COMMONS AMENDMENT (Hansard, 22 July 1986)

§ Lord Cameron of Lochbroom
My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 11. For the convenience of the House, and with leave, I shall speak also to Amendments Nos. 12 and 15.
As your Lordships may recall, I gave an undertaking in Committee that an amendment would be introduced in another place setting out on the face of the Bill factors to be taken into account by the Board in determining whether the interests of justice criterion has been satisfied. This amendment and part of Amendment No. 12 and Amendment No. 15 fulfil that undertaking.
The amendments take account of the views expressed by your Lordships, by the Royal Commission on Legal Services in Scotland, by the various bodies consulted, including the Law Society, and views expressed in another place. New Clause 24(3) in Amendment No. 12 sets out the factors to be taken into account by the board in determining whether it is in the interests of justice that criminal legal aid be made available in any case. We think that these cover the most important aspects which should commonly fall to be taken into account. It is neither possible nor desirable—I think that your Lordships would agree—to draw up a list which would cover everything which might be relevant in determining whether the award of legal aid is in the interests of justice in any individual case. The list is therefore neither exhaustive nor exclusive, and the board will be able, and indeed bound, to take into account any other relevant considerations which are placed before it in relation to a particular case. The test remains, as it is at present, whether in all the circumstances of the case it is in the interests of justice that legal aid be made available.
New subsection (4) gives the Secretary of State power to add new factors to the list, or to amend existing ones by regulation; but not to delete any factors. This power will enable the Secretary of State to take account of changes in criminal law or court procedure which suggest the list has to be updated; or to amend a factor which has unexpectedly turned out to be ambiguous or otherwise difficult to apply. These 193 regulations are made subject to affirmative resolution by Amendment No. 15, and will therefore require the approval of both Houses of Parliament.
The new subsection (5) in Amendment No. 12, as I indicated earlier in relation to Amendment No. 6, introduces for the first time a procedure for reviews of refusals of summary criminal legal aid.
Finally, new subsections (6) to (8) in Amendment No. 12 provide for the exceptional case where a person who is not legally represented in summary proceedings appears for trial, and the court concludes that he should be represented, either in his own interests or in the interests of someone else, such as a child witness. These cases were first raised in this House, I think by the noble Lord opposite, Lord Morton of Shuna, but were discussed more extensively in another place. The new provision will enable such cases to be dealt with quickly where speed is needed, while leaving the decision as to legal aid, as in all summary cases, with the board. It seemed to us that this was necessary if the consistency in awards of legal aid in summary criminal cases, which we all think important, was to be achieved.
Under subsection (6) the court is enabled to adjourn the trial to allow the accused to apply for legal aid, or to reapply if he had previously been refused, under the interests of justice criterion. The board is obliged to handle the application expeditiously. We would envisage that it could be dealt with, once received, in a very short time indeed—a matter of one or two working days. As I have said, we did not wish to give a court a general power to overrule decisions by the board, or to substitute itself for the board, since this could reintroduce the present inconsistencies between courts in the award of legal aid for at least some types of case. Reference of the case from the court to the board avoids this difficulty. On the other hand, the amendment would allow the court to take the initiative in raising the matter. Where legal aid had been refused by the board earlier, the court would in effect be asking the board to review the case in the light of the court's expressed view that legal aid should be available.
However, subsection (7) also provides that automatic legal aid will be available from the date of application until the application is determined. Legal aid will therefore be available to cover the preparation of the defence. Subsection (7) could also be used to ensure that the accused was legally represented if, very exceptionally, the court decided that the trial had to proceed more or less immediately, perhaps because it was undesirable or difficult to recall witnesses to a later diet. We envisage that there could be a mechanism whereby the accused could, with the assistance of the duty solicitor of the court clerk, fill in an application on the spot.
Subsection (8) provides for the situation where the board refuses an application on grounds of financial eligibility. As the legal expenses will have to be paid by the board under the automatic provision of subsection (7), it seems only right that the board should have power to recover those expenses from an accused who is able to afford to meet them himself. I have taken some time to set out the scope and purpose of these amendments. I beg to move.

§ Lord Morton of Shuna
My Lords, perhaps I may speak to the same amendments as the noble and learned Lord the Lord Advocate. If there has to be a reference to factors that may be in the interests of justice, and a clause relating to the interests of justice, it is better that it should be in the Bill. The factors listed in Amendment No. 12 appear, in general, to be satisfactory. The most satisfactory factor is the phrase "shall include" at the beginning. That leaves it clear to the person or persons making the decision that there may be other factors.
In the consultation paper the question was raised—and it was raised in this House and in another place—whether previous convictions would be a factor. The consultation paper drafted by the Scottish home and health departments suggested that that might be so. I can see the reasons why there is no mention even of a prohibition in the new clause; but I trust that the noble and learned Lord the Lord Advocate will in some way or another be able to get it through to people that this should not be a factor.
The amendment which is subsection (6), which gives the sheriff a right to suggest to the accused that he may apply for legal aid and for the case to be adjourned, I would suggest is a rather clumsy way out of the difficulty. However, I would dissociate myself with the suggestion made in another place by a Member who sits on the other side from me and for another political party that in some way the Government had gone back on their word. I think it is quite clear that the Government have done exactly what they said they would do in another place.
It seems unfortunate that this will usually involve adjournment of a summary trial and that if, for example, a sheriff decides that legal aid should be applied for because he does not want a young child to be cross-examined by the accused, the costs of the case if it goes ahead that day, will hang like a sword of Damocles over the accused. After the trial he may find that the Legal Aid Board decides that he was not entitled to legal aid anyway. These seem to me to be difficulties, but in general the amendments are to be welcomed; but I give them a subdued welcome.

The Earl of Selkirk
My Lords, I am very grateful to the Government for doing this because it is really turning regulations into statutes. I made a number of complaints at the number of regulations which were put in, and this clarifies the issue. I have no doubt that if this clause had not been there, regulations of this sort would have been used. However, it is much more satisfactory that these rather fundamental issues should appear on the face of the statute.

§ Lord Cameron of Lochbroom
My Lords, with leave, perhaps I may just answer one point which the noble Lord opposite made about previous convictions. The noble Lord may be aware that, as the amendments were put in another place, there was a specific factor. However; I think it was pointed out then that a tailpiece of that kind might be a disadvantage to some applicants who might wish to say that because of their previous convictions they were more likely to face a 195 sentence depriving them of liberty, which of course is a point covered by factor A. These representations were accepted by the Government and accordingly the particular amendment covering that was deleted.