Orders of the Day — Legal Aid and Solicitors (Scotland) Bill

Part of the debate – in the House of Commons at 12:00 am on 16 December 1948.

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Photo of Mr Walter Elliot Mr Walter Elliot , Combined Scottish Universities 12:00, 16 December 1948

I am not quite certain whether the Solicitor-General for Scotland will be more happy or more embarrassed at receiving the congratulations of the Third International. I will leave him to work that out with his constituent later. Nor would I advise him to rely wholeheartedly on the continued support of his constituent in all circumstances. I would advise him that he might fear even the Greeks when they bring gifts.

The Solicitor-General started a Debate which was completely different from the Debate we had yesterday. Almost everyone who spoke yesterday had legal experience, whereas nobody who spoke today had legal experience. I think that if we could have mixed the two Debates we probably would have achieved the ideal Debate. Undoubtedly we on this side of the House have suffered, and I am sure the whole House has suffered, from the absence of Lord Reid, formerly the Member for Hillhead, who on such an occasion would have been of the greatest value to the House as a whole and quite certainly to our party, on this side. We have to do the best we can, and I am sure that my hon. and gallant Friend the Member for West Edinburgh (Lieut.-Commander Hutchison) was able to develop a case to the admiration of all. Certainly he was able to bring forward some of the difficulties which we feel arise as a result of this Bill.

The Lord Advocate may well have said that the Bill was proceeding fairly well, with a reasonable chance of a friendly reception in Scotland, until the speeches to which we have just listened—that by the hon. Member for Kelvingrove (Mr. J. L. Williams), who suggested that the Bill might be turned into another kind of social service, and that by the hon. Member for South Ayrshire (Mr. Emrys Hughes), who came forward with the bright idea that the benefits of courts-martial should be extended to us all and that that was the aim to which we should bend our efforts.

This last suggestion naturally received the wholehearted support of the hon. Member for West Fife (Mr. Gallacher), who could not restrain himself at this point and who leapt forward to say that that was the line which he and his friends would follow in the Amendments which they hope to put down. Perhaps the Lord Advocate will now understand why legal opinion in Scotland would like to be sure that it is thoroughly at one with him in the Measure which has been introduced.

It is quite true, as the Solicitor-General for Scotland said, that two occasions for consultation have been given, one as late, I think, as 29th October. But there were admittedly only these two. The position with the English Societies was quite different. I think it is worth while to call the attention of the House to the very different treatment which was extended to the profession in England. It is true that my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe) welcomed the Bill and drew attention to the close co-operation there had been between the profession and those bringing forward the scheme. He was, however, only dotting the i's and crossings the t's of the statement which had been made by the Attorney-General. In yesterday's HANSARD the Attorney-General is reported as saying: The Government have received the fullest support from both branches of the profession. He had said earlier: It was necessary to obtain the consent of the Law Society and of the Bar Council to undertake the very responsible and onerous duties which the proposals would impose upon them…This Bill is the result of the work done between the two branches of the profession and the Government in order to implement the proposals of the Rushcliffe Committee."—[OFFICAL REPORT, 15th December. 1948; Vol. 459, c. 1233.] The position in Scotland, as we have to deal with it tonight is quite different. We have here the criticism of the Writers to the Signet. We have all read the protests of the Dean of the Faculty of Advocates. I have here a telegram from the Society of Law Agents saying that they protest emphatically at being given insufficient time to consider Part I of the Legal Aid Bill and asking for postponement. When the Writers to the Signet, the Dean of the Faculty of Advocates, the Law Agents' Society all protest to us within the last few hours—and I have no doubt to other hon. Members—it is clear that a position exists quite different from that outlined by the English Attorney-General, on which he received the compliment and support of my right hon. and learned Friend the Member for West Derby.

Quite a different position exists in Scotland that will certainly have to be cleared up. I trust the Lord Advocate will be able to give us an assurance that the Bill will not be proceeded with, after we resume, at any rate during the month of January. I trust he can give an assurance that it will not be proceeded with until February so that the consultations, which for some reason or other were not completely satisfactory to the legal profession before Christmas, may take place after Christmas—all the more since when he was defending the proposals in the judges Bill he made a strong plea that we should not be asked to transact legal business in Scotland in the days immediately following Hogmanay. I trust that he will be able to give us that assurance.

I hope in the next place that he will be able to give us an assurance that the Financial Resolution will not be taken tonight but will be held over until our return. The Financial Resolution enshrines, and makes irrevocable, I fear, one of the provisions in the Bill to which all the bodies that have made representations to us have made the strongest objection, and that is on the position of the Secretary of State for Scotland. The Financial Resolution says: A. The payment out of moneys provided by Parliament of the net sums required …(subject to any discretion of the Secretary of State to modify the Act by regulations there under to meet special cases)… I fear that when that has been passed by the House, if it is passed by the House, the function of the Committee in dealing with the provision in the Bill will be difficult. An argument could be made on the Question that the Clause stand part, but to move Amendments to improve the proposed statute would be extremely difficult. This is the point to which so many representations have been addressed.

We have before us the Report of the Cameron Committee. Paragraph 5, which I think was quoted by the Solicitor-General, did draw attention to the special position of the Secretary of State, and, indeed, of the Lord Advocate. There is no parallel in Scotland to the position of the Lord Chancellor, who is both head of the legal profession and a Member of the Cabinet. I know well—I have had experience—of the position of the Secretary of State. It is quite true that in a way he is the legal heir to the Chancellor of Scotland: He is Keeper of the Seal, and thereby inherits, great precedence, and some responsibility. Nevertheless, he is more and more, and must be, an active politician, a fighting politician. I myself in my time certainly did not in any sense of the word try to pull my punches in any political battle into which I entered; nor do I think it would be fair to ask any Secretary of State to do so. But how unwise to put someone in that position as a superior in legal circles in which this Bill would inevitably place him. Paragraph 5 of the Cameron Report says: The Lord President of the Court of Sessions has no ministerial responsibility or departmental functions and is not answerable, as a minister or head of department, to either House of Parliament. That is true. He does not have the necessary staff to handle this work, and he has not got himself the power of appearing to defend himself in Parliament if criticised. However, I do not think that either of these things applies to the Lord Advocate. The Cameron Committee, under the Dean of the Faculty of Advocates reported: for this reason we recommend that the Lord Advocate should be associated directly with the supervision and administration of the Scheme which we propose. They went on to say: We are of course aware that there may be some anomaly in the Lord Advocate, who, as head of the criminal administration of Scotland, may be responsible for initiation of many criminal proceedings, the defence is which may be financed in whole or in part from public funds, having at the same time a direct supervisory responsibility for the very organisation which is providing the means to combat these proceedings, but we consider that this is an anomaly which may be accepted and which is unlikely to cause difficulty or embarrassment in practice. That is the argument which the Lord Advocate will have to answer. I have no doubt that he will address himself to it, and it may be that he will convince us; but that is a very strong recommendation, and it is there that the provisions of the Bill differ from the recommendations of the Rushcliffe Committee and the Cameron Committee's Report— I am thinking of the Cameron Committee's Report as the instrument for bringing into force the Rushcliffe Committee's recommendations. It is there that they differ from the Bill.

My hon. and gallant Friend the Member for Eastern Renfrew (Major Lloyd) spoke with some heat on this subject, and I think he was entitled to, more particularly because of the speeches which were deliverd afterwards; because if ever speeches were delivered suggesting the entire subordination of the legal system to the will of the Secretary of State for Scotland, they were the speeches that were delivered by subsequent speakers. Those who say that the legal profession should be subject to Parliament or this House are bringing in very novel and far-reaching doctrines.

The hon. Member for South Ayrshire said that Lord Reid had been nationalised and that he was in the position in which all lawyers should be. But he is not yet subject to regulations made by the Secretary of State for Scotland. I can imagine the arguments that my right hon. and learned Friend the Member for West Derby would address to this House if it were proposed to make His Majesty's judges subject to regulations to be prescribed by the head of the Executive, however powerful he might be. Wars have been fought on this, and heads have rolled. These are dangerous doctrines to bring forward in connection with a Bill with whose objects we all sympathise—the object that nobody should be debarred by lack of money from access to the courts of justice of this country.

Some of the arguments which were brought forward by the hon. and learned Member for North Edinburgh (Mr. Willis) in defence of the Bill were more wounding than any attacks on it. He said that the new provisions under which people are working, the new Acts which they had to understand, are so complicated that without legal aid they cannot understand them at all. He said that the Rent Restriction Acts and the Town and Country Planning Act—that darling of the Government mean that we have to introduce a legal system to enable people to get along despite these new lions in their path, because it is impossible for the ordinary citizen to understand them at all. I rather fear this new principle that first of all the Government make laws so complicated that nobody can understand them, and then introduce a free legal system so that they can be explained. I would suggest that the short cut may be not to introduce these laws; and then everybody would be much happier.

The hon. Member for Tradeston (Mr. Rankin) spoke of this Bill as a Bill of an exploratory nature. It is not of an exploratory nature in Scotland. As the Solicitor-General himself has said, we have been working under a procedure of this kind for 500 years in Scotland, and one of the points made by the profession in Scotland is that we should not attempt to sweep away so much of it as they think this Bill attempts to sweep away simply because a very learned Committee has reported on the subject in England. The difficulty in which the House is placed tonight is that we have the unusual difficulty for Parliament—the unheard of difficulty—that we have not enough lawyers. It has never occurred before. I do not know whether the ghosts of many who have been attacked in the past for crowding out the House with professional gentlemen are chuckling amongst the blessed, where no doubt they have appeared by this time; but here is the whole Scottish Grand Committee without a single back bench lawyer upon it and feeling the need of them greatly. That is an example, no doubt, why a Bill of this kind should pass through the House.

It is not true, I think, as has been said, that there has been no attention given to this problem in Scotland. Poor persons have had for many hundreds of years legal advice in Scotland and, as the hon. Member for East Fife (Mr. H. Stewart) said, there is a rota by which, in many cases, they are getting the highest possible advice which anyone could have. Even the suggestion of bringing the solicitors into a single organisation under Part II of the Bill follows quite closely the Bill which was introduced by Lord Normand in the last Session and which, in turn, was based on a Bill introduced before the war, and which got its Second Reading in 1938 but was stopped by the oncoming of the war.

In Scotland we have done our best to assure the access of the citizens to the courts. This is a development along historical lines and should be so treated. There are, of course, many points which we should like to raise in Committee and on which we shall, no doubt, have to lay considerable emphasis; the position, for instance, of certain of the solicitors under the Bill is one which will need very careful examination. But the fundamental principles which have been brought forward are principles which have been mooted and, in many cases, agreed to in principle, in Scotland for many years. But the translation of them into practice and into the Clauses of a Bill have undoubtedly led to a great deal of anxiety and uneasiness in legal circles in Scotland, not because it is going to mean hardship for the lawyers but because it is going to mean the weakening of the liberties of the people. If the executive becomes supreme over the judiciary, then the last barrier to free society has been swept away; and in so far as the Secretary of State and other executive officers find that it is beginning to be possible to bring the lawyers of our country into one group, and then to make regulations under which that group has to operate, that is undoubtedly a step towards that dangerous end.

The Cameron Committee suggested as a safeguard that an advisory committee should be closely associated with the working of the scheme—an advisory committee of three members of the Faculty of Advocates, three solicitors and three independent members to advise and consult with the Lord President. I do not know whether that advisory committee finds a place in the new scheme or whether it could be introduced into the scheme, but the new relations—