Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1991 (Hansard, 22 April 1991)

§ Lord Macaulay of Bragar
My Lords, the three sets of regulations are welcomed by this side of the House, but I am not sure that they go far enough to meet the requirements of the population of Scotland who might require assistance in civil cases. I am bound to say that over the years complaints have been made about the way in which civil legal aid is administered in Scotland, in particular the levels at which people come into the system and the rate at which the civil practitioner is paid. At the moment, there is a real danger in Scotland that a second-class system of law is being introduced because people are not prepared to come into the legal aid system. Indeed, solicitors will send their legal aid clients away because they do not want to know them for two reasons: first, the remuneration is too low; secondly, the time taken to get thy; remuneration through is too long. That contrasts with criminal legal aid where there has been 74 an acceleration in payment and the criminal practitioner is now better off than the civil practitioner in terms of payment.
We welcome the extension of availability of legal aid with no contribution in so far as the regulations provide for it. However, one wonders whether the figure of £2,860 a year is rather unrealistic. If my arithmetic is correct (and it never is), that gives an income of £57 per week. We are now living in an age when the average national wage is in the region of £180 per week, and here we have £57 per week as the eligibility level for disposable income for free legal aid. If we look at the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1991, the starting point for disposable income range with maximum contribution is £70 per week. There appears to be a financial gap between the two levels of contribution.
I wonder whether the noble and learned Lord the Lord Advocate might consider it appropriate to set up a committee of some kind to investigate the relationship between the rates and methods of payment under the civil and criminal legal aid systems. There is a great deal of unhappiness about the legal aid situation in Scotland. Solicitors are shying away from giving service to the public which the public demand. If people who require legal aid for civil cases in particular are not being given a proper service, then service within the legal system is diminished.

§ Lord Fraser of Carmyllie
My Lords, I respond briefly to the welcome that the noble Lord has given to at least part of what is contained in these regulations. I make the observation that I do not challenge his arithmetic in the calculation of dividing £2,645 by 52. I stress to him that what we are dealing with is not the totality of an income but a disposable income. From his own experience the noble Lord will appreciate that a considerable number of items require to be deducted before arriving at the disposable figure. Therefore, the true or gross income of any individual would be significantly higher than the figure which appears in the regulations.
The noble Lord asked whether I might consider setting up a committee to look at a number of matters touching on the operation of legal aid. My answer is that I will not because there is already a review being undertaken on a UK basis. Although clearly there are separate systems for the administration of legal aid and the rates at which eligibility may be determined, there is obviously a UK content to it. That review is already under way and a consultative document should be published shortly. The noble Lord may rest assured that Scottish interests will be fully consulted as part of that exercise.
The noble Lord indicated he was concerned that one of the difficulties for solicitors in Scotland was that from time to time they might be dissuaded from participation in the scheme because it took some time to get paid. That is undoubtedly a difficulty. But I am sure he will appreciate that sometimes the fault lies as much with the solicitors themselves as with those responsible for making payment as they take considerable time to get their accounts into a shape which can be submitted to the Legal Aid Board. In small measure, I hope he is reassured by what is 75 contained in the third set of regulations, because by increasing the financial limit under advice and assistance from £60 to £80, which sum can be incurred without prior reference to the Legal Aid Board, there should be greater simplicity and speed than would otherwise be the case in a number of small matters for which individuals and lay people go to solicitors to seek advice. With those observations, I am grateful to the noble Lord for what he has to say.

§ Lord Macaulay of Bragar
My Lords, I was unaware that a UK review was going on into legal aid. Can the noble and learned Lord say what the position is in relation to the question of brief fees as between Scotland and England?
As the Minister is well aware, at the moment in Scotland there is no such thing as a brief fee. As a result of that, an advocate in Scotland may spend a week or even a fortnight preparing for a case, but if the case does not go on the advocate is entitled to nothing, whereas in England a barrister instructed in a similar case (perhaps a major fraud) who spends a fortnight preparing for it will get a brief fee of considerable proportions. To that extent, there is a disparity between the levels of payment in Scotland and England. Perhaps the Minister can give your Lordships' House some information as to what approach is being taken to the question either of abolishing the brief fee in England, which having heard the debates over recent months would meet with considerable opposition in your Lordships' House, or introducing it in Scotland for counsel. This is not special pleading, but since the noble Lord has mentioned that there is a current UK review, I would have thought this matter must come within the terms of it.

§ Lord Fraser of Carmyllie
My Lords, perhaps I may just say briefly that this review looks at all aspects of the financial conditions of legal aid. I do not know whether it has or is proposing to look at that particular matter. I did indicate that, as part of the United Kingdom review, regard will be had to the particular Scottish considerations that apply.
I should say to the noble Lord that there are a number of Scots already working on it. I expect that, although it may take some time, it will be a very extensive and wide review.

§ The Earl of Strathmore and Kinghorne
My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.