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Clause 3

Volume 35: debated on Thursday 27 January 1983

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Power Of Secretary Of State To Make Provision About Fees Etc In Relation To Legal Aid

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I beg to move amendment No. 2, in page 2, line 24, leave out '(1)'.

With this it will be convenient to take Government amendments Nos. 4, 6, 7, 8, 9 and 10.

The effect of the amendment and the other amendments with which it is coupled is to replace section 14A(2), which made a general provision disapplying all powers of the courts to make provision in respect of fees and outlays, with more precise provisions in schedule 1 disapplying certain specific powers of the courts. The amendments make clearer the dividing line between the responsibility of the Secretary of State and the courts.

Amendment agreed to.

I beg to move amendment No. 3, in page 3, line 12, at end insert

'but in making any such regulations the Secretary of State shall have regard to the primary duty to provide adequate and comprehensive legal representation in the civil and criminal courts at all levels'.
I have no wish to delay the House with a lengthy rerun of the debate that took place in Committee. However, it is right that the House should hesitate for a minute or two while I explain once again to the Minister a concept that I hope he will always bear in mind. There is still a great deal of anxiety among my colleagues and among many others who are not connected with the legal profession but who are interested in proper legal representation in the courts. They are anxious that the regulations that may be made under clause 3 when the Secretary of State takes responsibility, as he intends to do, for legal aid shall have an overriding interest in the
"primary duty to provide adequate and comprehensive legal representation in the civil and criminal courts at all levels."
One would hope that that would be so self-evident that it would not be necessary to press the Solicitor-General for Scotland on the point. However, as we know from the various debates that we had in Committee, there is a great deal of panic in official breasts about the cost of legal aid. We are told constantly about the need to struggle for greater value for money. To adopt a phrase that has been used in English circumstances, there is a fear that legal aid costs are now cascading—this was the phrase used by the Lord Chancellor—out of control.

I do not wish to go through the figures at great length. I accept that in 1978–79 the total legal aid bill in Scotland was £6·5 million. By 1980–81 it had reached £18·8 million, and it has been suggested by the Under-Secretary of State that it will reach about £31 million in 1982–83. I accept that these are dramatic increases but they have been paralleled in England. In 1970 criminal legal aid costs in England were about £8 million. By 1981–82 they had increased to over £100 million. The increase is not a unique Scottish phenomenon.

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It is perhaps relevant to remind the Minister that, for example, the costs of running the Crown Office between 1978–79 and 1982–83—this is something entirely within his own control—increased from £3·7 million to £8·1 million. I accept that there is a problem, but it is right to put it in perspective. The average cost of the criminal account between 1978–79 and 1981–82 has increased by 67 per cent. but it is fair to remind the Minister that in the same period the retail price index increased by over 50 per cent. Given the rise in the number of criminal cases because of the increase in crime under this Government and the general escalation in prices, one would expect a substantial increase in costs in any event.

The point that we wish to hammer home in the next few minutes is that we must not have a legal aid system that is tailored to please the Exchequer and the Treasury. The system must be constructed in a way that gives adequate cover to those who may be in hazard before the courts, who have a stateable defence and who are not in a position to finance it privately. The costs of litigation in both the criminal and civil courts are now substantial. The Minister should reconcile himself to the fact that we shall probably have to pay increasing sums to protect the essential liberty of the subject, the right to be properly defended if he is in trouble with the law, whether it be the civil or criminal law.

The Minister may be able to reassure me that he is happy to accept the sense of the amendment if not the wording of it. That in itself would be of considerable assistance to my right hon. and hon. Friends. If the Minister were to say "There is just a little too much of a story in the amendment and it is not necessary, but I accept that there is a primary duty to provide adequate and comprehensive legal representation in the civil and criminal courts, which is something that I shall always bear in mind and that will be my overriding priority when it comes to considering the regulations that may be made under the clause", I should not want further to delay the passage of the Bill.

The problem is that we are plunging into unknown territory. The Under-Secretary of State talked in Committee about the varying rates of success in legal aid applications in the courts in different areas in Scotland. He said that some courts had been too niggardly while others had been more generous. Perhaps it was typical that he refused to say exactly what he thought the right balance should be. We rightly pressed him on the need to extend the legal aid system to take account of tribunals, which are becoming increasingly important in the legal experience of ordinary citizens. His response was to give us little except an obvious reference to the availability of legal aid advice and assistance before the representational part of the tribunal came into play—in other words, preliminary advice as distinct from representation.

The lay members who staff Leith citizens advice bureau have made strong representations to me. They have said clearly and forcefully that they are increasingly aware of their difficulties and shortcomings when they must represent people before tribunals, because legal aid is not available. They feel that sometimes, with the best will in the world, they cannot do as good a job as they would like. When the Minister discusses the new system, I hope that he will give some reassurance on that point.

We have not had adequate cover in the criminal courts. The Solicitor-General works at a more rarified level than I did when I worked as a lawyer. Nevertheless, he must know that there are many occasions when legal aid in the criminal courts is refused and it is not in the interests of justice. For example, a single unemployed man who lives with his parents and receives £20 a week in benefit has little chance of organising and financing a proper defence with recognition of witnesses, court time and the rest.

We are giving Ministers a blank cheque. Moreover, it is being signed in uncomfortable circumstances. Conservative Members have talked of value for money, the costs getting out of control and unnecessary work being done.

We must demand some reassurance from the Solicitor-General now. If he accepts the amendment or at least its spirit, he will be doing something to reassure those people who genuinely feel that there is a danger of our moving towards a two-tier system. It is satisfactory that in Scotland even people who are extremely poor can obtain legal representation. We may get to a point where someone who is disadvantaged may only be able to get second-class legal service because of a lack of an adequate spread of quality representation which the legal aid scheme, of which we can be proud, has provided until now.

Is the Solicitor-General satisfied with the working of he legal aid scheme? Inevitably the problems that Members of Parliament face are those of people who feel that they have been badly treated by a refusal of legal aid. The Solicitor-General must take account of what is not adequately borne in mind by solicitors in Scotland—people who apply for legal aid do not understand the law. What is more, they may find if difficult to understand words that are perfectly plain to a lawyer. What may be a clear letter to a lawyer is probably gobbledegook to the average person. Something must be done about that.

When legal aid is refused, a person's solicitor should be duty bound to advise him as clearly as he can, verbally and in writing, of any rights of appeal that he may have against that refusal of legal aid. I recently had a case of a young man who had been in trouble from time to time and who applied for legal aid to bring a case of wrongful arrest against the police. He was refused legal aid on the ground that the case was unreasonable. I have now seen the letter, six months after the event. There is nothing in it to tell that young man whom he should see or what he should do if he is not satisfied. Eventually, a sympathetic neighbour brought him to see me. We went through the case. I have to do my best to discover the reasons for the refusal and to ensure that they are spelt out properly so that a feeling of injustice is not perpetrated.

Will the Solicitor-General advise me whether any method of appeal is properly explained to those people whose claim for legal aid is turned down?

My second point is about the first three clauses of the Bill and legal aid in claims to vary alimony in the Court of Session or a sheriff court. I hope that I am right to assume that as a result of changes to earlier clauses in the Bill which allowed divorce actions to take place in a sheriff court an alimony settlement can also be taken care of in the sheriff courts. That gives rise to the possibility of an anomaly which should be examined.

What happens if an alimony has been settled by the Court of Session? Does the person who wishes to vary the amount of alimony have to go to the Court of Session for that to happen or can he go the sheriff court? This issue is related to legal aid. A few weeks ago a man told me that he had become redundant in September 1982. He has no income other than social security but he must make an alimony payment every week. The state will not help him to make that payment. His ex-wife will not claim social security on her own behalf so he is building up tremendous arrears in his alimony payments. He asked me how he can go back to work because of those arrears. Through his solicitor, he applied to the Court of Session to have the alimony payment varied. That was way back in September. A fortnight ago, he was advised that there was no hint when his case might be heard in the Court of Session. Every week, his alimony payments build up. He has no recourse—the debt is building up all the time and he must eventually pay it.

It is ridiculous that that man must wait so long. It has been suggested that one of the reasons for the delay is that his claim for legal aid is taking up the time. Either way, the man is in serious financial difficulties. He may not be helped by the proposed change in the law. I suspect that that is so. We must wait and see. Nevertheless, will the Solicitor-General say whether claims for variation in an alimony payment that has been set by the Court of Session can be changed in the sheriff courts?

Finally, what is the precise date when the Bill will come into force? The House passes eminently reasonable legislation with the best spirit in the world, but finds years later that sections of an Act have never been brought into force. I shall not give examples of that. If I did, I should speak from now until midnight, which would not make me popular with many of my hon. Friends.

I hope that the Solicitor-General will reassure me on those points. If he wishes to reply by letter I shall understand, but I would prefer an answer today.

After the shenanigans and running about of a few minutes ago, I felt the importance of the principle that when Bills relating to Scotland come before the House they should be discussed and not hurried through as quickly as possible. I should be extremely pleased for Bills such as this to be discussed not here but in an assembly in Scotland. However, while these issues are dealt with here, they must be discussed here.

This is the first time that the Bill has been discussed on the Floor of the House. Its Second Reading took place in the Scottish Grand Committee. Although the Opposition do not object to the Bill, especially clause 3, my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) was right to table this amendment so that we could express our underlying suspicion about the Government's motive in introducing the clause. The Opposition feel that the principle is right, but we are not sure that it is being introduced for the right reasons. We said in Committee and on Second Reading that cheapness of the legal aid system rather than efficiency is what the Government are after.

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The Government too often confuse cheapness with efficiency. They think that they are one and the same thing. They are not. To me and my hon. Friends, an efficient legal aid system is one that ensures that a person who is in need of legal help receives it. Poor people should have the same chances of obtaining proper legal representation in the courts as those who have money. Too often in the past, before the introduction of legal aid, that was not so. Even to this day, it is fair to say that the better off one is, the better chance one has of obtaining justice in our courts. Legal aid is designed to stop that.

Therefore, we must ensure that we have the best possible system. My hon. Friend the Member for Garscadden is going some way towards achieving it. In a recent case I spent much of the evening on the telephone to a legal company and the police station. Legal aid should be extended to people who are in custody in police stations. It might be a benefit over the weekends. We have a worry and suspicion that the Government are simply trying to save yet more public money through the Bill. We have had their assurances, and we shall watch very carefully what happens.

Legal aid is available for lawyers who give advice to people who come before tribunals. It should be available to other people who give advice to those who come before tribunals. My hon. Friend the Member for Garscadden, who is a lawyer, expresses shocked astonishment. In industrial tribunals, trade union officials and others represent people. Their expertise is often better than that of lawyers. They, as well as lawyers and solicitors, should be entitled to legal aid.

We should also extend the principle of legal aid to those who actually appear at tribunals to represent people. They do not just give advice. I do not include some of my hon. Friends in that, who I gather appear at tribunals for their constituents. Other people who appear at tribunals to represent people should be entitled to legal aid, even if it simply covers their expenses.

I know that at this late stage my hon. Friend may not press his amendment to a Division if the Solicitor-General does not accept it. However, he is putting down a marker to the Government that we shall watch carefully the way in which the Government administer clause 3 so that we can ensure that the legal aid system does what it is designed to do. It should not save the Government money or give the legal profession extra money; it should ensure that poor people have a fair deal in the courts.

I give my support on behalf of the Social Democratic party to the principle underlined in the amendment. On the face of it it seems inadequate to have provisions in clause 3 empowering the Secretary of State to make regulations for legal aid as seems to him appropriate without a governing principle as the background against which the regulations are made.

I acknowledge that in making his regulations under clause 3(1)(d), it is open to the Secretary of State to
"prescribe the general principles in accordance with which those who may be responsible in that regard should conduct any such assessment, taxation or review"
However, the power in clause 3 is wide. It would have seemed appropriate for Parliament to set forth in the clause the general objective of legal aid. Although the wording in the amendment moved by the hon. Member for Glasgow. Garscadden (Mr. Dewar) is not wholly appropriate—he acknowledged that there might be a better way of putting it—I have no doubt that the underlying purpose of the amendment should have the support of the House. Therefore, I hope that the Solicitor-General will give the assurance sought by the hon. Gentleman.

The purpose of legal aid provisions should be to provide adequate and comprehensive legal representation. The governing consideration should not be the possibilities of reducing public expenditure. If the regulations promulgated by the Secretary of State, subject to the conditions proposed in the amendment—the "shall have regard" principle—were thought not to have regard to that duty, would it be possible to strike them down? It would be of interest to know whether it would be ultra vires for the Secretary of State to promulgate such regulations without having regard to that duty, if the amendment were accepted.

I hope that the Solicitor-General can set our minds at ease by saying that the Government intend that primary duty to be observed by the Secretary of State. It cannot be wholly satisfactory to have such an assurance, as the legislative history of the Bill cannot be prayed in aid in the courts to support a claimant of legal aid, if it is turned down under the Secretary of State's regulations. However, such an assurance would go some way towards meeting our anxieties.

I shall answer first the specific points that were raised by the hon. Member for Aberdeen, North (Mr. Hughes). He referred to an application to make a claim against the police for wrongful imprisonment. I understand from what he said that that was a civil claim. In such circumstances there should be a right of appeal. If the hon. Gentleman would like to write to me in greater detail about that case, I shall be able to deal with the matter more satisfactorily.

With regard to aliment or variations of maintenance orders, which might be the simplest term to use, I hope that I can reassure the hon. Gentleman that not only under the Bill but under existing legislation it is already possible to provide for such variation orders to be made in the sheriff court. That will happen after the Bill passes into law.

I take something of a swerve as I cannot give the hon. Gentleman a definite date for the implementation of all the provisions of the Bill, but generally speaking it is hoped that the transfer or the extension of jurisdiction in divorce matters to the sheriff court will be achieved not in 1983, but during 1984. Clause 2 allows for the variation in the requirement of corroboration. That provision might be brought into effect at an early date.

The hon. Gentleman put his finger on an important point about the assessment of means by the DHSS to establish the financial eligibility of applicants. Sometimes that can take some months to determine, especially if there has been a change in the circumstances of the applicant, for example if he has lost his job. Sometimes the Law Society of Scotland is accused of taking an unconscionable time to process a legal aid application when in fact a complicated investigation is made into the financial status of the applicant. That is the cause of the delay. The Government are concerned at these delays, and are considering what can be done to improve matters.

I have been asked about the possible extension of legal aid to tribunals. We considered that matter in Committee, and it has been considered frequently in the House. Few people would like to see the extension of legal aid to tribunals. In those circumstances, there are some reservations about so doing, particularly where the tribunal is informal. If such tribunals became overladen with legal arrangements, they might work less successfully.

The short answer is that, however undesirable that may be—whether one uses the term "cascading" or otherwise—it is difficult enough at present to fund the existing requirements of legal aid in civil and criminal actions without looking to further extensions of the areas in which it might be available.

I am somewhat anxious about trading statistics with the hon. Gentleman. Whenever I or my hon. Friend the Under-Secretary have attempted to explain the size of the problem, it is seen immediately as a suspicious set of circumstances and is taken as a clear indication that the Government are hell-bent on dismantling the legal aid services that are provided.

As hon. Members will appreciate, that is far from the truth. There is nothing in the Bill that sets about dismantling the legal aid provision that has been made in Scotland since the introduction of that facility.

One set of statistics that might interest the hon. Gentleman is that the cost of criminal legal aid in Scotland in 1971 was £0·75 million. After allowing for inflation, that figure might have been expected to rise in a decade to about £3 million. During that period there was an unfortunate increase in the number of crimes committed in Scotland. Accordingly, there were about 25 per cent. more applications for legal aid. Nevertheless, during that period, the cost of criminal legal aid rose from £0·75 million to about £17 million.

I do not think that anyone looking at this problem can be under any doubt whatsoever that there has been a staggering increase. It is right that the House should ensure that we are getting value for money from the legal aid service that is being provided out of taxpayers' money. The Government would be abdicating their responsibilities if they failed to look at that.

Some people feel that these provisions—particularly clause 3 and to a lesser extent clause 4—set up a considerable scheme to demolish the legal aid system.

As I said on Second Reading, the Lord President of the Court of Session, who has the responsibility for such matters at the present time, said
"that the present arrangements placed him in an invidious position between his responsibilities to the legal profession and his relationship with the Government of the day."—[Official Report, Scottish Grand Committee, 22 November 1982; c. 7.]lb/>
The aim of legal aid legislation is to secure that legal aid is available where it is most required, having regard to the financial eligibility of the applicant, the merits of the case in civil actions and the interests of justice in criminal cases. It may be necessary from time to time to review the arrangements in order to ascertain how far legal aid is made available to the most deserving cases. That is not strictly a matter for the Bill.

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The aim of the Bill is to secure a fee structure that takes due account of lawyers' costs and relates remuneration to work reasonably and necessarily done. In considering increases in fees, we shall have regard to those costs and increases in fees and to the relevant guidelines for professional remuneration for public services. It is at this stage not possible to predict what form of fee structure will emerge, but I have no reason to believe that it will be such that lawyers will be reluctant to provide their services.

The hon. Gentleman is concerned that in some way a fee structure will emerge that will be so miserly that the best in the profession will in one way or another refuse to participate in the legal aid scheme, thereby creating a second-class system.

My Friend the hon. Member for Glasgow, Garscadden (Mr. Dewar) made a point about the attitude of the Government to legal aid, and that worries many people. What the Solicitor-General for Scotland said about the difficulties in funding the present scheme gives rise to further suspicions in the minds of many people, especially in view of the statements made by the Lord Chancellor and other senior members of the legal profession. The Solicitor-General for Scotland is not doing too good a job in reassuring me.

At the centre of this issue is the transfer of responsibility for the setting of fees and the establishment of a proper structure from the Lord President of the Court of Session in Scotland to the Secretary of State for Scotland.

I have said on more than one occasion that the Lord President finds himself in an invidious position. He must on the one hand deal with the Government and the Treasury, and on the other he has his responsibilities to the legal profession. The Lord President has done that up to now. It is proposed that the Secretary of State should take over that responsibility. Clause 3 does not mean that existing legal aid provisions will totally disappear for those who deserve it because of their financial status or the case that they present to the courts. Those fundamental principles behind our legal aid system will not vanish or be ignored.

It is necessary from time to time to ensure that we are getting value for money and that the legal aid system is the best that can be arranged. The fact that lawyers provide, or would provide, a lower standard of service to legally aided clients has not been represented to me. I would be surprised if either the Law Society or the Faculty of Advocates were to make such representations.

There are examples in health and in other areas where the Government are a major purchaser of professional services. Experience there suggests that the assumption by the Government of responsibility for determining legal aid fees should not materially affect the availability of lawyers to provide the service. As under the present arrangement, a proportion of lawyers may not wish to participate in the legal aid scheme. The right hon. Member for Rutherglen (Mr. MacKenzie) was not a member of the Committee on this Bill. He might be reassured by my saying that, under the existing arrangements, legal aid applications are at present considered by the courts in a criminal case or by a legal aid committee in a civil case. Nothing in this scheme alters that. That is important, and I hope that it will reassure the right hon. Gentleman.

I am much more optimistic than the hon. Member for Garscadden that lawyers will be willing to continue to provide legal aid. It is wrong to suggest that the net effect of simply transferring these responsibilities from the Lord President to the Secretary of State for Scotland, will be to establish a second-class service in Scotland. Although I am not prepared to accept the amendment, I hope that the hon. Gentleman will be reassured that, despite his anxieties, this change in the law will not result in the horrors that he suggests. It is much more of a mechanical arrangement than he seems to suggest.

The hon. and learned Gentleman could ease our minds immediately if he would assert that in framing regulations the Secretary of State will have regard to the need to provide adequate and comprehensive legal representation in the civil and criminal courts. Can he give us that simple and specific assurance?

I have already explained that, under the existing arrangements, the provision of legal aid in criminal matters is largely determined by the court and by legal aid committees in civil matters. To some extent they have a discretion. I could understand the hon. Gentleman's concern if this were a fundamental alteration in the way that legal aid is dispensed. That is not so, and I do not believe that the anxieties that he and other hon. Members have voiced are well-founded.

With the leave of the House, Mr. Deputy Speaker. I hope that the Solicitor-General for Scotland is right. I entirely accept that clause 3 is not necessarily sinister. Had that been so, we would have opposed it in principle.

We approve of the constitutional change, but we are worried about the rhetoric that has surrounded it, not necessarily from the hon. and learned Gentleman but from some of his colleagues. That has resulted in anxiety among many hon. Members, which is understandable in view of what has been said.

I am not impressed with statistics that go back to 1970 or 1971. I cannot remember exactly when the criminal legal aid scheme was introduced, but I suspect that the Solicitor-General for Scotland was taking a base year when it was at a rudimentary stage. That does not necessarily compare like with like.

We accept that the Secretary of State, who pays for the legal aid scheme, should have a controlling say, subject to proper consultation, in the fee structure for advocates and solicitors. I have no objection to that at all. However, it places an enormous onus on the Secretary of State to exercise that power properly. He must remember that his duty is to the public, to the people who use the courts and to the administration of justice—not to the Treasury. That duty sometimes seems to be misplaced, especially when we consider the aggressive tone of some of the speeches that have been made. I accept the hon. and learned Gentleman's assurances, but we shall watch carefully the progress of negotiations and the regulations that are made under this clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 4, in page 3, line 13, leave out lines 13 to 17.— [The Solicitor-General for Scotland.]