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'(5) In this section--
(a) any reference to a relevant offence includes a reference to any attempt, conspiracy or incitement to commit such an offence; and
(b) any reference to--
(i) a relevant sexual offence mentioned in paragraph (i); or
(ii) a relevant violent offence mentioned in paragraph (h),
of the definition of those expressions in subsection (4) above includes a reference to aiding and abetting, counselling or procuring the commission of such an offence.'.--[Lord James Douglas-Hamilton.]
Clause 45
Lord James Douglas-Hamilton: I beg to move amendment No. 45, in page 45, line 1, after '(b)' insert
'subject to subsection (3A) below,'.
Madam Speaker: With this, it will be convenient to discuss also the following amendments: Government amendments Nos. 46 to 52.
No. 160, in page 46, leave out lines 36 to 47.
Government amendments Nos. 53 to 59.
No. 161, in page 48, line 37, after 'shall', insert
Government amendments Nos. 60 to 69.
No. 152, in clause 46, page 50, line 44, leave out 'require' and insert 'offer the opportunity to'.
Government amendment No. 70.
No. 153, in page 51, line 1, leave out 'requiring' and insert 'offering to'.
No. 154, in page 51, line 2, leave out 'to use' and insert 'the opportunity to instruct'.
Government amendments Nos. 242, 71 to 74 and 243.
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No. 158, in clause 49, page 52, line 41, leave out 'The Board may', and insert
Government amendment No. 75.
No. 155, in page 52, line 42, leave out 'wholly or partly' and insert 'only'.
No. 157, in page 53, line 13, after 'documents', insert
Government amendments Nos. 76 and 77.
No. 159, in page 55, line 25, at end add--
No. 156, in page 55 leave out lines 26 to 33.
Government amendment No. 78.
Lord James Douglas-Hamilton:
The Government amendments in this group affect the part of the Bill relating to criminal legal aid and implementing improvements suggested in Committee by my hon. Friends the Members for Eastwood (Mr. Stewart) and for Ayr (Mr. Gallie). They cover the registration of solicitors, a pilot scheme for public defenders, the code of practice, the involvement of the Law Society and other matters.
Mr. Wallace:
I should like to speak to the amendments standing in my name and those of my hon. Friends. This part of the Bill opens up some important issues concerning the relationship between the Scottish Legal Aid Board and the Law Society of Scotland, and the circumstances in which additional powers are being given to the Scottish Legal Aid Board without sufficient case having been made to justify the need for those powers.
Amendment No. 160 would delete the provision that relates to the Scottish Legal Aid Board's code of practice, which governs those who provide criminal legal aid assistance in Scotland. The code of practice should not include provisions concerning the conduct of defence work. It is inimical to our system of justice for a state body to be able to dictate to defence lawyers, who should be independent, how they should conduct relations with the prosecution.
The Law Society of Scotland is the statutory regulator of solicitors and, since its inception, it has set standards of conduct in its rules and regulations for those who enrol as solicitors to follow. If the rules are broken or complaints are made, the Law Society of Scotland investigates and, if the complaints are substantiated, prosecutions may be brought before the Scottish Solicitors Discipline Tribunal.
The Scottish Legal Aid Board is not a professional regulator: it is a non-departmental Government body. It is mixing two concepts that do not mix well to give a Government-appointed body the power to lay down codes of practice that could affect the way in which solicitors
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Dingwall sheriff court is currently being clogged up with the cases of people protesting against the payment of tolls on the Skye bridge. Many fine legal points have been raised, appeals have been made to the Court of Session, and Government policy has been challenged effectively. It would not be in the interests of justice that a code of conduct for solicitors defending people charged with the non-payment of tolls should be determined by a Government-appointed body. That is a potential conflict of interest.
Clause 45 also provides that the Scottish Legal Aid Board could remove the name of a solicitor who did not comply with the code. Amendment No. 161 would ensure that the matter was referred to the Law Society of Scotland, which is the appropriate body to rule on the removal of names from the register. After referral, and if the Law Society agreed, the board could then remove the name. The amendment would clarify that what is effectively a disciplinary action should be taken by the Law Society and not left solely to the board.
Clause 49 would give further powers to the Scottish Legal Aid Board. Amendment No. 158 would require judicial authority for certain actions and activities of members of the board. I declare an interest as parliamentary adviser to the Institute of Chartered Accountants of Scotland. The institute is concerned that the provisions are too wide. In particular, it is concerned that information might be sought by officials of the board without proper judicial authority.
It is necessary in some cases for the police to be given powers to obtain information, but almost exclusively those powers are sought under judicial authority. The Bill would give powers to the Scottish Legal Aid Board, which--as far as I am aware--has no proper training in how police powers might be used, to seek information without judicial authority. Such powers are not even given to the police.
I draw a parallel with the Finance Act 1994. The Treasury sought to give similar powers to the officers of the Inland Revenue. The attempt was strongly opposed on several grounds, including the unacceptably wide powers, the possibility that they could be misused by an over-zealous officer and the need to strike a balance between exposing bad practitioners and protecting the innocent.
The powers in the Bill go too far, without sufficient judicial discretion, and could allow an over-zealous official of the Scottish Legal Aid Board to go on a fishing expedition on an unfounded allegation or on a hunch. That is not acceptable and does not strike the proper balance. In any case, the House has been given no evidence that a serious problem exists that has to be addressed by such sweeping powers.
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Amendments Nos. 155 and 157 are important and technical amendments which relate to the requirement to produce documents under the powers. Amendment No. 155 would ensure that only documents relating to criminal legal aid cases could be recovered. Clause 49 would allow SLAB officials to seek documents that did not relate to the application for criminal legal aid and in which the board had no interest.
As the clause stands, the powers would allow the officials to obtain documents that related to other, civil matters which had no connection with the criminal case, but which were part of one file in a solicitor's office. Again, that power goes to the heart of the relationship between client and solicitor, and should be outwith the scope of the Bill. I ask the Minister to address the point that the powers would allow a wider discretion to request documents than even he might think necessary.
Clause 49 states:
Amendments Nos. 159 and 156 would delete the current provision that would allow the suspension of all payments to a solicitor who might be guilty of a criminal offence. Amendment No. 159 would allow the suspension of payments to the solicitor only in respect of work related to the offence.
The reason behind that is that the power of the board should not be to suspend solicitors from legal aid entirely pending the outcome of a complaint because such a suspension can proceed only on suspicion and without the benefit of any judicial hearing. I believe that that is contrary to natural justice. Suspending a solicitor from earning a large part of his or her livelihood without any judicial process cannot in any way be seen as fair; it flies in the face of the presumption of innocence.
'refer the matter to the Law Society of Scotland and upon receiving the Law Society's ruling that the solicitor's name should be removed from the Register, it shall.'.
'Where a sheriff is satisfied, by evidence on oath given on behalf of the Board by a person authorised by the Board for that purpose, that there are reasonable grounds for believing that, circumstances specified in section 35B(1)(a), (b) or (c) arise he may authorise the Board to.'.
'relating only to the provision of criminal legal assistance'.
'(3A) Where the Board has referred a matter to the Law Society or any of the bodies mentioned in subsection (2) above it may withhold payment of any fees due to him in respect of such work, pending the outcome of the investigation by the body or bodies to which the matter has been referred.'.
"the manner in which a solicitor should conduct a case and represent his client, including . . . the passage of timeous and accurate information to the client . . . the frequency of meetings . . . the giving of advice to the client as to the consequences of any decision made . . . the taking of such precognitions as may be necessary . . . the conduct of relations with the prosecution."
That goes to the heart of the relationship between a client and his professional adviser. I do not doubt that the parameters were set with good intentions, perhaps to prevent slipshod service, but the Law Society of Scotland can already do that.
"The power under this section to require production of information and documents includes power . . . to require any person, who is a present or past partner or employee of any such solicitor or firm and who appears to the Board or one of its officers to have any information or documents, to produce them".
No qualification whatever is included. At least proposed section 35A(1) includes the qualification that the information and documents should relate
"wholly or partly to the provision of criminal legal assistance."
I sincerely hope that the lack of a qualification is a drafting error and, if so, I offer the Minister the opportunity to accept amendment No. 157 to limit the power to obtain documents.
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