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The Advocate-General for Scotland (Dr. Lynda Clark): My hon. Friend may be aware that a case on the subject of legal aid is due to be heard by the Judicial Committee of the Privy Council on 25 and 26 April. The case concerns fixed payment levels under the criminal legal aid regulations in Scotland, and it is argued that such a system is incompatible with article 6 on the right to a fair trial. I have intervened in the case so far to make written submissions to the Judicial Committee.
Mr. Browne: As my hon. and learned Friend will be aware, in the longer term, it is intended to address issues of exceptional cases in legal aid by the mechanism of regulations made under the Convention Rights (Compliance) (Scotland) Bill which is currently before the Scottish Parliament. As she invariably ends up arguing the difficult cases before the Judicial Committee of the Privy Council, what discussions have there been between her as Advocate-General and the Scottish Executive on the shape of those regulations?
The Advocate-General: The merits of the case to which I have just referred have still to be determined. However, on the general issue raised by my hon. Friend, I am pleased to say that there is a great deal of discussion on policy matters of common interest between policy officials and Ministers in United Kingdom Departments and those in Scotland. As Advocate-General, I have also encouraged my lawyers to have discussions on relevant legal issues as soon as possible to try to sort out any specific difficulties.
Miss McIntosh: The hon. and learned Lady will recall the advice that she gave on a recent road traffic case involving the right to remain silent under the Human Rights Act 1998. Does she share my concern that whereas road traffic cases were previously dealt with uniformly under Scots and English law, there may now be a difference of interpretation across the border?
The Advocate-General: I appreciate the hon. Lady's interest in the matter, but I am not sure that I agree with her. The whole point of taking a matter to the Privy Council is to have it determined by the highest court. Regard will be given to the Privy Council's rulings in English courts as well as those in Scotland.
The Advocate-General for Scotland (Dr. Lynda Clark): Of the 1,237 devolution issues cases intimated up to 22 March of this year, I have intervened in 19, or approximately 1.5 per cent. Many cases involving devolution issues raise similar points and are dealt with satisfactorily by the lower courts. Generally, I intervene at appeal or Privy Council level where the case raises important issues for the UK as a whole. I examine every devolution issue intimated to me before determining whether or not to intervene.
Mr. McFall: Does my hon. and learned Friend agree that that illustrates that the relationship between the Scottish Executive and Westminster is working, and that it confounds the critics of all parties who are sceptical and do not want the arrangement to work? Does she also agree that their criticism has been thrown back in their faces, and that the relationship is healthy, vibrant and dynamic?
The Advocate-General: I am pleased to confirm that there is a high level of discussion and co-operation in the legal offices, as there is across the board, in relation to policy matters. The devolution settlement is working, and I hope that I will be able to play a small part in helping it to continue to work.
The Parliamentary Secretary, Lord Chancellor's Department (Jane Kennedy): We plan to increase the funding for self-employed guardians' fees by 3.8 per cent. this year. We have proposed new contracts incorporating graduated fees to distribute this increased funding in a way that preserves self-employed status for those guardians who want it.
Dr. Cable: The profession of guardian is a very important one and it is crucial for some of the most vulnerable people in society--the 10,000 children who appear in court during care and adoption proceedings. Is the Minister aware that the profession is incensed at the way in which the Department's accountants, prompted by the Inland Revenue, have introduced a fixed-fee system that is completely insensitive to the necessity that guardians adapt their work to the needs of the individual case? Will she agree to retract the proposal and consult the profession, whose members have not yet been consulted? Will she introduce a more effective scheme to protect both children and members of the profession?
Jane Kennedy: I do not accept the hon. Gentleman's description of the current circumstances. The new Children and Family Court Advisory and Support Service has offered a six-week delay to allow for further consultation. It has offered enhanced graduated fees in the most difficult cases, as well as an independent review both
I do not accept that the only way, in the interests of children, to remunerate guardians is according to an hourly rate, which is the case advanced by the guardians. I do not accept either that the quality of services delivered necessarily increases with the number of hours worked. Time spent and quality delivered are not the same thing. Fair graduated fees will co-exist with quality standards. I am confident that, when they have had time to consider the proposals further, the guardians will see that they are fair.
Mrs. Gwyneth Dunwoody (Crewe and Nantwich): One hazard with what my hon. Friend has just said is that the guardians are absolutely essential, and are self- employed. They are very worried about the proposed scheme, which was supposed to have been introduced at the beginning of this month. Does my hon. Friend accept that it is essential that the Department reconsider the proposals carefully, as it would be bizarre to lose the services of a great many skilled people who are desperately needed just because of a rather absurd decision that cannot be defended by reference to any consultation?
Jane Kennedy: My hon. Friend is mistaken. In fact, 111 of the guardians are not self-employed, but are employed directly by the panel. We inherited 57 different rates and allowances applicable to self-employed guardians, and that was one of the key problems identified by the Inland Revenue. The ways in which those rates and allowances apply in the guardian service are incompatible with self-employed tax status. The Department brought forward the proposals for a graduated fee structure to ensure the continued availability of self-employment as an employment status. It is a fair structure, and there is no diminution of the funding available for these services. I am confident that once the guardians have seen the details of the proposals they will accept what is on offer.
The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): The family graduated fees scheme and the rates to be paid have now been settled. The scheme will pay barristers set fees for different functions within a case, which will vary according to the category of family work. The fees can be increased to reflect complexity.
Sandra Gidley: I welcome the changes and improvements to the original scheme, but family law barristers still have concerns about the current scheme. First, they are paid on a different basis from solicitors--who are still paid hourly--and wish to see an integrated scheme. Secondly, there is real concern that the longer, more complex cases will not be adequately rewarded and that those arguably most in need will not receive the representation that they deserve. I share the concern that
Mr. Lock: I agree in principle that counsel and solicitors should be paid the same rate for the same type of work. However, solicitor-advocates may not always play the same role as barristers in family work, and that needs to be considered. We want to achieve a level playing field. We are confident that the rates we have set are more than adequate and appropriate for the job. We are confident that there is a proper supply of well- qualified barristers to do the work that the hon. Lady has identified, and we will, of course, keep the matter under review.
Mr. Stephen O'Brien (Eddisbury): What mechanism is the Minister putting in place to ensure that, following this part of the reform of the funding of the legal system, there is an audit comparing past and current provision of proper access to justice for all, as it is suggested that, as a result of the changes, some of the poorest in our society will be denied access to justice?
Mr. Lock: I find that quite astonishing. I have just been able to announce that legal help is now available for a further 5 million people as a result of the reforms and controls that this Government have introduced. That contrasts sharply with the way in which legal aid expenditure was treated under the previous Government. They cut millions of people out of receiving legal aid, instantly denying them access to justice.