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Lord Kirkhill: My Lords, before the noble and learned Lord sits down, perhaps I may put a question. If the capacity runs at the 10 per cent. level of which he speaks for a period of three months and then the provisions in the statutory instrument are initiated, where do these prisoners sleep--on mattresses in corridors and so on?

Lord Mackay of Drumadoon: My Lords, where they sleep is a matter for the governor of a particular institution. It is an unhappy fact of life that there has been overcrowding in prisons. It has reduced but it remains a problem. Undoubtedly, in some institutions more prisoners sleep in cells than was originally intended. No doubt on occasions the facilities leave something to be desired. But to suggest that people regularly sleep on mattresses in prison corridors is not an accurate description of the state of the prison estate in Scotland. There is a measure of overcrowding and it is being addressed.

I hope that the noble Lord will accept my assurance--which I am sure will be received with sympathy by noble Lords on all sides of the House--that these

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provisions will not be introduced until any increased prison population that may result can be accommodated by the estate. One hopes that as slow but steady progress is made in dealing with the overcrowding that presently afflicts our prisons, by the year 2000, whenever, if in the past there had been occasions when people slept on mattresses in corridors that would not occur at that stage.

The Earl of Mar and Kellie: My Lords, I thank the noble and learned Lord for his answers. I am disappointed by his reluctance to define "minimum prescribed standards of behaviour". That will have to be worked out somewhere else eventually. In regard to the amendment dealing with governors, the noble and learned Lord is quite right. My terminology is slightly out of date in regard to prison staff. I have been visiting prisons for a while, and I still visit prisons. I will make certain about that in future.

Referring to the final amendment dealt with by the noble and learned Lord, one knows that there are plans to build a private prison in Kilmarnock. That suggests that there will be an increase in prison places. One notes that at present the prisons in Scotland are full so perhaps judges are doing the business. I suspect that the measures introduced by this Bill which provide other ways of dealing with fine defaulters and may be implemented sooner than some other measures, will remove a large number of fine defaulters from prison and help to reduce overcrowding. That said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

[Manuscript Amendment No. 31A not moved.]

Clause 49 [Criminal Legal Assistance]:

[Amendments Nos. 32 and 33 not moved.]

Clause 50 [Employment of solicitors in relation to criminal legal assistance]:

The Earl of Mar and Kellie moved Amendment No. 34:


Page 66, line 23, leave out ("require") and insert ("give the opportunity to").

The noble Earl said: My Lords, I shall speak also to Amendment No. 35. The amendment has been suggested to me by the Glasgow Bar Association. Here we are talking about changes in legal aid. It seeks to soften the impact of the Bill in respect of ordering accused persons to go to the proposed Legal Aid Board employed solicitors. I can see the general idea that the board's salaried solicitors should be fully employed. That is generally sensible, but there are bound to be occasions when accused persons do not get on with, or do not have faith in, certain solicitors. We all recognise that. It happens already. It will happen in the future. Amendment No. 34 meets the problem head on and supplies a solution.

Amendment No. 35 was, again, suggested by the Glasgow Bar Association. I recognised the concept of a standard fee being offered for legal aid work. The administrative merits stare us in the face. But there will also be occasions when the standard fee will be woefully

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inadequate. I recognise that a busy office doing a great deal of legal aid work will enjoy the swings and roundabouts effect, but that will not be true of the office which does little criminal legal aid work or the new firms which are just starting up, and have cashflow problems. The amendment lives within the strictures of the fixed payment scheme. It seeks to clarify the position regarding disproportionately extensive and expensive cases. I beg to move.

Lord Mackay of Drumadoon: My Lords, Amendment No. 34 is unacceptable. The Government have already explained in some detail the necessity for the Secretary of State to be able to give the board power to direct applicants for criminal legal assistance to directly employed solicitors. Given that the pilot scheme provided for in Clause 50 must be evaluated within three years, it will be essential to ensure an adequate build up of business in the initial stages. That cannot be done without a power of direction. The amendment would remove such a power.

The noble Earl raises on behalf of the Glasgow Bar Association a practical problem which is one of the issues that will be looked at in any pilot scheme. I have no doubt that given good will and common sense on all sides, particularly by solicitors employed in the pilot scheme, the staff--both legally qualified and others--of the Legal Aid Board, other members of the profession, and indeed the accused himself, if the particular problem adverted to arises it can and will be responsibly addressed.

Amendment No. 35, too, is unacceptable. The whole point of fixed fees is to ensure that, overall, solicitors are fairly rewarded for work necessarily and reasonably done with due regard to economy. It is also undesirable because it removes from Clause 51 the provision enabling the solicitor to be reimbursed for outlays not included in the prescribed fixed payment. For those different reasons, I hope that the amendment will not be pressed.

5.45 p.m.

The Earl of Mar and Kellie: My Lords, I am certain that my advisers from the Glasgow Bar Association will be interested to read the noble and learned Lord's answers. It sounds as though the issues will come up in the pilot projects. We look forward to dealing with this matter at some time in the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Fixed Payments]:

[Amendment No. 35 not moved.]

Clause 52 [Contracts for the provision of criminal legal assistance]:

[Amendment No. 36 not moved.]

Clause 53 [Power of investigation of Scottish Legal Aid Board]:

[Amendments No. 37 and 38 not moved.]

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Clause 60 [Grants for forensic medical services]:

The Earl of Mar and Kellie moved Amendment No. 39:


Page 75, line 24, leave out first ("person") and insert ("public body").

The noble Earl said: My Lords, I shall speak also to Amendment No. 40. I tabled these amendments because I believe, in principle, that the courts and their ancillary services belong in the public sector. When a citizen's liberty is at stake, I am keen that the state should supply the scientific evidence.

I understand that there are four forensic laboratories in Scotland, all of which are in the public sector. They work within the Strathclyde, Lothian and Borders, Tayside and Grampian police forces. I believe that there are no private forensic laboratories in Scotland. It seems to me that the clause is an unnecessary enabling clause. I beg to move.

Lord Mackay of Drumadoon: My Lords, these amendments seek to ensure that grants for forensic medical services can be made only to public bodies. At present the Crown Office in my department provides grant-in-aid to the four Scottish universities with departments of forensic medicine. I give a clear undertaking that there are no plans to change that arrangement. However, it would be wrong to restrict the Lord Advocate's freedom to obtain forensic medicine services from whichever body or person was willing and able to provide those services.

If one or more of the universities chose not to provide such services, or for some technical reason in the hospital within which they work that proved impossible on a short-term basis, the Lord Advocate of the day would require to look elsewhere. There clearly would not be time to come to Parliament to obtain authority to start funding another body. I do not envisage that happening, because the universities concerned are of long standing and have served the Crown in Scotland well. I believe--I say this not just in my capacity as Lord Advocate, but with my experience in the Crown Office at present and earlier in the 1980s--it would be wrong to restrict the statute in the way proposed. In those circumstances, I hope that the noble Earl will feel able to withdraw the amendment.

The Earl of Mar and Kellie: My Lords, the noble and learned Lord's answer was better than I had expected, I have to say.

Lord Mackay of Drumadoon: My Lords, before the noble Earl sits down, may I take it that that was a compliment?

The Earl of Mar and Kellie: My Lords, yes, that constituted a compliment. I had not appreciated that the forensic medical services came from the universities. I was thinking more in terms of the police laboratories. The noble and learned Lord said that there was no one yet from whom he could obtain such services. So broadly speaking he agreed with my last remark that the clause at present was an unnecessary enabling clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

19 Mar 1997 : Column 961

[Amendment No. 40 not moved.]

Clause 61 [Confiscation of alcohol from persons under 18]:


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