Legal Aid (Scotland) Bill [H.L.]

HL Deb 24 March 1986 vol 472 cc1205-50

5.53 p.m.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Cameron of Lochbroom.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD WELLS-PESTELL in the Chair.]

Clause 21 [Scope and nature of criminal legal aid]:

Lord Morton of Shuna moved Amendment No. 51:

Page 14, line 30, leave out subsection (2).

The noble Lord said: The Amendment is to leave out subsection (2) of Clause 21. This clause illustrates the lack of independence of the board and shows that it is just a creature, a puppet or a pawn of the Secretary of State because the Secretary of State may, by this clause, make regulations in relation to criminal legal aid saying at what class or stage of proceedings criminal legal aid shall not be available. It gives a total power, for example—to take it to a ludicrous extent—to say that legal aid will not be available in the High Court for cases of rape or murder, which no doubt he would not intend. It is a very wide power, and is a power which seems to be wholly wrong. It would be interesting to know if the Government or whoever drafted this Bill had in mind the European Convention on Human Rights, Article 6.6 of which provides that: Everyone charged with a criminal offence has the following minimum rights:—… to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require:

Of course, under the provisions legal aid has only to be granted when the interests of justice so require, so how can the Secretary of State make regulations taking out classes of proceedings or stages of proceedings and still comply with the European Convention on Human Rights? I beg to move.

Lord Elwyn-Jones

This really is a most remarkable provision. Clause 21(2) says: "The Secretary of State may, by regulations made under this section, prescribe by reference to such considerations as appear to him to be appropriate"—that is the Secretary of State—"any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available." It gives him the complete discretion to ride a coach and four through all the criminal legal aid provisions of Part 4. It is a remarkable provision.

Will the Secretary of State enjoy such powers as this, I wonder. There is to be no restriction on him. He is the boss; he is the master; he will be the master of the board. Really, I cannot think of any precedent for a provision granting such power as that.

I recollect that the noble Earl, Lord Selkirk, speaking earlier—if he does not mind being quoted—said, "I don't like the Bill; it is full of regulations. There is one regulation for every two clauses." This is about the most notorious, if I may so describe it, of the mass of regulations we face, and I was not surprised when he used language that perhaps I ought to be nervous of using, when he described it as a travesty of a Bill. This is one of the passages which merit that fierce condemnation.

One cannot help noticing in passing—we shall come to Clause 22 in a moment—that in the marginal note to Clause 22 it states, "Automatic availability of criminal legal aid". This is not so; there is nothing automatic about it. It is all subject to the control of the Secretary of State and, as my noble and learned friend has said, he has power at any time to say "No, you can't have criminal legal aid for Class A or Class B of work", and in this way to deny what should be a legal right—namely, the right to criminal legal aid when the resources of the accused person make it impossible for him to provide for his own defence and representation. The provision of legal aid is not a marginal benefit on the fringe of the welfare state: it is a right—a right that the citizen should enjoy. It is a matter of rejoicing that since the war we have produced the scheme within the defined but established limits where it is available. Subsection (2) of Clause 21 is a defiance of the principles of the grant of legal aid especially in the criminal field. I am expecting (I can scarcely wait) to hear the noble and learned Lord the Lord Advocate say that the Government must take this matter back and think about it again.

6 p.m.

Lord Denning

I, too, should like to support the amendment. We have nothing like this in respect of criminal legal aid in England. We go by the report of Mr. Justice Widgery (that is, Lord Widgery) which was against any classification. In respect of superior courts, the report said: Persons committed to assizes or quarter session for trial or sentence… should, as a general practice, be granted legal aid. The courts should retain a discretionary power to refuse legal aid on grounds other than means…". That was in respect of superior courts. As to summary jurisdiction, the report said: We found, however, that it was impossible to specify with certainty offences where legal aid should never be granted, or, at the other end of the scale, offences for which it should always be granted. One difficulty was that the headings under which crime is classified are often broad ones, and a heading such as larceny covers a considerable number of offences differing widely in their seriousness and complexity. After considering various possibilities we reached the conclusion that the classification of summary proceedings into those where legal aid should be mandatory, discretionary or not available is impracticable and that the grant of legal aid in these proceedings must remain at the discretion of the court". The truth is that the Widgery Committee looked into the question of classification and whether legal aid should be granted in larceny cases, rape cases or burglary cases, but said that there could not be such classification because it was impracticable. It also suggested that guidance be given. You cannot do this by regulation. It should be done as it is in England and as Lord Widgery's report states. I would be against regulation.

Lord Wheatley

I find myself in complete agreement with the noble and learned Lords, Lord Elwyn-Jones and Lord Denning. The more we go into this Bill, the more I keep posing in my mind the question, "What is it that English lawyers have that Scottish lawyers do not have that causes this great distinction between the operation of the legal aid system in England as compared with Scotland?" Why is it that English judges can be trusted to do certain things that Scottish judges cannot? Why is it that certain full rights are granted to people south of the Border but may be denied to them north of the Border? There has been no answer to that series of questions since the beginning of this Bill. I would invite the noble and learned Lord the Lord Advocate to give some explanation of this enigma that has puzzled me throughout our proceedings.

Let us get back to fundamentals. The noble and learned Lord, Lord Elwyn-Jones, has pointed out that this is not a fringe benefit of the welfare state. It is probably one of the most important things in the field of criminal law—we are dealing with legal aid in criminal causes—that has taken place in the history of Scottish law. It gives full and complete right to a person to have proper representation and defence when charged with a criminal offence in our criminal courts. That is a very important matter. The fact that it is endorsed by the Convention on Human Rights is merely another glimpse of the obvious. To compound this problem, we find that the wording, mentioned by the noble and learned Lord, Lord Elwyn-Jones, refers to the right of the Secretary of State to restrict still further the pittance that we already have by cutting down on the class of crime, no doubt, and the class of person, no doubt, entitled to legal aid, or the stages at which legal aid might be given.

It is proposed that this should be done, not in the Bill but by affirmative resolution of either House. I would have thought that this invasion of such a fundamental right was something, if it were to be done, that should be done in primary legislation that can be examined carefully and amended where necessary. But, as the noble Lord, Lord Mishcon, explained earlier today, there is, under the affirmative resolution procedure, no opportunity to amend. You either endorse it or you reject it. In allowing this invasion of the rights of persons in respect of class or stage, of which we know nothing at present except by generalisation, to come before the House, the Government feel no doubt that they can carry whatever they want to do by the majority that they have in the other place, and by the convention, almost, of this place, without having to yield one inch in respect of any arguments, however persuasive and logical, advanced in your Lordships' House.

In those circumstances, I would suggest to the noble and learned Lord the Lord Advocate that not only is this a matter that he should take away but also that he should persuade the Secretary of State for Scotland, who, being a member of the Faculty of Advocates, should not need any persuading, that this is not the way to go about things. If the Government want a severe curtailment of legal aid in Scotland that is not being followed in England, let them have the courage of their convictions and bring it into the primary legislation of the Bill.

Lord Foot

I should like to speak briefly from these Benches in respect of this matter. On first reading the provision in Clause 21(2) I had doubts about whether I had properly understood it. I did not believe that it could be so draconian as it apeared. However, having listened to the words that have been spoken, and the surprise and astonishment already expressed, I am comforted to believe that I did understand it. This is not a matter that is concerned simply with legal aid in Scotland: it concerns the way we legislate. It is really something of a constitutional issue. According to my understanding, subsection (2), by which the Secretary of State can make regulations about the class, and so on, of proceedings, and about proceedings where legal aid shall be available and proceedings where it shall not, governs the whole of Part IV, except possibly Clause 23. Clause 22 purports to set up what are the occasions when there is automatic availability of criminal legal aid. But the whole thing is prefaced by being subject to the regulations of Clause 21(2). If one turns over the page and looks at Clause 24, there we find what is meant to be the definition of the right to legal aid in summary proceedings; and, there again, it is qualified at the beginning by Clause 21(2). Finally when one comes to legal aid in appeals, in Clause 25 one finds exactly the same position. At the top of the page it says "subject to regulations", and so on.

As I understand it, in considering this Bill we are supposed to be defining what are the occasions and when legal aid will be properly available to people who seek it in the Scottish courts. The noble and learned Lord the Lord Advocate will correct me if I am wrong. As I understand it, theoretically this objectionable subsection gives the Secretary of State power, if he so wishes to abrogate completely all the provisions of those clauses that are contained in Part IV. In other words, we are not being asked here in the High Court of Parliament to define what is to be the future situation of criminal legal aid in Scotland. We are being asked to give a blank cheque to the Secretary of State to make such regulations later on as he thinks fit.

I cannot remember an occasion when we have ever been presented with anything as blatant and draconian as that. I do not know whether the noble Lord, Lord Morton, has the intention of taking this matter to a Division, but if he did it would surely be very deplorable that the Government should use their majority in this House in order to force through something which is so universally condemned.

Lord Wilson of Langside

I have listened with enormous interest to everything that has been said from all sides of the Committee. I do not propose to take issue with any part of it. However, I felt that rather than stay silent on these Benches in the face of the attack which has been made I should confess that I find the situation paradoxic. As I understand it, unless my researches have led me astray, this provision derives from Section 1(3) of the 1967 Legal Aid (Scotland) Act which was passed by a Government of which both the noble and learned Lord, Lord Elwyn-Jones, and myself were members.

The Earl of Selkirk

May I say one word about this. There is very little more to add to the distinguished statements which have been made. This means that the Secretary of State has no confidence in the board at all. These are essentially the kinds of decisions that the board which he himself is nominating should make. This is not a political decision. It is essentially a decision in regard to the administration of legal aid. That should be made by the board and not by the Secretary of State—however wise, however great a sense of justice he may have. This is not his function. If one does not trust the board to do this then the board must be changed to something else.

Lord Silkin of Dulwich

I should like to add one word to what has been said so forcefully. It is to draw attention to what one might call the guidance given to the Secretary of State by the subsection in his decision as to the regulations being made. That guidance is by reference to such considerations as appear to him to be appropriate. In other words, he has no guidance at all. Parliament is not telling him what he should give consideration to, or what matters ought to affect his mind. It is entirely open to the decision of the Secretary of State himself. That surely cannot be right.

6.15 p.m.

Lord Cameron of Lochbroom

I assure the Committee that there is nothing new in what is proposed here. The noble and learned Lord, Lord Wilson, reminded us of the fact that there is a parentage for this. May I say where it starts? It begins in 1949 in the first statute that gave life to legal aid in Scotland. In Section 1(3) of that Act Parliament provides this: the proceedings in connection with which legal aid may be given may be varied by regulations,"— there is no reference to the considerations— and the regulations may describe the proceedings to be included or excluded by reference to the court or tribunal, to the issues involved "— I ask the Committee to observe: to the capacity in which the person requiring legal aid is concerned"— and these words— Or otherwise". I was therefore slightly surprised to hear certain noble Lords suggest that there was no precedent for this. What clearer precedent could there be than those words? They were taken into the 1967 Legal Aid (Scotland) Act and repeated in extenso there.

There is good parentage for this. The purpose is quite clear, the board operates within statute. It is not to operate outside statute. The purpose of this power is simply to enable the Secretary of State to specify, if he considers it appropriate, both the stages and the classes of proceedings for which criminal legal aid will be available. This is a power which has been inherent in the legislaton since 1949 and has been inherent in the legislation, so far as it applies to criminal legal aid, since that was introduced into Scotland.

Some of the stages which are specified on the face of the Bill—for instance, in Clause 21(3)—say that criminal legal aid will be available for summary proceedings after the conclusion of the first diet at which the accused has tendered a plea of not guilty". However, the reference to stages is intended to provide a greater degree of flexibility and, for example, to make clear the stages at which, on the one hand criminal aid, and on the other hand, assistance by way of representation, may appropriately be given.

I have already explained in Committee that provisions for assistance by way of representation is made under Clause 9 and the regulations that are provided for there. Again, I wish to make it quite clear that if, as I think was suggested, perhaps a slight reductio ad absurdum, the Secretary of State were to prescribe by reference to considerations as they appear to him that all proceedings should no longer be available for criminal legal aid, I should have thought it perfectly clear that in so doing he was acting ultra vires. The purpose of these regulations is perfectly plain in my submission.

I would also point out that, like the existing power—the one to which I have referred in the 1967 Act, which is the current Act—the power under subsection (2) can be exercised only by regulations which are subject to affirmative resolution, and hence to Parliamentary scrutiny. As I have explained previously, one of the objectives of the Secretary of State is to ensure that legal aid is available where it is most required. This provision could be used as necessary to help him achieve this objective.

I do not accept that there is anything in this which is either new or which offends against any of the statements in the convention. Indeed, if this offends, so does the existing legislation. I cannot think that this would have been a point which had not been made before.

The scheme of this Part of the Bill is perfectly plain. It is one which I have pointed out before. In solemn procedure the applicant will be entitled to criminal legal aid if he establishes hardship. So far as summary criminal proceedings are concerned, they are dealt with by the terms of Clause 21(3). Of course, there is further provision for automatic availability of criminal legal aid in summary proceedings in, for instance, Clause 22, which deals with the position where the accused is in custody. Moreover, as the noble Lord, Lord Foot, pointed out, the matter is also dealt with in Clause 24 in that once an application is made it is to be dealt with on the basis of what is set out there. We shall come to another issue arising under Clause 24 in due course.

However, I must most strongly demur from the suggestions which have been made by your Lordships that there is anything unusual or strange about this subsection. For that reason I cannot give any undertaking that the Government will not proceed with the subsection in those terms.

The noble and learned Lord, Lord Silkin, made a point about the words: by reference to such considerations as appear to him to be appropriate". All I would say is that that is at least something new inasmuch as what is in the existing legislation is entirely silent, and as I indicated earlier that provision would permit the board to make certain suggestions to the Secretary of State if that were necessary.

However, as I have said, I would most strongly resist the amendment. If I may say so, some of the comments which have been made have been wholly misconceived. I find references to English procedure dangerous for me, but I am advised, in response to the point made by the noble and learned Lord, Lord Elwyn-Jones, that there is a comparable power for England and Wales in Section 7 of the Legal Aid Act 1974 in relation to civil legal aid in England. There, again, I can point even south of the Border to something which supports the provision which is made here. However, I do not do that by way of praying in aid: I merely point out that it is not something which is foreign to statute south of the Border.

Lord Morton of Shuna

We do not seem to have progressed very much since 6th March. Subsection (2) seems to me to be in an entirely different frame of mind from Section 1(2) of the Legal Aid (Scotland) Act 1967, which says: Unless and until regulations otherwise provide, the proceedings in connection with which or, in the case of legal aid mentioned in subsection 5(b) below, in contemplation of which legal aid may be given, are proceedings …". There is nothing there which gives a blanket power for the Secretary of State, if it appears to be appropriate, to do various things.

I thought that the purpose of the Bill—and perhaps I thought wrongly—was to improve the legal aid legislation and make it clearer and more appropriate. All that the noble and learned Lord the Lord Advocate seems to be able to say in defence of this subsection is that it has been in previous Acts. If I may say so, that is not a defence; it is just a statement that it has been there before—in which case, why do we need this Bill at all?

I also suggest that there is no power apparent in the Bill—and we went over this matter a fortnight ago—for the board to give the Secretary of State any advice. It is all the other way round: it is the Secretary of State who gives the board guidance, advice and directions. I regret that I cannot find the noble and learned Lord's answer satisfactory, and I must, therefore, ask that the opinion of the Committee be tested.

6.25 p.m.

On Question, Whether the said amendment (No. 51) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 76.

DIVISION NO. 1
CONTENTS
Amherst, E.	Kilbracken, L.
Brockway, L.	Kirkhill, L.
Brooks of Tremorfa, L.	Lawrence, L.
Bruce of Donington, L.	Lloyd of Kilgerran, L.
Caradon, L.	McIntosh of Haringey, L.
Carmichael of Kelvingrove, L.	Mackie of Benshie, L.
Cledwyn of Penrhos, L.	McNair, L.
Collison, L.	Meston, L.
Crawshaw of Aintree, L.	Mishcon, L.
David, B. [Teller.]	Morton of Shuna, L.
Davies of Penrhys, L.	Northfield, L.
Dean of Beswick, L.	Oram, L.
Denning, L.	Perth, E.
Elwyn-Jones, L.	Ponsonby of Shulbrede, L. [Teller.]
Ennals, L.
Evans of Claughton, L.	Prys-Davies, L.
Fisher of Rednal, B.	Ross of Marnock, L.
Foot, L.	St. Davids, V.
Gallacher, L.	Saltoun of Abernethy, Ly.
Galpern, L.	Seear, B.
Glenamara, L.	Selkirk, E.
Graham of Edmonton, L.	Silkin of Dulwich, L.
Greenway, L.	Somers, L.
Grey, E.	Stewart of Fulham, L.
Halsbury, E.	Stoddart of Swindon, L.
Hampton, L.	Strabolgi, L.
Harris of Greenwich, L.	Taylor of Mansfield, L.
Heycock, L.	Tordoff, L.
Hooson, L.	Turner of Camden, B.
Houghton of Sowerby, L.	Wallace of Coslany, L.
Hylton-Foster, B.	Wells-Pestell, L.
Jenkins of Putney, L.	Wheatley, L.
John-Mackie, L.	White, B.

NOT-CONTENTS
Airey of Abingdon, B.	Glanusk, L.
Alexander of Tunis, E.	Glenarthur, L.
Ashbourne, L.	Hailsham of Saint Marylebone, L.
Auckland, L.
Belhaven and Stenton, L.	Harmar-Nicholls, L.
Beloff, L.	Home of the Hirsel, L.
Belstead, L.	Hooper, B.
Birdwood, L.	Kaberry of Adel, L.
Blake, L.	Kimball, L.
Boardman, L.	Kimberley, E.
Boyd-Carpenter, L.	Lane-Fox, B.
Brabazon of Tara, L.	Lauderdale, E.
Bruce-Gardyne, L.	Long, V.
Caithness, E.	Lucas of Chilworth, L.
Cameron of Lochbroom, L.	Lyell, L.
Campbell of Croy, L.	McAlpine of Moffat, L.
Carnegy of Lour, B.	Mancroft, L.
Cathcart, E.	Margadale, L.
Chelwood, L.	Maude of Stratford-upon-Avon, L.
Coleraine, L.
Colwyn, L.	Merrivale, L.
Cork and Orrery, E.	Mersey, V.
Craigavon, V.	Mottistone, L.
Davidson, V.	Mountevans, L.
Denham, L. [Teller.]	Mowbray and Stourton, L.
Digby, L.	Murton of Lindisfarne, L.
Dilhorne, V.	Pender, L.
Drumalbyn, L.	Peyton of Yeovil, L.
Elliot of Harwood, B.	Reay, L.
Elphinstone, L.	Reigate, L.
Elton, L.	Renton, L.
Forester, L.	Rodney, L.
Fortescue, E.	Sanderson of Bowden, L.
Fraser of Kilmorack, L.	Shannon, E.

Skelmersdale, L.	Trumpington, B.
Swinfen, L.	Vickers, B.
Swinton, E. [Teller.]	Vivian, L.
Teynham, L.	Ward of Witley, V.
Tranmire, L.	Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.

6.33 p.m.

Lord Morton of Shuna moved Amendment No. 52.

Page 14, line 35, leave out subsection (3).

The noble Lord said: As is normal in many of the clauses of this Bill, the subsection starts with the words "Subject to regulations", and the amendment is to leave it out. It says: Subject to regulations made under this section and to sections 22 and 23 of this Act, criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion of the first diet at which the accused has tendered a plea of not guilty". This is another illustration of how the draftsman has no knowledge of the criminal procedure of the courts. It is not clear what "Subject to regulations" may mean, but the first diet at which the accused has tendered a plea of not guilty may happen about a year after the complaint has been served. One does not plead guilty if one is challenging the competence, the jurisdiction or the time within which the complaint is brought or the relevancy of the complaint; and these are all complicated issues which may make proceedings drag on for many months, if not years, before there is a question of a plea of guilty or of not guilty.

As an illustration, there was a case last week in the Criminal Appeal Court as to whether a time bar applied. That was a road traffic case in which the first attempt to serve a complaint was in March 1985; the man has not yet pleaded guilty or not guilty, and the matter has been to the Criminal Appeal Court. According to subsection (3) he would not get legal aid for that. He would get only representation, which is wholly inappropriate. I beg to move.

Lord Wheatley

There is no real excuse for the Government not knowing of the problems referred to by the noble Lord, Lord Morton of Shuna. These long delays arise out of a procedure introduced by this Government, or rather their predecessor, in the Criminal Justice (Scotland) Act 1980. You can have these preliminary hearings on primary points; a procedure we did not have before but which was introduced under that Act. That was an Act of this Government's predecessor. They should have been very much aware of that situation when framing this and of the difficulties which would arise, as referred to by the noble Lord.

The Earl of Selkirk

Are the Government wise to say that no advice is needed before pleading? One of the most important decisions in any case is whether to plead guilty or not guilty. In many cases it would be in the interests of justice to encourage people to plead guilty. It shortens the process, and in many cases it is the wiser course to take. One is leaving this entirely in the hands of an accused person, who is uninformed as to the processes of law or what they mean. Often advice on this vital issue may be of great consequence, and I wonder whether it is wise to allow legal aid or advice to come in only after that date. This is a point which requires more consideration than this subsection gives it.

Lord Denning

I should like to support the amendment. Quite often it is important for a man to have legal aid before he is called upon to plead. I cannot say anything about Scotland, but again I go back to the Widgery report. It would be impracticable to require applicants for legal aid to plead before their applications are considered, and so forth. At all events we should not have it in England, and I do not see why you should have it in Scotland.

Lord Elwyn-Jones

I should like to join this chorus of criticism. I would merely say that I should have thought that it was desirable to give the accused person the benefit of advice as soon as practicable. After all, counsel often advises a client to plead guilty if he is satisfied of his guilt and he is prepared to plead, and this would be a saving of the time of the courts.

Lord Foot

I very much hesitate to express any view about Scottish procedure, but my belief is that this clause might have exactly the opposite effect to that which is intended. If there were the same situation in the English courts I should suppose that the accused person would be advised by his solicitor to plead not guilty in order that he could get the legal aid certificate, and then perhaps change his plea at a later stage.

Lord Wilson of Langside

I find this provision somewhat puzzling, and I hope that the Lord Advocate will be able to explain it. The situation at least some years ago when I was last involved was that legal aid was immediately available before an accused appeared and tendered a plea. There may be some technical explanation, but it is difficult to comprehend what it might be.

Lord Cameron of Lochbroom

I should like, in as little detail as I can, to put your Lordships' minds at rest about the intention of this subsection. Perhaps the best way to do it would be to deal in two ways with the position under summary criminal proceedings. But, before doing so, perhaps I should make clear that this subsection is an important part of what we are intending in this part of the Bill. The arrangement whereby criminal legal aid shall not be available, subject to regulations and to Clauses 22 and 23 of the Bill (this is of some importance), is that it is not until the conclusion of the first diet for which the accused has tendered a plea of not guilty that criminal legal aid will become available. That is to assist in restricting the scope for abuse, because the accused will have to decide whether to plead guilty or not guilty before he knows whether or not he will receive criminal legal aid if he pleads not guilty.

Under present arrangements there is a risk that an accused will plead not guilty simply to increase his chances of receiving assistance in the preliminary proceedings. But what is intended here does not derogate from the protection of the accused when he chooses to plead not guilty and can justify his application for legal aid.

Your Lordships will recognise that in Clause 22, particularly subsections (1)(c) and (d), there is provision for automatic availability of criminal legal aid in advance of the first diet for a person who is in custody. The point of concern to certain of your Lordships arises in relation to a person who is out on bail. Perhaps I can best explain what is within the Bill if I deal with that accused. He will, before he is required to plead at the first diet, be entitled to automatic legal aid if he is on bail for any identification parade. That is to be found in Clauses 21(4)(b) and 22(10)(a). If financially eligible under Clause 8, he would be able to receive advice and assistance.

I think I have already outlined that a person is not barred from obtaining legal advice and assistance prior to being entitled to criminal legal aid but would be entitled to receive advice and assistance on application to a solicitor about what steps he should take in connection with a prosecution before the first diet. That will take care of the point on which I fully realise noble Lords were entitled to seek an answer about whether he should plead guilty or not guilty. Furthermore, he would be entitled to assistance by way of representation for preliminary proceedings if the solicitor thought he was eligible under the regulations under Clause 9. If he is eligible for such assistance by way of representation, having decided to plead guilty to the charge, then he would receive it for all proceedings up to the final disposal of the case, including pleas in mitigation, continuance of the case for social inquiry report, and so on.

Furthermore it is the intention that for certain preliminary pleas of the kind which the noble Lord, Lord Morton, outlined (pleas to competency and relevancy) he would also be entitled under regulations to receive assistance by way of representation, though it is possible that in such circumstances—this is unlike the case where such asssistance would be available in connection with guilty pleas—it may require the board to give its approval to such assistance.

6.45 p.m.

Within the Bill there is already provision for assistance from legal aid, but in a different form from that which is comprehended within criminal legal aid in this part of the Bill. Perhaps I should say that, in relation to preliminary pleas such as those I have outlined, this could involve the use of counsel if the board gave approval or otherwise. That is often done at the moment under legal advice and assistance—for example, obtaining counsel's opinion.

This is not in any sense a clause which intends to cut out a person's right to legal aid. It is intended to make provision by way of a kind of legal aid different from what is customary at present. As I have said already, that is to restrict the scope for abuse. But it would not cut him out from representation in the kinds of areas where noble Lords were perfectly properly expressing concern that he would not be able to be represented if eligible.

Lord Wheatley

Is it not the case that under the system that the noble and learned Lord has just outlined the legally-aided person is not receiving advice from a solicitor or counsel of his own choice? He will be dependent upon a man who will be appointed for this particular job under the Bill and he will receive representation in that sense. But he will not receive legal aid and advice from the solicitor or the counsel of his own choosing. It is because of that difference that anxiety arises, in that, if it is a question of competency or relevancy of the complaints that have been issued against him, it is then that he wants the best possible advice from a man of his own choosing.

Lord Cameron of Lochbroom

I am advised, and it was my understanding, that this person will be able to go to a solicitor of his own choosing for advice just as is the case under the present legal advice and assistance scheme.

The Earl of Selkirk

May I ask for clarification? What do the words "subject to regulations" mean? Does that mean that any article in this Bill can be changed by regulation? That is what it appears to mean. The clause reads: Subject to regulations made under", this section—that is, Clause 22. Does that mean that the actual statute is subjected to the regulations? It is important that we should know that.

Lord Cameron of Lochbroom

In a sense I have already answered this in what I said about subsection (2). The regulations which are made are those under subsection (2) and the extent and form of those regulations are focused within subsection (2). Indeed, as I am reminded, the regulations can make legal aid available, just as they might, in certain circumstances, be said to be restrictive.

Lord Ross of Marnock

But under this subsection the whole gist is to make legal aid not available. The only protection anyone will have is some possible change of derogation under the regulations that the Secretary of State may or may not produce, and in producing them he pleases himself, subject to, such considerations as appear to him to be appropriate". It would appear to me to be right, if the Secretary of State is going to depart from this blanket refusal of legal aid, that this is the time to tell us.

I am perfectly sure the Government must have some regulations in mind. It will be far better if we can have a pledge that before the next stage of the Bill the intentions in respect of the regulations should be produced. It is no good the noble and learned Lord the Lord Advocate saying, "I covered this in our discussion on the last amendment." With all due respect, I listened to him—and I am not a layman, Scots, English, Irish or Welsh for that matter—but I did not understand a word that he said. That detracted from the nature and the power that we have given to the Secretary of State in subsection (2). He has the power to do what he likes and to refuse what he likes. Here we are with one or two back-benchers and two Scots—and half the Scots voted against the Government on the last occasion, from the other side of the Committee, anyhow. And Englishmen who have never had a word to say during the debate will come trotting into the Lobby.

To my mind it is not good enough. The words used by the noble and learned Lord were, "what we are intending" and his first intention was, "to prevent abuse". That is the real purpose of this, and any good or any possible safeguard that is in this will come from regulations that we know nothing about, and we have not been told anything about them. Could the Lord Advocate try again?

Lord Cameron of Lochbroom

I am sorry that I did not make it clear earlier, but the terms of subsection (3) make it clear that the regulations and Sections 22 and 23 of the Act, so far as they apply to subsection (3), will in fact extend or may extend criminal legal aid. If one reads the subsection without those introductory words one finds that criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion, subject to regulations made under this section and to Sections 22 and 23 of this Act.

As I have pointed out, those sections in fact extend criminal legal aid in summary proceedings to procedures prior to conclusion of the first diet. It is true that they also deal with circumstances taking place after, but the effect of subsection (3) is to make criminal legal aid not available unless Clauses 22 and 23 or the regulations otherwise provide. In a sense, it is therefore a power which extends and not one which takes away.

Lord Morton of Shuna

This seems to me a very unsatisfactory reply. I am told we have to look at Clause 22(1)(c) and 22(1)(d) to find out where this helps us in Clause 21(3), which deals with the situation up to the time when the accused tenders a plea of not guilty. Clause 22(1)(d) does not seem to help because it applies to a person who has already tendered a plea of not guilty. Clause 22(1)(c) only helps the person in custody, and one hopes it is not the intention that the majority of people on summary complaints will be held in custody until they plead.

Clause 23 does not appear to help at all because it first deals with solemn procedure, which is not summary, and then where a person has obviously been found guilty or had pleaded guilty and the sheriff is considering a sentence of detention or imprisonment; so it seems to me that these sections do not really take us very far.

Perhaps I may remind the noble and learned Lord the Lord Advocate on the matter of legal aid advice and representation that he fought for and defended the provision in Clause 9(2)(e) that gives power to restrict the limit for representation to those people in receipt of supplementary benefit only. The purpose of this is apparently to prevent abuse. We keep on being told it is to prevent abuse; but what abuse is being talked about? Is it abuse for somebody who says to the Crown prosecuting him, "Prove it"? Is that abuse? Is it abuse for the solicitor investigating the case to investigate it, which he is not entitled to do if he is only doing representation, to find out what the evidence is before advising him whether to plead? If that is abuse and has to be stamped out, we are going to have very many pleas of not guilty to allow the solicitor to investigate the situation. I regret that I find the answer as unsatisfactory as before, and must test the opinion of the Committee.

6.56 p.m.

On Question, Whether the said amendment (No. 52) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 63.

DIVISION NO. 2
CONTENTS
Airedale, L.	Kilmarnock, L.
Attlee, E.	Kinloss, Ly.
Brockway, L.	Kirkhill, L.
Brooks of Tremorfa, L.	Kissin, L.
Bruce of Donington, L.	Lawrence, L.
Caradon, L.	McIntosh of Haringey, L.
Carmichael of Kelvingrove, L.	Mackie of Benshie, L.
Cledwyn of Penrhos, L.	McNair, L.
Collison, L.	Meston, L.
Crawshaw of Aintree, L.	Mishcon, L.
David, B. [Teller.]	Morton of Shuna, L.
Davies of Penrhys, L.	Northfield, L.
Dean of Beswick, L.	Perth, E.
Denning, L.	Pitt of Hampstead, L.
Elwyn-Jones, L.	Ponsonby of Shulbrede, L. [Teller.]
Ennals, L.
Evans of Claughton, L.	Ross of Marnock, L.
Ewart-Biggs, B.	Saltoun of Abernethy, Ly.
Feversham, L.	Seear, B.
Fisher of Rednal, B.	Selkirk, E.
Foot, L.	Somers, L.
Gallacher, L.	Stewart of Fulham, L.
Galpern, L.	Stoddart of Swindon, L.
Glenamara, L.	Strabolgi, L.
Graham of Edmonton, L.	Taylor of Blackburn, L.
Grey, E.	Taylor of Mansfield, L.
Hampton, L.	Tordoff, L.
Harris of Greenwich, L.	Turner of Camden, B.
Hatch of Lusby, L.	Wells-Pestell, L.
Heycock, L.	Whaddon, L.
Howie of Troon, L.	Wheatley, L.
Jenkins of Putney, L.	White, B.
John-Mackie, L.	Wilson of Langside, L.
Kilbracken, L.

NOT-CONTENTS
Airey of Abingdon, B.	Harmar-Nicholls, L.
Alexander of Tunis, E.	Home of the Hirsel, L.
Ashbourne, L.	Hooper, B.
Belhaven and Stenton, L.	Hylton-Foster, B.
Beloff, L.	Lane-Fox, B.
Belstead, L.	Lauderdale, E.
Boardman, L.	Long, V.
Boyd-Carpenter, L.	Lyell, L.
Brabazon of Tara, L.	Macleod of Borve, B.
Bridgeman, V.	Margadale, L.
Bruce-Gardyne, L.	Marshall of Leeds, L.
Cameron of Lochbroom, L.	Merrivale, L.
Carnegy of Lour, B.	Mersey, V.
Cathcart, E.	Mottistone, L.
Chelwood, L.	Mountevans, L.
Coleraine, L.	Mowbray and Stourton, L.
Colwyn, L.	Mutton of Lindisfarne, L.
Cork and Orrery, E.	Pender, L.
Craigavon, V.	Renton, L.
Davidson, V.	Rodney, L.
Denham, L. [Teller.]	St. Davids, V.
Digby, L.	Sanderson of Bowden, L.
Drumalbyn, L.	Shannon, E.
Elliot of Harwood, B.	Simon of Glaisdale, L.
Elton, L.	Skelmersdale, L.
Forester, L.	Swinfen, L.
Fortescue, E.	Swinton, E. [Teller.]
Glanusk, L.	Tranmire, L.
Glenarthur, L.	Trefgarne, L.
Hailsham of Saint Marylebone, L.	Trumpington, B.
	Vickers, B.
Halsbury, E.	Ypres, E.

Resolved in the affirmative, and amendment agreed to accordingly.

7.4 p.m.

Lord Morton of Shuna moved Amendment No. 53: Page 14, line 42, leave out ("(so far as necessary)").

The noble Lord said: I shall be very short on this amendment. The provision calls for criminal legal aid to consist of representation by solicitors "so far as necessary". We discussed the point as regards civil legal aid on a previous amendment. "So far as necessary" seems unnecessarily restrictive. "Where appropriate" would seem to be a better form of words if the phrase is not left out entirely, as the amendment suggests. I beg to move.

Lord Cameron of Lochbroom

As the noble Lord has indicated, this is a phrase which is common to civil and criminal legal aid. I undertook to consider the wording with regard to civil legal aid. I shall give the same consideration to this phrase. It is right to say that it is a phrase which has appeared since 1949. I am not aware of it having given any difficulty in the granting of legal aid. I undertook to consider the wording last time and, equally, I shall consider it this time as well.

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. 54:

Page 15, line 6, at end insert— ("( ) The grant of legal aid under the provisions of section 23 of this act shall without prejudice to the provisions of this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provisions of section 76A and section 105(5) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspension against the granting of any incidental warrant; and the grant of criminal legal aid under the provisions of section 24 of this Act shall without prejudice to this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provision of sections 331A(3) and section 334(2A) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspension against the granting of any incidental warrant.").

The noble Lord said: The purpose of the amendment is to provide that legal aid under Clause 23 should be available for the type of appeal that may arise prior to a plea of not guilty in a summary case. It is the type of appeal to which I referred earlier relating to jurisdiction, time bar or something of that nature. The purpose of this fairly long amendment is to provide that legal aid would cover such an appeal. I hope that the amendment will be acceptable. I beg to move.

Lord Cameron of Lochbroom

The Bill as drafted is intended to achieve the result which the noble Lord has indicated in this amendment. I am generally confident that the terms of Clauses 23 and 24, as they stand, secure that result but I am perfectly happy to look again at the terms of the Bill in the light of what he has just said and the examples that he has given.

I am always concerned, when one has particular examples, that by reference to the brocard inclusio unius exclusio alterius one may have done more damage than good. I should also say that if there were any doubt, there is the possibility that the Secretary of State could clarify the position by regulation under Clause 36(2)(c) by providing that such proceedings are not separate proceedings for the purpose of legal aid. I accept that we want to be quite clear that those fall within the provisions of the Bill, and if the noble Lord will accept the reassurance that I shall look at the Bill in the light of what is in the amendment, I hope that he will feel able to withdraw the amendment.

Lord Morton of Shuna

If the noble and learned Lord is going to adopt that friendly attitude, certainly. I assure him that I should not have put down the amendment if I had not thought that there was a possibility that the matter was not covered by Clauses 23 and 24. However, if he will look at it again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21, as amended, agreed to.

Clause 22 [Automatic availability of crimininal legal aid]:

Lord Morton of Shuna moved Amendment No. 55: Page 15, line 24, after ("of;") insert ("or "(iii) where he is unfit to plead until his case is finally disposed of;")

The noble Lord said: This, again, is a fairly technical amendment and certainly is not a party political one. It appears that there is an omission from Clause 22 of the situation where a person is unable to plead, and the purpose of Amendment No. 55 is to cover that situation. Somebody may well be unfit to plead through mental illness, and that situation does not seem to have been covered. I beg to move.

Lord Cameron of Lochbroom

I entirely accept the desirability of the result which the noble Lord wishes to achieve, but in this instance I would reassure him that his amendment is not necessary. Clause 22(1)(c)(i) provides that a person in custody on a summary charge is eligible for automatic legal aid, until the conclusion of the first diet at which he tenders a plea of guilty or not guilty". If the accused is unfit to plead, then by definition that terminus will not be reached and he will continue to be eligible for automatic legal aid until his case is finally disposed of. With that explanation, perhaps the noble Lord will wish to withdraw the amendment.

Lord Morton of Shuna

I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 56: Page 15, line 25, after ("custody") insert ("or liberated by the police in terms of section 8 of the Bail etc. (Scotland) Act 1980")

The noble Lord said: This is an amendment which, I hope, has more merit to it. The purpose is to add after the word "custody", in line 25, the words, or liberated by the police in terms of section 8 of the Bail etc. (Scotland) Act 1980. The position under the 1980 Act is that persons are released by the police on giving an undertaking to attend the court and are treated as notional custody cases. The intention of the Bail etc. (Scotland) Act was that people should not be detained in police stations awaiting appearance in court if that was at all possible. But it did not reduce the seriousness of the crimes with which persons were charged. These people are, in some views, technically in custody and they should, even if they have been released under Section 8, have the benefit of the provisions of subsection (1)(d), which is what the amendment is designed to achieve. I beg to move.

Lord Cameron of Lochbroom

I have some difficulty in understanding this amendment as it is presently proposed, because it appears in a sub-paragraph which requires a person to be in custody and to be being prosecuted under summary procedure where he has already tendered a plea of not guilty. I suspect that what the noble Lord probably had in mind was for this to be placed in sub-paragraph (c), but even if that be so I cannot agree with the intention behind the amendment.

Since the introduction of criminal legal aid, it has been thought right to make special provision for the representation of persons held in custody. The reasons for this are obvious, and the present Bill continues that special provision. But a person who, having been arrested, is then liberated by the police under Section 8 of the Bail etc. (Scotland) Act is, of course, not in custody any more than a person who is granted bail by the court is in custody. In general, I can see no reason why he should be treated as if he is. Such a person could, of course, be able, if he were eligible, to obtain advice and assistance from a solicitor, and if he pleaded not guilty to apply to the board for legal aid.

However, that said, I take the point that it might be said that, in some circumstances, the time available to a person who has been liberated by the police after giving an undertaking to appear in court next day, or shortly thereafterwards, may be so short, in practice, as to make it difficult for him to consult a solicitor in the normal way, and in such cases I can see that it might be appropriate to make legal aid available through the duty solicitor.

I should like to make some further inquiry into this, and if it appears that any changes in the terms of the Bill may be needed we shall consider bringing forward an appropriate amendment at a later stage. But I repeat that I do not think it can be appropriate to make the services of the duty solicitor available to every person who obtains interim police liberation, because, as I think the noble Lord will know, it is sometimes given without any undertaking at all in relation to appearance in court. But I am grateful to the noble Lord for having brought this matter before the Committee.

Lord Morton of Shuna

In those circumstances, and with that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Lord Morton of Shuna moved Amendment No. 57: Page 15, line 35, at end insert ("and in connection with any appeal to the High Court of Justiciary under the provisions of section 334(2A) of the Criminal Procedure (Scotland) Act 1975").

The noble Lord said: This is an amendment which I think is important, and I hope that it will be accepted. It is to add at the end of line 35 the provision that criminal legal aid will cover any appeal to the High Court. Subsection (2) provides that criminal legal aid made available should also be available in connection with any steps or representations in connection with an application for liberation, but, of course, there are also situations prior to the plea of guilty or not guilty where there may be an appeal. I am sure it is the intention of the Government that legal aid will cover that, but it does not appear to have been specifically covered and the reference to applications for liberation suggests that the intention is that it should not be covered. I beg to move.

Lord Cameron of Lochbroom

I accept that the automatic legal aid under Clause 22 should be wide enough to cover such appeals which derive from a section of the 1975 Act which gives the right of appeal to the High Court against a decision on a preliminary objection in summary proceedings. It may be—and, indeed, I would accept—that Clause 22 as it stands may not achieve that result since, as the noble Lord has said, an appeal can normally be taken only prior to the accused stating how he pleads to the charge. That being so, I should like to consider the position further. I am not entirely satisfied that it would be appropriate to do it by the means which this amendment suggests, and I will bring forward any necessary amendment at a later stage to make the matter clear.

The Earl of Selkirk

May I ask my noble and learned friend whether I am right in saying that in solemn procedure legal aid will be automatic and in any case coming before the High Court of Justiciary? I understand that this Bill is very complicated, marred by masses of regulations, and it is extremely difficult to know how far this goes, But I understood that that position, at least, was clear.

Lord Cameron of Lochbroom

Perhaps I may respond to my noble friend and in so doing correct something that I think I mistakenly stated earlier, because appeals of this kind are taken after the accused has stated how he pleads to the charge under the necessary act of adjournal. It is one of the curiosities. But that does not in any way cause me to change what I have already undertaken to do.

In response to my noble friend, perhaps I should say that we are talking here about a right of appeal to the Court of Criminal Appeal in relation to summary proceedings on a preliminary matter. That is not covered by the terms of Clause 25. We are not dealing, however, with the issue of the provision of legal aid in solemn procedure before the High Court itself. I hope that that clarifies the position for my noble friend.

Lord Morton of Shuna

Subject to the observation that there are appeals to the High Court before a plea of guilty or not guilty is tendered, and in the light of the noble and learned Lord's remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Power of the court to grant legal aid]:

Lord Morton of Shuna moved Amendment No.58: Page 15, line 39, after ("procedure") insert ("and shall continue to be available notwithstanding the reduction of the procedure to summary proceedings")

The noble Lord said: This amendment is designed to cover the situation where proceedings start off as solemn proceedings and then the Crown decides to reduce them to summary proceedings. If legal aid is granted to the person being prosecuted under solemn procedure, the same legal aid certificate should cover the proceedings as they continue as summary. I beg to move.

Lord Cameron of Lochbroom

I must ask the Committee not to accept this amendment. The view which I suggest is a proper one is that where there has been a material change in the reduction of a charge to summary procedure, it is appropriate that the situation should be reviewed and decided in accordance with rules relevant to summary procedure. It may be that such cases are among the comparatively serious ones which are dealt with by summary procedure, but this will not always be so. There is really no good reason why they should not be tested by the same criteria as apply in other summary cases. These are primarily interests of justice and financial hardship.

I suggest that it would be unfair if all summary cases were not dealt with according to the same criteria. If the accused is in custody he would of course have the assistance of the duty solicitor both for preliminary proceedings and for the preparation of his application for criminal legal aid. In these circumstances, I cannot accept this amendment, and in the light of what I have said I would invite the noble Lord to withdraw it.

Lord Morton of Shuna

I have no wish to divide the Committee on this amendment. Subject to the remark that I may possibly return with this later, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 59: Page 16, line 4 at end insert ("or ("( ) where the court is satisfied that having regard to the interests of witnesses, of the court, of the accused or for any other reason it is appropriate that the accused person should be represented").

The noble Lord said: This amendment gives the court power: where the court is satisfied that having regard to the interests of witnesses, of the court, of the accused or for any other reason it is appropriate that the accused person should be represented". Circumstances may well arise, such as where somebody who has not consulted a lawyer turns up on a fairly serious charge involving children as witnesses who would otherwise be subject to cross-examination by the accused, or even an accused with a speech impediment, in which the sheriff or the magistrate may wish for the good of the court and for other people mentioned that the accused person be represented. There should be power for this to be able to happen. I beg to move.

Lord Cameron of Lochbroom

I can understand the reasons which are put forward for suggesting that summary courts should be given this reserve power. We did consult the sheriffs, among others, on the desirability of including a power which would be similar to that in Section 2(4) of the Legal Aid (Scotland) Act 1967. They made it abundantly plain that they would not welcome it. Indeed they took the view that it would be quite inappropriate for them to be involved under new arrangements in considering applications for legal aid. Clearly this would prove particularly awkward in cases where an accused might with good reason have been refused legal aid by the board, and in the event it would clearly be undesirable if two separate ways of applying for legal aid were practicable. In general it seems reasonable that those who wish legal aid should have to apply for it in the normal way. There is already on the statute book the section to which I have referred. I understand indeed that under the present arrangements very little use has been made of it.

If after the experience of the new arrangements the courts were to find that it would be useful for them to be able to authorise a solicitor to act for the accused in specified circumstances, I am sure that my right honourable and learned friend the Secretary of State would be prepared to consider whether assistance by way of representation might, for example, be provided by the duty solicitor.

I make it clear that there is still provision in an appropriate case where an application has not already been made, if the court permits it, to adjourn to allow such an application to be made. But the amendment as it is presently framed is clearly inappropriate and inconsistent with the new arrangements. I therefore cannot accept it as it stands for the reasons stated.

Lord Morton of Shuna

I regret that the noble and learned Lord the Lord Advocate seemed entirely to have missed the point of the amendment. It was not a case where the man would make an application; it is where the sheriff would consider it in the interests of the witnesses or the court that the man should have representation. The noble and learned Lord has not really dealt with that situation. It is where you have, say, a person accused of molestation of children. You do not want him to cross-examine the prosecution witnesses who are children. That is the type of situation which the amendment has in mind.

Lord Cameron of Lochbroom

My response to that must be a slightly different one. If an accused person chooses to represent himself—I remind the noble Lord of the convention to which he referred earlier in debate this afternoon—the court is not entitled to force representation upon him. I understood the point that the noble Lord was putting forward. This matter has been discussed with the sheriffs and they are not willing to take it on.

Lord Morton of Shuna

Under those circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 60: Page 16, line 19, at end insert— ("(3) Any grant of criminal legal aid under the provisions of subsection (1)(a) of this section shall, without predudice to section 21(4) above extend to respresentation of all diets in the case at first instance and for any appeal arising therefrom under the provisions of section 76A and section 101(5) of the Criminal Procedure (Scotland) Act 1975 including any appeal by way of Bill of Suspension against the granting of any incidental warrant.").

The noble Lord said: This is another of the amendments which is intended to cover the question of the incidental appeal. I presume that the remarks of the noble and learned Lord the Lord Advocate on previous amendments of this type would cover it. I beg to move.

Lord Cameron of Lochbroom

I am happy to give that assurance.

Lord Morton of Shuna

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 [Legal aid in summary proceedings]:

Lord Morton of Shuna moved Amendment No. 61: Page 16, line 20, leave out from beginning to ("criminal") in line 22.

The noble Lord said: This is a fairly drastic amendment and I have no doubt that the noble and learned Lord the Lord Advocate will not be happy with it. It seeks to take out the first three lines, so that subsection (1) would begin: Criminal legal aid shall be available to an accused person in summary proceedings on an application made to the board". It would remove the words "Subject to regulations" etc. That is the intention of the amendment. I beg to move.

7.30 p.m.

Lord Cameron of Lochbroom

I must make it clear that I cannot ask the Committee to accept this amendment. It follows on from Clause 21(2), and in the circumstances, and as I have already made my position clear on that matter, I ask the noble Lord to withdraw his amendment.

Lord Morton of Shuna

We have already virtually had a vote on this matter and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Renton)

Before calling Amendment No. 62, I must point out that if it is agreed to, I cannot call Amendments Nos. 63 and 64.

Lord Morton of Shuna moved Amendment No. 62: Page 16, line 28, leave out from ("dependants") to end of line 40.

The noble Lord said: Amendments Nos. 62, 63 and 64 are all connected. Clause 24 provides that legal aid is to be granted if the board is satisfied: (a) after consideration of the financial circumstances of the accused person and, (b) that in all the circumstances of the case it is in the interests of justice". Subsection (3) provides that regulations may prescribe factors to be taken into account … in determining whether it is in the interests of justice".

The purpose of Amendment No. 62 is to make legal aid available only on the basis of the financial circumstances of the accused person. In my submission, such is the appropriate test. It would mean leaving out the whole issue of the interests of justice, because it is in the interests of justice that somebody who is incapable but without financial hardship should be defended or represented when facing a criminal charge. It is, therefore, unnecessary to cite all the factors that may render the question of interests of justice necessary, because representation is by itself in the interests of justice if the person concerned wishes such representation.

If Amendment No. 62 does not appeal to the Committee, then Amendment No. 63 is an attempt to narrate what might be the interests of justice. It states in paragraph (a) that legal aid shall be provided where, the accused supplies with his application"Ĥ that is, of course, for the board or whichever unknown person will be dealing with the matter on behalf of the boardĤ a statement of his defence which if held true by the Court would be bound"Ĥ and I emphasise the word "bound"Ĥ to result in the accused's acquittal of all or any of the charges libelled or in the deletion of any material part of a charge, or"Ĥ and paragraph (b) continues it appears on the basis of information supplied … that the accused will not be able to follow the proceedings". Paragraphs (b), (c), (d) and (e) are really restatements of the Widgery committee's basis of whether legal aid should be granted. The addition of (a) is perhaps the most vital alteration: What is there is, in my submission, appropriate, because if the court would be bound if the defence was accepted to result in the accused's acquittal", then he must have a probable cause and he must have the interests of justice in favour of him being represented.

Subsection (3) states: The Board may determine that it is in the interests of justice that legal aid be granted in such other circumstances as they see fit", That is an attempt to define the matter in the Bill. In my submission, it is in the primary legislation that it is appropriate, if the interests of justice are to be defined anywhere, that the factors should be defined—and not in regulations.

Amendment No. 64 is to leave out the power to make regulations prescribing factors. The effect of that amendment would be to leave the legal aid situation as it is at present; that the body deciding whether legal aid should be granted must consider whether it is in the interests of justice, and it has that power of consideration without anybody telling it what are the factors that it must take into account when it makes up its mind. My belief is that the best answer is Amendment No. 62, and it is that amendment that I now beg to move.

Lord Cameron of Lochbroom

I shall follow the noble Lord in speaking to all three amendments. In providing that summary criminal legal aid will be available only where that is in the interests of justice, the Bill merely preserves the effect of the existing legislation. It does not seem reasonable that legal aid should be available for any and every offence, including, for example, minor motoring offences where the accused would often not wish even to appear on his own behalf. On the other hand, there is no disagreement between myself and the noble Lord opposite that legal aid should be provided for financially eligible accused who face grave charges that put them at serious risk of loss of liberty or livelihood.

It is for that reason that the interests of justice criterion is not applied for solemn procedure cases, since a case under solemn procedure is by definition a grave one. Conversely, the fact that the interests of justice criterion does not apply to solemn procedure does not in itself provide a rationale for not applying it to summary cases.

The chief criticism of the existing application of the interests of justice tests by the courts has been inconsistent interpretation. In summary courts, award rates for summary legal aid vary from just under 60 per cent. to almost 100 per cent. Giving to the board the responsibility for applying the tests is designed to ensure that the tests are applied with a greater degree of consistency.

It seems necessary to define what factors are relevant when applying the tests of interests of justice in order to help the board to achieve such consistency. At present that is done under the Bill by regulations that are subject to affirmative resolution, and hence to parliamentary scrutiny. That would be an advance on the present position, where criteria have been issued to district courts but only as non-statutory guidance. I therefore strongly suggest that the interests of justice tests must be preserved for summary procedure and that the factors determining them should be defined to ensure consistency.

I accept that the factors determining the interests of justice are sufficiently important to require parliamentary scrutiny. However, it must be possible to alter them by regulations subject to the affirmative procedure in order to give the necessary flexibility that will allow them to be changed where practical experience demonstrates the need for that, or to take account, for example, of changes in criminal procedure.

In view of the concern that has been expressed on this matter, my right honourable friend the Secretary of State is prepared to consider setting out the factors in the Bill itself, with provision for amendment by regulations subject to affirmative resolution. Since the preparation of such an amendment, which will take account of the views expressed on consultation and also in your Lordships' House, may take some time, it will have to be made in another place.

The Secretary of State has not yet decided what the factors should be, although they may include some items that are similar to those contained in Amendment No. 63. I wish to say that as a result of the consultations undertaken last year, my right honourable friend has decided that the grant of legal aid should not depend on the accused's criminal record.

In the light of those statements, it may be that the noble Lord will feel able to withdraw his amendment. I must make it clear that I resist the loss of the interests of justice criteria. I believe that I have made a reasonable response to the views that have been expressed forcibly in the Committee and in previous debates.

The Earl of Selkirk

May I draw attention to this aspect? You appoint a board to look after matters. You then have regulations explaining what the "interests of justice" are. Is that not precisely what the board is set up for? If the board does not know what are the interests of justice, then you want another board. I feel that subsection (3) goes a little far in demonstrating the complete domination of the board by the Secretary of State. That is a criticism which runs right through this Bill and I must say that I find the position unacceptable.

Lord Foot

May I say a few words in support of that proposition? Subsection (3) does not enable the Secretary of State merely to advise the board or give the board guidance as to how it should interpret the words "in the interests of justice". It says that the Secretary of State "may prescribe" the factors, which will be absolutely binding. There will be no discretion left in the board at all.

There is another matter which I hope the noble and learned Lord will be prepared to consider. As I understand it, he said it was the intention to prepare regulations to try to indicate what is considered to be "in the interests of justice". However, the noble Lord, Lord Morton, in commending Amendment No. 63, said that these largely followed the Widgery conditions. I do not think that is quite right. I think that, as a matter of fact, the noble Lord's amendment is an improvement on the Widgery conditions. One of the considerations in the Widgery list is whether the accused person is in any serious danger of losing his liberty. That is a question which has caused, in my experience, very considerable difficulty in the magistrates' courts in England and Wales, because it is often very difficult to ascertain before the case is heard whether the person is in such risk or not, particularly as you do not know whether he has any previous convictions, and so on. Therefore, I hope that when these regulations appear in the other place they will be an improvement on the Widgery conditions.

Lord Cameron of Lochbroom

May I respond to what the noble Lord, Lord Foot, has just said? I was trying to make clear that factors which would be relevant for the board to consider in relation to an application for legal aid will, in fact, be incorporated within the Bill itself. However, allied to that would be a further provision for power to alter those factors by regulations which will be subject to affirmative resolution. I make clear that I have noted what the noble Lord said about the factors suggested. I have some criticisms of them but it is valuable to have them to study before my right honourable and learned friend considers his position in another place.

Lord Morton of Shuna

It clearly would be better to have the factors if we must have factors in the Bill. On the basis of the Government's position I ask leave to withdraw the amendment. If it is in order to do so, I state now that I shall not be moving Amendments Nos. 63 and 64.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 and 64 not moved.]

7.45 p.m.

Lord Morton of Shuna moved Amendment No. 65:

Page 16, line 40, at end insert— ("( ) The Board shall provide a method of appeal against the refusal by the Board of Criminal Legal Aid under this section.")

The noble Lord said: We dealt with this at our previous sitting. It is absolutely essential that there should be some method of appeal against the refusal of legal aid. Since the previous Committee sitting on this Bill it has come to my notice that permanent staff of the legal aid authorities have provided to the Home and Health Department a method of appeal that could readily be operated with no material delay so that appeals against refusal of legal aid would be decided within a week. It is inappropriate that there should be no right of appeal.

One of the difficulties of the previous system was that sheriffs were refusing legal aid and there were complaints that their decisions were wrong. What will happen now is that faceless reporters will make these decisions with nobody having the right of appeal. At least on recent occasions where a sheriff gave reasons why he was not granting legal aid the results were dealt with by the criminal appeal court. It is difficult to see how anyone can deal with this unless there is a method of appeal against refusal of legal aid. I beg to move.

Lord Cameron of Lochbroom

In a sense I have already set out the Government's position on this matter. At present there is no appeal against the refusal of criminal legal aid and I am not aware of that fact in itself having given rise to concern. The issue, which has always been of extreme concern to those who have commented upon the consultation paper, was that delays in the granting of legal aid should be avoided at all costs. A review of procedure would be most likely to lead to delays even on the basis of a fairly rapid review procedure.

I am advised that certain proposals were put forward about a suggested review procedure, but I am told that what was proposed was not practical. The review procedure which is likely to lead to delays and the postponement of trial dates cannot be in the interests of the accused or the general interests of the public. The issue which has given rise to the change in the procedure for granting applications for criminal legal aid is to secure consistency. We are having an independent board with legally qualified persons instead of a multitude of courts. The board will be able to issue guidance to its reporters to secure that there is consistency. Indeed, it will be able to consider difficult cases at first instance in order to ensure consistent standards in dealing with all applications, including those granted at first application.

I am not persuaded, I regret to say, that it is essential to provide a method of appeal. Certainly it is provided for in civil cases; indeed, I have already explained about that in our earlier discussions. However, I should point out that, leaving aside the consistency which we are hoping to achieve by the use of the board and the internal guidance which a board can give, there is of course in criminal cases no other party to contest the award of legal aid, since it would be quite inappropriate for the procurator fiscal to do so.

Where legal aid is refused it may well be open in appropriate cases for the accused to submit a fresh application if he can produce relevant new material in support of it. Apart from that, I cannot accept the suggestion in this amendment that there shall be a method of appeal provided against refusal of criminal legal aid by the board.

The noble Lord opposite talked about a faceless reporter, but if the reporter is faceless, then is the Appeal Committee to be any the less faceless—if one uses the term "faceless"? No, one has to trust the judgment of a properly appointed reporter, with the provision that the board may give proper guidance in these cases in order to secure expedition. Therefore I strongly resist this amendment.

Lord Morton of Shuna

This is a wholly unsatisfactory position, but I do not wish to take up more of the Committee's time. Who says that this scheme which was produced by the legal aid authorities is impracticable? If it is only the Home and Health Department, have they told the people who put forward the scheme that it is impracticable? The scheme's proponents certainly consider that it is perfectly practicable. My understanding is that nobody has ever asked the writer of the scheme any questions whatever about it. I think that the best I can do is to say that I may well return to this matter at Report stage and ask leave now to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 [Legal aid in appeals]:

Lord Morton of Shuna had given notice of his intention to move Amendment No. 66: Page 17, line 26, after ("otherwise)") insert ("and to all appeals by way of Bill of Suspension or Advocation.").

The noble Lord said: Perhaps I can deal with this amendment in shorthand and say that this is another of the appeal provisions which is perhaps covered by what the noble and learned Lord the Lord Advocate said he would do about these appeals. I trust that this is covered by the undertaking that the noble and learned Lord the Lord Advocate gave about appeals.

[Amendment No. 66 not moved.]

Clause 25 agreed to.

Lord Morton of Shuna moved Amendment No. 67:

After Clause 25, insert the following new clause:

("Accused person's right.

. Where a doubt arises whether criminal legal aid should be made available to an accused person the doubt shall be resolved in that person's favour.").

The noble Lord said: This is a clause which I am informed is in the English and Welsh legal aid provisions. It only gives the balance of doubt in favour of the accused if there is such a doubt. I beg to move.

Lord Cameron of Lochbroom

I explained at Second Reading that there are some very significant differences both in criminal procedure and in the arrangements for criminal legal aid north and south of the Border. I cannot claim to be familiar with Part II of the Legal Aid Act 1974 and the way in which it operates, but it is quite clear that there would be dangers in seeking to import piecemeal elements of the English arrangements into the Scottish ones or, I suppose it might be said, vice versa.

Scotland has operated successfully without such a provision since the inception of legal aid, and I see no reason for importing it now. In Scotland the court or, under the new arrangements, the court or the board must be satisfied that certain criteria are met. It seems right that the onus should be on the applicant to produce the relevant material so to satisfy the court or the board.

I do not know how the English arrangements operate in practice, but in a Scottish context there would seem to be risks in incorporating a benefit of the doubt provision. Quite apart from the inconsistency with the requirement on the body making the decision to satisfy itself on various points before granting an application, arguably it could encourage less precise applications on the basis that the applicant should be given the benefit of any doubt. It is clearly more satisfactory that the decision-making body should not grant a certificate unless it is satisfied that the relevant criteria are met. I remind the Committee that we are hoping to incorporate certain factors in relation to the grant of criminal legal aid within the Bill itself. I suggest that this provision from English statute could not readily be accommodated in the Scottish arrangements, and accordingly that it should be rejected.

Lord Wheatley

I should like the noble and learned Lord the Lord Advocate to be more explicit about the reasons why this could not be done. It would seem that this is another instance of an accused person not enjoying the benefit of the doubt. Instead of dealing with technicalities of procedure, I think that this is a matter which ought to be decided on broad general principles. If, therefore, it is the broad general principle in England and Wales that if there is a doubt the applicant should get the benefit of it, then I fail to see why this principle should not apply equally in Scotland.

I have to repeat the question I have posed time and again during the passage of this Bill. What is it that exists in England which enables certain things to be done which does not exist in Scotland? What are the difficulties in the Scottish procedure which make a principle which can be adopted in England—a procedure which the noble and learned Lord the Lord Advocate confesses he knows nothing at all about—a principle which would not work in Scotland? I ask why.

Lord Cameron of Lochbroom

With respect to the noble and learned Lord, I thought I had indicated the principle upon which the Scottish arrangements have operated in the past and will continue to do so; namely, that the applicant brings before the decision-making body, which is currently the Law Society acting through the Central Legal Aid Committee and its committees, material upon which they may grant an application having regard to the criteria set out. I pointed out that if one sets out the criteria, then in my submission there is no need to add a benefit of the doubt principle in addition, particularly since, as I have made quite clear, it could encourage less precise applications on the basis that the applicant would then be given the benefit of any doubt.

If there are criteria and these are spelled out in the Bill, it seems appropriate to require the applicant in the first place to satisfy the board that he falls within those criteria. The benefit of the doubt, in my submission, is not a principle which need be brought into the Scottish arrangements.

Lord Morton of Shuna

I had thought that up to now criminal legal aid was not granted by the Law Society at all but was granted by the court, except in the case of applications for criminal appeals.

Lord Cameron of Lochbroom

I apologise to the noble Lord. My mind wandered to an earlier part of this Bill. The noble Lord is absolutely right; it is of course the courts.

Lord Morton of Shuna

This only applies to criminal cases, as is obvious. If the person is given the benefit of the doubt as to whether or not he is guilty, it is very difficult to see why he should not be given the benefit of the doubt when one is considering at an early stage whether he has a reasonable chance, if I can put it in non-technical language, of succeeding in beating off the accusation of the Crown that he is guilty. I really cannot see why it can be fair that in England, where a doubt arises as to whether criminal legal aid should be made available to an accused person, the doubt should be resolved in that person's favour, yet the same citizen of the same United Kingdom who happens to live in Scotland should have the onus placed the other way. It seems to me to be a totally unsatisfactory situation, to which I may return at a later stage, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 68:

After Clause 25, insert the following new clause:

("Legal Aid Appeals Committee.

.—(1) In the event of an application for criminal legal aid being refused, an accused person shall have the right to appeal to the "Legal Aid Appeals Committee".

(2) The Legal Aid Appeals Committee shall comprise not less than 5 persons appointed by the Lord President of the Court of Session.

(3) The Legal Aid Appeals Committee shall have the powers to make criminal legal aid available in the same way as it could have been made available by the Court or the Board.").

The noble Lord said: This is another method of attempting to give a right of appeal for criminal legal aid, and in the light of what the noble and learned Lord the Lord Advocate has said earlier I do not propose to move the amendment in the assurance that one or other of my amendments may come back at Report stage.

[Amendment No. 68 not moved.]

8 p.m.

Lord Morton of Shuna moved Amendment No. 69:

After Clause 25, insert the following new clause:

("Prosecution under 1975 Act.

.—(1) In all cases in which the High Court of Justicary authorises a new prosecution of a person under the provisions of sections 255 or 452B of the Criminal Procedure (Scotland) Act 1975, and such a prosecution is instituted against him, that person shall be entitled to criminal legal aid in terms of this Act.

(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the court in which such a prosecution is instituted, and the court shall grant his application forthwith without regard to his resources or to any other criteria.").

The noble Lord said: This is one of those provisions to provide for legal aid where the High Court authorises a new prosecution. It may be that under the old prosecution you did not have legal aid, but something went wrong with that and it went on appeal to the court which ordered a retrial. It would seem appropriate in these fairly new proceedings in Scotland of a retrial that there should be an automatic right to legal aid. I beg to move.

Lord Wheatley

If I speak now, it might give the Lord Advocate the opportunity of dealing with the points raised in favour of this amendment. I have some personal experience of this procedure which was introduced under the Criminal Justice Act 1983 of allowing new trials to take place in given circumstances in Scotland. This situation presupposes that the accused person has been found guilty and that for some reason or another the Court of Appeal has found that there has been a miscarriage of justice, because it is a prerequisite to allowing the Lord Advocate to re-indict and therefore bring about a new trial that he is so advised that there has been a miscarriage of justice, which is the only remaining ground of appeal so far as criminal appeal is concerned.

It may take various forms. I have presided over courts which have ordered such a new trial; and the manifestly clear case which we have had to deal with more than once is when the trial judge in an indictable case has given a misdirection in law to the jury. There is nobody at fault except the judge in that case. The prosecution has not been at fault; the defence has not been at fault; and, most particularly, the accused has not been at fault. If in those circumstances, instead of quashing the conviction, which is another alternative, the criminal appeal court puts aside the verdict of the court below and authorises the Lord Advocate to bring a fresh indictment, if so advised, in that situation it seems manifest on any aspect of justice that the accused who is innocent of the situation which has arisen should be provided with legal aid automatically. For that reason and by way of that illustration, I ask the Lord Advocate to accept this amendment.

Lord Cameron of Lochbroom

I have listened with great care to what both the noble Lord and the noble and learned Lord have said. The situation is that the indictment in the new trial may not be in precisely the same form as the indictment in the original trial. I have personal experience of that, where, for instance, a murder charge was, to be fair, reduced by the jury on conviction to culpable homicide, and it was a charge of culpable homicide which was then on the indictment in the new trial. In some sense, if that is so, and that can arise in regard to the new indictment, it would suggest that there should be a fresh application for legal aid if it be a matter for the board rather than the court. If it is in the High Court or solemn procedure, it will follow the normal procedure whereby the court would grant legal aid.

I should like to consider the position in the light of what has been said. I am not entirely persuaded that this is a case where there should be automatic grant. I accept, however, that these are matters which I trust will be comparatively rare. With that assurance, perhaps the noble Lord might at this stage wish to withdraw the amendment. There are certain difficulties which I conceive of.

Lord Wheatley

Before the noble Lord withdraws the amendment, may I say a word or two in answer to that point? I remind the Lord Advocate, because we have both been involved possibly in the same case where this has arisen, that, while it is a matter for a new indictment when the Lord Advocate has been authorised by the appeal court to formulate a new indictment if so advised, so far as the accused person is concerned he has been put in double jeopardy. In the first place, you could say it was his own fault because he may have committed the offence, but on the second occasion he is brought to trial not because of anything he had done but ex hypothesi, taking the situation I have given, as a result of a mistake by the presiding judge. That is an entirely different situation, and anyone who is put in that position in all fairness should certainly be given legal aid. I trust the noble and learned Lord will keep that in mind when he is reconsidering the position.

Lord Morton of Shuna

In the light of the Lord Advocate's position, I beg leave to withdraw that amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 70:

After Clause 25, insert the following new clause:

("Legal Aid in High Court.

.—(1) Where the Secretary of State has exercised his powers under section 263 of the Criminal Procedure (Scotland) Act 1975 to refer the case of a person to the High Court of Justiciary, such a person shall be entitled to criminal legal aid in terms of this Act.

(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the Board, which shall grant his application forthwith without regard to his resources or to any other criteria.").

The noble Lord said: I am sure this is an amendment which the noble and learned Lord will accept because it saves him money. There is an error, for which I apologise. It should be Section 263A of the Criminal Procedure (Scotland) Act which provides for the Lord Advocate's reference, and in the case of a person who has been tried on indictment and acquitted, the Lord Advocate can refer a point of law to the High Court and the person acquitted has a right to be heard at the appeal. The provisions of this amendment are that he should get legal aid for it. I imagine that would save the Lord Advocate money, because if he is represented, Section 263A(4) provides that the cost of representation under this section shall be paid by the Lord Advocate. I beg to move.

Lord Cameron of Lochbroom

I agree that a person whose case is referred to the High Court by the Secretary of State for consideration under Section 263 of the 1975 Act should be eligible to apply for criminal legal aid as for an appeal. It is not clear that the Bill presently allows for this, and I shall, if on consideration clarification seems to be needed, bring forward an appropriate amendment to Clause 25 at a later stage.

Lord Morton of Shuna

In that situation, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Employment to which Part V applies]:

Lord Cameron of Lochbroom moved Amendment No. 71: Page 17, line 36, at end insert ("by regulations made under this section").

The noble and learned Lord said: This is a drafting amendment. It makes clear that the prescription of any particular cases to which it is intended the provisions of Clause 26(1)(b) are to apply is to be made by the Secretary of State by means of regulations. I beg to move.

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clauses 27 and 28 agreed to.

Clause 29 [Legal aid in certain proceedings relating to children]:

Lord Morton of Shuna moved Amendment No. 72:

Page 20, leave out lines 4 and 5.

The noble Lord said: This clause deals with legal aid for children. It provides for legal aid to be available on application to the sheriff, if the sheriff is satisfied that it is necessary in the interests of the child that legal aid be made available". There then follows the financial provision. In my submission, when dealing with children, one should not have to consider that it is necessary in the interests of the child. It would always be in the interests of the child that legal aid should be made available if the financial criteria are fulfilled. This is the reason for the amendment to leave out lines 4 and 5. I beg to move.

The Earl of Selkirk

I am looking forward with much interest to my noble and learned friend explaining why, in some cases, children will not need some kind of professional representation. I find it intolerable that children should have no representation at all and yet be expected to take an intelligent part in the proceedings.

Lord Cameron of Lochbroom

The provision that the amendment seeks to delete merely repeats a provision already contained in Section 1(6)(a) of the 1967 Act. It refers to the interests of the child because it is concerned with appeals relating to children's hearings. It is a fundamental principle of children's hearings, and indeed a statutory requirement, that the principal concern should be the interests of the child. Therefore, the interests of the child should also be taken into account in connection with proceedings before the sheriff arising out of referrals and appeals from the children's hearings.

There is also the consideration that it is conceivable that the interests of the child may clash with the interests of his parent, for example, if the referral to the children's hearing was because he was in moral or physical danger at home. In such cases, the child's interests must be protected separately.

Subsection (4)(a) of Clause 29 makes it clear that even where the applicant is not the child, the child's interests must come first. I hope that what I have said will answer the problem mentioned by my noble friend. This is not a question of refusing legal aid to a child. What is involved is making clear that in the granting of legal aid it will always be the paramount principle that the interests of the child come first.

The Earl of Selkirk

That is not what the Bill says. There is nothing about the paramount interest of the child. It appears that you have to prove that the child has an interest. To my mind, the child always has an interest and, in most cases, is unable to express that interest personally. I would much prefer to see the word "interests" taken out.

Lord Morton of Shuna

The clause states, Legal aid shall be available under subsection 2(a)(ii) or (b) above on an application made to the sheriff if the sheriff is satisfied that it is necessary in the interests of the child that legal aid be made available and after consideration of the financial circumstances". I understood from what the noble and learned Lord the Lord Advocate was saying that he was interpreting the word "and" as "or". That does not seem to be the case. In the hope that the noble and learned Lord will consider this again, I would ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

8.15 p.m.

Clause 30 [Legal aid in contempt proceedings]:

Lord Morton of Shuna moved Amendment No. 73: Page 21, line 4, leave out from ("dependants") to end of line 7.

The noble Lord said: This is a special situation dealing with contempt of court, which is of course a serious offence. It is to take out of the provisions the question of the interests of justice. There cannot be a situation where the interests of justice do not require that there should be representation. It is always necessary, or at least advisable, that someone being dealt with for contempt of court should be represented. I cannot conceive of circumstances where it could be thought that it was not in the interests of justice that he should have representation. I beg to move.

Lord Cameron of Lochbroom

It has to be borne in mind that, like any criminal offence, there are degrees of gravity of contempt of court. I am aware of instances, as, no doubt, the noble Lord opposite is, where the contempt may have been committed and the court makes a finding, but the sentence passed by the court may amount to no more than an admonition. It would surely not be right that legal aid was automatically granted in such a case. On the other hand, I accept that there are severe cases when imprisonment is involved. All that I am attempting to provide is that the court should have a discretion in dealing with such cases using precisely the same criterion—the interests of justice—as is to be found elsewhere in dealing with criminal legal aid. It is, I suggest, appropriate that such a discretion should be retained to deal perhaps only with a minority of cases. I cannot therefore accept the amendment.

Lord Morton of Shuna

With the intention of assisting us to make rapid progress, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 [Solicitors and counsel]:

Lord Wilson of Langside moved Amendment No. 74: Page 23, line 4, at end insert—("; (c) in relation either to a solicitor or an advocate, the Board").

The noble and learned Lord said: This is a simple little amendment. However, if accepted, it will, I am persuaded, make a not insignificant contribution to the successful working of the new scheme under the new board. Section 6(3) of the 1967 Act empowers the Law Society in the case of solicitors and the Faculty of Advocates in the case of advocates to exclude a solicitor or advocate from being selected under the scheme on the ground that there is good reason for exclusion arising out of three possibilities: first, his conduct when acting under the scheme; secondly, his professional conduct generally; and, thirdly, in the case of a member of a firm, such conduct on the part of a person who is a member of the firm.

Clause 31, as your Lordships know, effectively reenacts these provisions of Section 6 of the 1967 Act with some modifications. It leaves a similar power to the Law Society and to the Faculty of Advocates. The purpose of the amendment is to extend a similar power to the new board. It seems to me that this would be a sensible and appropriate provision. It would certainly be logical, the new board being the body that takes the place, in relation to the new scheme, of the Law Society of Scotland.

From time to time I have been critical of certain corners of my own profession. With that in mind, it is important that I should say that the inspiration for this amendment comes from two present lay members of the Legal Aid Central Committee. It would not have occurred to me. They are deeply concerned that the opportunities presented by this Bill are grasped and that advantage is taken of the opportunity to correct little local clay-to-day problems which arise in the course of the workings of the present scheme.

Those who suggested to me that this amendment would be appropriate are lay people who have become deeply involved in the day-to-day practical work of the administration of the legal aid scheme. They are familiar with that and the problems that it presents.

As I am sure the Committee is aware, the scope of the power goes wider than questions of professional misconduct such as might go to the disciplinary committee of the Law Society, or might give rise to an action of professional negligence.

The amendment in effect seeks to put the board in the same position as a client whose solicitor's or advocate's performance fell short. The ordinary client is entitled to dispense with the services of his solicitor or legal adviser if his performance falls short. And why not? Those who have advised me of their experience working on the legal aid central committee have been somewhat critical of the way in which the Law Society had made use of this power in the past. They are anxious that this should be corrected. They say that there have been instances in their experience over the past years where the exercise of the power, or consideration thereof, would certainly have been more 'speedy, more effective, and more appropriate than the normal complaints procedure which the Law Society has tended to be influenced to use.

At such a late hour I shall not detain the Committee with any more of the detail they have put in the paper which they have submitted to me. However, in effect their argument is that for the effective administration of legal aid, and for the encouragement of efficient, conscientious and economic service, it is essential for the board—which will assume the role of the Law Society—to have a similar power to that which the Law Society has enjoyed until now. They are very conscious that the existence of such a power will encourage those who have perhaps fallen short in the performance of their professional duties to have in mind that the board is not without teeth.

It has to be remembered that they have a right of appeal from the exercise of this power to the Court of Session. If the noble and learned Lord the Lord Advocate does not accept this amendment tonight I should certainly hope to have some assurance that he has weighed up these kinds of considerations. I have no doubt that this would have been considered when the Bill was being prepared. Perhaps the noble and learned Lord the Lord Advocate will give more thought to the matter and possibly consult with the lay element in the legal aid central committee who have expressed this concern in the matter. I should imagine that the Government will be anxious to show willing by bringing the lay element into consideration of decisions as to whether the performance of those working under the legal aid scheme has come up to the desirable standard. I beg to move.

Lord Morton of Shuna

I strongly oppose this amendment which seems to me wholly misconceived and totally out of place.

First, I would suggest that there is a power in the Bill to the client—who is not the legal aid board, but the accused person, or the person receiving legal aid, the individual requiring legal aid—to choose the solicitor or advocate of his choice. It seems to me that that is entirely contradicted if some board is saying. "You can choose anybody so long as we approve of them". That is the first matter.

Secondly, I know of no professional body which subjects itself to any form of disciplinary procedure by bodies which are not of that profession. For example, in the National Health Service the committees to which complaints by patients go are predominently staffed by members of the profession which the complaints are against, whether doctors, dentists or pharmacists.

It is surprising to me that, so far as I am aware, the noble and learned Lord, Lord Wilson, did not consult with the dean of the Faculty of Advocates. It would certainly be difficult to fit this procedure into the position of the Faculty of Advocates where an advocate is an officer of the court. The Faculty of Advocates do not have power to exclude an advocate from practising. It is only the Court of Session which has the power. It seems odd suddenly to give that power to some lay board. Certainly the inclusion of this power would not meet with the approval, as far as I can tell, of the Faculty of Advocates and might well mean that a large number of the Faculty would consider that they did not want to have anything to do with the legal aid scheme.

With regard to the solicitors, we have heard a great deal about abuses. We have heard a great deal about complaints, but with a total lack of specification. We know only that the lay observer on the Law Society complaints' procedure has very few criticisms out of the many complaints which are handled. It therefore seems that this is an entirely misconceived amendment, and I would wholly oppose it.

Lord Cameron of Lochbroom

I am bound to say that we gave careful consideration as to whether the board or the respective professional body should have the responsibility for determining whether a solicitor or advocate should be excluded. I can assure the noble and learned Lord on that matter. I think that it would not be reasonable, and would lead to practical difficulties, for both the board and professional body to have this power. For that reason, we decided on balance that it was preferable—since professional conduct was in question—that the responsibility should rest with the professional body which dealt with disciplinary questions.

There are additional safeguards for the board in the Bill. They have power under Schedule 3 to complain directly to the Scottish Solicitors' Discipline Tribunal. They may, if they are not satisfied with an account, reduce it on the grounds of overcharging or otherwise, and of course if a lawyer continually fails to submit proper accounts it could well be a matter like a mishandled or unnecessarily prolonged case which might be referred to the appropriate disciplinary authority. Therefore, I cannot accept the noble and learned Lord's amendment.

8.30 p.m.

Lord Wilson of Langside

I had not expected a great deal of support. However, I am interested in how often the noble Lord, Lord Morton of Shuna, has complained at not having been given any evidence about shortcomings and abuse in the working of the legal aid scheme in the past. I shall take the opportunity of telling him something of my experience of that over the last few years, but not tonight. Third Reading may present the appropriate opportunity. However, I shall show the noble and learned Lord the Lord Advocate the paper which I have received from the lay observers, whom the noble Lord, Lord Morton of Shuna, was rather cavalier in dismissing.

I am sorry that I have to beg leave to withdraw the amendment. Far from being ill-conceived, I think that there have been shortcomings in the working of the scheme over the last 30 or 40 years which have never been properly looked at. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 [Restriction on payment and employment of solicitor or counsel]:

On Question, Whether Clause 32 shall stand part of the Bill?

Lord Morton of Shuna

I oppose the Question, That this clause stand part of the Bill on the basis that there are many situations in which legal aid is granted only for part of the proceedings. From the way in which this clause is framed, it appears to prevent payment of the non legally-aided part. It is on that basis that I oppose the clause. In the hope that the nods that I see on the other side of the Committee may have some effect at a later stage, that is all that I intend to say on the matter.

Lord Cameron of Lochbroom

I am very grateful to the noble Lord. As I understand it, he simply desires an assurance that a solicitor who provides assistance privately before a certain stage in proceedings as regards which a legal aid application is thereafter granted, will not be prevented from obtaining private payment for those preliminary stages. That is not the intention of the clause. Obviously I would wish to look at it again to see whether it requires any adjustment to make the intention quite clear. If it does require adjustment we shall bring forward an appropriate amendment at Report.

The Earl of Selkirk

I should like to ask one question. According to Clause 32 no payment must be made except through the fund. However, if you look at Clause 12(3) you see the following words: fees or outlays to which this section applies shall be paid to the solicitor as follows— (a) first, out of any contribution payable by the client". I do not know whether or not it is intended, but it seems to me to run directly contary to what is said in Clause 32.

Lord Cameron of Lochbroom

No, the purpose of Clause 32 is simply to provide that what is called "topping up" should not take place—that is to say, a person who is in receipt of legal aid should then use his own private funds to obtain and purchase additional representation. Clause 12 is dealing with the circumstances where the contribution actually paid by the client for the purpose of obtaining legal aid is then to be paid over to the solicitors. Perhaps I should make clear that this probably applies rather to civil legal aid than to criminal proceedings, as regards which there is no contribution system anyway.

The Earl of Selkirk

That means that payment direct from the client to the solicitor or counsel is not cut out entirely by Clause 32. This is an important point because it almost looks as though it is an offence to do that and I understand from my noble and learned friend that that is not true.

Clause 32 agreed to.

Clause 33 [Fees and outlays of solicitors and counsel]:

Lord Morton of Shuna moved Amendment No. 75: Page 24, line 5, at end insert ("and in making regulations under this section as to the amounts payable to counsel or a solicitor who acts for any person by providing legal aid or advice and assistance under this Act, and any person by whom any such amount falls to be assessed, taxed or reviewed under the regulations, the Secretary of State shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done.").

The noble Lord said: I am sure that the Government will want to accept this amendment. It is an amendment which incorporates provisions which are in the English legal aid arrangements. It suggests that, in making regulations as regards fees: the Secretary of State shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done. I shall be interested to hear whether the noble and learned Lord opposes that proposal. I beg to move.

Lord Cameron of Lochbroom

I can tell the noble Lord opposite that I do not look upon this amendment with favour. As the noble Lord made clear, this amendment derives from arrangements in England and, indeed, I think that their application is presently sub judice. Therefore, it will be no surprise to noble Lords to hear that I have no desire that such a provision should be contained within Scottish legislation.

The present provisions are reproduced from provisions in the existing legislation which were enacted as recently as 1983 because the Secretary of State was dissatisfied with arrangements which in effect gave him no direct control over this element of public sector remuneration. There is no sound basis for changing the provisions then enacted with, as I recall, general support from all parties, although I think with perhaps understandably less enthusiasm on the part of the Law Society.

It may be of interest to the Committee to know that it has recently been agreed between representatives of the Scottish Home and Health Department and of the Law Society and, separately, with representatives of the Faculty of Advocates that talks should begin shortly on the review of the existing fee structure for civil legal aid, criminal legal aid and advice and assistance, which contains some obvious anomalies. In the case of solicitors, this review will be assisted by the report by management consultants on a survey of solicitors' costs which was submitted last month to my right honourable and learned friend the Secretary of State and to the Law Society.

Consideration will be given to the changes that should be made in the regulations and what should be the relevant factors in those instances in which the fees are not specifically prescribed. I hope that, with that explanation, the noble Lord will feel able to withdraw his amendment.

Lord Morton of Shuna

Not at all, but I shall withdraw it at this stage. I shall certainly come back to the amendment. I see no reason why the basis should not be fair remuneration for work actually done, and nothing that the noble and learned Lord has said convinces me otherwise. However, rather than deal with it now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clauses 34 and 35 agreed to.

Clause 36 [Regulations]:

Lord Morton of Shuna moved Amendment No. 76: Page 25, line 27, after ("may") insert ("on the advice of the Board").

The noble Lord said: I beg to move Amendment No. 76 and it may be convenient to deal also with Amendment No. 77 because it deals with very much the same matter. The amendment concerns the power to make regulations, on the advice of the Board", as appear to be necessary or desirable. Amendment No. 77 deletes the phrase: or for preventing abuses of", because it does not serve any useful purpose except to repeat the unspecific allegation that there are abuses. I beg to move.

Lord Cameron of Lochbroom

In reply, perhaps I may also speak to Amendment No. 80, which I think goes along with Amendment No. 76. Amendments Nos. 76 and 80 have rather a suggestion of the tail wagging the dog. There is no need for any formal provisions obliging the Secretary of State to consult the board before making regulations, since he would do this in any case on matters on which, as the noble Lord has suggested, the board has special knowledge and expertise.

However, it would be undesirable for all the board's views to be laid before Parliament since these might refer to confidential matters. For instance, the board might wish to refer to papers on individual cases which showed up defects in existing regulations. There would also be regulations on which the board have no expertise or locus, such as those relating to fees. The important factor is that there should be adequate Parliamentary scrutiny of the subordinate legislation, and this is already provided for in the Bill as framed.

So far as Amendment No. 77 is concerned, the phrase which is omitted is not a new one. It is derived from Section 15(1) of the Legal Aid (Scotland) Act 1967. I am aware that the subject of abuses of the legal aid system is a vexed one, and touches on an area of sensitivity so far as the legal profession is concerned, but the provisions of the Bill as framed are not to be interpreted as referring only, or even primarily, to the actions of lawyers. They are couched in general terms and could also cover abuses by applicants and others.

When introducing a system which is, in some respects, new, it is even more important to have power to stop up quickly any loopholes which appear in the new arrangements. Regulations made by the Secretary of State under Clause 36(1) would allow this to be done. If the regulatory powers were deleted from the Bill primary legislation would be required to stop abuses. This would be a serious disadvantage, not least because of the resulting delays. For these reasons I cannot commend to your Lordships any of the three amendments to which I have spoken.

Lord Morton of Shuna

Again the noble and learned Lord has shown the total dependence of the board, which he asserts is to be independent, because whether it is the tail or the dog they are connected in his simile. If it is necessary or desirable to make regulations, that surely would cover the situation whether it was an abuse or otherwise. However, I shall withdraw the amendment.

Lord Wheatley

On a point of information, could either of the two noble Lords enlighten me? If the board is required to give advice to the Secretary of State, will the board be obliged, in terms of Clause 3(4), to have regard to the guidance given to it in that matter by the Secretary of State?

Lord Cameron of Lochbroom

Perhaps I might write to the noble and learned Lord on this matter.

Lord Ross of Marnock

Would the noble and learned Lord like to write to the rest of us as well?

Lord Cameron of Lochbroom

I would always be perfectly happy to write to the remainder of the noble Lords, or indeed put the letter in the Library, which would perhaps be the best way of making the matter clear to all.

Amendment, by leave, withdrawn.

[Amendment No. 77 not moved.]

On Question, whether Clause 36 shall stand part of the Bill?

The Earl of Selkirk

I think it is noteworthy that in subsection (2)(g) the Government are not content with regulations, they want the power to "modify any provision of this Act". That is going quite a long way, and I do not know how anyone is going to be notified about it. It is true that it applies particularly to subsection (3), but still that might be done by regulation. This is a modification about which no public notice is given whatever. I think that my noble and learned friend should look at that. If you are going to modify a statute, there must be some way in which it should be publicly understood and known.

Lord Cameron of Lochbroom

As I understand this subsection it commences with words saying that regulations made under this section may do certain things, of which (g) is one. Therefore, it is a regulation-making power which will give public notice, and of course it is only to deal with the special circumstances referred to in subsection (3). That may answer my noble friend.

The Earl of Selkirk

Does that mean that it will be made public? The noble and learned Lord has not said that.

Lord Cameron of Lochbroom

Regulations become a public document.

Clause 36 agreed to.

Clause 27 [Parliamentary procedure]:

8.45 p.m.

Lord Morton of Shuna moved Amendment No. 78: Page 27, line 19, after ("section") insert ("9")

The noble Lord said: Perhaps it would be convenient if we take Amendments Nos. 78 and 79 together. These are to add to the list of regulations under various sections which need affirmative resolutions. Clause 9 is the power to make regulations in relation to legal aid and advice, prescribing the proceedings and modifying the financial limits, and it would appear appropriate that they should be subject to affirmative resolution. Further, Clause 36(2)(g)—the one that the noble Earl, Lord Selkirk, has just dealt with—is a fairly radical power to make regulations, and would again appear to be more appropriately subject to affirmative resolution. Clause 42 is the power to deal with regulations dealing with disposable income, or disposable capital, and regulations prescribing the deductions in respect of maintenance of dependants, and again it would appear more suitable that this should be subject to affirmative resolution rather than annulment procedure. I beg to move.

Lord Cameron of Lochbroom

So far as Amendment No. 78 is concerned, I have considered this amendment and I am prepared to accept it on the basis that the Bill will then give a clear indication that assistance in criminal proceedings is being looked at in the round, with your Lordships' House being given a clear opportunity to consider the important changes in the arrangements in relation to assistance by way of representation as well as legal aid.

So far as the changes sought in Amendment No. 79 are concerned, I cannot be quite so forthcoming. These deal with matters which are derived from the present legislation, which again are dealt with under present legislation by way of negative resolution procedures. The same power, for instance, in Clause 36(2)(g) is mirrored in the present legislation in Section 15(3) of the Legal Aid (Scotland) Act 1967, where regulations made under that power are subject only to negative resolution procedure. For these reasons, and no special arguments having been put forward to justify a change, I cannot accept Amendment No. 79 but accept Amendment No. 78.

Lord Simon of Glaisdale

I am afraid that it is an impertinence for an English lawyer to intervene on a Scottish legal aid Bill, but I hope that the noble and learned Lord will look again at the point on Clause 36(2)(g) made by the noble Earl. It seems to me to be a most drastic provision going far beyond in principle the ambit of a Scottish statute, and will no doubt be quoted as a precedent just as the noble and learned Lord the Lord Advocate has quoted other provisions as a precedent. I very much hope that he will say that he will look again at that provision, if at no other.

The Earl of Selkirk

May I add one word? I wonder whether the noble and learned Lord ought not to include Clause 42. Clause 42 is far-reaching, and I shall have something to say about it presently. It undoubtedly should be brought in draft before your Lordships' House.

Lord Cameron of Lochbroom

I would simply say that my mind is not closed. I shall bear in mind what has been said by my noble friend and by the noble and learned Lord. However, I suggest from what I have said already that we are not dealing with new powers; we are dealing with powers which are already in existing legislation. But I shall look at this again.

Lord Morton of Shuna

It is part of the aim of Parliament to improve a Bill, but in the light of what the noble and learned Lord has said I shall not move Amendment No. 79, though it is a triumph to have had Amendment No. 78 accepted.

On Question, amendment agreed to.

[Amendment No. 79 not moved.]

Lord Morton of Shuna moved Amendment No. 80:

Page 27, line 24, at end insert— ("( ) Where the Secretary of State proposes to make regulations under this Act he shall refer the proposals in the form of draft regulations or otherwise to the Board. ( ) The Board shall consider any proposals referred to it by the Secretary of State under this section and shall make to the Secretary of State a report containing such recommendations with regard to the subject matter of the proposals as they think appropriate. ( ) If after receiving a report from the Board the Secretary of State lays before Parliament any regulations which comprise the whole or any part of the subject matter of the proposals referred to the Board he shall lay with the regulations a copy of the Board's report and a statement showing—

1. (a) the extent (if any) to which he has in framing the regulations given effect to the Board's recommendation, and
2. (b) in so far as effect has not been given to them, his reasons why not.")

The noble Lord said: This has been answered before I moved it, but its purpose is to ensure that regulations made under the Bill shall have some form of discussion by the board and that the board shall consider them and report on them so that Parliament shall have the benefit of a report from the board as well as the draft regulations from the Secretary of State. I beg to move.

Lord Cameron of Lochbroom

I do not wish to repeat what I have said already. I spoke to this amendment when dealing with Amendment No. 76. I made it quite clear why I could not accept it. I stand by those reasons.

Lord Ross of Marnock

But surely the wording of this amendment is very different. If I remember correctly, previously it required the approval of the board. This does not require the approval of the board, it requires the advice of the board and a report given on that advice. Whether that is accepted or not, Parliament is to be informed of that, presumably when the regulation, if it is to be put before Parliament, is brought forward. It is not exactly the same as the previous amendment on which the noble and learned Lord the Lord Advocate spoke and to which he now refers.

Lord Cameron of Lochbroom

I reiterate what I said last time. I made it clear that I thought it was undesirable for all the board's views to be laid before Parliament, as these might refer to confidential matters. For example, the board might wish to refer to papers on individual cases which showed up defects in the existing regulations. There may also be regulations on which the board has no expertise or locus such as those relating to fees. It is for those reasons, which I have stated, that I cannot accept the basic premise of this amendment, that the board's report should be laid, along with the copy of the regulations.

Lord Morton of Shuna

I can see no difficulty, if the board knows its report is to be laid before Parliament, in it drafting a suitable report. But, with the prospect of returning to the matter at a later stage, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37, as amended, agreed to.

Clause 38 [Rules of court]:

Lord Cameron of Lochbroom moved Amendment No. 81: Page 28, line 10, leave out ("party receiving legal aid") and insert ("legally assisted person").

The noble and learned Lord said: This is a drafting amendment which has the same effect as Amendment No. 47 to Clause 19, which was agreed on the last occasion when the Committee sat. I beg to move.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 [Adaptation of rights to indemnity]:

Lord Cameron of Lochbroom moved Amendment Nos. 82 to 84: Page 28, line 32, leave out ("for the purpose of adapting"). Page 28, line 33, leave out ("this Act"). Page 28, line 37, leave out ("for the purposes of this section") and insert ("in respect of any such right").

The noble and learned Lord said: These amendments are designed to make Amendment No. 39(2) clearer. It is a free-standing provision which prescribes that any right to be indemnified against the expenses of proceedings cannot be taken away in whole or in part simply because the person entitled to the right has not applied for legal aid for the same proceedings. I beg to move.

On Question, amendments agreed to.

Clause 39, as amended, agreed to,

Clauses 40 and 41 agreed to.

Clause 42 [Disposable income and capital]:

Lord Cameron of Lochbroom moved Amendment No. 85: Page 30, line 30, leave out ("do") and insert ("does")

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Selkirk moved Amendment No. 86: Page 30, line 37, leave out subsection (3).

The noble Earl said: This is a most peculiar clause. In the first place it is the one clause in which the Treasury do not trust the Secretary of State for Scotland to do anything about the matter. In the second place I admit that I do not find the drafting easy and the amendment of the noble and learned Lord makes it even more difficult because I do not know what is the subject referred to under (1)(b) on the second line. What one does know is that it is now singular and it is neither deductions, allowances nor regulations, because they are all in the plural. I am quite at a loss to know what the subject is. It would be helpful to know. The clause deals with what is called "disposable income". We should be given the full story of the intention behind "disposable income". One finds some curious items under Clause 18: None of the following … a … person's house, wearing apparel, household furniture and the tools", shall be part of it, as far as I can understand, but in other places notably under Clause 11, a: disposable income exceeds £54 a week. Is that after deductions or before deductions? This is a form of means test and we should be given a full picture of exactly how this will work out.

Then we come to the part of the clause to which I have drawn attention, subsection (3). This states two things: first, that the spouse of the person may be charged as much as the Treasury likes. This is in marriage. I shall take the liberty of copying a recent publication on the equality of women which quotes Blackstone. I shall quote Blackstone here: The very being or legal existence of the wife is suspended during marriage or at least incorporated and consolidated totally in her husband. That appears to be the view of the Treasury, though nowadays it would be disregarded outside. What is being said is that the wife is fully responsible for any liability the husband may be involved in.

If one goes further, one reads, other special cases, for taking into account the resources of other persons. What is meant by that? It is utterly vague and uncertain and it is in the form of a kind of means test. In fairness we should be given a fair description of what the Government have in mind. In the meantime, subsection (3) should be taken right out of the Bill. I should like to know whether the Government are prepared to answer that and if they cannot answer now we must have an answer at Report stage.

9 p.m.

Lord Morton of Shuna

I support the amendment. No doubt we shall be told by the noble and learned Lord the Lord Advocate that this was in the 1949 and 1967 Acts; but things have moved since then, and the general situation is that people who are married do not consider that the income of their spouse is their income or vice versa. There is no reason why the legal aid authority should deal with it in this way. It is a wholly iniquitous situation in the present state of society, and I would strongly support the amendment.

Lord Cameron of Lochbroom

Perhaps I might speak first in relation to the amendment of my noble friend; indeed, the noble Lord has anticipated me. What we are doing is no more than retaining a provision which is already found in existing legislation, in particular, Section 4 of the 1967 Act. Subsection (3) of this clause repeats Section 4(4) of the 1967 Act. It is included on the basis that, where people live together as husband and wife and use resources in common, their joint resources should also be treated as one when assessing one of their number's ability to take legal proceedings. It will also be noted that there is a two-way process under Clause 42. If resources are combined, liabilities including such joint items as taxes and rents, as well as the maintenance of dependants, are also taken into account under Clause 42(1).

Perhaps I might in passing explain to my noble friend that what is the subject of the word "does" in the last line are the phrases "disposable income" or "disposable capital" in the first and second lines, which, in relation to any person means his income and then goes on— does not include the subject matter of the dispute". Clause 42(3) provides for regulations exempting applicants from its provision. I can give an undertaking that as at present regulations will provide that the resources of the spouse should not be treated as a person's resources where the spouse has a contrary interest in the dispute in respect of which the application for a certificate is made, or where the person concerned and the spouse are living separate and apart.

I would make it clear that I do not consider there is anything inherently unfair about the resources of and allowances for spouses being considered jointly. Moreover, the practical difficulties of making separate assessment in every case and not just those where there was a contrary interest or where the couple are living separately would indeed be formidable.

My noble friend has put certain other questions to me. Again, I think I must make it clear that there is nothing new so far as this clause is concerned. It is derived specifically from Section 4 of the 1967 Act, and in particular subsection (2) is to be found in Section 4(2) of that Act. I find difficulty in giving precise answers to my noble friend's detailed questions, although I think I answered some of them earlier during the Committee stage. If I have not covered anything just now, I will certainly write to him and see that a copy of my letter is placed in the Library as regards the details he has raised with me.

Lord Ross of Marnock

Before the Lord Advocate finally leaves this, will he have a look at the last two lines: regulations may also make provision in relation to minors and pupils and other special cases, for taking into account the resources of other persons"? Can he define "other persons" for me?

Lord Cameron of Lochbroom

I apologise. I should have made reference to that, because that is repeating the words which are to be found in Section 4(4) of the 1967 Act which are in these terms and which may be familiar: and regulations may also make provision, in relation to minors and pupils and other special cases, for taking into account the resources of other persons". I shall certainly bear in mind what the noble Lord has said, but there is nothing new in what is provided in the Bill and regulations have proceeded on that basis in the past. An instance which I would give would be that the provision would cover, for example, the resources of the parent and guardian of a child applying for legal aid.

The Earl of Selkirk

I must admit I am not satisfied with this. This is a form of means test. We ought to have a precise definition of what is meant by "disposable income". This is the definition of disposable income and it goes back into various stages before that. Does that apply to other cases, for example Clause 11(2)(a): a client's disposable income exceeds £54".? That is after deductions have been made. A person has a surplus or disposable income of £54 a week.

I do not necessarily want to press the noble and learned Lord now, but I think it is fair to the Committee that we should have a clear idea what disposable income is considered to be and whether it covers the list here, which I may say does not include housing. I notice that it includes the maintenance of dependants. That means that the wife or the husband presumably do not have their food included but that dependants may have their food included. I mention these things because the provision is hopelessly vague. We are reforming the law; we are not just sitting back and accepting the law as it was passed. I also point out that the status of women has changed greatly in the last 25 years. I think that is something we have to recognise as we go on. If my noble and learned friend does not wish to say anything further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42, as amended, agreed to.

Clauses 43 to 45 agreed to.

Schedule 3 [Minor and Consequential Amendments]:

Lord Cameron of Lochbroom moved Amendment No. 87:

Page 37, line 42, at end insert—

("The Sex Discrimination Act 1975.

2A. In section 75(4) of the Sex Discrimination Act 1975 for the words "the Legal Aid and Advice (Scotland) Acts 1967 and 1972" there shall be substituted the words "the Legal Aid (Scotland) Act 1986".").

The noble and learned Lord said: This is a drafting amendment intended to update the reference to legal aid legislation in the Sex Discrimination Act 1975. I beg to move.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Lord Simon of Glaisdale

May I ask whether we have dealt with Schedules 1 and 2?

The Deputy Chairman of Committees

Yes, I understand that we did so at an earlier stage.

Schedule 4 agreed to.

Schedule 5 [Repeals]:

Lord Cameron of Lochbroom moved Amendment No. 88: Page 41, line 39, column 3, at beginning insert ("Section 13(4)").

The noble and learned Lord said: This amendment repeals the reference to legal aid legislation in Section 13(4) of the Contempt of Court Act 1981 which will be obsolete with the enactment of the Bill. I beg to move.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Clause 46 agreed to.

House resumed: Bill reported with the amendments.