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7.30 pm
Lord James Douglas-Hamilton: The Opposition's amendments on legal aid go too far in seeking to curtail the powers to be conferred on the board by part V.
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Many of the issues raised by the hon. Member for Orkney and Shetland (Mr. Wallace) were explored in great detail in Committee, so I shall give an overall summary of the view that the Government have taken.
The code of practice must deal with the manner in which a solicitor should conduct a case and represent his client. We consider that an essential area. It is for the Scottish Legal Aid Board to monitor compliance with the code and decide who is to be included on the register. There are provisions for appeal on the merits of the decision to safeguard those affected by such decisions. I must therefore resist amendments Nos. 160 and 161.
We have made substantial changes to clause 46, but cannot concede amendments Nos. 152 to 154. They would prevent the board from ensuring that directly employed solicitors have an adequate throughput of cases. If we are to report to the House within three years on the pilot scheme, it is essential to ensure an adequate work load for the solicitors from the outset.
Amendments Nos. 155 to 159 seek to restrict the powers of the board to obtain information and documents to support a full investigation where there are grounds for suspicion, and in the last resort to suspend a solicitor from providing criminal legal assistance. Those powers are, however, an important safeguard for the public from potential fraud and the use of legal aid. I therefore urge the hon. Member for Orkney and Shetland to withdraw the amendments.
The hon. Member referred to the proposed section 35A(4), and asked whether there was a drafting error. The powers to acquire information from past partners are conditioned by the purposes for which information may be required under the proposed section, which are made clear by amendment No. 157. The overall view of members of the Committee was that the powers were necessary. I therefore commend them to the House.
Mr. Allan Stewart (Eastwood):
Unusually for me, I must say that my right hon. and learned Friend the Minister did not give a wholly adequate reply to the hon. Member for Orkney and Shetland (Mr. Wallace) on the powers of entry. Such powers have been described as iniquitous by bodies such as the Glasgow Bar Association. One can of course argue that it comes at the question from a particular angle, but I hope that my right hon. and learned Friend has an opportunity to reconsider what he has said.
From listening to the hon. Gentleman, I certainly felt that, at the very least, he deserved a detailed reply to his important points. [Interruption.] I can tell the Whips that I shall not detain the House for very long. I think that I am entitled to a couple of minutes of the House's time, having served on the Committee.
I should like to put two questions to my right hon. and learned Friend. I accept that, under the circumstances, he may want to write to me rather than detain the House.
First, how will the pilot scheme to which he has referred work? My understanding is that a proportion of accused persons within the jurisdiction of the court covered by the public defender will be directed to the public defender. Although that could work in various
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Secondly, how will the fixed payment system work in practice? There are two or three possible ways in which it could work, but--again--I understand that they have not been made public. I would wholly accept my right hon. and learned Friend's assurance that he will make the matter public as soon as possible to those who are especially interested in the details if he does not want to detain the House tonight.
Mr. McFall:
I shall be brief, because clauses 45 to 49 were well covered in Committee.
The Minister knows that the official Opposition are very much behind his public defenders system pilot scheme. I remind him that he must make adequate resources available for the scheme to ensure that it works properly. The best information must be available, especially in the light of the rising legal aid budget. We are interested not only in value for money but in access to justice for many people. We consider that the pilot scheme is extremely important, and we want the Government to support it as much as possible.
I draw the Minister's attention to amendment No. 152, which concerns a matter that we debated in Committee. As he knows, the Law Society of Scotland, which has very successfully lobbied the Government, was concerned about freedom of choice. Amendment No. 152 would ensure that clients have freedom of choice in whether they instruct solicitors employed by the Scottish Legal Aid Board or private practitioners. The Law Society of Scotland believes that such a choice is worth preserving and protecting. It reminds the Government of their obligations, especially in relation to article 63 of the European convention on human rights, which states:
Lord James Douglas-Hamilton:
I should confirm, to correct the point that I made in haste a moment ago, that the drafting error relates to amendment No. 75, not amendment No. 157.
I welcome the comments of my hon. Friend the Member for Eastwood (Mr. Stewart). I say to him, and to the hon. Member for Orkney and Shetland (Mr. Wallace) that it would not be possible for the board's officials to go on a fishing expedition. Before obtaining a warrant, they must convince a sheriff of the grounds specified in the proposed section 35B(1).
Mr. Wallace:
The Minister is, of course, right to say that a shrieval warrant will be necessary to obtain powers of entry to premises to investigate. The point that I was making concerned the fact that no prior
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Lord James Douglas-Hamilton:
I shall examine that point and write to the hon. Gentleman. I shall also thoroughly examine the way in which the pilot schemes will operate and write to my hon. Friend the Member for Eastwood on that point.
The method of directing counsel to the public defender is under consideration. The arrangements will be announced when the Scottish Legal Aid Board and the Scottish Office have resolved the details, but I shall write to my hon. Friend and to the hon. Member for Orkney and Shetland in due course.
Amendment agreed to.
Amendments made: No. 46, in page 45, line 6, leave out from beginning to 'only' in line 8.
No. 47, in page 45, line 10, leave out '(b)' and insert
No. 48, in page 45, line 12, at end insert--
No. 49, in page 45, line 17, at end insert--
"Everyone charged with a criminal offence has the following minimum rights . . .
I remind the Minister of comments made by the Law Society and others, and seek his response.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interest of justices could be in breach of the European Convention."
', subject to subsection (3A) below,'.
'(3A) A solicitor employed by the Board under section 28A of this Act shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed; but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered.'.
'( ) Before making any decisions as to the matters mentioned in subsection (4) above the Board shall--
(a) send to the Law Society and to such other persons and bodies as it considers appropriate a draft of its proposals in that regard, inviting their comments on those proposals within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and
(b) consider any such comments timeously received by it,
but, where it amends those proposals in the light of any such comments, it shall not be required to re-intimate the amended proposals to any of those who were invited to comment.'.
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