PARLIAMENTARY DEBATES

HOUSE OF COMMONS

OFFICIAL REPORT

Second Standing Committee on Statutory Instruments, &c.

CRIMINAL LEGAL AID (SCOTLAND) (FEES) AMENDMENT REGULATIONS 1989

LEGAL AID (SCOTLAND) (FEES IN CRIMINAL PROCEEDINGS) AMENDMENT REGULATIONS 1989

CONFIRMATION TO SMALL ESTATES (SCOTLAND) ORDER 1989

Wednesday 19 April 1989

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1

The Committee consisted of the following Members:

Chairman: Mr. Ted Leadbitter

Baldry, Mr. Tony (Banbury)

Buchanan-Smith, Mr. Alick (Kincardine and Deeside)

Burns, Mr. Simon (Chelmsford)

Campbell, Mr. Menzies (Fife, North-East)

Carttiss, Mr. Michael (Great Yarmouth)

Dalyell, Mr. Tam (Linlithgow)

Davis, Mr. David (Boothferry)

Douglas-Hamilton, Lord James (Parliamentary Under-Secretary of State for Scotland)

Eadie, Mr. Alexander (Midlothian)

Galloway, Mr. George (Glasgow, Hillhead)

Greenway, Mr. John (Ryedale)

Hayes, Mr. Jerry (Harlow)

Kirkhope, Mr. Timothy (Leeds, North-East)

McAllion, Mr. John (Dundee, East)

Maclean, Mr. David (Penrith and The Border)

Malins, Mr. Humfrey (Croydon, North-West)

Ross, Mr. Ernie (Dundee, West)

Wilson, Mr. Brian (Cunninghame, North)

Lee, Mr. C. G. Committee Clerk

2
3 Second Standing Committee on Statutory Instruments, &c. Wednesday 19 April 1989

[MR. TED LEADBITTER in the Chair]

Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1989

10.30 am

The Chairman: We have a distinguished visitor today—Mr. Moses Mulele, from the Table Office of Zambia. He is in England for three weeks in order to see how we work. We are pleased to see him and members of the Committee will abide by procedural requirements during this morning's business with more efficiency than ever, excepting, of course, the Chairman.

10.31 am

Mr. Brian Wilson (Cunninghame, North): I beg to move, That the Committee has considered the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1989.

The Chairman: With the agreement of the Committee, it will be convenient to discuss the other orders before us, namely, the Legal Aid (Scotland) (Fees in Criminal Proceedings) Amendment Regulations 1989 and the Confirmation to Small Estates (Scotland) Order 1989.

Mr. Wilson: The best lesson that we can give Zambia is brevity, and I shall not protract proceedings this morning. The figures before us do not reflect increased inflation, or protect the interests of the legal profession or their clients. The availability of legal aid should be extended. The regulations will result in a further contraction of legal aid, which is being made less attractive to the legal profession. The principle of equal access to legal advice and representation is gradually being eroded.

Mr. Tam Dalyell (Linlithgow): What is the figure for public expenditure on criminal legal aid?

10.32 am

The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): The Secretary of State considers several factors in determining the level of fees in legal aid. They include Government policy on public expenditure and on promoting efficiency and competition, the availability of lawyers, the representations made by the legal profession and the competing demands on the resources for which the Secretary of State is responsible. The Committee may know that similar regulations, which increased the fees paid to the Bar in England 4 and Wales, came into force as part of the Legal Aid Regulations that were approved by both Houses at the end of March and the beginning of April. The two sets of regulations before the Committee require negative resolution procedure to raise the fees for criminal legal aid work undertaken by advocates from 1 April. Two other sets of regulations, which are also subject to the negative resolution procedure and which came into force on 1 April, uprated the fees paid to advocates who undertake civil legal aid work. The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1989 increased, by 6 per cent. the fees allowable to counsel for criminal legal aid given under the Legal Aid (Scotland) Act 1986. The Legal Aid (Scotland) (Fees in Criminal Proceedings) Amendment Regulations 1989 increased, by 6 per cent., the fees allowable to counsel for criminal legal aid under the Legal Aid (Scotland) Act 1967. Despite its general repeal by the Legal Aid (Scotland) Act 1986, the Legal Aid (Scotland) Act 1967 continues to cover applications for legal aid that were granted before the commencement of the 1986 Act on 1 April 1987.

Mr. Dalyell: It is all very well for the Minister to read out figures. Can he give the Committee an average figure for the sums of money that have been spent on legal aid in Scotland?

Lord James Douglas-Hamilton: The Scottish Legal Aid board's accounts for 1988–89 will be presented to Parliament. In the past financial year, £54 million was spent on legal aid in Scotland. That is a 21 per cent. increase on the expenditure of the previous financial year.

Mr. Dalyell: That is a hell of a lot of money.

Lord James Douglas-Hamilton: The hon. Gentleman is right. The Scottish Legal Aid board, however, must determine how to handle its expenditure which is demand led. It is an independent body, which operates professionally. A breakdown of the Scottish Legal Aid board's net expenditure on legal aid is available. The Faculty of Advocates has agreed to the uprating, which is applied to proceedings concluded on or after 1 April 1989, which came into operation on that date. Increasing the fees under both Acts will ensure that remuneration will be payable at the same rate, regardless of the date when criminal legal aid was granted. The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1989 amend the 1986 Act, and the Legal Aid (Scotland) (Fees in Civil Proceedings) Amendment Regulations 1989 amend the 1967 Act. Those regulations increase by 6 per cent. the civil fees allowable to counsel for work done on or after 1 April 1989, so that they are the same as those for criminal legal aid. Regulations that cover the fees allowable to solicitors who undertake advice and assistance on criminal or civil work will be presented to Parliament after consultation with the Law Society of Scotland following the completion of negotiations on the package of fees for 1989.

5

Mr. Dalyell: At a rough calculation, £10 per head, per year is spent in Scotland on criminal legal aid. I suspect that people do not realise that. Can the Minister tell me whether I am wrong?

Lord James Douglas-Hamilton: I gave the total figures for expenditure on legal aid. In 1987–88, £25,766,000 was spent on criminal legal aid. The figures for criminal expenditure during 1988–89 are not yet available. I repeat that expenditure is largely demand led. The Government believe that it is appropriate for an independent body to assess those matters.

Mr. Alexander Eadie (Midlothian): Is it significant that the regulations came into force on All Fools' Day?

Lord James Douglas-Hamilton: No. We have negotiated those serious matters with the Faculty of Advocates, which has agreed to the offer that has been made. We have also consulted the Law Society of Scotland on the Confirmation to Small Estates (Scotland) Order 1989, which increases the value at which an estate is classed as a small estate for the purposes of the Interstates Widows and Children (Scotland) Act 1875, and the Small Testate Estates (Scotland) Act 1876. Those Acts provide a simple and speedy procedure for obtaining confirmation to an estate. Under the procedure, a sheriff clerk is required to prepare the inventory and oath, take the oath of the application for confirmation and do everything that is necessary to obtain confirmation. The only cost to the applicant for that service is the official fee for recording the inventory and any testamentary writings, and for the issue of confirmation. In most cases, the applicant does not need the services of a solicitor.

Mr. Ernie Ross (Dundee, West): How much does it cost?

Lord James Douglas-Hamilton: The present limit of £13,000 was set in December 1984. It has been revised to £17,000 in line with increases in the retail price index. I assure the Committee that the increase was agreed with the Law Society of Scotland. I hope that I have sufficiently explained the objectives and details of the instruments and that the Committee will agree that the important provisions that they contain are desirable. Accordingly I hope that the prayer to which the regulations are subject will be withdrawn.

10.41 am

Mr. Dalyell: I do not want to prolong proceedings, but my curiosity has got the better of me. Given that Scotland has about one tenth of the population of England, does that mean that the comparable figure for the amount paid out in civil and criminal legal aid in England is about £550 million? I think that that would be news to many Members of Parliament.

Lord James Douglas-Hamilton: I said £54 million, not £550 million.

6

Mr. Dalyell: I am extrapolating from the figure for Scotland. If we multiply that by 10 to get a rough figure for the United Kingdom as a whole, we arrive at a sum of about £550 million.

Lord James Douglas-Hamilton: The hon. Gentleman seeks comparability between the fee structures north and south of the border. However, the fee structure that covers legal aid work in England and Wales is not strictly comparable with its equivalent in Scotland, although the percentage increase from 1 April is the same in both cases. A straightforward comparison between the fees is impossible because, whereas the English pay more than we do in some spheres, we are more generous in others. For example, remuneration in Scotland for the journey to court and the time spent waiting there amounts to £31.60 per hour, whereas the Lord Chancellor's Department pays only £19.50.

Mr. Dalyell: I understand that they are not exactly comparable, but I am making only the roughest general comparison. That comparison gains importance when it is placed in the context of the controversy over the Lord Chancellor's legal reforms. Some of us are divided over those reforms. I am not one of those who rushed to condemn the Lord Chancellor straight away, but I think that it is in order to say that some of the recent statements from Lord Lane, and the style in which they were made, raise the hackles. As a simple layman, I want to know whether the reforms will make justice quicker. If we, as Members of Parliament, went about our business in the same circumlocutory way that some solicitors' offices go about theirs, we would get the heave from our constituents. Justice in this country takes an interminable time. Will it be any quicker as a result of the proposals? The background behind that question makes the figures interesting.

Lord James Douglas-Hamilton: The hon. Gentleman obviously wants the comparative figures for Scotland and England, which I shall be pleased to send him. I can supply him with the Scottish figures now, but I shall have to check the English ones with the Lord Chancellors' Department. I agree with the hon. Gentleman that delays must be reduced, especially for civil legal aid cases. During the past year many statutory instruments have met issues raised by the Law Society. I am not aware of delays in criminal legal aid cases. In general, cases should be brought to trial as quickly as possible.

Mr. Eadie: Will the Minister send the figures to all members of the Committee?

Lord James Douglas-Hamilton: I shall send them to the hon. Gentleman and to any other member of the Committee.

Mr. Dalyell: When Governments have the will to proceed with cases more quickly, they prove able to do so. Clive Ponting, for example, was brought to the Old Bailey in double-quick time. Leaving aside my personal involvement, that case surely raises important questions. If legal expenditure is to be 7 reformed, such questions must be asked, and I should greatly welcome clarification of the figures. We may want to return to the issues at a later date.

Lord James Douglas-Hamilton: I believe that has given the hon. Gentleman the assurance that he seeks.

Question put and agreed to.

Resolved, "That the Committee has considered the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1989."

LEGAL AID (SCOTLAND) (FEES IN CRIMINAL PROCEEDINGS) AMENDMENT REGULATIONS 1989

Resolved, 8 "That the Committee has considered the Legal Aid (Scotland) (Fees in Criminal Proceedings) Amendment Regulations 1989.—[Lord James Douglas-Hamilton.]

CONFIRMATION TO SMALL ESTATES (SCOTLAND) ORDER 1989

Resolved, "That the Committee has considered the Confirmation to Small Estates (Scotland) Order 1989.—[Lord James Douglas-Hamilton.]

Committee rose at fourteen minutes to Eleven o'clock

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

Leadbitter, Mr. Ted (Chairman)

Buchanan-Smith, Mr.

Burns, Mr.

Carttiss, Mr.

Dalyell, Mr.

Douglas-Hamilton, Lord James

Eadie, Mr.

Greenway, Mr. John

Maclean, Mr.

Ross, Mr. Ernie

Wilson, Mr.