Lords Sitting of 6 March 1986

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Ripon): The LORD CHANCELLOR on the Woolsack.

Dogs in Police Service
Lord Campbell of Croy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many dogs are in service or in training with the police forces in the United Kingdom.
Viscount Davidson: My Lords, at the latest count in January of this year there were 1,809 dogs and 153 bitches in service with county and metropolitan police forces in the United Kingdom. Those figures do not include dogs used by other police bodies such as the British Transport Police, the Harbour Police and the United Kingdom Atomic Energy Authority Police, for which the information is not collected centrally.
Lord Campbell of Croy: My Lords, I thank my noble friend for his reply, which was in more detail than I had expected. I am sorry that dogs lack female company to that extent. As it seems that dogs have been effective in carrying out the tasks of guarding premises, tracking suspects and searching for drugs, are the police planning to use more in the future? Can my noble friend confirm that on several occasions dogs have saved the lives of policemen by attacking gunmen and drawing their fire?
Viscount Davidson: My Lords, over the past two years the total police dog strength in the United Kingdom has risen by 14, from 1,948 to 1,962. The numbers are primarily a matter for the discretion of individual chief officers. When necessary, extra dogs and handlers may be borrowed from neighbouring forces under the mutual aid arrangement.
As regards dogs saving lives, we do not have the information centrally, but we know of three such cases which have been nominated over the past two years for the Police Dog Action of the Year Award. My noble friend will appreciate that in such instances it is impossible to say whether the lives of police officers would have been lost if the police dog had not acted, but in those cases there is a strong possibility that death or serious injury would otherwise have occurred.
Lord Mishcon: My Lords, is it not clear that we owe a great debt in this kingdom to the canine inhabitants? Will the noble Viscount the Minister tell the House how many of the numbers he so interestingly gave us are, in fact, specialised in drugs?
Viscount Davidson: My Lords, I certainly agree with the noble Lord that these dogs do an extremely important job. As regards those specially trained to
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detect drugs, the number I have here is 147, of which 54 are specialised in seeking out drugs and 93 are dual-purpose.
Lord Campbell of Croy: My Lords, can my noble friend confirm that in the police forces of this country there are a bloodhound and a St. Bernard? If that is so, what roles do they perform?
Viscount Davidson: My Lords, I cannot confirm that there is a St. Bernard, though I am sure that noble Lords would think that they could perform a very useful job from time to time. There is one bloodhound on the force which is stationed in West Yorkshire and is used solely for endurance tracking of human scent, to which it is particularly well suited. It does not sniff for drugs, explosives or dead bodies and is unsuited to general purpose work; but it has been extremely successful in locating and following tracks up to 15 hours old. It has also the ability to concentrate on tracking for longer periods than other breeds used by the police.

The Motor Industry: Financial Support
3.5 p.m.
The Duke of Portland: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the total sum disbursed by them in favour of the United Kingdom motor car industry during the past 20 years.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, the United Kingdom motor industry has received very substantial financial assistance from Government in the past 20 years. Aggregate figures are not readily available because the statistical records for some of the assistance schemes do not identify specifically what has been paid to the motor industry. However, since 1979 the Government have provided the United Kingdom industry with financial assistance of the order of £1¾ billion (including British Leyland).
The Duke of Portland: My Lords, will the Minister kindly say what benefit has been derived from this expenditure other than supporting British Leyland?
Lord Lucas of Chilworth: My Lords, I do not think that one should lose sight of the fact that £2.2 billion and £1.5 billion of guarantees has gone to British Leyland. In addition, £10 million has been provided, for example, for the development and marketing of electric commercial vehicles and there is a £2½ million programme to help develop a quiet heavy vehicle engine. There are a number of other, but somewhat smaller, amounts that have been made available through a variety of sources to the industry.
Lord Bruce of Donington: My Lords, is the noble Lord aware that the expenditure of some £2 billion, first of all in rescuing BL from bankruptcy and then on

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ensuring its continued development, is money very constructively expended and also very cost-effective? Is the noble Lord aware that it has been so constructive that all outside interests other than Her Majesty's Government are interested in developing it? On the cost-effective side, is the noble Lord aware that the money has saved the British taxpayer over £4 billion in terms of unemployment benefit that would otherwise have been paid and also a loss of revenue to the Exchequer?
Lord Lucas of Chilworth: My Lords, we have always thought that support for British industry is a proper part of Government function, up to a point; and that point is reached in a number of areas when industry is able to take on board and develop more profitably and more effectively the industries which the Government have helped through subsidy of one kind or another.
Lord Molloy: My Lords, does the noble Lord the Minister not agree that there are some aspects of the British motor industry which have been extremely useful to British industry as a whole and, indeed, to British defence? Does he not agree that it was quite correct not to have allowed the famous Rolls-Royce engine to wither on the vine, and that it should have been taken into public ownership if only for its massive contribution not merely to the economy but to this island's defence?
Lord Lucas of Chilworth: My Lords, I am glad to note that the noble Lord, Lord Molloy, recognises the great value to employment of the British motor industry. I presume he means the British-based motor manufacturing industry.
Lord Somers: My Lords, in view of the present situation, can the noble Lord give some assurance that it will not be necessary to change the letters "UK" to "US"?
Lord Lucas of Chilworth: My Lords, I am sorry, but I wonder whether the noble Lord, Lord Somers, would repeat the end of his question as I did not quite catch it.
Lord Somers: My Lords, I hope that the letters "UK" in the Question on the Order Paper will not have to be altered to "US".
Lord Lucas of Chilworth: My Lords, Government support for the United Kingdom motor industry would go on and, indeed, it has, because we have, for example, provided an amount of support money for the Ford Motor Company's engine plant in South Wales and also for General Motors' diesel engine production in the United Kingdom. We have provided £11 million-worth of support through the regional support system for Nissan at its new plant at Washington.
Lord Hatch of Lusby: My Lords, can the noble Lord tell the House how the figures that he has given for support from the Government for British car manufacturing compares with that of our major competitors, such as France and Italy?
Lord Lucas of Chilworth: My Lords, I regret that I cannot give the noble Lord, Lord Hatch of Lusby, that information, because we are not able to gather from foreign countries accurate figures which would make any comparision worthwhile.
Lord Stoddart of Swindon: My Lords, is it not a fact that BL supports hundreds of thousands of jobs, apart from the 80,000 jobs which it provides directly? Is it not also a fact that BL contributes £3,000 million to our balance of payments, in that if we did not have BL we should have to import 500,000 extra cars?
Lord Lucas of Chilworth: My Lords, I do not think that the last set of figures is necessarily correct. However, I could agree with the noble Lord that British Leyland, together with the Ford Motor Company, General Motors and all the other companies that produce motor vehicles in this country and export them make significant contributions to the economy of the country.
Lord Mellish: My Lords, can the Minister explain to me the logic of the argument that unless the industry remains British it will somehow be bad for Britain, when in fact in the motor car industry in this country we have Ford (which is American-owned, lock, stock and barrel) which employs thousands and thousands of British workers and produces thousands and thousands of cars and thus gives an enormous boost to our balance of trade? Is it not an extraordinary argument therefore that somehow, because a company is American-owned, we in Britain lose out on everything? If that is so, what are Ford doing?
Lord Lucas of Chilworth: My Lords, I would dearly like to debate that point with the noble Lord. Lord Mellish, but I fear that his question is a little wide of that on the Order Paper. In the last few days I have frequently discussed with noble Lords this general position of inward investment into the British motor industry and thereby the long-term benefits for the industry and those who work in it.

Energy Saving: Policy
3.12 p.m.
Lord Ezra: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what levels of investment in energy efficient equipment will be required to achieve their stated objective of reducing the nation's energy bill by 20 per cent. in five years.
Lord Brabazon of Tara: My Lords, the overall savings we look for can be achieved by a variety of means. A substantial proportion can be achieved simply through better management, and with little or no investment. The rest of the savings—perhaps just over half—require investments with a relatively short payback period. Given payback periods ranging from a few weeks to five years, an associated investment of some £6 billion to £9 billion might be required.
Lord Ezra: My Lords, is the noble Lord aware that a 20 per cent. saving in energy consumption would amount to some £7 billion per annum, and that in five years' time this could well exceed the earnings which we receive from North Sea oil? In that case, can we be assured that, as well as the efforts put in this year to stimulate energy saving, the Government are taking steps to see that the momentum is adequately maintained?
Lord Brabazon of Tara: My Lords, I can certainly give the noble Lord the assurance that the momentum will be sustained, as it has been for the last two years, beyond the end of Energy Efficiency Year 1986. To some extent I think that the momentum will be self-feeding, as more and more industries discover the benefits that some of their competitors have received from an energy efficiency campaign and will naturally want to keep up with them.
Baroness Seear: My Lords, would the Minister agree that better insulation of houses would contribute greatly to energy saving and would be extremely job-creative, if money could be forthcomig to help people who are in a position to do this work? Is the Minister aware that only this morning I visited a company which was started and is run entirely by young blacks, whose efforts in this direction are being held up by red tape so that it has taken them several months even to get a form answered?
Lord Brabazon of Tara: My Lords, as regards the latter part of the question of the noble Baroness, may I say that I am sorry that this should have happened. I imagine that this scheme is part of the voluntary insulation scheme which is funded partly by the Department of Energy, partly by the DHSS and partly by the Manpower Services Commission. I must say that I am disappointed to hear that such a scheme should have been held up because of red tape. As regards the question of home insulation, the Government are still giving grants for that work. A normal grant of 66 per cent. can be paid to householders, up to a maximum of £69, and over 2½ million grants of this kind have been paid to date. For the elderly and the disabled a 90 per cent. grant of up to £96 is payable, and over 300,000 such grants have been made.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that we very much support the energy saving programme and we wish it well? Will he also pay great attention to what the noble Baroness, Lady Seear, has said about job creation? Is he aware that up to 155,000 jobs could be created in this country provided that the Government have a planned and sustained energy saving campaign and are prepared to increase pump-priming operations.
Lord Brabazon of Tara: My Lords, I hope I made it quite clear that we do indeed have a sustained energy saving campaign. I cannot confirm the figure for the number of jobs that could be created through this, other than to add to what I said to the noble Baroness that the voluntary insulation scheme so far has created 3,000 jobs in projects of this kind.
Baroness Gardner of Parkes: My Lords, is the Minister aware that bodies such as the London Electricity Board are doing a great deal to help domestic consumers make personal savings by better information campaigns, and are thus enabling them to obtain better value for money in the use of energy as well as to save energy?
Lord Brabazon of Tara: My Lords, my noble friend is quite correct. Indeed, all the suppliers of energy—the gas boards, the electricity boards and the oil companies—have been supporting the Government by mounting energy efficiency campaigns and by pointing out to consumers how best they can save money.

Post Codes: Usage
3.16 p.m.
Lord Gainford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how widely post codes are used.
Lord Lucas of Chilworth: My Lords, the question of post code usage is essentially a matter for the Post Office Board. However, I understand that the latest figures available show that in January of this year 64.4 per cent. of all mail was postcoded. This compares well with the figure of 58.4 per cent. in January 1985.
Lord Gainford: My Lords, I thank my noble friend for that information. Has he any information as to whether the use of post codes definitely speeds up the mail service?
Lord Lucas of Chilworth: My Lords, post codes enable the Post Office to make the fullest use of its investment in sorting machinery, and thus to accelerate the handling of letters and of course to hold the tariffs. The Post Office now has a network of 80 mechanised sorting offices. That network was completed at the end of last year and I have no doubt that some of the rewards will be seen on our doorsteps as weeks and months go by.
Lord Avebury: My Lords, would it be a good idea if the Government themselves set a better example in the use of post codes? Is the Minister aware that after repeated attempts I was unable to persuade the Home Office to issue a circular asking the governors of prisons in England and Wales to show post codes on the prison address stamps? Even after the chairman of the Post Office Corporation personally wrote suggesting that it would be a good idea for an organisation which sends and receives several million letters a year to use the post codes, there are still a number of prisons—such as Frankland, Camp Hill and Blundeston—which refuse to comply with the advice given by the Post Office. Will the noble Lord look into this and ask his colleagues in the Home Office to do something about it?
Lord Lucas of Chilworth: My Lords, I am obviously disappointed to hear what the noble Lord has to say.

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I assure him that his point will be passed on to my right honourable and honourable friends in that particular department.
Lord Boyd-Carpenter: My Lords, can my noble friend say whether there is any relationship between the increased mechanisation of the Post Office and the notoriously increasing time taken to deliver mail?
Lord Lucas of Chilworth: My Lords, I am quite sure that my noble friend's question is meant to be serious, although it invoked laughter. On a sample taken last year, the percentage of first-class deliveries by the first working day following collection was 89.1 per cent. against a target figure of 90. That compared with 86.4 per cent. in the previous year. I think my noble friend will agree that it is always the percentage that is not delivered, particularly to an individual, that causes annoyance and disappointment, and attention is not drawn to the 89.1 per cent. of mail that is delivered.
Lady Saltoun of Abernethy: My Lords, since you cannot use the post code if you do not know it, will the Government put pressure on the Post Office to make arrangements with British Telecom to have post codes printed in telephone directories?
Lord Lucas of Chilworth: My Lords, "No" is the short answer. That is not a responsibility of government: it is a responsibility of the Post Office and British Telecom, and essentially a commercial matter for BT. It should be remembered that the primary use of a telephone directory is to assist telephone users and not postal users. But much has been done to encourage the use of post codes. Press, radio and television advertising, and posters on vans, have been used to encourage members of the public to pass on their post codes. There was a year-long trial scheme in Darlington whereby members of the public could obtain information through the freephone facility. The results of that trial showed that the freephone is not a cost-effective way to encourage post code usage.
Lord Mackie of Benshie: My Lords, I understood from the noble Lord's previous answer that 64 per cent. of the public are using the post code in addressing their letters. He said that about 80 centres had mechanical sorting equipment. For what percentage of the letters so addressed by the public is the mechanism used?
Lord Lucas of Chilworth: My Lords, I think that I should make it clear—I obviously did not in my earlier answer—that 64.4 per cent. of all mail is post coded. I was not talking about the percentage of people posting letters. That may be my fault. About two-thirds of the mail is now automatically sorted.
Lord John-Mackie: My Lords, if a letter is addressed with just a name and a post code, will it get there?
Lord Lucas of Chilworth: My Lords, I have the utmost admiration for the postal service, particularly the postmen. It amazes me how good they are at finding people and delivering letters, sometimes with only a name and a town, let alone a post code.
Baroness Macleod of Borve: My Lords, I welcome the increase in the use of post codes throughout the country, but if they are used nationwide will that prevent (as one hopes) the obnoxious habit of people putting "Berks", "Hefts", "Bucks" and other awful shortened forms of shires on the envelope?
Lord Lucas of Chilworth: My Lords, I do not think that 100 per cent. usage of post codes would stop that. Although they help in mechanised sorting, I am sure that my noble friend will appreciate that many odd-sized packages are not suitable for mechanised handling and post codes will not speed up their delivery. People have great affection for "Hefts", "Bucks" and "Berks". One would not wish to legislate against people using favourite forms of addressing letters to, for example, loved ones or, indeed, to business acquaintances.
Lord Bruce of Donington: My Lords, although there is always room for improvement, will the noble Lord please assure his noble friend Lord Boyd-Carpenter that the record of the British Post Office measures up very favourably indeed to the services provided in other countries?
Lord Lucas of Chilworth: My Lords, on this occasion I am most happy to agree with the noble Lord. I have no doubt that my noble friend has heard what the noble Lord has said, and I gladly endorse it.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that the figures that he quoted are for collection from the post box for next day delivery, and if the Post Office simply defers that collection its figures look better but the result is worse?
Lord Lucas of Chilworth: My Lords, I am sure that my noble friend will accept that whichever way I or indeed any of your Lordships present figures, another picture could be painted by somebody else. In an earlier answer I used the phrase "from collection". I take note of what lies behind my noble friend's question, and will draw it to the attention of the chairman of the Post Office Board.
Lord Monson: My Lords, does the noble Lord agree that the trouble with any post code system that utilises letters as well as numbers is that it is essentially designed for the typewriter rather than for the pen? Is it not the case that different people, when writing, form their capital letters in different ways, most of which are equally valid, and that that can lead to a certain amount of confusion and hence to a certain number of misdirected letters?
Lord Lucas of Chilworth: My Lords, as I think I said, and certainly as a number of my noble friends who have had responsibility for answering Questions on this point have said, legibility is one of the great difficulties for both sorters and deliverers of mail. The wide use of what is popularly known as the ball-point pen does not help.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that early posting is one of the secrets of

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early delivery? If British business men came back early from lunch and dictated their letters promptly, they would get speedy delivery to their customers.
Lord Lucas of Chilworth: My Lords, I accept the first point that the noble Lord makes, but I do not think that I could possibly agree with the inference behind the second part of his question.
Lord Airedale: My Lords, does not the fundamental question arise: how do I find out somebody's post code if I do not already have a letter from him with it printed on it?
Lord Lucas of Chilworth: My Lords, as long as one knows the address, one can ask the Post Office. Alternatively, the next time that you write to the person, you can ask him to let you have the code by reply.

Business
3.28 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Caithness will, with the leave of the House, repeat a Statement that is to be made in another place on the teachers' dispute in Scotland.

Latent Damage Bill [H.L.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to introduce a Bill to amend the law about limitation of actions in relation to actions for damages for negligence not involving personal injuries; and to provide for a person taking an interest in property to have, in certain circumstances, a cause of action in respect of negligent damage to the property occurring before he takes that interest. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Yorkshire Water Authority Bill
Read a second time, and committed to a Select Committee.

Patents, Designs and Marks Bill [H.L.]
Lord Lucas of Chilworth: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Bill has been committed that they consider the Bill in the following order—

Clause 1,

Schedule 1,

Clause 2,

Schedule 2,

Clause 3,

Schedule 3,

Clause 4.

—(Lord Lucas of Chilworth.)
On Question, Motion agreed to.

Legal Aid (Scotland) Bill [H.L.]
3.30 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Cameron of Lochbroom.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair,]
Clause 1 [The Scottish Legal Aid Board]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 1:
Page 1, line 9, leave out ("Aid") and insert ("Services").
The noble Lord said: In proposing this amendment I should like also to speak to Amendments Nos. 2, 3, 14, 17 and 19, which have a connected purpose. The intention of the amendment and of all the amendments that I have mentioned is to widen the scope of the purposes of the board. As the Bill is drafted, the board has a purely administrative function. It has no power to advise the Secretary of State on anything at all, not even on how legal aid provision could be improved. The board is only to publish information, to give the Secretary of State information that he requires, to act on such guidance as the Secretary of State provides and to apply the regulations that the Secretary of State will produce.
It is essential, if legal aid is to be cost-effective, that the board should have power to advise on how legal aid could be more efficient. But that power is given, under the Bill, only to the Secretary of State. There is no power apparently for the board to advise the Secretary of State. It is also desirable, I suggest, that the board, which will know which procedures or matters are proving to be of substantial cost, should have power to advise on the reform of these procedures. It is, of course, extraordinary that while a careless driving charge takes perhaps two hours in a summary criminal court, a civil action rising out of the same accident in Scotland now takes about one year of procedure getting to a proof, and a proof which takes two or more days. On matters like that, if these amendments were approved by the Committee the board would be able to advise the Secretary of State and therefore bring about a saving on legal aid.
The same situation arises in criminal practice and procedure. There are many ways in which legal aid costs could be lessened, possibly involving a slight increase in prosecution costs, such as the making of statements of prosecution witnesses available, as is the position in England. The difficulty is that if one saves on one item of state expenditure it is very often the case that one increases the cost on another side with another responsibility. If legal aid is saved, there may be increased costs in court administration or in the police or prosecution services. For that reason, I suggest, there should be power for the board to consider means of achieving a general and improved use of legal services and to advise on what improvements could be made.
It is equally important that the cost of litigation should be kept as low as possible for the non-legally

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aided litigant as for the legally aided. It is with that intention, and to fulfil the purposes recommended by the Royal Commission of which my noble friend Lord Hughes was chairman, that these amendments have been drafted.
On a very minor point, it would seem that in the consideration and preparation of the Bill the Government have not considered the initials that they have provided for the board. Considering what they have proposed, it is inevitable, I would have thought, that the Scottish Legal Aid Board will be known as SLAB. I doubt very much whether anyone will be keen to be known as the chairman or a member of SLAB. Those initials are perhaps better than some others—better, for instance, than if the body was called the Scottish Legal Aid Committee or the Scottish Legal Aid Group. But either way, I suggest there is some advantage in calling it the Scottish Legal Services Board. I beg to move.
Lord Hughes: Before the noble and learned Lord the Lord Advocate tells us that he is going to accept these amendments—I am looking to see whether he is nodding his head or merely smiling—I should like to add some further words to what my noble friend has said. The first amendment, Amendment No. 1, substituting the word "Services", is not merely paying obeisance to what the Royal Commission said when it suggested setting up a legal services commission. I remarked on Second Reading that it did not matter whether it was called a commission or a board. The word "Services" is, however, deliberately put in, because although some of the functions suggested by the Royal Commission for such a body could not come under the description of legal aid, they have a bearing very much on legal aid, its availability and what is known about it.
I notice also that the recommendation that the Royal Commission made to combine legal aid and legal advice and assistance into one scheme has not been pursued. I have not attempted to do anything about that today. Strong opinions exist both ways as to whether there should be separate schemes or a combined scheme. But the fact remains that legal advice and assistance is not, in terms of the legislation, legal aid. A glance at Schedule 5 shows that when a new Legal Aid Act was introduced in 1979 it was said that the previous legislation should be referred to as the Legal Aid and Advice (Scotland) Acts.
So, given the fact that we have both legal aid, legal advice and assistance and also, if some of our amendments were accepted, services going beyond either of these, although impinging upon them, the word "Services" does not seem to create any problems for the Government but would make for a more realistic title.
Amendment No. 2 suggests putting in words which were, I believe, originally contemplated when the Act first came into force. This was that it should make it possible for people of small or moderate means to pursue the necessary legislation. One of the things clearly proved to the Royal Commission—this applied equally, I believe, to England as to Scotland—was that to litigate in your interests was possible for the very poor and the very rich but that the great number in between did not find it possible to go to court. The
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insertion of the proposed words makes clear that the giving of legal aid is not for every Tom, Dick and Harry in the country irrespective of his means, but is to enable people of small or moderate means to go to court.
In Amendment No. 3 we propose the words:
"to advise the Secretary of State on the availability, provision and efficiency of legal services".
It is remarkable that, in a Bill where the administration of legal aid is to be entrusted to these new boards, they are not given any opportunity or any right to advise the Secretary of State, who carries Government responsibility for the legislation, of any improvements or of the removal of any deficiencies which their experience brings to their attention. We do not say anywhere in our amendments that when the Secretary of State receives advice from the board he must accept it. Just as guidelines from the Government to the board may be regarded as advice, advice ceases to be advice if you do not have the option either to accept it or to reject it. We are asking the board to be given the power to draw the Secretary of State's attention to matters which, in the light of their experience, it seems to them he ought to be interested in.
These are part of this group of amendments which have no political significance whatever, should be conducive to the better protection of those who seek the assistance of the courts, and should create no undue problems for the Government.
Lord Cameron of Lochbroom: I am grateful to the noble Lords who have explained the purpose of these amendments. The noble Lord, Lord Hughes, gave notice at Second Reading that he would be seeking to extend the role of the board; at that time I think he suggested in line with the recommendations of the Royal Commission on Legal Services in Scotland. I think that this is what this bundle of amendments is designed to do in the main.
As he and other noble Lords will be aware, the Government announced on 23rd June 1982 their decision to reject the Royal Commission's recommendations that a Department of Legal Affairs—that is to say, a special department—and a legal services advisory committee and a legal services commission should be established. That was essentially because the Government considered the present division of responsibilities between the Secretary of State and the Lord Advocate was appropriate; the present system worked well and the establishment of new bodies envisaged by the Royal Commission would not make for more efficient or more economic administration.
The Royal Commission, and indeed these amendments, also suggest that a board should have a much more intrusive role in the provision of legal services and one requiring much greater resources for finance and personnel. Noble Lords will be aware that in the area of legal aid there has been a considerable expansion in expenditure on legal aid and in the availability of solicitors in Scotland since the Royal Commission were carrying out their deliberations. The need for central promotion of the availability of legal services has correspondingly diminished.
The Government's view is that the best way forward is to extend the scope of legal aid if and when resources

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permit in the light of the competing claims of other public services. It may be that the increased efficiency—which we hope will stem from the establishment of the new board—will facilitate this but it would, in the Government's view, be quite imprudent to establish a board with the wide-ranging functions extending beyond legal aid which may well require the input of significantly increased resources. There is also the consideration that in particular Amendments Nos. 3 and 17 would give the board powers in relation to legal services generally and are considerably beyond the scope of this Bill, which deals with legal aid.
With regard to the details of the board's extra powers, most of those relevant to legal aid are already covered in the Bill. For instance, as noble Lords will be aware, there is provision in Part V of the Bill for the board to employ solicitors in a way which would meet at least, I suspect, some of the intentions of noble Lords. However, as I explained at Second Reading, this is simply a re-enactment of existing provisions in the Legal Advice and Assistance Act 1972 which have not yet been brought into operation. The Government regard these essentially as reserve powers, though useful ones if, for example, there should be a breakdown in the provision of legal aid in any area.
With regard to the provision of information, the board already has a duty to publish information under Clause 3(1); and Clause 5(7) obliges the Secretary of State to lay the board's annual report before Parliament.
3.45 p.m.
The noble Lord, Lord Hughes, spoke in particular to the purpose of Amendment No. 2. May I assure noble Lords that the Bill does not provide any more than does existing legislation for restricting the proportion of the population eligible for legal aid in Scotland. The Bill does not change the existing financial limits for eligibility in the existing legislation and, while I would not wish to anticipate later amendments to these limits, I can say that these limits have been, and will be, set on a Great Britain basis by references to social security levels. Any changes in these limits will in general have to be made by regulations subject to the affirmative procedure and will therefore require the approval of your Lordships' House.
These financial limits for eligibility are also objective criteria while Amendment No. 2, I suggest, introduces an undesirable subjective element. What one person would regard as moderate means another would regard as ample resources. However, under this amendment the board's duty to secure the availability of legal aid advice and assistance would be restricted to those whom somebody—presumably the board—considered to be of small or moderate means. Theoretically this would leave open the possibility of the board adopting a more restrictive view of who was entitled to legal aid than is the case at present. In practice, they would be constrained by objective tests enshrined in the financial limits in the Bill as it is presently standing. It is on these objective criteria, approved by Parliament, that I suggest we should rely.
I am aware that the phrase which is to be found in Amendment No. 2 originally appeared in the Long
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Title of the 1949 Act. But since that time there has been the creation of regulations which deal with the scope of legal aid and I suggest to your Lordships that it is by way of these regulations that the scope of legal aid will properly be dealt with on a Great Britain basis.
I would also have regard to another amendment which is spoken to in this group. That is Amendment No. 19. If the board were to assume the powers which are suggested in the new subsection (7) it would be considerably extending its role. "Alternative legal services" could in principle lead it to become involved in any legal service, although I do not suspect that the noble Lord, Lord Morton of Shuna, intended this. This, I suggest, would lead the board considerably beyond its own area of competence and would require extra resources. For these reasons, the new subsection (7) is not acceptable and I cannot accept this amendment.
With regard to subsection (6), which again picks up a theme which both noble Lords spoke to, about giving advice, I would expect the board as part of its normal duties to monitor the legal aid system and to make such changes in the arrangements as are within its competence. As I have indicated, where it would not seem appropriate to give the board a formal or general advisory role, I am sure that the board will not be inhibited in suggesting changes requiring action on the part of the Secretary of State where this would be of assistance in the performance of the board's statutory functions.
One of the powers given to the board under Clause 2(2)(d) for instance, is to undertake any inquiry or investigation which it considers necessary or expedient in relation to the discharge of its functions. The results of this investigation could be included in its annual report which must be laid before Parliament by the Secretary of State. Again, I do not consider that I can commend the addition of this subsection to the Bill.
An argument was put forward by the noble Lord, Lord Morton of Shuna, about the matter of advice on general procedures going beyond the issue of grant of or refusal of legal aid in either civil or criminal matters. It is right—and I believe that the noble Lord would agree with me about this—that there are already committees which have been established in Scotland, in particular by the Lord President of the Court of Session, which deal with the matter of procedures both in the civil sphere and certainly in the criminal sphere. It seems to me that those are the bodies, whose personnel are chosen with that particularly in mind, which can most usefully suggest any proper changes.
We are all concerned to keep the costs of litigation as low as possible, and of course one of the purposes of this Bill in relation to legal aid is to ensure that legal aid is granted fairly and is properly and efficiently administered in order to secure value for money.
I take the point which the noble Lord, Lord Morton, made about initials. I asked whether consideration had been given to other names. Indeed, various other suggestions have been put forward, some of which would have resulted in an even more unfortunate mnemonic. For instance, the Board for the Administration of Legal Services might well have produced an unfortunate result. The consequence is that I am advised that the present Title, which I accept is not the

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most euphonic of titles, at least sets out as well as possible what we seek to be the real purpose of this board.
I hope that I have said enough to persuade the Committee that I cannot accept these amendments. In the Government's view they go beyond what is intended by this Bill. They take the board into areas where it would not be appropriate for it to go, and therefore I must invite the noble Lord to withdraw the amendment which he has moved and all the other amendments to which I think he also spoke.
Lord Morton of Shuna: The Title is perhaps of less significance, and I do not intend to press Amendment No. 1 or to move Amendment No. 2. However, Amendment No. 3 contains a crucial point of significance, which it does not seem to me that the noble and learned Lord the Lord Advocate has really answered. A variety of committees look at various different aspects, and that is precisely the difficulty. They do not coalesce. One looks at the criminal procedure but does not consider the effect of anything it does on the cost of legal aid for any alterations to the criminal procedure. The same applies to civil procedure; the committee does not look at the effects on the cost of legal aid. It is for that purpose that Amendments Nos. 3, 14, 16, 17 and 19 were intended, and I regret that I cannot accept the noble and learned Lord's invitation in relation to Amendment No. 3. I beg leave to withdraw Amendment No. 1.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 3:
Page 1, line 13, after ("Act") insert—
("( ) to advise the Secretary of State on the availability, provision and efficiency of legal services;").
The noble Lord said: I beg to move
3.54 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents, 119.

DIVISION NO. 1

CONTENTS

Airedale, L.

Foot, L.

Amherst, E.

Gallacher, L.

Aylestone, L.

Galpern, L.

Banks, L.

Gladwyn, L.

Birk, B.

Graham of Edmonton, L [Teller.]

Brockway, L.

Bruce of Donington, L.

Gregson, L.

Caradon, L.

Grimond, L.

Carmichael of Kelvingrove, L.

Hampton, L.

Cledwyn of Penrhos, L.

Hanworth, V.

Collison, L.

Harris of Greenwich, L.

Crawshaw of Aintree, L.

Hatch of Lusby, L.

David, B.

Howie of Troon, L.

Dean of Beswick, L.

Hughes, L.

Diamond, L.

Jeger, B.

Donaldson of Kingsbridge, L.

Jenkins of Putney, L.

Elwyn-Jones, L.

John-Mackie, L.

Ewart-Biggs, B.

Kennet, L.

Ezra, L.

Kilbracken, L.

Fitt, L.

Kilmarnock, L.

314

Leatherland, L.

Seear, B.

Listowel, E.

Serota, B.

Lloyd of Kilgerran, L.

Shackleton, L.

Lockwood, B.

Silkin of Dulwich, L.

McNair, L.

Stedman, B.

Mishcon, L.

Stoddart of Swindon, L.

Molloy, L.

Strabolgi, L.

Morton of Shuna, L.

Strauss, L.

Mulley, L.

Underhill, L.

Nicol, B.

Wallace of Coslany, L.

Oram, L.

Wells-Pestell, L.

Pitt of Hampstead, L.

Whaddon, L.

Ponsonby of Shulbrede, L. [Teller.]

Wheatley, L.

White, B.

Rathcreedan, L.

Williams of Elvel, L.

Ritchie of Dundee, L.

Wilson of Langside, L.

Rochester, L.

Winterbottom, L.

Ross of Marnock, L.

NOT-CONTENTS

Abercorn, D.

Killearn, L.

Ailsa, M.

Kimball, L.

Alexander of Tunis, E.

Kinnaird, L.

Alport, L.

Kinnoull, E.

Ampthill, L.

Lane-Fox, B.

Arran, E.

Lauderdale, E.

Auckland, L.

Lawrence, L.

Beaverbrook, L.

Layton, L.

Belhaven and Stenton, L.

Long, V.

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Luke, L.

Bessborough, E.

McAlpine of Moffat, L.

Boothby, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Malmesbury, E.

Brabazon of Tara, L.

Mancroft, L.

Brougham and Vaux, L.

Marley, L.

Caccia, L.

Masham of Ilton, B.

Caithness, E.

Massereene and Ferrard, V.

Cameron of Lockbroom, L.

Maude of Stratford-upon-Avon, L.

Campbell of Alloway, L.

Campbell of Croy, L.

Merrivale, L.

Carnegy of Lour, B.

Mersey, V.

Cathcart, E.

Mottistone, L.

Chelwood, L.

Mountevans, L.

Coleraine, L.

Mowbray and Stourton, L.

Cork and Orrery, E.

Moyne, L.

Cottesloe, L.

Murton of Lindisfarne, L.

Cromartie, E.

Nelson of Stafford, L.

Cullen of Ashbourne, L.

Nugent of Guildford, L.

Davidson, V.

O'Brien of Lothbury, L.

De Freyne, L.

Orkney, E.

Denham, L. [Teller.]

Pender, L.

Denning, L.

Porritt, L.

Drumalbyn, L.

Portland, D.

Dundee, E.

Rankeillour, L.

Eccles, V.

Reigate, L.

Effingham, E.

Renton, L.

Ellenborough, L.

Rodney, L.

Elliot of Hardwood, B.

Russell of Liverpool, L.

Elliott of Morpeth, L.

St. Davids, V.

Elphinstone, L.

Sandford, L.

Elton, L.

Sandys, L.

Faithfull, B.

Skelmersdale, L.

Ferrers, E.

Somers, L.

Fortescue, E.

Sudeley, L.

Fraser of Kilmorack, L.

Suffield, L.

Gainford, L.

Swansea, L.

Gisborough, L.

Swinton, E. [Teller.]

Glenarthur, L.

Terrington, L.

Gridley, L.

Teviot, L.

Grimthorpe, L.

Thorneycroft, L.

Hailsham of Saint Marylebone, L.

Trefgarne, L.

Trumpington, B.

Halsbury, E.

Vaux of Harrowden, L.

Hardinge of Penhurst, L.

Vickers, B.

Henley, L.

Vivian, L.

Holderness, L.

Ward of Witley, V.

Hooper, B.

Whitelaw, V.

Hylton-Foster, B.

Wise, L.

Ilchester, E.

Young, B.

Inglewood, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.2 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 4:
Page 2, line 2, leave out from ("members") to ("and").
The noble Earl said: I learned that this Bill was pretty unpopular in Scotland. I had heard this before, and I had taken no notice of it. I have now had the opportunity of looking at it and there seems to be some fairly strong ground for saying that the Bill does not meet the purpose for which it is intended. May I remind the Committee in simple terms that the Lord Advocate, when he started, quoted the Act of 1424? May I quote the reinterpretation of that 500 years later in the Cameron Report?
"No person should be prejudiced in his defence by lack of means to pay for the services of a solicitor or an advocate."
The central point of this is the board; the Legal Aid Board. I should like to suggest that in this discussion we should deal with the amendments down in my name, Amendments Nos. 4 and 7, in which I make certain suggestions, and if the noble Lord, Lord Morton, agrees, Amendments Nos. 8, 9 and 10. In other words, we should have a general discussion on what the board should be and what it should do.
This is not an extension of supplementary benefit. The noble Lord, Lord Hughes, talked about the administration of that wonderful town, East Kilbride, perhaps one of the finest new towns in the country. But administering East Kilbride is very different from administering an essential part of the administration of justice in Scotland. Some people say that this is feathering the nest of some people, but it is interesting that a recent analysis in Glasgow pointed out that as a result of legal aid more people pleaded guilty than had done so before. That is to say, it is in fact an economy.
The noble and learned Lord the Lord Advocate spoke about "husbanding the national resources". May I read the introduction to this Bill. It says:
"management information will increase initially the cost of administering legal aid by a small amount. The increase will be offset however by greater throughput in the courts".
It is like a factory manager putting chickens in at one end and getting them out filleted at the other end. It is most extraordinary to use the word "throughput" in talking about law courts. There does not seem to be any immediate case for further "husbanding the national resources".
There is another thing to which the noble and learned Lord referred. What is the cost about? He said this on 20th February at col. 758:
"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."
This is a pretty good example of primary legislation which nobody without professional assistance—and not always with professional assistance—will succeed in understanding. It is proposed to be run by 15 people, only two of whom are to be lawyers. Is this really a sensible way of tackling an immensely important problem of this sort?
Then there was a most astonishing statement made by the noble and learned Lord, and I must remind the
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Committee of it because it is quite a curious and odd statement. He said at col. 789:
"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".
In other words, he is putting the administration of government out to contract.
I am all in favour of free contract, but this is a slightly new invention which is coming forward, and one must consider whether this is right and whether in point of fact we should not have that report before going on to legislation. There are all sorts of things here which have to be worked out by the board. There is no place here for appeals—no word about appeals at all. There is no mention of what we are going to do with local committees. Is that going to be left to Coopers and Lybrand? Are they going to do this? Is that what they are going to recommend? Ought we not to have some idea what the functions of this board fully are before we are asked to legislate on what it should do?
It hangs entirely on the structure that we put on the Legal Aid Board. Most of your Lordships were clear at Second Reading that it should be independent. I think one should add also that it should be experienced. Even the noble and learned Lord the Lord Advocate said that it should be independent. What we question is whether he has got it right. Is it independent? Does it really stand for something by itself?
I know that one can say of course that the Bench are appointed by the Queen; they are paid by the Government. You can say that the Lord Advocate himself is appointed by the Queen. But they have behind them a tradition. I do not see how you can say in law exactly how a Bench should behave. I do not see how you could say how the Lord Advocate should behave. But the tradition so far as his office is concerned goes back almost into the Middle Ages and is deeply entrenched in the traditions of this country. You cannot create a tradition by legislation. These people have to stand by what they represent. The independence here is not very well shown.
May I ask your Lordships to look for a moment at Schedule 3? In Schedule 3, the position of,
"Chairman of the Scottish Legal Aid Board"
is among the offices whose holders are disqualified from being a Member of Parliament. That means he holds an office of profit under the Crown, as I understand it. It would be hard to say that it is an independent organisation as such. What I find difficult to understand is how the noble and learned Lord can reconcile those words with Schedule 1, which reads:
"The Board is not an emanation of the Crown".
I do not know what those words mean, or whether the Crown is aware that it emanates or not. Those two statements seem to be quite contrary.
I have modestly suggested that at least eight members of this board should be professional lawyers; there should be four from the faculty and four from the Law Society. But I do not insist on that and I should not think of asking the noble and learned Lord for a decision today. I should not think of dividing the Committee. This is a matter which we need to consider. How should the board be constituted, if at all?
I do not like the Bill. It is full of regulations. There is one regulation for every two clauses. The Bill means that the management of the board is being put out to contract. The Scottish Office should take this back, find out what organisation is required and what regulations are needed and then bring the Bill back to us in a form which we can understand. This is a travesty of a Bill on a very important subject. I ask the noble and learned Lord to think very hard before trying to press on us a Bill of this kind. I beg to move.
Lord Morton of Shuna: The noble Earl, Lord Selkirk, has said everything that I should have said in much more persuasive language. It is of vital importance that before the board is constituted it should know what it is to do. We have been told by the noble and learned Lord the Lord Advocate that the Secretary of State will accept one of several tenders, as I understand it, to appoint management consultants to consider the legal aid system. That has already happened in England. In England and Wales, Messrs. Coopers and Lybrand were the management consultants and they recommended that legal aid should remain where it was and under the same administration. If that were to be the result of the management consultants' exercise, where would the Government be with their Bill?
The Scottish consultants may not be asked that question, in which case one would wonder why not. If the board is to be wholly independent it seems most surprising to me to find in the last line of paragraph 5 of Schedule 1 that,
"The Secretary of State may terminate the appointment of a member of the Board if satisfied that …he is … unable … to continue as a member".
What does that mean? Does it mean that he disagrees with the Secretary of State or has a different approach? It is not that he is unfit, or bankrupt, or unwell, because that is all covered by previous paragraphs.
The Law Society has run legal aid for the past 30-odd years. The Royal Commission report at paragraph 8.68 reads:
"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".
But if we have the position that the board is to be appointed without any nomination from anybody else, but purely from persons whom the Secretary of State considers proper (and only two of whom need be lawyers), are not the Secretary of State and the new board liable to leave themselves open to exactly the same criticism as the Royal Commission made of the Law Society, a criticism in principle?
Does that not apply when the Secretary of State has already taken to himself the power to fix all fees under legal aid? He has under Clause 2(4) the duty or the power to give guidance to the board. He has under Clause 9(2)(e) the power to modify financial limits. Under Clause 14 he has a power to prescribe factors,
"to be taken into account … in determining whether it is reasonable for a person to receive legal aid".
He has a power under Clause 21 to prescribe types or classes or stages of proceedings which would not
318
receive criminal legal aid. He has a power under Clause 24(3) to prescribe factors defining what is to be in the interests of justice.
In the Scottish Home and Health Department consultation paper there was the extraordinary suggestion that this might include the number of convictions that a person had previously or the number of times he had previously received legal aid. Under Clause 36(2)(g) the Secretary of State has power to,
"modify any provision of this Act so far as appears to the Secretary of State necessary to meet any of the special circumstances mentioned in sub-section (3)."
As the board is not to be given any power to advise or power is not to be given to any body such as the Faculty of Advocates, the Law Society, the Citizens Advice Bureau or anybody else to nominate, it will not be an independent board and will not be seen to be independent.
4.15 p.m.
I submit that it is crucial that the board should be seen to be independent. I wholly agree with what the noble Earl, Lord Selkirk, said, that it is odd to say that the chairman of this board is apparently to be the holder of an office of profit under the Crown, which tends to show that it is not an independent board. To have only one member from the Faculty of Advocates and one member from the Law Society, who, according to the Bill, do not need to have any experience of practise in the courts or of legal aid work, would be quite impossibly impracticable.
As I understand the idea, it is that this should be a part-time board. The noble and learned Lord the Lord Advocate knows full well that nobody with a court practice or experience could possibly manage to attend, for example, two days a week, and to run a court practice, without having to avoid many of the meetings of the board. The number of lawyers on the board, for what is essentially a legal matter of deciding who should receive legal aid, and for what, is far too small. Therefore I hope that the noble and learned Lord the Lord Advocate will consider this position.
Lord Campbell of Croy: I hope that the Government will consider carefully what my noble friend Lord Selkirk has said. There is disquiet in Scotland, particularly in the legal profession, about how the board will be constituted and what its functions are to be. For 35 years the legal aid system has been functioning in Scotland and the principal role has been played by the Law Society of Scotland. Now it is suggested that all the members of this board should be appointed by the Secretary of State. Perhaps I, as a former Secretary of State, could say that there is always a certain amount of danger when the Secretary of State is appearing to accumulate all the power in a new Bill. Even if he and his successors are going to use it with the greatest of discretion, there is great suspicion in Scotland that he is simply trying to get complete control. Dare I suggest that there may also be similarities in Wales with the Secretary of State for Wales, when similar Bills come before Parliament?
I would ask my noble and learned friend if he would consider very carefully the points which my noble friend Lord Selkirk has made today. I am perfectly

319
sure that, in the event that this Bill goes through in its present form, the Secretary of State of the day will consult the bodies which clearly have knowledge, experience and interest in this matter, such bodies as the Faculty of Advocates, the Law Society of Scotland and others. But I think that it would certainly remove some of the disquiet in Scotland if this could be looked at carefully and if perhaps some amendment were made to the Bill.
The present Secretary of State for Scotland is himself an advocate. He is very familiar with the arguments that have been put forward, and I am sure that he will consider this matter carefullly in due course. I hope that my noble and learned friend and also the Government as a whole will consider carefully what my noble friend has said. He is not going to press his amendment today, but I hope that it will be taken into consideration.
Lord Mishcon: If the noble Earl has decided not to press his amendment today—and one knows that he is an experienced and very wise person when moving amendments—obviously, I would not wish to quarrel with that. But I hope that the noble and learned Lord the Lord Advocate will appreciate that this is a series of amendments, which are taken very seriously on various sides of the Committee. They are certainly amendments that are taken very seriously by the legal profession of which the noble and learned Lord the Lord Advocate is himself a worthy and respected representative.
I am going to say, quite frankly that the present provisions of the Bill constitute an insult to the legal profession. The noble Lord, Lord Campbell of Croy—and he put his remarks so learnedly that I almost gave him an appellation which I am sure he deserves—emphasised the care with which this side of legal aid has been dealt with in Scotland with, so far as I know, not one word of complaint; and it has been administered by lawyers.
To say that lawyers have a dual interest when administering legal aid in criminal or other matters is a remark which does not limit itself to those north of the Border; it goes south of the Border, too. I am very apprehensive as to what a provision of this kind could constitute by way of a precedent throughout the whole of the kingdom in regard to legal aid.
The amendments are modest. They do not ask—and I do not believe that lawyers would ask—for a majority even of those who are going to sit on the board. That they ought to have the number contained in the noble Earl's amendment is, I think, absolutely correct. But this is limited in Amendment No 10. without any qualification at all as to experience or whatever, to
"at least one member"
I appreciate the expression "at least"; but in a statute you satisfy those words by appointing one member (even if you have the words "at least") nominated by the Faculty of Advocates. In exactly the same way, that is the figure that is in the Bill. For anyone to talk—and I do not want to put my case too high—about achieving independence when you get the Secretary of State as the nominating person, that will not look to the kingdom, nor to the profession, nor to
320
those who are applying for legal aid, as being an independent appointment.
I hope that these amendments will be seriously considered by the noble and learned Lord, and I repeat that if they are not voted upon today,—and I have an idea that I have the noble Earl with me on this; but he will dissent if not—and if there is not an acceptance of this or proper consultation to achieve a proper result by Report stage, then, most certainly there will be a vote taken in this House.
Lord Wilson of Langside: I am sure that in the light of what has been said so far in the discussion on this group of amendments the noble and learned Lord the Lord Advocate will inform the House that he will look again at the structure of this board which apparently has caused a good deal of disquiet. I said on Second Reading—and, with a bit of luck, I may even have made it clear—that I have a certain sympathy with the problems with which, in this context of legal aid in Scotland, they have to cope. I cannot agree with the view that the previous administration of legal aid in Scotland since 1949—and I was, off and on, in close touch with it—did not from time to time give grounds for disquiet which was expressed, quite rightly, by members of the public and occasionally by some lawyers.
I agree that the board should be independent and have all the appearance of independence. However, I do not think that the public will see it as independent if we overload it with lawyers. No doubt, the noble and learned Lord the Lord Advocate if, as I anticipate, he is going to take a look at the structure in view of the disquiet that has been expressed from all sides, will keep that in mind, as well. Why I said at Second Reading that I had sympathy with the Government in dealing with the problem was not to express approval of the actual terms of the Bill or of the structure of the board. But there is a problem here which, in my experience, only a minority of lawyers acknowledge—and in my time I have had a good deal of correspondence with the people who are concerned.
Of course, it is only on the fringes of the profession, as in every human situation, that the problem arises. It is not a generalised criticism of the legal profession but there are some matters which need to be put right. I think that if successive Governments perhaps had tried harder in the past, we might not have had such a radical reform; but the years have gone on and the Government have apparently been rushed into this, the structure is not very good, and I hope with the other speakers, that the noble and learned Lord will look at it again.
4.30 p.m.
Lord Wheatley: I listened with care to the speeches of the noble Earl, Lord Selkirk, and the noble Lord, Lord Morton of Shuna. I thought that it might perhaps suffice if I adopted the formula of the judges in the Appeal Court who heard the judge in the chair give a very persuasive judgment and simply say: "I concur with what your Lordships have said and have nothing to add." The other form of that is to say, "There is nothing that I can usefully add"; and the third member of the court says: "I agree". But I find myself, in one way, unable simply to concur although I would adopt

321
the arguments of both noble Lords and was glad to find further support from the noble Lord, Lord Campbell of Croy. But there are other reasons why I think that there is merit in staying with the procedure outlined in the Bill so far as composition of the board is concerned; because, in a way, this debate is taking place in an air of unreality. We had the Second Reading only a fortnight ago, and we are rushed now into the Committee stage.
During the Second Reading, of the eight speeches that were made, apart from the noble and learned Lord the Lord Advocate no one gave complete approval to the proposals of this Bill. Two noble Lords, the noble Lords, Lord Hughes and Lord Kirkhill, gave what they called "half-support" to the Bill. I interpreted that as meaning half-hearted support to the Bill because, as regards this particular issue, both noble Lords were critical of the Government in that the proposed composition of the board did not make an independent body. So all the speakers in that debate, apart from the noble and learned Lord the Lord Advocate himself, were all opposed to a board of this constitution.
There are also other reasons. So far as the criticism of the existing system is concerned, the basic argument seemed to be that there was something wrong in the eyes of the public that the lawyers (that was interpreted as the Law Society) were to be seen disbursing public money for the purposes and benefit of their own members. That misapprehension keeps running through this discussion. Even—and I say this with respect—the noble Lord, Lord Morton of Shuna, used a phrase which is current, saying that the Law Society had been running this system for the past 35 years. That is not strictly correct, and I think the sooner the correct position is explained the better. I am sure that if I am wrong in this I shall be corrected by the noble and learned Lord the Lord Advocate, because he was a member of the appropriate committee for a while.
In terms of the Act of Parliament, the Law Society of Scotland was called upon to formulate a scheme which required to have the approval of the Secretary of State and the concurrence of the Treasury. Under that scheme the Law Society set up a central legal aid committee. It was that committee which operated the legal aid scheme in Scotland, not the Law Society. It was comprised, I must say in fairness, of nine solicitors who were members of the Law Society (but not necessarily members of the Council of the Law Society), five members of the Faculty of Advocates and two lay representatives appointed by the Secretary of State.
One may argue about the balance or imbalance of that form of representation, but the important point is that that body was independent of the Law Society and, in so far as that body had responsibility for disbursing public funds to members of the legal profession, it was that independent body which was doing it and not the Law Society of Scotland. Therefore, the basic argument was ill-founded.
I go on from that to other points. I have mentioned that there was complete opposition at the Second Reading to this proposed board because of lack of independence, and the Government have consistently urged that this was going to be an independent body.
322
That matter has been examined by several of your Lordships and I do not wish to be guilty of repetitive argument; but clearly this is not going to be an independent body. It is going to be an arm of the Secretary of State for Scotland, who is charged with the duty really of seeing that this is kept on proper lines. He is being given the most extraordinary powers. It is he who will now determine the fees to be paid to lawyers under the Bill, and there is anxiety about the amount of money that is being paid out under the legal aid scheme. I do not think anyone could quarrel with the fact that a large proportion of that relates to fees paid to the profession for their services, and the Secretary of State for Scotland is now keeping control of the level of fees to be paid. So to indicate that as being an independent body, when they are merely carrying out the duties conferred upon them under this Bill of an administrative nature, is, to my mind, quite a false argument. In fact, I want to be very restrained indeed and simply call it that, but it is quite a sham really to say that this is not operated by the Secretary of State.
When you come to consider the constitution of this board, which is the point before the Committee at the present time, this is where I part company with the previous speakers. I do not think we should be discussing this at all: this is completely premature. How can you discuss and determine the proper constitution of a board when you do not know what that board is going to do or what duties it will be called upon to discharge? Yet if there is one thing clear so far as this Bill is concerned it is that we do not know at this stage exactly what will be the type of work and the responsibility of the board and what the individual members of that board will be called upon to do. If it is going to go out to contract to find out the answer to all these questions, you are putting the cart before the horse. These things should have been done before it was decided what kind of board would be required, in respect either of numbers or of experience.
What do we know about the functions of the board? We have got the generalisations contained in the Bill which have been read out, but we also know that under the terms of the Bill this board will have to take over the functions of the Supreme Court Committee which operates at the present time, the 16 district committees that operate in the sheriffdoms and, mark you, all the legal aid applications for summary criminal causes. That is a terrific responsibility, and particularly when the keynote is not going to be just a question of the ability or inability to pay but the interests of justice—the elasticity of which phrase is as broad as the division between the parties in this Chamber.
That is all to come under the umbrella of this board. How do you know how many members you require?—because there will have to be committees and sub-committees, there will have to be the discharge of various obligations and to a certain extent there must be delegation to such committees. We must know: is that delegation going to come from members of the board or is it simply going to be delegated to members of the staff, who will report back to the hoard itself? Accordingly, until all these things are known—as I say, we do not know the numbers required or the qualifications required—we are still in the dark.

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I have never known a situation where your Lordships have been called upon to determine the appropriate answers to questions when the information is not available, because we have only the skeleton in this Bill. A great deal of pressure is to be put on the boards and it is going to be put on the boards through regulations. There are 17 clauses in this Bill that require to be expanded by way of regulations. We merely get a general indication of what the particular regulations will deal with but we do not have any information as to the exact terms of them and as to what will be involved so far as the board is concerned. May I say in parenthesis that quite a number of these regulations are being made subject to the negative procedure, which is a very unfortunate way of proceeding when so many important matters are at issue.
In all these circumstances, I think it is not only difficult but impossible at this stage not just to visualise but to prognosticate what the position of the board will be and what will be required. Therefore, I would concur in the suggestion which has come from various parts of the Committee that the best thing for the Government to do is to take this away and consider it in the light of the investigation and research that should have been done before the Bill was introduced. They should then come back to your Lordships' House with definite and properly researched proposals so that we can reach a proper conclusion about what is required under the Bill.
Everyone in Scotland wants to see the best form of legal aid in operation. I, for one, am very much attached to that view as I put the first Legal Aid Bill through Parliament in 1949. I find it very disturbing as I move around and make inquiries within the legal profession and discover—I believe that this was experienced by the noble Lord, Lord Campbell of Croy—as I said on Second Reading, that I have yet to find a friend who has anything good to say about the Bill. The only friend I have found is the noble and learned Lord the Lord Advocate, who is a great personal friend of mine.
Lord Wilson of Langside: Does the noble and learned Lord recall whether the 1949 Bill had many unqualified friends when it was first introduced?
Lord Wheatley: I referred to that in my speech on Second Reading. To save time, I shall refer noble Lords to that speech and adopt it as read.
Lord Hughes: Two statements have been made, and with one of them I find myself in total agreement. That was the one made by the noble and learned Lord, Lord Wheatley—that everyone in Scotland wants to see the best form of legal aid possible. I have no difficulty in accepting that, because I think that it is absolutely true. I have more difficulty with the other statement. More than one noble Lord has said that there is great disquiet in Scotland about the Bill. I do not believe for one moment that where two or three, or 200 or 300, or 2,000 or 3,000 people are gathered together the main subject of conversation among them is the Bill's inequities. As far as I know, the general public may be vaguely aware of the Bill's existence but they know nothing about its contents. I accept that there is considerable disquiet in the legal profession about the
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Bill. That is perhaps the biggest understatement that has so far been made about the Bill.
I think that the noble Earl, Lord Selkirk, was right when he talked about the board. Whatever its functions and duties will be, if there are going to be 15 members it is nonsense for only two of them to have practised in the legal profession. It will not be good enough for the noble and learned Lord, the Lord Advocate twice to take refuge behind the words, "at least one" because, as was said by my noble friend Lord Mishcon, if we say, "at least one" and only appoint one, the terms of the law have been complied with. The number of members is not the answer. Out of approximately 150 members of the Bar, the Secretary of State is to pluck one to sit on the board. Out of several thousand members of the Law Society, he will pluck one to sit on the board.
I will not go as far as the noble Earl, Lord Selkirk, and suggest that eight of the 15 members should be from the legal profession.
The Earl of Selkirk: I never said that. I said that there might be eight, but not more.
Lord Hughes: I think I said, or, if I did not, I meant to say that at least eight members should be from the legal profession. Amendment No. 7 says that there should be four members appointed by the Faculty of Advocates and four by the Law Society. I know that my arithmetic is correct—four and four make eight. I do not go as far as that, but I agree with the noble Earl that it is nonsense to say that there should be only one member from each body. As my noble friend Lord Morton of Shuna said, if the board is to meet on two days a week and we appoint someone who is experienced, we shall confine ourselves to someone who has retired from active work and who has ample spare time to sit on the board.
My second criticism of the proposal is that the legal bodies have no right to choose the members. In the listing of amendments to which the noble and learned Lord the Lord Advocate was talking, Amendments Nos. 4, 7, 8, 9 and 10 are lumped together because they are variations on the same theme. In Amendment No. 7, for example, the noble Earl, Lord Selkirk, is saying that the Secretary of State shall appoint seven members and the faculty and the Law Society shall make appointments.
4.45 p.m.
We do not go as far as that in Amendments No. 8, 9 and 10. We say that there should be two members of, and nominated by, the Law Society and two members of, and nominated by, the faculty. When we say, "of, and nominated by", that does not necessarily mean that those two bodies pick the two members to go on the board. It means that the Secretary of State will be restricted, when he makes his decision, to appointing people from such nominations. Whichever two members are chosen out of each of the categories, we shall know that the people will be accepted by the profession.
In Amendment No. 10, we go further and say:
("( ) at least one member nominated by the Scottish Association of Citizens Advice Bureaux;

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( ) at least one member nominated by the Scottish Consumer Council;
( ) at least one member nominated by the Scottish Council for Civil Liberties.")
I know from material that I have received, that those three nominations would be acceptable to the legal profession in Scotland because it recognises from years of experience that those voluntary bodies are very much interested in the subject of legal aid.
Amendment No. 6 has not been listed in that grouping. It states:
"and shall consult organisations with an interest in the provision of legal services before making appointments".
That amendment is an alternative to Amendments Nos. 8, 9 and 10. I prefer Amendments Nos. 8, 9 and 10, which give nomination rights—not appointment right—to all those bodies. The undertaking given by the Secretary of State that before making appointments he will have consultations—that would obviously include the faculty, the Law Society, the three organisations listed in Amendment No. 10, and probably many others—would be second best. It would at least give some credence to the notion which everyone who has spoken on these amendments has mentioned, that the board must not only appear to be independent, it must be independent. A board on which everyone is the Secretary of State's creature may be independent but it will not give the appearance of being independent. Knowing the way things have gone over the years, it would be very difficult to believe that such a board could operate with complete independence.
Lord Ross of Marnock: I am intervening only because an amendment tabled in my name is included in the list. To expedite the business and because the Government might accept it, I do not propose to move the amendment. I am not joking when I say that. The acceptance of the amendment can be taken out of the brief of the noble and learned Lord the Lord Advocate.
All that I have heard convinces me that we are objecting to the clause itself. There were suggestions from the noble Earl, Lord Selkirk, as to who we should put on the board. My noble friend has made other suggestions. My amendment would not conflict with any of those suggestions, but I feel that Clause 1 is objectionable. It is an independent body but its composition and appointments are contained in just 17 lines. There are four mentions of the Secretary of State. There are as many mentions of the Secretary of State as there are of the board itself. So I should be content with voting not for any particular version of these suggestions against the clause itself.
Lord Foot: May I say one word about this matter before the noble and learned Lord the Lord Advocate replies to this debate? I cannot add anything to the weight of the argument which has been expressed, beginning with the noble Earl, Lord Selkirk, and indeed followed by every succeeding speaker. Everybody is agreed that it would be wholly inappropriate for us to be tied down at the very beginning of the discussion to the sort of board which is contemplated in Clause 1 of this Bill, and that we should be able now or later on to revert to this matter
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and meet all the criticisms which have been advanced by everybody who has spoken in this debate.
If the Government are not prepared to say now that they will take this away and look at it again, and are not prepared to give due weight to the argument which has been addressed to them from all sides, this Bill will then proceed on its way fatally flawed and we shall be in very considerable difficulty in dealing with this matter at all.
The appropriate way, I suggest with respect and with diffidence, for this to be dealt with is for the noble and learned Lord the Lord Advocate to tell us today that, yes, he will accede to the argument which has been addressed to him, he will take it away and we shall have an opportunity at Report stage of considering this matter anew. If he will do that, then I am sure that there will be no need for us to contemplate any Division, and I feel almost sure that that will meet the real wishes of the Committee.
Lord Cameron of Lochbroom: First, I take the point which my noble friend Lord Selkirk made at the outset, that this board should be independent; and, indeed, that is the concern as much of the Government as of those noble Lords who have already spoken in debate this afternoon. I will certainly look at what has been said by noble Lords this afternoon, bearing in mind that my noble friend indicated that he did not intend to divide the Committee on his amendments. However, it is important that I should put certain matters before your Lordships as a consideration in any future discussion of this matter.
The first point is that the board is not contemplated necessarily as being the particular forum in which applications for legal aid will be considered. This board has the geneal functions which have already been pointed to by noble Lords. The second point which it is important to bring before your Lordships is that Clause 1(3) provides for a degree of flexibility. It reads:
"The Board shall consist of not less than 8 and not more than 15 members appointed by the Secretary of State".
I make that point because I think my noble friend Lord Selkirk will appreciate that the effect of his amendment would be to take away that flexibility as the provisions would require there to be 15 members appointed at all times.
The other matter arising here is the Government's view that there has to be a balance of interests struck. It may be not appropriate that a majority of the hoard should consist of lawyers, but that it should be a mixture of the necessary skills. It is to that end that in subsection (4) there is provision for the Secretary of State in appointments to have regard to the various knowledge and experience which is set out there.
I think it was the noble Lord, Lord Kirkhill—who very kindly wrote to me to apologise for his absence today, and I am very sorry that we have in Committee lost his services—who reminded the House at Second Reading that it sometimes seems that legal aid is mainly of interest to lawyers and criminals. But, of course, that is not so. The composition of a board administering legal aid should, I suggest, indicate a wider range of interests.

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It is also important to bear in mind that the board is able under Schedule 1, paragraph 12, to appoint committees consisting partly or wholly of non-members, and I would expect solicitors and advocates to be appointed to any such committees which have legal duties. One such committee which might be expected to consist predominantly of lawyers would be that appointed to review cases where an applicant was dissatisfied with the refusal of a legal aid application.
Perhaps at this juncture I should say that I appreciate the criticism which my noble friend Lord Selkirk made in regard to the way in which this Bill is set up with the use of regulations. I would respond to that by saying that that is precisely how all the legal aid legislation has been established up to date. There is nothing new in that and, in my submission, as I informed the House at Second Reading, that seems to be the most appropriate way in which to deal with it. But in due course this afternoon we shall, I hope, be coming to certain specific issues which arise with regard to regulations, and it may be that there is material there which will give some further comfort.
It has been said that this should await the review of management consultants to which I alluded at Second Reading. But I wish to make it clear—and I hoped that that was clear when I spoke at Second Reading—that the management consultants are not to review the legal aid system. What they are to advise on is how best the new arrangements shall be administered by the board in the light of the policy set out in the Bill. This will involve a review of the existing arrangements, which my right honourable and learned friend believes reveal considerable scope for improvement, and advising on new ones, such as the determination of applications for summary criminal legal aid. Those matters will be enshrined in regulations which will come before the House in due course, and within the general powers of this Bill. In short, the consultants will advise on administration and not on policy.
5 p.m.
I think that in his speech at Second Reading the noble Lord, Lord Hughes, responded to an issue on the lack of independence of the board, and I would not wish to do more than allude to that. We have to remind ourselves—and your Lordships have far more experience than I have about the creation of boards in many forms in legislation going far beyond legal aid—that they have when set up proved themselves to be wholly independent of the Minister who has appointed them. It is important, however, that the board members should be appointed for their personal qualities and for the experience which they can bring to bear in helping the board to discharge its functions. That is why it is the Government's view that,
"Without prejudice"
—as subsection (5) says—
to subsection (4) … the Secretary of State shall appoint …

"(a) at least one member of the Faculty of Advocates;

(b) at least one member of the Law Society; and

(c) at least one other person having experience of the procedure and practice of the court",

to a board which may consist at one time of eight persons but may of course consist of more. It was intended that the use of the words "at least" gives the
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flexibility which I think the noble Lord, Lord Mishcon, would accept is appropriate where one has a flexible number to the board as a whole.
Perhaps I may deal with certain of the individual points which were made in the course of debate. My noble friend Lord Selkirk referred to the provision whereby the office of chairman would fall within the House of Commons Disqualification Act. Schedule 3(1) simply ensures that the list of various offices which Parliament considers would disqualify the holder for membership of the House of Commons includes the office of chairman of this board. The reason why there is a reference to the board not being regarded as an emanation of the Crown is to make it quite clear that is it not for the purposes of Crown immunity likely to be regarded as the Crown.
The noble Lord, Lord Morton, made reference to the various powers of the Secretary of State. Many of these powers already exist. Perhaps I may take up a point which the noble and learned Lord, Lord Wheatley, made about fees. The Secretary of State already has, and exercises, these powers to establish fees, so there is nothing new in that. Perhaps I may have misunderstood the noble and learned Lord.
Lord Wheatley: I referred to that fact to indicate that the Secretary of State had the power to control perhaps the largest expenditure in the whole of the legal aid administration.
Lord Cameron of Lochbroom: All I would say is that he had that power at present even under the existing administration of legal aid.
It was argued by the noble and learned Lord that there was here something different from the existing system in the sense that the central legal aid committee was wholly independent in its administration of legal aid. As the noble and learned Lord indicated, I have been a member of that committee. I was very conscious at the time that we were not wholly indepen-dent, because under the existing scheme we are subject to direction by the Law Society itself through its legal aid committee. I think it would be an open secret that certain directions were given even in my time with which the membership of the committee may not have been fully in agreement. Even as at present the central legal aid committee is not wholly independent.
I have not endeavoured to meet all the particular points which have been made which in some ways go beyond the general criticism which I think my noble friend was directing here. I would respond simply by saying that the Government are as anxious as any of your Lordships to ensure that the board is independent and is seen to be such and is composed in such a way that the widest range of interests is involved. The noble Lord, Lord Hughes, made reference to Amendments Nos. 8, 9 and 10. Perhaps I may briefly refer to them because it may be that we are not all that far apart in what he meant by the word "nominate".
I wish to place it on record that my right honourable friend the Secretary of State would certainly invite suggestions from the Faculty of Advocates and from the Law Society and perhaps other organisations as to who should be appointed, though the responsibility for selecting and appointing members must clearly rest with him. But I take the point which the noble Lord

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was making and obviously I should like to consider it. Secondly, it would seem inappropriate for the Secretary of State to be required in statute to consult particular organisations. If, for instance, the interests which are covered in the new subsection (4) all had to have corresponding organisations, the list would be a formidable one. But again I assure the noble Lord that my right honourable friend the Secretary of State would certainly be glad to consider suggestions from any bodies which might wish to submit them.
Lastly, there is the question of numbers. I have once again made it clear that the provision is for flexibility in board numbers and that if the Secretary of State wished to limit the numbers to the lower range he would not wish to be committed to appointing in effect a majority of lawyers on a board with wide-ranging management, administrative and financial responsibilities.
I appreciate the points which noble Lords have made and obviously I should wish to look at what has been said in the light of this debate.
Lord Wilson of Langside: May I ask the noble and learned Lord the Lord Advocate to assure the House that he and his right honourable friend the Secretary of State will not be afraid to cast a critical eye over any report about administration coming from a firm of management consultants? I ask that question because I was frankly horrified to hear that management consultants were being brought into this field. I know that management consultants have been used in England—and I can understand it there—but in the context of the Scottish scene, if the resources, legal and otherwise, of the Scottish Office, St. Andrew's House, New St. Andrew's House, the Scottish Courts Administration and the Crown Office itself are not capable of finding the solution to this problem, they certainly ought to be. I am horrified that the Government are wasting money in this way.
Lord Cameron of Lochbroom: When one has been working in a particular area for a fairly long time one is always conscious that familiarity breeds a certain—I was going to say "contempt" but that would not be fair—perhaps a blindness, and that the fresh air which independent assessment can bring is sometimes welcome. But I think I can assure the noble and learned Lord that the fact that a report is received does not of itself mean that every recommendation once it has been looked at will necessarily be accepted: it is advisory.
The Earl of Selkirk: I should like to thank the noble and learned Lord for his answer. I am fully aware that it is not his department. I should not like to say that he is embarrassed because that is something that I am sure he does not understand, but it is difficult to gauge this matter. May I say straightaway that I have the highest regard for the Secretary of State. However, one must remember that he is not going to go on for ever. There will be changes, as there always are. I think that nominations by the Secretary of State are always too numerous. I wonder whether he could say how many nominations he makes. It must literally run into hundreds. I think that is taking it very far.
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There is another side, and let us be frank about it. There is a strong element of political partisanship in nominations. One cannot get away from it. I happened to hear a story only last night about my noble friend Lord Campbell of Croy who, I was told, was particu-larly good at avoiding any political suggestion; but that leaves the implication that some of the other Secretaries of State were not quite so good. I do not know whether that is true or not, and would only say that it is gossip that I have picked up. However, it is an embarrassing point and it is difficult wholly to avoid the implications, or at least a suggestion of it.
The noble and learned Lord said that he would look at the matter. Those are words that I have heard on many occasions from the Government Front Bench. They do not mean much. I should like to take up what the noble Lord, Lord Mishcon, said on that point, and I am sorry he is not in the Chamber at the moment. I think that we should say to my noble and learned friend the Lord Advocate that unless he produces an independent committee—and, as the noble Lord, Lord Hughes, said, not only independent but seen to be independent—then I think this Committee must divide; not necessarily now, but in time to come. We must insist on this.
Frankly, I would go a great deal further and take up what the noble and learned Lord, Lord Wheatley, said. I would take back this Bill. It is a bad Bill. It does not say at all what we should do. I think that whenever the draughtsman reached a difficult point in the clauses and did not know how to proceed, he said, "We will do this by regulation". He could not think how to answer the problem so he said that it should be done by regulation. It is all very well, but not one layman will understand a word of this Bill as to whether he is justified, or is not justified, in getting legal aid.
Cannot we make this Bill simpler? I do not accept for one moment what the noble and learned Lord the Lord Advocate said; that he had to wait for whoever it was to do the report before we could get the Bill in front of us. It is an incomplete Bill and it is not good enough to be put before Parliament. It is a half-baked Bill. The Scottish Office should pull itself together and present us with a Bill which is really worthwhile. Concerning the drafting of this Bill and for example, one done for the Scottish Law Commission which we took earlier this week, there is simply no comparison. It is a low standard for the Scottish Office to produce such a Bill on a matter which is of great concern to a large number of people.
I ask the noble and learned Lord to be good enough to consider this point and to take into account that there may be Secretaries of State who may not be familiar with, or have much regard for, the law in one way or another, and see whether he can produce a measure which is independent, and clearly seen to be independent, and experienced. It should be something which is respected, not only here but by the general community in Scotland. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Swinton: I think this might be a convenient time to take the Statement. Therefore, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Scottish Teachers' Dispute
5.13 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness): My Lords, with the leave of the House I shall now repeat a statement made in another place by my right honourable and learned friend the Secretary of State for Scotland. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement about the teachers' dispute in Scotland.
"This dispute has now run for nearly 19 months. The education of pupils is suffering increasing disruption, and continuation of the dispute can do nothing but harm, The Government have made repeated efforts to find an acceptable basis on which teachers and their employers could negotiate a settlement; yet formal negotiations have not even begun.
"This situation is unsatisfactory from any point of view. It is also in marked contrast to events in England and Wales, where, as the House will be aware, an agreement for the current year has been reached; and constructive negotiations on pay, pay structure and related matters are about to begin under ACAS auspices. I very much regret that there is no sign of a similar initiative in Scotland. The statutory negotiating machinery has failed to function and it is therefore necessary to find some means of breaking the deadlock. I therefore propose to set up an independent Committee of Inquiry with wide-ranging terms of reference in an effort to bring this dispute to an end and establish a basis for the pay, conditions of service and management of the teaching profession in Scotland which is appropriate to the conditions of today.
"The inquiry will accordingly be given the following terms of reference:
In the light of the Government's educational objectives and the need to observe continuing public expenditure restraint in the interests of taxpayers and ratepayers, to consider:

A. The duties, pay structure, pay levels and other conditions of service of school teachers, with particular regard to the need to recruit, retain and motivate teachers of the right quality, to address staffing difficulties in shortage areas such as mathematics and science and in particular localities, and to improve the promotion and career prospects of effective teachers, particularly experienced teachers of proven ability who remain in the classroom;

B. Teachers' duties and responsibilites and their definition in contracts of employment;

C. The arrangements for managing schools and the teaching service;

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D. Future arrangements for determining teachers' pay and structure, duties, responsibilities and conditions of service;

E. The mechanisms for implementing and enforcing the above arrangements;

F. In all respects the need to take into account what can be afforded.

And to make recommendations.
"I hope to announce the names of the chairman and members shortly. The committee will be asked to begin work as soon as possible and to report by the end of the summer so that its findings can be taken into account in the 1986–87 pay settlement. The committee will take evidence from all interested parties and will give the teachers in particular the independent hearing which they have asked for since the beginning of the dispute. I therefore expect, and I believe I shall be supported by all sides of the House in this, that the teachers' unions will call off their industrial action forthwith and allow the life of the schools to return to normal; and I hope that teachers and employers will meantime agree on a pay settlement for 1985–86 in the normal way while they await the committee's findings on the wider issues."
My Lords, that concludes the Statement.
Lord Ross of Marnock: My Lords, this is a very important Statement from the point of view of Scotland, where this strike has been going on for the better part of two years. I thank the Minister for repeating the Statement by the Secretary of State in another place. I should like to congratulate the Secretary of State himself for having taken this very important initiative. When one considers the damage that has been done—and the damage to children's education is not just damage for the moment but could be damage that is lasting and may have already affected the educational progress of children and possibly their future careers and outlook in education—it is to be regretted that this has taken so long.
I cannot omit saying—and it is the only comment I have made on this dispute: I have kept quiet about it—that what the teachers now appear to be getting is a form of independent inquiry. The teachers in Scotland asked for that in June 1984, I think it was, or 1985.
A noble Lord: 1984, my Lords.
Lord Ross of Marnock: My Lords, it was 1984. It took the Secretary of State of the day six months to reply to the request—I repeat, six months—and the answer was, "no".
To my mind we have had cynical inertia followed by inflexibility that has cost Scotland's children dear. Indeed, the dispute having continued for so long, it makes it more and more difficult to reach a settlement. The teachers will look at the terms of reference even more closely today than they would have done a year ago. It is quite wrong. I sincerely hope that the dispute can be brought to an end, but it is not for us to say; it is for the teachers.

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Has the Secretary of State agreed this Statement with the teachers? If he has not, then when will he meet with the teachers' representatives? Can he also answer this point: was it essential—since we have just been talking about independent committees—that we should start with a very repetitious statement of the terms of reference? The first sentence contains the phrase, "the need to observe continuing public expenditure restraint" and almost the last lines of it say, "In all respects the need to take into account what can be afforded". There is not a great deal of indepen-dence with one's hands tied like that. I think that the Government could have been a little happier in their choice of words and phrasing of the terms of reference.
Another question that I should like to ask concerns paragraph C: "The arrangements for managing schools and the teaching service". Can we be told what is involved in that? As regards paragraph E: "The mechanisms for implementing and enforcing the above arrangements" (that is, the conclusions and recommendations that will be produced), was it entirely necessary to say "enforcing"? Why do we pick out of the air a word like that when the word "implementing" is already there? It gives entirely the wrong impression. It envisages almost a confrontation before we even get any measure of agreement.
I hope that, if they are meeting the teachers, the Government will take the opportunity to clear up some of these matters. If we are to have an indepen-dent inquiry after this very serious dispute, which is indeed still continuing, they will need to be very careful indeed about the selection of the chairman. We had references to the selection of chairmen just a minute ago from the noble Earl, Lord Selkirk. He talked about political appointments and somehow or other he seemed to imply that certain Secretaries of State made political appointments and others did not.
The Earl of Selkirk: My Lords, I beg the noble Lord not to take offence at anything I said.
Lord Ross of Marnock: My Lords, I am being serious about this matter, because you should not joke about this kind of thing. If there is an obvious political appointment here, it will vitiate all the hopes of the Secretary of State and indeed of the whole House.
I should also like to ask the noble Lord about another point. He wants the work to begin as soon as possible and the report to be produced by the end of the summer. With due respect, I think that that is not giving the inquiry very much time, when questions of pay, structure, conditions of service and contracts will all have to be considered in that short time. I hope that the Secretary of State will keep his mind open to the possibility of extending that particular period.
Another point which I should like to raise concerns the reference to the hope that a pay settlement will be agreed for 1985–86. The last pay settlement in Scotland was agreed in April 1984. If I remember correctly, there was no quibble at all about it. The teachers settled without question and without dispute of any kind. On the other hand, in England at that time they went to arbitration and actually received more than the Scots. What is on offer in this current negotiation? Bearing in mind that the English teachers
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received more than the Scots teachers in 1984 and that the English teachers have recently settled for 6.9 per cent., I trust that the Secretary of State is now prepared to put far more money on the table than he did at the start of this dispute.
Lord Grimond: My Lords, we on these Benches are indeed grateful to the Minister for repeating this Statement. We welcome the initiative that has been taken. We hope that it succeeds and that the teachers accept it, but we are bound to remark that it is indeed a pity that it was not made many months ago when it was first suggested. If the Government were willing to have an inquiry, they could have saved everyone a great deal of trouble over the past few months.
The Statement says that the inquiry will be wide-ranging. I appreciate that if the committee is to report by the end of the summer, it cannot be too wide-ranging; nevertheless, the word "wide-ranging" is used. First of all, may I ask the Minister whether he has in mind that there will be an interim report? Secondly, may I ask him whether the inquiry will look into the success of teaching in Scotland and its success in particular in reaching the Government's objectives? Will the committee of inquiry be entitled to look at different methods of finance? For instance, there is the possibility that the expenses of education should be borne to a far greater extent by central government or helped by vouchers. Thirdly, can the Minister assure me that the committee will be open to representations from parents and other members of the public? It is the families who have suffered as well as the children through the disastrous disputes of the last year or more.
The Earl of Caithness: My Lords, I am grateful for the welcome to the Statement which I have just repeated given by the noble Lords, Lord Ross and Lord Grimond. In particular, I shall pass on the congratulations of the noble Lord, Lord Ross, to my right honourable friend.
The noble Lord, Lord Ross, said that in essence we have given in to the teachers by agreeing to an independent pay review now. I cannot agree with what he says because, as I said in the Statement, the independent inquiry that we are setting up now covers far more than just pay. This is the major break-through that we hope will lead to a return to normal working in schools as soon as possible. The noble Lord, Lord Ross, said that it took six months for my right honourable friend to reply in 1984. That is not right. It was done in a much shorter period than that. I am not certain of the exact dates, but I know that it was well within the six months that he mentioned.
The noble Lords, Lord Ross and Lord Grimond, asked why it had taken Her Majesty's Government so long to agree to an inquiry. The reason is that it is barely four years since Parliament created the new negotiating machinery. It has been our view through-out this dispute that the parties ought to use that machinery, and our efforts have been directed to that end. We have now exhausted those possibilities. The machinery that was set up four years ago, and which we have given a chance to work, has failed to work and therefore it is time to set up the new inquiry.
I can tell the noble Lord, Lord Ross, who asked when my right honourable friend intended to meet the

335
teachers, that he will meet the teachers tomorrow. The noble Lord also referred to our reference in the Statement to public expenditure. I think it would be very foolish of any government, when making a Statement such as this, not to refer to public expenditure. They have an overriding duty to taxpayers and ratepayers, and it is right to point out that duty and make it clear to one and all. The noble Lord also asked about management in schools. The inquiry will not be able properly to review teachers' pay and conditions without also examining the management content. Falling school rolls have created severe management problems as well as affecting the career prospects of individuals. The inquiry will need to consider promotion structures, in-service training arrangements and the scope for giving individual schools greater discretion in staff appointments and spending priorities.
The noble Lord asked about the enforcement of arrangements. I am sure we all agree that the victims in this dispute have been the pupils. The teachers have been able to disrupt schooling in all sorts of ways at no cost to themselves, yet parents have been impotent to protect their children, employers have been unable or unwilling to take robust action and the Government have been unable to intervene effectively. That cannot be right, and we hope that the inquiry will find ways to ensure that the interests of children can be protected by law if need be.
The noble Lord, Lord Grimond, asked whether there would be an interim report. I have to tell him that that is unlikely in view of the time-scale in which we wish the inquiry to report. We should certainly welcome representations from parents and all others involved. As to the appointment of the chairman and composition of the board, the committee will be independent. The points raised in our debate in Committee this afternoon will be noted. The members will be of sufficient standing to command the respect not only of the parties to the dispute but also the public and the parents.
The noble Lord, Lord Ross, asked about payment for the teachers of their 1985–86 settlement. He was right to say that they have not received a pay rise since 1984, but I have to advise your Lordships that they have not submitted a claim for 1985–86. Until they do, it is difficult to decide how to take the matter a stage forward. We hope that that will not be long delayed now.
Lord Wilson of Langside: My Lords, is the House to take it that the first that the teachers or their representatives in Scotland will learn of the proposal to set up an independent inquiry will be when they read about it in the press tomorrow or hear about it on television tonight? Is that in accordance with the normal practice against such a regrettable background?
The Earl of Caithness: No, my Lords; it will not be through the media that they hear about it. I understand that discussions with the teachers have already taken place this afternoon.

Legal Aid (Scotland) Bill [H.L.]
5.31 p.m.
House again in Committee on Clause 1.
[Amendments Nos. 5 and 6 not moved.]
The Deputy Chairman of Committees (Lord Renton): I have to point out that if Amendment No. 7 is agreed to I cannot call Amendments Nos. 8 or 9.
[Amendments Nos. 7 to 10 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Morton of Shuna: I oppose the Motion, That the clause shall stand part of the Bill. In the debate that we have heard there have been powerful criticisms of the Bill from all over the Committee. It is no part of my wish to repeat them. To a large extent they were suggestions that the clause should not stand part of the Bill and that the Government should take the Bill away and consider it in the light of the management consultants' report that they will eventually have. It appears to me that the best way to do that is if your Lordships' Committee agrees that Clause 1 shall not stand part of the Bill.
It would be wrong of me merely to repeat what has already been said so powerfully by the noble Earl, Lord Selkirk, or by the noble and learned Lord, Lord Wheatley. I suggest that this is, as has been described, a half-baked Bill, inadequately drafted and producing a sham of independence. It would be much better to get it right, as there does not appear to be a particular hurry about the reorganisation of legal aid.
Lord Elwyn-Jones: This is the first time that I have ever had the courage to intervene in Scottish legal affairs, but I am impelled to do so lest, if the Government get away with the Bill, they may be tempted to extend the legislation to England and Wales, even, and that would be intolerable. It is a classic quango that they are proposing to set up, with little independence, and chosen because of the rejection by the Government of the amendments put forward. It gives no assurance of independence. For that, among a multitude of other powerful reasons that have been given, I am glad that my noble and learned friend has decided that we should seek the view of the Committee.
Lord Cameron of Lochbroom: We trod this path at Second Reading, when I made the matter quite clear. I was reinforced in my belief by the speeches of the only two lay Members of your Lordships' House who then spoke that it would be appropriate to establish a board. The reason that the noble Lord, Lord Morton, fastened upon for opposing the clause was that there was a management consultants' report, but I have already responded to that point. I suggest to your Lordships that it bears no legitimacy.
I appreciate the concern on the other side of the Border when Scotsmen proceed with good legislation which may have a tempting flavour once it is seen to work in practice. I have indicated clearly that the Government's view is that this is proper legislation.

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With due respect to some of the criticism that has been made, it has been drafted in a manner which is well known for dealing with legal aid matters and which has been encompassed in legislation that has passed through Parliament on a number of occasions.
5.33 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
Their Lordships divided: Contents, 86; Not-Contents, 57.

DIVISION NO. 2

CONTENTS

Ailesbury, M.

Lauderdale, E.

Ailsa, M.

Lindsey and Abingdon, E.

Airey of Abingdon, B.

Long, V. [Teller.]

Aldington, L.

Lucas of Chilworth, L.

Alexander of Tunis, E.

McAlpine of Moffat, L.

Auckland, L.

McAlpine of West Green, L.

Belhaven and Stenton, L.

Macleod of Borve, B.

Belstead, L.

Mancroft, L.

Brabazon of Tara, L.

Marley, L.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Caccia, L.

Maude of Stratford-upon-Avon, L.

Caithness, E.

Cameron of Lochbroom, L.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Campbell of Croy, L.

Montagu of Beaulieu, L.

Carnegy of Lour, B.

Mottistone, L.

Cathcart, E.

Mowbray and Stourton, L.

Colville of Culross, V.

Munster, E.

Cox, B.

Murton of Lindisfarne, L.

Craigavon, V.

Orkney, E.

Cullen of Ashbourne, L.

Pender, L.

Davidson, V.

Peyton of Yeovil, L.

Denham, L.

Rankeillour, L.

Dilhorne, V.

Renton, L.

Drumalbyn, L.

Rochdale, V.

Elliott of Morpeth, L.

Rodney, L.

Elton, L.

St. Davids, V.

Ferrers, E.

Skelmersdale, L.

Forester, L.

Somers, L.

Fraser of Kilmorack, L.

Strathcona and Mount Royal, L.

Gainford, L.

Gisborough, L.

Sudeley, L.

Glenarthur, L.

Swansea, L.

Greenway, L.

Swinton, E. [Teller.]

Hailsham of Saint Marylebone, L.

Terrington, L.

Teynham, L.

Hardinge of Penshurst, L.

Trefgarne, L.

Hemphill, L.

Trumpington, B.

Henley, L.

Vaux of Harrowden, L.

Hooper, B.

Vickers, B.

Hylton-Foster, B.

Vivian, L.

Inglewood, L.

Ward of Witley, V.

Killearn, L.

Whitelaw, V.

Kinnoull, E.

Young, B.

Lane-Fox, B.

NOT-CONTENTS

Airedale, L.

Fitt, L.

Amherst, E.

Foot, L.

Aylestone, L.

Gallacher, L.

Banks, L.

Gladwyn, L.

Carmichael of Kelvingrove, L.

Graham of Edmonton, L. [Teller.]

Cledwyn of Penrhos, L.

Collison, L.

Grimond, L.

Crawshaw of Aintree, L.

Hanworth, V.

David, B. [Teller.]

Harris of Greenwich, L.

Dean of Beswick, L.

Hatch of Lusby, L.

Denning, L.

Hooson, L.

Diamond, L.

Howie of Troon, L.

Elwyn-Jones, L.

Hughes, L.

Ewart-Biggs, B.

Irving of Dartford, L.

338

Jenkins of Putney, L.

Saltoun of Abernethy, Ly.

John-Mackie, L.

Selkirk, E.

Kissin, L.

Serota, B.

Lloyd of Kilgerran, L.

Shackleton, L.

Lockwood, B.

Silkin of Dulwich, L.

Longford, E.

Stallard, L.

Lovell-Davis, L.

Stoddart of Swindon, L.

Mishcon, L.

Strabolgi, L.

Morton of Shuna, L.

Underhill, L.

Mulley, L.

Wallace of Coslany, L.

Nicol, B.

Wells-Pestell, L.

Ogmore, L.

Wheatley, L.

Oram, L.

White, B.

Phillips, B.

Wigoder, L.

Ross of Marnock, L.

Wilson of Langside, L.

Resolved in the affirmative, and Clause 1 agreed to accordingly.
Schedule 1 [The Scottish Legal Aid Board]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 11:
Page 33, line 37, leave out ("superannuation").
The noble and learned Lord said: This is a drafting amendment designed to make clear that items such as injury benefits are not excluded from the provisions of paragraph 8(3) of the schedule.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 12:
Page 33, line 39, at end insert—
("(3A) The reference in sub-paragraph (3) above to pensions, allowances or gratuities in respect of employees of the Board includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any such employee who suffers loss of office or employment.").
The noble and learned Lord said: This amendment makes provision for board staff as well as board members to be compensated for loss of office or employment in appropriate circumstances. I beg to move.
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
Schedule 1, as amended, agreed to.
Clause 2 [Powers of the Board]:
[Amendment No. 14 not moved.]
Clause 2 agreed to.
Clause 3 [Duties of the Board]:
5.45 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 15:
Page 3, line 1, at beginning insert—
("( ) The Board shall endeavour to expedite and assist the administration of justice in the courts of Scotland.").
The noble Earl said: I move this amendment to show how very unsatisfactory this Bill is in its drafting. If any of your Lordships were to become a member of the board, your first action would be to examine what powers you possessed. Next, you would look at your duties. These duties are, however, of a wholly bureaucratic character that bear no relation to what are the main functions of the board. The board has to publish information. It has to furnish information to the Secretary of State. It has to provide the Secretary of State with something else, and it has to let the

339
Secretary of State look at its accounts. Those are the outstanding duties, apart from one other, which is that the board has to follow guidance and obey what the Secretary of State says.
I regard this as extremely uninspiring. Anyone joining the board will imagine that they are becoming simply a clerk completing forms and fulfilling duties. I have tried therefore, in a simple way, to show what the real duties are. I recognise that what is stated in the rubric is not important. However, on seeing the word "duties", one would expect to gain some idea of what functions were involved. I have therefore proposed the words that:
"The Board shall endeavour to expedite and assist the administration of justice in the courts of Scotland".
That gives at least some idea of the main functions. Otherwise, I maintain that the rubric should be changed, stating simply the requirements that the board has to fulfil. It is most uninspiring, I believe, for anyone becoming a member to find himself simply engaged in passing information to the Secretary of State and ensuring that the accounts are examined properly. I beg to move.
Lord Morton of Shuna: I wholly support the amendment. In a sense, I have spoken on the principle of it at an earlier stage. It appears to me that the amendment would provide the board with some idea that it would be looking at something to do with the administration of justice and how it would affect legal aid. I wholly support the amendment.
Lord Cameron of Lochbroom: I was concerned to find out from my noble friend what was the purpose of his amendment. It is, I believe, important to have regard to the fact that Clause 3 deals with certain duties but that these have to be read in the light of what precedes it, and, in particular, Clause 1, which sets out the general functions of the board. That is really the area with which my noble friend is most concerned. The board has the function of,
"securing that legal aid and advice and assistance are available in accordance with this Act."
and
"of administering the Fund".
That tells board members what they are there to do.
The way in which this duty is framed, in my submission, carries us into the argument which we have already had about Clause 1 today. It is of a breadth which would suggest that the board should concern itself with matters which fall far outwith its functions. For that reason I cannot commend this amendment to your Lordships. However, obviously I shall consider what my noble friend has said in this matter. It may be that there is something which could be contained within the Bill to make a particular aspect clearer with regard to the fact that delay should not take place so far as court proceedings are concerned. I do not think I can go any further than saying to my noble friend at this stage that I shall consider this.
The Earl of Selkirk: I am always grateful to hear from the noble and learned Lord the Lord Advocate, but if I may say so, it was a particularly uninspiring answer which he can normally put some life into.
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There are two points here which go beyond, and should possibly be included in, Clause 1. The first point is to expedite justice. The noble Lord said that the local committees are going to be abolished. What will take their place? It is within the duty of the board to see that justice is done quickly. That will partly rest with them and their duty to do so.
They are concerned not simply with the working of legal aid and advice but with the administration of justice. I have said—and I think the noble and learned Lord, Lord Wheatley, said—that this is an integral part of the administration of justice. Nowhere in this Bill does it say that. I shall not press this point, but I am saying that it is only one of the many defects in the whole presentation of this Bill. I shall not press it further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 16:
Page 3, line 9, leave out ("the Secretary of State") and insert ("Parliament")
The noble Lord said: It seems to me more appropriate that the report of the board should go to Parliament than to the Secretary of State. I do not think that I need say any more. I beg to move.
Lord Cameron of Lochbroom: I think that this amendment is otiose but I would remind your Lordships that the Secretary of State will be responsible for funding the board. It is he who will be accountable to Parliament for the board's discharge of its functions. That is why it is proposed that the board should in the first instance report to the Secretary of State. However, Clause 5(7) of this Bill requires the Secretary of State thereafter to lay the board's report, together with its accounts, and the auditors' report on them, before each House of Parliament. With that clarification the noble Lord might feel able to consider his position.
Lord Morton of Shuna: The noble and learned Lord the Lord Advocate has, in that answer, shown quite clearly that this board is to be a creature of the Secretary of State. However, in the light of his answer I shall not press this amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 17:
Page 3, line 12, at end insert ("and to keep under review generally the provision of legal aid and legal services and to report to Parliament thereon from time to time".
There is nothing in the powers and duties of the board which gives it any requirement to keep under review the provisions of legal aid and legal services. I beg to move.
Lord Cameron of Lochbroom: I spoke to this in response to the Motion of the noble Lord on the first amendment. I do not wish to repeat in any detail what I said then.
The Government take the view that this extends the functions of the board beyond what is intended within the framework of the clauses which deal with its functions, powers and duties. Therefore I cannot accept this amendment.
Lord Morton of Shuna: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 18:
Page 3, line 13, leave out subsection (4).
The noble Lord said: The subsection requires the board to have regard to guidance from the Secretary of State. This is another provision which shows that the board is to be the creature of the Secretary of State, whether the board emanates from the Crown or not. Surely the guidance that the board should get should come in the form of the Act itself which sets it up, and in the form of regulations approved by Parliament rather than from any unspecific private guidance which it may receive from time to time from the Secretary of State. I beg to move.
The Earl of Selkirk: My name is linked with this amendment and I should like to add one word. What is guidance?—conversations over the dinner table? Guidance can be absolutely anything. It is certainly not necessarily written. This means that the board has to have regard to anything which the Secretary of State says. If that is the case, it is impossible to say that it is an independent board. I cannot see the point. The subsection states that it will "not affect the consideration or disposal of applications". It would be intolerable if it did. I find the last sentence quite superfluous unless the board is completely an instrument of the Secretary of State; otherwise it would be totally unnecessary to put this wording in at all. It means that any guidance given, whether in writing or in words, has to be given very careful attention. When one says "the Secretary of State" one means any officer of the Secretary of State's office who speaks on his behalf. Any civil servant can make a statement if necessary which the board would have to observe. I believe that this is an otiose subsection and I hope to see it removed.
Lord Wheatley: I think that in any particular clause the objection or wording depends on the context in which that clause is framed. It is against the background of all the other powers that are being granted under this Bill that one has to have regard to this subsection that "the Board shall have regard … to such guidance". Guidance means that they are being led. It is not just a question of the Secretary of State making representations to them. He will guide them as to the way in which they are supposed to go. This underlines once again the question as to the independence of the board, or the fact that it is merely—as I have said before—the arm of the Secretary of State.
Perhaps the noble and learned Lord the Lord Advocate might take this away and find some other expression that would be less objectionable. As suggested by the noble Earl, Lord Selkirk, perhaps there could be spelt out precisely in regulations the extent to which such directions can be given or such guidance can be proferred.
Lord Cameron of Lochbroom: The noble and learned Lord is quite right to say that one should always look at the Bill as a whole in determining the meaning of any particular part of it. It is important to
342
bear in mind that the Secretary of State is accountable to Parliament for the board's activities and expenditure. That being so, it is the Government's view that it is right that he should have some statutory means of influencing the board in these aspects of its operation.
6 p.m.
Perhaps I may give an example. The Secretary of State might wish to give guidance on the form of accounts, or on staffing, or on accommodation or on methods of administration. However, it should be emphasised that the power is one to give guidance, to which the baord is to give proper regard, but there is no direction-making power in the Bill. Indeed, the Secretary of State's guidance power is constrained in two ways.
First, the Secretary of State cannot give guidance which conflicts with the Act or with subordinate legislation. That must follow from reading this within the context of the Bill as a whole. Secondly, he cannot give guidance which would affect the consideration or disposal of applications for legal aid or advice and assistance; that is to say, the board remains quite independent of the Secretary of State on the matters for which it is truly responsible. That being so, it has there to act subject to the terms of the Act and of regulations made under it in its procedures for dealing with applications for legal aid and in its decision-making.
With all due respect to those who have spoken, there is nothing sinister in this, but it is appropriate where the Secretary of State has these obligations to Parliament that he should at least be entitled to express his views by way of guidance to which the hoard shall have regard. As I say, his views are not directory; they are simply there for guidance.
Lord Mishcon: As we are dealing with a statute, I wonder whether we can have the guidance of the noble and learned Lord himself in regard to a clause which deals with guidance. First, what would be the position in law if, having received guidance in regard to, as the noble and learned Lord said, matters of administration, matters of expenditure and matters of staff, the board did not accept that guidance? Is the noble and learned Lord saying that within the words of this statute it is perfectly open to the board not to accept the guidance?—in which case, the words are rather misleading, but naturally one would accept what the noble and learned Lord has to say and try to deal with the matter at Report stage. Alternatively, is the noble and learned Lord saying, "No, if on matters that do not deal with the consideration or disposal of applications, the Secretary of State gives guidance, then the board must accept it"?
I should have thought that the words,
"shall have regard … to such guidance"
mean what they say: namely, that regard must be had to that guidance and it should be followed. If the board does not follow it, are its members open to some writ of mandamus? Are there other legal consequences which follow? Surely on any view at all the present wording of subsection (4) must give rise to grave matters of interpretation in future years. In view of the noble and learned Lord's own statement, will he not at

343
least concede that the words had better be looked at in order to ensure that they in fact carry out what I believe the noble and learned Lord wants them to carry out, if we are to accept his words?
Lord Foot: Perhaps I may say a few words in support of the remarks of the noble Lord, Lord Mishcon. We are dealing with a clause which is described as the "Duties of the Board"; we are dealing with duties. If it is provided, as it is provided here, that,
"The Board shall have regard … to such guidance as may from time to time be given by the Secretary of State",
does it not follow that the board cannot disregard the advice which is given by the Secretary of State? If that is the case, this goes far further than guidance, does it not? It enables the Secretary of State to issue a direction.
The other question that I should like to ask relates to the second part of this subsection, which states:
"but such guidance"—
that is, by the Secretary of State—
"shall not affect the consideration or disposal of applications for legal aid"
etc. Let us suppose that the Secretary of State purports to give guidance upon a matter which touches on the grant of legal aid. What is the situation then? Can the board say that this is beyond the powers of the Secretary of State and therefore it will disregard it and is under no obligation? Let us suppose that that happens and the Secretary of State issues guidance which offends against this clause. What remedy does the board have? In what way can it say that this is far beyond the powers of the Secretary of State and therefore it will disregard it? I do not know whether the noble and learned Lord can enlighten us upon those two questions.
Lord Denning: Perhaps I may add a few words. The words "shall have regard" are most uncertain. Recently in the Local Government Bill we had the words:
"shall have regard to the codes of practice".
We took out that particular provision because it would immediately open the way to complaints for a judicial review—complaints that the Secretary of State, or whoever it may be, has not had regard or has had too little regard. It would open the way to all sorts of legal points which are much better avoided. I would rather omit the clause altogether than have questions like this go before the courts by way of judicial review or anything of the kind.
Lord Cameron of Lochbroom: I am bound to say that, once again, this has to be read in the context of the remainder of the Bill. Certainly my reading of this subsection is to the effect that the board must have a genuine regard to guidance, but the guidance does not in itself constitute direction. Therefore, the board is simply bound properly to consider the guidance but not to follow it blindly. If the guidance offends against the restriction which is contained within this subsection, in order to make it absolutely clear beyond peradventure that it is not to affect consideration or disposal of applications which the board has itself to consider, clearly it is entitled by this subsection and by
344
what the legislation provides for here to ignore any such guidance if it should bear that particular meaning.
The idea of guidance is one with which, again. I think the Committee is familiar, and I do not regard this, in the context of this particular Bill, as giving rise to any question of judicial review. With that explanation, I hope that the noble Lord, Lord Morton, will be disposed not to press this amendment.
Lord Morton of Shuna: As there is a certain Welsh element present, I should like to remind the Committee of a hymn which starts, at least in its English translation, "Guide me". Guidance is a fairly definite phrase there. I do not wish to divide the Committee, but perhaps the noble and learned Lord the Lord Advocate would consider whether, rather than the words "have regard", some such words as "the board shall consider such advice" might be a happier phrase. In the confident hope that the noble and learned Lord will at least think about it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 19:
Page 3, line 24, at end insert—
(" ( ) It shall be the duty of the Board to monitor the operation of legal aid and advice and assistance and to recommend to the Secretary of State such changes as they consider expedient.
( ) The Board shall have a duty to experiment with new forms of delivering legal aid or alternative legal services with a view to securing the most effective use of public funds and to make recommendations to the Secretary of State.").
The noble Lord said: Perhaps I can deal with this amendment very shortly because I spoke to it when I dealt with the first amendment. This is an amendment suggested not by lawyers but by the Consumer Council to give some content to the duties of the board. I hope that it may be acceptable to the noble and learned Lord the Lord Advocate. I beg to move.
Lord Cameron of Lochbroom: I do not wish to take up noble Lords' time, because in fact when I spoke to the first amendment that we considered this afternoon I dealt with this amendment in detail. I simply make it clear that again I must ask the Committee to reject it, first of all because the second subsection extends the powers of the board beyond what is intended. Secondly, so far as the first subsection is concerned, the Government would expect the board to monitor the legal aid system and make such changes in arrangements as are within its competence. It would not seem appropriate to give the board a formal or general advisory role.
Lord Morton of Shuna: I do not wish to delay the committee. Therefore, I beg leave to withdraw the amendment, though I may return to it.
Amendment, by leave, withdrawn.
Clause 3 agreed to
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 20:
After Clause 3, insert the following new clause:
("Advisory Committee.
.—(1) The Secretary of State shall constitute an Advisory Committee to advise him on such questions relating to this Act as he may from time to time refer to it and to make to him

345
recommendations on such matters as relating as they consider appropriate; and the Secretary of State shall appoint the members of the Committee with regard to their knowledge of the work of the Courts and social conditions.
(2) The Secretary of State may pay to the members of the Advisory Committee such travelling and other allowances as he may determine and any expenses of the Secretary of State under this subsection shall be defrayed out of monies provided by Parliament.
(3) The Secretary of State shall refer to the Board's Annual Report on the operation and financing of this Act to the Advisory Committee for its consideration and advice and when the Committee has considered it, it shall lay before each House of Parliament a copy of it, and of any comments or recommendations made by the Committee.").
The noble and learned Lord said: I venture to submit that this is an important amendment. Both the Rushcliffe Committee and the Cameron Committee, as I understand and recollect, which proposed the legal aid schemes for England and Wales and Scotland, recommended the establishment of advisory schemes to review the legal aid schemes in operation. That recommendation was not acted upon in Scotland but it was in the case of England and Wales.
The Lord Chancellor's Legal Aid Advisory Committee was set up to oversee the Law Society's administration of the legal aid schemes and to advise the Lord Chancellor on future development. If I may say so, I found it an invaluable ally and assistant when I was in office. I was in regular touch with its chairman. Some of the recommendations of its committee were followed, and achieved considerable improvements in the legal aid scheme. Indeed, the setting up of law centres was very much the product of its own suggestions and certainly of its encouragement.
The advisory committee, as the Committee will know, produces a significant annual report which assesses the workings of the schemes and proposes improvements. I remember that the first I received in 1974 showed what a massive need there was for the extension of legal aid and advice, and I did my utmost to give effect to it. The committee produces an annual report which is made available to Parliament, and is indeed laid before Parliament, and it is of considerable assistance in the development of legal aid.
I will not say that this has arisen in the debate, but there are moments when it is as though legal aid were thought of as a contagious disease that ought to be avoided at all costs. I am not suggesting that this is the view of the noble and learned Lord. The value of a monitoring and new examining of the process of the administration of the legal aid scheme is of great importance. It would be of particular importance where the legal aid scheme is run not by a professional body of the Law Society, which is what we thought was the best course to take when we had great arguments about all this away back in the early days after the war when this was set up.
The existence of an advisory committee is even more important if and when legal aid is to be run by a government-appointed board and subject to regulations made by the Secretary of State. An independent advisory committee to analyse and criticise, if need be, the legal aid schemes and their operation ought to be an essential part of the whole scheme. Not only should they be obliged to report to the Secretary of State themselves, but the report
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should be laid before Parliament so that the public and Parliament should know how this valuable scheme is operating. I beg to move.
6.15 p.m.
Lord Denning: Perhaps I may say a word on this. I have in my hand the 33rd legal aid annual report, and if I am permitted I shall quote from it in an amendment that I shall move later. Often it has been of the greatest value. I know all the members of the committee. They represent a wide spectrum of our life—the master of a college, and so forth. They report in many pages on developments during the year and problems during the year, such as the important problem of the charge on the matrimonial home, which has been much considered; and whether or not the unassisted party should get help from the legal aid fund.
That is a great controversy in which certainly the Lord Chancellor welcomes the committee's advice. In one of our debates on legal aid he quoted at length—I think it took up two or three pages of Hansard—a complete extract from the advisory committee's report. It has proved most valuable in England to the Lord Chancellor, and I should have thought that it could prove equally valuable to the Secretary of State for Scotland. I support the amendment.
Lord Morton of Shuna: I also support this amendment, which has not only been requested by the original committees that set up legal aid but has been recommended by the Royal Commission and requested by the Law Society and by the Consumer Council. If the Government refuse to accept it they are showing an attitude that they, in the shape of the Home and Health Department, always know best and that nobody in Scotland can ever give them any useful advice or make any useful suggestion. This sort of nursemaid complex would be totally unsuitable. I strongly support this amendment.
Lord Foot: Perhaps I may simply point out that if this amendment were accepted it would go quite a long way to meeting the proposals that were made earlier under amendments Nos. 3, 14, 17 and 19, all of which were imposing additional powers and duties on the board. Many of those powers and duties that we sought to give to the board could be better exercised by this independent advisory committee. In view of the splendid record that the advisory committee has had in England—and a succession of Lord Chancellors have given their evidence and testimony to that effect—it would go a long way to meet some of the criticisms that have been made up to now about the board if the Government were able to accept this amendment.
Lord Cameron of Lochbroom: Reference has been made to the fact that in two reports which antedated the introduction of the legal aid schemes in both jurisdictions, recommendations were made concerning an advisory committee. But of course such an advisory committee has never been a feature of Scottish arrangements. While I do not suggest that we cannot learn from what has happened south of the Border, in this case I am not persuaded that that is the case.

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The Government did not accept the recommendation of the Royal Commission chaired by the noble Lord, Lord Hughes, that a wider-ranging Legal Services Advisory Committee should be appointed. If an advisory committee was considered unnecessary under the present arrangements, there would then clearly be even less justification for such a committee under the proposed new arrangement. The board will be responsible for legal aid administration and the Secretary of State for legal aid policy. While the board's role may be primarily an executive one, I am confident, as I received some support on Second Reading from the noble Lord, Lord Hughes, on this matter, that if the board identifies any areas where changes in policy are desirable it will not hesitate to draw these to the attention of my right honourable friend the Secretary of State. I remind your Lordships that there are existing powers for the board to institute or to undertake any inquiry or investigation that it considers to be necessary or expedient in relation to the discharge of its functions. That power is in Clause 2.
The composition of the board, as I have indicated, is to be much wider in scope than simply members of the legal profession itself. It will have within it expertise of a kind which may be available on the advisory committee of which the noble and learned Lord, Lord Elwyn-Jones, spoke, and to which the noble and learned Lord, Lord Denning, referred.
The view taken by the Government is that for this new proposed scheme such an advisory committee would be totally unnecessary. The board will be able to provide that expert and objective comment with the experience they have on their own account as individuals and from their experience of administering the scheme in accordance with the Act and regulations.
The Government have been criticised in some quarters for appointing a new public body. It has been referred to today as a quango and to appoint two such bodies covering the same field would be unjustifiable. In these circumstances, I cannot accept the amendment.
Lord Wheatley: I find it difficult to follow the logic of the argument of the noble and learned Lord the Lord Advocate. The advisory committee may be advising the Secretary of State about the way in which the board is administering the legal aid scheme, and, said the Lord Advocate, "It is all right. The board can do all that. They can report to the Lord Advocate on the unfortunate and improper way they have been carrying out their duties. Thus all is well and we do not need an advisory committee".
This is just another illustration of something that has worried me throughout the Bill. It would appear that the Government take the view that certain things can be left as they are in England now but the same circumstances require a change in Scotland. They say that it is all right for the legal profession to keep on running the legal aid system in England, but we cannot trust the lawyers in Scotland to run the legal aid scheme in Scotland as it has been run in the past, despite the fact that they are at pains to say that it has been run exceptionally well. They are prepared to win but are afraid to strike on that.
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I ask the noble and learned Lord the Lord Advocate to take this away and to consider it. There is a great deal of feeling in Scotland about the need for such an independent advisory committee. He has undertaken to reconsider certain matters. I ask him to take a different view on that type of answer to the view taken by a Secretary of State for Scotland back in the 1920s who, whenever a supplementary question was put to him, would rise ponderously and say, "I will give that due consideration". A member of the Opposition began to get annoyed about this and he rose on a point of order and said, "Mr. Speaker, can the Secretary of State not give any answer other than that he will give it due consideration?" The Secretary of State rose ponderously and said, "I will give that due consideration".
The Earl of Selkirk: I wonder whether we are not dismissing this a little cursorily. It is sometimes complained that in England there is no Minister of Justice, but there is a Lord Chancellor. In Scotland we do not have a Lord Chancellor and the noble and learned Lord the Lord Advocate is the only person who resembles a Minister of Justice. As long as he is able to get on with the Secretary of State it does not matter. But there will be Secretaries of State who inevitably will carry much responsibility for judicial affairs, because we will not have a Minister of Justice. I should have thought that the Secretary of State would be in a stronger position if he had (not too formally) certain advisers on this enormously important matter. We have managed pretty well, largely through the quality of our Lords President and our Lords Advocate who have held a high position and have been held in high regard, but they are doing a job which is outside their responsibility. I wonder whether we should not give further thought to the possibility of strengthening the position of the Secretary of State, and to help him to have some official assistance beside him in this task.
Lord Elwyn-Jones: I confess to disappointment at the reaction of the noble and learned Lord the Lord Advocate. If he had been prepared to indicate, even from a sedentary position, that he would now reconsider this matter, to take it back and to return with it as part of the Bill, that would give us all great satisfaction.
The fact is that the circumstances which are proposed should exist in the future—I will stop calling it a quango, as the noble and learned Lord the Lord Advocate does not like it (it is of course a true description!)—are that the legal aid board is essentially a body where there is initially doubt about its independence by virtue of its provenance and anticipated membership; unless the proposals that have been made today are given effect to and the body is made a more legal and responsible body in this field. There is now a stronger case than before for an advisory committee on this matter.
One of the matters that the noble and learned Lord the Lord Advocate called in aid was when he said, "Ah well, the board will perform that role". The Committee will not have forgotten that when we considered and rejected Amendment No. 17, that was a proposal that the board should keep under review generally the provision of legal aid and legal services

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and to report to Parliament thereon from time to time. Who is left to perform those functions? It is not, apparently, the duty of the board.
But I call in aid my own experience—and I am interested that the noble and learned Lord, Lord Denning, has found it in his experience too, which is extremely valuable. It is fair to say that the Lord Chancellor does not always accept the advice from the legal aid advisory committee, as I have recently learnt from some fierce debates we have had on the future of the law centres, which the Lord Chancellor's legal aid advisory committee has firmly said should be funded by the Lord Chancellor himself. But that is of value and a pointer to the value of independent advice and judgment.
Please, Lord Advocate, look at this again! If necessary we shall return to it—I say that firmly and with commitment—at the next stage unless we have a really reassuring reply now from the noble and learned Lord the Lord Advocate.
6.30 p.m.
Lord Cameron of Lochbroom: I listen to anything that the noble and learned Lord says with very great care. I wish first to make it quite clear that the reason why Amendment No. 17 was opposed was because we took the view that the board's remit should be limited. Amendment No. 17 went far beyond our objective and I made that quite clear. Already this aftern000n I have undertaken to consider what noble Lords have said with regard to Clause 1 and, in particular, the manner in which the clause was criticised as to the composition of the board; because I think that we are all agreed that the board should be independent. If the board is independent, it seems to me, with respect, that the argument that the noble and learned Lord has just made to some extent is undermined, and it is further undermined, in my submission, because of the fact that Amendment No. 17 was directed to a completely different matter. If that is what the advisory board is intended to do, that is far beyond the range of the board's administrative responsibilities.
I cannot give any comfort of the kind for which the noble and learned Lord has asked, but I can simply say that, obviously, what has been said by your Lordships in Committee will be taken into account in particular when I give consideration to what was said in relation to Clause 1. I do not think that I can go further than that.
Lord Elwyn-Jones: In the circumstances, I see that I cannot push the noble and learned Lord the Lord Advocate further at the moment. We shall return to the matter at the next stage of the Bill. In the meantime, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Accounts and audit]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 21:
Page 5, line 9, at end insert—
("; and
(d) request for information required by the Secretary of State under section 3(2) and guidance given by the Secretary of State under section 3(4).").
The noble Lord said: I beg to move Amendment No. 21. The expression has already been used about this Bill that it is a pretty horrible Bill and very badly drafted. It is the first time that I have seen in a Bill in a clause that is headed, "Accounts and audit", a subsection like subsection (7), which reads:
"The Secretary of State shall lay before each House of Parliament a copy of every annual report of the Board …"
With all due respect, if you are going to refer to annual reports of the board—which really come in Clause 2—then reference to the annual report being laid before Parliament should be in Clause 2. If we decide to do that, perhaps somebody will tell me how many annual reports there are going to be; because, in reading this clause, I see the words:
"a copy of every annual report".
What nonsense it is to tell us that this is the finest-drafted Bill that ever there was, as the noble and learned Lord the Lord Advocate told us earlier on when dealing with Clause 1!
If we mean the annual report, then we say, "the annual report". What I want to put in is that, in that annual report, there should be references made to things which are demanded of the board by the Secretary of State. I think that it is important, since we have had proclamations of its independence, that if, under Clause 3(2):
"The Board shall, from time to time, furnish to the Secretary of State such information as he may require …",
then the public should know what information the Secretary of State requires to be given by the board. Then, in subsection (4), even more importantly, the clause says:
"The Board shall have regard, in the exercise of its functions, to such guidance as may from time to time be given by the Secretary of State."
I think that we have got to be able to check up on the Secretary of State as to the guidance that he takes it upon himself to give to the board that he himself has appointed to do this particular job.
That is all that I ask for in this amendment. If it is badly placed in paragraph (d) then, to my mind, it really ought to be part of the annual report of the board under Clause 3(3) of the Bill. If the draftsmen have nothing better to do between now and the next stage of the Bill, will they sort this out? Will they take paragraph (a) and put it into Clause 3, which is its proper clause? They can then incorporate my amendment at that particular point.
I think it is important that if the Secretary of State is going to give guidance to this board (about which questions have been asked today) then the public should know and Parliament should know what guidance is given. As I remember, this was put into the scheme covering the Highlands and Islands Development Board, when an Instruction had to be given by the Secretary of State. I think that it was later determined that, if an Instruction was given, it was to be in the annual report of the board. So there are good precedents for what I am here suggesting, and I think it is eminently desirable that it should be done. I beg to move.
Lord Silkin of Dulwich: I rise briefly to support the amendment moved by my noble friend Lord Ross of Marnock. I do so for this reason. There has been a

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great deal of debate about the possibility or likelihood of the board being an independent body. Much of the earlier discussion has centred upon whether that is likely to be so or not. The Government have assured the Committee that it will be independent. I do not see how the Committee can judge whether the board acts independently unless it knows what are the directions or requests for information or guidance which are given to the board. It can then judge of the actions of the board in the light of its knowledge of the requests for information and guidance. For that reason, it seems to me to be very important, if we are to judge of the independence of the board, that my noble friend's amendment should be in the Bill.
Lord Cameron of Lochbroom: Obviously, I would agree with the noble Lord, Lord Ross of Marnock, that Parliament should be aware of the important aspects of the board's activities, including those in its relationship with the Secretary of State. I am sure that if they are important they will be recorded in the board's annual report. But I think that this amendment, as it is framed, would produce an impossible situation. It will be quite inappropriate to record all the day-to-day contacts with the board. This is not at present done in relation to the annual report from the Legal Aid Central Committee. The amendment, for instance, would mean that any trivial or ephemeral request for information made by the Secretary of State or his officials in the course of day-to-day business would require to be included. Indeed, some of these matters may not even be recorded. On the other hand, guidance could be held to include such matters as advice from the Scottish Office's Central Services Department on office machinery. Clearly, the Secretary of State should not be required to publish all such details in a report to Parliament.
That being so, it seems to me that this amendment really asks for too much. I take the point which the noble Lord has raised about the matters which are of importance. I should like to consider that point perhaps in the context of the board's duty in relation to the annual report. Beyond that I am not prepared to go.
Lord Ross of Marnock: From the inflexible mood that the Lord Advocate is in at the present time, I suppose we have got to be thankful for small mercies. He has got to break his duck at some time; he has got to accept some amendments. Otherwise, we shall become very doubtful, if he had not got the capacity to accept an amendment, whether he knows anything about the Bill and whether he is just an emanation of his civil servants saying, "Resist". Well, he should resist the lures of the Civil Service, who will accept nothing and to whom every word they put down is sacred.
The noble and learned Lord did not give me an answer about the drafting of this particular clause. I hope that he looked at it. Let him use his common sense. How many annual reports will there be? It says in the Bill, "a copy of every annual report". If he means "each", he should have said "each". He does not even need to use that word: he just needs to say "the annual report". I have not finished yet, but if he wants to intervene I shall gladly give way.
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Then he tells me that it is every little detail concerning the Secretary of State. With all due respect, it was the Secretary of State, or the Lord Advocate defending the Secretary of State, putting this into Clause 3:
"The Board shall, from time to time, furnish … such information as he may require".
That does not mean to say that everything he does and every contact or every telephone call between the Scottish Office, or for that matter the Crown Office, and the Secretary of State and the board, directly or indirectly, should be included. But there must be some important aspects of it. There is property; and the proposed discharge of its functions. All sorts of important things could arise, and many of them may include information which might lead the Secretary of State to give further guidance, which may be perhaps to sell off something or other, or indeed to discharge somebody. I think it is important that we should know, and if it is thought there is no importance in subsection (4), why is it there? It says:
"The Board shall have regard … to such guidance as from time to time may be given by the Secretary of State".
This has been the whole point about much of the argument we have had: the extent to which the Secretary of State is going to interfere and give guidance, which virtually means saying what is to be done and how people are to behave. I gather that he is going to look at that last part. I suggest to him that he looks at this from the point of view of clearing up the drafting. In Clause 3 he should separate the annual report, as it is already mentioned there, and let him follow it through about laying it in Parliament and also putting these things about guidance and information into it. Let us keep the clause that we are now on, Clause 5, to what it says. It is supposed to deal with accounts and audit. Let us not have the thing scattered higgledy-piggledy over the Bill.
I looked at the Bill yesterday, I do not want to threaten anything, but I will look at the rest of the Bill from the same point of view, in which case some of our later stages might be prolonged. I hope the noble and learned Lord's civil servants will take it upon themselves to do that and will clear away some of these drafting nonsenses that can be spotted in a few minutes. In view of what he has said, I will certainly await the next stage of the Bill with interest. In the meantime, I beg leave to withdraw my Amendment.
Lord Cameron of Lochbroom: Perhaps before the noble Lord withdraws—
Lord Ross of Marnock: I have already done so. I gave the Lord Advocate an opportunity to intervene and it would have saved a lot of time; but he decided not to take it.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Definitions]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 22:
Page 5, line 21, leave out ("Scots").
The noble Lord said: I do not know whether the last amendment was the first sign of softening, but we live in hope. This amendment is to leave out the word "Scots", so that advice and assistance would be

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available on the application of law to any particular circumstance. The difficulty this is intended to meet is the problem that very frequently arises when somebody moves, for example, from Scotland to England or from England to Scotland; when somebody moves from England to Scotland having been divorced and with a decree against him to pay regular sums of money in respect of his ex-wife and children; or when somebody buys something and there is a standard form contract issued by some United Kingdom company specifying that the law of the contract will be English law. Is it the intention of the Bill, as it appears to be, that any such person resident in Scotland cannot get legal aid and advice in Scotland from a Scottish solicitor? If not, where is he to go?
6.45 p.m.
I would mention, as no doubt the noble and learned Lord is aware, that the advisory committee that he does not want in Scotland—the Lord Chancellor's Legal Aid Advisory Committee—suggested in its 1984 review that reciprocal arrangements should be introduced to allow residents in one jurisdiction to make application for advice and assistance in another jurisdiction by post. That has not been taken up. It is also suggested that solicitors in one jurisdiction should be able to consult solicitors in another jurisdiction under the legal aid and advice scheme. This amendment is intended to give effect to that, and it is very strongly supported not only by the Law Society but by the Consumer Council. I really hope that as this is a matter which is not perhaps of crucial importance to the Scottish Home and Health Department, the Lord Advocate might at least consider there to be at least some merit in the amendment. I beg to move.
Lord Swinfen: Before my noble and learned friend answers that point, can he advise the Committee whether people in England seeking legal aid can get advice reciprocally on Scots law? I think that point also applies.
Lord Cameron of Lochbroom: I have had some little difficulty in really appreciating the problem which the noble Lord, Lord Morton, appears to advert to. Clause 6(1)(a) repeats the provisions of existing legislation in references to Scots law. Certainly, so far as I am aware, the present system works satisfactorily and an extension of it of the type which appears to be proposed would seem to be unnecessary. Scots law includes, for instance, those aspects of European Community law which apply in Scotland, and under the present legal advice and assistance scheme advice and questions on the international private law of Scotland are also covered, as well as the Scottish legal aspects of such matters as cross-Border maintenance orders.
It is difficult to see how a Scottish solicitor could purport to give satisfactory advice on foreign law—and for the purposes of that phrase I have to include English law at present—in which he is neither trained nor experienced. Of course, it is perfectly possible for an eligible person resident in Scotland to obtain advice and assistance, and indeed legal aid, from an English solicitor under the relevant English legislation, and, as the noble Lord has just stated, if necessary by post. So
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far as that is concerned, this clause provides for the arrangement in a sense being reciprocal, because the advice can be given in writing to the person who would be eligible to receive legal aid and advice.
I am certainly not suggesting that I am not sympathetic if there really is a problem, but I just have some difficulty at present in knowing what the problem is. But certainly I would not wish it to be thought that a Scottish solicitor would purport, under the legal aid scheme, to be able to give advice on any system of law other than that in which he is trained and experienced. That is, I think, my difficulty in seeing what the purpose of this particular amendment is.
Lord Morton of Shuna: Perhaps in one minor matter I may have a slight advantage over the noble and learned Lord in that I have been a solicitor. Most lay people with a problem do not know what law is to apply. They go to a solicitor in their own town with their problem. It is a matter of Scots law for the solicitor to be able to say in Glasgow, "Your problem is a problem of English law". If there were no legal aid problems about it what would happen is that, rather than the client from somewhere in Drumchapel finding a solicitor in Leeds, Newcastle or wherever, his solicitor would write to a solicitor in England and get advice. That is the problem.
I am surprised, if the noble and learned Lord the Lord Advocate is so well instructed, that this difficulty has not been brought to his attention. It is a difficulty that the Law Society, the Consumer Council and the Lord Chancellor's Legal Aid Advisory Committee has pointed out. I hope that the noble and learned Lord will consider the point.
Lord Wheatley: I cannot understand the difficulty of the noble and learned Lord the Lord Advocate. He has said that in practice such advice could be obtained and would fall within the permissible fees that the solicitor would incur.
We are dealing with an Act of Parliament. As framed, the provision is definitive and restrictive. It applies only to the application not the practice of Scots law. Questions could arise about that restrictive and definitive term. It is only by munificence that the provision has been extended, as the noble and learned Lord has suggested. What is the problem? If we leave out the word "Scots" the position will be as he says the practice is. The problem envisaged by Lord Morton of Shuna would not then arise.
Lord Cameron of Lochbroom: At this state, I am obviously not going to say other than that I will give consideration to the matter. The point I was making was that it is perfectly possible under the present scheme for a Scottish solicitor to say that the problem is one of English law. He does so because he is advising as to the extent of Scots law. He then says that the person would have to apply to an English solicitor. I understand that is what the relevant English cross-border legislation is.
I do not wish to take up time. I shall be happy to consider this matter. If there is a problem, I shall be anxious to resolve it satisfactorily.
Lord Morton of Shuna: In that friendly spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Availability of advice and assistance]:
Lord Hughes Lord Hughes moved Amendment No. 23:
Page 6, line 34, leave out ("£114") and insert ("£133").
The noble Lord said: There was a suggested grouping of Amendments Nos. 23, 24, 35, 44 and 45. I wish to except Amendment No. 24. It is the only one which refers to capital sums. The rest relate to income limits.
Anyone looking at the amendments might wonder why I should be inserting such unlikely figures as £133, £63, £6,310, and so on. The explanation is simple. When I spoke on Second Reading I referred to the figures and pointed out the difference in the way in which the Government had acted on capital with the increase on the figures of February 1980. I was aware of the February 1980 figures because they were referred to in the Royal Commission report.
The capital sums contained in the Bill are substantially increased over what they were in February 1980. The increase is 88 per cent. in one case, and 150 per cent. in another. The figure for the income limit in the Bill is approximately 33 per cent. above the February 1980 figure.
I suspect from what the noble and learned Lord the Lord Advocate said earlier that the financial limits were United Kingdom limits. It may be that what has been put in the Bill is the present United Kingdom limit. I should not regard that as a satisfactory answer. It merely means that the English are as far behind as we are. While I am always happy to follow a good English example, I see no merit in following a bad one.
I made inquiries as to what the position was. The information I received was that the retail price index reached 379·7 in January 1986—the latest date for which the information is available. That was as at 27th February. The corresponding level of the index in January 1980 was 245·3. There was thus a 54·8 per cent. increase in the retail price index in the six years between January 1980 and January 1986.
We are now in March 1986. I thought to simplify the calculations a little and, instead of altering the figure from approximately 33 per cent. to 54·8 per cent., I made an assumption that there had been another slight increase in the intervening two months. It will be more than that by the time the Bill reaches the statute book, if it does. The figures that I have bring the allowances, compared with six years ago, up to date with the retail price index. In every case, I have multiplied the figure to reflect an increase of 55 per cent.
Frequently, particularly in recent weeks and months, the Prime Minister has been at pains to emphasise in how many fields the Government have increased allowances in what is described as "real terms". That means that in the cases to which she was referring, she has given more than the increase in the retail price index. I know, of course, that there are other cases to which she did not give equal prominence
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where the increase has not been greater in real terms. The least that the Government should be doing in this legislation in such an important field is to keep the income allowances up to date with inflation.
I have left out one of the amendments because at this stage I wish to confine the discussions to the income limits. I wish to advance different arguments on that amendment. In the context of what the Government have consistently been saying about their attitude to adjustments in line with inflation, there is no reason why in this, the most up-to-date piece of legislation on legal aid, we should be inserting figures which are out of date as regards the actual cost of living. I beg to move.
Lord Cameron of Lochbroom: The noble Lord has anticipated what my response will and must be. The lower financial limits which are set in the Bill are, by and large, linked to supplementary benefit levels and are therefore set on a Great Britain basis to apply in both jurisdictions. The limits set out are the current levels, which incorporate certain increases made only last November. The limits are uprated in line with supplementary benefit changes. The figures in the Bill will of course be changed if any increase is made during its passage. Changes will continue to be made by regulation, subject to affirmative resolution, and your Lordships' House will therefore have a full opportunity to discuss the actual limits which will be applied on implementation.
Reference was made to the figure of £63 as opposed to £50 for legal advice and assistance. I have no reason to think that the current limit is not appropriate for advice and assistance cases which at present do not include representation. However, we shall consider whether that limit needs to be adjusted, either generally or in relation to assistance by way of representation, in the light of information available at the time.
7 p.m.
As I said, the disposable income limits have been raised to keep the present links with supplementary benefit and the view is taken, for the schemes throughout Great Britain where the limits are set to supplementary benefit level, that they should remain the same throughout and be adjusted as supplementary benefit is changed. For these reasons, I regret to have to say that I cannot advise the Committee to accept these amendments. But, as I said, I give an undertaking that if there are changes in supplementary benefit which require increases to be made, these will appear in the Bill in the course of its passage.
The Earl of Selkirk: Can my noble and learned friend tell me whether this will be based entirely on supplementary benefits and not on the cost of living? Is this to be the permanent basis on which it is decided? After all, there are a lot of people without supplementary benefit who are concerned here. If this is to be the basis on which the Secretary of State sets the limits, let us be clear how we stand.
Lord Cameron of Lochbroom: No. What I am saying is that the limits which are set in the present schemes, both north and south of the Border, are figures which

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are linked to the supplementary benefit levels and which occur throughout the country. It does not mean, and it is not intended to mean, that only those who are on supplementary benefit will be able to apply for legal aid. I assure my noble friend of that. It is simply to fix an appropriate countrywide level that the level of supplementary benefit is used as the base line.
Lord Hughes: I cannot pretend that I begin to regard that as a satisfactory answer. The noble and learned Lord the Lord Advocate has just said that it does not mean that only people on supplementary benefit will be entitled to get legal aid, and I do not think that the noble Earl, Lord Selkirk, ever suggested that. What he was objecting to, and what I am going to object to, is a permanent linking to the supplementary benefit levels. I accept that this is perhaps a field where it is more desirable than otherwise for the levels on both sides of the Border to be the same. I would not dissent from that. What I dissent from is that it should be linked to the limits in supplementary benefit.
I said in my earlier remarks that the Prime Minister had been at pains to point out the areas where the Government had done better than keeping in line with inflation and that there were cases where, in real terms, the Government had done more than just that. But, particularly in recent months, the Government can hardly make that claim in relation to supplementary benefits. So if you continue to link to supplementary benefits there will be a continued erosion of the real value of the limits. What I object to is not to having a common scale on both sides of the Border. My objection is to continuing to link it with a decreasing value of supplementary benefit allowances.
From that point of view the noble and learned Lord the Lord Advocate, when he was replying to the noble Lord, Lord Foot, said that there were occasions when Scotland could properly give a lead to the English in certain fields. [fit is desirable to make a change, I do not see any reason why the noble and learned Lord should not have it in this, which will be the most up-to-date Bill on legal aid in the United Kingdom, and why he should not take the opportunity of giving some guidance to the English on this matter. He might even expect them to have regard to what is done in this Bill.
I do not wish to take this any further at this stage, other than to ask the noble and learned Lord the Lord Advocate, as this is not a matter where he feels that he must stand by the draftsmen—I know that he is better placed than most Ministers to disregard what the draftsmen say, because, after all, they are his staff; at least, the Scots ones are—and as it does not involve him in an internal quarrel in his office, but gives him the opportunity of being regarded by the English as an advanced man in this field, whether he might have another look at it and perhaps discuss it with his colleagues. Earlier on, someone referred to the brief of the noble and learned Lord the Lord Advocate. I wondered at the time whether this was a iegal reference or a ministerial reference. But he ought not to be too influenced—if I regard it as a legal reference—by his clients, the Scottish Home and Health Department, whose record in this matter is certainly not of the best.
Lord Cameron of Lochbroom: I do not think I can do more than listen to what the noble Lord, Lord Hughes, has said. Obviously I shall draw the attention of my right honourable friend the Secretary of State for Social Services, in particular, to this matter. But I make clear that it is thought by the Government appropriate that these levels should apply throughout both jurisdictions, and for that reason I must give the noble Lord cold comfort.
Lord Hughes: On that basis, and hopeful that the noble and learned Lord may get an early reply from his right honourable friend the Secretary of State—perhaps he will let me know before the next stage if any progress has been made—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hughes Lord Hughes moved Amendment No. 24:
Page 6, line 39, leave out ("£800") and insert ("£1,000").
The noble Lord said: This is in a different category from the previous amendments. The figure of £800 is in the Bill and I have suggested £1,000. I confess that it is a figure I have plucked out of the air. My reason for doing so is not as silly as one might be led to believe. When the Royal Commission was considering these limits and produced its report six years ago, the limits were very much lower than is proposed in the Bill. But one of the most extraordinary statements which were made to us in the course of the three-plus years we were considering these matters was by the Crofters' Commission, who pointed out then that the limits were such that a crofter with one cow would be ruled out, because the value of that cow took him outside the limits.
I looked at the figure of £800 and it was obvious that the people affected will include many whose savings—perhaps accumulated over many years—are not great. Something which is very definite in Scotland (and I suspect that the same will apply on this side of the Border) is that many ordinary working people, and old women in particular—but it is not confined to women—save for one definite thing which must take place: that is, their death. They want to make proper arrangements for a decent funeral. Every solicitor who has to produce a will and then to operate it, if he is made the executor, starts off with making "proper provision for my funeral expenses".
I have made inquiries about what a funeral costs now, and it can be anything from £600 to £800, provided that there is no headstone. But if a burial rather than a cremation takes place and the person wants a headstone to be provided, we are talking about something of the order of £1,200 to £1,500. Even taking the lower figure, I do not think it is reasonable that the sum should be so fixed that it is doubtful whether the person could have the funeral for which he or she had been saving in the last 10 years or so of life. I think £1,000 is more likely to cover the cost of an ordinary funeral at the present time and leave perhaps only a very small margin for other purposes. I do not expect the noble and learned Lord the Lord Advocate to say now that he is convinced by this argument and that he will accept it, but I invite him to consider what I have said and perhaps to make his own inquiries about the sort of costs to which I have referred. If he

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is persuaded that there is merit in what I have said on this Amendment, perhaps he might either tell me what he would be prepared to accept or table his own amendment for an alternative figure.
I have not suggested any alteration in the other capital limits because I have said that the increase is very much greater than the cost of living figure and very much greater than anything on the income limits. I beg to move.
Lord Ross of Marnock: I am very happy to support my noble friend and this plea. I do so because a neighbour and friend of mine is very active with the Soldiers', Sailors' and Airmen's Families Association. Time and again the question of the cost of funerals has arisen. I can confirm, because I have gone into it in a fairly detailed way, just what is the cost of a funeral. Even at the very cheapest, this sum of £800 for disposable income that would be taken into account would not cover husband and wife. It is much more likely to be in each case something as high as my noble friend mentioned.
One other point arises here. This £800 disposable capital refers to both (a) or (b). The (a) and (b) are covered by the "and" in that respect. Can the noble and learned Lord the Lord Advocate tell me off the cuff, or find out for me, what disposable capital is allowed before anyone is ruled out of receiving supplementary benefit? Is there still any disregard or differentiation between forms of disposable income? In the old days there used to be a difference in relation to the amount that husband and wife each had in respect of National Savings. If they had between them about £700 in National Savings that was not counted as disposable capital. What is the position today in respect of supplementary benefit because that would affect very considerably the reasonableness or otherwise even of the figure mentioned by my noble friend. But on the face of it I think that £800 is not nearly enough.
Lord Cameron of Lochbroom: Perhaps I may just deal with the last point about which the noble Lord, Lord Ross, asked me. I do not have the answer immediately but I shall write to him. I am advised that it is a fairly complicated equation, but I shall be happy to tackle it.
On the more general point, and as I have already indicated in response to the last series of amendments, like income, the disposable capital limits are also linked to supplementary benefit levels which are considered year on year in the light of affordability and other factors. These are the factors in which the noble Lord, Lord Ross, will be interested. As late as last November the capital limit for advice and assistance was raised from £765 to £800. My response must simply be that which I gave to the noble Lord previously. He will understand the fact that, again, there is the same linkage to which I referred so far as income limits are concerned.
Lord Hughes: My response to the noble and learned Lord the Lord Advocate must be the same as the previous one. If there is anything wrong with what is being done it is in the linkage. Unless I can hear something more helpful before the Report stage of the
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Bill I shall undoubtedly return to the matter, and would not necessarily be returning to it on the basis that I would withdraw it at the end of any discussion. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Viscount Davidson: I feel that this is a convenient moment to break for dinner and I suggest that the Committee resumes its discussions at eight o'clock. I beg to move that the Committee stage be now adjourned during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.15 to 8 p.m.]
Clause 9 [Regulations may apply Part II to representation]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 25:
Page 7, line 18, leave out from ("Board") to ("shall") in line 19.
The noble Lord said: This is a case of natural Rossian curiosity which I should like to satisfy. We are dealing with the question of regulations in relation to assistance by way of representation. Different provisions are made for different cases or classes of case. Subsection (2) states that, "Such regulations may" and then are set out paragraphs (a), (b), (c), and then (d), which reads:
"require that the approval of the Board or of such other appropriate authority as may be prescribed".
I have one query. What is the other appropriate authority or authorities? To get that information I have had to resort to the amendment which is now on the Marshalled List. I beg to move.
Lord Cameron of Lochbroom: The purpose is to allow for the possibility that situations may arise where an on-the-spot decision is required during proceedings. At present the only authority which would be approving applications for assistance by way of representation, other than the solicitor giving it, would be the board; but it may be that circumstances could arise where it is best for a court or tribunal to have that power.
Indeed, provision has already been made for this procedure for legal aid in some specialised cases such as contempt of court. Of course, this arises only during the course of particular court proceedings and to which the individual may not actually be a party. This clause would allow such cases to be covered by designation of the court or tribunal concerned as the appropriate authority.
The Earl of Selkirk: Does this mean local boards? If everything has to go before the board in the centre it will mean enormous delay. Is this a provision to allow local boards to give a more immediate answer?
Lord Cameron of Lochbroom: No, I think I would simply explain that it is to allow, for example, in a contempt of court case, where a court is considering whether to bring a person before it on a contempt of court charge, that that court may then grant legal aid for the purpose of allowing that individual to have

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assistance by way of representation before the court. Similarly, there could be a situation where a tribunal might be the appropriate authority in certain cases.
Lord Ross of Marnock: This relates to classification and to a pre-condition of the provision of assistance by way of representation, so there may well be delay. In fact, I think that in such a case there is bound to be delay. All we have is that the appropriate authority may well be something to do with the board or tribunal, or something or other. It is not entirely satisfactory, but nothing is in this Bill. Here we have paragraphs (a) to (e) all referring to regulations, and I am perfectly sure that if we had suggested leaving out paragraphs (a) to (e) we would have had the same answer, which takes us nowhere. We will know nothing at all about this matter until we see the regulations. That is a great pity. It is not my idea of giving assurance to anyone to say that, yes, legal aid will be available.
Considerable doubt is thrown over the availability of legal aid in so many different ways in respect of this Bill. However, such as it is, I received a clear answer. My curiosity may be whetted, if not satisfied. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Ampthill): Before calling Amendment No. 26 I should point out to the Committee that it should read:
"Page 7, line 23, leave out lines 22 to 28."
If this amendment is agreed to, I cannot call Amendments Nos. 27 to 31.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 26:
Page 7, line 23, leave out lines 22 to 28.
The noble Lord said: The additional word that has to be taken out is the word "and" at the end of paragraph (d). This amendment is to delete paragraph (e) and that word "and'. Paragraph (e) provides a power to modify the financial limit for assistance by way of representation to such lower sums as may be prescribed, or to prescribe that assistance by way of representation should be available only to persons who fall within Clause 8(b). Clause 8(b) refers to persons in receipt of supplementary benefit or family income supplement. It is a tremendously restrictive power to say that the advice and assistance by way of representation should be restricted, with a power to restrict only to those in those very restricted and poor classes. I suggest that there is no justification for creating different financial limits to assistance by way of advice and to assistance by way of representation.
Perhaps the noble and learned Lord the Lord Advocate will be able to give some explanation as to why this provision is thought necessay. If it is merely a repeat of measures in previous Acts, it merely shows that no real thought has gone into the framing of this Bill. I beg to move.
Lord Cameron of Lochbroom: It might be for the convenience of the Committee if I speak also to the amendments in my name, Amendments Nos. 27 to 30. I also refer to Amendment No. 31.
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The amendments which are in my name have the intention that it should be possible to move the limits in Clause 9(2)(e) up or down so that the financial limits for assistance by way of representation can be less stringent as well as more stringent than those for normal advice and assistance. Since normal advice and assistance, which does not include representation proceedings, and assistance by way of representation are somewhat different in kind, it seems only prudent to leave open the possibility of making separate provision as to eligibility for the two types of assistance. Therefore, the flexibility which is given by the paragraph as it would be intended to be amended should be retained for use in the future should it prove necessary.
I think I indicated at Second Reading that it is intended that assistance by way of representation should be introduced at present only for preliminary summary criminal proceedings for an accused not in custody. I can give an assurance that assistance by way of representation will not be specially restricted in such cases.
The amendment in the name of the noble Lord, Lord Ross of Marnock, would remove the possibility that if assistance by way of representation were to be introduced only in a limited way in relation to certain matters, then its availability might be limited to persons in receipt of supplementary benefit or family income supplement.
Although such an eventuality is not likely to arise in the near future, I suggest that it would be a mistake to rule it out altogether as a possibility. The provision, which is, of course, a re-enactment of that presently contained in Section 2A of the Legal Aid Act 1979, should be retained. Accordingly, I cannot therefore invite your Lordships to accept the amendment tabled by the noble Lord, Lord Hughes, and spoken to by the noble Lord, Lord Morton.
Lord Morton of Shuna: Again, this seems to be a very unsatisfactory situation and I hope that the Government will take this away and think about it, if for no other reason than the fact that, as I have recently discovered, one can be a widow of 29 with children and receive as a widow's pension from the Government less than the same person would be entitled to receive as a single-parent family under supplementary benefit. Such a person would not receive representation. I suggest that this really should be looked at with more care than it appears to have received.
Lord Cameron of Lochbroom: Obviously I shall read again what the noble Lord has said, but I think I have explained what I am intending in the amendments which are down in my name.
Lord Ross of Marnock: But surely the implication is that the first part of this has been changed. The Minister has got rid of Clause 8(a) and has applied it to the whole of Clause 8—though why I do not know—and he has taken the power to modify the limits up or down. Am I right in thinking that? Yet he insists on retaining the alternative power to provide that assistance by way of representation shall be available only to persons who fall within Clause 8(b).

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He is retaining that part, so he actually has it in mind to limit legal aid by way of representation to people who are on supplementary benefit. If this is not a restriction from the present position I shall be very surprised. Is it a restriction? Is it a power that is not there? I must say that the Government are being very blatant about it. They are not concealing their intentions when they lead themselves to this alternative to limit representation under legal aid purely and simply to people who are on supplementary benefit.
Lord Cameron of Lochbroom: Perhaps I might give an example of the kind of situation which might arise in the future. For instance, if it proved possible to extend assistance by way of representation to certain tribunals, including those dealing with supplementary benefit, then its availability might be limited to persons who are in receipt of supplementary benefit or family income supplement. It is to give that flexibility that the last part of paragraph (e) of subsection (2) is there.
Lord Ross of Marnock: It may well be people who are claiming supplementary benefit but who have already been ruled out by some decision. They are claiming supplementary benefit but they will be denied representation even to further their claim.
Lord Cameron of Lochbroom: I do not think I can make the position clearer. It is to give flexibility, which could well deal with the case where persons are already on supplementary benefit but are seeking more. I agree that those who are not in receipt of supplementary benefit may have to be considered, and in that case the clause is flexible enough to cover them also.
Lord Ross of Marnock: It is only possible if the Government actually do what they now take the power to do—raise the limits rather than lower them. But I have more than a feeling that the intention of the Government is the intention that was first laid down; that is, only to lower the limits, to restrict the number of people who are entitled to representation. We shall not know until these regulations (which we have not seen) come into operation, and the Government, having put figures in, take the power to change those figures in a downward direction. I do not see very much in the retention of this alternative power to limit it to people on supplementary benefit which gives us any great hope at all that the Government will be generous in respect of the amendment that the noble and learned Lord the Lord Advocate himself will move later on.
Lord Morton of Shuna: I think that perhaps we have explored this amendment as much as possible, and it would obviously be inappropriate to divide the Committee on it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 27 to 30:
Page 7, line 23, leave out ("limit under section 8(a) ") and insert ("limits under section 8").
Page 7, line 24, leave out ("its") and insert ("their").
Page 7, line 25, leave out ("weekly sum") and insert ("sums").
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Page 7, line 26, leave out ("lower sum") and insert ("other sums").
The noble and learned Lord said: I have already spoken to Amendment No. 27, and I beg to move it and Amendments Nos. 28, 29 and 30 en bloc.
On Question, amendments agreed to.
[Amendment No. 31 not moved.]
On Question, Clause 9, as amended, agreed to.
Clause 10 [Financial limit]:
8.15 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 32:
Page 8, line 3, insert ("and
( ) the Board shall provide a method of appeal against the limit imposed in any case.").
The noble Lord said: This amendment is one which deals with the question of limits applied. A solicitor may apply to the board for an extension of the limit in an appropriate case and the board, of course, may refuse it. I am suggesting that the board should provide a method of appeal against the limit imposed in any case. It is quite clear that it will not be the eight members of the board (who are the minimum) who will in fact grant or refuse a limit, but somebody else. I am merely suggesting that there should be some method of review, because anybody can make a mistake. There should be some method provided to whomsoever the decision is delegated for a review of that decision. I beg to move.
Lord Cameron of Lochbroom: I do not think that it would be right for me to enter into a commitment that the Secretary of State by regulation, or indeed the board administratively, will set up any arrangements for an appeal against a refusal to allow expenditure on advice and assistance to exceed the limit which is set out in Clause 10(2). I would say that it would appear to be inappropriate to make such provision as is proposed here on the face of the Bill. If arrangements were made under regulations, they would be varied more easily to take account of changes in circumstances over time and would be subject to parliamentary scrutiny.
I appreciate that there are arrangements at present under the legal aid advice and assistance scheme for the review of limits where the applicant is dissatisfied with the advice and assistance limit fixed by the appropriate legal aid committee; but I suggest that the case for such review is significantly less strong where the limits are fixed by the board in accordance with a consistent policy. In addition, under the new arrangements it will be necessary to have regard not only to normal advice and assistance but also to advice by way of representation. One of the factors to be taken into consideration is whether the administrative costs of a formal appeal in such a case, where the sum in dispute may be comparatively small, would be justified.
I indicated that I do not wish to enter into any commitment on behalf of my right honourable friend the Secretary of State that an appeal procedure will be provided, but I am prepared to undertake to draw to his attention the views which the noble Lord has expressed, and perhaps in these circumstances he might feel able not to proceed further with this amendment.
Lord Morton of Shuna: In this Committee at this stage it is obvious that one has to take what is offered.
Viscount Davidson: If and when.
Lord Morton of Shuna: If and when—and in the hope, if not the very great hope, that there will be something coming, I ask leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 33:
Page 8, line 4, leave out ("£50") and insert ("£75").
The noble Lord said: This is a case where I hope that the Government will be able to move. We spent some time before the dinner adjournment discussing the necessity of keeping Scotland in line with England on financial limits. The limit for advice and assistance is £75 in England. Why should it be £50 in Scotland? I beg to move this amendment.
Lord Cameron of Lochbroom: I think I replied to this point when the noble Lord, Lord Hughes, was speaking to his financial limits amendment earlier. As I said then, I have no reason to think that the current limit is not appropriate in advice and assistance cases which at present do not include representation. We shall consider whether this limit needs to be adjusted either generally or in relation to assistance by way of representation in the light of information available at the time. I have also noted what the noble Lord has said in relation to England, and obviously again I shall draw that to the attention of my right honourable friend.
Lord Morton of Shuna: This again shows that the brief of the noble and learned Lord the Lord Advocate does not apparently recognise the problems. If one has a limit which is too low, people apply to the board for an extension of the limit and that costs more. The fact that the limit is set at £50 does not mean that each solicitor will get £50; the fact that it is set at £75 does not mean that each solicitor will get £75. It only means that if they spend up to £75 they do not need to go to the board to ask for an extension of the limit. It reduces administration and makes the situation easier for the board which can still require the solicitor to justify the details of his charging.
Lord Cameron of Lochbroom: I am fully aware of what the £50 limit involves. In fact, my information is that the English limit is £50, though it is extended to a higher figure in some cases. We seem to be at variance on our information. But I do not think that I can go further than I have done.
Lord Morton of Shuna: We may be at variance. No doubt it would be better if I withdrew the amendment at this stage.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 34:
Page 8, line 4, at end insert ("but such limit shall not apply to assistance by way of representation under section 6(1) of this Act").
The noble Lord said: Here I am quite confident that I am following the English procedure. The English
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provision is that the limit, whether it be £50 or £75, does not apply to assistance by way of representation. I suggest that it is quite inappropriate that there should be such a limit in Scotland, where it is difficult to see under the present level of fees how much representation which involves advice beforehand could possibly be given without extending the limit. I suggest that the English provision is better and should be included. I beg to move.
Lord Cameron of Lochbroom: I think that there are always dangers in looking for analogies. My information is that in England the situation is different in that such assistance can in general be granted only after approval by a legal aid committee, whereas in Scotland we are allowing for the possibility of that assistance being granted directly by solicitors.
I do not think that it is possible yet to forecast what would be the appropriate limit for assistance by way of representation. We should have to take into account relevant information such as the duty solicitor arrangements which are in some ways comparable. However, I accept that it may be necessary to set a separate limit for such assistance and normal advice and assistance, and it is intended that it should be possible to do so by regulation.
It is not absolutely clear that the Bill as presently framed would enable that to be done, and I am considering whether it would be possible to bring forward at Report a clarifying amendment to that effect. But what I think I cannot accept is that there should be no limit at all for assistance by way of representation. Perhaps in those circumstances the noble Lord may feel that he need not press his amendment and will see what comes forward on Report.
Lord Morton of Shuna: I am pleased that the dinner adjournment has at least meant that something is perhaps coming later. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
[Amendment No. 35 not moved.]
Clause 11 agreed to.
Clause 12 [Payment of fees or outlays otherwise than through clients' contributions]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 36:
Page 9, line 19, leave out paragraph (c).
The noble Lord said: Considerable difficulty has been occasioned both in England and in Scotland with the position where after litigation the property which has been the subject of dispute is swallowed up by the legal aid fund. That has caused difficulty in the past. There is a rule that it is open to a solicitor to apply to the central committee for authority not to enforce the present provision if it would cause grave hardship or distress to the client or could be effected only with unreasonable difficulty because of the nature of the property. There is no such discretion let into this clause. Therefore, one could have a dispute about an item of property and the result might be that the benefit would be not to the person asserting the right but to the legal aid fund. I suggest that that is harsh and oppressive.
The Royal Commission recommended that there should be a lower limit so that a figure (I think that it recommended £500) would in any event go to the successful legally-assisted litigant. That figure no doubt would have to be increased from the present level. But what I am suggesting is that this provision should be left out, and, perhaps unfortunately, if it is necessary to deal with this, this is a matter which should be dealt with by regulation, discretion or something else of that nature. I beg to move.
Lord Denning: This provision has given great difficulty in England. When a legally-aided person recovers property, the cost of all the litigation becomes a charge on the property recovered or preserved. We have had great trouble, especially between husband and wife, often both legally aided, when after the litigation is over the legal aid fund has a charge on the matrimonial home, and the charge wipes out the whole value of the home. We have had great difficulty through the courts in regard to that charge on the matrimonial home. There have been disputes about it. That is one aspect.
The other aspect is this. One can understand when in a personal injury case a plaintiff who is legally aided gets £10,000 and the cost is a charge on that sum. He would have had to pay the charge even if he was not legally aided. In some places it is right that there should be a charge. On the other hand, it is a case, I venture to suggest, where the matter should be looked at much more closely and perhaps a discretion given to the court or whoever it may be in the legal aid fund as to imposing a charge and the amount of it.
At all events, a blanket charge, absolutely without discretion, seems to me to go too far. It would be proper for it to be reconsidered, especially in the light of our English experience, to what extent the charge should be discretionary or absolute or be able to be relaxed in certain circumstances. I hope that the clause can be taken back and reconsidered, especially in the light of our English experience.
Lord Cameron of Lochbroom: I am aware that the strict application of the rule regarding payments out of property recovered or preserved has given rise to claims of hardship from time to time. We must all sympathise with those receiving legal aid or advice and assistance who find themselves in such a position. I am aware, too, of the fact that there have been judicial decisions in England about that, though I think that there is an absence of them north of the Border.
I venture to suggest that perhaps there is something, because of that, in the fact that in the case of advice and assistance the Legal Aid Central Committee has discretion at the moment to modify the rule in cases of hardship. That discretion could be carried over into the new system so far as the board is concerned. In the case of civil legal aid, regulations have been made waiving the rights of the legal aid fund in respect of payments of aliment made under a court order to a woman divorced or separated from her husband or to any person for the maintenance of a child. Again, I would envisage something of a similar character being provided for in regulations.
Although there are arguments in favour of relaxing the rule (although its abolition has not to my
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knowledge been suggested) in my view those are overridden by arguments in favour of its continued application. It must be remembered that it is not only legally-aided litigants who may be at risk of having to meet expenses out of property recovered or preserved. Unassisted litigants are often in exactly that position, and it is difficult to see why in that respect a successful legally-aided litigant should be put in a position which is better than it would have been had he not been legally aided. Apart from that, the present legal aid arrangements contain an inherent weakness in that there is little inducement to settle on reasonable terms at an early stage in order to save costs, and any general relaxation of the statutory provisions would tend to remove what little inducement there is.
For these main reasons, I regret to say that I cannot accept the amendment. We envisage a position that will remain generally at present common to both England and Scotland so far as legally assisted applicants are concerned.
8.30 p.m.
The Earl of Selkirk: Clause 18(3) begins:
"None of the following, namely a legally assisted person's house, wearing apparel, household furniture and the tools".
Is my noble and learned friend saying that all those can be extracted under this clause? If so, it is outrageous. It does not matter whether a person is legally aided or not. I cannot see that this is justified. I really would ask my noble and learned friend to look at the matter. It seems to me an impossible position that the Committee is asked to approve.
Lord Cameron of Lochbroom: Clause 18(3) provides that certain items will not be taken into account in assessing an applicant's means for the purposes of his liability under an award of expenses. It is, I think, an exclusion. Subsection (3)(b) goes on:
"or be subject to diligence or any corresponding process in any part of the United Kingdom in connection with any award of expenses in proceedings to which this section applies".
It is to keep those, as it were, out of the assessment of means or being subject to diligence.
The Earl of Selkirk: My noble and learned friend is saying property of whatever nature. This means that one could collar all the tools and housing materials. I find that very hard.
Lord Denning: It all depends on these regulations. We have had a tremendous number in England about the matrimonial home. We have had great trouble. Often, when both sides are legally aided, the only asset is the matrimonial home over which they have been fighting. So we have had to make special provisions about the matrimonial home when both sides are legally aided. When one side is legally aided, I can understand that if large sums are recovered the costs should come out of the sum recovered. But that is not always the case when it is only a small sum. I hope that the regulations will deal with the matter fairly.
Lord Morton of Shuna: I am much obliged for the assistance of the views of the noble and learned Lord, Lord Denning, who puts the matter much more clearly than I have been able to do. It seems to me that the noble and learned Lord the Lord Advocate has not

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dealt with the position. My understanding is that a Bill when it becomes an Act takes priority over any regulations that may be made under the Act. If you have in the Act an absolute unqualified direction that
"in priority to all other debts, out of any property … which is recovered or preserved … in connection with that matter",
I do not see how, either by regulation or in any other way, you can give any discretion to anyone. They have to obey the Act. The Board will have no alternative if this clause sits as it is. They will have to take it out of the property. I suggest that the noble and learned Lord should consider this again.
Lord Wheatley: I take rather a different view to the noble Lord, Lord Morton of Shuna. The initial words of Clause 12(3) state:
"Except in so far as regulations made under this section otherwise provide".
That is a qualifying matter in respect of all that follows. I want to ask the noble and learned Lord the Lord Advocate whether, when this qualification was inserted, the Government contemplated making regulations to cover such matters as have been discussed on this amendment, and particularly the matters to which the noble and learned Lord, Lord Denning, referred.
Lord Ross of Marnock: I listened carefully to the noble and learned Lord the Lord Advocate. He gave no indication at all that he would introduce a regulation to this extent. I agree with the noble and learned Lord, Lord Wheatley, in respect of his reference to the words:
"Except in so far as regulations made under this section otherwise provide".
This remains the law until a regulation is introduced making other provision. My noble friend Lord Morton is absolutely right. The law is clear. So the position is very unsatisfactory unless we hear from the noble and learned Lord the Lord Advocate a promise that as soon as it becomes law, the Government will introduce the regulation. But if they are intending to introduce the regulation, they do not need what is stated here.
Lord Wheatley: In making my observation about the qualifying words at the beginning of the subsection, I was dealing with the point raised by the noble Lord, Lord Morton, that the regulations could not be more definitive than what is contained in the body of the clause.
Lord Ross of Marnock: I agree entirely that by regulation, the change can be made. But if the change is to be made, the noble and learned Lord the Lord Advocate does not need the words here at all. The danger is that the words will remain and no regulation modifying them will ever be introduced. We have no guarantee that it will be done. This is why we cannot shut our eyes to the dangers of giving powers to the Secretary of State to make regulations—and certainly in respect of this, which is different from the others where no regulations will need to be introduced. Here is one that we want to introduce but there is no guarantee that it will be done—and done in the way we wish. Until that is done, the hardship that exists in the subsection will remain.
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The noble and learned Lord sthe Lord Advocate has been very lucky in what he has got away with so far. He would not get away with it in a certain Scottish Standing Committee in another place. Were we discussing the matter there, it would be taking a long, long time. It has, of course, to go there at some time. Would it not be better if the noble and learned Lord faced up to the difficulty now, realised what is being done, and put it right straight away?
Lord Cameron of Lochbroom: I made clear, I believe, in what I said in opening that the discretion that already exists in the Legal Aid Central Committee in regard to advice and assistance and the waiving of the rights of the legal aid fund regarding civil legal aid under existing regulations are matters that I would envisage being provided for in regulations of a similar character under this Bill. I can go no further than that.
Lord Hughes: The noble and learned Lord the Lord Advocate is giving away practically nothing. Even now, he does not say that it will be done. He uses the words, "so far as I can envisage". But his eyesight might be wrong. We have, in fact, really got nowhere. I wonder how often a solicitor is placed in the invidious position of having to say to a client, "Yes, we could take this case. I am certain that we would win the case. I am certain that you would get what you expect, but I must tell you that after my expenses are paid and counsel's expenses are paid, there is nothing left for you. So, in these circumstances, I must, with reluctance, advise you not to do anything about it". On the assumption that the solicitor will inevitably give the best advice available to his client, there must be cases when he has to send a client away totally dissatisfied on the basis that he has been told that he has a perfectly good case and that he is almost certain to recover what he is suing for, but that it will never reach his own pocket.
Lord Cameron of Lochbroom: I made clear, I believe, that that is a situation that might even arise in relation to unassisted litigants. The effect of the amendment to Clause 12 would mean that, in relation to advice and assistance, the solicitor would in no circumstances be able to claim any fees and outlays out of any property recovered or preserved for his client. That would, of course, increase the solicitor's claim on the legal aid fund. For the reason that I have already indicated, I cannot accept that that is correct. The circumstances vary. I have indicated that the discretion that at present exists in the Legal Aid Central Committee in respect of legal advice and assistance could well be carried over into the new system so far as the board is concerned. That, I regret to say, is as far as I can go tonight.
Lord Hughes: May I ask that the noble and learned Lord the Lord Advocate advises his noble friend that this is a case where one would be entitled at the next stage to give an undertaking that such regulations will be introduced?
Lord Cameron of Lochbroom: I shall take aboard what has been said tonight and these matters will obviously fall to be considered.
Lord Morton of Shuna: Perhaps I may repeat what has been a fairly frequent position of mine; that is to say, that I am grateful to the noble and learned Lord, Lord Wheatley, for putting me right on the law. However, having said that, I would ask leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13 [Meaning of "civil legal aid"]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 37:
Page 9, line 31, leave out ("(so far as is necessary)").
The noble Lord said: I suppose that as an advocate I have to declare an interest. This amendment is to leave out the words "so far as is necessary". What does this mean? Civil legal aid means representation by a solicitor and, so far as is necessary, by counsel in any proceedings. I think I am right in saying that the only situation in which counsel is necessary—in the sense that solicitors do not have a right of audience—is in the House of Lords, in the Court of Session, and the Lands Valuation Appeal Court.
Is it the intention, however complicated—and remembering that the sheriff court is a court of universal jurisdiction as regards amount—that in no case is a legally assisted person to receive the advice of counsel? That is what the section says. May I remind the noble and learned Lord the Lord Advocate that as complicated a case as the litigation arising out of the Rangers disaster was fought for several weeks in Glasgow's sheriff court, by three counsel on each side. The football club was, naturally, represented by an insurance company, but the legal aid authorities considered it appropriate that, in a case which was the leading case on a major disaster, counsel should be available to fight the case on behalf of the relatives of those who were killed. Is it the intention of the Government that counsel should not be available in that type of litigation in the sheriff court?—because that is what is said.
With regard to "so far as is necessary," the word "necessary" as I understand it means needed, required, and is a fairly absolute word. The only interpretation that I can give it is that it is impossible for anybody else to do it. I would suggest that the board should have the power currently held by the legal aid central committee to authorise counsel when it is appropriate. I beg to move.
8.45 p.m.
Lord Cameron of Lochbroom: In providing that legal aid means representation as set out in Clause 13(2) the Bill merely repeats the formulation which is to be found in Section 1(5) of the Legal Aid (Scotland) Act 1967. It strikes a balance between the right of the assisted person to have proper legal representation and the need to ensure that unnecessary expenditure is not incurred from public funds.
Whether the employment of counsel is necessary in any particular case will usually be clear from normal legal practice, and the kind of case to which the noble Lord referred is the kind of exceptional case which the board would probably decide if there were any doubt. However, I should have thought that there is no difficulty in such a case.
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General provision as to circumstances in which counsel may be employed without prior authorisation may, as at present, be a matter for subordinate legislation. The effect of the amendments would be not to allow the board to decide when the employment of counsel was appropriate but to imply that counsel should or at least could be employed at the expense of the legal aid fund in every case. That cannot be right having regard to the fact that civil legal aid is available in more than the Supreme Courts. But I think that there is nothing unusual in this. It follows a formulation which is already within the existing legislation.
The Earl of Selkirk: I must say frankly that to me the words look stupid. I do not know whether they have appeared in previous Acts of Parliament or not. But there must be some way in which, under the control of legal aid, those requirements that are necessary can be met. If they do not exist they should be put in.
"So far as is necessary" means nothing except that the legal aid committee approves of it. May I say, with respect to the noble Lord, Lord Morton, that it does not mean what he said. It means that one can have it anywhere if it is thought essential. Please, let us use words which mean sense. These words mean nothing as they stand. There is no definition of the word "necessary". It means nothing to me. I am bound to say. I thought that it was silly.
I think that the explanation which the noble Lord, Lord Morton, put forward is not right. Does it merely mean that it is necessary in the eyes of—what?—the legal aid board? Please put that in. Please let us know what this means. As it stands it has no clear meaning at all.
Lord Cameron of Lochbroom: All I can say is that I take note of what my noble friend says. This is a phrase which has not, so far as I know, occasioned difficulty in the past. However, I appreciate that that is not necessarily the touchstone for the future.
Lord Morton of Shuna: By saying that this is just repeating what was in previous Acts shows the lack of insight in the drafting of this Bill, because presumably the purpose of a new Act is that one improves any wording difficulties or unfortunate wording that occurs in the previous Act. One does not just take chunks and put them into the new Act without thought. But if the noble and learned Lord the Lord Advocate is willing to consider it, I shall withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Schedule 2:
[Part I—Courts in which civil legal aid is available. Part II—Excepted proceedings]:
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 37:
Page 37, line 2, at end insert—
("an industrial tribunal,").
The noble Earl said: I am asking whether my noble and learned friend does not think that industrial tribunals are extremely important. I say "important" from this point of view: that it is important that they

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should provide justice in some cases of emotion which may arise, besides in those of real need. It is not a privilege in a case of importance to be represented by counsel, it is a necessity. We shall add to the value of the tribunal itself. The tribunal will come to better decisions. It is a question of whether it is worthwhile doing that. If the tribunal comes to better decisions it may help greatly in various aspects of industrial anxiety and bother; and it adds to the confidence of the wise decisions which the tribunal will give. I ask my noble and learned friend whether he has considered it and whether he can offer any suggestions.
Lord Denning: This is very important because in England there has been great pressure for the legal aid system to be applied to industrial tribunals which have so much litigation. It may be desirable, but I can see that it would be very expensive for the legal aid funds. If it is to be applied to Scotland, it ought to be applied to England as well. That is all that I would say.
Lord Morton of Shuna: I would support this amendment. Your Lordships will see from the next amendment that I have the same intention although putting it in a different place in Amendment No. 39. The industrial tribunals are, as the noble and learned Lord, Lord Denning, said, extremely important. Apart from those cases which are occurring at this time out of the mining dispute, it has been the experience of the industrial tribunals that they are now getting very few cases where the applicant is supported by a trade union, because those cases are usually settled by ACAS before they reach the tribunal. The vast majority of cases coming to the industrial tribunal in Scotland are cases in which the applicant has no professional body or trade union available to advise him. It is a very important sphere of litigation, and one in which legal aid should be available on whatever qualification is considered appropriate. I beg to support the amendment.
Lord Wheatley: Perhaps I may add my voice to this plea. This is not just a question of representation before an industrial tribunal. Our experience in Scotland is that there is an appeal from an industrial tribunal to the appeal tribunal and then from the appeal tribunal to the court. Having dealt with quite a number of these cases in the appeal court, to me it is quite clear that in many of the cases the whole basis of the dispute is the fact that at the initial stage before the industrial tribunal there has not been a proper legal representation of the claimant. Not only would this be a matter of justice in giving representation at that stage, but it might save a great deal of public time and money by cutting down the number of unnecessary appeals through the Industrial Appeal Tribunal to the Court of Session.
Lord Elwyn-Jones: I should like to add to what the noble and learned Lord, Lord Wheatley, has said. There is considerable awareness that the technicality in some of the proceedings before industrial tribunals in any event merits legal representation, especially when on the one side the employer is able to engage counsel. I hope that this matter will be looked at again.
Lord Hughes: I might also mention that when the noble and learned Lord did not feel able to accept Amendment No. 14, our amendments to Clause 2, which included a system of lay advice and representation before tribunals, his attitude was that this is going far beyond the purpose of the board. If the noble and learned Lord does not intend to encourage the system of lay advice, which obviously at best would be in the simplest of cases, he should not at the same time be discouraging the provision of legal advice in what almost inevitably will be the complicated cases.
Given what has just been said by the noble and learned Lord, Lord Wheatley, there may be no saving because if one goes through the procedure which he has indicated, at the end of the day the cost to the legal aid fund, when the case reaches the final court, will probably be much greater than it otherwise would have been. Therefore, at the very least there is certainly a case for the noble and learned Lord the Lord Advocate to look at and to consider further, rather than just rejecting it. However, he cannot reject the simple solution and the more complicated solution, and put nothing at all in the place of either.
Lord Cameron of Lochbroom: Industrial tribunals have not been included in the list in Schedule 2 because successive governments have taken the view that this is not really necessary and, if implemented, would prove too expensive. Advice and assistance will of course continue to be available, and that remains the present Government's policy. However, in view of what the noble and learned Lord, Lord Wheatley, has said about subsequent appeal processes, I would say that a safeguard is provided in that legal aid is available for proceedings in the Employment Appeal Tribunal to which a person dissatisfied with the industrial tribunal's decision can appeal. It would also be right to say that, if circumstances were to change in future, it would be possible to add industrial tribunals to Schedule 2 by use of the power which is contained in Clause 13(4). However, I regret to say that, for the reasons which I have set out, I cannot accept this amendment.
Lord Wheatley: With all due respect to the noble and learned Lord, the Lord Advocate, what I was saying had no bearing at all on the saving to the legal aid fund. My point was that the whole basis of the claim and the whole basis of flaws in the claim can be traced back to the fact that the applicant did not have legal representation in the court of first instance, namely, the industrial tribunal. It was because of those flaws that all these subsequent proceedings had to take place at both public and private expense.
Lord Morton of Shuna: I would urge the noble and learned Lord the Lord Advocate to reconsider this. Does he really think that it is possible for any ordinary lay person unrepresented fully to understand the terms of the Employment Protection Acts and the difference between, for example, re-engagement and reinstatement, and to know exactly what he is doing wandering through that terrible morass of legislation, which is even worse than the legal aid regulations themselves?
Lord Wheatley: At least we know what the legislation contains; we do not know what is in the legal aid regulations. That is the snag.
Lord Cameron of Lochbroom: I think I have indicated that the individual can obtain legal advice and assistance to enable him to present his case in person at the tribunal. However, I regret to say that, as I have already indicated, the Government's policy is that which has been followed by successive Governments; at present this is the limit of the legal aid that can be granted. I cannot go further than that.
The Earl of Selkirk: As the noble Lord, Lord Morton of Shuna, has said, that means that the employer has counsel and the other man does not. If a trade union is involved, it perhaps does not matter; but if an individual is involved, he would be left with a great sense of mystery as to what a tribunal is supposed to do. I would ask my noble and learned friend to think about this and particularly the point which the noble and learned Lord, Lord Wheatley, made, which is very relevant and economical, which I believe is of significance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39 not moved.]
Lord Hughes Lord Hughes moved Amendment No. 40:
Page 37, line 18, leave out paragraphs 1 and 2.
The noble Lord said: Amendment No 40, to leave out paragraphs 1 and 2 in the second schedule, is a matter to which the Royal Commission gave a great deal of consideration and it eventually arrived at an agreed recommendation. It is of course to allow defamation proceedings to be the subject of aid. What became very clear to all who gave evidence on this matter is that at present, and if this continues, the only person who is defamed and who can clear his name is someone who is sufficiently well off to take the risk of being unsuccessful in court. I cannot readily quote from Shakespeare or the Bible, but my interpretation of what was said somewhere is that the good name of a poor man is just as important to him as is the good name of the highest or the wealthiest in the land. It was because of that that we considered this extension of legal aid right.
In many cases if a person goes to court and is successful in such an action he may also recover a substantial sum of money, in which case, having regard to other matters, the legal aid fund will have lost nothing because they will take their whack out of it. However, in many cases any money which comes in may be rather unimportant. The important matter to the individual raising the action is the clearing of his or her name.
In those circumstances the Royal Commission was amply justified in arriving at that conclusion. I beg to move.
9 p.m.
Lord Denning: I hope that the Committee will not accept this amendment. We have had this problem in England, and Mr. Justice Faulks in his report suggested that there should be legal aid in defamation
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cases. But we have opposed it here because in libel cases and defamation cases you get all sorts of trumpery cases which go on for weeks or months at great expense, and they are often quite unjustified, against newspapers and the like. There might so easily be abuse, because anyone can suggest having a libel action. The matter has been considered in this country quite a lot. I am sure that in regard to England and Wales the idea that there should be legal aid in libel cases has been rejected, and that is a good rule.
Lord Wheatley: In 1949, when we were first introducing legal aid in civil causes in Scotland, actions of defamation were excluded largely for the reasons advanced by the noble and learned Lord, Lord Denning. But I have to say that the history of defamation actions in Scotland had entirely different cause from the position in England. We had very few defamation actions in Scotland. Whether or not that was due to the fact that we are thicker skinned I am not sure, but we took these insults as part and parcel of the give and take of life. Therefore, there was not such a feeling of unfairness in not allowing defamation cases to fall within the ambit of legal aid.
That was the position in 1949. I do not know whether it has changed in the interval, but this attitude as explained by the noble and learned Lord, Lord Denning, was the one which defeated the claim for its inclusion in 1949, and I should be surprised if it is very much different because, as I am sure the noble Lord, Lord Morton, will agree, we have very few defamation actions in the Court of Session over the years. Such as do take place generally take place in the sheriff court, and are smaller fry.
Lord Morton of Shuna: I agree with the last remarks of the noble and learned Lord, Lord Wheatley, but I cannot see why it is so difficult to allow defamation actions considering that under Clause 14, before granting legal aid the board would have to be satisfied that there was a probable cause and that,
"it is reasonable in the particular circumstances of the case that he should receive legal aid".
There may be cases where somebody who is very poor is grossly defamed by a newspaper or by somebody else and suffers great damage. Considering that there is this power to consider whether,
"it is reasonable in the particular circumstance of the case that he should receive legal aid"
it is no longer appropriate that one should rule out a whole class. The Bill should follow the recommendations of the Royal Commission.
Lord Hughes: I should like to add to what I said earlier that the Royal Commission laid down proposals which would rule out frivolous or otherwise unnecessary actions of the kind to which apparently the noble and learned Lord, Lord Denning, has referred as frequently arising, or possibly frequently arising, in the English courts. We have not made any headway with the noble and learned Lord the Lord Advocate, and I have now the distinction in this amendment of having lost some ground because for the first time the noble and learned Lord, Lord Denning, has found it necessary to oppose an amendment. We seem to be backtracking rather than improving.

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I thought it right that I ought to draw attention to the fact that it was never recommended by the Royal Commission that any defamation case should land in the courts. The recommendations of the commission, covered by what my noble friend Lord Morton of Shuna has referred to, should ensure that only worthwhile cases would in fact receive legal aid.
The noble and learned Lord, Lord Wheatley, gave the reasons why it did not get into the first Act. The fact remains that it has never got in ever since, but after the passage of some decades sometimes there is occasion for changing what has been refused previously. The comfort which I might offer to the noble and learned Lord, Lord Denning, is that this might be a case where the Scottish courts could be a stalking horse. If we were able to exclude anything but the really justified cases he might therefore feel able to support something similar in England on the basis that it was not now going to be nearly as expensive as he had thought for all these years.
Lord Denning: Perhaps I may say one word. I think you have been lucky in Scotland not to have many defamation cases. If you once get legal aid you will have swarms of them, and you will be sorry for it.
Lord Elwyn-Jones: May I give a slight word of encouragement to my noble friend Lord Hughes? We discussed the broadcasting arrangements, and I think it is open now to complain to the Broadcasting Complaints Authority if you have suffered defamation but I do not think there is any means of recovering any pounds, shillings and pence in the process.
Lord Wheatley: Perhaps I may intervene again, because I have suddenly recalled what I think the noble Lord, Lord Hughes, had in mind by way of quotation in addition to the one he gave. It is perhaps the most formidable argument in favour of recognising the right to have such cases, subject to the provision to which the noble Lord, Lord Morton, referred by way of limiting the number of cases. The quotation is:
"Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed".
The noble Lord, Lord Hughes, wanted to adopt that. I freely grant it to him, bearing in mind that the person who uttered those words was Iago, the villain.
Lord Elwyn-Jones: May we have another moment of light relief? My noble and learned friend will remember, of course, that those noble words were uttered by the wicked Iago and not by the virtuous Othello at all.
Lord Cameron of Lochbroom: May I return to the prosaic? I appreciate that there have been arguments of respectability put forward in favour of the removal of this long-standing exemption. Arguments against have been deployed so completely by other noble Lords that there is little I wish to add other than to say that the kind of considerations to which both noble and learned Lords have spoken, still deserve to be
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given substantial weight, at least to the extent that they lead me to the view that public funds should not be available through the legal aid fund for the pursuit of such actions. Accordingly, I cannot accept this amendment.
Lord Hughes: On a second front, this is different from anything that has gone before because, for the first time in proceedings in Committee, the noble and learned Lord the Lord Advocate has found some support. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Clause 14 [Availability of civil legal aid]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 41:
Page 10, line 22, at end insert—
(" ( ) The Board shall provide a method of appeal against the refusal by the Board of Civil Legal Aid.").
The noble Lord said: This amendment provides that there should be a method of appeal against the refusal of civil legal aid. The present position is that if legal aid is refused by a local committee or by a Supreme Court committee there is a right of appeal against refusal to the central committee. There is no provision for an appeal in the Bill. I understand that the Scottish Home and Health Department advised the Law Society that initially there was to be the same type of appeal. Then it advised that there was to be no right of appeal and it is essential that if some delegated authority, which this board presumably will have, makes a mistake in refusing civil legal aid, there should be some method of redress by some form of appeal. I beg to move.
Lord Cameron of Lochbroom: With the permission of the Committee I shall speak also to Amendment No. 65. These two amendments deal with the same general principle. I entirely agree that a review of decisions to refuse legal aid should be for the board. It is envisaged that regulations made by the Secretary of State under Clause 36(2)(a) will set out, at least in outline, a procedure for review of refusal of civil legal aid probably by a committee of the board established to consider such matters. I say "review" because what I think is required is that such a body should consider applications de novo. It seems desirable that the review procedure should be set out in regulations subject to parliamentary scrutiny rather than leaving it, as the amendment would, entirely to the board.
We intend that, as at present, there should be a procedure for review by the board of refusal of applications for legal aid for civil proceedings. But in relation to criminal proceedings one point which has been made strongly to us by a wide range of bodies is that delays in the granting of legal aid should be avoided at all costs. A review procedure would be likely to lead to delays and trial dates might have to be postponed until the outcome of a review was known. Clearly this must be avoided. The Secretary of State has therefore decided that a system for review of criminal legal aid decisions should not be instituted. This will preserve the present position where there is no provision for reviews of refusals of legal aid for criminal proceedings. Accordingly, while I would oppose this amendment, I do so on the basis which I have set out as regards civil legal aid.
Lord Morton of Shuna: I spoke only on the civil side earlier, but the difficulty on the criminal side referred to at Second Reading was that there was a divergence of view and approach and practice among the sheriffs granting legal aid. I presume that the person who will be granting legal aid will be some sort of delegated person in Portree, Inverness, Glasgow, Ayr or wherever, and there is exactly the same risk of a difference in approach and standards. Therefore it is all the more essential that there should be some method for achieving a quick review or appeal. The need in criminal applications for legal aid is an even more necessary principle.
The Earl of Selkirk: I feel very unhappy. We are leaving the review entirely as a matter for subordinate legislation. That is a matter of principle to most people and I believe that we as the Committee should be entitled to put it in the Bill. The noble Lord says "Wait and see, I have something else to show you", but this is subordinate to it. It is one of the things which I object to very much in this Bill. I say again that we are expected to wait until the Minister has made up his mind about some regulations. We are supposed here to be dealing with the principles of the Bill. The regulations should be entirely subordinate. That is not happening. I feel very unhappy about this, even if what my noble and learned friend has said is true. I do not doubt that. But it really is something that should be in the Bill instead of evading the issue by putting it into regulations.
Lord Elwyn-Jones: Surely, this ought to be part of the primary legislation. It is far too important to consign it to subordinate legislation. I hope that we can get some indication that this will be put right, certainly, if not tonight, then at the next stage.
Lord Ross of Marnock: I think that it is about time that the Lord Advocate listened to the Committee and took some action. After all, he is the Lord Advocate. Let him not forget it. And he should not let the Secretary of State forget it, either. I am sorry that there is here no representative of the Scottish Office. I thought that the Minister of State might have been here. He might well be more politically minded from the point of view of bending to the will of the Committee.
I can think of legislation after legislation: legislation about licences, about refusing someone a licence and the simplest of things. And here is written into the statute, and written in by this Government, the right of appeal and the method of appeal. Now, look at this present matter. This is far, far more important than many of the things in respect of which the Government have felt it necessary to put into the primary legislation full details about how people shall appeal, and have the right to appeal and how to exercise the appeal. Then we come to this matter which may be very vital indeed for many unfortunate people. People are denied justice, people who have a right to justice; and then we have a decision by a board about which we know little at present. There is no use in the noble and learned Lord speaking of what happens now, because we are introducing a completely new system. When you think of regulation after
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regulation, let us have something in the Bill which gives certain satisfaction in respect of principles that are long established.
There should be primary legislation giving the right of appeal against a decision by the board. I sincerely hope that the noble and learned Lord the Lord Advocate will find some courage at some time to say that this is correct, to say "We'll do this"—and then tell his civil servants to do it.
The Earl of Selkirk: May I ask whether this regulation would be under Clause 37(1) or Clause 37(2)? I ask that because it is of some importance. In Clause 37(2) you have a draft laid before the House which has to be approved and therefore can be amended; whereas in Clause 37(1) you do not. The noble and learned Lord may not be able to answer that offhand. I am sorry, but I think that it is important that we should know whether we shall have a proper opportunity in draft of seeing whether there is a satisfactory way of answering the points which have been put forward today. I do not know what it is. Perhaps my noble and learned friend can tell us some time or another.
Lord Cameron of Lochbroom: I think that I can answer my noble friend. I said that it was envisaged that regulations made under Clause 36(2)(a) would set out the procedure for review of refusal of civil legal aid.
With due respect to the noble Lord, Lord Ross, I think it is only proper to remind the Committee that the existing legislation leaves review to subordinate legislation and that that has worked perfectly satisfactorily. I have set out what is intended and the way in which it is proposed to bring in the review procedure, which is, as I have indicated, by way of regulations which again are subject to parliamentary scrutiny.
Lord Ross of Marnock: With due respect, we are changing the whole system. There is no use referring to what happens just now or what is in some other statute. The Government, and the Government alone so far as I can see, have decided that we have got to scrap the whole existing system. There is no use in the noble and learned Lord telling us that it is working satisfactorily now. This Bill tells us that the present system is not working to the satisfaction of the Government. Since we have this review, since we have this new statute, let us be a little more up to date in respect to the rights of people. We have had this proclamation so often about the rights of parents, the rights of this section and the other, the rights of tenants.
I have no doubt that when the next Bill comes along in about a fortnight's time in respect of tenants' rights and in respect of houses owned by housing associations, if they are denied the right to buy, the right of appeal will be written into the statute. Why can it not be written here? This is what we require. Has the noble and learned Lord the Lord Advocate anything more to say? Is he just resting on the existing position which he declares in every other respect is unsatisfactory?
Lord Wheatley: I wonder whether I may intervene? The Lord Advocate has just said that regulations will be made under Clause 36(2)(a). Is that right? These are regulations which, under Clause 37, are subject to the negative procedure, which is the most unsatisfactory way of dealing with matters of this nature. I would like to support the plea for primary legislation dealing with this matter.
There is one other matter. I may be wrong, but I thought the noble and learned Lord the Lord Advocate was dealing in advance with the reasons for not setting up an appeals procedure in criminal causes. That disturbs me very much indeed, because I think I pointed out during the Second Reading debate that when the first Bill was being introduced it was being introduced only in relation to civil causes. I shepherded that Bill through the House of Commons, and I was very sorry about that, because in my personal view at that time legal aid in criminal causes is perhaps more important than legal aid in civil causes. In civil causes you are merely dealing with a person's pocket in most cases. In criminal causes you are dealing with his liberty, the future of himself, his family and his job, and with various other things that are very personal indeed. To defend those is more important than to prosecute a civil claim. And if he is being denied the right of appeal in a criminal cause whereas he is allowed the right of appeal, ex hypothesi, as seemed to be the concession made by the Lord Advocate, in civil causes, I think this has been approached in entirely the wrong way.
I say in advance that I should be very sorry indeed and should have to consider what steps may have to be taken if the Government adhere to the decision not to allow an appeal in criminal causes. I appreciate that there may be questions of time limits involved, but no doubt this wonderful new management committee that is going to tell them how to run this Bill much better than we can will be able to devise some ways and means whereby an expeditious system can be inaugurated under which the appeals system can be brought into operation.
Reference was also made to the decisions which could be made by different representatives of the new board in different parts of the country. This is where, again, we are working in the dark. We do not know who will be dealing with these applications for legal aid, say, in summary criminal causes that have to go before the board. Will it be a sub-committee of the board, will it be reporters appointed by the board or will it be a local committee appointed by the board? In all these circumstances you are just as liable to get the divergence of decisions that you are getting at the present time.
There is one further point I should like to put to the Lord Advocate, dealing now with the criminal system. I mentioned it at Second Reading. Has he taken into consideration the time element in certain cases, and in particular what we call custody cases—that is, where the accused is in custody and not being allowed bail? In that situation in summary causes he has got to be brought to trial within 40 days. Have the Government worked out, first, what system would enable an application for legal aid in summary causes to be dealt with by the board, having regard to that timetable?
Lord Cameron of Lochbroom: A number of points have been raised, and perhaps I may deal with them in turn. The first one is one on which I would again make it quite clear that the present arrangements, which are to provide for the review procedure in regulations, are indeed better even than the existing provision, which was under a scheme not subject to parliamentary procedure. The result of this amendment would be to leave it to the board to determine what method of appeal they should adopt, whereas the review procedure which I am indicating is something which will be subject to parliamentary scrutiny.
May I turn to criminal legal aid? I believe that the noble and learned Lord raised two separate points. First, there is no change whatsoever in the solemn procedure. I do not believe that the noble and learned Lord was concerned with that. With regard to the summary procedure, special arrangements have been made within the Bill for provision of legal aid in summary cases because of the time element involved in custody cases.
Lord Wheatley: Up to a certain point.
Lord Cameron of Lochbroom: Indeed. Thereafter, if there is a plea of not guilty and the person is on hail, his case is reviewed by way of an application.
Lord Wheatley: What if he is not on bail?
Lord Cameron of Lochbroom: If he is not on bail the decision is made early on and he makes an application to the board.
The second point that the noble and learned Lord raised was that of the inconsistency that might arise in the grant of applications. The board will be there to ensure that general administrative guidance is given by it to those who will be concerned to make the decisions on the grant or refusal of criminal legal aid applications.
Lord Wheatley: Who are those persons?
Lord Cameron of Lochbroom: That is a matter which the board will decide. It will decide the most suitable way of achieving expedition and consistency. All I can say at the moment is what I said on Second Reading—that there are one or two ways of doing that. The board might use a local panel of individuals or it might prefer to use some other way. All I can say at present is that the board will be well aware of the need to set up a system which will achieve consistency and expedition. I cannot go beyond that, as the noble and learned Lord will appreciate. That is the Bill's general intention.
As I said, the question of whether there should be an appeal in relation to the refusal of legal aid in summary criminal proceedings was considered after consultation. As I have made clear, a wide range of bodies were of the view that delays should be avoided in the granting of legal aid and that there should be no appeal procedure. I may say more. At present, that question is determined by the court and there is no procedure for appeal. There is nothing lost in the sense that there has been a departure from the present system.
Lord Morton of Shuna: Although we have heard various unsatisfactory replies from the noble and learned Lord the Lord Advocate, I have never heard a reply more unsatisfactory than the one he has just given. We could have a very expeditious and uniform system. The easy way to achieve that would be to refuse all applications. What is needed is a speedy method of granting summary criminal legal aid applications. In cases where legal aid is refused, there must be some method of review or appeal.
One of the reasons why the Government are bringing in this Bill is the inconsistency of sheriffs. One thing that sheriffs are supposed to be (and most of us have confidence that they are) is people with some knowledge of criminal law and what may or may not be a reasonable defence. These ghosts—because we do not know what they are, who they are or how they are to be appointed—are apparently to continue the present system, except that they are not to be sheriffs, which seems to add to the deficiencies of the present system, rather than to improve it. It is absolutely necessary that in the primary legislation there should be provision that people refused criminal legal aid and civil legal aid should have some method of getting that reviewed, whether by the court or by somebody else.
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 42:
Page 10, line 23, leave out subsection (3)
The noble Lord said: This amendment is to delete subsection (3) of Clause 14, which states that the Secretary of State is to make regulations prescribing,
"factors to be taken into account by the Board in determining whether it is reasonable for a person to receive legal aid."
Why it is necessary that the Secretary of State should prescribe factors seems entirely uncertain. The board has the duty, after deciding that the person has a probable cause, to decide whether it is reasonable in the circumstances. What are the factors to be taken into account? There is no need for these regulations. There is no indication what the factors are to be. Is one of the factors to be that it is unreasonable that any action should be raised against the Secretary of State? Is another factor to be that there is a different standard of reasonableness for judicial review of Government action? It seems entirely unnecessary. I beg to move.
The Earl of Selkirk: I do not need to add much to what the noble Lord has said, but in the consultative paper there were certain suggestions which were generally regarded as highly offensive. One was that small fines did not matter. To many people conviction matters more than the punishment. If you are convicted in certain circumstances, it is very serious. In certain fields, it may affect your whole reputation. The fine or imprisonment may not add anything. It may be only a small fine or a short period of imprisonment. But this is something ridiculous produced by the office of the Secretary of State for people to consult, and that is clearly in the minds of the people who are dealing with this.
Then there is the question of regular offenders. That term can have many meanings, but this puts it into a
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certain category. Somebody may be trying to get out of a fault and he is put straight back again. This is the sort of thing which one is afraid will come out of the regulations. Matters of this sort are not too difficult and they should be able to be stated in primary legislation.
Lord Elwyn-Jones: We are left completely in the dark about these words:
"may prescribe factors to be taken into account by the Board in determining whether it is reasonable for a person to receive legal aid".
They give enormous power to the Secretary to determine how wide or how narrow the scope or the provision of regulations may be. It is almost an intolerable piece of legislation. I shake my head in dismay.
Lord Cameron of Lochbroom: Perhaps I might respond to what my noble friend Lord Selkirk said at the start by making it clear that we are here dealing with civil legal aid and not with criminal legal aid. I fully accept that there may be greater difficulty in setting out factors to be taken into account in determining reasonableness than there may be in other circumstances in relation to the determination of the interests of justice. But I suggest to your Lordships that this is a useful power.
Under the present arrangements there have been certain eyebrows raised from time to time as to whether it was reasonable in particular cases to have awarded or to have refused legal aid. It has been queried from time to time whether, even where a probabilis causa litigandi exists, it is reasonable that the cost of action should be met from public funds. This consideration might apply, as it were, at both ends of the scale. The Committee may well be aware of certain types of case which could be comprehended by this. In particular, there was a case recently involving fluoride.
Equally, where, for example, someone wishes to apply for a small increase in aliment, it may be relevant to consider whether it is reasonable to finance litigation at public expense in support of such an action or to require such an action to be defended at the defendant's expense, or for that matter at the expense of the legal aid fund. Other examples may occur where it is desirable that the Secretary of State should prescribe factors, and there is the safeguard that any regulations will be subject to the affirmative resolution procedure. As Clause 3(4) makes clear, this is not the sort of matter on which the Secretary of State could offer guidance to the board. It is for these reasons that this power is taken with regard to civil legal aid.
I would suggest to the Committee that there may be circumstances in which it would be right to prescribe factors, and therefore I ask that the amendment be withdrawn.
Lord Ross of Marnock: The availability of civil legal aid! The board is set up and is given this instruction. The people of Scotland are given the promise that,
"Subject to section 15 of this Act and to subsection (2) below, civil legal aid shall be available"—
not "may"—
"to a person if …
(a) the Board is satisfied that he has a probabilis causa litigandi—

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if he has a reasonable case, I suppose. You might be able to find two or three English words that people would understand. It has taken me hours to find the meaning of this. I hardly recognised the phrase when I heard that Latin pronunciation of the noble and learned Lord the Lord Advocate.
The board has to be satisfied; and then it has to appear to the board that it is reasonable that he should receive legal aid. The board at last seems to have some independent power; and then we come across subsection (3):
"Regulations made under this section may prescribe factors to be taken into account … in determining whether it is reasonable for a person to receive legal aid".
These great people are going to be drawn into these eight to 15, with the chairman. They cannot even be trusted to do that. Along comes the Secretary of State and lays down "factors".
There used to be a way of dealing with factors in Scotland—in certain parts of the Highlands, around about Glasgow and in Ireland. Factors were considered to be rent collectors—untouchables! These are not mathematical factors, either, as far as I can see. They are factors, whatever these factors are. It might be people with red hair, or people who stammer, or people who voted SDP. I thought I might have awakened the noble and learned Lord, Lord Wilson, with that one.
We do not have a clue as to what the factors are. But can the Government not trust this board that is going to be of their own creation to be sensible about this? This gives the lie to all these pretensions about a highly important, independent new board. But despite having told the people of Scotland that they are going to be entitled to civil legal aid if they have a good case that requires litigation and if the board thinks it is reasonable, along comes the Secretary of State and says, "But you'll not get it if certain things happen".
Remember, the board has already considered the particular circumstances of the case. This can only mean that it is the particular circumstances of the litigant. We have already dealt with the question of means—it is mentioned here as well—so this is something outside that. It is rather sinister if the Government insist on it.
The noble and learned Lord the Lord Advocate now has a chance to make a name for himself. He can take this out and have a row with the Secretary of State and let the Secretary of State prove to him that it should go back in. There will be plenty of opportunity to do so—on Report, at Third Reading; or in the House of Commons in Committee or on Report. Let him show some spark of independence. Let him show that he trusts the board, even if the Secretary of State does not. Let the Secretary of State try to prove his case.
It is indefensible that subsection (3) should be in the Bill if the boards are to be as good as the Secretary of State or the noble and learned Lord the Lord Advocate says.
Lord Hughes: The most revealing comment made by the noble and learned Lord the Lord Advocate
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during the whole of these proceedings was when he said, in relation to this clause, that this was a useful power to have. The fears which are being expressed about the purpose behind this Bill—I think I would rather wait until the noble Lord the Lord Advocate is able to listen and have some idea of what I am saying. To go back, he said that this was a useful power to have.
Many people have a suspicion about this Bill. Although the Government have accepted that the provision of funds should be on a demand basis and that there was no intention of imposing financial limits, the fear that is being held within the legal profession—certainly in Scotland and, given the interest taken south of the Border, the fear that it is something which will later be exported to England—is that the primary purpose of the Bill is to cut back expenditure on legal aid. I would accept that a useful power to have would be one where the intention was to take every opportunity of improving the position on legal aid. But it is a very dangerous and difficult power to have if the purpose is to enable expenditure to be cut so that you do not refuse demand generally but you impose conditions which enable you to rule out a lot more than can be ruled out at present.
Sometimes people let slip a few words which reveal their real intention and I think that, when the noble and learned Lord has said that this is a useful power to have, we have good grounds for being suspicious about the Government's real intentions in this Bill.
Lord Cameron of Lochbroom: I am fully aware of the views which noble Lords expressed from various parts of the Committee. I am not prepared to accept this amendment at present, but in view of what has been said I will consider this with my right honourable friend to see whether what is intended by this, which I assure noble Lords is not sinister, can be obtained perhaps in another form of words which might be more acceptable to noble Lords. However, noble Lords will fully understand that I give no undertaking.
Lord Morton of Shuna: For every small relief we give great thanks. In these circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 agreed to.
Clause 15 [Financial conditions]:
The Deputy Chairman of Committees (Lord Strabolgi): I have to inform the Committee that if Amendment No. 43 is agreed to I cannot call Amendment No. 44.
9.45 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 43:
Page 10, line 26, leave out subsections (1) and (2) and insert—
("( ) A person may be refused civil legal aid if it appears to the Board that he can afford to proceed without legal aid".).
The noble Lord said: This is an amendment which I appreciate makes a radical change to legal aid, but it does not necessarily mean any increase in expense—so the noble and learned Lord the Lord Advocate need

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not be too horrified too quickly. The purpose of the amendment is to take out the actual figures of qualifying income and capital and to insert instead:
"A person may be refused civil legal aid if it appears to the Board that he can afford to proceed without legal aid".
As I should have thought is reasonably obvious to most people, different types of litigation have different possible costs. It appears to be quite inappropriate that someone who has a disposable income of £5,416 a year should be refused legal aid and someone who has an income of £5,414 a year could get it for anything. It might be a very simple action for personal injury as a passenger in a minor motor car accident or a complicated medical negligence case. The purpose of this amendment is to allow a wider discretion to the board to consider whether, in the particular circumstances of the case—provided of course that the person has a probable cause (as I would put it, not liking Latin) and that it is reasonable that he should receive legal aid—a person can be refused if it appears that he can afford to proceed without legal aid.
He might well be able to proceed without legal aid in the sheriff court in a minor action but not able to proceed without legal aid (and it would be quite inappropriate that he should) if he were to raise an action for medical negligence in the Court of Session, which might take a proof of four or five weeks with very expensive witnesses; and it might be entirely appropriate that someone with a higher income should receive legal aid for that more expensive type of litigation. The Royal Commission recommended this in paragraphs 8.24 to 8.28 and it would appear that one could deal with it without incurring any additional cost on civil legal aid by having some form of sliding scale without a fixed upper limit and a sliding scale of contribution. I beg to move.
Lord Cameron of Lochbroom: The effect of the deletions and the substitution which is entailed in this amendment would be that there would no longer be an upper limit on disposable income or disposable capital, and that all parties would be able to apply for legal aid with the sliding contribution system to which the noble Lord has just referred. He made particular reference to the recommendations of the Royal Commission.
The amendment strikes at one of the main features of the existing system which is common both to England and Wales and to Scotland. As I said earlier in Committee today, the financial limits on legal aid are fixed on a Great Britain basis and are linked at the lower end with supplementary benefit levels. The possibility of removing the upper limit was considered some years ago in the context of Royal Commission reports both north and south of the Border, but the conclusion was that this would not be justified.
There are other areas in which I have argued that there is no reason why Scottish provisions should be tied to English, but the present amendment is an exception. It would in this case be extremely undesirable that financial limits should continue in England but should be abolished in Scotland.
The amendments also have three possible consequences. First, the expenditure on the legal aid scheme might be vastly extended at the expense of
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other public expenditure priorities. Secondly, if adjustments were made to secure that there was no net increase in legal aid expenditure, there would have to be increased contributions at the lower end of the scale, which would seem to be undesirable. Thirdly, if there is no net increase because cuts are made in legal aid elsewhere, that again is not, I think, what would be the noble Lord's intention.
The suggestion which the noble Lord appears to be making is that the coverage of the legal aid scheme would be extended to benefit even the well-off, and indeed those who are rich. But there is no good reason for subsidising litigation for those at the upper end of the income scale or with substantial capital assets, or, which might be of more financial value to them, limiting their liability to meet the expenses of litigation.
Against the background of the existing system I regret that I cannot accept these amendments, which, as I say, strike at one of the principal features of the existing system which is common to both England and Wales and Scotland.
The Earl of Selkirk: I understand that the decision on disposable income is being taken over from the DHSS by the board. Is that right? I wonder whether my noble and learned friend can give us a slight indication of how a person's disposable income is determined. I doubt whether any noble Lord here has the slightest idea of what his disposable income is. Is there a means test, or how else is it worked out?
Lord Cameron of Lochbroom: If I am wrong, I shall write to my noble friend, but I believe that there are existing regulations which set out a formula by which disposable income is calculated; the same applies to disposable capital. That is the basis upon which the assessment is made. As I said at Second Reading, the assessment will be one of the matters for which the board will take responsibility.
Lord Hughes: Am I wrong in thinking that somewhere in the Bill there is a definition of disposable income to the extent of stating the factors that must be excluded? I cannot remember where I saw that.
Lord Cameron of Lochbroom: I think that the noble Lord is referring to Clause 42, which uses the terms "disposable income" and "disposable capital". I gather that there are rules for computing, for instance, disposable income and that they are to be found in the Legal Aid (Scotland) (Assessment of Resources) Regulations 1980 and in Schedule 1 to those regulations.
Lord Morton of Shuna: After that discussion, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 15 agreed to.
Clause 16 agreed to.
Clause 17 [Contributions, and payments out of property recovered]:
[Amendment No. 45 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 46:
Page 11, line 24, leave out subsection (5).
The noble Lord said: This amendment is similar to one that we dealt with on legal advice and assistance and relates to the recovery of expenses out of funds awarded. In the hope that the noble and learned Lord will deal with this in the same manner as the previous one, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Clause 18 agreed to.
Clause 19 [Expenses out of the Fund]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 47:
Page 12, line 38, leave out ("legally aided") and insert (" a legally assisted person")
The noble and learned Lord said: Perhaps I may, for the convenience of the Committee, speak to Amendment No. 81 along with this amendment. These are two essentially drafting amendments. They make clear that Clause 19 and, consequentially, Clause 38, which refers back to Clause 19, cover proceedings where a person in receipt of either civil legal aid or of assistance by way of representation is a party. The amendments bring these clauses into line with Clause 18 which provides for the application of Clause 19 to proceedings to which a legally assisted person is a party. A legally assisted person is defined in Clause 16(2) as covering both someone in receipt of civil legal aid and someone in receipt of assistance by way of representation for civil proceedings. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: I have to inform the Committee that if Amendment No. 48 is agreed to, I cannot call Amendment No. 49.
Lord Elwyn-Jones: Before the noble and learned Lord, Lord Denning, left, he asked me to say that he would move Amendments Nos. 48 and 50 at Report stage.
[Amendment No. 48 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment NO. 49:
Page 13, line 2, leave out ("those proceedings were instituted by the legally assisted person and").
The noble Lord said: This amendment is to delete the restriction that expenses can only be awarded against the fund at first instance if the proceedings were instituted by the legally assisted person. There have been occasions where, in a sense, a non-assisted person has been almost forced, by someone who eventually obtained legal aid, quite unjustifiably to defend the proceedings and thereby incur great cost, and was therefore, by this rule, unable to recover expenses. It is unjustifiable that there should be this restriction. The restriction should apply only as it would if these words were left out—that, in respect of expenses and proceedings in a court of first instance, the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made. It would be much fairer to have it that way. The person who starts proceedings is not necessarily the person
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responsible for the proceedings existing. I hope that the noble and learned Lord the Lord Advocate will be able to view this provision favourably. I beg to move.
Lord Cameron of Lochbroom: It is true that the circumstances in which a litigant who, himself not legally aided, has been successful against a legally aided party can obtain payment of his expenses from the legal aid fund are limited, and always have been, since the possibility of such payment was introduced in 1964. The amendment would remove some of these limitations, in particular those which relate to the expenses of first instance proceedings.
Successive governments have taken the view that an unassisted person who has been brought into court not of his own will, but to defend an action against him raised by an assisted person, should be able, if successful, to obtain his expenses from the fund, if otherwise eligible. This seems only fair, since in assisting the pursuer from the fund the board would have taken the view that the pursuer had probabilis causa litigandi, that is, a reasonable prospect of success, although it is probably unnecessary now to explain what those words mean. If they accepted their share of the responsibility for instituting the action, they should accept liability. However, the position is rather different if the unassisted party instituted proceedings, since then he must take responsibility for the risks of proceeding. Given the continuing need to make the best possible use of resources available for legal aid, I continue to think that it is proper to distinguish the two cases. For those reasons I regret that I cannot invite the Committee to accede to this amendment, and I would resist it.
Lord Morton of Shuna: As usual I regret to say that I regard that as a wholly unsatisfactory reply. If a person wishes to defend proceedings raised against him, in order to get legal aid he has to satisfy them that he has probable cause in his defence. If he does not have probable cause, and the legal aid fund has made a mistake, they should bear the penalty just as much as if they gave legal aid to somebody who started the action. If somebody wants to recover their own property and the defender wrongfully refuses to allow this to happen without going to court and the legal aid fund decides to back the defender, why should the legal aid fund—if it is going to cause severe financial hardship to the person recovering his own property—not compensate him for it?
However, as the noble and learned Lord is being as intransigent as is his custom, I would ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 50 not moved.]
Clause 19, as amended, agreed to.
Clause 20 agreed to.
Viscount Davidson: This would appear to be a convenient moment to break. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Brighton Marine Palace and Pier Bill H.L.
Committed to a Select Committee.

Bromborough Dock Bill [H.L.]
Committed to an Unopposed Bill Committee.
House adjourned at two minutes past ten o'clock.