HL Deb 22 April 1986 vol 473 cc1106-23

5.11 p.m.

Lord Cameron of Lochbroom

My Lords, I have it in command from her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Legal Aid (Scotland) Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purpose of the Bill. I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(Lord Cameron of Lochbroom.)

On Question, Bill read a third time.

Clause 1 [The Scottish Legal Aid Board]:

Lord Morton of Shuna moved Amendment No. 1: Page 2, line 11, at end insert ("and shall consult with organisations representative of such interests before making appointments").

The noble Lord said: My Lords, this amendment is yet another attempt to give the appearance of independence to the board. It has been generally recognised that some consultation is essential. The noble and learned Lord the Lord Advocate said that such consultation is taking place at the moment and that the Secretary of State is initiating consultations. I believe that it was the noble and learned Lord, Lord Wilson of Langside, who said that it was inconceivable that such consultation should not take place.

My purpose in tabling this amendment and Amendments Nos. 2 and 3, which go together, is to ensure that the necessity for such consultation is available to be seen by anybody who cares to read the eventual Act. The fact of consultation would therefore be made more public. I beg to move.

Lord Wilson of Langside

My Lords, I have been thinking a little about this matter. When it first came before your Lordships I took what may be described as a technical draftsman's point of view; namely, that such a provision was not necessary and it was not usual to make it. In so far as I have thought about the matter, I have concluded that if there are anxieties one should allay them by inserting such a provision in the Bill. Why not? I am disposed to support the amendment.

Lord Cameron of Lochbroom

My Lords, the noble Lord opposite has spoken to Amendments Nos. 2 and 3 along with Amendment No. 1. Perhaps I should make clear my attitude to Amendment No. 1 first of all, because it appears in a part of the Bill that does not, I suggest, make it easy to add the words that are proposed in Amendment No. 1.

Clause 1 (4) merely sets out the experience that the Secretary of State will look for in appointing persons to be members of the board. Subsection (5), which is the subject of Amendments Nos. 2 and 3, is slightly different. It would be difficult to suggest the organisations that would have to be consulted if Amendment No. 1 were passed. For instance, in such areas as business and finance what organisations are to be looked at? In any case, in that area formal consultation may not be the best way of finding suitable candidates.

At Report stage I indicated that my right honourable and learned friend had already invited a number of bodies to suggest people for possible membership. It seems reasonable that in general he should be able to choose the bodies that he wishes to consult when he is considering the initial appointments to the board and also subsequent appointments, which may not, of course, all be made simultaneously. I believe I have made clear that in so far as subsection (5) is concerned, there was a specialty, because it is aimed at indicating the bodies from which membership of the board should be drawn.

I would be perfectly prepared to accept the principle of the amendments, since they reflect what would be the procedure adopted by the Secretary of State. It is only right to say that I have reservations about the wording of Amendment No. 3 in its reference to the Council of the Law Society. I suggest that the words "Council of should be deleted, because the words "Law Society" appear elsewhere.

Unfortunately, it is not possible to table a manuscript amendment to that effect. However, I shall recommend to my right honourable and learned friend that the necessary amendment both to follow the wording in Amendment No. 2 and that as revised so far as Amendment No. 3 is concerned should be brought forward in another place. That may seem preferable to accepting one amendment and not the other at this stage in the passage of the Bill. If the noble Lord is prepared to accept that arrangement, I shall ask him not to press any of his three amendments.

Lord Morton of Shuna

My Lords, I shall accept the noble and learned Lord's remarks in regard to Amendments Nos. 2 and 3, but I am disappointed that he does not consider it possible at least to consider Amendment No. 1 in theory and the question of where it could be more conveniently made. However, in the confident hope that somebody in another place will read this debate, perhaps it is unnecessary to press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Clause 19 [Expenses out of the Fund]:

Lord Morton of Shuna moved Amendment No. 4: Page 13, line 2, leave out ("those proceedings were instituted by the legally assisted person, and").

The noble Lord said: My Lords, this amendment was overtaken by the noble and learned Lord, Lord Denning, when he proposed a much more radical amendment at Report stage to take out the whole of Clause 19(3)(b). The amendment that I propose is merely intended to give the first instance court the power, if severe hardship would be suffered by the unassisted party, to make an award of expenses.

At present, the court only has power if the proceedings were instituted by the legally aided person. There are many cases where a person who is just over the legal aid limit is forced to sue, perhaps to recover a debt, a house or something of that nature, and thereafter some spurious defence is put forward under legal aid. The unassisted litigant succeeds but cannot recover his costs because he started the proceedings, even if he suffered severe hardship. It is a relatively small but, for the people concerned, very important defect and it is one that could be put right. I beg to move.

Lord Cameron of Lochbroom

My Lords, I have considered this point again in the light of comments made by noble Lords at Report stage. I said then that difficult and hard cases will always arise where one party to the proceedings is legally assisted and the other is not. I must adhere to my original point. There is a continuing need to make the best possible use of the resources available for legal aid and Clause 19(3)(6), which merely restates the existing law as it is on both sides of the Border, makes a proper distinction in allowing the possibilty of a successful non-assisted defender obtaining his expenses from the fund but not an unassisted pursuer; who, in any case, is in a sense in command of the action and may decide at any stage not to take it any further.

It is of course the case that the restriction is not only in any event applied to the expenses of first instance proceedings and not to the expenses of any subsequent appeal. Conversely, I entirely accept that where the board 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 have more power in such cases to order the successful party's expenses to be met out of the fund.

The clause as it stands reflects a policy which has been adopted by successive governments over the years. I regret that I cannot accept the amendment put forward by the noble Lord.

The Earl of Selkirk

My Lords, may I ask my noble and learned friend how exactly he interprets the meaning of paragraph (c)? Paragraph (c) states: 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. How far does my noble and learned friend carry that statement? It sounds to me as if the court has a perfectly free hand to make a decision from which there is no appeal. He says that it is right and just that awards should be made. That seems to cover any situation, whether it is for the pursuer or defender, when the court thinks that legal aid is reasonable and just.

I must also ask whether, in paragraph (b) where the unassisted party suffers severe financial hardship, that means inevitably that he could have received legal aid if he applied for it. That seems to me to be a definition which precisely falls into legal aid. Can my noble and learned friend clarify those two points?

Lord Cameron of Lochbroom

My Lords, with the leave of the House, I shall respond to my noble friend. Clause 19(3)(c) is of course qualified by what appears in Clause 19(3): An order under this section which is defined earlier. As regards paragraph (c), that has to be one of three circumstances which can exist before a court has the power to make an order under the clause. Certainly taking paragraph (c) alone the court is entitled to have regard to all the circumstances in the event that it is empowered under the clause to make an order in the first place. Of course, the words "just and equitable" are the very kind of words which I think the court commonly uses when describing the exercise of its discretion. I hope that explanation satisfies my noble friend.

Lord Morton of Shuna

My Lords, it is clear that under Clause 19(3) an order can be made only after paragraphs (a), (b) and (c) are all qualified. Therefore, the court cannot make an order of expenses in particular unless the conditions in Clause 19(3)(b) are met. It seems to me entirely unjust that the situation exists, but I do not intend to take the matter any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Morton of Shuna moved Amendment No. 5:

Page 14, line 30, after ("may") insert ("after consultation with the Board").

The noble Lord said: My Lords, this amendment was tabled on Report by the noble Earls, Lord Selkirk and Lord Perth. The noble and learned Lord the Lord Advocate said he would consider it and I have tabled the amendment more or less to discover the nature of his consideration, because no amendment has been tabled by the Government side. It is obviously appropriate that the Secretary of State should make regulations of the type defined in Clause 21(2) only after consultation with the board. I beg to move.

Lord Wilson of Langside

My Lords, one would hope that in view of the noble and learned Lord's attitude towards Amendments Nos. 2 and 3 he would think it logical and consistent to accept this amendment, unless I have missed a point.

Lord Cameron of Lochbroom

My Lords, I think I made clear on Report that I would consider what had been said in particular by my noble friend Lord Selkirk on this matter. It is only right to say at this stage that I have invited my right honourable friend to consider whether, and if so how far, there should be provision on the face of the Bill for statutory consultations on regulations.

There are certain problems which have to be looked at. For example, there are certain areas as eligibility limits which are considered on a Great Britain basis where consultation with the board might not be thought to be appropriate. Indeed, there may be cases where one is bringing regulations forward where there have been regulations south of the Border and where the time factor may preclude full consultation. Accordingly, there are difficulties about providing within this clause for consultation with the board in the form suggested. I assure the House that i have brought the matter to the attention of my right honourable friend, as I undertook to do on Report.

The Earl of Selkirk

My Lords, I must say that I find my noble and learned friend's answer very unsatisfactory. I should like to explain why. My noble and learned friend pointed out that it is integral to the Bill that the board be independent. That is to some extent a small step in the Bill to show that it is independent. Without this there is no indication whatever that the board is independent. I should like therefore to ask this question. Let us suppose that the board disagrees with the regulation, is it entitled publicly to say so? If it is not entitled publicly to say so, it is not independent. It is the poodle of the Secretary of State.

Almost every noble Lord who has so far spoken in this House has had the utmost difficulty in accepting my noble and learned friend's word that this is an independent board. If it is not independent—and I must say I cannot see any marked sign of independence—what does it mean? I have to say that the reluctance of the Government to accept any amendments, however reasonable, indicates that the department wishes to have complete control over legal aid.

That is a very big element in the administration of justice and I am bound to say that it is a very dangerous one. The administration of justice is not a matter for the department, it is a matter of an entirely different character. I have found nothing more sinister than my noble and learned friend's reference to such things as the Highland and Islands Board or East Kilbride. These are totally different. They are administrative matters, but the administration of justice is a totally different matter, and it is in this field that the department is seeking to gain substantial control.

I am very disappointed by what my noble and learned friend has said. It is in his interest to make it much clearer that this board is independent. If he does not do this, I am afraid that in Scotland the board will not be regarded as being other than the Secretary of State. That is not what he wants, but I am very sorry to say that that is how it will appear to most people in Scotland.

5.30 p.m.

The Earl of Perth

My Lords, I share with my noble friend Lord Selkirk his disappointment that things are as they are at present. I have just been looking up what took place on Report and the noble and learned Lord, Lord Cameron, said that they had included a clause which would enable the board to have specific power to give advice to the Secretary of State. He went on to say that obviously this advice can include advice on the content of the regulations—not that it will. I am afraid that I have a rather nasty and suspicious mind about this situation in which they can include it but will not necessarily. What is the good of something which just says that we can include it but does not undertake to do it? It is all very well for the Lord Advocate to have said, "I can give an undertaking here and now that my honourable friend will consult the board". We all know that what may be given as a undertaking in this House on behalf of the present Secretary of State has no sort of standing in law.

I do not understand why the Lord Advocate cannot give us something to which on Report he was sympathetic and which really is of first importance if the board is to be worth while. I need hardly repeat what I said at an earlier stage; namely, if I were asked—I am not a legal man—to join this board and knew that I was, to use the words of my noble friend Lord Selkirk, potentially just a poodle, I would not join. This is really a matter of great importance and I hope that we can have a more definite indication of the Government being ready to include this amendment, or something similar to it.

Lord Wilson of Langside

My Lords, I must say that I share the concern of all of those who have spoken in favour of this amendment about the Lord Advocate's refusal to accept it, or his resistance to it. At the same time, in the light of the somewhat extreme statement which the noble Earl made about the department, I understand his anxiety. We all have anxieties. The departments of the Scottish Office have always had a part to play in the administration of justice. The Scottish courts administration was set up by the then government in 1971 with the object of making the administration of justice more effective and more efficient.

In other words, all I am saying is that while I support the amendment and hope the Lord Advocate will accept it, I do not think we should run away with ideas about sinister intrusions into not the administration of justice but the doing of justice. There is a difference, which I hope your Lordships will appreciate. I mention that merely to indicate that, while I support the amendment, my approach to the matter is somewhat different from that of the noble Earl, though I can understand his anxiety.

Lord Cameron of Lochbroom

My Lords, matters have been raised with regard to the undertaking which I gave on Report. I had thought I had made it clear that at that stage we were dealing with only an amendment to a particular regulation-making power. There are others within the context of the Bill. I thought I had made it clear that I had a certain degree of sympathy with the views which were being expressed and that is why I have made quite clear, as I did today, that I have invited my right honourable friend to consider this very matter.

All I have been saying today quite simply is that it is not always possible to have this phrase attached to every piece of regulation-making power because there are certain regulations which affect areas for which the board would have no responsibility. I assure the noble Lords to whom I gave the undertaking on Report that I am not in any sense departing from it: I am merely indicating that we are dealing with a particular amendment for a particular regulation-making power. As I said earlier, the matter extends far beyond this.

Lord Morton of Shuna

My Lords, this amendment relates only to regulations made under Section 21(2), which states: 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 made available. It seems to me that this cannot be the type of situation where United Kingdom considerations, such as the financial limits for legal aid, come into play at all. It is a matter, if I understand the subsection aright, primarily concerned with details of what type of, and stages of, criminal proceedings should have criminal legal aid and what types should have legal aid by way of representation.

It seemed to me that this was something that perhaps the Secretary of State would have had advice on from the noble and learned Lord the Lord Advocate, as to the advantages of such an amendment. However, in the light of his undertaking, I do not think it would be appropriate to divide the House and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Legal aid in summary proceedings]:

Lord Morton of Shuna moved Amendment No. 6:

Page 16, line 39, at end insert— ("( ) Regulations made under this section shall prescribe a method of appeal against the refusal of criminal legal aid.")

The noble Lord said: My Lords, this amendment relates to the right of appeal against a refusal of criminal legal aid. Prior to this Bill coming into force, legal aid in summary criminal cases was granted by the sheriff and there was no appeal. It was granted in public court, so to speak, or by a public official. The new set-up is not clear, but it is to be granted by the board, which must mean that it is granted by some delegated authority of the board who will inevitably be regarded by the litigant—by the applicant for legal aid—as anonymous and may, in fact, be more than one person.

It would be appropriate that there should be a method of appeal against a refusal of criminal legal aid. There is such a right of appeal in the English provision. This is a difference from the amendment I proposed earlier, in that I suggested then that the board should provide a method of appeal, and I am grateful for the suggestion from the noble and learned Lord the Lord Advocate that this should be done by regulation. I am sorry to add another regulation-making power into the Act, but it would be appropriate that there should be such a power.

Lord Cameron of Lochbroom

My Lords, I explained at both Committee stage and on Report that there is indeed no right of appeal or indeed of review in criminal cases at present so far as legal aid is concerned.

We are not convinced that there is any justification for introducing one at this stage so far as concerns summary criminal procedure, though of course this amendment goes further and extends to a refusal of criminal legal aid without, I think, reference to either. I suggest that there is no case for a right of appeal in solemn cases where the court is charged with the duty of granting or refusing an application upon a test of hardship, and I do not think that there are any arguments presented for one.

In regard to summary criminal cases, these will be dealt with. I suggest, and indeed I have argued, that the board can reasonably evolve a policy and guidelines for the determination of applications within the statutory criteria which are to be introduced into the Bill in another place and without such a review procedure. Our assessment is that in any case the introduction of a review procedure—and I use the word "review" advisedly, because it would inevitably mean that the applicant would be entitled to have his application considered of new—could lead to unacceptable delays in court business. Indeed, the noble Lord sitting opposite has not dealt today with a point which was made on Report by the noble and learned Lord, Lord Wheatley, about the time limit—so far as custody is concerned, 40 days—in summary criminal cases.

The Government are satisfied that the board will be able to achieve a much greater degree of consistency in the treatment of applications, which of course is one of the main reasons for changing the present arrangements. For those reasons, I am bound to say to your Lordships that the Government are not satisfied that there is any good reason for allowing this regulation-making power, even without the addition of any reference to consultation.

Lord Morton of Shuna

My Lords, on several occasions I have spoken on the theme of an appeal against refusal of legal aid. I do not want to repeat what I have already said to your Lordships at earlier stages. I quite accept that maybe the result of this measure will be greater consistency, but that is not necessarily good if the greater consistency is 100 per cent. refusal, for example. That is greater consistency. It will be necessary to see the effect. However, I do not wish to divide the House on this matter and I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 7:

After Clause 25, insert the following new clause: (".—(1) In all cases in which the High Court of Justiciary authorises a new prosecution of a person under the provisions of section 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 maintained 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 to his resources or to any other criteria.").

The noble Lord said: My Lords, this is an amendment which was raised at an earlier stage and I think that the noble and learned Lord the Lord Advocate accepted the principle but not the drafting of it; or he was willing to consider the principle. It is a completely separate type of case where the High Court orders a new trial of a person whose first trial has gone wrong for what can only be the fault of the proceedings rather than the fault of the party. In such a case it will be entirely appropriate that the person should have legal aid if he is to be tried a second time for what is virtually the same offence, especially if he did not have legal aid before.

During a previous discussion on this amendment it was suggested that perhaps it could be added to another clause rather than standing as a separate clause. For what my views are worth, I have looked at the other, earlier criminal legal aid clauses and I cannot see one into which it can be fitted very happily. In the hope of eliciting some response from the noble and learned Lord the Lord Advocate as to what are the Government's proposals in relation to this matter, I beg to move.

Lord Wilson of Langside

My Lords, I take it that it is not intended that the person concerned in this unfortunate situation should be entitled to legal aid in the event of his having come into a fortune in the meantime, or perhaps having won a large premium bond prize or having done something as undignified as winning the football pools. I take it that there would have to be a proviso to cover that sort of situation.

5.45 p.m.

Lord Cameron of Lochbroom

My Lords, when we discussed this matter last week I said that the Government were giving careful consideration to the suggestion that legal aid should be automatically available, at least in certain circumstances, in relation to new prosecutions which are authorised by the High Court. I explained then that we wished to consider not unsympathetically the need for automatic legal aid, whether generally or in particular circumstances. In any event, we thought that the drafting was defective.

One of the matters for consideration, of course, is the very point which the noble and learned Lord, Lord Wilson of Langside, has raised today. When we last discussed this matter on Report, I made clear that probably it would not be possible to reach a conclusion before the Bill left your Lordships' House. A conclusion has not yet been reached but I can certainly assure the noble Lord, Lord Morton, that we are considering this very carefully. In view of what I have said, I hope that he may be willing to withdraw his amendment.

Lord Ross of Marnock

My Lords, surely we shall not deny someone justice and commonsense action on the basis of his possibly having won a football pool? It is really quite ridiculous. What are the chances of that happening? It is not one of my customary weekend indulgences to fill in football pools—

Lord Wilson of Langside

My Lords, if the noble Lord will allow me—

Lord Ross of Marnock

My Lords, I have not sat down, as a matter of fact. If the noble and learned Lord wishes me to sit down, I shall be glad to do so.

Lord Wilson of Langside

My Lords, I was going to say that. I just thought that I ought to reassure the noble Lord that my suggestion was meant to be a relatively light-hearted one. At the same time, it has a point from the Treasury point of view. I did not mean my remark to be terribly serious and raise a great moral issue which would rouse the noble Lord's Scottish blood.

Lord Ross of Marnock

My Lords, if the noble and learned Lord does not want his speeches to receive a reply or to be referred to, he should not be so foolish as to make what he thinks is a foolish point on a very serious matter.

Lord Wilson of Langside

My Lords, I did not actually do that.

Lord Ross of Marnock

My Lords, it was not I who mentioned football pools or the likelihood of winning the football pools; it was the noble and learned Lord, Lord Wilson of Langside. The same applies to the other point that he has made about a wife or someone coming into a fortune. The likelihood is so exceptional that we cannot deny justice to everybody else on that score.

What harm would there be if the man were granted legal aid? We thought it was a great advance when the right to order a new trial was given. There is no point in ordering a new trial for a man if he is then going to be denied the help of legal aid and probably will employ the very same people who already know the case. I do not know why there is any hesitation on the part of the noble and learned Lord the Lord Advocate. I have yet to hear in this House that the noble and learned Lord has made up his mind and will accept an amendment. It is the test of a good Minister that he should recognise common sense and justice. The noble and learned Lord is the Lord Advocate and it is up to him. He should not constantly put off these matters in order to have more discussion with his people in the Crown Office and with the Secretary of State. We look for a little more than that.

I remember that when we introduced this right to have a new trial we thought it was a great advance, but if one is going to deny a man help in that new trial that right is virtually being taken away. We should make it perfectly plain that he will have that help in respect of legal aid.

Lord Morton of Shuna

My Lords, this situation can only arise when someone has been acquitted at the first trial and the court decides that something has gone wrong in the procedure and that he has to be tried a second time. Even if one is dealing with someone who could perhaps afford to be tried twice, it is so unusual and unreal that it is appropriate that there should be automatic legal aid. As the noble and learned Lord, Lord Wheatley, pointed out at an earlier stage, the situation only arises because the court system has gone wrong somewhere. However, in the light of the Lord Advocate's assurances on behalf of the Government, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Solicitors and counsel]:

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

The noble and learned Lord said: My Lords, it may be convenient for us to consider Amendments Nos. 8 and 9 together. The point at issue arose during the Report stage when we attempted to obtain clarification from the noble and learned Lord the Lord Advocate as to what was contemplated and intended by subsections (8) and (9) of Clause 31. Subsection (8) reads: 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".

As with so much of the Bill, new rules will no doubt in due course indicate what circumstances might be specified or what procedure might be brought about to clarify so much that is dark in the Bill for lack of particularity. As it stands, it is not clear what is contemplated. The words of the Bill are: 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". I understood that what was contemplated, though I am not sure that this resolved the difficulty, was procedure in the event of contempt of court proceedings taking place. I notice that the noble and learned Lord the Lord Advocate shakes his head. It was nevertheless suggested in the earlier discussions. However, it may be that what is contemplated is that Clause 31(8) will be used to allow the board to continue the duty solicitor arrangements. If that is the purpose, why is that not stated instead of the position being left as indeterminate as it is?

Subsection (9) reads: Where a solicitor is available as is mentioned in subsection (8) above, the Secretary of State may by regulations made under this section, provide that— (a) subsection (1) above shall not apply". Subsection (1) is an important subsection saying that a person to whom legal aid or advice and assistance is made available may select the solicitor to advise or act for him or, if the case requires counsel, his counsel, and that he shall be entitled to make the selection himself. That is an important basic provision but one that is to be departed from in the circumstances set out in subsection (9).

While the noble and learned Lord the Lord Advocate gave no undertaking in our previous discussions, he said that he would bring the uncertainties to the attention of those who are particularly concerned to see that the words fully express the intention of the Bill. I was therefore a little disappointed that nothing appeared by way of amendment or addition, or even substraction, to clarify the position. We are storing up troubles for ourselves and sustaining the unnecessary anxiety that presently exists by reason of the words of subsections (8) and (9), which seem to take freedom of choice away from the aided litigant whose circumstances are put entirely at the discretion of the board, in such circumstances as it may specify". I hope therefore that it is still not too late—it is getting near the eleventh hour—for something to be done by way of clarification of what is intended. In the meantime, the best that we are able to suggest is to leave out the obscurity altogether by leaving out the subsection. I beg to move.

Lord Cameron of Lochbroom

My Lords, I have explained, I believe, in some detail the primary purpose of these two subsections. I accept that subsection (8) is a power given to the board to 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". I have already indicated that the primary purpose is to allow the board to continue the Scottish version of the duty solicitor arrangements. Those cut out, of course, the right to seek advice from another solicitor for that limited purpose.

It is perhaps right to say that consideration shows that there may be other circumstances where it is desirable to set up comparable arrangements, for example, in relation to certain mental health appeals. I mentioned on Report, I believe, and certainly I did so in Committee, that sheriffs were not anxious to have any general residual powers to award legal aid or advice and assistance and that the specific cases where they continue to have powers to award legal aid are set out in the Bill. In compliance with the sheriffs' views, there is nothing in the Bill that corresponds to Section 2(4) of the Legal Advice and Assistance Act 1972 which enables them to appoint a solicitor present in the court to assist a party in proceedings.

As is indicated in the 1984–85 report of the Legal Aid Central Committee that has yet to be published, this power is presently used for appeals against detention under the Mental Health (Scotland) Act and it may be that arrangements under Clause 31 could appropriately take its place. I do not say that this will be done as it is a matter on which the board, when appointed, may well have views, but I was asked to give other examples of possible use of the powers.

As I promised, I have drawn the attention of my colleagues to the points made on Report. I shall similarly draw their attention to the further points made by the noble and learned Lord today. But it is considered that these two subsections provide the board with a valuable addition to its functions and, in particular, enable it to continue the duty solicitor scheme and, it may well be, introduce it in the kind of area that I have outlined to the noble and learned Lord today. I hope that in these circumstances the noble and learned Lord may be prepared not to press the amendment. I have, as I say, indicated that we are considering these matters. There are obviously difficulties in being too specific, for the reasons that I have already given.

Lord Elwyn-Jones

My Lords, I am most grateful to the noble and learned Lord the Lord Advocate. I do not intend to seek the views of the House on the matter, but I am still wondering whether the profession and, indeed, the public, might not be better informed as to what is contemplated. In the light of what the noble and learned Lord was saying, the broad power given to the board to extend the availability of legal aid and assistance in various conditions may be superficially attractive. But one is a little anxious about the general provision of duty solicitors in place of the operation of legal aid and advice of the ordinary kind. I take it that it is not intended as a substitute for legal aid and advice in the ordinary case.

I wonder when the board will be able to specify, by either deed or announcement, the circumstances where the availability of the duty solicitor can be extended to various other fields. Do we have to wait until experience will show that and hope for the best? I suppose that that is the best I can hope for in the circumstances. I do not know whether the noble and learned Lord the Lord Advocate can add anything to what he has said. But, if not, I am grateful to him for having at any rate applied his sympathetic mind to this. We look to the board to fulfil—I shall not call them promises—these indications of the availability of the duty solicitor in a scheme which is not immediately contemplated, with a proviso that it shall not deny the right to ordinary legal aid and assistance in the proper case. In those circumstances I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

An amendment (privilege) made.

6 p.m.

Lord Cameron of Lochbroom

My Lords, I beg to move that this Bill do now pass.

The Government are satisfied that the principle changes provided for in this Bill, as it leaves your Lordships' House, including the transfer of responsibility to the Scottish Legal Aid Board, will lead to a very significant improvement in the administration of legal aid in Scotland. The Legal Aid Central Committee has broadly accepted the case for the board, the consumer interests in general support the rationalisation for which provision is made in the Bill, and most of those who responded in Scotland to consultation accepted the arguments for change.

Many of the arguments that we have heard for the status quo or for the importation of features of the system in England and Wales have been based on recommendations made up to 40 year ago. There have been major changes in the intervening period both in the scale of provision and in the need for more effective supervision of the arrangements, and a more realistic approach is required. Omnia mutantur, nos et mutamur in illis.

In our deliberations it has been suggested that there have been no criticisms of the apparent administration of legal aid. It is true that some improvements have been made in recent years through the increased use of information technology, through the rationalisation of the local committee secretariat and through the strengthening of some aspects of financial management. However, my right honourable friend considers that there is considerable scope and urgent need for further improvement in these and other areas. Independent lay members on the Legal Aid Central Committee who were appointed to represent the interests of the general public both as client and as taxpayer have for some years been making criticisms of the existing arrangements. These criticisms comprehend the split of responsibility between the Legal Aid Central Committee—which of course is established under the legal aid scheme—which is responsible for the operational administration and the Legal Aid Committee, a committee of the Law Society, which has responsibility for policy, staffing and related questions. This has led to a disjointed approach to securing improvements and to tackling problems. Another criticism has been that no one body has expressed responsibility for reviewing the operation of the legal aid schemes in any systematic way and for securing necessary changes in the light of such a review and of the changing circumstances.

As is made clear in the Legal Aid Central Committee report for 1984–85, which has just been submitted to my right honourable friend, the information which is available and which is presented about the operation of legal aid does not allow for the performance of the legal aid system to be considered, compared and pertinently commented upon by the Legal Aid Central Committee or others interested. These criticisms reflect a view which has been expressed to government that the Law Society has perhaps taken too narrow a view of its responsibilities and has displayed a certain reluctance to change with the times and to make best use of appropriate management and other systems, including those relevant to public sector administration and accounting.

While some reservations have been expressed in the course of our deliberations about the need for the establishment of the board, I would suggest that no convincing arguments have been advanced against the principle of establishing an independent body to administer legal aid in Scotland. Indeed, as I understood the views expressed by the Front Bench opposite, that principle was not disputed. I hope that in the course of our debates we have effectively disposed of the canard that bodies appointed by the Secretary of State are not and cannot be independent. As I have indicated, consultation on membership has already begun. I have, of course, indicated that the Bill will in another place be amended so as to make that consultation process appear on the face of it in regard to the two particular bodies referred to in it.

One of the fears expressed in the course of earlier consultation was that the Secretary of State would in some way interfere with the judgment of the board in the handling of individual applications for legal aid. That was never the intention. But the independence of the board in this most important area is underlined by the provision that the Secretary of State cannot give guidance on the way in which the board deals with applications for legal aid.

Comments were also made about the powers available to the Secretary of State to make regulations under the Bill. Many will of course repeat the existing regulations, with the necessary changes to take account of the establishment of the board and other developments. Regulation-making powers have been extended mainly in areas which are at present covered by schemes not subject to parliamentary scrutiny. I have made clear the matter that I have taken to my colleagues—the points that have been made, in particular by my noble friend Lord Selkirk and the noble Earl, Lord Perth, about consultation.

I acknowledge that the changes in the arrangements for the provision of legal aid and advice and assistance in summary criminal cases have attracted what I might term a somewhat mixed reception. But there is, I surmise, general agreement that the present arrangements are unsatisfactory. There are too many inconsistencies in the reward and refusal of legal aid in such cases. Administration by a single body should serve to achieve much greater consistency.

Fears have been expressed that the changes will result in delays in court business, but we are confident that arrangements can be made which will enable applications to be dealt with expeditiously.

The Bill already provides for automatic legal aid in the most urgent cases. The precise effect of the changes in terms of whether criminal legal aid will be more or less readily available is extremely hard to gauge in view of the limited and unsatisfactory nature of the information about the present arrangements. It is, however, certain that a much clearer, and I hope a much fairer, picture will emerge after the transfer of responsibility.

I can understand an apprehension of the unknown, and equally I am aware of the dangers of advancing the proposition omne ignotum pro magnifico est. However, there can be no doubt that the time is more than ripe for a change in the administration of legal aid in Scotland and I am sure that all concerned will help to make it a success.

In writing to my honourable friend the Minister responsible for home affairs, health and social work last month the president of the Law Society of Scotland gave assurances of the society's continued wholehearted co-operation in the reform of legal aid. My honourable friend, like myself, very much welcomes this assurance and I am confident that others concerned will take a similar view.

We have had some useful exchanges during the passage of this Bill through your Lordships' House and further changes will be made in another place. I should like to thank all noble Lords for the clear presentation of their views, even though I may not have always agreed with them. I particularly wish to say how welcome have been contributions from noble and learned Lords and noble Lords who, while certainly disclaiming knowledge of Scots procedures, have, from their knowledge of practice south of the Border, brought a different slant to the debate.

Finally, I should like to express my thanks to my noble friend Lord Selkirk, to the noble and learned Lords, Lord Wilson of Langside and Lord Wheatley, and to the noble Lord, Lord Morton of Shuna, for their contributions to what have been extremely worthwhile debates on this Bill which have led to changes for the better in the Bill. My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Cameron of Lochbroom.)

Lord Morton of Shuna

My Lords, I regret that I cannot be as complimentary about this Bill as the noble and learned Lord the Lord Advocate. On this side of the House we certainly accept that it is proper that legal aid in Scotland should be run by a board which is independent and which is more representative of non-legal interests than of legal interests. However, there I fear we differ.

I was interested to hear the noble and learned Lord the Lord Advocate make a complimentary remark about the responses to the consultation paper. As far as I am aware, that is the first time that anyone on the Government side has paid attention to any of the responses to the consultation paper. The consultation paper, which preceded the Bill, was responded to by the legal bodies, the consumers' council, the Citizens Advice Bureaux and the Scottish Council for Civil Liberties. They all held the unanimous view that the arrangements for the independence of the board were inadequate and that the board would not be sufficiently independent.

That was simply ignored by the Government and it remains ignored. It remains the weakness of this Bill. The board will be seen as not being independent; it will be seen as an emanation of St. Andrew's House unless and until bodies like the Citizens Advice Bureaux, the Scottish Consumers' Council and others, possibly including the Convention of Scottish Local Authorities, have an open right of nomination.

There was an obvious opportunity in the rest of the Bill to amend the considerable number of separate legal provisions either by regulation or by Acts. However, unfortunately, what has happened is a regurgitation of the previous legislation, with far too much power to make regulation and far too little thought to simplifying and making clear. It is a great pity that the management study which has just started was not allowed to complete its work before this Bill was presented to the House. It might have been a much better Bill had there been a six months' wait. However, in the hope that in another place it may be improved, I wish the Bill that much well.

6.15 p.m.

Lord Wilson of Langside

My Lords, it is almost 40 years since the legal aid scheme in Scotland was introduced in the civil law area, and it is over 21 years since it was introduced in relation to the criminal law. Over these last weeks we have been debating how we should approach the next stage. It is only natural that over those 40 years problems have arisen. As I think I indicated on Second Reading, I did not think that this Bill was the best designed measure to deal with the problems. However, time will no doubt tell us—at least those of us who live long enough.

I believe that the noble and learned Lord the Lord Advocate was absolutely right when he said that the time was ripe for change. Some of us have thought that it was over-ripe. From my experience, the principal problems arose in the area of the criminal law, and from time to time during our debates there have been references to abuse, particularly in the area of the criminal law scheme. As I have understood the noble Lord, Lord Morton of Shuna—and I hope that I do not misinterpret him—he has tended to discount these problems and to suggest that there was little evidence for them. My experience, sitting during the first year of the working of the criminal legal aid scheme in what was the busiest criminal court in the country, was that there was a good deal of abuse. I am just as proud of my profession as is the noble Lord, Lord Mishcon, who expressed such pride and who I am sorry to say is not present. However, this should not blind us to the fact, that like all other groups, we have what for convenience I refer to again as the black sheep. There was significant evidence of abuse of the scheme. That was a view shared by most of my colleagues who sat on that bench.

The point I want to make now is that the effect of that abuse was not just something that frightened the Treasury men. We could probably have got over that without much difficulty. There were three main effects of the abuse of the scheme in Scotland. The first was that it has a devastating effect on the moral of the procurator fiscal service. There was no doubt about that. It started during the first or second year of the working of the scheme and continued until we reached a stage which was referred to by one of the colleagues of the noble and learned Lord the Lord Advocate in the Scottish Office the other day when he said that we were paying the lawyers who were defending a minority of criminals more than we were paying those whom we employed to prosecute the lot. This had a devasting effect.

The Government of which I was a member took steps—I shall not go into them—to try to remedy and correct the situation. The noble Lord, Lord Ross of Marnock, may remember the exchanges that we had. He was responsible for the scheme, and I had an interest in it. However, there is no doubt that that effect on the moral of the procurator fiscal service has continued to this day. Procurator fiscals in Scotland are key men in the administration of justice, and if morale is bad it does not promote efficiency. That was the first effect of the abuse.

The second effect of the abuse was that it had something of a computing effect on the profession as a whole, for the simple reason that the fees at the outset had been fixed too high. They were fixed before the general election when the Government were about to change. At the time my impression was that no one had ever looked at this.

The third devastating, and perhaps the most serious, effect of the abuse—which did not apply throughout the country, but there were centres where it was worse and it applied only to the few—was that in the efforts of the black sheep to maximise their fees there was no doubt that the working of the criminal courts was disrupted. We are moving into a new stage and I wish the new board good luck in dealing with these problems among many others which may be more or less important.

The Earl of Selkirk

My Lords, I should like in a few words to congratulate my noble and learned friend on the courtesy with which he stood up to bombardment from every part of the House. I have come to admire him greatly for his knowledge and the understanding which he has shown in many of these things. I confess that I have been very brave in taking part in this at all, because the last time I appeared at the Bar there was no legal aid at all so that I have no practical experience of this whatever. But I am very conscious of the great financial problem which legal aid presents to governments. It is a problem which will not be solved by this Bill entirely and there will be other Bills, I am sure, to deal with it. I do not know the answer but I do not believe that it is a simple answer. I am grateful to my noble and learned friend for saying that one or two of these things are being taken elsewhere.

I must add one thing. I am disturbed at the way in which departments are now going over to regulation. Regulations cannot be dealt with satisfactorily in this House. Maybe we should have an examination by the Procedure Committee to see how we can deal with them. We can put amendments into any Bill we like. It is not easy but it can be done, whereas we cannot change a regulation and if we throw out a regulation we then have a row with the other place.

That makes it too difficult. It makes these regulations something of a formality and I think that the House should rightly criticise departments which in many cases do not know precisely what they want to say and therefore put in a regulation. It is to some extent a reflection on a department to have to put a great many regulations into a Bill. I should like to have that recognised. I thank my noble and learned friend for what I think is the splendid determination with which he has borne this Bill right through the House.

On Question, Bill passed, and sent to the Commons.