Legal Aid (Scotland) Bill [H.L.]

HL Deb 14 April 1986 vol 473 cc492-529

8.13 p.m.

Consideration of amendments on Report resumed.

[Amendment No. 16 not moved.]

Clause 19 [Expenses out of the Fund]:

Lord Denning moved Amendment No. 17: Page 13, leave out lines 1 to 5.

The noble and learned Lord said: My Lords, I had hoped to move this amendment in Committee but I had unavoidably to be absent. The amendment concerns an important question of justice in legal aid cases. At the moment there is great disparity of justice when one side is legally aided and the other is not.

I can illustrate that point with one or two cases. I should like to take a case where the plaintiff is an unassisted man and the defendant is legally aided. I shall give the case of Thews v. Reeves, which is reported at 1982 I Queen's Bench. I shall tell your Lordships what the position was. A small shopkeeper called Mr. Thews built up a good business and agreed to sell it to Mr. Reeves for £15,000. It was to be £5,000 down and £800 monthly payable by instalments. The £5,000 down was paid, but after a little while Mr. Reeves did not pay the instalments. Mr. Thews, unassisted, instructed his own solicitors and sued for the balance of the instalments.

Mr. Reeves, who had no real defence, alleged that Mr. Thews had been guilty of fraudulent misrepresentations about the profits of the business. He obtained legal aid. I suppose that the legal aid people relied on his word. By charging fraud against Mr. Thews, the case was conducted at great length. Mr. Reeves eventually lost. He had to withdraw his defence. Mr. Thews had to fight against a legally aided defendant. I think that he received £5,000 but had to pay his own costs of £8,000. He could not obtain his costs because Mr. Reeves had been legally aided. The judge said: Mr. and Mrs. Thews will no doubt ascribe the disastrous consequences of this successful litigation to what in modem jargon might well be described as the 'unacceptable face' of British justice.

As the law stands, when an innocent plaintiff sues a legally aided defendant with his own money and wins, he cannot obtain his costs. That has been criticised time after time, not only in that case but in earlier ones. The Lord Chancellor's Advisory Committee took the same view and, at paragraph 243, said: We continue to support broadening the provisions of the Act to permit successful planitiffs to receive costs from the fund.

That relates also to Amendment No. 18, which will be moved by my noble friend Lord Morton of Shuna. The limitation is that the proceedings must be instituted by the legally aided person. The recommendation was supported by all the judges, and by the advisory committee. They recommended that in such circumstances a man who is not legally aided and who wins against a legally aided defendant, who has all the funds of the state to back him, should have his costs paid by the legal aid fund when it loses. That is the case for the plaintiffs.

I now wish to deal with the much more common case when the plaintiff is legally aided and the defendant is not. The case I would quote is the case of Whitehouse v. Jordan. Mrs. Whitehouse was about to have her baby. She went into hospital at Birmingham and unfortunately there was a disaster during her confinement. The surgeon tried to pull out the baby. Unfortunately the brain was damaged in so doing. Mrs. Whitehouse sued the surgeon for negligence. She said that he had pulled the baby too hard and too long. She obtained legal aid to bring the case. There were medical men on both sides. Enormous expense was involved.

The case went to the Court of Appeal and the House of Lords. Mrs. Whitehouse lost, and the House of Lords said that the legal aid fund was to pay the costs because it had lost the case. But they could not make any order in respect of the court of first instance, because of the special provision that you cannot get costs against a legally aided plaintiff unless you can show substantial financial hardship. So the surgeon did not get any costs against the legal aid people in respect of the court of first instance.

Another example of that is where an Irishman called Mr. Kelly sued the British Transport Board. Mr. Kelly had had a cut on his head some years earlier and he afterwards had depression. He managed to persuade some doctors and lawyers that it was due to the negligence of the British Transport people. He carried the case on for, I think, six years but eventually it dropped. The judge said, in effect, that he was an obvious liar. The British Transport Board were involved in £8,000 costs and they said, "We ought to get that from the legal aid people."

Neither of those cases would have been started but for legal aid. They would have died a natural death and would not have been taken. But in neither case were the successful defendants able to recover costs, because of the provision that in a court of first instance you do not get costs against a legally aided plaintiff unless you show severe financial hardship.

The advisory committee considered that the law ought to be altered and liberalised. They said at page 237 of their report: The award out of funds in such cases should be a matter of judicial discretion, but the discretion should be made more generous by liberalising the severe financial hardship test of the present situation".

They went on to say: The Lord Chancellor's Office's legislative working party recommended that the test should be that the applicant would find it hard to bear his costs unless an order were made. We would regard this phrasing as the minimum legislation appropriate to the circumstances of the case". So the advisory committee advised liberalising the position so as to enable defendants who successfully defended a case to get their costs.

I am afraid that the English law remains the same, but your Lordships will see that in my first amendment I want to strike out all the words about the unassisted party suffering severe financial hardship. I agree with the noble Lord, Lord Morton of Shuna, in his amendment that it should apply not only to defendants but to plaintiffs.

Then there is this very strange, new, liberalising provision in subsection (4). It is not in English law. It states: The provisions … regarding financial hardship may be modified, in their application to persons who are concerned in proceedings only in a fiduciary, representative or official capacity, by regulations made under this section. I ask: what is a fiduciary, representative or official capacity? In that earlier case, were the West Midlands Health Authority being sued in an official capacity? I should have said that they were. If a chief constable is sued, if the Jockey Club is sued or if a committee is sued, all those people may be able to get their costs, but only by regulations made under this section.

We do not know what those regulations will come to. This provision about a fiduciary, representative or official capacity is entirely vague. I suppose that the trustees of a building or of a hospital would be covered by the word "fiduciary". I suppose that "representative" would cover trade unions. The words "official capacity" would cover a chief constable, a hospital authority or whoever it may be. But those words are very wide. Why should those bodies be in a position different from that of an ordinary company or individual? And it is all dependent on regulations.

I suggest that subsection (4) is much too vague, uncertain and unjust in its application, so I suggest that those first five lines on page 13 should be omitted, as well as subsection (4). It should be left to the discretion of the court, because paragraph (c) remains. That reads: in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds. That is what applies in the Court of Appeal and in the House of Lords. It can perfectly well apply to the courts of first instance, and in all these circumstances it enables the courts to do what is just in a particular case and not be hustled out of justice by the various provisions about severe financial hardship and the like. I beg to move.

The Deputy Speaker (Lord Ampthill)

My Lords, I should remind your Lordships that if Amendment No. 17 is agreed to, I cannot call Amendment No. 18.

Lord Morton of Shuna

My Lords, I strongly support the amendment proposed by the noble and learned Lord, Lord Denning. It is obvious in the legal aid scheme that the legal aid authorities can only assess whether somebody has probable cause on the basis of the written documents provided to them. In certain cases, they may be provided on a false basis. The person may be putting forward a false case and, perhaps, getting somebody to support it, and there is no way that the legal aid authority can assess whether it is a genuine or a made-up case. But if it is a made-up case, the person on the other side of the litigation can suffer very extreme hardship, if he is just beyond the limit of legal aid. Yet as the provisions stand, a person can get no relief at all in a court of first instance unless the proceedings were instituted by the legally assisted person.

Of course, there are many cases where, for example, the non-assisted person is forced to raise the action, perhaps to regain his own property, and then, as in the example cited, the expenses almost outweigh the value of the property recovered. It is a form of blackmail that is available to the assisted person against an unassisted person and I strongly support Amendments Nos. 17 and 19. Amendment No. 19, as I understand it, really follows No. 17, because if paragraph (b) were removed there would be no purpose in having subsection (4).

If I may, with your Lordships' permission, speak to my Amendment No. 18, that is perhaps rather less drastic than the amendment of the noble and learned Lord, Lord Denning. It is merely to allow the court to award expenses if the unassisted party, whether pursuer or defender, will suffer severe financial hardship, and I see no reason why there should be a restriction to cases started by the assisted person. Therefore, I strongly support the amendment.

Lord Cameron of Lochbroom

My Lords, this amendment extends a point which I think we discussed as a result of an amendment by the noble Lord opposite in Committee. I have considered what was said at that time and I accept that difficult cases will always arise, where one party to proceedings is legally assisted and the other is not. But I regret to say that I must adhere to my original point that, given the continuing need to make the best possible use of the resources available for legal aid, Clause 19(3)(b), which I think the noble and learned Lord, Lord Denning, accepted restates the law as it exists both in England and Wales and in Scotland, makes a proper distinction in allowing the possibility of a successful non-assisted defender obtaining his expenses from the fund—that is to say, one who has been brought into court by a plaintiff in England or a pursuer in Scotland—but not a non-assisted pursuer who, as I indicated in an earlier debate today, is aware that his opponent is legally assisted. He is made aware of that fact.

8.30 p.m.

It is the case, as the noble and learned Lord, Lord Denning, pointed out, that the restriction is in any event applied only to the expenses of first instance proceedings and not the expenses of any subsequent appeal. There is a clear logical reason for that because in relation to an appeal the assisted person has had to return to the legal aid authorities and they have been persuaded at that stage in the light of a decision of the court to support the legally assisted person. For that reason, there having been as it were a second bite, it is appropriate that in those circumstances where the individual has been legally assisted the appeal court should have the power to award defences in the case where the appeal has been successful against the legally assisted person, but only in relation to the appeal process.

I entirely accept that where the board therefore has supported a pursuer whose case is repelled by the court and the defence has caused severe financial hardship to the defender the court should in such cases have the power to order that the successful party's expenses be met out of the fund. For that reason I cannot accept the limited amendment which the noble Lord opposite has down in his name. But I accept that the amendment of the noble and learned Lord, Lord Denning, goes much further. It would abolish altogether the provisions that an unassisted person's expenses would be met only if he would otherwise suffer severe financial hardship. It would really mean that in all cases where he was successful he should be entitled to an award from the legal aid fund.

I make clear my sympathy with the position of many unassisted parties. It is only fair to say that this can arise even without the interposition of legal aid. But again I have to say that I do not think that the resources of the legal aid fund should be available in all cases, even where there is no real financial need.

For those reasons I regret to say that upon consideration of the matters that were discussed in Committee and being aware too of the amendments which the noble and learned Lord, Lord Denning, put down at that time I do not feel able to accept any of these amendments which would in any event put Scotland slightly out of line—more than slightly out of line—with the law South of the Border. I take the point made by the noble and learned Lord, Lord Denning, in an earlier debate today that if a fundamental change of this kind in relation to the matters of first charges were to be made, it ought to be done over both jurisdictions and not separately. It seems to me that that argument is equally good with regard to the present one. Accordingly, I cannot advise the House to accept this amendment and those consequential to it.

Perhaps I should say that the noble and learned Lord, Lord Denning, is absolutely correct in his speculation as to the meaning of subsection (4), in particular the words, "fiduciary, representative or official capacity". These words are not new. They appear in existing legislation in relation to both England and Scotland, more particularly in Section 15 of the Legal Aid (Scotland) Act 1967.

Lord Denning

My Lords, I am of course disappointed with the answer. We still have injustice being carried on in these cases. I was not referring to all cases. I was saying, let the discretion be in the judge—the same as in the Court of Appeal and the House of Lords. In all these cases let the discretion be in the judge whether the legal aid fund ought to pay the costs. They are the cause of all the litigation. They put the other side to all the costs and then they fail. Ought they not to pay the costs like any other individual? That is the simple point of justice. That is just and equitable. That is the first point. It has been stressed by judges in England, by the advisory committee and the like. That is in regard to England. I protested against it in England without any help from the noble and learned Lord the Lord Chancellor. They really want to save the cost to the legal aid fund: legal aid is becoming so expensive; so let us not put any more on it. In other words, money is going to count before justice.

This clause, whereby a person in a "fiduciary, represenative or official capacity", may be able to get his costs is new. That covers a multitude of people, but we do not know what they would be. So in Scotland there is this wide liberalising measure. I should like to have it in England. Mark you, I would extend the words "fiduciary, representative or official capacity" to cover pretty well everyone—all the health authorities and the like. With a little ingenuity we could make it a very good clause in England, but we do not have it there. My only plea is that we ought to know precisely what it means, and we do not.

But I see that I am struggling alone with no support and so I will not divide. I have just made my protest in the interests of justice. I shall not go further with the amendment.

Lord Wheatley

My Lords, if the noble and learned Lord will allow me, I shall give him some support.

Lord Denning

My Lords, I have even greater support here. Let us hear what the Lord Justice Clerk would say.

Lord Wheatley

My Lords, what is the reasoning behind the clause as it now stands whereby when a person gets legal aid and institutes proceedings the successful defender will be entitled to get money from the legal aid fund in respect of his expenses? The reasoning surely is this. If the legal aid organisation has been involved in financing the case by the pursuer and that case fails, in equity the successful defender should be entitled to payment out of the legal aid fund.

Lord Denning

That is right, my Lords.

Lord Wheatley

But, my Lords, should not exactly the same argument apply to the reverse situation where the unassisted person raises the action but the defender gets legal aid and pursues the action unsuccessfully in a court of first instance? He has been able to do that only because legal aid has been supplied to him. Surely if it is equitable in the first case, it should be equitable in the second case. If the expense has been incurred to the successful party through the intervention of the legal aid fund, in equity the successful party should be entitled to be considered for expenses against the legal aid fund. I say "considered" deliberately because, as the noble and learned Lord, Lord Denning, has pointed out, the underlying principle is the one in operation at the present time in Scotland where the proceedings as framed in the clause take place and the court has to decide in all the circumstances of the case whether it is equitable that expenses should be given to the successful defender and the extent to which these expenses should be given. This is a case where equity should rule over the possibility of being faced with some extra expense. The whole principle of legal aid will surely be made a nonsense of if one is to have two standards of equity.

Lord Denning

My Lords, perhaps I may add a few words with the leave of the House. As my noble and learned friend has just said, the question is: what is equitable? The subsection, without the other wording, would say that: The court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds". What could be simpler and better than that? That is how I would leave it and would have it always left. However, as I have said, having regard to the forces that the noble and learned Lord has in reserve, it is probably not worth while having a Division. Therefore, I will not proceed any further and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 and 19 not moved.]

Clause 21 [Scope and nature of criminal legal aid]:

Lord Morton of Shuna moved Amendment No. 20: Page 14, line 30, leave out subsection (2).

The noble Lord said: My Lords, this Amendment is to strike out Clause 21(2) of the Bill, which provides that: The Secretary of State may, by regulations … prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available". That subsection of the Bill provides at length for criminal legal aid being available subject to financial and other considerations.

It is not at all clear why the Secretary of State should have the power to make regulations to cut out from the provision of legal aid any class or stage of proceedings. Neither is it clear what is meant by a class of proceedings. Is that done to cut out road traffic cases, or cases in a certain level of court, or what? Does it mean that one may obtain legal aid up until the trial but not for the trial, or not until the trial but for the trial? If so, why? What is the point of that regulation? It appears to be another illustration of the way in which the Bill is framed—to make the board totally the pawn of the Secretary of State, required to do exactly what he directs it to do as to making legal aid available.

As far as I can see from that clause, the Secretary of State could cut out all legal aid. I commend the amendment to the House, unless there is some satisfactory explanation that we did not have at Committee stage from the Government side. I beg to move.

The Deputy Speaker

My Lords, I remind the House that, if this amendment is agreed to, I shall be unable to call Amendment No. 21.

8.45 p.m.

The Earl of Selkirk

My Lords, on the supposition that my noble and learned friend will not accept the amendment that the noble Earl, Lord Perth, and I have down following this amendment, I should like to support what has been said by the noble Lord, Lord Morton.

This Bill is chock-full of regulations. We can do very little about that except see whether the regulations, in the power that they take from Parliament, are in excess of requirements. Are these regulations really in excess of requirements? We must remember that we are using powers here that amount to a decree. I say that because it is extremely difficult to do very much about draft regulations.

In the first place, a statutory instrument is very difficult to understand. If one wants to understand a draft instrument then one has to go to the Library and read the Act of Parliament to discover what the draft means. Secondly, it tends to give rise to some constitutional issue. The other place passes it, and if we do not pass it there is a frightful row. That is quite different from amendments that we put into a Bill, which we can make when we want to. As far as a draft regulation is concerned, it presents great difficulties. Sometimes I think this is a matter that the Procedure Committee should examine, to see whether we could not deal with draft regulations a little more effectively.

I agree with what was said by the noble Lord, Lord Morton. What precisely do the Government have in mind? I do not know what the word "class" means in this context. Does it mean that certain classes of case should be omitted altogether? The word "class" usually applies to a category of people. It may be women, men, children, persistent offenders—all kinds of people. It could even mean the young unemployed. It might mean that the Government were taking power to exclude from legal aid unemployed persons. That would be within their power. I am sure that they do not intend that, but the provision could be used in that way. Do the Government want to take a power that is greatly in excess of what they really need?

The noble Lord has already asked what actions are to be excluded. Clause 22(1) states: Subject to regulations made under section 21(2) of this Act". That means that any of the items shown in (a), (b), (c) or (d) of that subsection could be excluded under the power that the Secretary of State has in Clause 21(2). I ask the question: do the Government want that power? Is it necessary to have it? I do not believe that we should let the Government have powers that they do not want; it is important that their power should be kept as low as possible. If the Government say that they want that power, then let them have it—but they must make the case as to why such a power is necessary for the proper functioning of the Bill.

Lord Wheatley

My Lords, I too have difficulty in understanding what is meant by the phrase in subsection (2): any class or stage of proceedings". That is vague, uncertain and indeterminate. As far as class is concerned, that could extend—could it not?—to limiting legal aid to summary commital proceedings as a whole or proceedings in the district court—about which I know something because, as Lord Justice Clerk, I presided over the central advisory committee of the justices of the peace and our main concern was the working of district courts.

According to subsection (2) of this clause, all work in district courts could be excluded from legal aid. If that is to be done—and it would be rather a draconian measure—then it should be done in primary legislation and not by means of regulations.

I have one further point to make. The noble Earl, Lord Selkirk, pointed out that under these provisions, the various items to which Clause 22 refers could be excluded simply by the passing of a regulation, subject to such considerations as appear to the Secretary of State "to be appropriate". So, at the whim of the Secretary of State, some of the provisions could be wiped out.

Finally, I ask the noble and learned Lord the Lord Advocate whether the provisions of Clause 23 are in any way qualified by the provisions of Clause 21(2).

The Earl of Perth

My Lords, I understand that, if this amendment is accepted, then the amendment that stands in the name of the noble Earl, Lord Selkirk, and myself will not be taken. I want to speak on Amendment No. 20 therefore, for the reason that I am very unhappy about it, whatever may be its merits or demerits.

I say that because the noble Lord, Lord Morton of Shuna, moved precisely the same amendment in precisely the same terms at Committee stage. That is an unusual thing to happen. I looked in the rule book and, sure enough, it is unusual—particularly when an amendment has been considered in Committee, put to a vote, and defeated. I do not mind about that. I was myself supporting the noble Lord when he was defeated, but I think we have to be extremely careful in this House not to bring up on Report in precisely the same terms an amendment which has been considered and voted upon in Committee. I say this with some hesitation, but it is important that we do not get involved in covering the same ground in Committee and on Report; otherwise, there will be no end to our debates. Therefore, I oppose the amendment for a reason quite different from anything else. It is because I do not think it is proper procedure to consider the amendment a second time.

Lord Cameron of Lochbroom

My Lords, as the noble Earl, Lord Perth, has just reminded us, we have already had an exhaustive discussion of the purpose of this clause in Committee. I simply remind noble Lords of the principal arguments which I have already put forward in favour of the present formulation of the provision. It is not a new provision. Indeed, the noble and learned Lord, Lord Wilson of Langside, reminded us of that in Committee. It is a repetition, with one slight modification, of a power which has been available to Secretaries of State since 1949 in connection with civil legal aid and for criminal proceedings since criminal legal aid was introduced in 1964. Your Lordships have had, therefore, experience of the way in which Secretaries of State have sought to use such powers, and it has never been in the sweeping manner contemplated this evening. I can assure your Lordships that that will continue to be the case.

One of the factors which we have had to take account of in drafting this Bill is the introduction of assistance by way of representation. That is provided for in an earlier part of the Bill—in Part II under the heading: "Advice and Assistance"—which continues from Clause 6 onwards. Within that, of course, there is provision for representation in certain circumstances in criminal proceedings. Therefore, some mechanism has had to be devised to make clear in which circumstances a person shall be entitled to assistance by way of representation and in which circumstances he will be entitled to criminal legal aid. The mechanism that has been chosen is that of regulations under Clause 21(2), which are coupled with regulations under Clause 9, which deal with assistance by way of representation. As your Lordships will see, in Clause 9(2) the regulations as far as ABWOR are concerned may, describe the proceedings (or stages of proceedings) in relation to which this Part of this Act shall so apply", as well as, by reference … to the issues involved, to the capacity", and in any other way.

This choice, already made in the Legal Aid Act 1979, provided for assistance by way of representation, but it has not, in fact, since that date been implemented. That Act inserted a new subsection (6B) in Section 1 of the Legal Aid (Scotland) Act 1967 which allowed the Secretary of State to prescribe by regulation criteria which determined when it would be more appropriate for a person to receive assistance by way of representation rather than legal aid. However, while regulations under Section 1 (6B) were subject to negative resolution only, these regulations under Clause 21(2) are subject to affirmative resolution. Previously the position was further clarified by the former subsection (3) of this clause, but that, of course, was deleted in Committee.

I can assure your Lordships that there is nothing sinister about the power under Clause 21(2). It simply permits—and I think with my explanation it gives content to the opening words of Clause 22—the stage up to which one receives ABWOR (that is, under advice and assistance) to be dealt with by earlier regulations, and the regulations under this part, which deal only with criminal legal aid, will provide for the point from which criminal legal aid can be made available.

I think the noble Lord opposite suggested that this power might be used to remove criminal legal aid altogether. Indeed, I think the noble and learned Lord, Lord Wheatley, suggested that it could perhaps cut out proceedings in the district courts. But that is not how I read it, and certainly it is not the intention of subsection (2), which deals only with "any class or stage of proceedings". It does not, of course, deal with the criminal proceedings themselves, which are dealt with quite clearly under subsection (1): This Part of this Act applies to legal aid in connection with— (a) criminal proceedings before any of the following—". The noble and learned Lord, Lord Wheatley, asked about the meaning of the word "class". I would simply again explain that what is provided for in this subsection is that the Secretary of State may, prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings", that is, any class of proceedings. That could refer to a group of offences or a group of proceedings but not, of course, to a group of people. Therefore, I accept that it can refer to a particular class of proceedings. That is precisely the kind of power which has always been available under existing legislation.

I trust that with the explanation that this part is essential to the Bill, that it ties together ABWOR and criminal legal aid, the noble Lord opposite will feel able not to proceed with the amendment. As I said, this is a matter which we have discussed in some detail in Committee, and I am really repeating arguments which I attempted to put before the Committee. Therefore, I cannot invite noble Lords to accept the amendment.

The Earl of Selkirk

My Lords, with the permission of the House I ask one question. Does the power in subsection (2) not permit, as it stands, the exclusion of solemn procedure from legal aid altogether? Is that not technically within the power of the statute as it stands? That is what my noble and learned friend is at present justifying, and I find it very hard to accept.

Lord Cameron of Lochbroom

No, my Lords, I do not think I was trying to justify that. If that was the impression I gave, I am happy to correct it. I am not suggesting that the power under subsection (2) can be to exclude criminal proceedings before any court. That is what is set out in subsection (1). I am simply saying that it is a power to prescribe any class of proceedings or stage of proceedings; that is, in relation to proceedings themselves, groups of offences or proceedings.

Lord Morton of Shuna

My Lords, if the intention of this clause is that the Secretary of State may define that legal asssistance by way of representation should be available instead of criminal legal aid in certain classes or stages, it might have been more clear if that had been the provision.

Lord Cameron of Lochbroom

My Lords, I am grateful to the noble Lord for giving way. I did not say that. I was simply saying that that power refers to criminal legal aid. The power relating to ABWOR is to be found in an earlier part of the Bill. This provides the way in which the watershed is defined in relation to criminal legal aid.

Lord Morton of Shuna

My Lords, all I am trying to say, and no doubt am not saying very effectively, is that it could have been put in a better way. As stated, the Bill gives power to cut out criminal aid without replacing it with assistance by way of representation. However, in the circumstances, I shall not press the amendment to a Division.

Amendment, by leave, withdrawn.

9 p.m.

The Earl of Selkirk moved Amendment No. 21: Page 14, line 30, after ("may") insert ("after consultation with the Board").

The noble Earl said: My Lords, this amendment asks that the Secretary of State should at least consult with the board before using what all of us, I believe, consider to be extraordinary powers under subsection (2). They are powers that my noble and learned friend has not, I believe, justified, if I may say so with the greatest respect. I do not believe that he has said that these powers are limited.

I hope that the powers will be used wisely, munificently, kindly and thoughtfully. But that does not alter the fact that they are grossly in excess of any conceivable purpose for which they could be used. I am suggesting that there should at least be consultation with the board before they are used. This is a modest request. The clause has caused great anxiety, and came extremely close to defeat at an earlier stage in this House. Without more argument, I beg to move the amendment.

The Earl of Perth

My Lords, my name is also attached to this amendment, moved by the noble Earl, Lord Selkirk. I am no lawyer. I have little, if any, legal knowledge. All the same, it is sometimes good for an outsider, having listened to what was said at Committee stage, to make a point. I recall very well the noble Earl, Lord Selkirk, saying in Committee, "What is the point of setting up a legal aid board if its work can be totally negated by the Secretary of State who has power to alter by regulation?" It is surely not good enough that this situation should exist. As all your Lordships know, when we refer to the Secretary of State it is not the Secretary of State at all, but his advisers, the civil servants. I have nothing against civil servants. Far from it: they are admirable and good in many respects.

However, in this case it is not the Secretary of State. He is purposely setting up an advisory board. Yet he says that he can override it. If I was asked to serve on this advisory board and then saw this part of the Bill, I believe that I would decline. What would be the good, having decided that I would spend a lot of time and take a lot of trouble, as a member of the board, in thinking about things and giving advice on legal aid, if the Secretary of State could then, by regulation, ignore everything I had done?

I beg the noble and learned Lord, Lord Cameron, to think again. There must be provision for the board to be consulted. I am not saying that the advice has to be taken. But in cases like these it is a necessary part of the whole set-up we are considering that the members of the board should have a real power and should not work on something only to find that it has been to no avail. I hope that the amendment that we have put forward will be considered most carefully by the noble and learned Lord before Third Reading.

Lord Elwyn-Jones

My Lords, I should like briefly to refer to the two speeches already made. Subsection (2) really gives a draconian power, to use an old-fashioned but valid adjective in the circumstances, to the Secretary of State. What is he entitled to do? By regulation, on his own judgment and without reference to anyone, he can: prescribe by reference to such considerations as appear to him to be appropriate —a purely subjective judgment that does not become examinable in any court— any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available". He can ride a coach and four through the whole of the Act when it becomes law. This is an abuse of the regulatory provisions for which Acts of Parliament provide.

The noble Earl, Lord Selkirk, pronounced in powerful terms against the whole structure of the Bill. We have here a classic example of what should not have been done. The amendment is a modest attempt to put some kind of restraint on the powers of the Secretary of State. It suggests that he should act in this potentially oppressive way only after consultation with the board.

I hope that the noble and learned Lord the Lord Advocate will think again. This part of the Bill pushes things much too far. It is regrettable that it comes before the House at this time and in these conditions, when we cannot test the matter, for it really is an outrage. I shall not do that, for reasons that are in accord with constitutional practice. It would be sad to see the House counted out. However, I implore the noble and learned Lord to look again at this because it is outrageous as it stands.

Lord Wheatley

My Lords, I add my voice in support of what has been said by the noble and learned Lord, Lord Elwyn-Jones, for one reason, perhaps, most of all. Either by design or accident the impression has been given under the Bill that the Secretary of State is getting everything in connection with legal aid into his own maw. He will be the person who controls the legal aid system from alpha to omega. That impression could have been modified to a certain extent if some of the proposed amendments put forward today had been accepted. This is a last-minute effort whereby, perhaps in his own interest and the interest of the Government, the noble and learned Lord the Lord Advocate might well be advised to think again about this matter, and put in this very modest qualification if for no other reason than giving the impression that the Secretary of State is prepared to devolve to other people some of the responsibility for the operation of this Act.

Lord Cameron of Lochbroom

My Lords, I hope that the House will not think that I have been attempting to give any impression that on this side we consider that what is being set up will not be other than a fully independent board. I make that quite plain. I did not intend to give that impression in what I have said. I do not think that anything I have said has given that impression.

However, I should say this. Obviously I have heard what my noble friend Lord Selkirk and the noble Earl, Lord Perth, have said. I should like to take this matter away and bring it to the attention of colleagues. It is only right to say that today we have added a specific power to the board to give advice to the Secretary of State. Obviously this advice can include advice on the content of regulations. Indeed, I can give an undertaking here and now that my right honourable friend the Secretary of State will consult the board on all relevant regulations.

Having heard what has been said, I am happy to reconsider this matter. I think it is only fair to say that there may be certain regulations which do not directly affect the board and upon which it may be unnecessary to consult them. I can give no undertaking that at the end of the day anything will appear necessarily on the face of the Bill. However, I am very happy to bring the comments—and I can understand the force with which they were stated—to my colleagues' attention and to see whether something can be stated in the Bill. On that basis, perhaps my noble friend Lord Selkirk and the noble Earl, Lord Perth, may feel able not to press this further tonight.

The Earl of Selkirk

My Lords, I am grateful for what my noble and learned friend has said so far. I should like to ask him this question. My noble friend said that the Secretary of State would consult the board on all regulations which affect them. Does he mean that? Why does he not put that in the Bill? I have heard this for years. Why does my noble friend say these things when he cannot speak for more than one Secretary of State? We are passing a law. My noble and learned friend is not giving his opinion, which I respect enormously, as I respect the Secretary of State. But this is the law of the land. It gives the Secretary of State power.

I am afraid that I do not accept entirely what my noble friend says with regard to any class of procedure. Perhaps all criminal appeals could be abolished. That is a class of procedure, as I understand it. He is giving power for a Secretary of State in future to do that without consultation with anybody. I believe that it would help many of us if my noble friend could not only accept this amendment as it stands but put it more widely with regard to regulations or put in the Bill what he himself said—that the board will be consulted on all regulations which affect them. Those words would give immense relief to a great many of us.

However, I accept what my noble and learned friend has said. I ask him to think very hard about the points that have been made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 22:

Page 15, line 6, at end insert— ("( ) The grant of legal aid under the provisions of section 23 of this Act shall without prejudice to the provisions of this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provisions of section 76A and section 105(5) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspension against the granting of any incidental warrant; and the grant of criminal legal aid under the provisions of section 24 of this Act shall without prejudice to this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provision of sections 331 A(3) and section 334(2A) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspensions against the granting of any incidental warrant.").

The noble Lord said: My Lords, I withdrew this amendment at the Committee stage because the noble and learned Lord the Lord Advocate was going to look at the position. I have therefore re-enrolled it to see what the position now is. The position under the existing provision is that incidental applications, or incidental appeals, require a separate legal aid application. It seems unnecessary that there should be two applications. That is what this amendment is designed to avoid. I beg to move.

Lord Cameron of Lochbroom

My Lords, as the noble Lord opposite has reminded the House, I agreed to look at this matter. There was no difference in policy between the noble Lord and myself on this point. As promised, the wording of these clauses, Clauses 22 to 24, has been reviewed to ensure that it achieves the result that we both desire. I am now advised that it does and, in particular, that appeals on preliminary points in summary proceedings which, by virtue of the act of adjournal which governs procedure in these matters, can only be pursued after a plea of guilty or not guilty has been tendered, are appropriately covered.

I would simply add that were there to be any changes in criminal procedure, or if for any reason, contrary to the advice I have been given, any doubt arose over whether such appeals on preliminary points were covered by provisions for giving legal aid in criminal proceedings, then regulations under Clause 36(2)(c) could be used to make it clear that such appeals were in fact part of proceedings for which criminal legal aid could be granted.

Lord Morton of Shuna

My Lords, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Automatic availability of criminal legal aid]:

Lord Morton of Shuna

had given notice of his intention to move Amendment No. 23: Page 15, line 35, at end insert ("and in connection with any appeal to the High Court of Justiciary under the provisions of section 334(2A) of the Criminal Procedure (Scotland) Act 1975")

The noble Lord said: My Lords, this amendment is covered by what has already been said and I therefore do not propose to move it.

[Amendment No. 23 not moved.]

Clause 23 [Power of the court to grant legal aid]:

[Amendment No. 24 not moved.]

9.15 p.m.

The Earl of Selkirk moved Amendment No. 25: Page 15, line 41, after ("detention") insert ("in the course of the last five years").

The noble Earl said: My Lords, I do not find Clause 23 easy to understand. Subsection (1) says: Criminal legal aid shall be available on an application made to the court", and paragraph (b) says: where a person who has not previously been sentenced to imprisonment or detention has been convicted in summary proceedings, and the court is considering whether or not to send him to prison under Section 396(2) of the Criminal Procedure (Scotland) Act. I understand that that provision almost exclusively refers to non-payment of fines. It may be that it has a wider context which I have not entirely understood. However, as I read it, it applies simply to someone who has not paid a fine. In other words, it applies to someone who has been convicted and fined and who then comes before the court again because he has not paid his fine, and the court considers whether or not it is appropriate to send him to prison for non-payment of the fine. I do not know whether I have understood it correctly, but it is not very clear.

When we talk about previous sentences or detention we may be talking about a children's court. It may be that the person in question has been in detention or dealt with in a way which is applicable only to young people. It may be that the events in question take place 20 or 30 years later. However, should that person necessarily be excluded from receiving legal aid? In my view he should not be so excluded.

As I understand it, a person will not receive legal aid if at any time he has either been in prison or detained. It can relate back to matters which took place when he was 15 or less. I am suggesting that this provision should not go back over such a long period as that, but should be restricted to someone who has been in prison or detained in the course of the last five years. That seems to me to be reasonable. If a man has not been to prison or detained for, say, 20 years, it is quite unfair that on that account he should be excluded from receiving legal aid.

I may not have understood the clause, but I do not think that it is clearly drawn. In my view it would be unfair and improper for someone to have held against him the fact that he had been in prison when he was under the age of, say, 18 or perhaps had been in Borstal. Therefore it would be fair to limit the period as regards which detention would be used as a ground for exclusion from receiving legal aid. I beg to move.

Lord Cameron of Lochbroom

My Lords, the purpose of this provision is to continue one which was inserted in the existing Act of 1967 by the Criminal Justice (Scotland) Act 1980. It gives special treatment to someone who is facing prison or detention for the first time. My noble friend is correct in saying that one of the circumstances may be when the person has failed to pay a fine, when no time for payment is allowed and the court then considers a sentence of imprisonment or detention. It also applies to the ordinary case where the court is considering such a sentence. It is generally accepted that such a person is in a particularly serious situation and that he should have legal assistance if he wishes to put forward any arguments for an alternative sentence. It is for that reason that the provision was first introduced in the 1980 Act and was limited to the case when someone was facing imprisonment for the first time.

Therefore, these provisions are really consequential upon that earlier provision. I suggest, however, that the same arguments do not necessarily apply when someone is facing a custodial sentence for the second, third or whatever time it may be.

My noble friend has suggested that someone who has not been sentenced, as his amendment says, for five years may have some claim for consideration on the grounds that he has not for some time committed an offence leading to imprisonment. I have to say that the present amendment would cover people who had been sentenced to five years in gaol on indictment, had just come out, and immediately reoffended. In other words, the amendment sets out the gap since the last conviction, not the period during which a person has kept out of trouble.

For those two reasons therefore I do not feel able to accept this amendment, but I trust that I have explained the purpose behind the provision and what it is intended to deal with. It is nothing new. It is something which is already in existing legislation. It is a special power given to the court in summary proceedings; otherwise, of course, applications are dealt with by either advice and assistance for certain parts of the proceedings or criminal legal aid.

Lord Wheatley

My Lords, I cannot let this occasion pass without taking advantage of the opportunity of rising to support the Lord Advocate. Surely one of the common situations which arises is when a person has not previously been sentenced to imprisonment or detention. The court cannot proceed to sentence a prisoner forthwith. The case has to be continued to allow various reports to be obtained from the appropriate quarters, such as social inquiry reports, detention centre reports, and things of that nature.

In that situation when a case is continued for the reception of these reports manifestly there is going to be some argument as to the proper form of disposal of the case in the light of the reports. In that situation it is obviously desirable that professional assistance should be available to the accused before the first step of sending him to prison is taken. For that reason this particular subsection, as it stands, is fully justified.

The Earl of Selkirk

My Lords, I must admit that I am not overwhelmed by the force of the noble and learned Lord's argument here. What he is saying is that a person who has been to prison at any time in his life is not entitled in these circumstances to legal aid, except, as I read it, in exceptional circumstances. It is rather hard, and it is wrong, to say 20 years later to a man who may have recovered his character from when he was quite a young man in Borstal, or in any form of detention "Oh, but you were in Borstal, my dear chap. You can't have legal aid". I say that this is unfair.

The noble and learned Lord used an unfortunate expression. He said, "consequential on the previous Act". No Act is consequential on the previous Act. We are reforming the Act now, and we should not be bound by the words a previous Act has put forward. I shall not press this amendment. It is unfortunate that the noble and learned Lord cannot look at it from a wider point of view, but I leave it at that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 26:

Page 16, line 4, at end insert ("or ("( ) where the court is satisfied that having regard to the interests of witnesses, of the court, of the accused or for any other reason it is appropriate that the accused person should be represented").

The noble Lord said: My Lords, the purpose of this amendment is to give the court a power in certain cases at least to offer legal aid to the accused. Of course I realise that the accused, if he insists on doing so, can always go through any form of proceedings unrepresented. But there are cases where the accused has put his head in the sand and never thought to get legal advice, or where he is willing to accept advice from the sheriff to accept legal advice, especially where, for example, there are child witnesses and the court is anxious that the accused should not cross-examine them.

There are many cases where it may seem appropriate to the court that there should be legal aid, and this amendment is just to give a power to the court in that type of case to award it if the accused asks for it. I beg to move.

Lord Cameron of Lochbroom

My Lords, I think it right to remind your Lordships, as I stated when this matter was debated in Committee, that we consulted the sheriffs, among others, about the desirability of including such reserve power and they made quite clear that they would not welcome it.

Perhaps I may take two situations. First, there is the situation where a person has already applied for but has been refused criminal legal aid. There is no reason why such a person, if he considers that during the course of a trial something has come up which makes it possible for him to consider a further application for legal aid, should not be entitled to ask for an adjournment under our summary criminal procedure. I have no doubt, if it were for the purpose of asking for legal aid in the new situation that has arisen, that that is something which the court would take account of in deciding whether to grant or refuse that. In the case where he has not already sought legal aid, again, he is entitled to put that consideration before the court.

I deal with summary cases because I think this was, as the noble Lord opposite indicated in Committee, the area where there was concern. I should remind your Lordships that the Government have now agreed to specify factors concerning interests of justice on the face of the Bill. At this stage I cannot give details of those factors, but they may cover, as in the present non-statutory guidelines, cases where the accused cannot follow the proceedings or where legal representation is desirable in the interests of someone other than the accused. That would cover the kinds of examples which the noble Lord has in mind and which he stated previously in Committee in the case of the cross-examination of children as witnesses. The board would take such considerations into account in any event upon an application made to it. This was a matter upon which we consulted. There will already be a provision within the Bill which will allow the accused making use of criminal procedure to seek an adjournment to return to place an application before the board. In those circumstances I cannot accept the amendment, though I fully understand the purpose for which it is put forward.

Lord Morton of Shuna

My Lords, in those circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Clause 24 [Legal aid in summary proceedings]:

Lord Cameron of Lochbroom moved Amendment No. 28: Page 16, line 21, leave out ("to section 21(3) of this Act").

The noble and learned Lord said: My Lords, the Amendment to Clause 24 is consequential on the deletion of Clause 21(3) in Committee. I should perhaps say that this deletion causes some difficulty to us in that there is no longer any provision on the face of the Bill making clear which summary criminal proceedings for persons not in custody will be covered by criminal legal aid and which by assistance by way of representation. It may be practicable to achieve the desired changes through regulations under Clause 21(2), but it is fair to say that the House has previously expressed the view that the scope of legal aid should be made clear on the face of the Bill whenever possible. However, we shall clearly need to take time to reconsider the position in the light of your Lordships' views, and any amendment which we conclude may be desirable will require to be made in another place. I beg to move.

On Question, amendment agreed to.

[Amendment No. 29 not moved.]

9.30 p.m.

Lord Morton of Shuna moved Amendment No. 30:

Page 16, line 40, at end insert— ("( ) The Board shall provide a method of appeal against the refusal by the Board of Criminal Legal Aid under this section.").

The noble Lord said: My Lords, this is an amendment to provide that there should be a method of appeal against the refusal by the board of criminal legal aid. On the position as regards appeals against refusal of civil legal aid or legal advice and assistance, I understand that I may have overstated the position of the noble and learned Lord the Lord Advocate earlier today. If so, I apologise.

The position about criminal legal aid in my submission is that it is absolutely essential, if there is the new system whereby somehow the board is going to be dealing with about 20,000 a year of criminal legal aid applications, that there should be some method of review or appeal available for people who are dissatisfied with the decision. I understand that there has been recent consultation between the Home and Health Department and the Central Legal Aid Committee and that this matter came up.

I am informed that the Home and Health Department view was that no right of appeal against refusal of criminal legal aid was necessary because civil legal aid would be available for judicial review of a refusal of criminal legal aid. That seems to me to be a quite extraordinary proceeding because it would be far more costly and absolutely absurd that the civil courts should be confused by having a series of applications for judicial review against refusal of criminal legal aid, when it would take far longer than to have some fairly simple procedure whereby another committee of the board could review decisions where the legal aid had been refused.

It would seem to be all the more necessary that there should be some method of review or appeal in the new procedure as opposed to the old one where the sheriffs and the district judges were granting or refusing legal aid. At least there one knew who was doing it. One of the reasons for the change is that there were inconsistencies between the approaches of different sheriffs. Now there is nothing to cover the possibility of inconsistencies between different persons because it is obviously quite impossible that the one person will decide all the applications for criminal legal aid. The mere fact that a standard is laid down and that factors are laid down in the Act does not mean that there will not be inconsistencies. In my submission, it is absolutely essential that there should be some method of review of a refusal of criminal legal aid. I beg to move.

Lord Elwyn-Jones

My Lords, I am not sure whether or not I am right. In the procedure for England and Wales there is a specific provision for appeal against refusal of criminal legal aid. I think that it is expressly provided for. I cannot lay hands on the relevant section but I do not think I am wrong. Why should not those in Scotland have the benefit of what the good people of England and Wales can enjoy?

Lord Wheatley

My Lords, when the noble learned Lord the Lord Advocate is considering this question as to whether or not there should be some form of appeal, since we are now dealing with summary causes will he bear in mind the point that I made at an earlier stage in the proceedings that, if the applicant is on bail at the time, then he has to be brought to trial within 40 days under our procedure? Therefore, the need for a speedy form of appeal becomes paramount.

Lord Cameron of Lochbroom

My Lords, before dealing with the particular arguments which have been presented by noble Lords, may I thank the noble Lord opposite for his point that he may have misrepresented the understanding between himself and myself as regards his amendment, which was directed towards providing for a method of appeal in relation to advice and assistance. I think I would wish just to make it clear that I promised to consult colleagues about the views expressed by the noble Lord. I have done so, and they are considering the situation in the light of the Committee's views. I can give no further commitment on the matter other than that.

I should like to say that the noble Lord spoke of certain discussions having taken place involving officials of the Scottish Home and Health Department and another body. If that was the understanding of one party, it was certainly not the intention that that should have been said or have been understood in relation to criminal legal aid. I can say no more than that.

May I just come to the arguments which in a sense I have already presented in more detail in Committee? There is in Scotland no right of appeal or review in criminal cases at present and indeed, so far as solemn procedure is concerned, the Bill makes no change whatsoever in the present position for the consideration of applications. That will be done by the courts on the basis of undue financial hardship criteria.

So far as summary cases are concerned, these will be dealt with by the board for criminal legal aid. I hasten to say that the Government have every confidence in the ability of the board properly to carry out its functions in this regard. The Government are convinced that by setting up a central body to deal with these applications, first, a much greater degree of consistency in their treatment will be brought about and therefore the case for the right of appeal or review is weakened. Secondly, the bodies we consulted made it very clear that the new criminal legal aid system should not lead to delays in the conduct of court business. That point was reinforced by what the noble and learned Lord, Lord Wheatley, has already said.

It has been represented to us, and I fully accept it, that any delay engendered by the new system would be extremely undesirable, particularly in the light of recent successful efforts to reduce delays in criminal cases and, more particularly, in the kind of case to which the noble and learned Lord referred—the summary case where the accused is remanded in custody and there is a time limit of 40 days. The noble and learned Lord reminded us of that.

I share that sense of priorities and it is against that background that I hold to the view which I have already expressed, that the establishment of an appeals system in criminal causes would do more harm than good by causing delay. This would have to be a system in which there was a proper review. Time would have to be given for the applicant to prepare and state reasons challenging the original decision and bringing forward any fresh evidence. What we are going to have is a board which will be able to give guidance to those who will reach a view on applications. In these circumstances, I regret to say that I cannot accept this amendment.

Lord Morton of Shuna

My Lords, I regret that I misled the House in saying that there were about 20,000 applications in 1983. There were 62,156 applications for summary criminal legal aid, of which 55,000 were granted. That would leave about 7,000 not granted, of which only some would go to an appeal.

As I pointed out in Committee, the legal aid authorities have applied to the department regarding a method of appealing so that any appeal would be dealt with within a very short time—within a week. They have not been—

Lord Cameron of Lochbroom

My Lords, will the noble Lord permit me just to put a point to him? He referred to the legal aid authorities. The only scheme which I have heard of is one to which the noble Lord referred in Committee. I wonder whether that is the scheme to which he is referring, because if so, that was an outline scheme which was submitted on a personal basis and did not represent any official view whatsoever.

Lord Morton of Shuna

My Lords, I am sorry; it was outlined by the Secretary of the legal aid committees. It has not apparently been considered at all by the Home and Health Department. If appeals can be dealt with within a week, there is no reason to refuse any right of an appeal. If in England it is appropriate that there should be a right of appeal against refusal of legal aid in criminal matters, there is no reason why there should not be the right in Scotland.

I shall withdraw the amendment now because it would not be an appropriate time to seek the opinion of the House, but I may come back to it at a later stage.

Amendment, by leave, withdrawn.

Clause 25 [Legal aid in appeals]:

Lord Cameron of Lochbroom moved Amendment No. 31: Page 17, line 24, after ("with") insert ("(a)").

The noble and learned Lord said: My Lords, with permission I shall speak to this amendment and to another amendment standing in my name as well as one in the name of the noble Lord opposite. When the noble Lord moved his new clause in Committee I undertook to consider his remarks and if possible bring forward a clarifying amendment at a later stage. I now move this amendment in order to make clear, for the avoidance of doubt, the references by the Secretary of State to the High Court covered by the provisions of Clause 25. I am referring to Amendments Nos. 31 and 33.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 32: Page 17, line 26, after ("otherwise") insert ("and to all appeals by way of Bill of Suspension or Advocation.")

The noble Lord said: My Lords, I am not quite certain about the position here. Perhaps the noble and learned Lord the Lord Advocate can indicate whether this is an amendment that he accepts or whether it is covered by the assurance he has already given. I beg to move.

Lord Cameron of Lochbroom

It is covered.

Lord Morton of Shuna

I understand that what I have in mind is already covered. In that circumstance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 33:

Page 17, line 26, at end insert ("; or (b) a reference by the Secretary of State under section 263 of the Criminal Procedure (Scotland) Act 1975.").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna

had given notice of his intention to move Amendment No. 34:

After Clause 25, insert the following new clause:

("Legal Aid in High Court.

.—(1) Where the Secretary of State has exercised his powers under section 263 of the Criminal Procedure (Scotland) Act 1975 to refer the case of a person to the High Court of Justiciary, such a person shall be entitled to criminal legal aid in terms of this Act.

(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the Board, which shall grant his application forthwith without regard to his resources or to any other criteria.").

The noble Lord said: My Lords, this point has already been covered by Amendment No. 33 and therefore I do not intend to move this amendment.

[Amendment No. 34 not moved.]

9.45 p.m.

Lord Morton of Shuna moved Amendment No 35:

After Clause 25, insert the following new clause:

("Prosecution under 1975 Act.

.—(1) In all cases in which the High Court of Justiciary authorises a new prosecution of a person under the provisions of sections 255 or 452B of the Criminal Procedure (Scotland) Act 1975, and such a prosecution is instituted against him, that person shall be entitled to criminal legal aid in terms of this Act.

(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the court in which such a prosecution is instituted, and the court shall grant his application forthwith without regard to his resources or to any other criteria.").

The noble Lord said: My Lords, this amendment covers a case where the appeal court authorises a new prosecution. One would expect that in these rare cases where something has gone wrong in the court procedure rather than on either side if the person previously had legal aid, he would get it again. But this is also intended to apply where a person previously did not have legal aid and should get legal aid because he is being tried twice in a situation where the second trial is not his fault. I beg to move.

Lord Cameron of Lochbroom

My Lords, I have given further consideration to this matter since the debate in Committee, when I did not respond to the point that is now being made—that there should be an automatic grant of legal aid to someone who had originally funded his own defence and who, after a successful appeal, is subject to a retrial. The Government would wish to give further consideration to this matter, and, if they were to accept it, to the wording of any provision which would give effect to their consideration. It would obviously be more convenient if any such provision were to be included in an existing clause so that it attracted other relevant provisions rather than in a new separate clause.

While I can give no undertaking at this stage that this matter can be dealt with in any further proceedings in this House, I hope that with that assurance the noble Lord will not press the amendment.

Lord Morton of Shuna

My Lords, certainly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 36:

After Clause 25, insert the following new clause:

("Accused person's right.

. Where a doubt arises whether criminal legal aid should be made available to an accused person the doubt shall be resolved in that person's favour.")

The noble Lord said: My Lords, this amendment is moved with the hope of bringing the criminal legal aid provisions in Scotland into line with those in England. The amendment is identical to what is provided in Section 29(6) of the Legal Aid Act 1974. If that provision is appropriate in England, it is difficult to see why it is not appropriate in Scotland. I beg to move.

Lord Cameron of Lochbroom

My Lords, in the first place, as the noble Lord prayed in aid England as the reason for his amendment—

Lord Elwyn-Jones

And Wales, my Lords.

Lord Cameron of Lochbroom

And Wales, indeed, as I am properly reminded by the noble and learned Lord—it is right to remind the House that the tests for the provision of criminal legal aid in England and Wales are slightly different.

I understand that it is granted when it first appears to the court to be desirable to do so in the interests of justice. Your Lordships will observe the test: Where it appears to the court desirable to do so"; and, secondly, the provision is: A court shall not make a legal aid order … unless it appears to the court that his"— that is, the applicant's— means are such that he requires assistance in meeting the costs which he may incur for that purpose. That differs from the tests contained in the Bill, which provides that the board is "to be satisfied". That is a clear test. It is included in Clause 24. That has been the basis upon which, in the past, the courts have operated. They have not had the "benefit of the doubt" provision. I suggest that the "benefit of the doubt" provision is unnecessary in a case where the tests are as clear as they are stated here.

The court or the board must be satisfied that certain criteria are met. It seems right that the applicant should be obliged to produce the relevant material upon which the court or the board, as the case may be, can base a proper judgment. It seems therefore reasonable that where a person is seeking the benefit of legal aid the onus should be on him to justify his application. When the case comes to court, it is for the Crown authorities to prove that the prosecution is justified.

With respect to the noble Lord, I do not think that the taking of a particular provision out of a general corpus of legal aid legislation, which is differently stated and which includes a different test, is appropriate. For that reason I must ask your Lordships not to accept the amendment.

Lord Wheatley

My Lords, the noble and learned Lord referred to the test that is applied to the good people of England and Wales. As a matter of clarity, will he explain what the test is for the bad people of England and Wales?

Lord Morton of Shuna

My Lords, it may be that the provision in Scotland is more definite, in the sense that the board has to be satisfied. But in any situation where you have something like 60,000 applications a year, you will naturally have cases which are on the borderline of being satisfied or not being satisfied. That must happen in any real situation. All I am suggesting is that where there is a doubt as to whether the board is or is not satisfied by the evidence or the factors produced to it, that doubt has to be decided in the accused person's favour. It is a fairly reasonable provision; it is a provision that does not appear to have caused any difficulty in England or Wales, and the provisions, though different, are as precise. At this stage of the evening, I beg leave to withdraw the amendment, while not promising not to return to it at a later stage.

Amendment, by leave, withdrawn.

Clause 29 [Legal aid in certain proceedings relating to children]:

Lord Cameron of Lochbroom moved Amendment No. 37: Page 20, line 4, leave out ("neccessary").

The noble and learned Lord said: My Lords, this is a drafting amendment. The equivalent provision in the 1967 Act has the word "necessary", but its inclusion in the Bill when compared with the analogous interests of justice tests for summary criminal legal aid and contempt of court proceedings does not add anything and might seem to imply a stricter test than in either of those cases. That is not the intention and therefore the word is better deleted. I beg to move.

On Question, amendment agreed to.

Clause 31 [Solicitors and counsel]:

Lord Elwyn-Jones moved Amendment No. 38: Page 22, line 34, leave out subsection (8).

The noble and learned Lord said: My Lords, it may be convenient to discuss together Amendments Nos. 38 and 39. Clauses 31 to 33 relate to the availability of solicitors and counsel in the legal aid scheme. Clause 31(1) reads splendidly and states: Subject to section 30(2) of this Act and to regulations made under subsection (9) below, a person to whom legal aid or advice and assistance is made available may select—

1. (a) the solicitor to advise or act for him; and
2. (b) if the case requires counsel, his counsel and he shall be entitled to make the selection himself."

But, behold!, there are major intrusions on that statement of principle and practice which ought to be common to the administration of legal aid. The basic aim should be, so far as it is practical to do so, to put the assisted person in the same position in regard to freedom of choice of a solicitor or counsel as the person able to pay for his legal representation.

In the Bill, there are two limitations. First, there is the limitation in Clause 30(2), which I find a somewhat obscure provision. It reads: In making legal aid available under subsection (1) above, the court may order it any case that the legal aid shall consist of representation by counsel only or, in a court where solicitors have a right of audience, by a solicitor only; and then come the words, and, notwithstanding section 31 of this Act, the court may assign for the purpose any counsel or solicitor who is within the precincts of the court at the time when the order is made. Is this a reversion to the old procedure that we had in England and Wales of praying a tales? Does the applicant have to apply and is it then like the old days at the Old Bailey? You put a rope round the bottom of the road and haul them in—certainly to form a jury—if you are praying a tales? What is this curious procedure that any counsel or solicitor who is within the precincts when the order is made is for it and may be brought to the scene of justice? Has the accused person no voice at all in this matter? I may be reading it quite wrongly, and, if I am, perhaps I may be enlightened upon it.

I come now to the manifestly and clearly objectionable limitation on the principle that Clause 31(1) seems to enunciate. Subsection (8) states: The Board may arrange that, in such circumstances as it may specify, a solicitor shall be available for the purposes of providing legal aid or advice and assistance". What circumstances? What is contemplated there? What are the exceptions? What are the limitations?

Then we come to subsection (9): Where a solicitor is available as is mentioned in subsection (8), the Secretary of Slate may, by regulations … provide that— (a) subsection (1) above"— the freedom of choice provision— shall not apply; and (b) legal aid or … advice and assistance"— it covers the civil and the criminal field— shall be provided only by the solicitor so made available". Is this the setting up of a new creation of duty solicitor? What is contemplated in this machinery? Will the accused person have any choice as to who is to represent him? What area of choice is available to the board? I find his extremely obscure and disturbing and I hope that we may have a satisfactory explanation. Better still, I hope that some of these obscure and obnoxious provisions will be dropped with a bang; if not a bang at least with a whimper.

Lord Wheatley

My Lords, I wonder whether this is an extension of the duty solicitor system that we have at the present time. Will the noble and learned Lord bear in mind—I am sure that he will—the unsatisfactory reports one gets from accused persons about having a duty solicitor foisted upon them two or three minutes before they are due to go into court, with a very unsatisfactory time for the consultation? If that is so, under these proposals will steps be taken to ensure that a more satisfactory system will be in operation so that in effect the accused person will have exactly the same advantage as a person who is instructing his own solicitor and counsel?

Lord Mishcon

My Lords, perhaps I may intervene in order to support this amendment, and I do it very briefly on the following grounds. I hope that the noble and learned Lord the Lord Advocate will not reply that this is meant to cover the necessity for a duty solicitor scheme. If that were so I would ask him to amend this clause so as to specify precisely the circumstances—I believe that this was the point being made by my noble and learned friend Lord Elwyn-Jones—in which the Secretary of State has this very extraordinary, and it may be quite pernicious, right.

One can envisage certainly in civil proceedings that there could be proceedings against the Secretary of State. There could be proceedings against another Minister. Is it suggested that by regulation, certainly within the purview of the powers contained in this clause as is stands, there could be a provision that a certain solicitor and a certain counsel would be assigned to that case with no right whatever to the assisted person to choose his own solicitor or counsel? I repeat that there must be no vagueness here. If it is intended to include a perfectly harmless right, that right must be spelt out.

I add as a second and final reason for concern that we may, certainly in criminal cases, be breaching the European Convention on Human Rights. For the purpose at least of completing the argument, perhaps I may be allowed to quote Article 6.3 of that convention: Every one charged with a criminal offence has the following minimum rights: 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 interests of justice so require it". I hope that the noble and learned Lord will regard this as a very serious matter, certainly in regard to making abundantly clear what is intended.

10 p.m.

Lord Cameron of Lochbroom

My Lords, I am grateful to those who have spoken. I shall deal first with a point that may be regarded as being wide of the mark in some sense, but it was raised by the noble and learned Lord, Lord Elwyn-Jones, and concerns Clause 30. That deals with contempt of court, which can be dealt with summarily by a court. That being so, that gives content to subsection (2). Indeed, I believe I am correct in saying that it was introduced as a result of the Contempt of Court Act 1981.

The amendments are directed to subsections that rehearse in somewhat different form much more general powers that are to be found in a section of the 1967 Act, which was added to by the Administration of Justice Act 1977. That provided that where, in pursuance of arrangements made by the Law Society in accordance with any scheme at the time being in force, a solicitor is available in any court for the special purpose of giving legal aid in connection with the criminal proceedings in that court, the scheme may specify proceedings in which an accused person shall not be entitled to legal aid in that court otherwise than by representation by that solicitor; that is to say, as has been mentioned already, the duty solicitor scheme.

Clause 31(8) will therefore be used to allow the board to continue the duty solicitor arrangements. While I have taken note of what has been said by the noble and learned Lord, Lord Wheatley, which is certainly a matter that would be of interest to the new board, I imagine that it is the intention that the duty solicitor system will remain.

As the House will already be aware, we intend that those accused who are in custody, whether it be under summary or solemn procedure, should have access to a duty solicitor for preliminary proceedings. That is not unreasonable and it avoids unnecessary duplication of effort to restrict the provision of legal aid for such proceedings to the duty solicitor. That does not prevent an accused from having a different solicitor providing legal aid in subsequent proceedings, though accused may and often do choose to continue to use the same solicitor.

My understanding is that representatives of the Central Legal Aid Committee indicated during the course of consultations that they were prepared to accept such a restriction for the first appearance of an accused. Therefore, the provisions are not designed to restrict the client's choice of solicitor arbitrarily but simply provide for the continuation and support (and that is the second subsection) of the duty solicitor arrangement.

I have paid attention to what has been said, in particular by the noble Lord, Lord Mishcon, about this matter. Obviously we shall have to look at these provisions. They are not included with any sinister intent, and I trust I have made that clear.

I shall also consider what the noble Lord said about the European Convention on Human Rights; although I think I am right in saying—I am open to correction—that in fact it does not require that an accused who wishes legal assistance has the right to a solicitor or counsel of his own choosing. I think it merely provides that he shall have legal representation. That is a small point; and on the more general point I assure noble Lords that the clear purpose is to continue the duty solicitor arrangements if the board is of that mind.

Lord Mishcon

My Lords, before the noble and learned Lord sits down, one observed how great was his care to limit the matter to schemes. He likened the scheme that obtains in England and Wales with the Law Society. Of course, that is a definite scheme, agreed with the Law Society. There is no such reference in this Bill to any scheme. It is unlimited, and while one obviously trusts the intentions of the noble and learned Lord we are dealing—and this is a general phrase so often uttered—with an Act of Parliament and not with the noble and learned Lord's good intentions.

Therefore, may one take it that the noble and learned Lord is going to look at this again with a view to seeing whether particular words can be used to make this power very clearly expressed, with its limitation very clearly expressed?

Lord Cameron of Lochbroom

My Lords, I think I can do no more than simply say that I have fully understood the points which the noble Lord opposite has made. I will certainly bring those points to the attention of those who are particularly concerned to see that these words fully express the intention of the Bill.

Lord Elwyn-Jones

My Lords, I, too, am grateful for that intimation. I repeat that as the words stand they give no clue as to what is in mind—which is potentially beneficial to the accused person, oddly enough, but which sounds exactly the opposite. Therefore, I hope that the matter will be clarified before the next stage of the Bill is reached; otherwise, we shall have to take appropriate steps to have the issue re-opened.

Lord Cameron of Lochbroom

My Lords, before the noble and learned Lord sits down I should make quite clear that what I said did not suggest I would be in a position to come forward with any clarification before the next stage. but I certainly undertake that I shall bring the matter to the attention of my colleagues.

Lord Elwyn-Jones

My Lords, perhaps we shall be informed at the next stage of what the noble and learned Lord is going to do. At the moment he has left us in hopeful darkness, almost as dark as the darkness which fell upon us when that sinister red curtain was drawn across the visual scene. It is not good enough to leave the matter at that, but in the circumstances and at this time I shall reserve whatever fire-power is still left with us. However, I hope the matter will be put right because, seriously, as it stands it is a nonsense. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Lord Wilson of Langside moved Amendment No. 40:

Page 23, line 4, at end insert ("; (c) in relation either to a solicitor or an advocate, the Board").

The noble and learned Lord said: My Lords, I feel that I should start with the words of that great television art form by saying, "Now for something entirely different". If accepted, this amendment would confer on the Legal Aid Board the disciplinary powers at present enjoyed by the Law Society of Scotland and the Faculty of Advocates over members of both branches of the profession acting under the legal aid scheme. If the Bill is enacted, these powers will continue to be enjoyed by those two bodies.

There is a widespread feeling among the public that the Law Society of Scotland and the Faculty of Advocates, in exercising these disciplinary powers, have been perhaps less ruthless than many of the public feel that they ought to have been. This is a feeling that, with my experience in the field, I share, as also, apparently, does the Scottish Consumer Council, which supports the amendment. As it is so late—this matter opens up a wide area of discussion—I cannot perhaps do better than to quote from part of a briefing that many of your Lordships, I imagine, have received. The council says: We believe that it is in the public interest that the new Board should have a similar power". That is the power to suspend, temporarily or otherwise, subject always to a right of appeal to the Court of Session, any member of the profession who is guilty of a certain degree of misconduct in the discharge of his duties under the legal aid scheme. It goes on to say: The present Bill leaves the power of exclusion to the professional organisations, the Law Society and the Faculty of Advocates. This is not sufficient. There may be cases where a practitioner has not broken any professional rules of conduct which would concern the Society or the Faculty but where he has not acted properly in relation to the Board, for example, by consistently overcharging or dragging cases out. It is not likely —and the council acknowledges this— that the Board would need to use this power often". Indeed, it says—and so far as I can discover this is correct—that the powers have never been used. I must say that from my experience in the field I find this extraordinary. The council goes on to say: However, the existence of the power will give the Board more authority in dealing with practitioners who overstep the mark".

I can understand the Government refusing to accept the amendment as I put it down at Committee stage. I have more difficulty in understanding the reaction to that amendment of the noble Lord, Lord Morton of Shuna, who dismissed it as inept and, in effect, as I understood it, as irrelevant, the implication being that there is not a problem. But there is a problem. This may not be the best answer. It is not an insult to the solicitors' profession. There has been reference already today to the fact that all individuals, groups and organisations have, in effect, their blind spots. This, in the view of many of us, is a blind spot in these professional organisations. They have not been sufficiently ruthless in insisting on high standards.

One saw, sitting particularly on the Bench in the summary criminal court, many instances that should have been caught up. Let me give one illustration. I could go on all night but, fear not, I will not. It was not unusual, at the end of a lengthy and disruptive summary criminal trial of more or less seriousness, to discover that the accused had instructed his solicitor to plead guilty. The solicitor had declined to do so. I hope that the noble Lord, Lord Morton, will not lecture me about this. I am perfectly conscious that one had often enough to advise clients that they should not plead guilty, for a variety of reasons. On the Bench in the summary court one had often enough to advise men who expressed a desire to plead guilty that they should not plead guilty.

10.15 p.m.

I shall not detain your Lordships with the reasons for that. I am perfectly conscious of this. I am talking about the not unusual case where a solicitor has in effect persuaded his client, against his own better judgment, to go to trial. I have never yet found a case where, when this was uncovered, the solicitor's legal aid certificate was discharged and he did not get his fee. I should have thought that any lawyer who did this kind of thing was not entitled to his fee from the public purse.

This is not a generalised attack on solicitors, but it happened often enough to make it a problem. I myself found the greatest difficulty with the Law Society in Scotland, whether I was on the Bench dealing with these matters or as a Law Officer; and during the consultations on this Bill I found the greatest difficulty in impressing them with the need to take action in this field.

After all, on the Labour Benches they are not normally loath to control other groups and to urge Government and statutory bodies to tell people how to behave or how to conduct their own affairs; but when one suggests that in this area the legal organisation—admirable people who perform a great job in other areas—has a small blind spot about which, from the public interest point of view, it is immensely important that something should be done, then I get a little worried and depressed. If the noble and leared Lord the Lord Advocate could have said, as the noble Lord, Lord Morton, said, that he would encourage his colleagues to see the need for a more ruthless approach to the problem of the small number of black sheep, I should be happy about this.

In the meantime, people have been in correspondence with me who have expressed extreme concern about this. They included not only Scottish counsel but two of the lay members of the legal aid central committee, whose approach to me has been most impressive. They have expressed great concern. If the noble and learned Lord the Lord Advocate and others in the profession would bring home to the professional organisations the need for action in this field, that would be progress. It would be better than nothing.

I propose to return to this at Third Reading, not because I think that the profession is in a bad state but because I think that it is a little too complacent about matters which worry the layman involved with the law in the courts and elsewhere. I shall return to this and give many illustrations because the approach of the noble Lord, Lord Morton, in this matter has been to suggest that there is not a problem and that the suggestions of abuse and all these matters are imaginings of reactionary politicians and others with a special interest. That is not so. I shall return to the matter and have more to say upon it because we have the opportunity with this Bill to get to grips with the problem. I beg to move.

Lord Morton of Shuna

My Lords, I seem to have been mentioned a great deal. I looked up what I said in Committee and found that it seemed to take up rather less than a full column, and only about five lines dealt with abuses.

I oppose the amendment because it seems to me to be misconceived. There are undoubtedly black sheep in every profession, and if I suggested that that were not so I apologise to your Lordships for misleading you. However, if one has a situation of overcharging, the only way in which it can be dealt with is by the auditor of court. The legal aid committee has taken a very considerable number of cases of overcharging to the auditor of court and it has been successful in some cases and unsuccessful in others.

However, there is available a method of dealing with overcharging. Dragging cases out is primarily a case for the sheriff or judge hearing the case. It is very difficult for a legal aid board which, by its constitution, is non-legal, and deliberately non-legal, to be able to work out whether somebody is abusing the legal aid scheme by dragging out a case. The only way in which that could be dealt with would be by a report from the judge.

To insist on a plea of not guilty when the client wishes to plead guilty is, I should have thought, the most obvious professional misconduct, and either the Faculty of Advocates or the Law Society would deal with it very strictly indeed if it were brought to their attention. The difficulty in cases of that type, as I am sure the noble and learned Lord, Lord Wilson of Langside, is aware, is to prove it, if it happens. It is one thing to have somebody who may have previous convictions saying after a trial, "Oh, but I always wanted to plead guilty", because you then have to put that against the solicitor who says, "He insisted on pleading not guilty". Where is your proof?

I know that there have been consistent rumours that there are certain solicitors who insist on a fee in addition to the legal aid fee. Such rumours have always been investigated with great thoroughness by the prosecution authorities when any suggestion has been made to them, but so far as I am aware there has never been any satisfactory amount of evidence. It appears to me that this is a misconceived amendment, and that it is proper that if the board considers that there has been misconduct either by an advocate or by a solicitor, it is the professional discipline of those bodies that should deal with the matter. Therefore, I oppose the amendment.

The Earl of Selkirk

My Lords, I should put on record that the Law Society has a complaints committee, of which a distinguished layman is chairman.

Lord Cameron of Lochbroom

My Lords, we have covered this ground in Committee, but I have since seen the comments of the central committee lay members to which the noble and learned Lord, Lord Wilson of Langside, referred. I obviously accept the points which were made there, that the scope of paragraphs (a) and (b) of subsection (3) may go wider than professional misconduct itself. Indeed, there is force in the argument that the board which pays the piper should at least to some extent call the tune.

However, I recognise that the noble and learned Lord has already appreciated that there will be considerable difficulty in seeking to separate out professional misconduct, with which professional bodies should appropriately deal, from the other elements. It would not be reasonable—indeed, it would lead to practical difficulties—if we had both the board and the professional body having precisely the same powers. On balance it is preferable, therefore, since professional conduct is in question, that the responsibility should rest with the professional body which deals with disciplinary questions.

I have already referred to my confidence in the will and capacity of both sides of the profession in Scotland to give effect to the intention of this part of the framework of legal aid. It is an essential part of the framework; essential for the proper administration of legal aid in Scotland. I shall have no hesitation in drawing the remarks of the noble and learned Lord again to each body.

I accept the point that, while the present powers have seldom been used, I understand that the Law Society are themselves giving careful consideration to their possible exercise in appropriate cases in future. There are of course other ways in which the board can deal with the kind of problems to which the noble and learned Lord made reference in his quotation from the comments he had received, and those have been referred to already by the noble and learned Lord, Lord Morton. I suggest that the provision in the Bill is, on balance, the best one, and therefore I regret that I cannot accept the amendment.

Lord Wilson of Langside

My Lords, I am grateful to the Lord Advocate for his response to this matter, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Restriction on payment and employment of solicitor or counsel]:

Lord Cameron of Lochbroom moved Amendments Nos. 41 to 43:

Page 23, line 10, leave out ("a person is in receipt of legal aid") and insert ("legal aid is available to a person").

Page 23, line 14, after ("of") insert ("any advice given or anything done in connection with").

Page 23, line 14, after ("proceedings") insert ("during any period when legal aid was so available").

The noble and learned Lord said: My Lords, with the leave of the House I beg to move Amendments 41, 42 and 43 en bloc. In Committee I undertook to look again at the wording of Clause 32. It is not our intention to prevent payment to a solicitor for work which has been carried out either before an application for legal aid has been made or after legal aid has been withdrawn. These amendments are designed to put this intention beyond doubt on the face of the Bill. I beg to move.

On Question, amendments agreed to.

Clause 33 [Fees and outlays of solicitors and counsel]:

Lord Morton of Shuna moved Amendment No. 44: Page 24, line 5, at end insert ("and in making regulations under this section as to the amounts payable to counsel or a solicitor who acts for any person by providing legal aid or advice and assistance under this Act, and any person by whom any such amount falls to be assessed, taxed or reviewed under the regulations, the Secretary of State shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done.")

The noble Lord said: My Lords, this amendment just provides that in fixing the fees the Secretary of State shall have regard to the principle of allowing fair remuneration for work actually and reasonably done. It is the same provision as in the English and Welsh legislation. No doubt it will be strongly opposed, presumably on the basis that the Government do not wish that there should be fair remuneration.

The present consultation process, if consultation is the word, has the unfortunate effect that one is just told, so I am informed, that a certain percentage is available, and that is that. If fair and reasonable remuneration is the position in England and Wales, why is it not to be allowed in Scotland? Are the Government intending that in Scotland legal aid should become so poorly paid, and so unfairly and unreasonably remunerated, that only second-class lawyers will be prepared to do it? I cannot understand why this amendment should be opposed, and I beg to move.

10.30 p.m.

Lord Cameron of Lochbroom

My Lords, the formula which appears in this clause is one which was enacted as recently as 1983 with general support, as I understand it, from all parties. It is now repeated in this Bill. I suggest that it is a much clearer exposition and one which your Lordships should prefer. Under the present regulations relating to criminal legal aid fees the general principle is that there should be allowed such amount as may be determined in accordance with the regulations to be reasonable remuneration for work actually and reasonably done, due regard being had for economy.

I have heard nothing in what the noble Lord has said which suggested that he was in any way dissatisfied with the terms of the present provisions or of the regulations. I mentioned in Committee that discussions were to start shortly between the Scottish Home and Health Department and the Law Society on a review of the existing fee structures for legal aid advice and assistance. I have to say that the first meeting is to be held next week and during the review consideration will be given to the factors relevant to the determination of fees.

The Government have no wish to change the basic provisions in the Scottish primary legislation. The argument which the noble Lord has advanced does not suggest that there is any reason to be dissatisfied with that which operates at present. For that reason I cannot commend the amendment to the House.

Lord Morton of Shuna

My Lords, this is clearly not the time or place to divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Parliamentary procedure]:

Lord Cameron of Lochbroom moved Amendment No. 45: Page 27, line 20, leave out ("14(3)").

The noble and learned Lord said: My Lords, I have spoken to this amendment. It is consequential to Amendment No. 14, which was agreed earlier.

On Question, amendment agreed to.

The Earl of Selkirk moved Amendment No. 46: Page 27, line 20, after ("17(2)") insert ("17(5)").

The noble Earl said: My Lords, I beg to move that among those regulations of which a draft will be laid before the House will be those under Clause 17(5). That is the subsection to which I have already spoken and which uses phrases that I do not think the noble and learned Lord the Lord Advocate explained or showed as being wholly satisfactory as it stands. On this subsection regulations will be made. The words to which I have drawn attention are: shall be paid, in priority to any other debts". If we are to make a regulation about that, it seems to me that we should know the details in draft form. They bear a close resemblance to the discussions we had on the subject of insolvency, which was always somewhat arguable. Therefore I believe that regulations under Clause 17(5) should be presented to the House in draft form. I beg to move.

Lord Cameron of Lochbroom

My Lords, the regulations under Clause 17(5) are designed to permit the Secretary of State to provide for circumstances in which the expenses of the action are not to be a charge on property which is recovered or preserved. They are a regulating power which is already found in Section 3 of the 1967 Act and which is subject to negative procedure. There is thus this precedent in existing legislation. The power is one to relax, in appropriate circumstances, the normal requirements of Clause 17(5) which would otherwise be more strict than would be proposed in regulations. In those circumstances I am not persuaded that the affirmative procedure would be appropriate. In the light of those considerations I hope that my noble friend will agree to withdraw his amendment.

The Earl of Selkirk

My Lords, this is an extremely small request which I am making. I am completely unconvinced by the manner in which the noble and learned Lord has dismissed it. We are supposed to be reforming the law in regard to legal aid. All we get are quotations from previous Acts which we are not allowed to change. I think this is a power of an extreme nature.

I am concerned about the house a person lives in and the tools of his trade. These are the things that matter and I want to know what will be the regulations about them. We have a better chance of discussing them if they are in draft. It is a very small request. It is one which could be of enormous importance to individuals. I ask the noble and learned Lord to think again hard on this. I will not press it this evening, but I ask him to think very hard because this procedure is not usual. In the Insolvency Bill we had a lot of discussion practically upon these very words. If the noble and learned Lord can say that he will at least think about it, I shall beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 47:

Page 27, line 24, at end insert—

("( ) Where the Secretary of State proposes to make regulations under this Act he shall refer the proposals in the form of draft regulations or otherwise to the Board.

( ) The Board shall consider any proposals referred to it by the Secretary of State under this section and shall make to the Secretary of State a report containing such recommendations with regard to the subject matter of the proposals as they think appropriate.

( ) If after receiving a report from the Board the Secretary of State lays before Parliament any regulations which comprise the whole or any part of the subject matter of the proposals referred to the Board he shall lay with the regulations a copy of the Board's report and a statement showing—

1. (a) the extent (if any) to which he has in framing the regulations given effect to the Board's recommendation, and
2. (b) in so far as effect has not been given to them, his reasons why not.")

The noble Lord said: My Lords, I trust that this amendment will be accepted. The purpose of it is to make sure that in drafting regulations the Secretary of State consults the board and gives the board an opportunity to comment on the proposals and that the report from the board should be laid before Parliament with any draft regulations. It is obviously essential that if the board and the Secretary of State are disagreeing about regulations, Parliament should be told of this and be able to make up its own mind, so to speak. It seems to me to be an essential power to give to allow the board a way of asserting some independence. I beg to move.

The Earl of Selkirk

My Lords, my noble friend knows that from the time this Bill was put before the House it has been heavily criticised for the volume of regulations. They are, in fact, decrees in many cases because they are so difficult to change. I do not want to push this too far but I do not know any Bill which has been so full of regulations to be laid before the House as this has. I do not want to exaggerate this but I was in Germany a little while before Hitler came to power. The parliament was making government by decree. I think that we have got to be very careful about the long-range consequences and the precedent we are setting in this Bill. I know that the professions will be greatly relieved and I know that many people in the House will be, too, if something of this character is accepted, if a larger number of these regulations can be submitted to the board appointed by the Secretary of State specially for this job—a board which is now being bypassed almost universally through this Bill. I have great sympathy with the view of my noble friend Lord Perth that he would not be a member of a board which could be bypassed so extensively by statute.

Lord Wheatley

My Lords, I want to add my voice to the plea that has just been made by the noble Earl, Lord Selkirk. Here is another opportunity, in view of the criticisms that have been levelled about the position of the Secretary of State in relation to the operation of legal aid under this Bill, of removing that big cause of criticism which seems to loom over almost all that is taking place.

Lord Cameron of Lochbroom

My Lords, I think I gave an assurance to my noble friend earlier when this particular point of consultation was raised. I simply repeat what I said then about the generality of that matter. However, I would have to say that this amendment goes further because it deals with the position about laying reports before Parliament. I must say that such a provision would seem likely to give rise to difficulties because the board may well wish to back up its advice and, of course, it now has the power to advise generally with references to confidential matters. Moreover, the amendment is quite general in regard to the reference to regulations.

I cannot accept the amendment so far as it extends to the laying of reports before Parliament in relation to any consultation process. I have, of course, indicated earlier to the House a preparedness to look at what has been said about the consultation process. In the light of that, I would hope that the noble Lord opposite will not press this amendment.

Lord Morton of Shuna

My Lords, I think it is far too late to press an amendment at this stage, and for that reason alone I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [The Scottish Legal Aid Board]:

Lord Morton of Shuna moved Amendment No. 48: Page 33, line 5, leave out ("or is unsuitable to continue as a member").

The noble Lord said: My Lords, I beg to move this amendment. The schedule, in paragraph 5, gives power to the Secretary of State to terminate an appointment of a member of a board in various circumstances. The first is fairly obvious: that he becomes unable to pay his creditors. The second is also fairly obvious: that he is incapacitated by illness. The third is that he does not attend meetings of the board. The next is that he is otherwise unable or unfit to discharge the functions of a member of the board. And then there is the catch-all: or is unsuitable to continue as a member". His unsuitability therefore is not bankruptcy, health, absence or otherwise, or being unable or unfit to discharge the functions. He is perfectly able and perfectly fit, but he is unsuitable. Who decides that he is unsuitable and what decides unsuitability? Is it just that he disagrees with the views of a particular Secretary of State?

It seems to me that nothing shows the lack of independence of the board more than this power (at any time, apparently) that if the Secretary of State is dissatisfied with the views of any member of the board he is able to decide that he or she is unsuitable to continue as a member of the board and can terminate the appointment. These are unnecessary words because the other unsuitabilities are covered by the other provisions. I beg to move.

Lord Cameron of Lochbroom

My Lords, I should have felt more sympathy if the noble Lord opposite had been prepared to say that from his examination of other legislation there was no such provision in schedules of this kind. I observed, however, that he remained silent on that matter. I have to say that this is a standard provision and one which is well precedented. For instance, I can give the noble Lord a reference to paragraph 5 of Schedule 1 to the Highlands and Islands Development (Scotland) Act 1965, which contains a provision which is identical to that in this Bill.

I have already emphasised during an earlier discussion on the Bill that board members will be appointed for their personal qualities. It is reasonable that the Secretary of State should have power to terminate their appointment if they prove unsuitable. The test is an objective one, relating to unsuitability to continue as a member, and the Secretary of State would have to have reasons which, viewed objectively, justified his action.

The paragraph refers to certain other factors which, if they exist, would mean that the Secretary of State may terminate the appointment of a member of the board. But what if there were a conflict of interest? That would not fall within the terms of the other paragraphs, or even of the earlier words in paragraph 5(d). What if his behaviour were inconsistent with membership of the board? What if he had been involved in some type of criminal activity? Obviously in such circumstances it would be inappropriate that an individual should continue as a member of the board, and without these words it would not be open to the Secretary of State to take action to terminate his appointment to the board.

For those reasons, and in the light of those comments, I sincerely hope that the noble Lord will feel able to withdraw his amendment. I assure him that there is again nothing sinister in this phrase, just as I have attempted to assure him earlier that even if he looks under the bed he will see nothing of any substance to concern him, of red or any other colour.

The Earl of Selkirk

My Lords, with great respect, I think that the noble and learned Lord is missing the whole point. He has emphasised that this is an independent board. The Secretary of State by sole fiat says, "Get out; you aren't following my instructions". That is the point. In this particular case it may not apply to East Kilbride or the Highlands boards, but it is the form in which the Secretary of State has complete control over any membership of the board. That I think is the real point of this, and I hope it will not be entirely lost sight of.

Lord Morton of Shuna

My Lords, I thought that Little Red Riding Hood saw granny in the bed and it turned out to be a wolf. It may be that we are all looking at something that the noble and learned Lord the Lord Advocate assures us is a very gentle and uninimical Bill. Perhaps those who have spoken against it are right, and it is a very dangerous Bill. It seems unusual that the only one who cannot see its dangers is the noble and learned Lord the Lord Advocate, because nobody else has spoken up in favour of the Bill. But at this stage I would ask leave to withdraw the amendment.

Amendment, by leave withdrawn.