§ 7.30 p.m.
§ The Lord Advocate (Lord Mackay of Drumadoon) rose to move, That the draft regulations laid before the House on 11th February be approved [12th Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, I beg to move the first statutory instrument standing in my name, and it may be for the convenience of the House if I deal with the Advice and Assistance (Financial Conditions)(Scotland) Regulations at the same time.
§ The Civil Legal Aid (Financial Conditions)(Scotland) Regulations 1997 and the Advice and Assistance (Financial Conditions)(Scotland) Regulations 1997 provide for the uprating of the financial eligibility limits for civil legal aid and for advice and assistance in Scotland.
§ The Civil Legal Aid (Financial Conditions)(Scotland) Regulations 1997 raise the lower disposable income limit for civil legal aid—below which civil legal aid is available without a contribution by the assisted person—from £2,498 to £2,563 a year. The regulations also increase the upper limit—above which civil legal aid is not available—from £8,158 to £8,370 a year.
§ The Advice and Assistance (Financial Conditions)(Scotland) Regulations 1997 provide for a similar uprating in relation to advice and assistance. In 241 these advice and assistance cases the calculation is carried out on the basis of weekly income. The regulations raise the lower limit from £67 to £69, and the upper limit from £162 to £169. The regulations also revise the scale of contributions for applicants with disposable income between the upper and lower income limits for advice and assistance.
§ The proposed eligibility changes represent a 2.6 per cent. uprating on the 1996–97 levels. This matches increases in the level of income-related social security benefits. All these proposed changes are entirely straightforward and none makes any major adjustment to the scope of eligibility.
§ We have also laid before the House regulations under the negative resolution procedure. These propose changes which will improve the legal aid system in Scotland, and contain minor and technical amendments which are required. It might be helpful if I briefly explained the substantive changes proposed.
§ First, we propose that community care direct payments which will be introduced on 1st April should be disregarded in the assessment of income or capital for civil legal aid or advice and assistance. This will ensure that direct payment recipients are not disadvantaged in the legal aid context.
§ Secondly, we propose to amend the civil legal aid regulations to make provision for an opponent of an assisted person to draw matters to the attention of the Scottish Legal Aid Board if the opponent believes that such matters may affect the assisted person's continuing entitlement to legal aid.
§ Thirdly, we propose that the fee currently available to solicitors in respect of photocopying be reduced to a level commensurate with commercial costs. This is in keeping with our firm intention to ensure that legal aid expenditure is efficiently and effectively targeted.
§ Our regulations make provision for the uprating of eligibility limits and for other useful changes to the system of legal aid in Scotland. I commend the instrument standing in my name to the House.
§ Moved, That the draft regulations laid before the House on 11th February be approved [12th Report from the Joint Committee].—(Lord Mackay of Drumadoon.)
§ Lord Carmichael of Kelvingrove
I am grateful to the noble and learned Lord for explaining the issue. He will accept that there is a great deal of verbosity in the regulations and an assumption that we are fully aware of what preceded them.
I should like briefly to discuss the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1997. I am grateful to the noble and learned Lord the Lord Advocate for going through them so thoroughly. The problem is that this measure does not mean that people can still afford to go to law. It is most inadequate from that point of view.
For instance, under the Legal Aid (Scotland) Act 1986, the disposable income limit for eligibility for legal aid rises from £162 to £166 a week. The regulations increase the weekly disposable income above which a person is required to pay a contribution from £67 to £69; 242 and they prescribe the scale of contributions to be paid where the weekly disposable income exceeds £69 but does not exceed £166.
The point about the eligibility uprating is that the regulations should be welcomed in so far as they allow slightly greater access to justice for people who cannot afford to fund their own court action. Since the eligibility changes in the 1993 legislation, the Scottish Legal Aid annual report for 1995–96 indicates that an increasing number of people who have been offered legal aid refuse to take it up to pursue their court action. The figures given for 1994–95, of which I am sure the noble and learned Lord will be aware, show that 2,888 persons had been offered legal aid but refused to take it up. In 1995–96, that figure had risen to 3,420.
The reason for that can be easily explained, as the society contends, by the massive increase in contributions which are sought by the Scottish Legal Aid Board to fund actions. In 1995–96, 5 per cent. of persons receiving legal aid to pursue court action in the sheriff court were required to make a contribution of between £500 and £1,000, and 3 per cent. were required to make a contribution of over £1,000.
We do not want to look a gift horse in the mouth. But it is a very poor gift horse when people still have to produce sums like that from a very small income of something like £120 a week. So, while it would be wrong not to allow the legislation to continue, it would also be wrong not to point out the fact that the legal aid provided is only a very small help to a very small number of people. The numbers I quoted of people who are unable to take it up are evidence of that.
Perhaps the noble and learned Lord the Lord Advocate will be kind enough to deal with the points I have made. They must be very familiar to someone as elevated in the legal profession as he is. It would be helpful to me to know just how easy or how difficult it is to obtain legal aid.
§ Lord Mackie of Benshie
My Lords, the noble Lord, Lord Carmichael, has obviously received the same brief from the Law Society. I, too, was disturbed by the figures. The rise in the rejection of the offer is disturbing. I understand that the recent Act enormously increased the contribution required from people.
Another point made by the Law Society in its brief is that the people who bear the brunt are single women on lower incomes and women trying to sue brutal partners. That is very disturbing. It would be nice if the noble and learned Lord could reassure us that the rise in the rejection of legal aid is due to some other factor. At the moment the explanation appears to me to be quite straightforward: it is due to the rise in the cost.
§ Lord Mackay of Drumadoon
My Lords, I am grateful to the noble Lords, Lord Carmichael and Lord Mackie for raising their concerns. I do not have a copy of the brief to which they refer; however, I am aware of the anxieties that are expressed from time to time.
It is important for noble Lords to bear in mind that the contribution level, if any, that a legally aided person is required to pay depends on that person's disposable 243 income—that is, income after allowance has been made for certain essential living expenses. All sources of income are considered when the calculation is carried out; but equally, so are essential living expenses.
In some instances when the calculation is carried out, those who are eligible for legal aid have to pay what they consider to be a substantial contribution. But, if that is the position, it simply reflects the fact that the resources available for expenditure on legal aid have to be targeted as efficiently and effectively as possible. It is quite obvious from reading the annual reports of the Scottish Legal Aid Board that there has been a substantial increase in recent years in the total payments coming out of the Legal Aid Fund. There is a measure of acceptance on all sides that it has to be controlled in a realistic manner.
Dealing with the specific point raised—the reason why offers of legal aid are refused—the matter was examined in a small research study undertaken by the Scottish Legal Aid Board. The results of the study indicate that there are a variety of reasons why people refuse offers of legal aid. Some applicants simply decide that they do not wish to continue with their action. Their personal or financial circumstances may have changed.
I turn to the specific example of single ladies who may be the victims of violence. It is well recognised that, from time to time, having been involved in the most unpleasant of situations which is distressing for such ladies and their children, they become reconciled with their partner and the need to proceed with litigation evaporates, at least for a time, until another incident Occurs.
Some applicants take the view that they are not prepared to make any contribution to the Legal Aid Fund towards the cost of their case. That choice is open to them, but if they exercise it then the consequences are that legal aid cannot and, in my submission, should not be made available. We believe that it is right that those who are assessed as being able to make a contribution towards the cost of the case should be expected to do so. It is important to bear in mind the further consideration that, if at the end of the day the case costs less than the maximum contribution, that contribution is restricted to the actual costs of the case. That applies to cases of personal injury when damages are being sought: if the applicant for legal aid wins his or her case and recovers damages and expenses, it may result in a refund of the contribution taking place either in whole or in part.
I am well aware that concerns are expressed from time to time about the extent of legal aid, the limits on eligibility, but it must be accepted that there has to be a scheme for assessing who is eligible and who is not. The regulations provide a modest relaxation in the eligibility limits which are consistent with the recent uprating of social security benefits. On that basis, I invite the House to approve the regulations.
§ Lord Carmichael of Kelvingrove
My Lords, I thank the noble and learned Lord for his full explanation. It is disappointing that we all thought that 244 legal aid would mean that no matter what your circumstances, if you had a case in law you could pursue it. We are now clear that help is given by increasing the rates but it still falls far short of what is needed. It means that the poor and even the not-so-poor cannot afford to go to law. However, obviously we cannot do much now. We can only thank the noble and learned Lord the Lord Advocate for small mercies—and I mean small.
§ On Question, Motion agreed to.