Legal Aid and Nationality (Hansard, 21 November 1995)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the Government consulted publicly on this very point last year. The overwhelming weight of the responses supported the view that it would not be right to impose nationality restrictions on the availability of legal aid. The Government announced their decision to that effect in April, and I am not aware of any grounds for altering it.

§ Lord Boyd-Carpenter
My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply. Can he quote any other country which allows British citizens legal aid in its courts?

§ The Lord Chancellor
My Lords, my understanding of legal aid systems available in other countries is that they proceed, so far as concerns this point, on the same basis as our own.

§ Lord Renton
My Lords, will my noble and learned friend tell your Lordships what is the present total cost of legal aid and what proportion of that total cost is given to foreigners?

§ The Lord Chancellor
My Lords, the approximate total cost is £1.4 billion. I cannot tell what proportion of that goes to foreigners. We have not analysed the figures on the basis of that distinction.

§ Lord Ewing of Kirkford
My Lords, now that the noble and learned Lord the Lord Chancellor has given the total cost of legal aid, will he speak to the newly appointed Lord Advocate in Scotland about the incompetence of the Crown Office over cases which have failed at Falkirk Sheriff Court? Those cases were legally aided. They failed because the sheriff court was closed due to the lack of procurators fiscal to prosecute the cases. Yesterday a major fraud case in Aberdeen collapsed. Would it not be in order for the legal aid costs which had been incurred in those cases to be transferred from the Legal Aid Fund to the Crown Office because of its incompetence?

§ The Lord Chancellor
My Lords, the Question on the Order Paper refers to holders of UK citizenship. I do not imagine for a moment that the noble Lord is seeking to distinguish between the Scots and others on that basis. Unless it is on some such basis, I cannot for the life of me see any connection between the noble Lord's question and the Question on the Order Paper.

§ Lord Williams of Mostyn
My Lords, does the noble and learned Lord the Lord Chancellor agree that there is a distinction between the provision of legal aid for those in real need—for instance, asylum seekers or those accused of crime—and for non-UK nationals who merely litigate their commercial contractual disputes in the courts of this country at public expense, for whom there is a less compelling case? Have the Government had further thoughts, since the last occasion upon which the noble Lord, Lord Boyd-Carpenter, and I adverted to this subject, about a degree of reciprocity being required in the latter category of case? That is to say, if a foreign government does not provide reciprocal legal aid in commercial disputes why should its nationals have it, as of right, in this country?

§ The Lord Chancellor
My Lords, I am not certain what exactly the noble Lord is proposing. I do not believe that he is proposing a distinction based on UK nationality. So far as concerns other matters, obviously there is a means and merits test in the legal aid system. If the courts of this country have jurisdiction and the case is proceeding here, it is not easy on grounds of fairness to distinguish between one litigant and another. Of course the connection between the case and the courts of this country requires to be fairly strong. Otherwise some other jurisdiction might have charge of the case. There is authority for saying that, in considering whether to send a case to another court, the question of whether legal aid is available in that court is not a relevant consideration.

§ Lord Boyd-Carpenter
My Lords, will my noble and learned friend identify some of the foreign countries that would grant legal aid to British citizens?

§ The Lord Chancellor
My Lords, obviously I cannot speak in detail about every country, but my understanding is that in the legal aid systems of most countries where a legal aid system operates—that is by no means all—the principles upon which legal aid is available are principles similar to those which apply here; namely, that, where the courts of the country have jurisdiction, legal aid will be available and a nationality test is not applicable. That is my understanding.