Advice and Assistance (Financial Conditions) (Scotland) Regulations 1995 (Hansard, 18 April 1995)

§ Lord Macaulay of Bragar

My Lords, I am sure that your Lordships' House will be grateful to the noble Earl 404 for introducing these four sets of regulations which fell on attentive and understanding ears. It is a highly technical area of the law. Perhaps in the light of the current climate I should declare a double interest. I am still a practising member of the Scottish Bar; and I have recently acquired a son-in-law who practises within the legal aid system in Scotland, in particular in the civil field.

It should be put on record at this stage, as I am sure the noble Earl knows, that there has been a considerable degree of frustration, and indeed resentment, in particular on the part of civil practitioners within the legal aid field, not only about the level of remuneration but about the time it takes for lawyers to receive payment for work which they have done and on which they have expended moneys. We hope that these regulations will at least alleviate some of the grievances.

It is important to note also from a public point of view that when people see the amounts expended on legal aid, they tend to think that all the money goes into the lawyers' pockets. But although I do not know the figures, the legal process is an industry on its own and perhaps one of the largest employers of clerical and administrative staff in the country. It would be nice if the public could be occasionally disabused of the idea that everything from legal aid goes directly into the lawyers' pockets.

The legal aid system is an important part of the fabric and structure of legal and social justice in Scotland, and indeed in England and Wales. Any improvement which helps to maintain that fabric and structure should be welcomed. This side of your Lordships' House recognises that there are fiscal restraints in extending legal aid payments. From the position I am standing in at present, I can give no guarantee that when the change of government comes in the not-too-distant future the situation will be any better in so far as concerns any implements. As has been said in another place, we shall have to have a look at the books first before anything can be done about that. However, we recognise—I believe that it was recognised at about this stage last year—and the Government recognise the importance of maintaining the solidity of the legal aid system. One of the alarming factors in Scotland, of which no doubt the noble Earl is aware, is that civil practitioners were opting out of the legal aid system because it was just not worth while practising in that field any more.

These orders will, I hope, to some extent encourage people who are thinking of opting out of the civil legal aid process to remain within the system and to provide a service to the Scottish community within the structure.

The noble Earl referred to England and Wales. On a purely personal basis, I have often wondered whether any comparative study has been done of the cost per head of legal aid in England and Wales as against Scotland. I do not know; I have not had time to see whether any such study exists. If the noble Earl knows of any such recent comparative study, I should be grateful if he would let me know, I do not ask that in a carping, critical way but as a request for information for myself and perhaps for others who are interested in the legal aid system throughout the United Kingdom.

405 Apart from that aspect, I welcome the orders which the noble Earl introduced.

The Earl of Lindsay

My Lords, the noble Lord raised several points. I shall endeavour to reassure him on those questions for which he seeks answers.

He expressed concern over the level and speed with which legal aid payments are made to solicitors and counsel involved. In considering the correct level of fees for legally aided work the Government have to take into account both the general financial position, to which the noble Lord referred, and the supply of legally aided services. Expenditure on legal aid in Scotland has increased dramatically in recent years. From 1987–88 the figure stood at just £45 million, whereas the corresponding figure for 1995–96 is estimated to be £133 million. That is just a fraction short of a 300 per cent. increase in funds over just nine years. In this context, my right honourable friend the Secretary of State for Scotland clearly had to consider carefully what can be afforded by way of fees for legally aided work before making any decision which would inevitably increase overall expenditure still further.

On the supply side, there is no evidence that members of the public are unable to find solicitors willing to undertake criminal legal aid work or advice and assistance. However, we have received representations from various bodies, including the legal profession, pointing to difficulties in connection with remuneration for civil legal aid work. The noble Lord pointed that out. The noble Lord, Lord Macaulay, knows that my right honourable friend the Secretary of State has decided to increase the fees for civil work by an overall 3 per cent. I shall pass on the concerns of the noble Lord both to my right honourable friend and to my noble and learned friend Lord Fraser of Carmyllie on that point.

The noble Lord was concerned, too, about the speed with which our remuneration was delivered. I can assure the noble Lord that the Scottish Legal Aid Board has greatly improved the time taken for payment of legal aid bills over the past three years. That point is being further considered by the policy and financial management review of the Scottish Legal Aid Board.

The last point that the noble Lord raised was on the differential in average cost per case between Scotland and England and Wales. No recent formal studies have been carried out between the two areas of jurisdiction. Expenditure is broadly comparable. If there are any minor differentials they must be considered against the background of the different circumstances which exist between the justice systems and the court systems in those two areas.

I reassure the House and the noble Lord that in dealing with the concerns that the noble Lord raised my right honourable friend must balance access by those in need with the prudent control of public expenditure; It is for that reason that my right honourable friend is especially anxious that the resources available must be directed as efficiently and effectively as possible towards those who are in the greatest need.

406 As I said, the regulations make provision for the uprating of eligibility limits and for other useful changes to the system of legal aid in Scotland. I hope that they find favour with noble Lords.