Chamber
Plenary, 13 Mar 2002
13 Mar 2002 · S1 · Plenary
Item of business
Legal Aid Inquiry
I congratulate the committee on the fact that the minister seems to have acted on some of its recommendations already. All members of the committee must feel pleased about that. However, the committee's final statement is that it considers this to be unfinished work—I agree, given the amount of information that has still to come forward.
As a member of the then Justice and Home Affairs Committee, I welcomed the inquiry into legal aid. It was something that I, and other members, pushed for. We were delighted when Roseanna Cunningham and then Alasdair Morgan proceeded with the inquiry. I am sorry that I was not a member of the committee when the report was written. I sat through all bar one of the nine meetings on the issue, yet I was not able to participate at the report stage because I had been replaced as a member of the committee by Lord James Douglas-Hamilton. During the Standards Committee debate on committee substitutes, reference was made to the fact that members should not disclose what is contained in draft reports. My honourable friend Lord James would not let me see the draft report—he has always met the Standards Committee's expectations of members. However, the Procedures Committee debate indicated that I would have been able to sit in on the report stage had substitutes been allowed. I would have liked to do that.
I have several positive points to make on the report's findings, as well as one or two criticisms. I am convinced, as was the committee, of the need for a strategic review. I compliment the committee on the fact that it did not press ahead with the suggestion that we set up a legal services commission. There is a feeling in the Parliament that we have too many quangos. The Parliament and the Executive have the ability to deal with the issues without establishing another body. The Scottish Legal Aid Board has responsibilities that would have to be passed over if a legal services commission were to be set up. I applaud the committee's recommendations, in paragraphs 119 to 122, on setting actions for the Executive. I recognise that those recommendations are fairly onerous and that it will not be easy for the Executive to respond quickly to every one. However, it seems to have begun to take a stab at it.
When such a report is compiled, there is a time limit for those who want to contribute to the debate, which does not allow full analysis. Nonetheless, I record my satisfaction with paragraph 103 and the committee's suggestion that the awarding of expenses to successful unaided parties in any court case should be considered. The committee found that, if someone who received legal aid lost a case, the expenses that were incurred by the defendant were not met by legal aid. I think that that issue is worth pursuing, and that seems to have been the committee's conclusion.
I would have liked the report to refer to evidence from Ian Smart of the Law Society of Scotland, which relates to comments that were made by Maureen Macmillan and Gil Paterson. Mr Smart said:
"Anecdotally, the most common situation that solicitors come across is of the feckless father, who is unemployed and who qualifies for legal aid, bringing proceedings to secure contact with a child, and of the mother, who is working part-time and who is on working families tax credit, being faced, under the current legal aid system, with having to find £1,000 or £1,500 to defend those proceedings."—[Official Report, Justice 1 Committee, 25 April 2001; c 2331.]
We, too, considered that issue. Ian Smart commented further that that situation is also common in cases in which working mums are looking after their families while facing domestic abuse problems. I would have liked reference to those situations to be included in the report, as that would have strengthened it.
An area of disappointment for me—I have made this point time and again—is that many small businesses are taken to court for minor cases, but those small businesses are not entitled to any form of legal aid. Those businesses often operate on a shoestring. They almost certainly, in many ways, meet the capital and revenue requirements of legal aid, but they are excluded from receiving it.
As a member of the then Justice and Home Affairs Committee, I welcomed the inquiry into legal aid. It was something that I, and other members, pushed for. We were delighted when Roseanna Cunningham and then Alasdair Morgan proceeded with the inquiry. I am sorry that I was not a member of the committee when the report was written. I sat through all bar one of the nine meetings on the issue, yet I was not able to participate at the report stage because I had been replaced as a member of the committee by Lord James Douglas-Hamilton. During the Standards Committee debate on committee substitutes, reference was made to the fact that members should not disclose what is contained in draft reports. My honourable friend Lord James would not let me see the draft report—he has always met the Standards Committee's expectations of members. However, the Procedures Committee debate indicated that I would have been able to sit in on the report stage had substitutes been allowed. I would have liked to do that.
I have several positive points to make on the report's findings, as well as one or two criticisms. I am convinced, as was the committee, of the need for a strategic review. I compliment the committee on the fact that it did not press ahead with the suggestion that we set up a legal services commission. There is a feeling in the Parliament that we have too many quangos. The Parliament and the Executive have the ability to deal with the issues without establishing another body. The Scottish Legal Aid Board has responsibilities that would have to be passed over if a legal services commission were to be set up. I applaud the committee's recommendations, in paragraphs 119 to 122, on setting actions for the Executive. I recognise that those recommendations are fairly onerous and that it will not be easy for the Executive to respond quickly to every one. However, it seems to have begun to take a stab at it.
When such a report is compiled, there is a time limit for those who want to contribute to the debate, which does not allow full analysis. Nonetheless, I record my satisfaction with paragraph 103 and the committee's suggestion that the awarding of expenses to successful unaided parties in any court case should be considered. The committee found that, if someone who received legal aid lost a case, the expenses that were incurred by the defendant were not met by legal aid. I think that that issue is worth pursuing, and that seems to have been the committee's conclusion.
I would have liked the report to refer to evidence from Ian Smart of the Law Society of Scotland, which relates to comments that were made by Maureen Macmillan and Gil Paterson. Mr Smart said:
"Anecdotally, the most common situation that solicitors come across is of the feckless father, who is unemployed and who qualifies for legal aid, bringing proceedings to secure contact with a child, and of the mother, who is working part-time and who is on working families tax credit, being faced, under the current legal aid system, with having to find £1,000 or £1,500 to defend those proceedings."—[Official Report, Justice 1 Committee, 25 April 2001; c 2331.]
We, too, considered that issue. Ian Smart commented further that that situation is also common in cases in which working mums are looking after their families while facing domestic abuse problems. I would have liked reference to those situations to be included in the report, as that would have strengthened it.
An area of disappointment for me—I have made this point time and again—is that many small businesses are taken to court for minor cases, but those small businesses are not entitled to any form of legal aid. Those businesses often operate on a shoestring. They almost certainly, in many ways, meet the capital and revenue requirements of legal aid, but they are excluded from receiving it.
In the same item of business
The Deputy Presiding Officer (Mr George Reid):
SNP
The next item of business is a debate on motion S1M-2868, in the name of Christine Grahame, on behalf of the Justice 1 Committee, on the committee's eighth r...
Christine Grahame (South of Scotland) (SNP):
SNP
Somehow, I do not think that the debate will be oversubscribed, Presiding Officer.Before I address the detail of the Justice 1 Committee's report, I should s...
Phil Gallie (South of Scotland) (Con):
Con
I recognise that—
Christine Grahame:
SNP
Is Mr Gallie going to tell us the end of the story?
Phil Gallie:
Con
Sorry, I did not hear that.Christine Grahame is discussing legal aid and the problem of identifying the expertise of solicitors. Would not anyone who is not ...
Christine Grahame:
SNP
The problem is the same, but I said that the woman in my example had to find a firm that had two specialities—reparation and legal aid. The category has to b...
The Deputy Presiding Officer:
SNP
Let us try Mr Wallace.
The Deputy First Minister and Minister for Justice (Mr Jim Wallace):
LD
I thank the committee and all who contributed to its work for the efforts that were made in producing an important report. Indeed, I thank Christine Grahame ...
Christine Grahame:
SNP
Let me make it clear that the committee's letter sets out the four most important issues that should be considered straight away. We will then address the ot...
Mr Wallace:
LD
I am grateful for that. I hope that, in this speech, I hit on the correct four.I have limited time today, but I want to highlight some of the central recomme...
Christine Grahame:
SNP
The minister's position is reasonable if the limit for small claims stays at £750. However, would he take a different view if the limit went up to £1,500, wh...
Mr Wallace:
LD
The whole point of the small claims system is that it is intended to be relatively straightforward. Once we enter the realms of legal aid, the process become...
Roseanna Cunningham (Perth) (SNP):
SNP
The report is fairly comprehensive and the minister detailed a long list of things that he is taking on as a result of it. It is almost impossible to cover e...
Lord James Douglas-Hamilton (Lothians) (Con):
Con
I thank the Deputy First Minister for his constructive response this afternoon, but I ask him and his colleague whether they can confirm that all those propo...
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
When we first began considering access to justice in the old Justice and Home Affairs Committee, we looked at gaps in the law and omissions that discriminate...
The Deputy Presiding Officer:
SNP
We move to open debate. The debate is currently running about 10 minutes light, so speakers can have up to six or even seven minutes if they so wish. I ask P...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
You gave me a fright there, Presiding Officer, but I am sure that I will think of something to say.I believe that we have an important piece of work in front...
Mr Gil Paterson (Central Scotland) (SNP):
SNP
I thank the Justice 1 Committee for its important work on changes to civil legal aid. It goes without saying that the work is particularly important for wome...
Christine Grahame:
SNP
Eligibility.
Mr Paterson:
SNP
Thanks very much, teacher.
Christine Grahame:
SNP
It is late in the day.
Mr Paterson:
SNP
I welcome the recommendation to change eligibility criteria by removing inconsistencies in benefit treatment. I am particularly pleased that the minister is ...
Phil Gallie (South of Scotland) (Con):
Con
I congratulate the committee on the fact that the minister seems to have acted on some of its recommendations already. All members of the committee must feel...
Gordon Jackson (Glasgow Govan) (Lab):
Lab
Will the member give way?
Phil Gallie:
Con
Yes, but I am on a tight time scale.
Gordon Jackson:
Lab
Mr Gallie has always believed in giving legal aid to small businesses, but has he worked out how much that would cost? Have we an indication of what it would...
Phil Gallie:
Con
I accept that, but my point concerns very small businesses. I commend the Justice 1 Committee for asking the Executive to perform a cost analysis along the l...
The Deputy Presiding Officer (Mr Murray Tosh):
Con
I thank Mr Gallie for his single-handed effort to get us back to the timetable. We are still about five minutes light, so I will be reasonably flexible as we...
Donald Gorrie (Central Scotland) (LD):
LD
The work for this report was done before I became a member of the Justice 1 Committee, so I can praise the report dispassionately. It raises a lot of importa...
Bill Aitken (Glasgow) (Con):
Con
As I have never served on the Justice 1 Committee or been involved in the issue before, I can, with some detachment, congratulate the committee on a job well...