§ 6.12 p.m.
§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, I beg to move that this Bill be now read a second time.
The concept of legal aid and assistance in litigation in Scotland is of considerable antiquity; an Act of the year 1424 provided that where "onie pur creature for faulte of cunning, or expenses, cannot, nor may not follow his cause" the judge was to purwey—and I use the old Scots—a leill and a wise Advocate to follow sik pure creatures causes". In 1535 James V—the founder of the College of Justice—ordered the appointment of "a man of gud conscience" to be called advocatus pauperum to act for "our pur liegis" and further provided that he be paid !10 annually and that he could be deprived of his right to plead before the court if he failed to discharge his duty.
As the late Lord President Cooper pointed out in a fascinating historical discursus in the case of Graham v. Cuthbert, it was when the Court of Justiciary was set up with plenary powers under Charles II that the court began to require the attendance for poor prisoners of defending counsel, an obligation which Lord Cooper thought was voluntarily assumed by the Faculty of Advocates and the solicitors as a munus publicum, rather than forced upon them by the court. Such provisions over the centuries and more particularly in the earlier part of this century proved increasingly unsatisfactory, and radical reform was called for. Thus the parent of the legislation we consider today started life in November 1948 when the Legal Aid and Solicitors (Scotland) Bill was given a First Reading in another place.
I am particularly glad to see today that the noble and learned Lord, Lord Wheatley, is in his place in the House, since it was he, as the Lord Advocate of the day, who played a major part in the passage of that legislation. That Act when enacted initially applied to civil actions only and criminal legal aid was introduced following the passage of the Criminal Justice (Scotland) Act 1963. In the succeeding two decades the legal aid code has been substantially reformed, extended and improved. Nonetheless it cannot be said today that the legal aid system has been perfected.
One of the prime objectives of this Bill is to improve the arrangements for making legal aid and legal advice and assistance available in Scotland. At the outset I should stress that the organisational changes proposed, including the establishment of a Scottish Legal Aid Board, take account of Scottish requirements. As the system has developed piecemeal over a period of 35 years, it is not surprising that there is considerable 757 scope for improvement. Indeed certain criticisms of the present system, to which I will refer later, have been made with increasing force in recent years in Scotland. I understand that the arrangements in England and Wales, which are in many respects different, also have been—and still are—under review. It would not be appropriate for me to comment on what the outcome there might be.
Since there have been these continuing criticisms of the present legal aid system, including those by the Royal Commission on Legal Services in Scotland in its report published in May 1980, the Government are satisfied that reforms are necessary. It is a great pleasure to see in his place today the noble Lord, Lord Hughes, who was the chairman of the commission. We are particularly glad to see him back from his peregrinations.
Consideration of what these reforms should be has taken some time, and since our consultation paper was issued last March we have received most helpful comments from those consulted. I might mention in particular that the Law Society of Scotland, while it still has many reservations about the transfer of this function to the new board, has very generously indicated that it will co-operate with the implementation of the Bill if it meets with the approval of Parliament. While there may not be agreement on all the details of the Bill, I hope it is fair to say that there is wide support for its main objectives.
The Royal Commission supported the view that it was wrong in principle for the governing body of the legal profession to be responsible for supervising the payment of public funds to its own members. Furthermore most members of the Royal Commission considered that the management of the legal aid fund was not sufficiently independent of the Law Society of Scotland to assert effectively the interests of the public purse where those interests conflicted with those of the profession on a wider front than simply the scrutiny of individual accounts submitted for payment. The scope for conflict of interest was subsequently increased through the assumption by the Secretary of State under the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 of responsibility for determination of legal aid fees. This has resulted in direct negotiation on fees between the Scottish Home and Health Department and the Law Society, whereas previously these fees were determined by the High Court and Court of Session.
The members of the Royal Commission therefore recommended that the Law Society should cease to be responsible for the administration of legal aid, even although there had been no major complaints about the way in which they exercised their functions. While there was not the same unanimity on the most appropriate alternative to the Law Society, there was strong support for the view that the administration should be undertaken by a central authority. This is now provided for, through the establishment of a Scottish Legal Aid Board.
Another major criticism referred to by the Royal Commission was the inconsistency in the application of the various criteria for the award of legal aid, notably interests of justice and undue financial hardship in criminal cases. The Royal Commission was not alone in this judgment. It recorded the view of 758 the Scottish Legal Action Group that the means test involving financial assessment by the court was erratic and unreliable, producing wide variations in practice between different sheriffs, justices of the peace and stipendiary magistrates. In his book on Legal Aid in Scotland Dr. Stoddart notes that the interests of justice test has been the subject of continuous criticism since criminal legal aid was introduced in 1964.
In their most recent annual report on the Scottish legal aid scheme, the Law Society of Scotland itself suggested that the granting procedure for criminal legal aid should be altered in the interests of uniformity, justice and, possibly, economy. The transfer to the new board of responsibility for the determination of applications for criminal legal aid in summary causes, and the provision in the Bill for the prescription of factors to be taken into account in the consideration of the interests of justice criterion, are designed to meet those criticisms.
A third major and valid criticism of the legal aid arrangements is the difficulty of finding a way through the maze of primary and supporting legislation. Looking to a compendium of legal aid today, I counted three statutes and 32 pieces of subordinate legislation. As a one-time member of a working party established by the Scottish Home and Health Department to review the aid legislation referred to in paragraph 8.12 of the Royal Commission's report, I would fully endorse that criticism. That situation is in part being remedied through the pattern of the Bill. It deals separately with administration, with advice and assistance, civil legal aid, criminal legal aid and other forms of legal aid; and the consolidation of the primary legislation will also help to make it more intelligible. For example, the text of Section 1 of the Legal Aid (Scotland) Act 1967 has been amended in nine different ways since 1967; the Bill also provides for a reduction in the number of types of secondary legislation. While it provides for the making of regulations and rules of court, it abolishes schemes made by the Law Society which form a material part of the existing corpus of secondary legislation and were not subject to parliamentary scrutiny.
I have indicated briefly the major criticisms of the present system and how we intend to meet them. It may be helpful to noble Lords if I now outline the main new provisions in the Bill and how we envisage that the new arrangements might operate. Much of the Bill re-enacts existing legislation.
Clause 1 provides for the establishment of the Scottish Legal Aid Board. That will subsume the responsibilities of the Law Society and its Legal Aid Central Committee with its various local and other committees. Those responsibilities range from the initial consideration of applications for civil legal aid to the final payment of legal aid accounts. It will also take over from the Scottish Home and Health Department assessment of financial eligibility for civil legal aid. That will result in the same body considering applications with regard to both the merits and the financial criteria. The function of determining eligibility for legal aid in relation to summary criminal causes will be transferred to the board from the courts. We are confident that the combination of the various responsibilities for legal aid in one board will lead to significant improvements in the administration of 759 legal aid in Scotland. It is obviously in the interests of efficiency and consistency that overall responsibility should, where possible, not be split between a number of organisations.
The precise make-up of the board has still to be decided. However, in recognition of the strong legal element in the board's work, provision is made in Clause 1 for the inclusion of at least one advocate, one solicitor, and one other person with experience of the procedure and practice of the courts. The board also has an important administrative and financial role and will rely on computers and other information technology to assist in the efficient discharge of its business. It is accordingly desirable that persons with understanding and experience of such matters should also be on the board.
I would also like to stress that when the Secretary of State comes to make appointments, he will have regard to personal qualities and experience rather than to representation of particular interests. We envisage that the chairman and members will be appointed on a part-time basis. There may have to be a degree of flexibility since there will be different requirements during the period when the new arrangements are being brought into operation and when they are firmly established.
As to the staff of the board, a large proportion of the personnel at present engaged on legal aid work will transfer to the new board, and Schedule 1 to the Bill contains provisions setting out appropriate safeguards for them. Since it is not proposed that staff should be transferred from the courts, additional staff will be required to deal with applications in summary criminal cases. The remainder of Part I and Schedule 1 relate to the establishment functions and operation of the board, including its financial duties, and are broadly in line with the provisions for the establishment of other non-departmental public bodies.
Part II deals with advice and assistance, and Part III deals with civil legal aid. Apart from the transfer of supervisory responsibility to the board, there are few changes of substance. I now turn to Part IV, which deals with criminal legal aid. I should take the opportunity to explain how it is that we propose to introduce assistance by way of representation for certain criminal matters.
First, I should make clear that the arrangements for criminal legal aid in the more serious cases, which are dealt with in Scotland under solemn procedure, will remain essentially unchanged. The responsibility for considering applications under solemn procedure will continue to rest with the courts. As at present, the courts will have to consider the financial criterion of whether undue hardship will be caused to the accused or his dependants, but not whether the award of legal aid will be in the interests of justice.
As regards summary causes, there have been doubts ever since the introduction of criminal legal aid in 1964, as to whether the courts that try cases should also be involved in the award or refusal of legal aid on interests of justice grounds, especially where they might wish to consider the merits of the defence. There were, accordingly, good arguments for transferring responsibility from the courts, and indeed my 760 understanding is that that transfer will be welcomed by many sheriffs. The main reservation expressed about the transfer of responsibility to the board has been that it might result in delays in court business. That was on the basis that if applications had to be made to a body other than the court, there would in some instances be a delay in reaching a decision. Accordingly, in developing our proposals we are paying special attention to the need to reduce to a minimum the time taken for the submission and consideration of applications.
While the precise details will be for the board, we are now satisfied that it will be practicable for it to deal with urgent applications in a matter of days and other applications within a time scale that should not materially delay court proceedings. In cases where the accused is in custody and pleads guilty at the first diet, he will, as at present, continue to be entitled to automatic legal aid. In cases where the accused remains in custody after a not guilty plea at the first diet, he will be entitled to continue to receive legal aid from the time he submits an application until that application has been determined. That should help to avoid delay in the preparation of cases.
Where the accused is not in custody, the intention is that legal aid should in general be available only after he has pleaded not guilty at the first diet. However, as at present, solicitors will be able to provide advice and assistance to those charged with an offence. Moreover, we are proposing to introduce, by regulations made under Clause 9, assistance by way of representation where the accused pleads guilty at the first diet, if certain requirements are met. The intention is that the decision whether such assistance should be provided will rest, initially at least, with the solicitor. He will have to satisfy himself that its provision is justified in accordance with prescribed criteria. Those criteria are likely to be related to the factors taken into account in determining whether the interests of justice criterion is met, in so far as those factors are relevant in the case of a guilty plea. While the decision will rest with the individual solicitor, he will require to obtain the approval of the board in any case where he wishes to exceed the prescribed financial limit in the same way as is presently necessary with other advice and assistance cases.
Those accused who have pleaded not guilty at the first diet will, after necessary consultation with their solicitor, therefore make their applications to the board on a prescribed form which will in effect require the applicant to provide information designed to show that the relevant criteria, notably those relating to interests of justice and undue financial hardship, are met. Consideration of interests of justice where a legal opinion is required will be undertaken either by the board's legal staff or, more probably, referred to a reporter—a solicitor in private practice—for his view. The board will issue its decision in the light of any recommendation on interests of justice and of its own consideration of the financial and other factors.
While guidelines broadly based on the Widgery criteria which have been endorsed by successive Governments in relation to England and Wales have been issued to district courts in Scotland to assist them to determine whether the interest of justice criterion is met, in the sheriff's court the sheriffs took the view that 761 courts should have regard only to statutory criteria. In a situation where the new board is to assume responsibility for consideration of applications in summary criminal causes we regard it as important that they should have statutory guidelines. Accordingly, while the interests of justice criterion remains, provision is made in Clause 24(3) for prescribing factors to be taken into account in considering whether it is met. I cannot at this stage say precisely what these factors will be, but they may bear a broad resemblance to existing guidelines. As the regulations prescribing these factors are to be subject to affirmative resolution procedure the House will have the opportunity of debating them in due course and we shall certainly have due regard to any views expressed as to what these factors should be.
I now turn to Part V which deals with the employment of solicitors by the board. It is largely based on Part II of the Legal Advice and Assistance Act 1972, which has never been brought into operation. Neither is it the intention that these consolidated provisions should be brought into operation at an early stage, but it is desirable to retain this reserve power to supplement legal aid arrangements if this is required at some time in the future.
The miscellaneous provisions in Part VI are again largely based on those in existing legislation; for example, those covering the arrangements for legal aid in proceedings arising out of children's hearings and in contempt of court cases, setting out the responsibilities of solicitors and counsel, powers to regulate procedure, fees and other matters and restrictions on passing on information provided in connection with legal aid. I would, however, particularly draw your Lordships' attention to the provisions in Clause 31 dealing with discipline. These give the professional bodies power in proper cases to exclude any of their members from giving legal aid or advice and assistance. I have confidence in the will and capacity of the two sides of the profession to give effect to the intention of this part of the framework of legal aid which is an essential one for the proper administration of the scheme.
While I have not explained in detail all the provisions in the Bill, I trust that noble Lords will agree that it was right to concentrate on the major changes. I am confident that they will also agree that the main aims of these changes—namely, to achieve greater consistency in the award of legal aid, to increase efficiency, effectiveness and economy, and to eliminate abuse—are much required.
To summarise the proposed new arrangements, the new Scottish Legal Aid Board will take over the administration of most legal aid functions which are presently scattered among several different bodies. First, it will take over the responsibilities of the Law Society and its committees for the administration of the arrangements for legal aid and advice and assistance and the payment of accounts, and for considering the general merits of applications for civil legal aid. Second, it will assume the Scottish Home and Health Department's responsibility for assessing financial eligibility for civil legal aid. Third, it will take over responsibility of the courts for determining applications for legal aid in summary causes; though legal aid for cases under solemn procedures and some specialised causes will remain with the courts. The 762 Secretary of State will retain responsibility for the legislative framework of legal aid, which will now cover some matters currently delegated to Law Society schemes.
Although I have no doubt that some noble Lords will wish to examine some features of the arrangements during the later stages of the Bill, I very much hope that your Lordships will give general support to the measures in this Bill which are designed to improve legal aid arrangements in Scotland. I accordingly commend the Bill to the House, and I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Cameron of Lochbroom.)
§ 6.36 p.m.
§ Lord Morton of Shuna
My Lords, if the Bill is to improve the provision of legal aid, those on this side of the House would fully welcome it. Legal aid is a very important means of ensuring that people have access to justice by providing that the services of lawyers are available when necessary. The Bill should be judged on whether it assists access to the courts by ordinary people as citizen consumers and I am very far from certain that it does.
According to the consultation paper which was published, the motive is to improve efficiency, effectiveness, economy and equity, eliminating the scope for abuse and securing that legal aid is available for those who need it. It would be far more convincing if we had some indication from the noble and learned Lord the Lord Advocate that there was inefficiency, that there was ineffectiveness, that there was lack of economy and lack of equity, and that there was abuse. We have had no such suggestion in the Royal Commission report, the consultation document, or anywhere else. It is far from clear how the proposed arrangements are to improve efficiency and effectiveness. I gather that the new board is to take over responsibility for all the various local committees and the central committee. It is to consist of not more than 15 people, and it is to have two lawyers. Are there people, who are to be part-time, to decide every legal aid application whether it is in Lerwick, Portree, Edinburgh or Glasgow? If not, who is?
Normally I should have thought that the basic issue of whether someone has a case to proceed with, or a charge against him to defend, is a matter of law, and legal advice is necessary to decide whether he should get legal aid. There is nothing in the Bill or in the consultation paper to suggest how the board is to work. Is it to have reporters? Who are they to be? How are they to be appointed? Is there to be a right of appeal against a reporter's refusal? Under the Bill it is the board that grants legal aid. If someone is dissatisfied because he has been refused legal aid, to whom does he appeal, and how? None of this is made clear.
The board is to be appointed because it is thought that there was a potential conflict of interests between the Law Society and the Law Society as the administrators of legal aid. There might have been a potential conflict of interest but the proposed new board is not to be an independent body such as the Royal Commission suggested. At paragraph 8.73 they said:Having reviewed the principles and practice of administration of legal aid by the Law Society, we recommend that legal aid should be administered by an independent authority in the form of the Legal Services Commission".763 This board is to consist of people who are to be approved for their personal qualities by the Secretary of State. In no sense is it independent. It becomes a department of the state. It could be a very useful retirement home for civil servants from the Home and Health departments who want a part-time job when they retire. There is to be no advisory body such as exists in England and Wales in the Lord Chancellor's Advisory Committee on Legal Aid and such as the Royal Commission suggested.
I suggest that if there is to be a new board it should be demonstrably independent of the Secretary of State and should have on it people nominated by bodies such as the Citizens Advice Bureaux and the Scottish Consumers Council, the CBI, the TUC, the various police organisations, the Law Society and the Faculty of Advocates. It seems totally unfortunate that the gentlemen or ladies who are to be chosen should be just picked out of the air because they happen perhaps to fit the Secretary of State's category of "being one of us". I think that this would lay the whole administration of legal aid open to a far greater criticism than the potential conflict of interest, which has in fact never been an actual one.
But it is also very unfortunate if the Secretary of State is to be the controlling influence on legal aid, because the Secetary of State is the representative of the state. The state is the prosecutor of crime. The Secretary of State is responsible for most of the areas where citizens come into conflict with the state and wish to sue to assert or defend their rights. It would seem very unfortunate that it is the state which decides whether they are to get legal aid to do so. I suggest that it is even more unfortunate when we look, for example, at Clause 14 on civil legal aid, that it is the Secretary of State who decides—and this is true throughout the Act—apparently without any advice from the board. The board just receives advice; it never gives it to the Secretary of State. The Secretary of State makes regulations prescribingfactors to be taken into account by the board in determining whether it is reasonable for a person to receive legal aid".What sort of factors will the Secretary of State prescribe, for example, on issues of judicial review of administrative action by the Secretary of State? The board is to assume responsibility for deciding who gets legal aid in both civil and summary criminal matters. It is probably better that the decision whether somebody should get legal aid in criminal matters should be taken away from the sheriffs who will try the case, but how will the board do this? What factors will the board take into account? They do not appear in the section on criminal legal aid. It may be that they will be the same factors as the Widgery Committee suggested, but it does not appear in the Bill.
The consultation document is the only basis that we have for suggesting what is the thinking of the Government, and that document is not very helpful. Paragraph 27 suggests that legal aid might not be made available to somebody because he had persistently offended. It would be grossly unfair if somebody were not to receive legal aid because he had a criminal record. It would very quickly become obvious to sheriffs or judges that the reason someone was not getting legal aid was that he had a list of convictions. 764 It would seem to offend also against the principle of the presumption of innocence.
As regards the financial effects of the Bill, the explanatory and financial memorandum printed with the Bill suggests that,It is not possible to forecast what the effect will be on legal aid expenditure, which is demand led, but greater consistency in the award and refusal of legal aid, in particular criminal legal aid, may result in savings".As I understand it, the situation of complaint is that certain sheriffs operate a blanket policy of refusing legal aid in every case. Is that to be the standard which the Secretary of State will suggest to the board as the basis, and if not how do the Government expect that this will result in saving?
On civil legal aid the consultation paper produces a very dangerous argument. Paragraph 4 says:There are misconceptions about the purpose of legal aid. In civil cases the aim is that legal aid should permit those of insufficient means the same opportunity to pursue or defend their rights as is available to those of moderate rather than abundant means. It should in general not be available in a case which would not be pursued by a person of moderate means".Before legal aid existed and without legal aid no person of moderate means was ever willing to go to court about anything, because they were not able to afford it. It certainly was not the purpose of legal aid as defined in the title of the legal aid Act 1949, which was to make legal aid and assistancemore readily available for persons of small or moderate means, to enable the cost of legal aid … for such persons to be defrayed wholly or partly out of moneys provided by Parliament.Every response to the consultation paper has raised this issue, but the attitude of the Government has been far from clear. I understand that some months ago the dean of the Faculty of Advocates had a meeting with the then Secretary of State, who said that paragraph 4 was a misunderstanding and that the position of the Government was still that shown in the 1949 Act. However, this misunderstanding (if that is what it was) was apparently shared by the Under-Secretary of State, who said in the Scottish Grand Committee on 2nd July 1985 that paragraph 4 set out the Government's view of the present position.
Now that we have a new Secretary of State, what is the Government's present position? Do they consider that the title of the 1949 legal aid Act sets out the standard that is to be applied, or do they consider that paragraph 4 of the consultation document sets out the position? If it is the latter we are back very much to a poor law system. The recently reported decision to reduce the financial qualification limits in England suggests that perhaps the Under-Secretary of State was correct in the Grand Committee and the present Secretary of State was wrong.
That also seems to appear in the Bill itself. In Clause 9(2) of the Bill, paragraph (e) provides apparently that legal aid and assistance may be restricted by regulations to only those people who are receiving either supplementary benefit under the Supplementary Benefits Act 1976 or family income supplement. Is that really the standard on which the Government wish legal aid to be available?
If there is to be a new board to administer legal aid, it is unfortunate that it appears to have no function of advising the Secretary of State on reforms both in 765 relation to legal aid and to court procedures. That is what the Royal Commission envisaged in its legal services commission, and it is on reform of court procedures that work can and should be done to reduce the cost of court cases both for legally aided and for non-legally aided litigants. But the board is apparently to have no function of proposing any form of reform. The only way therefore that it can reduce costs is either to reduce fees for legal aid work or to reduce the number of people entitled to legal aid. As the noble and learned Lord is fully aware, there are many ways in which court procedure could be simplified. He has introduced some of them, such as the small claims procedures.
It is clear that since 1979 the costs of legal aid have dramatically increased, partly due to the increase in crime and partly to decisions by the Lord Advocate and his predecessors to prosecute certain types of offence in the High Court. But there are many ways on the criminal side in which the expense of legal aid could be reduced. One of the more obvious ones is to make available to the defence copies of statements taken by the police. That would reduce at a stroke a substantial element of the costs of legal aid.
There is starting in Scotland at the moment a trial of nine people in the High Court. I understand that there are 100 witnesses on the list. There are nine separate solicitors who get a list of over 100 witnesses, and that is all that they get. They therefore have to see each of them to find out whether he has any significance to the defence of their particular client. If the statements were available, the amount spent on seeing witnesses would be dramatically reduced. It is in those areas that a legal aid advisory committee could work in reducing the cost of litigation.
The Bill does nothing to improve legal aid in its administration, delivery and receipt by those who deserve to get it. If it were not for the conventions of the House, I should suggest to your Lordships that the Bill should be opposed.
§ 6.53 p.m.
§ Lord Wilson of Langside
My Lords, I agree with much of the critical comment on the Bill that the noble Lord, Lord Morton of Shuna, has addressed to your Lordships, but I propose to approach the questions that it presents in a slightly different way. In every corner of human affairs there are those who regard a change for the better as a contradiction in terms. For that reason I have more than usual sympathy with the Government and the Lord Advocate in their approach to the problem. I say that because of course the Scottish legal profession, arguably at least, has its fair share of people who approach change in that way. As I say, for that reason and for a number of others to which with a little hit of luck I shall shortly come, I approach the question of whether these fundamental changes in our legal aid scheme now proposed in the Bill are for the better or are an unnecessary step in the wrong direction with sympathy for the Government and the Lord Advocate, because I sense so far that the Bill will be anathema to the profession,
The second factor from which my sympathy stems is that I can still vividly recall the reaction of my branch of the profession to the introduction of the 766 Legal Aid (Scotland) Act 1949. I was one of a minority of, I think it was, three among practising advocates who greeted the Bill with unqualified enthusiasm at the first meeting of the Faculty of Advocates called to discuss it. With that recollection in mind, I share the pleasure of the Lord Advocate that the noble and learned Lord, Lord Wheatley, is in his place tonight to give us the benefit of his wisdom on this matter in whose origins he played such an historic part.
I say that I was in a minority of three who greeted the introduction with unqualified enthusiasm, because the irony of that to me, and the relevance to our debate, is that, but for legal aid, the Faculty of Advocates would not be the body that it is today and many would certainly be less prosperous; yet, from what I gather, and I hope that I do no one an injustice, I imagine that it will be protesting to the Government, along perhaps with the Law Society of Scotland, and crying in effect, "Hands off our legal aid system!".
The third reason for my sympathy with the Lord Advocate and the Government stems from the impression that the profession has brought the Bill on itself. It has only itself to blame. Let me make it quite clear that that impression derives solely from my knowledge and experience of the working of the criminal legal aid scheme which was introduced in Scotland in October 1964. So far as the arrangements for the civil legal aid scheme are concerned, nothing that I saw, whether as a practising advocate, a sheriff on the Bench of the Glasgow Sheriff Court or a Law Officer, would justify any serious criticism of that. Of course there were problems—problems to which the noble Lord, Lord Hughes, drew attention in the report of his Royal Commission. It is only from the working of the criminal legal aid scheme that I draw my impressions.
For centuries, of course, the profession, as the Lord Advocate said in presenting the Bill, accepted representation of the poor as a public duty—what was then called (it sounds so dated now) "The Poors Roll". The way it worked, as it had worked for centuries, may have been tolerable up to the eighteenth century or perhaps even into Victorian times. But in the twentieth century it was to most of us quite intolerable and uncivilised. Apart from the ultra-conservatives, to whom I referred in opening, we were all glad to see it go. However, since its going and with the introduction of legal aid, my impression is that the profession, as a whole, has not always kept in the forefront of its mind the primary objective of legal aid in criminal cases. That is, of course, to achieve a more effective and civilised administration of justice, reducing in the process avoidable delays in the working of the law, with due regard to the interests of those accused of crime balanced against the interests of society and the protection of the public. It was not to secure a livelihood for lawyers.
From what evidence do these impressions which I have formed in this context come? Much of the criticism stems from the circumstance that, at the outset, the fees payable under legal aid were far too high. They were fixed at a level that was higher than the profession normally expected from quite well-off persons accused of breaking the law. I have absolutely no doubt about this. Two unfortunate circumstances of importance to Scottish lawyers stem from it. The 767 first was that the morale of the Procurator-Fiscal service suffered seriously. Their earnings at that time lagged notoriously behind.
The second unfortunate consequence that flowed was that it had a corrupting effect on what I would call the black sheep of the profession—and, of course, there are black sheep everywhere. They did everything they could to maximise their earnings. There is no doubt about that. I should like to illustrate what happened in practice. Between 1965 and 1970 the Government saw the operation of the scheme grow very quickly. The cost of it increased rapidly right from the beginning. The Government reviewed the matter. One step that they took was to alter the regulation which provided for increased payments to solicitors and counsel in cases of unusual complexity, difficulty and so on. The power to award these additional fees was in the hands of the Law Society. The Government at that time reached the conclusion that this was as sensible as leaving in the hands of any industrial trade union the decision as to whether or not they should be given additional remuneration. The matter was put in the hands of the court. That seemed sensible at the time.
The result was a strike of Glasgow solicitors, the experience of which certainly confirmed my impression that among the black sheep of the profession there was a concern to maximise their earnings. Of course, that had nothing to do with the Law Society of Scotland. It was another group of solicitors in Glasgow who went on strike. Immediately after that, however, the Law Society began a campaign to amend the regulation that had put this power into the hands of the court. It persisted in that for quite a long time. It was eventually, I believe, successful.
My experience may be a little out of date. The profession may be treating its black sheep more vigorously than it was at that time. But my experience, both as a sheriff and a Law Officer, was that when I pursued these matters, being concerned about them in the course of my duties, the Law Society of Scotland was less than enthusiastic in co-operating with me. My experience, as I say, may be dated. Like everyone else, I am getting older. However, that was certainly my experience. That is why I say that I believe the profession, to some extent, had itself to blame. The Government were eventually bound to act.
I wish that I had more confidence that this Bill is the right measure to achieve the improvement and the better administration of our legal aid scheme. I share many of the criticisms that the noble Lord, Lord Morton of Shuna, addressed to your Lordships. Of one thing I am certain. We shall have a long Committee stage. There are many points of detail that many of your Lordships will wish to discuss at that time.
§ 7.7 p.m.
My Lords, it is singularly unfortunate that on the first occasion that I have had the privilege of being involved in a discussion initiated by the noble and learned Lord the Lord Advocate, I find myself in opposition to him. I have a great personal and professional regard for the Lord Advocate. He has had long experience of the operation of the legal aid system in Scotland as a member of 768 various committees in the discharge of that service. The noble and learned Lord was good enough to make reference to the fact that as Lord Advocate, an office that I demitted nearly 36 years ago, I introduced the first legal aid Bill in Scotland. I shall deal with the history of that in a moment.
I wish, however, to point out my difficulty in respect of the Bill now before the House. I feel that the criticisms that I have to advance against what the Lord Advocate said are more criticisms of the brief that he had than of his personal convictions. With the skill that he displayed as an advocate at the Bar when appearing before me, he highlighted what he considered to be the benefits of the new system proposed in the Bill and skated skilfully over the defects in the proposal. He highlighted the alleged defects of the existing system by reference to generalisations of a vague nature not specified and obviously not researched by those instructing him. That is not his fault. It is the fault of the people responsible for a Bill of this nature coming before the House.
He prayed in aid the recommendations of the Royal Commission chaired by the noble Lord, Lord Hughes, but his references to the Royal Commission and its recommendations were very selective. He selected one and omitted many others which run in conflict with the proposals in this Bill. In respect of the very fundamental point, the Royal Commission certainly recommended that the operation of legal aid in Scotland should be taken away from the Law Society. But they recommended that in its place there should not be a body such as is proposed in this Bill, but that there should be an independent body which would be responsible among other things for the operation of legal aid. I think that there are quite a number of matters listed in addition to that, with which I shall not weary the House. However, the suggestions by the commission was that a legal service commission should be instituted and that it should be independent.
It is said that the Law Society is not independent. I shall come to that in due course. But can it be said that this board is independent, if one looks at it against the background of all the provisions and those to come, of which we know not? Most of this has to be supplemented by a series of regulations, the contents of which we do not know. These regulations can make fundamental changes to the operation of the legal aid scheme, some of which have been noted by the noble Lord, Lord Morton of Shuna, and others to which I may make reference myself. If we are not informed whether these regulations will be subject to the affirmative or the negative resolution it means that the worst possible form of legislation will pursue the passage of this Bill into the unknown future.
Having said that, may I make one or two other observations on how things have been skated over, as they have been in the consultative document. The point was made, and is made there, that the development of legal aid in Scotland has been piecemeal and that there have been continual criticisms of that. What were the major criticisms? And what were the major piecemeal reforms? One was the introduction of legal aid and advice at a subsequent date—I think that that was 1972—and in criminal matters in a 1973 Act. But these were matters 769 that were recommended and formed part of the original Bill on legal aid. They were brought in by the appropriate procedure and it was therefore merely a question of filling in what were regarded as inadequacies as a result of these provisions not being made in the original Bill.
May I say that I personally was very sorry indeed that the original Bill did not make provision for legal aid in criminal causes at that time because, in my considered opinion, with all due respect to the people who have civil claims, the need for a man to have professional assistance when he is faced with a criminal charge, with all that that could import both in relation to his freedom, his future and his family, was much more important than providing him with legal aid to pursue a civil claim for damages. That was merely a personal view, and manifestly it did not carry weight with my colleagues.
It is then said that there is this conflict of interest in the Law Society in that they will be paying money out of the fund to their own members. What is the money which they would be paying? They would be paying not only to their own members but to members of the Faculty of Advocates. It would be money out of the fund, and money that would be prescribed by the fees which would have been laid down. They could not therefore be manipulating the fees in order to feather the pockets and the nests of their members because they would be restricted, and the account would be subject to audit if there were any dispute.
This question therefore of their having this conflict of interest because they would be paying money to their own members is far from valid. In point of fact, under the provisions of this Bill quite the reverse will take place. The complete control of the financing operation will be in the hands of the Secretary of State through the proposed board, which no one who reads the contents of this Bill, and the composition of the proposed board, would ever regard as an independent body. Apart from the exclusion of interfering with the determination of legal aid applications there is provision in the Bill that the Secretary of State can give guidance to the board in all their affairs—and we know what guidance by a Minister means in modern terms.
Having said that by way of preamble, may I take a point which the noble and learned Lord, Lord Wilson, took: that the major question here is not whether there are cracks in the existing system, but, on the basis that there are cracks, how these can best be dealt with. Can they best be dealt with by this root and branch proposal? Or can they best be dealt with simply by amending, under proper consultation and research, such cracks as are required to be cleared up in the existing system?
In so far as I was the person who introduced to Parliament the first legal aid Bill in Scotland I have been to this day, and still am, very anxious to see that legal aid is properly administered and carried out. I should be the first to criticise any fault which prevented that from being done. However, in approaching that question one gets to the point of determining what is the fundamental point in the legal aid system. It is the one which was quoted by the noble Lord, Lord Morton of Shuna, with reference to the Long Title of the 1949 Act. I shall not weary your Lordships by making reference to it other than that 770 it was clearly an Act to provide legal aid for people of necessitous or moderate means. That is always a relative term and requires careful determination. But it is certainly not the criterion which is set out in the consultative document; and—as I gather from what was said by the noble Lord, Lord Morton—that was disclaimed by the then Secretary of State. I hope that that will be noted and recorded.
May I come to the question of the development of legal aid in Scotland. The whole basis of the introduction of legal aid in Scotland stemmed from the Rushcliffe Report in England, as developed and applied to Scotland in its recommendations by the Cameron Report—a report that I am sure the noble and learned Lord the Lord Advocate would be prepared to accept with acclaim. There was a difficulty in Scotland which did not exist in England. The difficulty was that in England they had a Law Society to whom they could devolve the responsibility of setting up and operating the scheme for legal aid. In Scotland at that time there was no one body of solicitors who were in a position to carry out that function. There were a number of individual societies of lawyers in Scotland, but they all had their own particular interests, and manifestly a legal aid scheme could not be carried out in Scotland without a body—such as the Law Society in England—to operate it.
For many years a prominent solicitor in Edinburgh, Sir Ernest Wedderburn, had been trying to get a Law Society of Scotland formed through the requisite legislation. He induced a former Lord President of the Court of Session, who was then a Lord of Appeal, Lord Normand, to introduce a Private Member's Bill in your Lordships' House for the establishment of a Law Society in Scotland. Like most Private Member's Bills in those days, it just disappeared into thin air.
However, this presented an opportunity to get such a Bill passed as a Government measure when normally it would have had to be a Private Member's Bill, because it was essential for the operation of legal aid in Scotland. If anyone cares to look at the 1949 Act, they will find that it is in two parts. The first part is the institution of a legal aid scheme in Scotland, and the second part is the institution of a Law Society in Scotland.
To that Law Society, when it was instituted, there was delegated the task of preparing a scheme of legal aid—a scheme which had to be approved by the Secretary of State and accepted by the Treasury. It got that approval, and it got that acceptance. Any scheme that gets the acceptance of the Treasury is obviously one that would not be subject to much criticism. For the next 35 years the Law Society, in collaboration with the Faculty of Advocates, have carried it out. They have carried it out with satisfaction and acceptance.
Again I return to the Royal Commission and its recommendations. In the recommendations the Royal Commission paid tribute to the Law Society, and in suggesting the setting up of a Legal Services Commission they paid tribute to the solicitors' branch in particular and said that they had never tried to further their own interests, and that they could be trusted to form this new Legal Services Commission by their representation on that body.
771 While there was this alleged conflict of interest in theory, it has never existed in practice. This Bill is proposing a root and branch change in the operation of legal aid in Scotland. The onus is manifestly on the Government to satisfy your Lordships' House that there is a requirement for this and that there is no reasonable and preferable alternative.
The first paragraph of the consultative document which has been circulated tells its own story, and tells the story of this Bill. It reads:The use and cost of the schemes have expanded significantly. The Secretary of State has accordingly decided that the arrangement should be reviewed and modified.The review and modification are contained in this Bill. Why? Because "the use and cost of the schemes have expanded significantly."
What is the use? The use is giving legal aid in civil and criminal cases, and in legal aid and advice. Why has it expanded significantly? Well, again the noble Lord, Lord Morton of Shuna, has made reference to some of the outstanding reasons. One glaring one is the proliferation of cases in the courts; both criminal and civil. The proliferation of cases in the criminal courts is mainly due to the proliferation of crime, and serious crime, which unfortunately exists at the present time. He also made reference to another factor, and that is the number of charges—and complicated charges—that one finds in an indictment, often with a large number of accused facing these charges. That inevitably results in long drawn-out trials.
It may well be that the circumstances of the offence require these long and complicated charges and a multiplicity of accused, but that is one of the facts of life, and if that is one of the reasons why the cost has expanded, then you have to face up to the question: are you prepared to limit the application of legal aid in necessitous cases in order to keep it within the confines of reasonable expenditure? Or are you going to follow out the principle of the original Bill and make legal aid available to all people who qualify and need it? That is the big issue. One of the frightening things, not only so far as the profession is concerned but so far as the public is concerned, is the extent to which legal aid may have to be cut down in order to meet the require-ments of finance, which will be restricting the operation of the scheme.
By the same token, we find that in the civil sphere there has been a great increase in the number of cases in court as a result of legislation passed by the Government. Various recent Acts such as the Tenants' Rights Etc. (Scotland) Amendment Act 1980, the Matrimonial Homes (Family Protection) (Scotland) Act 1981, and the Rent (Scotland) Act 1984, are all producing more and more litigation. That is why the cost is mounting so rapidly. Within that the biggest factor is the fees paid to solicitors and counsel. The Secretary of State has taken over the determination of the fees to be paid. Therefore, he is going to have control over that. That would be the same whether the system is operated by the board or as it is at the present time; he will have control of the fees.
The consultative document goes on to say that the need for a change arises from government policy. What are the respects that are mentioned? One is 772 improving accountability. What does that mean? It is one of those vague and indefinite terms which sounds impressive, but what does it mean? In what respect is the present system falling short of accountability and who is responsible for it? We are not told.
The Secretary of State, under the proposal, has control over expenditure through the board which will be his handmaiden. It is a very selective board, as I have already said. How will he deal with the fees? Will the committee chaired by Lord Wylie, which operated until the Secretary of State took over, be retained or will the Secretary of State be proceeding merely on recommendations made by his department? Lord Wylie's committee was an independent body and dealt evenhandedly with claims made by the profession and the attitude of the Government through the Secretary of State.
The document goes on to say, again in sweeping generalisations, that the purpose isto improve efficiency, effectiveness, economy, equity … and [give] value for money".But nothing is said about how that will be achieved. If there is a deficiency, who is responsible? On the test of value of money, is it the value received by the Government or by the applicants? Has any research been done or has there been any study to find out whether these allegations are warranted? With all the duties and the responsibilities that the proposed board will be taking on, there will be a large degree of mounting costs. The committee will take on board not only the operation of legal aid generally in Scotland in the scheme but also the responsibility for administration and determining applications for legal aid in summary causes in the criminal court throughout the length and breadth of Scotland. That will result in a heavy body of work and will involve a great deal of additional expense. How will one make any impact on effectiveness and efficiency and make savings in expenditure in that situation?
I wonder how often the members of the board will have to sit. Not only the supreme court committee but all the district court committees will be dispensed with and all the work will fall back on to the board. It in turn, no doubt, will have to have a number of sub-committees, but I wonder to what extent they will have to sit more frequently than apparently is envisaged. In that situation are they likely to get, from the sparse number of professional people in the law who will be allowed to be in the body of that board, people who will be prepared to have that great intrusion into their practice merely for a sessional fee?
I am sorry to have taken up so much time, but I feel so strongly. I think that the proposal in the Bill is ill-conceived, ill-thought-out, ill-researched and its results badly prognosticated. If any alterations are required let us have them, but we do not require the new scheme to have them. They can be amended into the existing scheme. In so far as this may be necessary it has my full support. If the opportunity ever arises I should be only too happy to supply the noble and learned Lord Advocate with a number of proposals in that regard. However weak they may be and however much it may cost to remedy them, that should not be done at the expense of the people for whom legal aid was devised and intended.
773 It is frightening to think of the power being given to the Secretary of State under the Bill. What is even more frightening is the power that is being given through secondary legislation of an unknown nature, to which I have already referred. When that includes that in terms of the Bill by secondary legislation the Secretary of State could exclude legal aid in summary prosecutions simply by introducing the appropriate measure, we do not know whether that would be by affirmative or by negative resolution.
I am sorry to have delayed your Lordships. In Clause 31 the whole principle from the beginning was that under the legal aid system the applicant would have the same rights as the individual independent client to choose his own solicitor and counsel, but under that clause that principle of the applicant having the right to choose his own solicitor will be swept away.
If I may be pardoned for making this observation, when I was first making inquiries into the introduction of legal aid in Scotland prior to the 1949 Act, not only did we have the Rushcliffe and the Cameron Committee reports to guide us but I was having meetings with the various members of the legal profession. There was political opposition to this because it was said that by that Act we were trying to nationalise the legal profession. That was complete and utter nonsense. We were saying to the legal profession, "There's the money; you run the show". Anything further from that allegation is difficult to imagine. I always thought it was difficult to imagine until we came across Clause 31(9). That is the nearest approach to nationalisation of the profession that I have come across. It is ironical that it should come from this source.
The consultative document is highlighted, as was said by the noble and learned Lord the Lord Advocate, by the alleged conflict of interest on the part of the Law Society of Scotland. One wants to know what lies behind that criticism, because it is suggested that the advancement of the interests of members would conflict with the operation of the legal aid scheme. What does that mean? Does it mean that in that situation the Law Society would act as a disruptive influence in the proper carrying out of the scheme; that it would be knocking the balance out of the scheme and putting the interests of its members before the interests of the proper running of the scheme? That is an allegation that cannot be made, nor can it be sustained. It is one which already has been met by the reference I have made to the commendation made in the Royal Commission's report.
I am sorry that I have spoken so long. Perhaps I may say that the Bill has no friends in the broad legal profession in Scotland, from the head of the court right down to the rank and file members. This is not a question of the profession closing its ranks in its own interests. The history and the reputation of the voluntary supply of legal services given in Scotland by the legal profession for centuries prior to the introduction of this Bill is the answer to that. It is a record second to none and one of which we have always been very proud indeed.
Therefore this is not a question of closing the ranks. It is a realisation that this measure is not necessary and is not called for. The points raised by the Government 774 can be dealt with in other ways and there would be a great deal of dissatisfaction in Scotland if this measure introduced a system for which the legal profession, as a body, has no time.
§ 7.40 p.m.
§ Lord Kirkhill
My Lords, it may sometimes seem that legal aid is mainly of interest to lawyers and criminals. But I believe it is important to recognise that it is a vital public service which many ordinary people will have to call on at some point in their lives.
In my view, this Second Reading debate gives your Lordships' House an opportunity to focus attention on the difficulties ordinary folk have in seeking access to the law and access to justice. Obviously, one way of achieving this is to make the law itself more accessible, for example by producing simpler statutes—clearly more easily said by me than capable of accomplishment, as I know from experience of listening to Bills being debated in your Lordships' House—and of course by providing more information and education about people's legal rights.
The courts, too, could, and in my view should, be more accessible to everyone. This, so far as I can see, is far from the case at this present time, although it would be churlish not to acknowledge that the noble and learned Lord, the Lord Advocate, has taken one or two, if I may say so, somewhat hesistant steps in this direction. Those are steps such as the new simplified divorce procedure and the new small claims procedure which we discussed last Session and which we hope to see available in the courts in the near future.
However, no matter how much progress is made in these directions, it will always be the case that people will at some point need expert legal advice on the meaning and implications of the law and expert help in putting their case in courts and before tribunals. It need hardly be said that expert advice and help costs money. If we live in a just society—and I hope we strive to that end—we must ensure that everyone can have access to the expert advice and help which is available, irrespective of their means. This, then, should be the major objective of the legal aid system. It should be to ensure that everyone who needs legal advice and help has access to it, irrespective of ability to pay.
This Bill, which provides for a new administrative framework for legal aid in Scotland and sets out the various legal aid schemes, is an ideal opportunity for us to consider how legal aid should operate in the public interest. The main provision in the Bill, the establishment of a new board to administer legal aid in Scotland, has of course a very respectable parentage. As the Royal Commission on Legal Services in Scotland pointed out, there is a clear appearance of a conflict of interest in the Law Society's role as administrator of the legal aid fund from which its members benefit directly, although I acknowledge that the noble and learned Lord, Lord Wheatley, cast grave doubt upon that interpretation.
In my view, this is no criticism of the way in which the Law Society has administered the system up until now. Rather, it is a question of public confidence that the system is administered wholeheartedly in the public interest. However, as my noble friend Lord Morton of Shuna has just been emphasising, there will 775 be concern to see that the new board is truly independent, not just of the Law Society but of the Secretary of State for Scotland. I am bound to say that there is a terrible suspicion abroad in Scotland at the moment that, when this Bill is enacted, one more obedient creature of the Secretary of State will have been created.
Surely it is a matter of concern that, as presently drafted, the Bill gives the Secretary of State extensive powers by regulation to control the work of the board and to prescribe the scope and availability of legal aid—powers in some circumstances in fact to alter the provisions of this Bill as agreed by Parliament. Many of these powers are subject to affirmative resolution procedure, which of course will allow parliamentary scrutiny. However, many are subject only to negative resolution procedure. I hope that your Lordships will be concerned to see that, though the Secretary of State may have powers to give instructions to the new board, these do not lead to a radical reduction in the legal aid schemes. It seems to me that there must clearly be proper parliamentary scrutiny of any proposals which would restrict the scope or availability of legal aid.
I express the hope that the provisions in the Bill which set out the various schemes of legal aid will be seen as an opportunity to amend some of the existing anomalies and unfairnesses which exist in the schemes at present. One example of this is the current position where people who receive legal aid or legal advice must pay for it out of any money or property which is recovered. This can cause considerable injustice for someone who wins a case, has his legal rights vindicated, and then finds that a large part of or perhaps all the money he has been awarded disappears into the legal aid fund.
The Bill proposes to make changes to the criminal legal system. Here again, I hope we shall want to ensure that accused people have access to expert advice and help. Surely, it is a fundamental principle of our legal system that everyone prosecuted for an offence is entitled to a good defence.
More generally, I hope that this Bill will allow us to think about those purposes for which the law and the courts and lawyers exist. It is sometimes forgotten that laws and the courts should serve the public and not merely the needs of lawyers or administrators, which is the feeling that one sometimes has as one views the legal scene from outside. In my view, we must be careful to consider how the public interest can best be served. At subsequent stages of the Bill just such consideration will indeed be most necessary.
§ 7.48 p.m.
§ Lord Foot
My Lords, nobody will regret it more than I that the noble and learned Lord, Lord Denning, has had to cry off and will not be speaking to the House in this debate. He told me that he had another engagement which he had to keep. I deplore it particularly, of course, because I think it leaves me the solitary Englishman who has had the temerity to take any part in this discussion.
I am reminded that the same thing happened to me some years ago. I sought on that occasion to make some small contribution to the debates on the 776 Criminal Justice (Scotland) Bill, and I remember that I was regarded with some misgiving by the Scottish Peers in the House, I think particularly by the Scottish lawyers, who thought there was some kind of presumption on my part to be taking part in the discussion at all. However, I recall that the atmosphere got a little warmer when I was able to pray in aid on my own behalf the fact that my mother was Scottish born and bred, and on that account the Scottish Peers were at the time generous enough to take the view that, that being the case, the fact that my ancestry on my father's side was irremediably English was something that might be overlooked. My mother was indeed very proud of her Scottish heritage and her Scottish forbears, and I well remember how, when we were small children, she used to gather my brothers and sisters and myself around her knees in order to tell us of the trials and tribulations which had beset the Clan Mackintosh, and particularly of the awful treatment that they received from the unspeakable Campbells.
The reasons why I wish to take a very small part very briefly in this debate tonight are the same reasons as those that I had for taking part in the debates about the Scottish Criminal Justice Bill so many years ago. First, the subject itself is of intrinsic interest to somebody like me, who has been engaged all his professional life largely in the practice of the criminal law. The other reason is that it seemed to me at the time of the passage of that Bill that what was being done and the reforms and changes that were being introduced for Scotland in that Bill—and I have forgotten how many years ago it was; it was five or six years ago, I think—were likely to have important implications for English lawyers and for English law. And so it turned out to be, because when later on we introduced our own English criminal justice reform Bill many of the matters which had been threshed out and contained in the Scottish Bill found their way into the English legislation, and we had the advantage of the experience which had been derived from the Scottish measure. It is right to say that in that regard, as so often, it was the Scots who led the field and it was the Englishmen who brought up the rear.
It is those same considerations which have prompted me to make this short intervention tonight. I want to make only one point of substance. As I understand it, up till now, and indeed during the last 20 years or so, the legal aid schemes in Scotland and England have in the main been very largely the same, and the criteria for the granting of legal aid have been very largely the same. In both countries civil legal aid and assistance and advice have been administered by the Law Society in England and by the Scottish Law Society in Scotland. In both countries criminal legal aid has been the business of the courts and not the business of the law societies. In both countries, in civil legal aid cases the test of eligibility has also been the same; that is to say, the applicant must have an arguable case and it must be considered in the discretion of the (in this country) legal aid committee, and it must be reasonable, that legal aid should be given. My very firm belief is that it is of major consequence that that correspondence and that similarity between the procedures and the mechanism in England and in Scotland should remain and be retained.
777 It is legal aid, as has already been said more than once, which determines the citizen's right of equality in his access to justice. It would be, as I think, quite unacceptable if legal aid were to be less available or of less benefit and of less advantage to one group of citizens simply because they lived in different parts of the kingdom. I think that it is vitally important for the stability of the realm that in these fundamental matters, in these basic rights of access to the courts, there should be an equality of right as between all the citizens of the United Kingdom.
This Bill, as has already been pointed out more than once, makes most important changes in all three of the areas to which I have drawn attention. The major change is the substitution of the Legal Aid Board for the Scottish Law Society. As I understand it from the consultative document, the establishment of the board was unanimously recommended by the commission under the noble Lord, Lord Hughes. What I find very remarkable is to look and see what the Benson Commission advised and recommended on this score.
The Benson Commission was the commission which was charged with the duty of doing precisely what was done by the Scottish Commission on Legal Services in Scotland. It was to consider the whole question of the legal services in England and Wales. So far as I can see from the Benson Commission report, it never so much as entered their heads to consider that they should take the administration of civil legal aid out of the hands of the Law Society and put it in the hands of a board. Indeed, quite the contrary. If I may quote briefly from paragraph 11.18 in volume 1 of the Commission's report, they said:The evidence we have received shows a high level of confidence in the Law Society's administration of legal aid and in the manner in which it has discharged its stewardship since the inception of the scheme. It has combined humanity in the handling of individual cases with prudence in the control of public funds. It is right to place on record the significant contribution thus made in the provision of legal aid over a long period".I was impressed, as no doubt were all noble Lords, to hear the way in which that commendation of the work of the Law Society here in England was endorsed by the noble and learned Lord, Lord Wheatley, when he was examining the pretensions of the Bill that is before us. That is one thing. What I am afraid of is that if we are now going to transfer the authority for dealing with civil legal aid and advice and assistance from the Scottish Law Society into the hands of the board, there is a grave danger that as time goes by there will be a growing divergence between the practice and methods of administration of legal aid between the board in Scotland and the Law Society in England. We can be sure of that, because nobody has recommended that there should be established any comparable board in England. If that were to be done it would be quite contrary to the recommendations made by the Benson Commission.
The second change which is being effected by the Bill is to transfer to the board the grant of legal aid in summary criminal proceedings. Here again we find an extraordinary contrast between what is being put forward in this Bill and the conclusion reached on the very same matter by the Benson Commission in England. The Benson Commission considered this matter in some detail and they finished off their paragraph about the organisation of legal aid in 778 England and Wales with these comments under the heading of the divison between civil and criminal aid. They said,It might be thought that there should be a single system of civil and criminal legal aid administered locally by one agency.In effect, of course, that is what is now being recommended should be done by the board. They went on to say:This is not, however, possible because the two systems differ in nature. For civil purposes it is essential to conduct an investigation of the applicant's case in order to determine whether it is reasonable for him to be granted legal aid. To ensure that the grant or refusal of legal aid does not affect the outcome of the case in any way it is essential that this investigation be conducted by a body other than the court or tribunal that is to hear the case. In criminal cases, on the other hand, the applicant's eligibility is determined not by the merits of his case but by the seriousness of the charge brought against him. This can best be dealt with by the court before which the applicant appears. Separate systems of civil and criminal legal aid will therefore continue to be needed.So there again the Benson Commission comes to a verdict which is in complete contrast with what is being recommended to us in this Bill.
My last example of the changes—and I hope I shall not detain the House for more than a couple of minutes—which the Bill effects is that in Clause 14 it purports to re-state the two criteria which must be satisfied before civil legal aid can be granted. That is to say, first, that the applicant has what is known in Scotland as probabilis causa litigandi and, secondly, that it is reasonable in all the circumstances of the case that he should receive legal aid.
As was pointed out, I think by the noble Lord, Lord Morton, until now the question of whether it is reasonable for legal aid to be granted in any particular case has been left in England to the unfettered discretion of the legal aid committees. I understand that the same system has prevailed in Scotland. But now, under subsection (3) here, the Secretary of State can make regulations prescribing the factors to be taken into account by the board in determining what is reasonable. And of course the noble and learned Lord, Lord Wheatley, has again pointed out that there is no indication whatever as to what sort of factors will be put before the board to guide them in deciding the question of reasonableness.
Here again, as in the other instances, as I think, we are in very real danger of creating a gulf between the way in which legal aid is administered in Scotland and the way in which it is administered in England. We are in grave danger of having so different a system in the two countries that the people of Scotland, in all likelihood, are to be virtually second-class citizens so far as legal aid is concerned. That is the risk, as I see it, on which we are embarking in this legislation.
Finally, I think the Government may be getting themselves into a difficulty in regard to the European Convention. If it should turn out as I have suggested, that in the course of time there is a serious difference between the right to legal aid in Scotland and in England and Wales, would the Government not be in the position of being taken to Strasbourg under the European Convention, as being in violation of Article 6, which is the article which deals with a fair trial? It seems to me they would also be in breach of Article 14, which has to be read in conjunction with Article 6.
779 If I may, I should like just to quote the relevant sentences: first, from Article 6, which reads—Everyone charged with a criminal offence has the following minimum rights"—and I go on to the one which is relevant—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".If that is read in conjunction with Article 14, we find that is the article which says this:The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin",and so on.
May it not be that there is going to be a gulf between the rights of Englishmen and Welshmen to legal aid and the rights of Scots to legal aid? And if there is a wide difference between them, may it not be that it will be possible for somebody in Scotland in the future to take the Government to Strasbourg, complaining that they are in violation of the Convention? Of course, the Government have been in trouble on that account several times in recent years. I hope they are not going to dig another hole for themselves over the observance of the Convention.
I was struck, as I have no doubt all your Lordships were, by the massive indictment of this Bill which came from the noble and learned Lord, Lord Wheatley. It was a complete rejection of the Bill; and, of course, I am afraid it is significant that up to now in the course of this debate the noble and learned Lord the Lord Advocate has not found a friend in the House. It is not a very happy prologue to the debates in which we are going to be involved.
§ 8.10 p.m.
The Earl of Selkirk
My Lords, I apologise to the noble Lord. I am looking forward very much to hearing him in a very short time. I was impressed by what the noble Lord, Lord Foot, said. There must be a basic similarity between England and Scotland in this field. I have very little qualification to speak on this subject, except that I was present when the noble and learned Lord, Lord Wheatley, first explained to the Faculty of Advocates his proposals in regard to legal aid. It is very encouraging to hear the enthusiasm with which he still speaks and his objection to allowing this to become a semi-nationalised system, which is pretty near what we are doing.
The noble and learned Lord, Lord Cameron, said that we have had legal aid in Scotland for 400 years. We of our generation have to carry on that tradition in the proper way. Are we doing that? That is the approach. Are we making the best use we can of the facilities that we have?
The first thing that I notice about this Bill is the astonishing number of regulations. In many ways, the consultative document, which does not have regulations, is more informative than this Bill, but what is in the regulations is absolutely fundamental to the way in which it is to work. So we do not even know what this body will do.
780 It is quite clear that the Government are very conscious of the fact that the new Scottish Legal Aid Board will be directly under the Secretary of State and they try to escape that criticism. But one must remember that the members are appointed by the Secretary of State, they are paid by the Secretary of State, they are regulated by the Secretary of State and yet in Schedule 1 there is the solemn statement,The Board is not an emanation of the Crown".I do not know how that can be very well argued. If it is not, then it is a sort of hermaphrodite which is not the best organisation for anything remotely connected with government.
I do not quite understand the basis on which this change is to go through. There was talk of eliminating abuse, but the only abuse that I have heard mentioned is that there was a certain discrimination and that not all courts were being dealt with in the same manner in regard to legal aid. This may be a pity, but I do not think it is sufficient ground for the fundamental difference which is being introduced. I am afraid that almost anyone viewing the position objectively will feel that it is very substantially a question of money.
It is a funny question, but if this is not a Government department can a Member of Parliament be a member of the board? I see that the chairman cannot be a Member of Parliament, but that means that there is payment by the Crown. Am I right in saying that a Member of Parliament could be a member? I should have thought that that was wholly inappropriate.
I wonder whether I am going too far in asking this question. Are the Government really wise to accept the responsibility of this and throw themselves widely open to the parliamentary criticism which can be directed against them? I was a member of something called the General Board of Control, which dealt with mental illness before the war. At that time, it was a purely independent body. Then the Scottish Office brought it in for 25 years, right under the departmental organisation. It has now been taken out, and I think that the Scottish Office are glad to get rid of it. They are much happier that that organisation should be totally independent. I believe that they would be wise to take the same course here.
What liberty of action will this organisation have? Its money will be controlled, its regulation will be controlled and its members will be controlled. As the noble Lord, Lord Morton, said, the appointment of two lawyers on this essentially legal body is totally inadequate and we should certainly go into that aspect in very great detail.
I should like to draw attention to a couple more points. First, I am very glad to see that some arrangement is being made when there is assisted prosecution against an unassisted party. I should also like to draw attention to something which we were discussing indirectly when we considered women's rights in this House the other day. Clause 42(3) states that in the event of a man receiving aid,these resources of a person's spouse shall be treated for the purposes of this section as that person's own resources".That means that a wife has to cough up, to some extent, if her husband is fined. I should have thought 781 it was unnecessary to put that in and contrary to the structure of the relationship between a husband and wife.
I should like to ask one more question. Why is it that the Scottish Land Court is written with initial capital letters and the sheriff court is not? Is that the normal procedure or is that an attempt to degrade the sheriff court? Perhaps the noble and learned Lord will answer that question.
§ 8.16 p.m.
§ Lord Hughes
My Lords, I must apologise to your Lordships in general, and to the noble and learned Lord, the Lord Advocate, in particular, for the fact that my name does not appear on the list of speakers. He used the lovely phrase "returned from my peregrinations", which is difficult for me to say, so I shall not repeat it, but I was in Norway as part of a visit from the Western European Union, when we met the Ministers of Defence and Foreign Affairs and parliamentarians. When I went there, I was not certain whether I should be back yesterday or today, so I did not arrange for my name to be put down. I tried this morning to get my name added to the list through the usual channels, but on this occasion the channels must have been blocked somewhere so I have just come in as a blank speaker, unnamed.
It is tempting to start off by listing those of the recommendations of the Royal Commission that have been accepted and implemented by the Government and those that have not. But I shall refrain from that temptation and instead will deal with the Bill as it stands. But before I do so, I must make use of a note which I stuck on the front of my Bill. The noble Lord, Lord Foot, did not arouse any objection from me when he started to speak, but he certainly did before he finished. I certainly object to and resent the suggestion that if we differ from what takes place in England, then what is happening in Scotland is second class.
It did not seem to enter his mind for one moment that if there was a difference between the two schemes, it would be somebody in England who would complain to Europe that he or she was not getting as good treatment as in Scotland. I do not know whether or not people would, but I, at least, accept that it is a possibility that we might be better than them, just as I accept the possibility that we might be worse than them. There will be no more reference to the noble Lord, Lord Foot.
There has been much said about why this Bill has been brought in and there has been reference to the recommendations of the Royal Commission. What the Bill proposes is not what the Royal Commission suggested; and I am not referring to the difference of title between "board" and "commission". That matters not in the slightest. But what we suggested was a legal services commission going much wider than just the administration of legal advice, assistance and aid. I should like to suggest that the Bill is not sufficiently different from what the Royal Commission suggested to be incapable of amendment along such lines. I do not remember who said that there will be a long Committee stage, but that comment was probably right.
Why did the Royal Commmission recommend that this function should be taken away from the Law 782 Society? We made various comments. No one knows better than the noble and learned Lord, Lord Wheatley, that Royal Commissions do not pluck their recommendations out of the air. They arrive at them, as I know the noble and learned Lord's Royal Commission did, after much research, after listening to many people talking and after reading much written evidence. I have before me the volume of our recommendations but the evidence which acocmpanied it takes more than twice as much as this to put forward. It was from the consideration of all these items among others that this conclusion was arrived at. I want to make it perfectly clear that that does not imply that we considered that there was any malpractice indulged in by the Law Society of Scotland. We said on page 108 of our report:It has been put to us that it is wrong in principle for the governing body of the legal profession to be responsible for supervising the payment of public funds to its own members. No one has suggested that anything the Law Society has done is improper; nor have we found anything to suggest that. Rather the argument is that lawyers benefit financially from legal aid, and it is not proper that their professional organisation should be seen to be the body responsible for administering it. We think that the principle of this argument is sound".We went on to say:Most of us came to the conclusion that the management of the legal aid fund is not sufficiently independent of the Law Society to assert effectively the interest of the public purse, where these interests conflict with those of the profession on a wider front than simply the scrutiny of the amount of individual accounts submitted for payment. We do not seek to blame the Law Society in any way. Their dual responsibility of simultaneously promoting the public interest and safeguarding the interests of their members is an unenviable one".We say at paragraph 8.73:Having reviewed the principles and practice of administration of legal aid by the Law Society, we recommend that legal aid should be administered by an independent authority in the form of the Legal Services Commission which we propose in Chapter 20".I think my noble friend Lord Morton of Shuna asked about where the savings would come from. We did considerable research on this subject and in paragraph 8.44 we detailed savings which seemed to us to be possible. We are talking about the position some five or six years ago. The figures are applied then. We were persuaded that the savings which could be accomplished if our body was set up would be £1 million a year, which at the then costs was 10 per cent, of the cost of legal aid in Scotland. I have said that it does not matter whether it is called a board or a commission, but it does matter if it is not a services board or a services commission but a legal aid body.
I turn now to the Bill. In Clause 2(1) of the Bill the board is given wide powers. Clause 2(1) reads:Subject to the provisions of this Act, the Board may do anything—I should like to turn now to the various recommendations at page 66 of our report. Recommendation 6.7 said:
- (a) which it considers necessary or expedient for securing the provision of legal aid and of advice and assistance in accordance with this Act; or
- (b) which is calculated to facilitate or is incidental to or conducive to the discharge of its functions".The Legal Services Commission should carry initial responsibility for securing the adequate provision of public information on legal rights and legal services in Scotland".783 On page 81 we make a number of recommendations. We said:The Legal Services Commission should study and experiment with the best use of law centres in Scotland, bearing in mind the principles stated in paragraph 7.15".We also said:The Legal Services Commission should have power to provide financial assistance to firms of solicitors to establish offices in under-provided areas of the country".To this we attach great importance, as there are quite a number of areas in Scotland where people who require legal advice have to travel substantial distances because there is no solicitor in the area in which they live; or, alternatively, there is only one and he is already acting for the other party. That is less objectionable where there is more than one partner in the firm but when it is a one-man business, which it is much more likely to be in such areas, it means that the man cannot get local assistance. We found people who would be willing to set up in practice in some of these areas if there was a chance of making a reasonable livelihood of it. I should like to ask the noble and learned Lord the Lord Advocate this question. Will these wide powers which the board is to get enable it to carry out these functions? I give the noble and learned Lord notice that if it is not so I would wish to have amendments made which would give it the necessary powers to carry out these functions. I have quoted only some of the recommendations we have made there.
I turn now to Clause 4. With regard to Clause 4(2)(a) and (b), I want it to be quite certain that what is said in the Financial Memorandum is the case and that these two subparagraphs of the clause exclude any possibility of the Government imposing cash limits; also that in Clause 4(2)(c), where the Government take powers to pay to the board its expenses—the word "instalments" is not used, but that is the idea; it will be paid at different periods throughout the year—it is absolutely certain that the board will always have at its disposal sufficient powers to enable it to meet the on-demand requirement. It should not be like in some other areas. We have found it in local authorities—for example, in housing schemes, when a point in the year is reached where they say they can take no more applications because they have temporarily run out of funds. I want an assurance that that will not happen to this board.
I turn now to Part III of the Bill. On page 116 of our report, we stated our view of what legal advice, assistance and representation in civil matters should be. We said:Legal aid for advice and assistance and for representation in civil matters should only be available to help citizens to assert or protect their rights, and not to assist them in arranging their affairs for the benefit of themselves or others.I venture to suggest that that was the objective which the noble and learned Lord, Lord Wheatley, had in mind when the original Bill was presented—that no one should be prevented from asserting or protecting his rights because of lack of money. But when the Royal Commission on Scottish Affairs was set up one of the things which was perfectly obvious in connection with legal aid was that the original purpose of the Bill was not being fulfilled, first, because of passage of time, and secondly, because of the effects of inflation.
784 It was being said—and I believe it was said with total truth—that when the commissions were set up only the very poor and the very rich could afford to undertake necessary litigation. I hope that the noble and learned Lord the Lord Advocate will assure me and your Lordships that the purpose of legal aid, and of advice and assistance, remains unchanged: to enable people to assert and protect their rights without being needlessly interfered with by their financial positions.
That point brings me to a part of the Bill with which I find myself in total disagreement. I regret that the Government continue to include in the Bill restrictions on the incomes or capital that decide whether or not a person is entitled to free or assisted legal aid or to advice and assistance. Our recommendation was that there should be no upper limit but that the public purse should be protected by a rising scale. We recommended also—and this would have startled many people—that references to capital should be ignored.
We took the view that, in the main, capital was reflected in a person's income. We went into the matter in great detail. We know of the difficulties if, for instance, a man has £1 million but it happens to be represented by what is hanging on the walls in his library or study. How that wealth is taken into account otherwise, I do not know. However, we felt that those of moderate means—and your Lordships may remember that that consideration was something included right at the beginning—would be better able to enter into litigation if they knew that the cost to them was likely to be within their capabilities.
A major defect of the Bill is that immediately one passes the free limit 25 per cent. of one's reckonable income will be taken into account. That 25 per cent. is taken from the point immediately above the free figure, right up to the cut-off point. I do not think that such is in accordance with the views that were repeatedly expressed to us in the Royal Commission. Certainly I should like to see some alteration made in that respect.
I compared the figures in the Bill with those for 1980, and that exercise was rather interesting. As to the income limit for the free point, in 1980 it was £1,700 a year whereas in the Bill it is £2,255—an increase of 33 per cent. The upper limit figure in 1980 was £4,075, and that becomes £5,415, which is again 33 per cent. more, give or take a percentage point or two. I am not sure whether that 33 per cent. represents the figure for inflation between 1980 and 1986.
When it comes to the capital figures—and I do not know what particular reason the Government have for this difference—the lower limit cut-off point for free aid in 1980 was £1,200, whereas in the Bill it has become £3,000. That is an increase of 150 per cent. Obviously the Government have taken some account of the fact that the capital consideration was the one most capable of being criticised, although on the upper limit they have not gone quite so far: the Government have increased the figure from £2,500 to £4,710, which is 88 per cent.
One of the points that emerged from the evidence we received, and one of the objections to the taking of capital about which we received the most represent- 785 ations, concerned comparatively poor people. The crofters' commission told us that, as the position existed in 1980, a crofter with one cow could not obtain legal aid because the value of his cow meant that he had too much capital to be allowed legal aid. Farming is supposed to have fallen by 43 per cent., but I do not know how that affects the value of a crofter's cow. Nevertheless, such figures are subject to considerable criticism.
I have one other point to make concerning Clause 26, in Part V of the Bill. My Lords, I miss having a desk in front of me—but that is not meant as a request! I would refer to Clause 26(1)(b). Subsection (1) states:This Part of this Act applies to the employment of solicitors by the Board for any of the following purposes",and paragraph (b) then states:acting for persons receiving legal aid, either generally or in cases of any such description as may be prescribed".Another of the commission's recommendations that the Government have not yet taken up is that there should be a trial period for the appointment of a public defender. Do we have here a sort of minor public defender, who could come in under Clause 26(1)(b)? If so, then I shall be very happy to regard that as a kind of mini trial.
The noble Lord, Lord Foot, who is no longer in the Chamber, stated that the noble and learned Lord the Lord Advocate was in the position of not having anybody on his side. My noble friend Lord Kirkhill, in an aside to me, criticised that remark. My noble friend said that the noble and learned Lord had a half-friend in him. I must emphasise that although I am talking from my usual place in this Chamber, I find myself speaking much more as a former chairman of a Royal Commission than as a member of my political party.
It is for that reason that I hope to be able to enlist the support of even my noble friend Lord Morton of Shuna and the noble and learned Lord, Lord Wheatley. In Committee, we might turn this Bill into a legal services commission—and I have not converted the noble and learned Lord yet because I observe a slight shaking of his head! However, the criticism of both noble and noble and learned Lords was as to the independence of the board. I do not accept that criticism. In my time, I have for 12 years been chairman of a regional hospital board. For a number of years I was a member of the North of Scotland Hydro-electric Board—the first chairmanship for which I was paid. Then I was chairman of the new town of Glenrothes for four years. Subsequently, I was chairman of East Kilbride new town for seven years.
In every one of those cases I was appointed by the Secretary of State. Naturally, it was not the same Secretary of State. My colleagues on each of those boards were similarly appointed by him. However, we never regarded ourselves as the creatures totally of the Secretary of State who appointed us. There were many occasions, in every one of those bodies, when the Secretary of State was placed in the position of being told, "If you want us to do that which we do not wish to do, then give us a direction". The Secretary of State never gave such a direction.
I must admit that that situation has changed under the present Government. We know what happened in the case of gas prices and to a water undertaking when 786 those responsible did not want to do something and the Government compelled them to do it. That may have influenced what has been said today. But when we made our recommendation in the Royal Commission for a legal services commission, we obviously took it for granted that it would be appointed by somebody.
If our other recommendation to set up a legal services department of the Government had been accepted it could have come from that department, but in the absence of the creation of such a department the obvious person to appoint it is either the Secretary of State for Scotland or the Lord Advocate. Clearly from what has been said by my noble friend Lord Morton of Shuna it would be improved if there were rights of nomination to membership of such a board by outside bodies. I know, for example, that the consumer organisations would very much welcome the right to name people for such a board.
For all those reasons I find myself increasing the Lord Advocate's supporters on this Bill from one-half to one.
§ 8.41 p.m.
§ Lord Cameron of Lochbroom
My Lords, I should like to thank all noble Lords who have taken part in this debate. It has been a thoughtful debate which I found most constructive. I detected perhaps a form of muted welcome for the Bill and also that certain of the comments were more relevant to regulations which will be made under the Bill than to the Bill itself. Obviously these are matters of which my right honourable and learned friend the Secretary of State will take particular account when considering secondary legislation.
Your Lordships will perhaps forgive me if I do not cover all the points which have been raised by noble Lords, but I shall try to deal with as many as I can. The first, and I think the most substantial matter which concerned your Lordships, was why have a board at all. I think that the noble and learned Lord, Lord Wheatley—who I think almost took a plea of relevancy and lack of specification against me and argued in favour of it—opposed that particular point. He has had the answer, an authoritative answer, from the noble Lord, Lord Hughes.
The point that I wish to get across to the House is that we must look at the public perception. It was particularly that, I suggest, which the Royal Commission had in mind when acceding to the argument which the noble Lord cited from a passage in the Royal Commission's report. It would be only right to say that any one of us who has gone around would be conscious of just that particular flavour, unjustified I suggest in very many cases, of feathering of the nest. It is unfair to put an albatross of that kind round the Law Society, however well it may have been responsible for the running of the legal aid fund in the past 30, and now coming up to 40, years.
I say only this. So far as the justification for the board is concerned, in my submission that is plainly made out on the very basic arguments which were presented in the Royal Commission's report which have been accepted by the Government. I think it was suggested by the noble Lord, Lord Morton of Shuna, that one would have to show more. I suggest that is not 787 necessary, though I am bound to say that coming from the noble Lord, Lord Morton of Shuna, as a member of faculty I find it slightly strange that he did not use words such as "inefficiency" which have been on the lips—it may well be unjustifiable—of fellow members in regard to legal aid so far as it affects the faculty. I do not found upon that; I am merely pointing out that that is the kind of comment which can be destructive of the Law Society's role in the administration of legal aid and I suggest that is one very good reason why there should be this change.
Another, again pointed out by the noble Lord, Lord Hughes, is that by combining the assessment and determination role in applications—that is, the roles which are currently carried out by the Law Society and also by the Scottish Home Health Department, succeeding to the Department of Health and Social Security—one there achieves an administrative saving. There again I suggest that the case has again found some further corroboration.
I come to another point which exercised many of your Lordships, and in particular the noble Lord, Lord Morton of Shuna, and the noble and learned Lord, Lord Wheatley. I refer to the question of independence. There again I need only point to the very formidable remarks made by the noble Lord, Lord Hughes. It is perfectly true that this board will be appointed by the Secretary of State since he is responsible to Parliament for the board's expenditure, efficiency and effectiveness. But the members of most non-departmental public bodies are so appointed for similar reasons and I have not seen any lack of independent expression of views coming from such bodies. I would not expect this board to be an exception.
Obviously in Committee we will consider the kind of points as to its constitution that have been mentioned by noble Lords; those are very much Committee matters. However, I suggest that there is no real justification for suggesting that it will not be independent if it is appointed by the Secretary of State; nor indeed if it is in any way to work within a regulatory framework of regulations which are approved by Parliament since, again, the Secretary of State is here required to account to Parliament for what he proposes. Perhaps I may briefly deal with the point raised by the noble and learned Lord, Lord Wheatley. Provision is made in Clause 37 for the manner in which regulations are to be placed before Parliament.
There was some concern about the matter of guidance. Again, I take comfort from the practical experience of the noble Lord, Lord Hughes, having particular regard to what is set out in Clause 3(4). It is to be made abundantly plain that the guidance which may be given under that clause is only guidance to which the board shall have regard. It is not binding and in any event—and this is most important for those who will be the real gainers from this Bill—it will not affect the consideration or disposal of applications for legal aid or advice and assistance; that is, it cannot affect the matter upon which the board will be wholly independent.
I believe that the noble Lord, Lord Morton of Shuna, was also concerned about whether persons are 788 likely to be any better off or worse off under the new system. I make it quite clear that the basic criteria for the award of legal aid, which relates, inter alia, to the availability of means and to having a good case, remain precisely the same under this Bill as they are under present legislation. Indeed, if your Lordships were to compare the criteria as they are set out in this Bill, I think it will be found that they are in almost exactly the same terms as under the present legislation. In some instances—for example in the "interests of justice" criterion in summary criminal cases—it is proposed to clarify the position by regulations subject to affirmative resolution procedure, and this will mean that there will be an opportunity to debate the relevant factors.
Before I pass from that point, perhaps I may say that it is important to bear in mind that we are seeking consistency, which can be obtained much more easily in this realm—and I am talking particularly of the summary criminal case—than is presently the position. As regards sheriff courts, the most recent report of the Law Society under the Scottish legal aid Acts shows that there is a very wide variation in the proportion of applications granted between one sheriff court and another. It varies from something like 99 per cent. in one court to 58 per cent. in the other. I feel that with such a wide divergence there must be a suggestion that some people are not receiving what they might otherwise obtain elsewhere.
In the district courts, of which there are 54, over the year the variation in the proportion of applications granted ranges from something just below 100 per cent. (in fact it is 99.8 per cent.) to just over 60 per cent. in other courts. That again suggests a degree of inconsistency which can only imply that somewhere there has been injustice.
It is because of that in particular that within this Bill the Government have decided, for summary criminal cases, to take the granting of legal aid from the courts and place that responsibility with the new board. As I have said already, I understand that this measure is something which has been welcomed by many sheriffs, which surely speaks for itself. I so entirely agree with the noble and learned Lord, Lord Wheatley, that it is absolutely essential, particularly where a person is charged with a serious offence, that he should have the ability to obtain legal aid when he requires it.
I should again like to make it quite clear, as I thought I had done in opening, that the Government do not make any change whatsoever in the provision of legal aid for cases involving solemn procedure, that is, the serious cases. In those cases it is the courts which grant legal aid, and they grant it upon precisely the same criterion, that is, undue hardship, as presently is the case.
So I could say that this Bill and what it proposes for criminal legal aid has not demonstrably been shown to be to the disadvantage of those who very properly look for assistance when coming into conflict with the criminal law. In my submission, what is proposed is in fact in every sense better and fairer. It is fairer both to the individual, as is only right, and to the public purse.
In response to the noble Lord, Lord Morton of Shuna, I must say that it is no doubt the case, and it 789 must be the case, that the state is the paymaster, but I wish to make it abundantly plain to your Lordships that there can be no suggestion that, merely because the state is the paymaster, this fact in any sense impinges upon the constitutional duty of the Lord Advocate as the Crown Prosecutor to carry out his duties in an entirely independent and impartial way. I would demur from any such suggestion that may appear to have been made on that aspect in the comments of the noble Lord, Lord Morton of Shuna.
I should like now to turn to the question of civil legal aid. Again I wish to make it clear that these measures will remain basically unchanged. An applicant will receive legal aid if he is financially eligible, and that matter will be determined upon the same financial criteria which extend throughout the United Kingdom. Concerning the question of how it will be dealt with within the board, I think it is only right to remind your Lordships that of course the board has the power to set up its own committees and that my right honourable friend the Secretary of State has it in mind that the procedures for appeals in this area will remain very much the same as they are at present; though it must be said that he remains of the view that there is considerable scope for further improvement and rationalisation within the general administration of legal aid and that this will be more easily achieved under the new arrangements.
Indeed, it is partly for this reason that my right honourable friend is commissioning an independent study which will involve consideration of the existing arrangements and future requirements to assist the new board to determine the management, organisation and the administrative procedures which are best suited to the effective discharge of its statutory duties. The study is at the tender stage and my right honourable friend hopes that the contract will be let in March.
Perhaps I may again make it abundantly plain that as regards decisions on applications (I think this was a point which was raised by the noble Lord, Lord Morton of Shuna), while the probability is that local committees may not continue in existence, the intention is that the existing reporter system should continue broadly in its present form and, as I indicated in opening, this system will be comprised of lawyers acting locally.
Concern was voiced not only by the noble Lord, Lord Morton of Shuna, but also by other noble Lords, about the question of restrictions on certain individuals or types of proceedings. I think a reference was made to certain fears in this respect. The Bill makes no change to the present position which concerns the Secretary of State's power to make regulations which cover the inclusion or exclusion of proceedings for which legal aid may be given, except to the extent that it makes clear the stage of proceedings which can be covered.
The 1967 Act, by Section 1(3), allows the Secretary of State by regulation to include or exclude proceedings, both civil and criminal, for legal aid purposes. That can be done by reference to the court or the tribunal, to the issues involved and to the capacity in which the person requiring legal aid is concerned, or otherwise. This Bill makes no difference whatsoever to the Secretary of State's powers. I desire 790 to assure your Lordships that there is nothing sinister in the powers provided for the Secretary of State in the Bill. They are derived from the existing legislation.
The noble and learned Lord, Lord Wilson, gave measured support for the Bill, although he allied himself with certain criticisms voiced by the noble Lord, Lord Morton. His anecdotal evidence illustrates, perhaps more in the criminal sphere, the concern of the public generally that public money should be spent well and wisely. Again, that is one of the Government's concerns. It is not a question of trying to restrict the legal aid fund, because legal aid remains a demand-led service which is not subject to cash limits except in relation to its administraton. But, as with other demand-led services met from public funds, the Government have a duty to ensure that the resources are deployed as effectively as possible.
The noble and learned Lord, Lord Wheatley, raised a number of points, some of which I have already dealt with. There was a point in regard to Clause 31 which was of some concern to him. The reason for what appears there is to enable the board to bring into existence the duty solicitor scheme for criminal legal aid which is an essential part of that scheme. I made it clear in opening, and I think that in some sense this is the response that I would give to him, that the basis upon which assessment of parties' means for civil legal aid is made will remain precisely the same as at present; and that of course is upon a United Kingdom basis. So far as concerns the charge that this was a root and branch change, I hope that I have at least stilled his fears, particularly so far as the criminal system is concerned. I fully understand his anxiety.
So far as concerns matters that would be dealt with by solemn procedure, the situation will remain unchanged. It is only within the limited context of the summary criminal procedure, along the lines which I indicated in my opening speech, that there will be a change, but it will only be to the extent that the scheme provides for assistance, but without representation up to the point where a plea of not guilty is tendered; and at that point it will continue up to the point when an application has been dealt with by the board for the remaining procedure. I hasten to add that the appeal procedures will remain virtually unchanged. Again, I suggest to the noble and learned Lord that the Bill makes no root and branch change whatsoever.
The noble and learned Lord was also concerned about the issue of fees. The Secretary of State has taken the powers and responsibilities for fixing fees for legal aid work. I would only assure the noble and learned Lord that the advisory committee, chaired by Lord Wylie, will continue to advise the Lord President on fees for non-legal aid work which are laid down in Acts of sederunt by the Court of Session.
The noble and learned Lord was also concerned about the purpose of Clause 31(9), and suggested that it might be a new clause for nationalising the legal profession. That is certainly not the intention. It is no more than a re-enactment of Section 6(3)(a) of the 1967 Act. I assure your Lordships that there is no sinister motive in including that subsection in the Bill.
The noble Lord, Lord Kirkhill, made some helpful general remarks. He was the first of your Lordships to speak as a layman. If I may say so, he underlined the 791 need to have public confidence in the administration of legal aid. It was that which was behind the Royal Commission's whole recommendation. We have here just such a change which, properly regarded, can be looked at by the public as one which secures for them the very matters that they as individuals desire and which at the same time secures for them the proper administration and husbanding of public funds. Of course, as the noble Lord pointed out, there is extensive use of regulation to set up the framework of the scheme. That is to be found even in the existing legislation. The framework has been provided over the years by regulation. If one looks at the statutes in isolation, they provide only the very essentials that we find within this Bill. Thereafter, it was regulation that set up the framework.
It is always a pleasure to have even a solitary Englishman joining our debates. I was grateful to the noble Lord, Lord Foot, for what he said. His views about the emergence of a board as opposed to the Law Society were countered so far as I was concerned by the noble Lord, Lord Hughes. I do not always suggest that Scottish procedures are as good for England as they are for Scotland. I notice that at times your Lordships have been persuaded to follow Scottish procedures. On the other hand, I would say that we in Scotland have our own system of law and our own system of procedure. It is necessary therefore that the provision of legal aid should take particular account of that.
While I am not familiar with the arrangements in detail in England and Wales, I am advised that there are some very considerable differences in the way in which legal aid is dealt with and provided. One significant difference in relation to criminal legal aid which does not apply in Scotland is the contributory scheme. There is none such in Scotland and none such is in mind. Nor, indeed, is the duty solicitor in Scotland carrying out the same form and kind of duties as the duty solicitor in England. It is therefore perhaps too easy to suggest that there is a similarity. The differences are great. There is no reason for not allowing Scotland to pursue its own course. We were perfectly content to allow England to pursue its own course in what it deems to be its best interests.
I take account of what the noble Lord says so far as the European human rights convention is concerned. I would simply say this. There is no reason to think that there is anything in the Bill that might be held to be in breach of the convention. But, obviously, the criteria that will be prescribed will require to be scrutinised to ensure that there is no likelihood of a breach. I am most grateful to the noble Lord for bringing that matter to my attention and to the attention of my right honourable and learned friend.
My noble friend Lord Selkirk asked me in particular about the reason for change. I believe that I have dealt with that to his satisfaction. At least, I trust so. I cannot answer his question about the issue of a Member of Parliament sitting as a member of the board. That might be something to be raised at Committee stage. By then I might possibly have a response. I would only say that I note what he says about the spelling of the Scottish Land Court as 792 opposed to the sheriff court. I shall take advice on the matter.
The noble Lord, Lord Hughes, made, as I have indicated, a very helpful speech on the main principles of the Bill. It is only right that I should try to give some response to one or two of the questions that he put to me about the Bill. I have dealt with the general issue of cash limits. I would, however, point out on this issue that Clause 40(1) provides that the Secretary of State shall pay the sums that are required to meet payments. That is, of course, an absolute obligation. Subsection (2), to which he made particular reference, merely relates to the mechanism for that payment.
But the noble Lord did raise another and, I think, important issue, regarding the use of law centres and in particular the provision of solicitor assistance in certain areas. I can assure the noble Lord that the board's power to employ solicitors to provide legal services to individuals or local organisations continues in this Bill a provision that is in the existing legislation. I think it is right to say, as I think the noble Lord knows, that existing provision has not been brought into operation and I should say that there is at present no intention of extending the use of such law centres under the provisions in this Bill. However, the powers are there and I think that would be something which the noble Lord would be particularly concerned to know.
Some of your Lordships have expressed fears that this is a measure which is designed to curtail the scope of legal aid and its availability. But I trust that from what I have said, and in particular what has been said within the House this evening, your Lordships are now in a position to appreciate that this is not the intention. The primary aims are to improve the administration of legal aid in Scotland by bringing together under the control of the board the various functions which are at the moment scattered over several bodies and thereby to increase consistency in the award of legal aid and to clarify the legal aid legislation of Scotland. The Government hope very much that these measures which they are taking to improve efficiency, to achieve greater accountability and to limit further the scope for abuse will result in securing value for money and enable the available resources to be put to better use.
I am confident that noble Lords will fully support those objectives. Accordingly, I commend the Bill to your Lordships as a useful means of helping to achieve those objectives and thus fully deserving of your support. I look forward to the Committee stage. I take note of what has been said about its length, but I do not fear that.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.