Amendments of the Legal Aid (Scotland) Act 1986

Orders of the Day — Legal Aid Bill [Lords] – in the House of Commons at 12:15 am on 4th July 1988.

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Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 12:15 am, 4th July 1988

I beg to move amendment No. 26, in page 42, line 5, leave out `4(2)(a)' and insert `4(2)'.

Photo of Mr Paul Dean Mr Paul Dean , Woodspring

With this we may take Government amendments Nos. 27 and 28.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

The first two amendments are drafting consequences of the third. The effect of the third is to widen the scope of the determinations that can be made under section 4(2)(c) of the Legal Aid (Scotland) Act 1986.

The need arises from steps that my right hon. and learned Friend the Secretary of State for Scotland is taking in consultation with the Scottish Legal Aid Board and the Law Society of Scotland to improve the administration of legal aid. He proposes to allow the board to make payments to solicitors who have urgent steps to take in proceedings on behalf of clients before a legal aid application can be determined. Where in due course no award of legal aid is made, he proposes to set stringent conditions for such payments—notably that the solicitor should satisfy the board that he had reasonable grounds for believing that the client was eligible for legal aid, and that the work charged was necessarily, reasonably and actually carried out.

The purpose is to remove the need for emergency certificates in a sizeable number of cases, and the Law Society of Scotland has offered full co-operation in securing a reduction in the emergency certificates based on the availability of this new discretion to the board. That co-operation is most welcome.

The amendment is the key to a major improvement in legal aid adminstration in Scotland, and I commend it to the House.

Photo of Donald Dewar Donald Dewar , Glasgow Garscadden

I know that the amendment is widely welcomed—although perhaps I should not use that phrase, as it relates to a pretty arcane and technical matter. It is, at least, welcomed in the profession, and I am grateful to the Minister.

There has been a good deal of trouble recently over emergency certificates. As I understand it, they have been used extremely widely, largely because of the on-going complaint of the profession that it is now not possible to persevere with preparations for a case until the legal aid certificate has been granted, because solicitors who do will not be paid for it. It is possible to be paid only after the certificate has been granted. Under the old system—before the Scottish Legal Aid Board appeared on the scene—it was possible, if the solicitor took the risk, to proceed with the work; and, if legal aid was granted, he was then paid retrospectively from the date on which the application was lodged.

There is one point on which I am not clear, although I have no doubt that the Minister will be able to help me. He has explained very courteously that it is now possible for the Scottish Legal Aid Board, on what he describes as "stringent conditions", to pay for work that is done if the solicitor can reasonably have expected that legal aid would be granted. But I was under the impression that even if it was granted, if the work was done before the date of the grant, he could not be paid for it. I may be becoming confused. Perhaps the Minister could clarify the point.

Let me put it another way. This is a concession to cover circumstances in which work is done and, to the solicitor's surprise, legal aid is not granted. In those circumstances, payment can be made. Let us assume for a moment that the work is done, and legal aid is then granted. Is that work covered as well?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I am glad to reassure the hon. Gentleman. He obviously wishes to know what happens when urgent steps are taken by the solicitor and there is a grant of legal aid. The grant will cover those legal steps. That can be achieved by amending regulations that will come forward this month. The point will be met, I hope, on 1 August, assuming that the regulations are approved. It is very important to the Scottish Legal Aid Board and the lawyers that they should be.

Photo of Donald Dewar Donald Dewar , Glasgow Garscadden

Is the Minister saying that, when legal aid is granted, there will be a change by regulation which will allow retrospective cover—which to some extent settles the argument about the effective date of legal aid cover?

Amendment agreed to.

Amendments made: No. 27, in page 42, line 5, after `fund)' insert `(a) in paragraph (a)'.

No. 28, in page 42, line 6, at end add— `(b) in paragraph (c), the words "for the purposes of this Act" are repealed.'.—[Lord James Douglas-Hamilton.]

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I beg to move amendment No. 29, in page 42, line 12, leave out 'expenses' and insert 'fees and outlays'.

Photo of Mr Paul Dean Mr Paul Dean , Woodspring

With this it will be convenient to take Government amendments Nos. 30 to 33.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

The amendments are all of a technical nature and clarify certain aspects of the provisions of section 17 of the 1986 Act in relation to contributions and payments out of property received. In particular, they remove ambiguity as to what is meant by "expenses" and clarify the fact that the board can use sums recovered in civil actions to meet expenditure in related matters handled as advice and assistance. They also ensure that, once an account of expenses is agreed between the Scottish Legal Aid Board and the solicitor, it is not necessary for the solicitor to have the account taxed before he can recover any unpaid contribution from the client.

Amendment agreed to.

Amendments made: No. 30, in page 42, line 21, leave out `the expenses' and insert '(i) the fees and outlays'.

No. 31, in page 42, line 23, at the end add— '(ii) recouping any sums paid out of the fund on his behalf in respect of advice and assistance in relation to those proceedings or to any matter to which those proceedings relate.'.

No. 32, in page 42, line 26, lave out `to expenses.'.

No. 33, in page 42, line 31, leave out from 'off' to the end of line 34 and insert— '(12) An account of expenses which:—

  1. (a) has been agreed between the Board and the solicitor acting for the legally assisted person; or
  2. (b) has been taxed,
shall not be liable to taxation by an auditor of court in any proceedings.'.—[Lord James Douglas-Hamilton.]

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I beg to move amendment No. 34, in page 42, line 46, at end add— '5A. In section 36(2) (regulations), in paragraph (b) at end add:—and the power to substitute different amounts for the amount specified in section 10(2) of this Act includes power to substitute different amounts in relation to different cases or classes of case".'. This amendment is necessary to enable a two-tier "prospective cost limit" to be set for advice and assistance, including assistance by way of representation. This limit is the amount of work which a solicitor may himself authorise without requiring the prior approval of the board. The limit is to be differentiated so that in particular circumstances, and subject to particular conditions, a solicitor may authorise himself to spend up to £150, whereas in normal circumstances he may authorise only £50—or £60 under new regulations proposed to be effective from 1 August. The Act as it stands will not permit this, and the amendment is proposed in order to allow this important additional facility. The facility is an important part of the improvements to the administration of legal aid discussed with the Law Society of Scotland and the Scottish Legal Aid Board.

Photo of Donald Dewar Donald Dewar , Glasgow Garscadden

I feel a little more at home with the subject matter on this occasion. In the dim days of my past I worked in a jobbing solicitor's practice which depended very largely on what were known in the trade as "pink bombers"—the legal aid advice and assistance scheme. This is a very important feature of the legal aid system and one about which I feel strongly because there is no doubt that it allows an enormous amount of help to be given to anxious people with worrying problems which do not necessarily go on any formal legal process. In areas in which there are social problems this is a scheme of prime social importance.

Before we agree to the amendment, perhaps the Minister will say a little about the way in which it will operate, as it is an important change. As the Minister knows, the present limit is self-regulating. In effect, it is administered by the solicitor, who awards himself legal aid. Having exhausted the first £50 of provision, in my day one had to go to the Law Society for authority to increase the expenditure. As I understand the amendment, there is to be a two-tier system in future and in some circumstances the solicitor will be able to spend up to £150. I do not know what those circumstances are, but I have no doubt that they have been hard fought, with the trade trying to make the range of grounds as wide as possible and the Scottish Legal Aid Board, mindful of the Chancellor's hot breath on its shoulder, trying to ensure that the tier is as narrowly constructed as possible. In my day, for example, it was usual to obtain extensions for certain types of consistorial work at the preliminary stage.

The Minister should say a word or two about the circumstances involved because if the amendment produces a wide extension of this area of legal aid expenditure it will have a considerable impact. I welcome the amendment, and I am sure that the profession will welcome it even more warmly, but I think that the Minister should say something about the way in which it will be exercised.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

The hon. Member for Glasgow, Garscadden (Mr. Dewar) asked how the system will operate. There needs to be a higher limit where the solicitor expects to have to submit a civil legal aid application. At present, that limit is £50, and regulations which we shall introduce this month will raise it to £60. Above that, a solicitor should be able to incur expenses up to £150 in cases where he expects to submit a civil legal aid application.

The hon. Gentleman wanted to know about the particular circumstances that will apply. They will be set out in the regulations. The purpose of this provision is to ensure that lawyers should be entitled to take action on behalf of their clients without having to make unnecessary application to the Scottish Legal Aid Board. The key circumstance for availability is that the matter will progress to a civil legal aid application.

The regulations are not quite finalised, but agreement with the Law Society is virtually complete. The Law Society wants to see the final form of words, and that will happen soon. We are anxious that the regulations should progress as quickly as possible. The amendment will allow them to be laid.

Photo of Donald Dewar Donald Dewar , Glasgow Garscadden 12:30 am, 4th July 1988

I am grateful to the Minister. The fact that the matter has been virtually agreed with the Law Society is a state of grace. I hope that its optimism is justified. I presume—the Minister need only confirm with a nod—that in circumstances where it is not obvious that a full legal aid application will be lodged but additional work may be required for the client, an application for extension can be made at the discretion of the Scottish Legal Aid Board, even though it does not fall within the category that allows a solicitor to award himself the additional room for expenditure.

Presumably, if we have energy and enthusiasm, we shall have a chance to discover what is in the regulations before they come before the House. No doubt, if we wish, we can make representations then. I welcome the amendment in general terms.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I shall check, but to the best of my knowledge the answer is yes.

Amendment agreed to.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I beg to move amendment No. 35, in page 43, line 11, at end insert—

'PART III

Board's property to be rateable

9. In Schedule 1, paragraph 2(4) is repealed.'.

Photo of Mr Paul Dean Mr Paul Dean , Woodspring

With this it will be convenient to take Government amendment No. 36.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

The amendment provides that the Scottish Legal Aid Board will meet its rates bill, instead of the Government making a payment in lieu of rates. The existing provision has resulted in an unnecessarily complex arrangement for the payment of the board's rates. The change will make the provision consistent with that for other major Scottish non-departmental public bodies. There are consequential adjustments to the list of repeals in schedule 6. These are contained in a later amendment. The funding will come out of the same Vote and the Scottish Legal Aid Board will not lose any funds, the funding coming from the Government.

Photo of Donald Dewar Donald Dewar , Glasgow Garscadden

At another time of night and in other circumstances, this would be an opportunity for a splendid debate. This is an almost bizarre amendment. I am not clear as to why a payment in lieu of rates was made in the way described by the Minister. I presume that payment in lieu of rates happened to be exactly the same as the rates bill would have been. That may be a naive assumption, and we need not go into it in great detail. I am delighted that this "non-departmental body"—what a warm glow that gives—is to be treated in exactly the same way as all its kith and kin.