HL Deb 06 March 1986 vol 472 cc336-90

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. 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.
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 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 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 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 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. 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 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 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 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 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 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 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 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 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 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 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.

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.

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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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.

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). 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 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"). 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 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 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 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 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 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 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 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.

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 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.

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 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 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 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 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.

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 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 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 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 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 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— 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 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 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 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 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 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 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 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 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.