§ Mr. Clark Hutchisonasked the Secretary of State for Scotland if the Law Society of Scotland's proposals to him 213W on the question of who should certify entitlements for additional solicitors' fees under legal aid schemes have been accepted and if he will make a statement.
§ Mr. RossAfter consultations with the Law Society of Scotland, I have submitted to the High Court of Justiciary proposals for amending the Act of Adjournal (Criminal Legal Aid Fees), 1964. These proposals are aimed at containing the cost of the criminal legal aid scheme, which has risen considerably since it was introduced in its present form in 1964. With one exception, these proposals have been agreed between the Law Society and my Department.
The exception concerns the discretion at present exercised by the Law Society —subject to appeal to the auditor of court—to permit solicitors to be paid fees in excess of the maxima prescribed by the Act of Adjournal, if it appears that for any reason, including the exceptional length, complexity or difficulty of the case, these maxima would not give them fair remuneration. I am concerned that, although this provision was designed to deal with exceptional cases only, in practice it has operated in such a way as to provide solicitors in an excessively large proportion of cases with payments above the maxima prescribed.
The Law Society believe that if—as proposed—the present Act of Adjournal is amended to enable the Society to state objections to the court on a determination by the auditor, this should in itself be sufficient to guard against unnecessary use of the so-called "escape clause". In their view, the responsibility for determining whether a case has necessarily been one "of exceptional length, complexity or difficulty" should remain with the Law Society subject, possibly, to a right of appeal to the Auditor of the Court of Session.
On the other hand, while agreeing with the Law Society that they should be enabled to raise objection to the taxation by the Auditor of Court, I take the view that, if a solicitor considers at the conclusion of a trial that the prescribed fees are insufficient to provide him with "fair remuneration for the work actually and reasonably done", it should be for the judge who has just tried the case to determine whether in fact it has been one 214W "of exceptional length, complexity or difficulty". If the judge certified to this effect, it would still be, as at present, for the Law Society (subject to appeal to the auditor and, if necessary, to the court) to decide what the actual payment should be. The procedure which I favour was first proposed to me by the Law Society in a memorandum dated 24th June, 1968, and, although they subsequently withdrew the proposal, I am still of the opinion that it offers the most effective means of remedying the present situation.
I am informed that an amending Act of Adjournal is being made in the sense which I have suggested and will come into operation on 1st January, 1969.