HOUSE OF COMMONS
Second Standing Committee on Statutory Instruments, &c.
DRAFT ADVICE AND ASSISTANCE (ASSISTANCE BY WAY OF REPRESENTATION) (SCOTLAND) REGULATIONS 1987
Tuesday 24 March 1987
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The Committee consisted of the following Members:
Chairman: Mr. Albert McQuarrie
Douglas-Hamilton, Lord James (Edinburgh, West)
Fairbairn, Mr. Nicholas (Perth and Kinross)
Fletcher, Sir Alex (Edinburgh, Central)
Forsyth, Mr. Michael (Stirling)
Henderson, Mr. Barry (Fife, North East)
Hirst, Mr. Michael (Strathkelvin and Bearsden)
Johnston, Sir Russell(Inverness, Nairn and Lochaber)
Lambie, Mr. David (Cunninghame, South)
Lang, Mr. Ian (The Parliamentary Under-Secretary of State for Scotland)
McCurley, Mrs. Anna (Renfrew West and Inverclyde)
McTaggart, Mr. Bob (Glasgow, Central)
Malone, Mr. Gerald (Aberdeen, South)
Martin, Mr. Michael J. (Glasgow, Springburn)
Maxton, Mr. John (Glasgow, Cathcart)
Miller, Dr. M. S. (East Kilbride)
Monro, Sir Hector (Dumfries)
Pollock, Mr. Alexander (Moray)
White, Mr. James (Glasgow, Pollok)
Miss P. Helme, Committee Clerk2 3 Second Standing Committee on Statutory Instruments, &c. Tuesday 24 March 1987
[Mr. ALBERT MCQUARRIE in the Chair]
The Parliamentary Under-Secretary of State for Scotland (Mr. Ian Lang): I beg to move, That the Committee has considered the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulation 1987. Section 21(3) of the Legal Aid (Scotland) Act 1986 provides that, subject to certain exceptions, criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion of the first diet at which the accused has tendered a plea of not guilty. One of the exceptions is the automatic availability of legal aid for persons in custody up to the pleading diet. During the passage of the Act, it was made clear that provision would be made by regulation for assistance by way of representation, known as ABWOR, to be made available by solicitors to accused not in custody, who opted to plead guilty or to submit a plea as to the competency or relevancy of the charge, if certain criteria were satisfied. It was said that these criteria would be related to those factors taken into account by the Scottish Legal Aid Board in determining whether legal aid should be made available in the interests of justice, which were relevant to a guilty plea. The regulations make provision accordingly. Regulation 4(a) and (b) set out the circumstances in which ABWOR may be available for pleas as to competency and relevancy and the like, which are comparatively rare, and for even rarer references to the European Court. Regulation 4(c) covers the much commoner case where the accused, who has not previously pleaded not guilty, tenders a plea of guilty and provides that ABWOR continues until the case has been finally disposed of. Regulation 5 sets out the criteria for determining whether ABWOR should be provided. The criteria for pleas as to competency and relevancy and the like are related to seriousness of the offence, the merits of the plea and the reasonableness of making ABWOR available for a specific case. The criteria for guilty pleas are related to factors (a) and (c) of section 24(3) of the Act, namely, the seriousness of the offence and the capacity of the accused to follow the proceedings or make his own plea in mitigation As hon. Members will notice, the decision whether the criteria are met will rest with the solicitor. That is one of the features which we and the board will be monitoring in considering the effectiveness of the 4 arrangements. ABWOR in criminal cases is an important feature of the new arrangements which come into operation on 1 April, and I commend these regulations which make provision for it to the Committee.
Mr. Michael J. Martin (Glasgow, Springburn): I wonder whether the Minister can help me with regard to several legal aid problems that have arisen in my constituency? If the Minister checks his records, he will probably see correspondence about constituents who have never been in trouble with the police before. Yet when they go before the sheriff or magistrate they are refused legal aid because it would not be in the interests of justice for them to receive it. That is the only explanation that they are given. On one occasion, two of my constituents were accused of the serious crime of breaking into a car in the centre of Glasgow. It was in the vicinity of many discotheques where it was reasonable to expect men of their age to be. One of the accused was a car mechanic, so if convicted he could have risked losing his livelihood. Both young men assured me that they had neved been in trouble with the police before, yet they were refused legal aid. It seems strange that they did not get a chance, at least, to have legal representation. In parliamentary questions that have been put down, som by myself and by my hon. Friend the Member for Glasgow, Maryhill (Mr. Craigen), it has been noted that some court districts seem more willing to give legal aid than others. I seem to remember the Kilmarnock district court and sheriff court have the worst reputation for refusing legal aid, so a person's chances of obtaining legal aid seem to depend very much on where he is arrested. If there is uniformity in the rules for legal aid—
The Chairman: Order. The hon. and learned Member for Perth and Kinross (Mr. Fairbairn) must not read newspapers in the Committee Room.
Mr. Fairbairn (Perth and Kinross): I was looking for a reference, Mr. McQuarrie.
Mr. Martin: Thank you, Mr. McQuarrie. It makes a change from me going out of order. I should like to know whether any uniform guidance is given to sheriffs and lay magistrates so that a person's right to legal aid is not determined by the area court before which he appears.
Mr. Alexander Pollock (Moray): I should like briefly to raise a matter with my hon. Friend the Minister concerning regulation 5(1)(b), which states that the solicitor to whom application has been made must be satisfied that "there are substantial grounds for tendering the plea or…raising the question". I am curious about the use of the word "substantial". How will the solicitor be able to satisfy 5 himself that there are substantial grounds as required under these regulations? I am thinking of the parallel of legal aid before the matter comes to court in the normal way. A I understand it, the test has always been, "Is there probabilis causa?" That is the test on which legal aid is thereafter granted. When the matter reaches the court, the test for the court is rather different, and in criminal matters one would be looking at questions of sufficiency of evidence, which is yet another test. I should be grateful if the Minister could amplify the basis on which the word "substantial" has been used and the definition that he attaches to it. Any information that he can provide on that would be very welcome.
Mr. Nicholas Fairbairn (Perth and Kinross): I associate myself with my hon. Friend's remarks because if there are grounds for tendering the plea or raising the question it is a solicitor's bounden duty under his oath as a servant of justice to raise them. It would be a grotesque breach of professional conduct if he were to say, "There are grounds, but I adjudge them not to be substantial grounds". What is a substantial ground? There is many a case in which one sets off thinking that there is not much likelihood of winning, but which one may win. The regulation therefore seems a most inappropriate introduction into the law and has no basis on any of the tests of proof which presently apply to the law of Scotland. The same goes for regulation 5(1)(a), which states: "the offence is such that if proved it is likely that the court will impose a sentence which would deprive the applicant of his liberty". I had a plea in Dundee High Court yesterday in which I thought that it was unlikely that the court would be mad enough to impose a sentence of imprisonment. Being perverse, however, it did impose such a sentence. The previous case concerned a woman importing into Dundee, for the third time, lysergic acid from Holland. If I had been asked what would happen to her, I should have said that she was "likely" to get five years' imprisonment. In fact, she received a deferred sentence. If I had been asked what would happen to my client—a first offender whose only offence, which the Crown accepted, was minor indecent assault —I should have said that he would be sent back to Ireland whence he came and where he had a job. In fact, he was sent to prison. So the word "likely" does not mean anything. The use of words such as "likely" and "substantial" which are incapable of definition is inappropriate to the law.
Mr. Lang: We have had a short but useful debate in which several interesting points have been raised. Today we are concerned with regulations relating to assistance by way of representation. There are regulations affecting other aspects of legal 6 aid that we shall have an opportunity to debate at a later date. The hon. Member for Glasgow, Springburn (Mr. Martin) referred to some of his constituents, about who he has written to me. I shall avoid commenting in Committee on specific cases, but if he will refresh my memory as to their names after our proceedings today I shall look again at the correspondence to see whether I can clarify the position further. The hon. Member for Springburn mentioned the refusal of legal aid in the context of a constituent losing his livelihood. Under the regulations, if the accused pleaded guilty assistance by way of representation would be available if there was a danger of the loss of his livelihood. If the accused pleaded not guilty, he could apply to the Scottish Legal Aid Board which, it is hoped, will secure greater consistency in future. The hon. Gentleman will be aware that we have recently made new arrangements for the provision of legal aid, and the Scottish Legal Aid Board begins its operations on 1st April.
Mr. Martin: It is not uncommon, especially in district courts, for solicitors who were able to get legal aid for their clients, not to turn up on the day of the trial. That happens frequently in Glasgow courts. Will the Scottish Legal Aid Board have any control over solicitors who have a bad name for not turning up in court? In other words, will those solicitors be allowed to represent clients who are on legal aid?
Mr. Lang: I should be cautious about intervening on the standard of behaviour of the legal profession. The regulations will not affect that, and professional discipline will remain primarily with the Law Society, which I am sure would wish to have such behaviour brought to its attention.
Mr. Fairburn: Before the matter reaches the Law Society, the discipline of a solicitor rests with the court. If a solicitor fails to turn up for a diet of proof or trial, he is, theoretically, in contempt of court. It is not uncommon—it was recently ruled in the Dundee sheriff court—that such a solicitor has to pay the expenses for his non-appearance and non-proof, and the expenses of the witnesses and the plaintiff. There is thus a remedy to the problem in the hands of all judges from the humblest to the highest.
Mr. Martin: It is good to have that on record.
Mr. Lang: I am sure that the Committee is grateful to have had counsel's opinion, which I presume is free of cost on this occasion, even though the question was not asked by a solicitor. My hon. Friend the Member for Moray (Mr. Pollock) and my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairburn) raised points arising from regulation 5, and were particularly concerned about the meaning of the words "substantial" and "likely". Such words are meat and drink to the legal profession because they offer scope for interpretation and divergence of view. 7 In the context of these regulations, the solicitor is the judge of "substantial grounds." "Substantial" is also used in section 24(3)(b) of the Legal Aid (Scotland Act 1986 and the word "likely" in section 24(3). Although I did not have the good fortune to serve on the Committee on that measure, I dare say those words may have been debated in that context. If an offender is liable to be sent to prison for the first time, the court has a duty on application to supply legal aid if financial circumstances justify it. I emphasise that we shall monitor the regulations closely to ensure that they work satisfactorily. I am sure that the self-interest of the solicitor is also served by making a sound judgment as to eligibility for assistance by way of representation. I hope that that will lead to the effective interpretation and application of the regulations.
Mr. Pollock: In the light of my hon. Friend's remarks, which are meant to help the Committee, as to what he expects the solicitor's role to be, the use of the word "substantial" seems, with respect, to be otiose because the professional standards by which a solicitor has to operate mean that it would be monstrous to pray in aid regulation 5(1)(b) and say, "My ground was merely tenuous." The solicitor would be failing in his duty if he did that. He must satisfy himself that the ground exists. That is surely the appropriate test and there is no real place for the word "substantial."
Mr. Lang: My hon. Friend may well be right. That would be true of all types of regulations and, indeed, of legislation. On the other hand, although 8 the word may be otiose my hon. Friend may agree that it gives some guidance, which might be more appropriate to the layman than to the solicitor, and as such is on balance helpful to the solicitor. The fact that the regulations repeat a word already used in the context of the Legal Aid (Scotland) Act may be a worthwhile echo of the position there.
Mr. Fairbairn: For the guidance of the Committee, is my hon. Friend the Minister saying that the argument that he has just advanced is a substantial ground or merely a ground for our believeing it to be sound?
Mr. Lang: I suggest that it is a likely ground for believing it to be a substantially sound reason for supporting the regulations as they stand. Assistance by way of representation is one of the features of the new arrangements for legal aid, advice and assistance. Accordingly, we and the board will wish to keep a close watch on how the system works. If adjustments prove necessary in the light of experience, we shall certainly be prepared to make them. I hope that the new arrangements will be given a fair wind and operated sensibly—and I hope that "sensibly" does not have to be defined in legislation. I commend the motion to the Committee.
Question put and agreed to.
Resolved, That the Committee has considered the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1987.
Committee rose at Twelve minutes to One o'clock.
THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Mr. ALBERT MCQUARRIE, Chairman
McQuarrie, Mr Albert (Chairman)
Douglas-Hamilton, Lord James
Monro, Sir Hector