PARLIAMENTARY DEBATES

HOUSE OF COMMONS

OFFICIAL REPORT

First Scottish Standing Committee

CIVIL EVIDENCE (SCOTLAND) BILL [LORDS]

Fourth Sitting

Tuesday 28 June 1988

CONTENTS

New clause considered.

SCHEDULE agreed to.

Bill, as amended, to be reported.

Committee rose at one minute to Eleven o'clock.

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111 First Scottish Standing Committee Tuesday 28 July 1988

[MR. GERAINT HOWELLS in the Chair]

Civil Evidence (Scotland) Bill [Lords] New Clause 1
LEGAL AID IN RELATION TO CIVIL PROCEEDINGS

Question proposed [23 June], That the clause be read a Second time.

10.30 am

Question again proposed.

Mr. Frank Doran (Aberdeen, South): We were discussing new clause 1, which was tabled by Opposition Members to provide an opportunity to discuss problems in the legal aid scheme. I shall not repeat the strong arguments put forward by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), but I want to impress on the Minister the serious concern of the legal profession in Scotland about the operation of the new regulations. The legal profession has several fears. First, the scheme leads to considerable delays. I said at our previous sitting that I have a great deal of experience of the old legal aid scheme, which was operated by the Law Society of Scotland, but I have only one year's experience of the new Scottish Legal Aid Board scheme. However, during that short period I was most impressed, as were most Scottish solicitors, by the considerable time taken to deal with legal aid applications. That has a serious effect on the applicants and on the process of dealing with litigation in the courts, so I urge the Minister to consider seriously the difficulties illustrated in the examples that were outlined by my hon. Friend the Member for Garscadden. Secondly, the difficulties that many firms of solicitors face in Scotland are another serious aspect. Before I was elected to the House, I ran a small practice that was geared to the legal aid system. The bulk of our income came from legal aid—both criminal and civil cases—and from the legal advice and assistance scheme. When I first started out, starry-eyed, from university, I thought that it was an attempt to deal with what many considered to be a gap in the market. There was a lack of specialist knowledge in dealing with a multitude of cases involving criminal and civil law, housing, landlord and tenant law, unemployment and benifit. They are all important aspects where legal advice is often necessary. The legal aid system benefits both sides—the Government Departments that administer supplementary benefit and housing benefit schemes, as well as the clients who claim. It sharpens the system and makes it operate far more effectively. So, 112 in the long run, the work done by solicitors benefits the community and Governent Departments. Firms such as mine found that it was difficult to cope with the pressure that the introduction of the Scottish Legal Aid Board brought about. Apart from the usual business problem of cash flow, when the rate of dealing with legal aid applications slowed down, we had to deal with the new bureaucratic regulations. There were few abuses of the system operated under the Law Society of Scotland, but the regulations that the Scottish Legal Aid Board was required to operate assumed that abuses would arise. It took no account of the previous good record of the Law Society of Scotland and its members. The system operated from the worst possible premise; it anticipated abuse. I do not claim that there was no abuse, but it did not deserve the regulations, strictures and barriers that were introduced when the Scottish Legal Aid Board came into being. Small firms that were legal-aid oriented found the pressure considerable. With the development of legal aid, larger firms also found that they were placed under considerable pressure because of the delays that were built into the system. I said at our previous sitting that solicitors do not often engender or attract public sympathy, but the Minister and Committee members will accept that the legal profession in Scotland performs a valuable duty. The legal aid and legal advice and assistance schemes are now part of the structure of advice-giving services in the United Kingdom. They are a valuable part of the structure as then ensure access, openness and availability of legal advice to the widest spectrum of the community. It is important that the legal aid system should be seen to operate effectively and that it should be fair to all parties with an interest in it; to the Government who have an interest in keeping public expenditure down, to the solicitors who are required to operate under the scheme and who receive a substantial part of their income from it, and to the client who requires legal aid advice and assistance in the first place. The Bill and the new clause have given us the opportunity to raise serious points on the legal aid scheme in Scotland, which has been operating for about 18 months to two years. It is important for the Minister to reassure us that the board's operation is being reviewed. He was urged by my hon. Friend the Member for Garscadden to consider amentments to the scheme, which he specified. I urge the Minister to advise the Committee of the steps that he is taking to ensure that that review is undertaken and, if possible, to advise the Committee whether he proposes to make any changes to the legal aid scheme. He has shown that he is sensitive to the criticism and that he has considered it, but I should like him to advise the Committee of what he intends to do to meet that criticism.

The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): I warmly welcome you, Mr. Howells, to our Committee. I hope that you will enjoy our deliberations. The hon. Member for Glasgow, Garscadden (Mr. Dewar) has passed his apologies to the Committee 113 for not being able to attend, as he is at a funeral service. However, I shall take trouble in answering his questions, as I know that he will follow our proceedings by reading Hansard. The hon. Member for Aberdeen, South (Mr. Doran) raised several relevant questions, arising from his first-hand experience as a solicitor. Of course, we accept the need to reduce delays as much as possible. Later I shall go through the regulations that we shall submit shortly to assist in that purpose. I accept that the legal profession performs a valuable duty, as the hon. Gentleman suggested. I am an advocate myself. In 1986–87, the final year of the old scheme, the total amount spent on legal aid in Scotland was £47.7 million. The estimate for 1987–88 is £49.3 million. The hon. Gentleman was particularly interested in administration costs, which account for approximately 10 per cent. of the total expenditure. Administrative expenditure in 1986–87 was approximately £3.8 million. The expenditure of the Scottish Legal Aid Board in its first year was approximately £4.7 million. Expenditure has therefore risen. The board has wider responsibilities and duties than those of the Law Society—notably for means assessment and summary criminal aid. The hon. Gentleman asked whether the regulations were geared towards dealing with abuse. The purpose of the Legal Aid (Scotland) Act 1986 and the subordinate regulations was to improve efficiency and accountability, not to deal with abuse. I am glad that the hon. Gentleman accepts that abuse should not be tolerated. I am happy to assure him that our new regulations are aimed not at dealing with abuse but at improving the system. The hon. Member for Garscadden asked why we had introduced an effective date. It ensures that there is proper authority to incur expenditure. The change also ensures that both solicitor and client fully understand the financial implications of applying for legal aid. Finally, the change brings Scottish legal aid into line with the rest of Britain and into line with other areas of strict public sector accountancy. It might be helpful if I were to explain briefly, again in response to the hon. Member for Garscadden, which Scottish provisions were included in the Legal Aid Bill. They are mainly as we announced last December, and include the provision that, where both parties to an action are assisted, the court should be able to restrict the award of expenses against the loser, thus putting right an inadvertent provision of the Legal Aid (Scotland) Act 1986. We also provide that contributions are to be payable direct by the client to the solicitor instead of to the fund, which will save administration at the Scottish Legal Aid Board and help to put the assisted person more nearly into the normal solicitor-client relationship. In addition, we are making minor provisions so that the Scottish Legal Aid Board will meet its own rates bill rather than having the Government making a payment in lieu of rates to the local authority. There are also minor drafting amendments: first, to remove ambiguity as to what is meant by the term "expenses"; secondly, to clarify that the board can use 114 sums recovered in a civil action to meet expenditures from the fund on related matters handled as advice and assistance; and thirdly, to distinguish this power clearly from the set-off powers of the courts. We shall need a further amendment to clarify the point at which the solicitor may recover any unpaid contribution from the client. Any other amendment will be concerned with a similar clarification, or to ensure that we can proceed on the basis that we have already intimated on the various matters that seem appropriate for regulations. I should stress that those matters have been thoroughly discussed with the Scottish Legal Aid Board and the Law Society of Scotland as appropriated, and I am confident that they will usefully improve the delivery of legal aid. I should like to deal briefly with some of the points that were made at our previous sitting. I do not propose to go into great detail, because the House will have the opportunity to consider the regulations, to be brought forward in a few weeks. The hon. Member for Garscadden queried the provisions in the Legal Aid Bill. He also asked about a successful unassisted pursuer, who has only a restricted award of expenses made in his favour. We are proposing nothing new and do not propose to modify the provision for restricting awards of expenses against assisted persons, which is concerned with the case where both parties to the action are assisted. Prior to 1 April 1987, the court could restrict the award of expenses against the loser, but an inadvertent provision of the Legal Aid (Scotland) Act 1986 removed that power in the particular circumstance where both parties were assisted. We are putting that right. The hon. Gentleman asked about the point at which a solicitor might seek reimbursement of outlays. We are concerned with the need to balance the outlays incurred by the solicitor against the expense incurred by the board in making a large number of small payments. At present that balance has been struck, as the hon. Gentleman rightly said, by providing for reimbursement of outlays once they exceed £150. The hon. Gentleman also recorded accurately our intentions as regards the power of the Scottish Legal Aid Board to take a charging order where, in a divorce settlement, the assisted person receives a cash sum with which to buy a house rather than the house itself. That will be provided for in regulations. The regulations will also attempt to deal with the circumstances in which action has to be taken before the legal aid application can be determined. We are in discussion with the Law Society of Scotland about that. As to means assessment being undertaken by the Scottish Legal Aid Board, that has been the position since it began. I very much hope that with an integrated view of the whole application process the board will be able to secure a significant improvement in the time being taken to determine applications. The hon. Gentleman was right to say that the board has plans for a redesigned civil legal aid application form. That is a welcome initiative by the board. It is plainly desirable to obtain from the 115 applicant all the information needed to determine the application at the outset, rather than asking for some information and having to engage in extensive correspondence to extract further details at a later stage. Solicitors will have a key role to play in ensuring that all relevant information is assembled. The hon. Gentleman also implied that the cost of legal aid would increase because more cases would proceed, given the impact of the Bill. However, he has not taken account of the savings that will result from the possibility of relying on uncorroborated or hearsay evidence where the cost of obtaining corroborative evidence or first-hand evidence would be disproportionate. 10.45 am The hon. Member for Angus, East (Mr. Welsh) spoke about the need for legal aid administration to keep pace with the Bill. I expect the board to reassess regularly whether its work can be done more efficiently. There may well be scope for simplifying the probabilis causa test, at least in certain categories of action, but I do not wish to imply that the board would take a relaxed view of the test, if that were taken to mean that dubious cases shold be allowed to proceed. Application of that test ensures that public funds are used only where appropriate. Nothing in the Bill alters the duty placed on the Scottish Legal Aid Board to consider applications on the basis of probabilis causa, so that cases entirely lacking in any prospect of success do not give rise to unnecessary claims on the legal aid fund or take up valuable court time or the resources of the putative opponent. The test would of course be applied whether the application was made by a pursuer or a defender. It is important to bear it in mind that the application of the legal aid scheme to cases under relaxed rules of corroboration would not be novel. It already takes place in actions for damages involving personal injuries under section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. I understand that a similar procedure is likely to be used, in that applicants would be required to confirm that corroborative evidence was not available and that the terms of the Civil Evidence (Scotland) Act were being relied on. As I have often said during our debates—this is an important point—I consider it likely that parties will continue to lead the best corroborative evidence and to bring along the maker of statements, especially where crucial issues of fact are involved. The Bill enables parties to surmount the artificial barriers of the present rules and to proceed with cases which the proof of certain points may require them to rely on uncorroborated or on hearsay evidence. Those factors are relevant to the board's consideration of any legal aid application in civil proceedings and appear to be capable of being accommodated in its usual procedures for dealing with such applications. The brief answer to the point of the hon. Member for Angus, East is that the changes made by the Bill will not have any significant implications for the procedures adopted by the Scottish Legal Aid Board in dealing with civil legal aid applications. Indeed, 116 the aim of the various changes is to simplify the administration of legal aid and to reduce the burden of such administration. I entirely appreciate the concern of the hon. Member for Aberdeen, South and other hon. Members about legal aid and I have listened carefully to their comments. I assure the hon. Gentleman that we shall soon introduce new regulations which will be along the lines of the Secretary of State's statement in December. I repeat that the legal aid implications of the Bill are minimal. It has the advantage of removing the need to lead corroborative evidence on, for example, largely technical points. Our overall view of the Bill's implications is shared by the Scottish Legal Aid Board, which has been thoroughly consulted. General legal aid matters are beyond the scope of the debate, but given the concerns that have been expressed in Committee, it may be helpful to give a brief outline of the amending regulations that will implement the changes announced in December. We have been at pains to consult fully on the terms of the amending regulations, which are to be put before the House shortly. We are concerned to try to get the detail right and to take account of continuing comment. That may produce some alterations, but the main thrust of our proposals was clearly set out in the announcement that we made last December. The hon. Members for Aberdeen, South and for Garscadden wish me to outline the regulations and what they will do. We shall amend the Criminal Legal Aid (Scotland) Regulations 1987 to ensure that breaches of probation orders and community service orders shall be treated as distinct proceedings for the purposes of criminal legal aid. We shall also provide that the services of the duty solicitor can be made available in respect of preliminary pleas or pleas in bar of trial. We shall also make provision for application by those who cannot write and we shall extend the time limit for an application for review of a refusal of legal aid from seven to 10 days. We shall amend the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations to extend the availability of that form of assistance, known as ABWOR, to circumstances where an accused has pleaded guilty without legal representation and is required to attend subsequently in court, and to circumstances where the court orders a proof in mitigation. In addition, we shall leave open the possibility of ABWOR until 14 days after a plea of not guilty has been entered. That is the period within which an accused may apply for summary criminal legal aid. That extension should allow changes of plea to be made at a very early stage, without prejudice to the accused being represented in court for a plea in mitigation A further set of regulations will be required to amend references in the Advice and Assistance (Scotland) Regulations 1987 to the social security legislation. The regulations will also reinforce the obligation on solicitors to notify the board of the award of advice and assistance by providing, in certain circumstances, that failure to notify shall render the solicitor's fees and outlays ineligible for payment. The regulations will also provide that where 117 a second or subsequent solicitor gives advice or assistance to a client, that can be made subject to certain preconditions. The regulations will also embody an extension of the time limit for the submission of accounts and a fees increase. As regards civil legal aid, the regulations will be designed to ensure that legal aid applications that cannot be signed by the applicant are signed by a specified person and that non-United Kingdom applicants are treated in the same way as United Kingdom applicants in respect of disposable income and disposable capital. We may also provide that the Scottish Legal Aid Board rather than the solicitor for the applicant should take certain steps in notifying the opponent. We may provide for the suspension of legal aid in specified circumstances as a more appropriate provision than termination. We also hope to make better provision for urgent steps in proceedings, where we should like to reduce the excessive workload of the board in dealing with emergency applications by enabling the solicitor to take a fuller range of specified steps of behalf of the client when time does not permit consideration of an application by the board in advance of the solicitor taking the necessary action. The regulations will also make provision for the board to sanction any diligence to be carried out more than six months after the date of decree or order. Another measure to avoid unnecessary administration by the board will be an extension of the time limit governing the duty to report the completion of proceedings. We intend to provide that in certain cases the termination of legal aid should no longer lead to consequential financial penalties. In addition, we shall allow for greater flexibility in accounting for sums due to the board but paid direct to the assisted person and we shall simplify the computation and recovery of interest on the balance of contributions unpaid in certain circumstances. Our regulations will also include the provision, which I announced to the House on the occasion of the previous debate on legal aid regulations, whereby the solicitor himself may authorise up to £150 of work as advice and assistance without the prior approval of the board in certain circumstances. Other regulations will be required to implement a fees increase. Some 10 sets of regulations in all are involved, and nine of them are all but settled. I hope to reach final decisions on the remaining set in time to lay the complete package before Parliament next month. I have explained the regulations in some detail in response to Members questions, although the regulations go beyond the scope of the Bill. The Scottish Legal Aid Board is striving to improve its procedures and systems and has consulted extensively with the Law Society of Scotland on a new procedure for civil applications. An agreed procedure will be introduced soon. The new clause would require the Lord Advocate to make a report to Parliament 12 months after the Act comes into force about legal aid in cases affected 118 by the provision. Leaving aside the issue of whether it would be appropriate for the Lord Advocate to report on legal matters, I do not think that such a report is necessary. The new clause envisages a one-off report 12 months into the operation of the legislation, which does not take account of the annual report that the Scottish Legal Aid Board will prepare. That is a more appropriate way to consider the impact of the legislation on the legal aid system. Obviously, the Lord Advocate and the Secretary of State will monitor the operation of the legislation for their respective interests. That, coupled with the Scottish Legal Aid Board annual report, is a more sensible way to ascertain how the legal aid legislation is working. In the light of what I have said, I hope that the hon. Member for Aberdeen, South will not press the new clause of his hon. Friend the Member for Garscadden. I could talk on this subject at enormous length, but I respectfully suggest to the hon. Gentleman that it would be better to wait for the legal aid regulations, to which we are now giving top priority.

Mr. Doran: I apologise that in my anxiety to proceed with my contribution, I failed to welcome you, Mr. Howells, to the Committee. You will be relieved to know that the Committee's proceedings are about to end, so your exposure to the traumas of Scots law will be brief. I welcome the Minister's statement. I shall have to consider his points and study the draft regulations when they are available, but I am grateful for his contribution. I made several notes, but I shall spare the Committee my thoughts because a detailed debate would be best left until after the regulations are published. The new regulations are the subject of consultation with the Law Society of Scotland. I hope that that consultation is now taking place. Will the Minister confirm that?

Lord James Douglas-Hamilton: Yes, that is so. I saw representations of the Law Society last summer, since when thorough consultations have taken place. The regulations where not brought forward earlier because of the consultations with the Law Society of Scotland and the Scottish Legal Aid Board.

Mr. Doran: I am obliged to the Minister. I beg to ask leave to withdraw the motion.

The Chairman: With respect, I cannot accept that because the mover of the new clause, the hon. Member for Glasgow, Garscadden (Mr. Dewar), is not present.

Question put and negatived.

Schedule agreed to.

Question proposed, That the Chairman do report the Bill as amended, to the House.

Lord James Douglas-Hamilton: On a point of order, Mr. Howells. I congratulate you on having taken us through the proceedings with such speed and efficiency and with scrupulous impartiality. 119 I thank also the previous Chairman, Mr. Martin, for looking after our proceedings and the Hansard staff, the police and officials who do an enormous amount of work. The hon. Member for Garscadden seems to specialise in dismantling and putting together Scotland's legal system. Someone said that that is his idea of heaven. We shall certainly take his views and representations into account.

120

The Chairman: I thank the Minister for his kind words. I have enjoyed looking after the interests of Scotland for half an hour.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at one minute to Eleven o'clock.

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

Howells, Mr. Geraint (Chairman)

Buchanan-Smith, Mr.

Doran, Mr.

Douglas-Hamilton, Lord James

Forsyth, Mr. Michael

McAvoy, Mr.

Maclean, Mr.

Tredinnick, Mr.

Walker, Mr. Bill