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Legabl Aid (Scotland)

Volume 114: debated on Monday 6 April 1987

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10.14 pm

I beg to move,

That the draft Advice and Assistance (Financial Conditions) (Scotland) Regulations 1987, which were laid before this House on 31st March, be approved.
With this it might be convenient to consider also the second Government motion,
That the draft Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1987, which were laid before this House on 31st March, be approved.
and the following Opposition prayers :
That an humble Address be presented to Her Majesty, praying that the Criminal Legal Aid (Scotland) (Fees) Regulations 1987 (S.I., 1987, No. 365), dated 5th March 1987, a copy os which was laid before this House on 11th March, be annulled.
That an humble Address be presented to Her Majesty, praying that the Civil Legal Aid (Scotland) (Fees) Regulations 1987 (S.I., 1987, No. 366), dated 5th March 1987, a copy of which was laid before this House on 11th March, be annulled.
That an humble Address he presented to Her Majesty, praying that the Civil Legal Aid (Scotland) Regulations 1987 (S.I., 1987, No. 381), dated 9th March 1987, a copy of which was laid before this House on 11th March, be annulled.
That an humble Address be presented to Her Majesty, praying that the Advice and Assistance (Scotland) Regulations 1987 (S.1., 1987, No. 382), dated 9th March 1987, a copy of which was laid before this House on 11th March, be annulled.
That an humble Address be presented to Her Majesty, praying that the Legal Aid (Scotland) (Children) Regulations 1987 (S.I., 1987, No. 384), dated 7th March 1987, a copy of which was laid before this House on 11th March, be annulled.

These regulations made under the Legal Aid (Scotland) Act 1986 increase the financial limits for legal aid and advice and assistance which were in force under the Legal Aid (Scotland) .Act 1967. They come into operation on the day after they are made. I propose to make them as soon as they are approved by the House.

The timing of the review of supplementary benefits has changed from November to April in two stages. The first was in July 1986, the second is today. The last legal aid uprating was on 25 November 1985 and the uprating provided for in these regulations combines the supplementary benefit changes since November 1985. The regulations increase the income and upper capital limits for civil legal aid and advice and assistance by an average of 3·1 per cent.

The lower income limit for civil legal aid, that is the level below which no contribution from income is payable, is raised from £2,255 a year to £2,325. The upper income limit, that is, the level above which legal aid is not normally available is increased from £5,415 a year to £5,585. The upper capital limit above which legal aid is not normally available is increased from £4,710 to £4,850.

As for advice and assistance, the upper income limit is raised from £114 to £118 a week and the capital limit from £800 to £825. The advice and assistance regulations also increase the lower income limit, below which no contribution is payable, from £54 a week to £56 and set out a revised table for contributions by applicants. The original intention was that the changes should coincide with the introduction of the new Scottish legal aid arrangements, but now the changes will more or less coincide with the changes in the supplementary benefit arrangements.

To turn to the regulations against which the Opposition have prayed, it may be for the convenience of the House if I explain fairly briefly the purpose and effect of the various regulations. They are, of course, all concerned with the implementation of the new arrangements for legal aid, which, like these regulations, came into operation on 1 April. To a large extent the regulations reproduce the gist of regulations that were in operation before 1 April, although they incorporate some features of the schemes, under which the Law Society operated. One of the objectives was to incorporate in the regulations only those items which were necessary, on the basis that the Scottish Legal Aid Board should have a large degree of flexibility in the way in which it operates.

Perhaps I might illustrate that by reference to the Civil Legal Aid (Scotland) Regulations 1987. For example., regulations 5 and 20 set out a few requirements in relation to the form of application for legal aid and for a review of the refusal of legal aid respectively but do not prescribe an application form. Moreover, they do not purport to lay down the procedure which the board should follow in considering applications or requests for review. In this matter they comply with the views expressed during the passage of the Legal Aid (Scotland) Act 1986 that unnecessary constraints should not be placed on the operation of the board. The regulations also make some changes not arising directly from the new legislation, for example, in relation to property recovered and preserved and in the termination of legal aid, but, as I have indicated, most of the changes are to adapt the previous arrangements to the new situation where the board has assumed responsibility. The situations in which legal aid is available and the responsibilities and liabilities of the applicant, of his solicitor and of the board are restated or redefined.

The advice and assistance regulations apply the same principle of translating the requisite parts of the previous regulations and the important elements of the legal advice and assistance scheme to meet the new situation. It has been necessary to add as appropriate provisions relating to assistance by way of representation. If hon. Members find it odd that these were not covered by the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1987, which were approved by the House last month, this is simply because those regulations were subject to affirmative resolution procedure, whereas these are subject to negative procedure. They are appropriately included here since ABWOR is a particular form of advice and assistance.

One of the objectives of the changes made by the Act and by the regulations is to make a clearer distinction between the circumstances in which advice and assistance on the one hand and legal aid on the other are made available. The Legal Aid Central Committee expressed the view that it would be of value to the oversight of the arrangements if information could be obtained about cases where advice and assistance were awarded and no account was submitted. This information would be more readily available under the new arrangements.

The Legal Aid (Scotland) (Children) Regulations largely reproduce the existing arrangements, subject to a degree of clarification, substituting the board for the Law Society and its committees as appropriate. As hon. Members will appreciate, most applications for legal aid arising out of children's hearings are dealt with by the sheriff and the board is generally involved in dealing only with the comparatively few applications relating to appeals to the Court of Session from decisions of the sheriff.

Finally, I should mention the Civil Legal Aid (Scotland) (Fees) Regulations and the Criminal Legal Aid (Scotland) (Fees) Regulations, which simply reproduce the existing fees for civil and criminal legal aid, changing references to the Law Society and the like to references to the board. If these regulations were not in force, it would not be possible to pay the legal profession for work on legal aid applications determined on or after 1 April. I assume that that is not the purpose of the Opposition.

I should make it clear that the regulations do not fix new levels of fees. Offers have been made to the legal profession and it would clearly not be appropriate to discuss them in this context.

Why is it impossible to discuss the fees of solicitors and lawyers? We discuss the pay of nurses and teachers. Why can we not discuss legal fees?

Because the regulations do not relate to the level of fees. They relate to the transition from arrangements handled by the Law Society to the new arrangements handled by the board.

It has been difficult to anticipate which features of the new regulations are disliked by Opposition Members, but I shall do my best to answer any criticisms that they make.

10.22 pm

I welcome the opportunity to look at the new system and the various statutory instruments before us. I should start by declaring an interest as a partner in a Scottish law firm that practises in various centres in the central belt of Scotland and has a not inconsiderable legal practice. I value my connection, but it is somewhat tenuous and technical these days.

We have here a mass of paper, and the reason for it is the birth of SLAB — the Scottish Legal Aid Board. Many changes flow from that. I wish to raise a number of relevant points and I hope that the Minister will deal with them.

The Civil Legal Aid (Financial Conditions) (Scotland) Regulations have made an unexpected appearance on the Floor of the House because of a little local difficulty in a Standing Committee on Statutory Instruments, over which I shall draw a veil. The regulations appear to include a standard and harmless uprating, but I am curious about how the uprating was decided. What criteria are applied?

The limit above which civil legal aid will not be available is to be increased from £5,415 to £5,585—an increase of £170. I am not sure why that figure has been chosen and it would be interesting to hear from the Minister what principles rule decision-making. Does it involve a GDP deflator, or an attempt to cover inflation? The increase looks to be a little less than the increase in inflation, but no doubt the Minister will be able to enlighten us.

The limit below which no contribution is required for civil legal aid remains frozen. That has not been uprated, which no doubt is a welcome, if somewhat meagre, saving from the point of view of the Treasury. Will the Minister say why that has not been uprated, as it will clearly affect some people?

A number of other points arise with regard to civil legal aid. One matter that I ask the Minister to deal with in his summing-up is the main civil legal aid scheme. This point has been drawn to my attention, and it is one of a number on which the Minister must be briefed because they have been put to him forcefully by the Law Society and have been reflected on by a large number of hon. Members.

As I understand it, civil legal aid, when granted under the new regulations, will run from the date of the grant, whereas previously, once civil legal aid was granted it was backdated to when the application was lodged. In other words, while the matter was being considered, if one was reasonably confident that legal aid would be granted, it was possible to prepare the case, knowing that once the legal aid certificate was safely in being one could charge for the work that had been done. Under the new regulations that will not be possible. I suspect that it will not save a substantial amount of money for the legal aid fund. No work will be done until the outcome of the legal aid application is known and the certificate has safely been granted. The result will be a significant and perhaps irritating delay in the processing of the matter. That is something on which the Minister could usefully comment.

I shall leave civil legal aid matters and move on to a matter of considerable importance, the legal aid advice and assistance scheme. We are considering some uprating orders. They are comparatively unexceptionable and I do not make anything of them; for example, the increase from £114 to £118 on the upper income limit and a number of such minor adjustments.

There are, however, some changes, to which the Minister referred, of a more substantive nature that appear to have been introduced. I have been approached by a solicitor who has a substantial practice in welfare law in Scotland. My attention has been drawn to regulation 15 of the Advice and Assistance (Scotland) Regulations 1987. The Minister will recall that this deals with a situation in which property moneys have been preserved or have resulted from the advice and action taken under the Legal Advice and Assistance (Scotland) Amendment (No. 3) Regulations 1986, which allow the fees of a solicitor to be recovered from those moneys or, more important, the exemptions that are allowed in that situation.

I have been told by that solicitor, and I understand it to be true, that there are a number of exemptions that have, in effect, been withdrawn. One exemption that has been mentioned to me is that capital sums paid in lieu of element are not exempt, and there would therefore have to be a recovery of fees under the LAA (No. 3) Regulations scheme if that sum were to hand. Similarly, unemployment, sickness, maternity, invalidity and widow's benefit and industrial injuries benefit which I understand were previously exempt, will no longer be exempt. There are exemptions for redundancy payments and housing benefit. I do not want to enumerate and go down what is a lengthy list, but these are moneys which, if recovered or preserved as a result of a legal action under the LAA (No. 3) Regulations scheme, will now be liable to deduction of fees, which was not the situation under the previous arrangement.

It sounds rather like a carping point, but the Minister will appreciate that, though the sums of money are often comparatively small, the people who are interested in unemployment, sickness or widow's benefit are of modest means, and therefore this could be a matter of some importance to them. The psychological effect of having managed to win an entitlement, perhaps of a modest sum, and then discovering that almost the entire advantage has been eaten up in the payment of fees, seems to be something that should, if at all possible, be avoided. I invite the Minister to look at that situation.

The advice and assistance scheme has been enormously enhanced by the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1987. This new scheme covers a criminal summary case in which a plea of guilty has been tendered. I understand that it is now impossible to get a full grant of legal aid for a plea of guilty and that legal aid becomes applicable only from the point at which a not guilty plea is recorded. No doubt the Minister will confirm that. Any representation in a case where a plea of guilty has been tendered and a person is appearing for sentence must be dealt with under the LAA3 scheme, which is affected by the regulations that we are considering.

I do not want to go in great detail through the ABWOR regulations, but I remind the Minister of one key point. The criteria for representation under the LAA3 scheme where a plea of guilty has been tendered are, first, that the solicitor must be satisfied that it is likely that the court will impose a sentence that could deprive the applicant of his liberty or lead to the loss of his livelihood. There is a second category, with which I do not need to weary the House, where an applicant is infirm, where there is a language difficulty, where there is a problem about mental capacity or some such related feature. By far the most important criterion for represention is where it is likely that the court will impose a sentence that could deprive the applicant of his liberty.

The trouble— this has been well canvassed—is that one is inviting the solicitor to battle on his client's behalf to save him from the possibility of a prison sentence while knowing that he has signed a certificate to get the applicant legal aid and that the applicant will end up in prison. That is rather extraordinary. Why has the Minister not been persuaded of the sensible provision that "may" should be substituted for "likely", so that the solicitor "may" be satisfied that the client may be sentenced to a period in custody? That important point will affect substantially the everyday operation of the courts. Therefore, it is right that it should be given an airing now.

Under the ABWOR arrangements there is special provision for pleas as to the competency of a complaint. An additional criterion has been added:
"it is reasonable in the particular circumstances that assistance by way of representation be made available".
It is extraordinary that assistance should not be available where a plea of guilty is tendered. I can think of a number of situations where there is a pressing public interest and where it certainly is in the interests of justice that a person tendering a plea of guilty should receive representation, but that person will apparently be excluded because the solicitor cannot find it is in his conscience to sign the necessary certificate to the effect that a prison sentence is likely to be imposed.

A person might be concerned about what to an ordinary mortal is a comparatively minor offence, but to an applicant for a civil servant's job a previous conviction would be a bar to employment, so that becomes a matter of great importance. It does not involve the applicant losing his livelihood and therefore is not affected by the present criteria. His future livelihood may be affected, but that is not something that the solicitor can take into account. For example, a disabled person may be likely to lose his licence. That would fundamentally affect the quality of his life, but not his livelihood. Because he is disabled, does not work and his benefit position is not affected, he would not be covered by these criteria.

One might get what, on the face of it, is a comparatively innocent breach of the peace, but one with which anyone who has practised in the courts is familiar and in which there are, for example, overtones of sexual harassment. There might be serious implications for the accused, but it could not be covered under the criteria laid down. It would be unfortunate if in such cases the solicitor had to have an elastic conscience and had to make a mockery of the criteria because they are so narrowly drawn, in order to do what was right by his client. That is an unsatisfactory situation in which to place solicitors, and one which the Minister should carefully consider.

From my own experience I am aware of the real problem of the rather strange condition that representation under the legal aid and advice scheme is available only on behalf of an accused who has not previously tendered a plea of not guilty. This raises fundamental difficulties, and, if the Minister does not recognise them, the Solicitor-General certainly will. A situation may well arise in which someone pleads not guilty and then consults a lawyer. The lawyer may tell him, as perhaps he is duty bound to do. that he does not have a sustainable plea of not guilty and that he should not waste the court's time. He may advise him not to go through all the nonsense of a trial, when at the end of the day he does not have a fighting chance. He may advise him to plead now or perhaps to enter an adjusted and partial plea. The solicitor advises, the client takes the advice, and the result is that he is then denied any possibility of legal representation. That is because he has submitted an original plea of not guilty and cannot get representation under the regulations.

A very common case in the district court in Glasgow is where the accused submits his plea of not guilty by letter, perhaps not really understanding the point at issue. He then takes legal advice and is told that in the interests of everyone he must change his plea. He does so, and immediately disqualifies himself from any from of representation, even if he meets the criteria which otherwise would have allowed him under ABWOR to have the services of a solicitor. That must be nonsense and that is a serious matter for people who might be at risk in the courts. I hope that the Minister will consider that.

There is a rumour that on occasions solicitors encourage their clients to maintain hopeless pleas of not guilty in order to be able to appear at trials and clock up fees. In my experience that is not a common form of malpractice. My experience is that most solicitors very properly look at the matter on its merits and advise a plea of guilty if that is right. This will be a considerable inhibition on the discretion of solicitors, because they will know that immediately they are putting themselves out of the game in terms of the client. This will mean that a large number of people will appear unrepresented in situations where they are at risk and where they clearly ought to have representation. That must be looked at most carefully.

I shall comment briefly on the other matters, because I realise that I have taken much of the time of the House. There has been a great deal of angst and a great deal of proper concern about the 14-day rule that is being imposed. The Minister knows that under section 8(1)(b) of the Criminal Legal Aid (Scotland) Regulations 1987 there is a provision that any legal aid application must be lodged within 14 days of the plea of not guilty being tendered.

I make the same point again. Many clients enter their own pleas. They go along and plead not guilty, or write in and plead not guilty. If it is Glasgow district court, they get a letter back saying that the trial will be held in seven months. That is the waiting time in the district court in Glasgow. The client says to himself, "That is fair, I have lots of time. I do not need to worry about that." After a few months the client realises that the trial is to take place in two or three months' time and goes along to see his solicitor. The first thing that he is told when he walks in is, "I am awfully sorry. Do not bother waiting around. Because you did not make an application within 14 days of submitting your plea of not guilty, you are no longer eligible for legal aid." That is irrespective of how pressing the accused's case may be, or the merits of his defence. That cannot be right.

I have had some correspondence with Ministers about this. They suggested that there was no problem because before he tendered his plea the careful client would prepare his legal aid application. The Solicitor-General must know that clients on summary complaints in our lower courts do not do that kind of thing. They tender their pleas and then think about legal representation, when it is demonstrably too late.

The legal aid application form runs to nine pages of questions in which complexity is piled upon complication. It is carefully drawn up, but the contrast with the previous form is striking. Even if there is consultation with the solicitor within the 14 days, there will be the greatest difficulty in getting the necessary information and the necessary financial evidence that has to be submitted with the application. The result will be that a large number of people who should be represented will be unrepresented. That is bad for the clients and, as I am sure the hon. Member for Moray (Mr. Pollock) will agree, bad for the court.

It will complicate the work of the court considerably if a large number of people who want to be represented have to appear unrepresented because they have missed the time limit. Stipendiaries and sheriffs all privately admit to hating above everything else cases in which the client is unrepresented, but in which important procedural and evidential points may be involved, so that they have to try to do the job of the defence as best they can within the limits of their role to try to ensure that justice is done. I believe that that situation will be infinitely more common as a result of the 14-day rule. The old scheme had a seven-day rule—seven days before the trial. That may be too tight a limit, and no respectable solicitor would want to leave it as late as that, but to take the limit right back to 14 days from the tendering of a not guilty plea is, in my view, a fundamental mistake and should be reconsidered.

I shall deal with the other points in short order. The first relates to the duty solicitor having, at least in legal aid terms, a total monopoly of the custody court in the sheriff and district courts. I appreciate that that is tidy, and on the face of it may save a little money, because if everyone goes through the duty solicitor there is a fairly substantial fee for the first client, followed by a small flat rate fee for the rest, until a cut-off point at which the cycle begins again. That is how I remember it, although it is some time since I had to fill in one of the green forms as a duty solicitor. If other solicitors come in for just one or two cases, on the face of it that may increase the cost.

I do not go for the high-falutin arguments. I think that the Law Society's suggestion that this may be a breach of the European convention on human rights is probably pushing the boat out a bit too far, but in practical terms it is important that the client should have the solicitor of his choice. That solicitor may have seen the client in the cells the day before and may have turned out in the middle of the night for an identification parade—perhaps the Minister will tell us how that is to be paid for under the new scheme—but he will suddenly have to tell the client that he cannot appear for him in court. That will lead to frustration and will greatly puzzle and irritate the client.

If the solicitor knows the client, he may even save money for the system because he will know all the circumstances. He will know about any other charges, whether the client is on bail for another offence, whether he is awaiting sentence on indictment and likely to go away for a long period, and because it is the duty of a solicitor to help the court, he will ensure that the court is properly informed of the circumstances. I believe that the result will be better, more expeditious justice, because the duty solicitor would take very much longer to establish those facts. In terms of efficiency, therefore there is a case for reconsidering that provision.

The arguments that I have advanced will not surprise the Minister. I shall not take up all the other points made by interested parties outside the House, but I believe that those that I have mentioned are important and substantial, and I hope that the Minister will accept that there is a case for reconsidering the position at least in the not too distant future.

I conclude on that note, as I recognise that others may wish to participate. I hope that the House will not feel that I have wearied it with irrelevant points, but that the matters that I have raised are of some substance. We are in the unfortunate but all too typical situation of having before us a series of provisions that we must either take or leave. We cannot amend, improve or tackle some of the points at issue. I accept the Minister's argument that we cannot reject the regulations because that would cause chaos in the system. That would be in no one's interests, and my hon. Friends and I are aware of that.

Given the shotgun nature of the position, the Minister has a duty to accept that there should be positive monitoring of what is happening. He should, perhaps, return in three months' time—or six, if that is more reasonable — with amending legislation, if that proves necessary. Or, if he does not think that that is necessary, he should at least issue a report containing the statistical facts and explain how he believes that the difficulties—I believe that they are real—have been overcome. Some undertaking of that kind is essential, because without it we might do genuine damage to the new system.

We did not oppose the setting up of the Scottish Legal Aid Board. We gave it a fair wind, and we are not trying to wreck it now. It has our good wishes, and I hope that it will be as effective as Ministers think it will be.

We must not remove representation from people who genuinely need it because of the need to economise—in the accountancy sense—on what Ministers have always assured us is a demand-led system. Proper representation is essential, and must not be prejudiced. It is an important foundation of our civil liberties, and I fear that on the edges, and in some significant areas, it will become more difficult for people who are at risk to obtain the sort of advice and help with which a reasonable and proper legal aid system should supply them.

10.46 pm

I remember — when studying law — reading the judgments of a deceased senator of the college of justice who, on appeals, used to say, "There is nothing I could usefully add", and then speak on for five minutes to prove it.

The hon. Member for Glasgow, Garscadden (Mr. Dewar) has gone in considerable detail into the regulations and highlighted some of their shortcomings. I do not want to fall into the trap of repeating what he said. The uprating provisions in the financial conditions order are a source of concern. It appears that we are falling ever further behind the original intention of legal aid, which was introduced in 1949.

Legal aid should enable people of moderate means to have access to the courts. Increasingly, it would appear that, because of the financial limits, one must either be at the poor end of the scale or have considerable resources of one's own. Over the years, that has meant that people have not felt as prepared to pursue legal remedies as they once were.

Two criticisms of the regulations can be made. First, they will lead to further delays in the process of justice in Scotland. That is in no one's interests, and it was not Parliament's intention when the primary legislation was passed. The regulations that bar preparatory work pending a legal aid application apply only to the pursuer. The defender is allowed to carry out preparatory work. If no work is done until the legal aid application comes through, delays could result.

Secondly, the 14-day rule, to which the hon. Member for Garscadden referred, entails the problem that it is not inconceivable that a solicitor acting for the accused might seek an adjournment of the pleading diet to allow proper preparation of the legal aid application before a plea is made, so the 14 days will not start to run. That, too, will add to the delays.

The provision that one may not be able to claim representation if there has already been a not guilty plea could lead to people not changing their pleas in circumstances in which it would be in their own and in the court's interests to do so because that was the only way in which they could qualify for legal aid. All those problems will add to delay.

There are, however, conditions which could make legal aid less available. The financial conditions impose a real limit on access to the courts. There are complaints about the ABWOR system. It is a pity that the hon. Member for Argyll and Bute (Mr. MacKay) is not here, as he made ABWOR almost a term of art in Scots law after our many sittings in Committee.

I do not believe that anybody intended the Act to restrict the availability of legal aid. Indeed, we were continuously assured by Ministers that it would make the system more efficient. The regulations have not lived up to that promise in many respects and they should be monitored closely. If amending legislation, or regulations, to meet our reasonable criticisms is brought forward, we shall be only too pleased to support it.

10.50 pm

I have no interest to declare in this subject, other than the fact that a goodly number of my constituents keep the legal profession in fairly comfortable circumstances.

Having read the Law Society brief and heard what my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) said, I agree that there seems to be concern about the 14-day rule. I confess that I have no great knowledge of this matter, and my constituents have not made representations about it, but it seems worth keeping an eye on.

I am sure that the Minister will respond to the request for a review. If anything is wrong — the Government cannot have foreseen everything—I am sure that they will lay new regulations. That is a practical way in which to deal with the matter.

The new system must be better than the old one. If anyone was unfortunate enough to have his application for legal aid go before a certain stipendiary magistrate in Glasgow, who has caused untold harm in the city——

My hon. Friend can speak for Sheriff David Smith. I shall not name the individual. I do not like naming people. I have had to write to the Minister and the Solicitor-General for Scotland about him. This guy should have been removed quietly behind the scenes because of the damage that he has done to the fairness of the system in Glasgow.

I have in mind genuine constituents who have never been in trouble before. One of the things that disturbs me is the number of young people on their first offence who plead guilty because they do not know the rules or simply because they give in. It is far too easy to say, "It is less bother. You do not get a fair crack of the whip. I might not get legal aid." Someone who is lucky enough to have a job might have to take time off. All the pressure is to plead guilty. That is not healthy.

The board has been under much pressure to get the administration of the new system into gear. I wish it success, but I hope that some of the matters about which concern has been expressed will be monitored carefully and that, if necessary, the Minister will return with suitable amendments.

10.53 pm

There is hardly a Scottish Member of Parliament who has not sensed, during the past year or two, the growing difficulty of getting legal aid, especially for young people.

The criterion of "not in the interests of justice" seems to have been pushed to its limit. It is a new phenomenon, but I have come across it time after time recently, so I am pleased in one sense about the shift. It was quite unjustified that one person should make such a decision. But recently —I am certainly encountering it now—the criterion that justice does not demand the giving of legal aid has been applied to extraordinary types of crime. That, together with the law's delays, which have been bad, have been inimical to the practice of justice in Scotland.

Young people are increasingly encouraged to plead guilty. Names have been mentioned, and we are all worried about "murmuring" judges. It seems that the worst possible crime in Scotland is to murmur a charge, but judges at various levels are human beings, and some very curious things have happened. I am not sure how the board will cope with some of the problems. I hope that the system will be reviewed over not too long a period to see how it is operating.

I examine some of the fees being charged by senior counsel and solicitors, and some of the bad and dangerous decisions that have been made in the refusal of legal aid, and I come to one conclusion : sooner or later, we must move to a proper legal aid system, as we moved towards a proper National Health Service. I am not sure why the legal luminaries on the Conservative Benches are shaking their heads. We should consider some of the detailed forms that lawyers must fill in before they can be paid. The first copy per sheet costs 0·75p, with no more than 250 words per sheet. They have to be sure to mark the factor times 0·75p. There is the citation of witnesses, with each witness worth £3·30. For revising papers drawn up by counsel—for each five sheets or part thereof, £1·65. Those who find it easy to say to a young person "Plead guilty or I will not give legal aid on this occasion" are very good at working out the details of their own fees. We complain about the behaviour of young people, but look at the law and, as Shakespeare said, the law's delay and the proud man's contumely in the shape of some of our sheriffs.

In Glasgow and Edinburgh, the poor souls get only £219·50 for a day in court, but if they went to Aberdeen, Inverness or Dumfries, they would receive £356·50 a day. I measure that against the pay received on a youth training scheme.

Justice should be available to every man. We should not leave the decision to a sheriff, or a board, who may not have enough experience to make a decision. Those who read my piece last week in the Glasgow Herald will know that when I went through all the papers in the case of Paddy Meehan I found him irrefutably guilty, but he was innocent. I was one of those across whose desk the papers passed. Yet a sheriff could decide that there was no justification for granting legal aid in a similar case. The system must be changed.

There is only one way to change the system. In the case of the law, the Government should reverse the mad rush into privatisation. We should have a national legal service, just as we have a national education service and a National Health Service, so that each person can obtain advice and be properly defended, without this highly demeaning process for the legal profession.

The Solicitor-General is nodding. He has a reasonable salary and does not need to charge per sheet. I am in favour of paying reasonable salaries, and against the demeaning process of analysing sheet by sheet the cost of legal advice. It must stop, and the sooner it stops, the better for justice in Scotland.

11 pm

We have had a useful debate. Like the regulations, it has ranged fairly widely. I shall try to cover as many of the points that have been raised as I can, so far as they are relevant to the debate, perhaps even one or two that may not be relevant to the regulations.

I noted with interest the suggestion by the hon. Member for Paisley, South (Mr. Buchan) that the Faculty of Advocates should operate a youth training scheme. He might like to raise that with it himself the next time he is in touch, but I do not think that it would be appropriate for me to do so.

The hon. Member for Glasgow, Garscadden (Mr. Dewar) raised several points. In the context of the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1987, he asked how the limits were decided. The hon. Member for Orkney and Shetland (Mr. Wallace) was also interested in that. The increases are related to increases in supplementary benefit. Since November 1985, they have averaged 3·1 per cent. The hon. Member for Garscadden will recall that social security benefits were raised in two stages, including July 1986, but the increase then would have been only 1·1 per cent., and it did not seem appropriate to make changes in the schedules at that time.

The hon. Member for Garscadden asked why the supplementary benefit capital threshold had been left at£3,000. As it was not increased, the lower capital limit for civil legal aid was similarly not increased.

The hon. Member for Orkney and Shetland referred to the level for those who qualified for legal aid, and managed to imply that a relatively limited number of people qualify. It is a substantial number—90 per cent. of those who qualify make no contribution. The maximum level at which free legal aid is permitted for a single person is £80·40 a week and can rise as high as £10,926 a year for a married couple with four children. The minimum level at which applicants become ineligible for legal aid would be £182·69 a week for a single person, which is quite a substantial figure, and could rise as high as £16,108 per annum for the married couple with four children.

The system is demand-led, as the hon. Member for Garscadden conceded, and it has risen in cost from 1978–79 when it was £7·4 million to £38·5 million in 1985–86. The estimate for 1986–87 is £45·6 million and for 1987–88 it is £48 million. So that answers the charge, which, in fairness to the hon. Gentleman, he did not make, but which many others have made, that the purpose of the rearrangement of the system is to claw back and cut down on those eligible for legal aid and the amounts disbursed in legal aid—[Hots. MEMBERS: "That was not relevant."] It was relevant in the context of what was raised by the hon. Member for Orkney and Shetland. It was the hon. Member for Garscadden who mentioned the term "demand-led", which made my comments relevant.

The hon. Member for Garscadden asked why not pay legal aid from the date of application. That is not possible under the Legal Aid (Scotland) Act 1986, which provides for a clear separation between advice and assistance and any legal aid that is given on the same matter. While that split is most important for criminal proceedings, where criminal legal aid is now being supplemented by the new form of advice and assistance, ABWOR, or assistance by way of representation, a clear division between advice and assistance and legal aid is also helpful for civil proceedings. Advice and assistance will now be separately accounted for, instead of the present practice under which accounts are often not rendered for advice and assistance because it has been subsumed into later legal aid. That will improve accountability and control. If the solicitor and the applicant take action before hearing the outcome of the application, one or both may have to meet the costs if the application is refused. However, that does not differ from the present position. Provision is made for applications to be dealt with as a matter of special urgency where that can be justified.

Will the Minister say whether, in cases where there is defended action and legal aid is sought by the defender, defences can be lodged and no doubt the case can be assisted pending an application for legal aid? Why cannot sauce for the defender goose be sauce for the gander pursuer?

The hon. Gentleman will be aware of the new regulation 18A. He is probably referring to the representations made to us about defenders by the Law Society. But new regulation 18A is not confined to defenders, as the Law Society seems to suggest. For example, it covers the lodging of appearances and the sisting of an action while a legal aid application is determined. We have particularly in mind the interests of third parties other than defenders or pursuers. Pursuers would normally be covered, however, by regulation 18 of the Civil Legal Aid (Scotland) Regulations 1987, which covers applications for legal aid on matters of special urgency—for example, someone seeking an interdict.

The hon. Member for Garscadden raised the question of deductions. I am not absolutely sure about which deductions he is concerned. Is it those that can be made in the calculation of disposable income?

I am sorry if I did not make my position clear. I understand that, under the LAA 3 scheme, if certain moneys were successfully recovered as a result of the legal process that was being funded the fees would not be deducted from them. I gave a number of instances— for example, benefits that are of particular significance in a welfare practice. Under the new regulations, I am told, these are not exempt, and the fees will therefore be clawed back from what is obtained.

I invite the Minister to comment on that simple point. I think that it is in section 15 of the new regulations.

I shall try to answer the question that I think that the hon. Gentleman is asking. If I do not cover it, perhaps he will pursue it with me at a later date.

The exemption of awards of capital or property in matrimonial cases is being restricted to £2,500, partly to remove an anomaly between Scotland and England and Wales which has existed since 1976. Logically, there should be no exemption, as there is none in other cases. However, the limit of £2,500 provides an element of protection in divorce cases. But perhaps the hon. Member is not concerned about capital.

I am sorry; we are at cross purposes. I do not wish the Minister to misunderstand what I am saying.

Let us say that a client comes to see me, as a solicitor, and it is an LAA3 case. As a result of my efforts, £200 or £300 worth of benefits that have been denied to that person are recovered. There are a number of categories of benefit—invalidity benefit, widows' pensions and so on —which at present would go to the client without my fees being recovered from that capital sum. Under the new system, there is no such exemption.

The point has been put to me by a number of solicitors, and I invite the Minister to confirm that it is so. Perhaps the Minister will write to me.

Perhaps I shall, but I shall try to answer the hon. Gentleman's question now.

I think that the hon. Gentleman is referring to schedule 3, concerning capital. No account is taken of a person's main home and its furnishings, his clothing or tools of trade. Deductions are made from his present capital for debts that he will have to meet in the next 12 months, although naturally debts due to him are taken into account.

I could proceed to tell the hon. Gentleman at considerable length the deductions regarding an applicant's disposable income. Deductions are made for expenses—including the expenses of a business and, for an employed person, travelling expenses—for payments to a union or professional association and, if it is reasonable, for the cost of caring for a dependent child while the applicant is working away from home. There are a number of other factors that I could cite to answer the hon. Gentleman's question. However, if he is not satisfied with the points that I have made, perhaps he would like to write to me when he has had an opportunity to read what I have already said in the Official Report.

The hon. Gentleman asked me to say a brief word about the criteria for an award of ABWOR. The Law Society had suggested that the use of the word "likely" was against the spirit of the Act. It is not; it is to be found on the face of the Act, in section 24(3). It has always been the intention, as was stated during the passage of the 1986 Act, that criteria for ABWOR for guilty pleas should be related to the relevant factors taken into account in assessing interests of justice in the case of not-guilty pleas.

The criteria in the ABWOR regulations, which were approved by both Houses last month, are, accordingly, broadly similar to the factors set out in section 24(3)(a) and (c) of the 1986 Act. Section 24(3)(a) states that legal aid will be provided if
"it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to his loss of his livelihood".
It is quite wrong to suggest that the requirement is unfair and against the spirit of the Act.

I had better move on from that point, as it is probably out of order in the context of the present debate.

What is or is not out of order is a matter for the Chair. We are considering the LAA3 scheme; a number of the orders relate to it. As for ABWOR, I should like the Minister to consider the point that it is very easy to imagine a number of cases where there would be a clear public interest in there being representation, but representation is excluded by the narrow nature of the criteria. I suggested a few of the criteria during the debate.

The other devastating point that the Minister ought to deal with is that the client who puts in a plea of not guilty and then takes legal advice and recognises that he must plead guilty is automatically — never mind the circumstances, or the risk that he faces, or the effect on his livelihood—disbarred from any form of representation under the legal aid scheme. That cannot be right. The Minister is under a duty to say a few words about that.

:I fear that you, Mr. Deputy Speaker, will tell me that I have a duty not to do so, but I shall certainly consider what the hon. Gentleman has said. We have already debated upstairs the ABWOR regulations. I fear that the hon. Gentleman was not present when we did so.

The fact that the hon. Gentleman was not on the Committee did not prevent him from attending another Committee hearing the other morning, of which he was not a member. I have covered that point here and also in the debate upstairs on the regulations.

The hon. Member for Orkney and Shetland referred to a guilty plea being entered after a not guilty plea having been entered originally. Again I shall tempt the Chair by answering briefly that point, to which the hon. Member for Garscadden also referred. Assistance by way of representation is available only when the accused has not previously tendered a plea of not guilty. That does not mean that the accused will not be legally represented if he changes his plea to guilty. He must apply for legal aid within 14 days after he has pleaded not guilty. It would be unreasonable to provide that an accused should be able to obtain ABWOR after the Scottish Legal Aid Board had determined that he should not be awarded legal aid. That point is valid also in the context of the debate that was held upstairs.

No, I do not think that I should give way to the hon. Gentleman again. I have given way to him a number of times. I have already answered points that both of us know are out of order in the context of this debate, because they are not the subject of the regulations against which the hon. Gentleman has prayed.

On a point of order, Mr. Deputy Speaker. Is the Minister entitled to decide for himself and for hon. Members what is or is not in order?

I am taking into account the mood of the House tonight.

I fear that I am straining your tolerance, Mr. Deputy Speaker, close to its limit.

The 14-day rule is also part of the criminal legal aid regulations against which the hon. Member for Garscadden has not prayed. I shall tempt your tolerance a little further, Mr. Deputy Speaker, by referring briefly to it, since the hon. Member for Glasgow, Provan (Mr. Brown) also referred to it. It is reasonable and sensible for there to be a date by which applications for legal aid have to be made that relates to the pleading diet rather than to the trial diet. To work backwards from the trial does not seem to be a sensible or a wise move. The suggestion that there should be a seven day limit from the trial seems to be taking it far too close to the date of the trial.

We want to provide for the quicker and more efficient dispensation of justice. I have considered this matter carefully and have had meetings with the Law Society and the Glasgow Bar Association. We have considered their views, and by moving to a 14-day provision from the pleading diet we have to some extent met the case that they put to us. The Legal Aid Board and the Law Society have declared that they intend to make the new system work, and we shall watch it closely and make sure that it does work.

The Minister will remember that I said that there would be difficulties if people, particularly in the lower courts, pleaded not guilty by letter. When they know that their trial date is seven months away it will be very difficult to persuade them to complete the legal aid preparations within 14 days. What would the Minister say to a young man who might face a prison sentence in the impending trial who has missed out on the 14-day rule? If there were a substantial number of such cases, would the Minister be prepared to reconsider the matter?

We shall keep a close watch on the situation and, naturally, if we were to feel that it was not working satisfactorily we should seek a way of making sure that it did. I am certain that as the hon. Gentleman considers it objectively and dispassionately he will realise that it is in the long-term interests of the accused and in the interest of quicker and more efficient dispatch of justice to have the application for legal aid handled at an earlier stage of the proceedings rather than at the last minute, which may be many months after the case originated. That cannot be a satisfactory long-term solution when we are trying to improve the dispatch of justice.

I assure the House that the Government are aware that we are entering a new era with the establishment of the Scottish Legal Aid Board, though the regulations before us tonight do not make many significant changes in the present provisions. We and the board will be keeping a close watch on how the system works in practice. If adjustments in the regulations prove necessary in the light of experience we shall certainly be prepared to make them.

I would not be willing to give a three-month commitment to carrying out a review or, indeed, any specific time commitment, but we shall certainly look closely at the operation of the arrangements and whenever it seems appropriate we shall be willing to consider any changes.

I ask the House to reject the motion against the regulations, which are necessary for the operation of the new arrangements which came into force last week; but to approve the financial conditions regulations laid before it on 31 March.

Question put and agreed to.


That the draft Advice and Assistance (Financial Conditions) (Scotland) Regulations 1987, which were laid before this House on 31st March, be approved.