I can, with one point which might conceivably be raised. I imagine that it would be open to the noble and learned Lord the Lord Advocate to say that now Amendment No. 6 has been passed by the House there is already provision for him to be given advice on matters of this kind. That advice will be given by the board. I am bound to say that if it were a question of one or the other. I should much prefer that such advice should be given by an independent advisory committee such as my noble and learned friend is proposing here rather than by the board itself, and that the advisory committee should among other things look at the way that the board through its annual report is carrying out its functions.

I do not think that it is necessarily a question of one or the other. There is room here for both. There is room for the board to give its advice and there is room for the advisory committee to give its advice. I hope that the noble and learned Lord the Lord Advocate will not rest his argument on that particular point.

Lord Wheatley

My Lords, during the Committee stage and earlier Report stage the noble and learned Lord the Lord Advocate was very inflexible in relation to any amendment that was put forward contrary to the Government's views. Having regard to the way in which this amendment has received support from people with great experience in the operation of the advisory committee south of the border, I think that the Government must look long and hard at this before they reject it out of hand as other amendments have been rejected. When in addition to that there is a clear case in common sense for the adoption of a body of this nature, it becomes more and more difficult to understand how the Government can resist.

It has been suggested (and it was suggested at an earlier stage) that the board could do this. Noble Lords who have spoken have indicated the inadequacy of that reply, and I indicated quite clearly at the Committee stage that it was a nonsense because in effect the whole purpose of such a board is to take a long and searching look at the working of the legal aid system and then to advise what steps should be taken if things are not being done properly or are going wrong. How one could expect a board to give an adequate report of that nature in relation to its operation of this scheme baffles me completely.

During proceedings on the Sex Discrimination Bill—I do not think the noble and learned Lord was in the House—the noble Lord, Lord Young, in the early stages at least was both conciliatory and accommodating so far as amendments were concerned. I should like to think that some of that may now rub off on the noble and learned Lord and that the elasticity and flexibility that were shown on the Sex Discrimination Bill can be shown on this one, this Scots discrimination Bill. We still have to get the answer to the question which I posed time and again: why should it be thought desirable and necessary in England but unnecessary or undesirable in Scotland? Accordingly, I ask the noble and learned Lord to think carefully about this, and if he cannot accept the terms of this amendment at least to give an assurance that it will be taken away and that another form of words can be found which would accept in principle the underlying point made by the amendment.

Lord Wilson of Langside

My Lords, in view of what has been said, I assume that the noble and learned Lord the Lord Advocate will give an undertaking to look again at this matter. For my part, and from these Benches, I hope that he will do so and that he will look in some depth at the position of the Lord Chancellor in England and consider carefully whether something of this kind is needed. Nevertheless, it has to be borne in mind that the dimension of the nature and range of problems in our fairly small country is quite different from that in England. When these helpful suggestions came (as they occasionally did from south of the Border) I always found that there might well be something we could learn.

As well as considering everything that has been said I am sure that the noble and learned Lord will consider also the dangers that in the context of this problem we might overload the machinery for dealing with the matter. If the noble and learned Lord the Lord Advocate does not accept the amendment today—as perhaps he will not, in spite of weighty opinions that have been expressed; and I can understand why he is not prepared to accept it offhand and that there are matters pertinent to his field which he would have to think over rather than have to make a hasty decision sitting on the Front Bench here and now—I hope that he will take it away and look at it in considerable depth, taking into account fully the considerable differences in the legal procedure and structure of the legal machine in Scotland as against that in England.

The Earl of Perth

My Lords, I should like to ask one question of the noble and learned Lord the Lord Advocate. It shall be the duty of the board to report annually on the exercise of its functions. Will those reports be made public or are they just for the Secretary of State?

6.30 p.m.

Lord Cameron of Lochbroom

My Lords, notwith-standing appearing metaphorically to stand in a burning bush, I remember that the advice given by the still, small voice was, I think, accepted. I have listened with care to what noble Lords have said. Perhaps I may deal first of all with the point raised by the noble Earl, Lord Perth, with regard to the publication of the report. Clause 5(7) states: The Secretary of State shall lay before each House of Parliament a copy of every— (a) annual report". So in fact the report of the board will be made public.

I would not be prepared to suggest to your Lordships that this amendment should be accepted, for a number of reasons. The first of them is that noble Lords will see the breadth of experience that the members of the board as appointed by the Secretary of State will have in Clause 1(4). Your Lordships will note, for instance, that they will be persons: having knowledge or experience of the law, procedure and practice of the courts, business, finance, information technology and administration, consumer or social affairs or of any other subject … which would be of assistance to the Board in the exercise of its functions". Under subsection (5), at least one member will have: experience of the procedure and practice of the courts". I contrast that breadth of knowledge with that which appears in subsection (1) of the proposed new clause, which states that: The Secretary of State shall appoint the members of the Committee with regard to their knowledge of the work of the courts and social conditions". I suggest that that is not a good start to an advisory body.

I suggest also to your Lordships that the board itself will have access to a much wider range of information about the running of the legal aid service. It would itself be drawn from a wide range of relevant interests. I take the point, I regret to say, that the noble and learned Lord, Lord Silkin, was anticipating; it will now have the power to advise the Secretary of State directly. It will itself be enabled at any time to provide expert and objective comment with regard to the practicality and practicability of legal aid administration from its own experience.

I always hesitate to comment upon English models. Noble Lords opposite, and particularly the noble and learned Lord, Lord Elwyn-Jones, will know far better than I do what the statute provides in England. However, I believe that I am right in thinking that the English advisory committee is based upon the proposition that the Law Society's annual report—and I think I am correct in saying that the Law Society does not have the power to give advice to the Lord Chancellor—is submitted to the Lord Chancellor and is then put before the advisory committee, which then reports upon it. The two reports together are then placed before Parliament. I hope that I am correct.

Lord Elwyn-Jones

My Lords, both reports are put to the Lord Chancellor and are then placed before Parliament.

Lord Cameron of Lochbroom

My Lords, I was saying that the advisory committee reports upon the Law Society's report, and then its report independently is placed before the Lord Chancellor. The two reports are then placed before Parliament. I was making the point that the Law Society does not itself have power to advise direct. No doubt it would do so privately but it has no statutory power.

The Law Society is of course a particular body. I believe I am correct in saying that the scheme within which it operates is limited in membership. We have a board of much greater width and, I suggest, of much greater experience. Accordingly, I say that the board is the proper vehicle to which the Secretary of State should look to provide the advice of the kind that is suggested here. I have already made my point about the membership of the advisory committee suggested by the noble Lord opposite.

Lord Wheatley

My Lords, does the noble and learned Lord not accept that the two reports have a marked difference? The report of the Law Society will presumably be about their handling of legal aid, whereas the report of the advisory committee, as an independent body, will deal not only with the handling of legal aid but also with the mishandling of it. It is because it is necessary to have that objectivity with regard to mishandling, which may be much more important, that it is necessary to have the advisory committee.

Lord Cameron of Lochbroom

My Lords, the point I have been making about the board is that it would be so broadly-based that one would be looking within its own confines to secure the objects for which it is appointed. That is unlike the present position in England, where, I understand, there is no such broadly-based administration of legal aid. I accept that there may be lay members on the committee, but I believe I am correct in saying that it is not as broadly-based as the board is here.

It comes to this. I say that the board that is to be appointed under the Bill will be sufficiently broadly based and independent to the extent that it will be the proper vehicle from which advice should be sought and to which advice should be tendered. The Government have been criticised in some quarters for appointing one new public body. I would simply say that to appoint two bodies to cover the same field and having overlapping powers would be unjustifiable.

I have listened with care to what has been said, but nothing has persuaded me that the board would not be fully qualified to give advice on the very questions to which the new clause refers. Indeed, the board is much wider based and better based in order to secure that advice and would be more appropriate in all the circumstances. The advice would of course be based on the board's own knowledge about the running of the legal aid service, and that must be a very potent factor.

For those reasons, and while I take on board the points that have been made, I suggest that the arguments for the amendment are not convincing. The board now has the power, that it did not have before, to give advice. Perhaps I should say to the noble and learned Lord, Lord Wheatley, that I trust he will not think I am being inflexible. I listened to what was said in Committee. Indeed, certain of the amendments that are down in my name on the present Marshalled List show my preparedness to listen in the past. So far as concerns what I have heard today, I am not convinced that there is any need for a second advisory body.

Lord Morton of Shuna

My Lords, I regret to say that I find the noble and learned Lord's explanation unsatisfactory. With respect to his arguments, it appears that he misses the point. However widely constituted the board may be, it will be responsible for the administration of legal aid. It will naturally tend to defend its administration against any criticism. That is the tendency of any board, committee or body administering anything. It is therefore necessary that there should be a different body to take a new look from a distance, which can see what is going wrong.

It appears also, if the information that has been given to me is correct—and I am sure that it is—that the noble and learned Lord's reference to the burning bush was inaccurate. I believe that the small, still voice came to Elijah after a thunderstorm.

Lord Cameron of Lochbroom

My Lords, I accept that, of course, but I observe it was still listened to.

Lord Morton of Shuna

My Lords, I accept that it was listened to, and I have listened to the noble and learned Lord the Lord Advocate; but still I feel that I must test the opinion of the House.

6.40 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 74; Not-Contents, 83.

DIVISION NO. 6
CONTENTS
Airedale, L. Kirkhill, L.
Amherst, E. Lloyd of Kilgerran, L.
Ardwick, L. Lockwood, B.
Barnett, L. McCarthy, L.
Briginshaw, L. McGregor of Durris, L.
Brooks of Tremorfa, L. McIntosh of Haringey, L.
Bruce of Donington, L. McNair, L.
Caradon, L. Milner of Leeds, L.
Carmichael of Kelvingrove, L. Mishcon, L.
Cledwyn of Penrhos, L. Molloy, L.
Crawshaw of Aintree, L. Morton of Shuna, L.
David, B. [Teller.] Nicol, B.
Davies of Penrhys, L. Northfield, L.
Dean of Beswick, L. Parry, L.
Denington, B. Pitt of Hampstead, L.
Denning, L. Rochester, L.
Diamond, L. Ross of Marnock, L.
Elwyn-Jones, L. Seear, B.
Ennals, L. Selkirk, E.
Ewart-Biggs, B. Serota, B.
Foot, L. Shackleton, L.
Gallacher, L. [Teller.] Silkin of Dulwich, L.
Galpern, L. Stewart of Fulham, L.
Graham of Edmonton, L. Stoddart of Swindon, L.
Grey, E. Strabolgi, L.
Hampton, L. Taylor of Blackburn, L.
Hanworth, V. Taylor of Mansfield, L.
Hatch of Lusby, L. Tordoff, L.
Hayter, L. Turner of Camden, B.
Heycock, L. Underhill, L.
Hooson, L. Wallace of Coslany, L.
Hughes, L. Walston, L.
Irving of Dartford, L. Whaddon, L.
Jeger, B. Wheatley, L.
John-Mackie, L. Williams of Elvel, L.
Kilbracken, L. Wilson of Langside, L.
Kilmarnock, L. Winstanley, L.
NOT-CONTENTS
Airey of Abingdon, B. Gardner of Parkes, B.
Alexander of Tunis, E. Gibson-Watt, L.
Ampthill, L. Glanusk, L.
Arran, E. Glenarthur, L.
Ashbourne, L. Gray of Contin, L.
Auckland, L. Hailsham of Saint Marylebone, L.
Belhaven and Stenton, L.
Belstead, L. Harmar-Nicholls, L.
Birdwood, L. Hooper, B.
Boardman, L. Hylton-Foster, B.
Brabazon of Tara, L. Kimball, L.
Brougham and Vaux, L. Kinloss, Ly.
Butterworth, L. Kitchener, E.
Caithness, E. Lauderdale, E.
Cameron of Lochbroom, L. Layton, L.
Carnegy of Lour, B. Lindsey and Abingdon, E.
Cathcart, E. Long, V.
Coleraine, L. Lucas of Chilworth, L.
Colwyn, L. Macleod of Borve, B.
Craigavon, V. Marley, L.
Craigmyle, L. Maude of Stratford-upon-Avon, L.
Davidson, V.
Denham, L. [Teller.] Merrivale, L.
Drumalbyn, L. Middleton, L.
Elliot of Harwood, B. Milverton, L.
Elliott of Morpeth, L. Mottistone, L.
Elton, L. Mowbray and Stourton, L.
Fortescue, E. Munster, E.
Fraser of Kilmorack, L. Newall, L.
Noel-Buxton, L. Strathclyde, L.
Norrie, L. Sudeley, L.
Orr-Ewing, L. Swansea, L.
Perth, E. Swinfen, L.
Platt of Writtle, B. Swinton, E. [Teller.]
Portland, D. Trumpington, B.
Rankeillour, L. Vaux of Harrowden, L.
Renwick, L. Vickers, B.
Rodney, L. Vivian, L.
St. John of Bletso, L. Ward of Witley, V.
Sandford, L. Whitelaw, V.
Shannon, E. Young, B.
Sharples, B. Young of Graffham, L.
Skelmersdale, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.48 p.m.

Clause 9 [Regulations may apply Part II to representation]:

The Deputy Speaker (Lord Hayter)

My Lords, I have to point out that if Amendment No. 9 is passed I cannot call Amendments Nos. 10 and 11.

[Amendment No. 9 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 10: Page 7, line 23, leave out ("section 8") and insert ("sections 8 and 10(2) ").

The noble and learned Lord said: My Lords, for the convenience of the House I refer also to Amendment No. 11. These two amendments delete the power under which it might have been possible for the Secretary of State to confine assistance by way of representation to those in receipt of supplementary benefit or family income supplement. The amendment therefore takes account of the criticisms which were voiced by noble Lords who spoke against this provision in Committee. I beg to move.

Lord Morton of Shuna

My Lords, if I may, I speak also to Amendments Nos. 10 and 11 in congratulating the noble and learned Lord the Lord Advocate for having dealt with the difficulty. I support the amendment.

On Question, Amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 11: Page 7, line 26, leave out from ("prescribed") to end of line 28 and insert ("and such modification of the financial limit under the said section 10(2) may substitute different sums in relation to different proceedings or stages of proceedings.").

On Question, Amendment agreed to.

Clause 10 [Financial limit]:

Lord Morton of Shuna

had given notice of his intention to move Amendment No. 12: Page 8, line 3, at end insert ("and ( ) the Board shall provide a method of appeal against the limit imposed in any case.").

The noble Lord said: My Lords, this amendment is designed to provide that there should be some method of appeal or review of the decision of the board as to the financial limits for advice and assistance. As I understand it, it is the intention of the Secretary of State to cover this point by regulation. I shall not move the amendment.

[Amendment No. 12 not moved.]

Clause 14 [Availability of civil legal aid]:

Lord Morton of Shuna

had given notice of his intention to move Amendment No. 13: Page 10, line 22, at end insert— ("( ) The Board shall provide a method of appeal against the refusal by the Board of Civil Legal Aid.").

The noble Lord said: My Lords, this amendment covers the same point, and I shall not move it. Amendment No. 14 is a separate point.

[Amendment No. 13 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 14: Page 10, line 23, leave out subsection (3).

The noble and learned Lord said: My Lords, in speaking to this amendment, I should like also to refer to Amendment No. 45 which is consequential. The amendment removes the power of the Secretary of State to prescribe factors to be taken into account by the board in determining whether it is reasonable for a person to receive civil legal aid. We accept that there would be difficulties in putting a gloss on what constitutes reasonableness. The reasonableness criterion remains. I am confident that it will be applied by the board in a sensible and consistent manner. The later amendment is simply consequential. I beg to move.

On Question, amendment agreed to.

Clause 17 [Contributions, and payments out of property recovered]:

The Earl of Selkirk moved Amendment No. 15: Page 11, line 31, after ("paid") insert ("out of disposable income or capital.").

The noble Earl said: My Lords, I find Clause 17 slightly mysterious. It is not at all easy to see what the clause is getting at. It deals with the case of someone who is legally aided. But where his apparent income exceeds £2,255 or his capital £3,000, there appears to be an excess, the nature of which I do not know. I do not understand it. I do not know how the excess is decided.

Subsection (4) says: If the total contribution to the Fund made by a person in respect of any proceedings exceeds the net liability". It is not clear to me what the net liability is. The subsection goes on: the excess shall be repaid to him". I do not know who sets this. My main concern, however, relates to how it shall be paid. Subsection (5) states that it, shall be paid, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him".

That means that if a man is having a contest about his house that someone may be claiming, and he is defended with legal aid, he may have to sell his house to pay the excess. That depends entirely on the cost of the proceedings. But it seems to me that that is carrying matters to an absurd degree. I suggest here that it should be made out of his disposable income or capital as laid down in Clause 42. I do not know whether that is the correct procedure. My real objection is that a person may lose the domicile where he is living. It is possible that he may recover the house but that the costs of the case will be such that he would lose it. That seems to me not only unjust but also quite absurd.

I am not saying that those operating this part of the Bill will not be people of munificent outlook or that they will be unkind. I am, however, saying that my amendment is perfectly possible. I suggest, with great respect, that my noble and learned friend should examine the matter. If my amendment is unsatisfactory, another could be proposed that does not make the excessive demands and, if I may say so, arbitrary demands contained in the Bill. I do not know how one reaches the net liability requirement, or who calculates the excess. But if the excess reached a certain point, the litigant—he may be a defender or a pursuer—could lose his house. He may, indeed, be defending his house and endeavouring to keep it against someone pursuing him in court.

I ask my noble and learned friend to look at this matter to see whether the words in the Bill do not go too far in giving power for payment in priority to any other debts—before the baker, the candlestick maker or anyone else, and including the rent. This goes back to the discussion that took place in Committee. It is a question of establishing to what extent one can say that it should be paid in priority over any other debt. I know that this relates to debts of recovery, but the recovery may be the house. I beg to move.

Lord Denning

My Lords, this is a problem that has arisen a great deal in England when a man gets legal aid, his costs are paid, and he wins. The costs that have been incurred on his behalf are a first charge on the money he receives. If it is a personal injury case and he gets £100,000, it is natural enough that the costs that have been incurred should be recovered. The real trouble arises when there is a matrimonial home with each side legally aided. Each side gets property recovered or preserved. The question arises of how far the cost should be a charge on it.

We have wrestled with this matter in England. All sorts of problems arise. It is not a matter, I believe, that can be resolved at this stage. I hope that it will be resolved in England. In those circumstances, it could perhaps be done afterwards for Scotland. At the moment, however, the law in Scotland remains the same as it is in England. It needs detailed examination and perhaps the introduction of regulations to make for a just situation.

Lord Morton of Shuna

My Lords, there is, I agree, a great problem that seems to be the same in England as it is in Scotland. It appears to me that the way to deal with it is to give the board discretion under some regulation or other.

Lord Cameron of Lochbroom

My Lords, I have listened to my noble friend with great care. I do not wish to traverse argument that has already been covered in Committee. I wish to make clear to my noble friend a problem that he has not perhaps fully appreciated. Subsection (2) is intended to deal with how a person's contribution to the Legal Aid Fund is to be calculated. This can be done in two ways. First, he will only be asked for a contribution from income if his disposable income exceeds the figure set out there, and equally, so far as capital is concerned, if his disposable capital exceeds the figure set out. The words "disposable income" and "disposable capital" are defined in the Bill and covered by regulations.

Subsection (5) provides for the situation where there are sums remaining unpaid in respect of a person's contribution to the fund in respect of any proceedings. Very often, they are paid on a monthly basis. It may be that at the end of the litigation he has still not completed his payment of the contributions at which he has been assessed. Secondly, there may be the circumstance that the noble and learned Lord, Lord Denning, pointed out where the expenses against his account at the end of the day are greater than the amount that he has been called upon to contribute, but, as a result of the action, there has been property that has been recovered or preserved for him. What is provided here is that those sums remaining unpaid in respect of contribution of what is called the deficiency, by reason of his total contribution being less than the net liability of the fund on his account, are to be paid in priority to any other debts out of that property which is recovered either in proceedings or under any settlement that avoids proceedings or brings them to an end.

The main argument for retaining this—it is the position in both England and Wales and in Scotland at present—is that the scheme is not intended to place assisted litigants in a more favourable position than those who are fully able to pay the costs involved. We would not disturb the normal state of affairs, in which all litigants run a risk of their litigation being successful but not providing the expected benefit. That is where some difference is considered in raising an action against an assisted person. He has to take account of the financial consequences. This is very relevant where both parties are assisted.

7 p.m.

My noble friend's principal concern was in relation to the living house. Obviously I shall look at what my noble friend said. However, I am advised that when the assessment of contribution arises and the living house is the subject matter of the dispute, it would normally be excluded from the calculation of what is disposable capital for the purpose of sub-paragraph (ii). I am advised that that is done under the assessment of resources regulation.

My noble friend's concern arises in divorce proceedings in particular. I should say that in relation to that the Family Law (Scotland) Act, which will be brought into operation later this year, will give the Scottish courts a specific power to make an order for the transfer of property. Orders following divorce are at present in general exempt from the claims of the legal aid fund. It is intended that this practice should continue in relation to the new provisions of the Family Law Act.

I should have thought that it would be unusual for the house in which an assisted party lives to be property recovered or preserved in non-matrimonial proceedings. Perhaps it could arise in a dispute between persons with a joint interest. In those circumstances, I would merely say that at the moment I am not persuaded that there is any general reason why the normal rules should not apply. For these reasons I cannot therefore suggest to your Lordships that the principle of this amendment be accepted.

There is a technical point upon the phraseology of the amendment itself. It would not seem to make sense if each of the proposals were to be met. But I have listened to what my noble friend has said. Perhaps I can consider the matter further in the light of his remarks, although I cannot suggest that there will be anything done in this Bill about the matter.

The Earl of Selkirk

My Lords, I am grateful to the noble Lord for what he has said. I think he should take note of what the noble and learned Lord, Lord Denning, said: that it causes great difficulty in England. Why should we write a new Act in Scotland which will cause equal difficulty? Surely it is for the intelligence of the draftsman and the noble and learned Lord the Lord Advocate to write a better clause which would not cause so much difficulty.

The noble and learned Lord is right: I am concerned with a comparatively narrow matter. But one may be recovering one's house. Someone may have a false title, and may be claiming this house. At the end of the day one gets it back. What happens then? One has to pay the lawyer. Then one comes to the wholly undefined matter of the excess. Who sets the excess? How is the excess determined? There is nothing in this clause to say how it is assessed. In spite of regulations there should be more precise provision as to how this matter is calculated.

The noble and learned Lord is right in saying that my chief concern is the question of the house, the tools of trade or the machinery. There may be many matters which one is recovering at law. In my opinion they should not be distrained on.

The noble and learned Lord has said that he will look at it. I am sure that he will do his best. I shall not press this further but will ask the noble and learned Lord to try to see whether a rather more watertight section can be put forward which does not have these "exceptional" qualities, where one does not have to use words such as "normally", or "unusually". That is no earthly use in law. The law should not allow for these exceptions. However, I shall leave it with the noble and learned Lord and shall expect some result. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Davidson

My Lords, this may be a convenient moment at which to adjourn this Report stage. I therefore beg to move that further consideration on Report be now adjourned, and suggest that we do not resume before 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.