§ 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 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 309 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 310 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 311 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.
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 312 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 313 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 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, 119.314
|DIVISION NO. 1|
|Airedale, L.||Foot, L.|
|Amherst, E.||Gallacher, L.|
|Aylestone, L.||Galpern, L.|
|Banks, L.||Gladwyn, L.|
|Birk, B.||Graham of Edmonton, L [Teller.]|
|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.|
|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.|
|Rathcreedan, L.||Williams of Elvel, L.|
|Ritchie of Dundee, L.||Wilson of Langside, L.|
|Rochester, L.||Winterbottom, L.|
|Ross of Marnock, L.|
|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.|
|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.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.2 p.m.
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
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?317
§ 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.
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, toat least one memberI 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.
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.
323 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?
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 324 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.
§ 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.
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;325( ) 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 326 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.
327 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.
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 …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 328 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.
- "(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",
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.
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 329 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.
330 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.