LEGAL AID AND LEGAL SERVICES

HL Deb 15 June 1976 vol 371 cc1210-46

8.6 p.m.

Lord LLOYD of HAMPSTEAD rose to call attention to the future provision of legal aid and legal services in the light of current restraints on public expenditure; and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. This is in no way a disguised formula for launching a critical attack, but is genuinely aimed at eliciting information on a subject of some public concern. As we have had intimations from my noble and learned friend the Lord Chancellor that he is intending to afford us such information, we are all looking forward to hearing from him, and I will not detain your Lordships for more than a few brief moments. Perhaps, however, I might be permitted, very briefly, to sketch in the background and add one or two comments which seem to me deserving of consideration.

Before the Legal Aid Act 1949, the provision of legal services for those without means, or without adequate means, was a mockery which fully justified the jibe of a well-known Victorian judge, who said that, " The law, like the Ritz Hotel, is open to rich and poor alike ". The Act which introduced the structure of a comprehensive system of legal aid was an immense step forward. It was, I think, basically sound in principle and was capable of developing into the finest system of legal aid in any country. Unfortunately, due to lack of funds, it started on a very limited basis, though it has been gradually extended over the years, all too slowly as some may think, as more money has become available. It is fair to say that in this structure there is nothing that money cannot put right. But, on the other hand, it needs no emphasis that this is hardly the time when we can reasonably expect my noble and learned friend the Lord Chancellor to extract additional funds from his colleague the Chancellor of the Exchequer.

There are, I would suggest, two areas in particular which represent grave gaps in the functioning of the present system. First, the financial limits up to which legal aid is made available are absurdly low, and here inflation has, of course, inflicted its familiar toll. The result is that legal aid is available at present to much too narrow a section of the community, and thereby the purpose of a comprehensive service has been defeated. Secondly, in recent years it has become increasingly apparent that legal services are not being made available to the poor and deprived sections of the public in those fields such as housing and welfare where help is most needed. On this, it is well known that the Lord Chancellor instituted some time ago a review of the extent of such needs. Perhaps he will now be able to tell us something of what has resulted from that inquiry. Most valuable attempts have been made by voluntary effort to meet these needs, by the setting up of law centres in areas where the deficiency is particularly felt. I know that this is a cause which is particularly dear to the heart of our present Lord Chancellor, and one to which he has given his most energetic and warm support. The fact remains, however, as I think he would be the first to acknowledge, that so far only the fringe of the problem has been touched.

Without more money, is there nothing to be done but to express pious hopes for a better future when economic pressures are eventually relaxed? I would suggest that even under present conditions Her Majesty's Government are not powerless to effect some improvements. At a time of financial stringency, what does every Department, body or organisation, public or private, have to do? Surely to apply a keen and critical mind to every aspect of its affairs and attempt to construct an order of priorities within which the best possible use can be made of its existing resources.

So I will conclude by asking whether the noble and learned Lord the Lord Chancellor has carried out such a review, and whether he is satisfied that present resources, inadequate as they are, are being put to the best possible use. Are there, for instance, economies which could be effected that could make additional funds available to improve deficiencies in the two areas to which I have just referred? Is he satisfied, just to take one example, that the large proportion of legal aid which is now deployed in matrimonial causes could not be put to better use in a world of intensely competing priorities? I will not take up time by attempting a catalogue of possible adjustments or retrenchments, as we are all eager to hear the Lord Chancellor's own assessment and the statement of his policy in these matters. In these circumstances, I shall not detain your Lordships' House a moment longer. My Lords, I beg to move for Papers.

8.12 p.m.

The LORD CHANCELLOR

My Lords, on this particular occasion I have thought it right to intervene at this stage as I have certain proposals to announce which I think noble Lords may think are important, and which those taking part in the debate might like to hear about at this stage. First, I should like to thank my noble friend Lord Lloyd of Hampstead for moving his Motion and for his valuable speech, which has pointed out some of the areas where progress, in spite of economic difficulty, can still be made, and asking me some questions which I shall endeavour to answer in the course of my observations.

Your Lordships may recall that in my first speech in this House in March 1974 ventured to express the view that the part of the field of provision of legal services where advance was most urgently needed was in the extension and improvement of legal services for the deprived sections of our community. Shortly afterwards we had a full and useful debate in the House on a Motion moved by the noble Lord, Lord Gifford. Then in July 1974 I informed the House that I was proposing to ask my office to undertake an urgent examination of the nature and extent of the need for legal services for those sections of the community who most need legal help and are not getting it.

Before I tell your Lordships of the principal findings and recommendations in the report I have now received from my officials, I should like to set the whole problem against its wider background. It is important to remember that, in spite of the deficiencies in the arrangements for the provision of legal services to which the Legal Aid Advisory Committee drew attention more than two years ago—and I am delighted to see that its chairman, the noble Lord, Lord Hamilton of Dalzell, has his name on the list of speakers—the legal aid scheme, which celebrated its first 25 years last summer has, in general, I believe been an outstanding success. Indeed, legal aid both in the civil and in the criminal courts is now one of our essential social services.

But we have to recognise, I fear, that expenditure on legal aid has risen steadily and substantially over the years. So far as civil cases are concerned—and these are the ones for which, as Lord Chancellor, I am responsible; criminal legal aid is the responsibility of the Home Secretary—there has been an immense increase, as my noble friend has just indicated, in the divorce rate, and accordingly in expenditure in the divorce field. The increase in the divorce rate we deplore and no doubt it is, in part, a reflection of the strains and stresses to which the institution of marriage is subjected in the far from easy times in which we are living—and we may well hear some discussion of these matters tomorrow. Matrimonial cases now represent the large majority of the civil cases in which legal aid is granted, and account for the greater part of the cost of it. Expenditure on civil legal aid has increased from £11.5 million in 1971/72 to an estimated £34.5 million in the current year 1976/77. Although the total cost of civil legal aid is relatively small by comparison with the cost of our other social services, it is unfortunately unavoidable that steps will have to be taken to endeavour to contain it in the years immediately ahead.

The White Paper on Public Expenditure published last February explained the nature of the steps which the Government are being constrained to take to hold hack public expenditure if we are to stop living on borrowed money and if we are to reduce the public sector deficit and defeat the menace of inflation, as we are determined to do. In this battle for economic survival, which is what it is, every Department will have to play its part, and mine unhappily can be no exception. I have already had to accept a radical postponement of my plans for providing the new court accommodation which is so badly needed at many places throughout the country, as two of my predecessors who are in the House will so well know. The House will remember that the Royal Commission on Assizes and Quarter Sessions emphasised the need to build new courts to replace many of the existing buildings whose inadequacies they described so vividly—indeed, they said they were a disgrace. But I am afraid that here too we are having to cut our coat according to the amount of cloth that is available and I have had to slash my building programme.

I should now like to tell the House briefly of the nature of the advice I have received in regard to the present need for the expansion of legal services. The survey I commissioned just over 18 months ago confirms that the Legal Aid Advisory Committee was broadly correct in what it said in its Twenty-Third Report. It found that there were many people whose legal rights were, for a variety of reasons, at present going by default, that there was an overall shortage of solicitors throughout the country, and that their geographical distribution was ill-suited to serve many of the poorer sections of the community, and that there were considerable areas of the law, notably those relating to housing, landlord and tenant matters, and welfare benefits, where advice and assistance was urgently needed but often hard to come by.

The report I have received identifies the areas of greatest need. These include, in the North-East a number of places on Tyneside; in the North-West, Liverpool, Salford and several other places; in Yorkshire and Humberside, Bradford, Leeds, Sheffield and Hull; in the Midlands, Birmingham, Wolverhampton, Leicester and Nottingham. In London the report identifies, in particular, Hammersmith and Southwark and would have listed other areas too but for the fact that their needs are now met, to a greater or lesser degree, by the law centres which have sprung up in recent years. The report confirms the Legal Aid Advisory Committee's view that the geographical distribution of solicitors is very uneven and that there are many parts of the country with virtually no solicitors available to do legal aid work. In parenthesis, I may add here that the position is made worse than it ought to be by reason of inflation to which my noble friend referred, so that the financial conditions governing entitlement to legal aid are now seriously out of date.

The advice I have received is that there is an urgent need for the setting-up of more law centres and for doing whatever is possible to put the finances of some of the existing centres on a less precarious footing, and this I have sought to do in the last year or two. There is no doubt that the law centres are playing a vital part in making legal advice available in the areas of greatest need and on matters on which the poorer sections of the community most strongly feel the need for legal assistance. Even in areas where there are sufficient solicitors available to undertake legal aid work, they tend to confine themselves to matrimonial and criminal matters.

There is plainly a case for one central authority being entrusted with the responsibility for co-ordinating the arrangements for the provision of legal services throughout England and Wales. The advice I have received is to the effect that the Lord Chancellor should be that authority and that he should operate through a revivified and strengthened legal aid and advice administration under the superintendence of the Law Society. I should like here to pay my tribute to the immense value of the work which the Law Society has done over the past 25 years in the organisation and administration of the legal aid scheme. I have no doubt at all that the scheme, which has been so effective, in spite of certain shortcomings, in making legal aid and advice available to the poor and to people of moderate means, owes a great deal to the Law Society and to the many members of both branches of the legal profession up and down the country who have served on, the local and area committees which have to decide on applications for legal aid. It is true, none the less, that the present legal aid administration is criticised as being too much in the hands of the lawyers and I think there is indeed room for the injection of a strong lay element into it.

I have come to the conclusion, however, that now is not the time to seek to reorganise the administrative structure of the legal aid system. This would in any event need legislation and frankly I do not know how we would find time for that; and I do not believe that it would be in any event appropriate to introduce such legislation at a time when we are setting up a Royal Commission under the chairmanship of Sir Henry Benson to look into the provision for legal services and indeed to review the whole basis of the legal profession. I believe that we should be far better served and perform a far better service at this juncture by using the admittedly scarce resources that are available, to strengthen the law centres and to extend the coverage of the statutory legal aid scheme by raising the financial limits for legal aid as soon as we can properly do so. Then, again, we need as soon as we can to consider the extension of legal aid to certain of the administrative tribunals which now play such a very important part in the administration of J justice in this country. I am aware of course that there is a powerful school of thought which believes that people appearing before these tribunals are no worse off without legal assistance and that in the absence of lawyers, it is claimed, the proceedings are dealt with more quickly, more informally and more effectively. This is something which we shall no doubt have to consider when sufficient financial resources are available, but I fear that this is not yet the case.

At the present time, as I indicated earlier, the financial stringency is such that we have no option but, I fear, to limit the rate at which expenditure on legal aid is growing. I have therefore had to consider in what ways the money can he saved and found and I have conic to the conclusion that in my sphere of responsibility this can be done only by withdrawing legal aid from undefended divorce cases. Certainly, unless this is done, there will be no money available for assistance on even the most modest scale for law centres and for the improvement of the financial limits for legal aid. The withdrawal of legal aid from undefended divorce may at first sight strike your Lordships as a somewhat draconian proposal and I hope that the House will bear with me while I explain why venture to think that this will not be so.

The state of the divorce law was transformed by the Divorce Reform Act which Parliament passed in 1969. It is now possible for an undefended divorce petition based on the respondent's adultery or desertion, or the fact that the parties have been separated for five years, or for no more than two years if the respondent consents to a decree, to be disposed of without the need for the petitioner to appear in court at all, provided always that there are no children of the family under the age of 16. All that the petitioner needs to do is to file affidavit evidence in support of the petition and if the registrar is satisfied, on the papers that he sees and studies that the case is made out, he will refer it to a judge who will pronounce a decree nisi in open court as a matter of course.

This is the effect of the so-called " special procedure " which was first introduced by the Matrimonial Causes Rule Committee at the instance of my predecessor, the noble and learned Lord, Lord Hailsham of Saint Marylebone. It is only when there are children under 16 or where the petition is based on the respondent's unreasonable behaviour that the petitioner has to appear and prove his or her case in court. There is no doubt that this simplified procedure has been of considerable benefit. It has saved many thousands of people from what they regard as the useless and sometimes humiliating experience of having to appear in court to obtain the decree to which the law entitles them once the marriage can be shown irretrievably to have broken down. It has helped to reduce the costs falling on the legal aid fund because, even where the petitioner is legally aided, the procedure is much simpler than it otherwise would have been and the costs are proportionately less. The fact is, however, that the procedure is so straightforward that, provided a petitioner can obtain the necessary preliminary help and legal advice which is available from a solicitor under the so-called £25 scheme, and will continue to be available if what I have in mind takes effect, there is really no reason why, nor is there any necessity that, in the normal case the petitioner should receive legal aid in the presentation of the petition.

My Lords, I think the time has come to take the further steps which, I fear, are required. First of all, I should like to see the special procedure extended to all cases, including those based on unreasonable behaviour and including also those where there are children under 16, although I would leave to the judge the consideration of the arrangements for the children.

Your Lordships may well think that it is the latter class of case which provides the greatest cause for concern and the real difficulty and if I thought that there would be anything in my proposal which detracted from such protection as the law already gives to children in this unhappy situation I should not be putting it forward today. Under the law as it stands at present, it is the duty of the court—which in this context means the Judge—to satisfy itself before a decree is made absolute that the arrangements for the welfare of the children are satisfactory or the best that can be devised in the circumstances. Inevitably, it is very difficult for the Judge to do more than approve whatever arrangements the petitioner proposes, but I attach considerable importance to the duty of the Judges in this respect and to their ability to discuss, as they will of course do, the proposed arrangements with petitioners. They do this at present at the hearing of the petition. Under the new procedure which I envisage, it will be done by the Judge in his private room on a subsequent occasion and not in open court, and it may well be that most petitioners will welcome this change, but in the normal case I see no reason why it should call for representation by counsel or a solicitor, although, clearly, the responsibility placed upon the Judges and the task which they will have to carry out may become the heavier.

What I propose therefore, my Lords, is to invite the Rule Committee to approve the extension of the special procedure I have described to all undefended cases. The Registrar would continue to have the right, as he does at present, to require the case to be dealt with in open court by the Judge in the ordinary way if he is not satisfied on the papers that the petitioner has sufficiently proved the contents of the petition.

My Lords, I do not believe that in present conditions we can justify the continued expenditure of the very large sum of money I have mentioned on legal aid in undefended cases to which the special procedure applies. I have it in mind, therefore, once the procedure has been extended to all classes of undefended cases in the way I have described, to ask Parliament to approve orders withdrawing legal aid from these cases. I would propose, however, that it should continue to be possible to grant legal aid in exceptional cases if the certifying committee were satisfied that the petitioner would suffer hardship if this were not done, though I should expect the number of cases to which this dispensation applied to be comparatively small. I should also emphasise that the withdrawal of legal aid would apply only to the proceedings for the granting of a decree: it would continue to be available—and I emphasise this—when necessary in the so-called ancillary proceedings in chambers, where questions relating to the custody of children and the financial provision to be made for the petitioner are decided. These are the areas of real contest between the parties to divorce proceedings today, not the question whether the petitioner should get a decree.

The withdrawal of legal aid from undefended divorce cases in this way would enable a substantial saving to be made. Not all of this saving will be realised immediately, for inevitably there will continue for some time to be a large number of bills coming forward for payment. Nevertheless, I hope that within two years or so after the withdrawal of legal aid the money so saved will enable me to make a significant contribution towards the cost of new law centres and also to raise the financial limits for eligibility for legal aid in the cases in which it will still be available.

I must also make it clear to your Lordships that the withdrawal of legal aid from undefended divorce cases will not mean any reduction in the overall expenditure on civil and criminal legal aid, which will in fact, on present expectations, continue to increase because of the rising volume of business, and the inevitable increase in costs which are a feature of our times. I recognise however that what I am proposing will be unwelcome to, and may create serious problems for, many of those in both branches of the legal profession who have become accustomed to relying on legal aid work in matrimonial cases as an important part of their practices. Nevertheless, I believe the legal profession will accept these changes as necessary, and indeed reasonable, if the procedure is made sufficiently simple, with the safeguards I have mentioned, for the ordinary individual to conduct his or her case without the intervention of a lawyer.

My Lords, I recognise that the progress report which I have given the House will be thought by many people to be disappointing and possibly even be regarded as something of a backward step. I cannot pretend that I myself view with pleasure the withdrawal of any existing facilities for legal aid, but we have got to face for at any rate some years ahead the painful realities of the present economic situation. However, if the withdrawal of legal aid from undefended divorce proceedings means, as I hope it will, that money w ill be released to raise the financial limits for civil legal aid and to extend legal services in those areas in which an extension is most urgently required, then I believe that we shall be seen to be making real progress in this field and building on the foundations which were laid by the Labour Government when they passed the first Legal Aid and Advice Act in 1949.

8.38 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords: the very late hour compels me to cut short a great number of the agreeable things which f should have liked to say about the noble Lord, Lord Lloyd of Hampstead, and about my successor, the noble and learned Lord on the Woolsack. I shall therefore be acquitted of discourtesy either to the House or to them if I go to what I think to be the heart of this difficult matter. What the noble and learned Lord is proposing to do is to take away legal aid in the field in which it is most commonly used—that is, in matrimonial troubles where the case is undefended. I gather, although the speech of the noble and learned Lord seemed to me to include two ambiguous passages which were slightly contradictory of one another, that this will be done even where the financial provision particularly for the the wife may be in question and even where arrangements may have to be made for the custody, care and education of children.

The noble and learned Lord wishes in addition to remove legal aid from the granting of the decree in cases where the allegation is that the respondent spouse has been guilty of unreasonable behaviour. The noble and learned Lord proposes to transfer the money which he saves by these proposals to the creation, inter alia, of a number of law centres in various parts of the country and, in addition, to enlarge the financial limitations on the grant of civil legal aid generally. I must tell the noble and learned Lord that, unless he reassures me, I regard this central decision with something like dismay and that I do so not in the least in the interest of the legal profession.

I have some familiarity with the family courts. It was my ill fortune earlier in life to have to go through them myself and so I. know what a traumatic experience this is to the parties. Of course, I recognise that since that unhappy day both the law and the practice relating to divorce are vastly different, as a result partly of changes in procedure (to one of which the noble and learned Lord referred) and partly to the substantive change in the law created by the Act of 1969. None the less, if there is an occasion in one's life when one wants the helping hand of an experienced profession it is when one's whole future prospect as regards matrimonial status and the status of one's children—particularly if one is a wife, concerned with financial arrangements—are at stake. That is what, as I understand it, the noble and learned Lord has decided to put into jeopardy—and to do so for the sake of priorities which I do not believe to be as great as others.

I shall not say very much on the question of decrees based on unreasonable behaviour, except to say that they are the equivalent (although by no means an exact equivalent) of the old cruelty petitions. The task of identifying and specifying the unreasonable behaviour, and of establishing the relevant facts, is not easy, and I do not myself believe that it can be done by making use of the £25 scheme in advance and leaving the unfortunate petitioner to struggle, as best he or she may, in front of the registrar or the judge, as the case may be. I simply do not believe that it can be done without an inordinate waste of time and a considerable measure of injustice.

The noble and learned Lord, in the first of the two ambiguous passages to which I have referred, seems to think that the judge by himself, unaided by counsel or solicitors, will be able to spot the correct financial provision to be made, usually for the wife, as well as the correct arrangement with regard to the children. I believe that this is a perfectly appalling suggestion. I believe that expert professional aid is required in order to go into the financial relations between the parties in great depth and with great care, particularly when the parties belong to the working class and are somewhat inarticulate in their approach to difficult and complicated facts.

I consider that it is quite incorrect for the noble and learned Lord to say—as I thought I heard him do—that it was very difficult for the judge to do more than approve whatever arrangements the petitioner proposes. I must tell the noble and learned Lord that when one considers the arrangements which the petitioner proposes are to be proposed under the £25 scheme or put forward by some other means by the petitioner himself or herself, and without being presented in chambers either by a solicitor or a barrister, I simply shudder to think of the mess which will be made of it. I find this a wholly unacceptable suggestion, no matter how good and experienced our county court or High Court judges may he. I recognise that the noble and learned Lord says that in exceptional cases legal aid may still be available. But that does not comfort me, because the purpose of professional help in these cases is precisely to identify what are the real problems and which are the difficult cases and to exclude the irrelevant, and sometimes the mere matrimonial polemics with which they are confused.

The purpose is precisely to guarantee the honesty of the proposals as they are presented: it is precisely to propose responsible, not irresponsible, solutions. Any one of us with experience of matrimonial differences unhappily knows that sometimes even the most otherwise responsible and respectable citizens put forward irresponsible solutions when it comes to the management of their children or their financial affairs after a marriage has broken down. I regard this proposal of the noble and learned Lord with the utmost disquiet, and I hope that instead of simply appealing to the profession to regard it as necessary he will take careful consultation with the registrars and with judges of the circuit courts, the county courts and the High Court and with both the Bar Council and the Law Society as to the wisdom of the very radical step he is now proposing. If the noble and learned Lord finds that the weight of professional opinion is against him, I beg him—from me he will get no reproaches—to think again before he imposes this proposal upon society, because he is taking away a substantial part of legal aid in the very field where it is most commonly used and where it is most sincerely and deeply required by the litigant, and giving it to something else.

What he is giving it to has to be spread not merely between the proposed law centres but also in extending the financial limits. I should like to say a word about both these matters. As regards the financial limits, the noble and learned Lord cannot he thinking of any more than a purely trivial increase—I wish he were thinking of more than that. I say this because it seems to me, and it has always seemed to me—I said this to the noble and learned Lord once before and although he differed from me he saw the force of what I was saying—that the main thing which is wrong with our legal aid scheme at bottom, apart from a structural point to which I shall advert in a moment, is precisely that it has bumped along with the financial regulations tied inextricably to the level of supplementary benefit. Therefore practically nobody can get free legal aid apart from those who are entitled to supplementary benefit, and only those who are somewhat within range of supplementary benefit will even get assistance. So this can be only a very small matter which the noble and learned Lord is thinking of.

With regard to law centres, the noble and learned Lord and" I have discussed this matter before in your Lordships' House and therefore I shall not take up a great deal of time in dealing with it. I certainly do not want to appear to be hostile to the idea of law centres: nor would I wish to say a word in depreciation of those who have given a considerable number of ideas and much effort to their promotion. But 1 should like to say two or three things about law centres to the noble Lord. In the first place I have always thought that the priority for them stood a good deal lower than the improvement of the citizens' advice bureaux which are a kind of first aid service and which are, I think, inadequate at present. Secondly, as the noble and learned Lord rightly said, the fundamental problem in this context is the inadequate numbers in this case, particularly of the solicitors' profession, but also to a lesser extent of the barristers' profession. One does not of course add a single solicitor to the profession by introducing a law centre. One may produce some legal services in a place where no, or inadequate, legal services were available previously. This is possible. But in doing so one then ensures that there are two types of legal services available to the members of the public: those which one pays for, which are provided by solicitors and counsel in normal practice, and those which one does not pay for, or which one pays less for, which are given at a law centre.

Hitherto, the whole philosophy of our legal aid system has been that the client who is entitled gets the same service as if he was a paying client. In this proposal one goes back on that fundamental principle, and apparently, if all the names mentioned in the speech of the noble and learned Lord are to be the pattern for the future, one will do so right across the country and precisely in those areas where further manning of the legal profession is most required.

It would not he appropriate at this late hour for me to talk about the under-manning of the legal profession or to suggest concrete remedies. Partly, of course, it is due to circumstances which would take us widely outside the ambit of this debate altogether: namely, the difficulty of causing people, in the present social climate, to undergo the long training and the preliminary hardship necessary to enter a learned profession at all. But whatever else may he true, you are not going to cure that by introducing a number of salaried lawyers into the places which are most at risk. On the contrary, you are going to have a two-tier system with discrimination against the poor, and this, I am sure, is not what the noble and learned Lord is really trying to achieve.

My Lords, I am sorry to have been so harsh, and it may be that I shall not be on reconsideration. As the noble Lord knows, I have had only about 24 hours to consider what he said, and I promise him that I will consider it again, and will consider it again most carefully, as I hope he will consider also the first reaction which I have been compelled to give to this proposal. But at the moment I tell the noble and learned Lord frankly that it fills me with dismay.

There is only one thing I want to add, and that has nothing whatever to do with the proposals which the noble Lord has made. I must add, of course, in parenthesis, that I absolutely agree with both speakers that the present financial climate constricts the noble Lord almost intolerably. I myself, in a far less severe situation, was grotesquely restricted, and he has my entire sympathy, and no reproach, for being conscious of those restrictions at present. But there is one reform which can be carried out without the cost of any money at all and which might even save a lot of money, and that concerns the, to my mind, grotesque situation by which legal aid is divided into two halves, criminal and civil, one being presided over genially by the Lord Chancellor and the other being sponsored, less genially, by the Home Office. The determination of the Home Office to cling, irrespective of reason, to anything connected remotely with criminal law is one of the great obstacles to law reform at the present time.

I had hoped that in this financial stringency the noble and learned Lord would have taken his courage in both hands and bashed the Home Office on the head, and persuaded them that the legal aid system in criminal affairs is a rich field for reform in one way or another. In saying that, of course, I am perfectly well aware that we had the Widgery Committee some years ago, and I do not want to say a word of disrespect to the Lord Chief Justice, as he now is, whose service to the profession and to the country is beyond praise; but I believe that the findings of that Committee are now obsolescent, and I believe that a visitor from Mars, if he saw our legal aid system, the smallest of all our social services, presided over by two separate senior Ministers, so that the Jews of the Home Office never spoke to the Samaritans of the Lord Chancellor's Department, would be astonished at the irrationality of the human race.

8.54 p.m.

Lord WIGODER

My Lords, I must declare an interest as a practising member of the Bar, although I am happy to say that it is some years since I was instructed in an undefended divorce case. The statement made by the noble and learned Lord on the Woolsack will he received with gloom at the Bar as being yet another of the many blows which the profession has sustained in recent years. Indeed, my Lords, the legal profession is, of course, an easy target for cheap sneers and for gross misrepresentation, and I am only sorry that this Government should have decided to bow before a wholly artificially contrived storm and appoint a totally unnecessary and extremely expensive Royal Commission.

My Lords, may I, just for one moment, set this matter against the wider background of which the noble and learned Lord spoke? It is beyond argument, is it not, that since the last war the power of the Executive in this country has increased vastly? It is beyond argument, is it not, that nowadays the real protection for the liberty of the individual lies in a free, fearless, independent Judiciary? And it is beyond argument, is it not, that one will get a Judiciary of that nature only if there is a free, fearless and independent legal profession? That means that there must be a profession where the rewards are sufficient—not excessive, but sufficient —to attract and to retain people of real ability; and f am led to the conclusion that, as a result of the developments in recent years, that situation may not survive indefinitely into the future. I know that the noble and learned Lord on the Woolsack, after his, if I may say so, long and distinguished career at the Bar, would not want to be the occupant of his distinguished position who found himself presiding over the disintegration of the profession.

My Lords, I hope that I am not exaggerating. I believe that the figures will indicate quite clearly that what I have just said is a possibility. I can take in one sentence both criminal and civil legal aid together. The fact is that the current scales, the scales now in operation, with one small exception, for both criminal and civil legal aid, were fixed in January 1972. Since that date, the average earnings of the rest of the community have risen by 104 per cent. Since that date, the retail price index has gone up by 85 per cent. Since that date, the expenses of the profession have soared immeasurably; and yet the income of the profession has gone up by precisely nought per cent. When the noble and learned Lord comes to reply to this debate, perhaps he could indicate whether he knows of any other section of the community whose incomes have remained fixed for the last four years. I said, to be precise, " with one small exception ". The small exception is that in 1975 the Price Commission permitted a negligible increase in the fees paid for interlocutory work, so that a statement of claim in what might be an important case can now be paid at the rate of £10 instead of £7.

My Lords, that is the position so far as civil and criminal legal aid is concerned. Those of my friends who have had the misfortune to practise in matrimonial work in the county courts, and who are the ones who o will suffer if the proposals put forward today are carried into effect, have received perhaps even more of a raw deal. Their fees, the fees that they at present receive, were fixed in 1967—nine years ago. There has not been one single increase at any time in that period of nine years. There has been proposal after proposal made to the Lord Chancellor's Department. There has been one pathetic and dreary excuse after another over that period denying any sort of compensation for the rapid increases in the cost of living.

My Lords, now this proposal is being put forward today. It will come, I may say, as no surprise to my friends who carry out that sort of work that, once again, they should be made the targets for the cuts that are proposed. May I say only this as to those cuts and to the series of excuses that has been tolerated by the Bar for ten years. I wonder, again, whether the noble and learned Lord could suggest the name of any other professional organisation, or any trade union, which would have endured a situation like that for ten months, let alone a longer period.

One can appreciate in some ways the logic of what is put forward by the noble and learned Lord this evening. At the same time one is bound to say there is force in what is said by the noble and learned Lord, Lord Hailsham, and perhaps particular force in the determination to ensure that where children are concerned it should be made abundantly clear that legal aid will be available in order to ensure that their interests are not adversely affected.

Perhaps I could add this. Let us put this into perspective. The sum of money that we are talking about is, frankly, peanuts. If my information is correct, of the total legal aid bill of something over £40 million, the total saving that is now envisaged is about £13 million. As against the national expenditure, it is a sum of no consequence. One cannot seriously suppose that foreign speculators are going to rush to buy and hold sterling on hearing the good news that undefended divorces are now to be taken out of the legal aid scheme.

Having indicated, I hope accurately statistically, the position so far as fees are concerned at the Bar over the last four years, may I add one further matter which concerns us? That is the fact that not only have the fees fallen far behind fees in the rest of the community, but we suffer from one complaint which is almost unique; that is, grotesque delays in payment. It is not unusual in criminal legal aid cases for fees to he paid one, two or three years after a case is completed —although I accept that the situation has recently improved as a result of the provisions made for interim payments.

As far as civil cases are concerned, the situation is far worse because in civil cases, where the case, by its nature, might take several years from the time of its inception to the time of disposal, the fees cannot be paid (and are not paid, in the ordinary way) for another nine months to fifteen months after the termination of the case. That means that counsel may not be paid for four, five, six or seven years after they have done the necessary work. Again, might I ask the noble and learned Lord —and I say this in no sense in a personal way—what would be the reaction of Ministers of the Crown, for example, if they were to find their salaries being paid four or five years in arrears and that during that period they were obliged, for financial reasons, to borrow money from the banks at penal interest rates: and that when they were, in due course, paid, the money with which they were paid was worth perhaps half of what it was worth at the time they did the work?

My Lords, I raise this matter on this Motion; and it is clearly relevant, I think, for this reason. As the noble and learned Lord on the Woolsack is aware, the Law Society, with the agreement of the Bar Council, have put forward proposals recently for interim payments on account of civil legal aid work. That would relieve considerably the burden on the Bar. Obviously, it would not increase the total amount that was to he paid, but I accept, of course, that in the present period of financial stringency it might lead, M the short run, to a comparatively small amount having to be paid out which might otherwise not be paid out for several years. I hope that when the noble and learned Lord comes to reply he might be able to indicate that he sympathises with the position. I do not expect him to say that he would adopt the proposals of the Law Society at this stage in the state of the country's economy, but I hope that he might indicate whether he would be prepared to look sympathetically at those proposals at the earliest practicable moment in the future.

My Lords, because I have spoken in a sense in a trade union capacity in this debate, I am bound to add that not only have members of the Bar had to suffer in this way over the last few years but we have seen all around us a totally different picture. We have seen those of our colleagues in other professions, those of our colleagues in Government, those of our colleagues in the Civil Service, receive increase after increase in their salaries, year after year. I have the figures; I do not propose to go into them. Those who have a legal function to perform in the Civil Service have received increases in the last three years of 50 per cent. in almost every single case; circuit judges and magistrates have received increases of nearly 100 per cent; those in the medical profession under the Health Service have received increases, again of over 50 per cent. And, not only have those increases been achieved by those people, but they have achieved this situation and managed to obtain for themselves built-in, handsome pensions at a level that no member of the Bar could ever hope to achieve for himself.

My Lords, I would not want to be regarded as being purely destructive on this occasion. Let me say at once—the noble and learned Lord asked what the reaction of the Bar will be to the proposals—that I have no doubt that most members of the Bar will accept, as most noble Lords accepted last week in the debate on the economic situation, that urgent and stringent financial cuts are drastically necessary in the interests of the community as a whole. I have no doubt that the Bar would be prepared to accept those in relation to themselves. I would only add this: they would accept them, first, provided that it was made clear that the cuts were not being imposed simply because it was thought perchance that here was a section of the community not organised for industrial action. I hope that the Government would not want to acquire the reputation of always retreating before the strong and always being prepared to strike against the weak. Secondly, the Bar would, of course, be prepared to accept the sort of reduction in its standards which the noble and learned Lord the Lord Chancellor has indicated today, if it were made clear that this was part of a general scheme of equality of sacrifice by the community as a whole.

My Lords, I hope that the noble and learned Lord will indicate when he conies to reply that there are imminent proposals emanating from the Government for reductions in salary for Ministers of the Crown, for senior civil servants and for many other people who hold positions comparable to those of the Bar. Finally, may I say that I am sure that the noble and learned Lord on the Woolsack will accept that it is desperately necessary in the interests of our society that we should maintain our standards of the administration of justice. For the reasons I have indicated, I venture to think that if there are further cuts of this nature the very independence and existence of the legal profession will be in danger. I hope that the noble and learned Lord will be able to indicate that for some considerable time to come this is going to be the last of such statements that we shall hear from him.

9.8 p.m.

Lord GARDINER

My Lords, may I first of all thank my noble friend Lord Lloyd of Hampstead for having enabled us to discuss tonight a subject which has always been very dear to my heart. I do not disagree with anything that the noble and learned Lord, Lord Hailsham of Saint Marylebone, said about the Home Office; but, on the whole, I had better confine myself to civil legal aid, for it is that alone for which, at the moment at any rate, the noble and learned Lord on the Woolsack is responsible. All my life I have thought and said, particularly to the Labour Party, that it is absolutely useless going on and on passing Acts of Parliament giving rights to poor people if, because of their poverty, they are not able to enforce or defend their rights. If that is the position, they may just as well throw their rights into the wastepaper basket for all the good they are to them.

If I may remind the House, when I was called to the Bar the only form of legal aid was the poor person's action. If you had an income of no more than £2 a week or, in exceptional cases, £4 a week, and if your capital, which included your furniture, was not worth more than £50 or, in exceptional circumstances, £100, then the action would be undertaken for nothing, otherwise there was no help at all. I well remember these poor person's actions. For a young barrister who was finding it difficult to live on the fees he was getting, as a point of honour these actions were always undertaken by young barristers and solicitors. It was not just a matter that you did not get any fee; if you had a two-day poor person case at Derby Assizes, you had to pay your own train fare and your own hotel bill. We all did it because it was the thing to do. This went on until the middle of the war, when the whole thing broke down because young barristers and solicitors were away and there were not the lawyers to go round.

I remember that before I left practice myself during the war the last thing I did when I got to the door of my chambers was to remember something. I went back, sat down and wrote a long letter to the Lord Chancellor, Lord Simon, explaining to him how legal aid had broken down. I called a conference. I do not know why I called it because I was only a junior barrister. However, I called a conference of all the poor person's lawyers' societies in London to try and cope with this problem. We all had different views as to what the perfect legal aid system should be. I begged the Lord Chancellor to do something about this. While I was away, he appointed the Rushcliffe Committee, whose report in 1949 the then Government accepted and enacted in the Bill of that year.

This without doubt was the best legal aid system in the world. It swept away the poor person's action; it provided no help to those who could afford to conduct litigation themselves; but everybody had to pay what he could afford, and the State was to make up the difference. This was to apply in the High Court, the county court, domestic- proceedings before magistrates and in every tribunal before which there was a right to representation. In all the local legal aid centres there were to be salaried solicitors giving advice, however difficult the question, for what the people could afford—half a crown, I remember, for old-age pensioners.

The Act received the Royal Assent in July 1949. Being not impartial in these matters, I thought what a splendid Government this was; they had the wisdom and courage to give independence to India, Burma and Ceylon; gone was the great fear of most of our people: what was to happen about paying fees if they were ill? Gone, for that matter, was the worry of the doctors in dunning their patients to try to squeeze out the money which the patients could not really afford. There was the National Health Service. There was this legal aid scheme.

Then came September, devaluation, crisis, cuts all round. The Lord Chancellor was told, " You cannot do any of this now ". It was a year before he was able to bring this scheme into force in the High Court. Then there was a General Election and a change of Government. We then had to battle against Conservative Governments for seven years before it was introduced in the county court; and another three years before it was introduced in domestic proceedings before the magistrates. When 1970 came it had never been applied to any tribunal and none of the salaried solicitors in the local legal aid centres had ever appeared. The real strength of those of us who have been battling for years for legal aid is that we are only trying to get what Parliament agreed to and passed in an Act of Parliament a quarter of a century ago.

After considerable opposition, I managed to get legal aid applied to one tribunal. The opposition was largely because the powers-that-be realised that if it was once applied to one tribunal it was only a question of time before it would be applied to others. It has managed to keep up with the increases necessary in the scale. The fact is that civil legal aid has always been the Cinderella of the social services. I entirely agree with what my noble and learned friend on the Woolsack said as to the admirable way in which the Law Society have administered the legal aid service such as it is. I am sure he would agree that all Lord Chancellors also owe a great debt of gratitude to the Legal Aid Advisory Committee for their excellent reports.

Nobody appreciates better than I do the difficulties of my noble and learned friend on the Woolsack in the present economic climate. It is the fact, I think, that without his doing anything a good deal will he saved, as compared with what would have been considered necessary, by the changes in our divorce law. It must have been saved already in fact, because so long as you had to prove a matrimonial offence it was very difficult for anyone to argue that this could be done without legal assistance. But now that has gone, and the question is not whether or not a matrimonial offence has been committed, but whether or not a marriage has irretrievably broken down, and where there is no dispute between the parties there is in substance already no hearing, so I should have thought that must already have saved a good deal of money.

How far this should be extended, I am not sure. I should respectfully desire to read and consider what my noble and learned friend has said about those cases where there are still serious disputes at the hearing of the petition about custody of the children or financial provision. I thought it rather sounded —though I may have got it wrong—as though you would still be entitled to legal aid when these matters are considered and a determination made by the registrar, but if one of the parties is not satisfied with that and wants to bring it up at the hearing of the petition, then you would not be. I am not sure that that would be right, but I agree that if there are serious disputes about the custody of the children or financial provision it may not raise any legal point at all, but some people are very bad at putting their case and the mere fact that they are appearing before a judge in his private room does not necessarily enable them to do so. But, as my noble and learned friend has said, to remove legal aid which exists at the moment would require legislation, and therefore we shall all have a great deal of time to consider the matter before he is able to bring this into effect. So I apprehend that there will be some saving, though we do not know quite how much. If there is, and if this means that further funds are available, the question arises—and it is a difficult one—with so many unmet needs in this field, which should have priority?

I should have thought that priority should be given to the scales first and I have in my head—though I am not sure where I got it from but my noble and learned friend may be able to tell me in reply—the fact that not long ago 50 per cent. of the families in this country were entitled to legal aid. Of course, that does not mean that if you get legal aid you get the thing done for nothing. That is a silly system: they have to pay what they can afford. To the extent that people could not afford to pay the whole amount themselves, they were entitled to legal aid. Owing to inflation, the people who are now entitled to legal aid at ail represent about 20 per cent. If that is so, there seems to have been a serious reduction in the proportion of our people entitled to legal aid, and I should have thought that the scales ought to come first.

Secondly, there is the question of law centres, of which I gather the noble and learned Lord, Lord Hailsham, did not think very much—

Lord HAILSHAM of SAINT MARY-LEBONE

My Lords, I did not say that. I said that I was particularly anxious not to depreciate them, but that there were certain disadvantages inherent in the scheme, especially when the difficulty arises from the shortage of solicitors overall.

Lord GARDINER

My Lords, I appreciate that, but I think there can be no doubt that the law centres have made a great contribution at a difficult time—

Lord HAILSHAM of SAINT MARYLEBONE

Yes, I said that.

Lord GARDINER

—and while I would uphold as strongly as anyone an independent legal profession—" free, fearless and independent " as the noble and learned Lord, Lord Wigoder, has said—I am afraid it is the fact that they very much neglected a field of law which is of enormous importance to a large number of people who do not have any money. The lawyers, I am afraid, did not interest themselves because there was not any money to be made out of it. When I was at the Bar, there was not even a single textbook on the Whole field of what pensions people were entitled to or what supplementary benefits were available, and so on. There were insurance appeal tribunals. I had myself to work entirely on an admirable publication called Cans, published by the National Council for Social Service. There was a loose-leaf book which I made up. A very distinguished Lord Justice told me that his cook once asked him at what age she would be entitled to a pension. He did not like to tell her that he did not know, but lie told me that it took him three days and nights, doing nothing else at all, to find Out, because social security law is a little complicated and for the ordinary lawyer it formed no part of the Bar examinations.

I must not start talking about Bar examinations now, but they have never contained any paper on penology or even elementary psychology, and there was also no paper on pensions, supplementary benefits and so on, which mattered to so many people. It is into this gap that the law centres have come and they have been an immense boon to poor people who, otherwise, would have received no legal advice at all. The £25 scheme, so far as it has gone, has also been helpful. But when I heard the noble and learned Lord, Lord Wigoder, say that £13 million was chicken feed, and thought of the numbers of new law centres which could he started for about one-tenth of that amount, I applauded the intention of my noble and learned friend, among the beneficiaries of such savings as can be made, to increase the number of law centres.

Thirdly, there is the question of tribunals. It may be right to say, and probably is, that if there is money to spare scales may come first and law centres may come second, but I hope that the claims of tribunals will not be forgotten. Here, again, one is asking only for what Parliament agreed to and enacted in 1949. It allowed representation for tribunals to be brought in by order. The only reason it was not in the Act itself, as one can see from reading the reports of the debates, and put on a footing with legal aid in the High Court, the county court and before magistrates, was because it was said, " All these will require additional work for lawyers, and until we see how far they have been taxed by legal aid in the High Court, in the county court and in domestic proceedings before magistrates, we had better not apply it to tribunals to start with." But power was given to make an order applying to all tribunals before which there was a right to representation.

My noble and learned friend has mentioned the view that people are no worse off before tribunals if they are not represented. I respectfully suggest that all research work which has been done in this field shows that that is not so. I take as an example what I am afraid I have referred to earlier as the dregs of the tribunals, and which I ventured to criticise in a discussion in your Lordships' House a little time ago on the working of the cohabitation rule: namely, the supplementary benefits appeal tribunal. Since then—in fact, since September last year—Professor Bell's report has been available, upon which she spent some years at the request of the Department of Health and Social Security. I think all the criticisms which many of us then made of the supplementary benefits appeal tribunal have been fully borne out by her report.

One of the things she says is that the overall success rate before that tribunal was 20.6 per cent., but where the appellant attended with a representative it was 42.4 per cent. This is not the only piece of research work which tends to show that where there is representation the success rate is likely to be higher. That does not necessarily mean representation by lawyers; again, research shows that that is not so. In many cases before tribunals there is perfectly successful representation by trade union representatives, by social workers or even by relatives and friends. But there is a great difference according to whether or not there is some representation, and she says in her report that resources should be made available to develop facilities for advice, assistance and representation—and particularly as to representation—so that it would be in only a few cases where there were real legal questions to be decided that the representation of a lawyer would be necessary. As a whole, therefore, I welcome what my noble and learned friend has said.

I admired very much the " plug " which the noble Lord, Lord Wigoder, got in for the remuneration of the Bar—whether or not directly relevant. sympathise with him because when I was chairman of the Bar Council I spent nearly all my time raising fees for the Bar. It was a time—1950—when the Bar had fallen far behindhand as against the inflation which had taken place during the war. To take divorce as an example, I remember well that the fee for settling a divorce petition was then £2 4s. 6d., because it had been £2 4s. 6d. since 1939, and that the fee for settling an indictment was £1 3s. 6d. because it had been £1 3s. 6d. in 1939. Undoubtedly there are times when the Bar suffers from the fact that it is not a very militant trade union, that unless anybody does anything fees remain the same and that in a time of inflation the Bar may well suffer worse than most people—but not from anything which my noble and learned friend on the Woolsack has proposed.

Therefore I welcome this debate. Legal aid is the Cinderella of the social services and we must appreciate my noble and learned friend's difficulties in not being able to obtain more money from his colleagues. Subject to consideration of what he has said about disputes between children or as to financial provisions, I very much welcome what my noble and learned friend has said about the economies which can properly and inevitably, I think, be made in relation to divorce and the uses to which he would propose to apply such savings as can be made.

9.27 p.m.

Lord HAMILTON of DALZELL

My Lords, I should like to thank the noble and learned Lord the Lord Chancellor for the statement he has made and for the outline he has given us of the report which he has received. As chairman of his Advisory Committee on Legal Aid I was pleased to note that the report confirms what we said in our Twenty-Third Report about the present inadequacy of the legal services available to those in need. What we then said was based on the best information which we could obtain. While the state of affairs which we described is, of course, deplorable, it is gratifying to be proved right by what I understand to have been an extremely thorough survey that was carried out by officials of the Lord Chancellor's Office, who were detailed especially for that purpose.

My Committee will, of course, want to consider in detail the noble and learned Lord's statement, but I have little doubt that we shall find ourselves in broad agreement with the proposals in that report and with the priorities that the noble and learned Lord has allotted to carrying them out. The implementation of any of these proposals will inevitably cost money, and this is always a powerful argument against doing anything. As the noble and learned Lord, Lord Gardiner, indicated, a perusal of the reports of my Committee over the past 25 years would reveal a continuing story of the failure of the scheme to keep up with rising costs and of missed opportunities for improvements. But no-one can deny that as economic crises go, this one is a special case. As the noble Lord, Lord Lloyd of Hampstead, said, we are all well aware of the particular interest taken by the noble and learned Lord the Lord Chancellor in this field and his urgent desire to make progress, so it is very sad that he should be constrained by the total denial, which is now in force, of new funds.

The difficulty of controlling the cost of legal aid lies in the fact that it is open ended, in the sense that what it costs depends on the number of people who use it. That number increases year by year, even though, as we have pointed out, not so many people are taking advantage of it as properly should. So the only ways in which the cost of the scheme can be curbed are either to make the financial conditions even more stringent than they are already, or to find an area where legal aid can be withdrawn altogether.

The former alternative is clearly out of the question, so the noble and learned Lord has turned to the latter and proposes to withdraw legal aid from undefended divorce cases. This is something which at first sight must cause concern, and indeed we have already seen this evening that it has done so. It is in fact the first time in the 25-year history of the scheme that its scope has been reduced, and it marks a retreat from the aspirations for universal coverage which were implicit in the 1949 Act. But one must face facts and I am willing to agree that money saved here could be more usefully spent in other ways. As a layman I hesitate to express views on the intricacies of divorce law, but there are two points about the proposal which I should like to make.

First, I was pleased to hear the noble and learned Lord lay stress on the fact, as I understood it, that legal aid would be withdrawn only for the more or less mechanical proceedings for the granting of a divorce in undefended cases. I did not understand, and it would be most unfortunate if people got the impression, that legal aid was to be withdrawn from the area which continues to be of the greatest importance to the parties and their children—the ancillary proceedings which determine the arrangements for their future. I hope that emphasis will be laid on this when the time comes to give publicity to the new rules, so that no one will be deterred from seeking legal advice on those important aspects of a divorce.

My other point is that it will also be important to ensure that procedure is simplified and court facilities are improved, so as to make matters easy and un-forbidding even for those for whom any contact with the courts is likely to be rather alarming. There will be minor anomalies to take care of, too; for example, under the existing Rules court fees are waived for an assisted person, but anyone not on legal aid has to pay them. This would be a poor reward for someone saving the country money by doing the job himself.

Subject to those points, I believe that this is the best way to achieve economies and to make possible some advance in other directions. I noted the priorities which the noble and learned Lord gave to this: in the first rank, strengthening the law centres, which I hope means encouraging and facilitating the setting tip of some in those areas of greatest need which have been identified in the Report, and also by raising the financial limits. I entirely agree that these are the two areas in which any money available will be best spent, and 1 hope that my committee may be called on to give advice about the most effective way to do it.

Next comes the extension of legal aid to tribunals—something which we recom- mended in our 24th Report. Here again I hope that we may be able to make some useful suggestions about the best way to start when the time comes.

I welcome the proposal in the Report that a new form of authority should be set up under the noble and learned Lord the Lord Chancellor for the coordination of the provision of legal services under the superintendence of the Law Society, and that this new body should include a substantial lay element. I believe that this would be a sensible and valuable improvement and I was glad to hear the noble and learned Lord accept the idea in principle. I realise that this will probably cost money which in the immediate future could be better used elsewhere and that it should therefore not have a high priority; also that it would involve legislation.

However, my Lords, I was a little disappointed to hear him say that one reason for not proceeding with it was the fact that the Royal Commission had been set up. I do not know how long it will be before the Royal Commission reports, or how long it will be after that before any conclusions are drawn from it, but I hope this will not mean that all progress of this sort will have to be deferred, even if an improvement in the economic situation makes it possible. My Lords, we, the Advisory Committee, have been encouraged by the great interest which the noble and learned Lord takes in our subject and by his keen desire to promote improvements in the legal aid system. I look forward to the opportunities which this statement seems to foreshadow for us to be, I hope, of some service to him.

9.35 p.m.

The LORD CHANCELLOR

My Lords, a number of questions have been addressed to me in this debate, and I ask the leave of the House to speak again. I fully understand the concern expressed in different parts of the House about the proposals that I have made, and I at once give an assurance to the noble and learned Lord, Lord Hailsham of Saint Marylebone, that of course I will engage in further consultations over the range of people he has mentioned before final action is taken. But there is one thing I want to make clear, which obviously I did not in my speech.

Frankly, the main purpose of what I propose is to save public money, to save public expenditure. The bulk of the savings that will derive from what is proposed will go towards the reduction of the adverse balance of public expenditure. I have little doubt that this will be the first of a series of debates we shall have in relation to the efforts the Government will make to reduce public expenditure.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, may I make this point to the noble and learned Lord. I understood him to say—and perhaps he will correct me if I am wrong—that so far from saving public expenditure, what he is doing is to transfer the savings to some other form of expenditure, so that the net expenditure will not he less; it is going to be more.

The LORD CHANCELLOR

My Lords, what I have sought to say is that unless the continuing increase in legal aid expenditure is checked—and it is proposed to check it in this way—then the burden upon the Exchequer will continue to grow in a way which will be unacceptable. By preventing that growth—and it will not take effect for two or three years—we shall make our contribution in my Department to the avoidance of building up mounting public expenditure at a level that we cannot pay for without borrowing more money.

My Lords, when it comes to giving effect to the demands for immediate cuts in public expenditure, which the Opposition make so stridently; when one conies down to measuring where the cuts are felt, if I may say so—and I do not want to be Party political on this—one gets very little support. Some poet has said: Though I think all men are brothers Let the fall out fall on others That is the tendency, both Departmentally and politically, in considering where this painful medicine is to be taken. It gives me no pleasure to have to make these proposals, but with very great respect to the noble Lord, Lord Wigoder, for whom, of course, I have the greatest respect, if I may say so I think he has painted a grossly over-coloured picture of what is contemplated. The noble Lord seemed to think that the proposals I have made would lead to an absolute cut in expenditure in legal aid; that is to say, the overall remuneration of the legal profession from public funds. As I have said, this is not the case. It will merely keep the rise, which will continue, within acceptable limits.

As to the remuneration of the profession from the Legal Aid Fund, I think it ought to be known, and I think the noble Lord ought to make it known if he does not, that the remuneration of the profession from the Legal Aid Fund has more than doubled in real terms over the last five years. That is a fact which hope that the legal profession will bear in mind. In fact, there has been an increase in the remuneration of the profession for the last four years.

My Lords, if I may say so, in my life at the Bar the financial basis of the legal profession has been transformed: all those years of struggle that one did in the early days are rightly transformed. But in regard to more recent increases, in the last four years. last year solicitors' costs in the High Court for non-discretionary items were increased by 35 per cent.; the discretionary items. and these include counsel's brief fees, have gone up in the exercise of the discretion of the taxing master. In the county court, the scales of costs are related to the size of the claim. This has gone up with the fall in the value of money. In addition, registrars are more free in the exercise of their discretion than they used to be. So it is the case that we have not been idle in doing what could be done within the limits of financial restraint. We have not been indifferent to this profession, to which, if I may say so, I owe such a very great deal in my whole life and which has contributed so much to the happiness of my existence.

We have endeavoured within the limits of availability to help where we can. With very great respect to the noble Lord, Lord Wigoder, it is not only the legal profession that is going to be asked to make sacrifices now, because the community as a whole, working people, men at work, are agreeing to submit to reductions in their standard of living. This is what is going to happen, in that wages will not rise at the same level, I fear, as prices. The community has got to face the fact that for the next two or three years we must suffer a reduction in the standard of living of all of us, and let it he faced that there are poorer working people with a lower standard of living, and for them a reduction in the standard of living is far more painful than it is for those of us in the professions, because it hits most hard, and it may well hit children. That is the reality we are in and that, unfortunately, is the reality we must face.

Of course, now the Royal Commission is going to examine the matters that the noble Lord, Lord Wigoder, has raised. What he has said is certainly a corrective to the commonly held view that the legal profession is these days living the life of Riley, and indeed the great demand for the Royal Commission has gone in the confident expectation in some quarters that the Bar has feathered its nest, and the solicitors', too well in recent years. We shall await, I with impatience and excitement, the outcome of the examination in depth that the Royal Commission will make into these matters and for the recommendations they may make. Although the noble Lord, Lord Wigoder, denounced the very coming into being of the Royal Commission, he was out of step with both the Bar, the legal profession, and the solicitors branch of the profession. which went, at any rate on public record, as welcoming it. So we shall see what emerges.

Coming to the matters of concern as to the area within which legal aid in the matrimonial field will continue to be granted. The withdrawal will only cover the decree proceedings and will not extend to ancillary proceedings if any matter of dispute or difference arises in that field, either in the matter of care and custody of children or in the matter of financial provision. If the registrar or the Judge was to be in the presence of a feeling that there ought to be legal aid in a given case, I have no doubt whatsoever that an indication to that effect communicated to the certifying committee would immediately result in the granting of a legal aid certificate. Then, as I have said, the proposals which will come forward will provide for legal aid in any event in the hardship cases. But I emphasise the fact that the worried, harassed spouse will not be presented with a hopeless position. If I thought that, I would not have anything to do with what I am proposing. The £25 legal advice scheme will continue in existence.

It is very interesting, in relation to what the noble and learned Lord, Lord Gardiner, said about the Bell Report, in the matter of legal aid before tribunals (I read from page 23) that: The research indicates that priority should be given to development of broadly based and accessible advisory facilities including the services of lawyers but not restricted to them. People on the whole wanted general advice and explanation rather than legal opinion on a precise legal issue. In a small minority of appeals and references legal advice would have been valuable. This, in the matrimonial field at any rate, will continue and we shall indeed be budgeting for increased expenditure under the green form scheme. I anticipate and intend that in the critically important field of provision for the children, and arrangements for the children, absence of legal aid and advice and representation, if necessary, should not take place where there is any matter in dispute.

The noble and learned Lord, Lord Hailsham, thought that it would be impossible for a petitioner in person to present to the registrar a behaviour case, a total breakdown of the marriage case. What we contemplate is a pro forma affidavit to be provided which will enable a petitioner to set out his or her allegations in a way which will satisfy the requirements of the Act. I ought to say that, so far as children are concerned, it is very unusual for a judge now to decline to accept a petititioner's proposals unless some dissent on the part of the respondent is indicated. The respondent's acknowledgement of service will indicate whether he disagrees. If he does not, the matter can, and will, be dealt with by the judge hearing the petitioner in person. Under the scheme I propose that will be held in the more informal atmosphere of chambers, and indeed that hearing of the petitioner in person by the judge could well he better than the somewhat perfunctory consideration of the arrangements for the children which tends to take place after the hearing of the petition. However, these are matters upon which I shall take further advice and to which I shall give further consideration, but that is the position as I see it.

The noble Lord, Lord Wigoder, put to me the suggestion of the Law Society with regard to payment in civil cases on account of fees due in legal aid. My information is that the implementation of the Law Society's proposals would involve a once-for-all increase in expenditure on legal aid of several million pounds in a year. I of course regard the proposal with sympathy, and I suffered myself in waiting, certainly at an earlier time in my career, for the payment of fees. It is always a pleasure three years later to get an unexpected bonus, but it is not something on which one can carry on a living. So I regard the proposals sympathetically, and when we get over this economic hump, as we will—if we work together as a people we will get over it—we shall he able to return to ordinary, reasonable and progressive expectations. But at the present moment of time I cannot give more than express my sympathy, and hope that the time will come when the sympathy will he translated into action.

I have endeavoured to cover the ground. My noble and learned friend Lord Gardiner asked if I had information as to the impact of the decline in the proportion of the population eligible for legal aid since 1960. I am afraid that I do not have the precise figures. There is no doubt that the proportion has fallen very considerably. This, I understand, is, in part at any rate, due to the rise in earnings and it is also due of course to the rise in legal costs since then, and, as I have said, in so far as we can save anything over and above the contribution which I must make from my Department in savings—that is to say, in the reduction in increased expenditure, which is really the accurate way of putting it—then, as I have indicated, my preference at any rate would be in the two directions I have indicated. I was very comforted indeed to have the support of the noble Lord, Lord Hamilton of Dalzell, for that ordering of the priorities. I apologise for detaining your Lordships so late but the matters which were raised were of great importance, and I repeat my gratitude to the noble Lord, Lord Lloyd of Hampstead, for having made this debate possible.

9.52 p.m.

Lord LLOYD of HAMPSTEAD

My Lords, I wish to thank all noble Lords, and particularly my noble and learned friend the Lord Chancellor, for participating in this debate, which I venture to think has been most interesting and informative. That is hardly surprising when three of the participants were the present Lord Chancellor and two of his noble and learned predecessors.

Your Lordships will be gratified to know that I do not intend to make another speech at this stage. I should, however, like to say that I opened my earlier remarks by referring to priorities and my view is that, on the whole, the Lord Chancellor has got his priorities right and that they deserve support. Of course, if I shared the view of the noble Lord, Lord Wigoder, that this proposal involved an attack in some way on the independence either of the Judiciary or the Bar, I should be the first to support his view, but it seems to me that there is nothing in this proposal which makes such a threat, and I confess that I was a little surprised to hear him cast aside the prospect of saving £13 million. After all, it is this very situation which has created our present economic problems; nobody can see why any economy should ever he introduced in his own particular field, hut when one adds up all these different sums of £13 million and so on one finds that this is exactly the problem which we face.

I should have thought that my noble and learned friend has shown considerable wisdom and courage in making a proposal of this kind. Of course, if vital safeguards are to be set aside in providing representation in matrimonial causes where representation is really needed, then again one would have hesitations, but it seems to me—though I confess that I have not precisely followed the details, because I have not had time adequately to study the Lord Chancellor's statement—that he has shown his usual and characteristic vigilance in seeking to find all possible safeguards where they are required, and I am glad to note, as one would anticipate, that he is very ready to carry out full consultation with the Judiciary and the profession and with others concerned to ensure that these safeguards are retained. I do not propose—it would he most inappropriate if I were to do so—to detain your Lordships further at this late hour and I conclude by begging leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.