HC Deb 15 December 1948 vol 459 cc1221-327

Order for Second Reading read.

3.50 p.m.

The Attorney-General (Sir Hartley Shawcross)

I beg to move, "That the Bill be now read a Second time."

If I might translate a respected expression from the promissory and ephemeral field in which it has been misemployed of late into the sphere of intended enactment, I should be inclined to call this Bill a charter. It is the charter of the little man to the British courts of justice. It is a Bill which will open the doors of the courts freely to all persons who may wish to avail themselves of British justice without regard to the question of their wealth or ability to pay. Since the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe), who is to speak for the Opposition on this Bill, and I have been at the Bar—indeed, going back further to the time when Magna Charta decreed that: To no one will we sell, deny, or delay right or justice. —it is an interesting historical reflection that our legal system, admirable though it is, has always been in many respects open to, and it has received, grave criticisms on account of the fact that its benefits were only fully available to those who had purses sufficiently long to pay for them.

There is the old taunt, the familiar taunt, about His Majesty's courts being open to all just as the grill room at the Ritz Hotel is open to all. Indeed, I suppose that taunt is even more applicable today when the charges at the Ritz Hotel, at any rate in the grill room, are largely controlled, but many of the costs of the litigant are not subject to any legal limit at all. Then there is the very famous sentence imposed by Mr. Justice Maule in a certain bigamy case. A hawker convicted of bigamy urged in extenuation that his wife had left her home and children to live with another man, that he had never seen her since and that he had married the second wife in consequence of the desertion of the first.

Mr. Justice Maule said, "I will tell you what you ought to have done in the circumstances, and if you say you did not know I must tell you that the law conclusively presumes that you did. You should have instructed your attorney to bring an action against the seducer of your wife for damages. That would have cost you about £100. Having proceeded thus far, you should have employed a proctor and instituted a suit in the ecclesiastic courts for a divorce a mensa et thoro. That would have cost £200 or £300 more. When you had obtained a divorce a mensa et thoro, you only had to obtain a divorce a vinculo matrimonii. That procedure might possibly have been opposed in all its stages in both Houses of Parliament and altogether those proceedings would have cost you £1,000. You will probably tell me that you never had one-tenth of that sum, but that makes no difference. Sitting here as an English judge, it is my duty to tell you that this is not a country in which there is one law for the rich and another for the poor." Then he added, "You will be imprisoned for one day." That was some considerable time ago.

It is true that from time to time there have been measures taken to ameliorate the position. Indeed, in the very early stages of our legal history one finds that some steps were taken in order to make the courts of His Majesty a little more available to the poor litigant, and in more recent times the problem has, of course, been much discussed. Various committees have been set up to consider it and small reforms of one kind and another have been introduced. But although there has been a great deal of talk about the matter, and although the problem is one which has been very much agitating the minds of at least the legal profession for a considerable time, the validity and the force of the criticism against our system of justice has remained until the present time.

I rejoice very much that, following the report of the Committee which was set up in 1944, it falls to this Government and to this Parliament not simply to talk about the matter but to take action which we believe will be both far reaching and effective. I do not present this Bill to the House as one which will cure all the defects—and there are defects—in the English system of law. It will not make the administration of law and justice perfect in every respect, and I do not pretend for a moment that it will. For instance, it will do nothing to cheapen the actual costs of litigation which many people regard as being excessive in themselves. It will only have the effect of transferring those costs in certain cases to the Exchequer. It will not simplify the procedure of our law which many people regard as being unduly complicated. It will do nothing to expedite the processes of our courts which, again, many people think are sometimes unduly dilatory.

These matters are all outside the scope of this Bill, urgently important as of course they are. They are matters which are receiving the active study of two important Committees, the one presided over by Lord Justice Evershed and the other by Mr. Justice Jones, which were established some little time ago by the Lord Chancellor and which in due time will make their reports from which we hope it may be possible to take steps which will improve the general administration of our law in these other respects.

Nor perhaps does this Bill do quite so much as many people would like to see done, and as I myself certainly should like to see done eventually, for all of the middle classes to whom the costs of litigation are very often either quite prohibitive or ruinous. But the Bill does go a very long way and it will open the doors of His Majesty's courts and make British justice more readily accessible to the great mass of the population who hitherto have too frequently, I am afraid, had to regard these elementary rights—as they ought to be—as luxuries which were beyond their reach. It is by no means the last of the reforms which I hope that we may be able to present to this Parliament. It is by no means the last of the improvements in our system of law which we should like to see accomplished. It is a Bill which marks a very significant and far-reaching step forward in the reform of our legal administration.

Hon. Members will recall that in 1944 the Committee to study the problem was established under Lord Rushcliffe. I have no doubt that those hon. Members who are especially interested in this subject will have had the advantage of reading the report of that Committee. That report set out in some little detail the history of legal aid and legal advice in comparatively recent times, and I do not propose to canvass or traverse that matter now. It is sufficient to say—and I think that this may be accurately said—that the existing facilities have become wholly and increasingly inadequate.

There is no official machinery whatsoever for providing legal advice. In this Bill we use the term "legal advice" to mean advice about non-contentious matters, or advice at the earlier stages, before litigation has been decided upon, and we use the term "legal aid" to mean assistance which is given when a stage has been reached at which litigation appears to be necessary. The term "legal aid" is not restricted to the actual processes of litigation. It includes the preliminary steps—the letters which are written, the negotiations which take place, perhaps with a view to avoiding the litigation—but in the Bill it is used to cover those cases where litigation is contemplated and may become necessary.

So far as advice is concerned, I was saying that there is at present no official machinery whatever for providing legal advice. Those who have stood in need of it and have been unable to pay for it, have had to rely on the facilities of trade unions and on the admirable work of voluntary poor man's lawyer organisations such as the various personal service societies, the Society of Our Lady of Good Counsel, and other similar bodies. In the field of legal aid, that is to say, in the field of litigation, legal aid is only available at present in the civil courts to persons whose incomes are not more than £2 weekly, with capital not exceeding £50, or, in exceptional cases, whose incomes are not more than £4 weekly and whose capital does not exceed £100.

Under the existing machinery, there are no facilities for remunerating the solicitors and counsel who deal with these cases and who often have conducted them—and it is right that this tribute should be paid to those who have undertaken that work—at considerable personal sacrifice to themselves. Moreover, even that degree of legal aid, on that limited scale, is only available in the High Court, and none at all is provided in the county court, increasingly important as that court is and as I believe it ought to continue to be. Again, in civil proceedings, often involving considerable financial implications and of great importance, such as bastardy and maintenance proceedings in the summary courts before the justices, there is no provision of legal aid at all.

In the criminal courts the position is slightly different, and, I venture to think, more satisfactory. Indeed, in the criminal courts, whilst this Bill proposes considerable extension of the facilities provided, there is no radical alteration in the structure under which those facilities are made available. But in the criminal court the position today is that—apart from the traditional dock brief under which any prisoner at assizes or quarter sessions who possesses the sum of £1 3s. 6d. is entitled to select one of the counsel, if any, who appear in the row in front of the dock at the time—under the provisions of the Poor Persons Defence Act, 1930, defence certificates may be issued to those whose means are insufficient to enable them to obtain legal aid. In the criminal courts there is no precise income or capital limit in regard to the matter, and these certificates are issued as of right—to poor persons, of course—but as of right in the case of murder, and in other indictable cases they are issued where it appears to be in the interests of justice so to do.

In, the summary courts, in criminal cases but not in civil or quasi-civil matters with which the justices sometimes deal, certificates may also be granted where it seems desirable to the court in the interests of justice by reason of the gravity of the case or for other special circumstances so to do. That is the existing position. I will not say that it is entirely illusory. In 1938, the last normal year—and even that was a year which, perhaps, it is not quite correct to regard as normal, because it followed immediately upon the passage of a Statute increasing the grounds upon which divorce might be granted, and was consequently one in which the number of matrimonial cases was higher than had previously been the case—on both the civil and criminal sides together, over 12,000 people availed themselves of the facilities available, by far the greater number of those being in matrimonial matters. But, in practice, particularly, I think, in the civil courts where there was not an exact income limit, it is right to say that legal aid certificates were not granted sufficiently readily or sufficiently early to enable the cases to be properly prepared before they came to trial.

In the civil courts, of course, the income and the capital limits were so low that vast numbers of people who were still, by all standards, certainly poor people, were outside the scope of the machinery available. Even those who were within it—and one got there the most impoverished classes of the community within the scope of the income and capital limits—were often prevented from using the facilities owing to the necessity of depositing a small sum of money—small by present day standards, but not small to them, £5 or thereabouts—in respect of disbursements and out-of-pocket expenses. Moreover, the existing arrangements were subject to the further criticism—and I think a serious one—that the scheme depended on the good will and charity of the legal profession. The fees paid, both in the criminal courts and in the civil courts, to solicitors and counsel were really completely inadequate.

That is a picture of the position in regard to this matter up to the outbreak of war. During the war, the inadequacy of the existing facilities became more and more marked, and protests were made by professional bodies that they were really quite unable to go on working the scheme. Eventually, legal aid and advice schemes for members of the Military Forces were established, and the Services Divorce Department, which did most important work, was set up. These schemes handled something like a quarter of a million cases, 40,000 of which actually led to litigation, mainly, of course, in the matrimonial courts. But that scheme, whilst it was one of very great value during the war to men and women in the Services, did not, of course, provide a permanent solution of the problem, and is only available now in a very limited number of cases.

It was in consequence of that situation, and of the position which it was realised would arise at the conclusion of the war, that, in 1944, the Rushcliffe Committee was established to consider and report upon the matter. In 1945 they did report, and they recommended the establishment of an entirely new structure of aid in the civil courts, and, in regard to civil matters, a new structure which was to be operated by both branches of the legal profession. Since that time, the Government having announced its acceptance in principle of the proposals of the Rushcliffe Committee, the details have been the subject of a great deal of study by both branches of the profession.

The scheme is, of course, one which depends, and depends entirely, on the full co-operation of both sections of the legal profession, the Bar and the solicitors. It was necessary to obtain the consent of the Law Society and of the Bar Council to undertake the very responsible and onerous duties which the proposals would impose upon them. It is right, I think, to say that the Bar Council and the Law Society have worked upon this matter with a degree of co-operation between each other which has hitherto been quite unequalled, and which augurs very well both for the success of the present Measure and, I hope, also for other Measures of reform in our law and procedure in time to come.

The Government have received the fullest support from both branches of the profession. Neither the Bar Council nor the Law Society have spared themselves in helping to draw up a really workable scheme on the general lines laid down in the Rushcliffe Report. This Bill is the result of the work done between the two branches of the profession and the Government in order to implement the proposals of the Rushcliffe Committee. It is based upon those proposals, it follows them in most of its important details, and, indeed, I think it is right to say, although there may be a number of quite minor differences, that in only two significant respects does it depart at all from the general principles of the Rushcliffe proposals. In one case it extends the proposed facilities to a rather wider circle, and in the other it slightly restricts the classes of litigation in respect of which the facilities will be available.

It is, of course, a skeleton Bill; it does not pretend to be more. It seeks simply to lay down the general principles and outline of the scheme, leaving the rest of it to be filled in, in part by regulations to be made hereafter, and in part by the actual scheme itself to be drawn up by the Law Society and the Bar Council, and to be approved by the Lord Chancellor. Hon. Members will appreciate that the scheme itself is bound to be an extremely lengthy, very complicated, and technical affair. Even now its provisions have not been fully worked out in detail, and, in any event, it is a matter which it would be quite inappropriate to include in a Bill of this kind. All that this Bill seeks to do is to deal with the general structure. Even in that regard, I venture to think that this is perhaps a Committee Bill rather than a Second Reading Bill. We shall, I hope, on all sides of the House, agree about the general principles on Second Reading. There may be many aspects which we can discuss together on Committee, and if proposals can be made, from whichever side they come, to improve the Bill, we shall be very ready and glad to consider them.

I should now like to indicate, quite broadly, the main features of the Bill in this sense: the tribunals before which legal aid will be given; the classes of proceedings in which legal aid will be available; the classes of people who will qualify for legal aid; the conditions upon which the legal aid may be given; and the general machinery for its administration. Then I shall say a word—indeed, I shall deal with this first—about legal advice, and a word or two about the separate problem of legal aid in the criminal courts.

First, a word about legal advice. I explained to the House the connotation of that item. In Clause 6 of the Bill, solicitors who will be employed by the local committees to be established under the scheme, either whole time or part time, for this specific purpose, will be available in the different localities to give oral advice to those who seek it and who appear to be unable to pay for it in the ordinary way. Here there will be no precise income or capital limits, no elaborate inquiry about the matter, but if the solicitor who is employed to deal with this matter considers that the applicant is one who could not obtain advice in the ordinary course, then oral advice will be given.

I say "oral advice." It may, of course, include the dictation of a letter which it is suggested that the client might suitably write. It might include advice as to an inquiry which the client ought to make or other steps he ought to take so as to protect his interests, but it will not include obtaining counsel's opinion or anything more elaborate or formal in the way of written advice. It may, of course, include advice to apply for legal aid with a view to bringing an action if a certificate for legal aid is granted. In that case the matter will be gone into more fully under the litigation certificate. Counsel's opinion might be taken in appropriate cases and more formal and written advice given. This is supposed to be a somewhat informal matter, quite oral, and the maximum charge for it is 2s. 6d.—that is, if the client appears to be able to pay for it—and nothing at all if it seems that that would be an undue charge to make.

We hope very much that the existing contact, and it is a most valuable contact, between the existing poor man's lawyers, the various social service organisations and social workers will be continued. That is something which is most useful and it very often happens that, whilst a lawyer can give advice on purely legal matters and can recommend litigation, can lead his client to the machinery of protracted action in the courts, the social workers, in their different way, are able to bring about a different but cheaper and more amicable solution to the problem. We should like to think that although the poor man's lawyers will not be part of the scheme co-operation between them will exist.

I return to the first Clause of the Bill and that, read with the first Schedule, deals with the tribunals before which, and the cases in which, legal aid will be available. I think it is in this Clause that hon. Members will find the only significant departure from the proposals in the Rushcliffe Report. Hon. Members will recall that the report recommended that legal aid should be available before all tribunals in front of which solicitors or counsel had a right of audience and in all cases which could be litigated before such tribunals. We have given the most careful study to this problem and we have felt that it is impossible, for practical reasons rather than on any grounds of principle or logic, fully to implement that recommendation.

There are a large number of tribunals—I think it is something approaching 100—of a judicial or quasi-judicial nature outside the ordinary legal hierarchy, but before which lawyers have a right of audience, although in practice they very rarely exercise it and very rarely appear. There are a number of more or less obsolete courts—such as borough courts of record—before which, in practice, legal proceedings are not taken at all. If the doors of all those tribunals, quasi-judicial and quasi-obsolete, were opened to free legal aid it is felt that the proceedings before them would become perhaps more numerous and certainly unduly prolonged; and that one of the benefits of these tribunals, the informal atmosphere before them, would disappear and that an excessively litigious and technical atmosphere might be developed in its place.

Moreover, and this is one of the main practical considerations which have led us to the conclusion we have reached. it is certain that the profession itself, which contains only about 2,000 practising barristers and 11,000 practising solicitors, would be hopelessly overburdened. Two thousand barristers seems a lot—I always used to think it was about 1,999 too many—but in practice, when it is spread over the whole country, it is a very small number, especially when it is recalled that quite a large proportion of them do not engage in litigation in courts. Further, 11,000 practising solicitors is not a very large number.

For those reasons we have felt that it is essential to limit legal aid to the ordinary courts of justice but including now, of course, the county court in which so many actions are brought. Legal aid will thus be available in the ordinary courts before which the ordinary action, action between party and party, is normally brought. That will leave outside the scope of the Bill some tribunals, important tribunals—tribunals like the pensions appeal tribunals, the rents tribunals and some of the discipline tribunals which have been established under various codes. They are tribunals which do most useful work but they seem to do it quite effectively and they seem to get along quite well—I regret to say—without having members of the legal profession appearing before them.

For a similarity of reasons, not of principle or logic but of practicability and expediency, it has been felt necessary to exclude, at all events for the present, certain classes of litigation, and those classes are set out in the second part of the first Schedule. They include various classes of action in which experience has shown—and I think there will be general agreement on this broad statement of the position—that there is most room for bringing vexatious, frivolous, unmeritorious or unnecessary claims. The most important of these, I suppose, are libel and slander. I do not say an action for libel or slander is never properly brought. In some cases, quite obviously, it is properly brought and naturally I would readily agree that the character and reputation of a poor person is just as deserving of legal protection as that of the wealthy individual, but it is a form of action which is open to great abuse and, moreover, it is a most precarious and risky form of action.

I was trying to remember, and although I myself have advised in a great many possible cases of libel, I do not recall more than one case—and I will not mention which one—in which I advised anybody to bring an action for libel. In scores of cases I have advised against it, and if I were to give a little free advice now to anyone who is concerned in such a matter, I would say that if they think they have been libelled or slandered the best thing to do is to put a good face on it and not advertise the fact. There are many exceptional cases, but that is my general advice, given gratuitously. Equally, and this is advice I have taken myself on occasions, if other people think I have libelled and slandered them I think the best thing is to put a good face on it and apologise and not to engage in litigation which may be exceedingly costly and highly uncertain as to its eventual results.

We think this scheme would be gravely overloaded if every slander which was uttered across the back garden wall were made an appropriate subject for litigation at the expense of the State. Similarly, we exclude action for breach of promise of marriage. Sometimes these are perfectly justified and meritorious actions, but many of them are actions of rather a blackmailing type. We have also excluded what I think are called the enticement actions—a peculiar form of proceeding, not very common I am glad to say, and sometimes, of course, justified, but again a form of action open to great abuse. Similarly, we have excluded common informer actions which have no merit at all so far as the common informer is concerned, and one or two actions of a more technical kind.

In connection with this part of the Bill, I only add that the list in the second part of the first Schedule is not intended to be final. Experîence might show that there were other causes of action which were being made the subject of excessive litigation and in which the scheme was being abused. On the other hand, experience might show, once the scheme had got going and the system was in its stride, that it would be possible to bring in some of the cases which at the initial stage we have had to exclude. If either of those possibilities arises it will be possible to deal with it by way of regulation approved by the House.

Mr. Joynson-Hicks (Chichester)

May I ask the Attorney-General whether it will be possible by regulation to bring into the Act proceedings before the tribunals?

The Attorney-General

Presumably the hon. Member means before the tribunals which are not within the Bill at present—other classes of proceeding or other classes of tribunal. That will be possible. It may appear, in the course of time, that it is necessary so to do, but I have caused some inquiry to be made as to the extent to which in practice legal representation takes place before these other tribunals. The tribunal which is sitting at present is, perhaps, not a very good example of that. It was the more normal type of tribunal which I had in mind.

Mr. Joynson-Hicks

Town and Country Planning, for instance.

The Attorney-General

That is the sort of tribunal where I should have thought legal representation was fairly common, but the persons concerned in that type of litigation, as a rule, are hardly the ones who would come within the scope of this provision. I say, "as a rule." One finds, as a rule, counsel at such a tribunal employed at high fees and acting for fairly wealthy clients. But before the tribunals which are most active just now—pensions appeal tribunals, rents tribunals, the discipline tribunals—inquiries which I have made suggest that legal representation is the exception rather than the rule. As time goes on, and if experience suggests that there is some tribunal dealing with rather technical matters before which legal representation is necessary, the situation could be dealt with then.

The scheme of the Bill at the moment is to seek to cover by far the vast majority of the ordinary actions in the ordinary courts of justice. All those will be within its scope and any attempt to extend it further now by the inclusion either of excepted causes of action or excepted tribunals, while indeed it is arguable—and I concede at once that it is arguable on grounds of principle or logic—might result in making, as it were, the better the enemy of the good. That is why we have thought it right to limit these provisions of the Bill at this stage.

Mr. Manningham-Buller (Daventry)

May I interrupt with a question of some materiality? The right hon. and learned Gentleman said that libel actions should not be included because of the character of the majority of such actions and that representation at tribunals should not be permitted because counsel and solicitors do not attend so very many tribunals. Is he not assuming, in this case, that certificates for legal aid would be granted? Is there not a check in this Bill, a check designed by the Rushcliffe Committee, in the refusal of certificates for legal aid where the action would be frivolous, vexatious and unreasonable?

The Attorney-General

I quite agree, and I personally attach great importance to the work of the local committees as acting as a kind of filter through which cases have to pass before litigation certificates are granted. Naturally, we considered very carefully whether that would be an adequate way of dealing with this class of case, but we came to the conclusion that at this stage to include these types of litigation or the extra-judicial tribunals would be to overload the scheme and would probably result in considerable and troublesome departures from uniformity in administration and practice in the early stages. That would be by reason of the fact that some committees would take the view, "You think you have been libelled or slandered; we cannot have slander as a ground for a certificate"; whereas other committees would take a different view.

We thought, having regard to the practical considerations—the shortage of personnel, the cost of the scheme, and so on—that the best thing at this stage was to say, "Exclude these altogether; see how the scheme works, wait until it has got into its stride, and then consider whether the exclusion of these causes of action or different types of tribunal is really resulting in any serious injustice or complaint." I say at once that I should have liked to have seen the full proposal of the Rushcliffe Committee adopted. I think it is the logical and the best thing that one can easily support on grounds of principle. But after the closest study of the matter we felt that so to do would be prejudicing the chances of the scheme in its initial stages. As it is, it will result in an enormous increase in the work of the courts and of the profession, and we felt quite clear that to go further than we have would be to overload this scheme and perhaps to endanger its success.

Mr. Turner-Samuels (Gloucester)

The Attorney-General has spoken about courts and tribunals, but not a word has been said about arbitrations which are very common nowadays, especially in relation to contracts of employment where very often poor employees are concerned. What does the Attorney-General say with regard to the exclusion entirely of arbitration cases from this Bill?

The Attorney-General

I say in regard to that sort of case exactly what I have said in regard to the other tribunals. They again are a class of litigation in which very often the parties are able to pay for the costs of that about which they arbitrate, and in which, on the other hand, I regret to say very often professional advisers are not employed. We felt in regard to arbitrations, which are of a very varied character, and which may arise not under any statute but merely as a result of an agreement between party and party, that at this stage, at any rate, the State should not step in and say, "You, party A and party B, having agreed that your dispute will be the subject of arbitration, can now come and ask the State to pay the costs of it."

Mr. Turner-Samuels

How can one reconcile that in the case of a contract which has no arbitration clause a person may go to the High Court and have legal aid, whereas merely because a contract has an arbitration clause the person cannot be assisted at all?

The Attorney-General

I have said that I shall not attempt to justify these provisions on any grounds of logic or principle, but it is open to the parties to decide whether they will have recourse to His Majesty's ordinary courts, in which case they will qualify for such provision of legal aid and assistance as is made under this Bill, or whether they will exclude the jurisdiction of the courts and go to arbitration. If they decide by their own voluntary contracts to exclude the provisions relating to the courts and go to arbitration, one of the consequences of that, which will no doubt be present to their minds when they make that agreement, will be that they will not qualify for legal aid under this Bill.

If I were asked to justify that particular exclusion on grounds of principle and logic, I should not feel the slightest difficulty in doing so. What is more difficult to justify is the case where there are existing tribunals of a quasi-judicial nature set up under statute, before which parties have to appear in order to litigate particular classes of dispute. That is a difficult case, and it is more difficult to justify. The case of an arbitration arising under an agreement seems to be a matter entirely within the control of the parties who make that agreement.

Now I come to the classes of person who will qualify for legal aid within the limits which I have just indicated. Here the Bill is wider and more generous in its scope than the Rushcliffe Committee proposed. Legal aid will be available to those whose disposable—and that is a word which is used in the Bill—income and disposable capital do not exceed £3 and £75 respectively; it will be available to those persons free of all charge, and will be available on a contributory basis to those whose disposable income and disposable capital do not exceed £420 and £500 respectively.

Let me now say a word about "disposable," because that word qualifies very much the figures which I have given, and leads in the result to the fact that legal aid will be available to persons with a considerably higher income than £420 and an appreciably higher capital than £500. In reckoning income and capital for the purposes of the scheme, a large number of exclusions and allowances, and what I think are called disregards in the practice of the National Assistance Board, are made; notably, for instance—and I shall not attempt to recite them all because I do not know them all, and it would take time to do so—an allowance of £1 per week in income, and £75 in capital, will be made for married men. There will be further allowances for children according to the number of them. The result is that income and capital limits below which aid will be entirely free in the case of the married man with no children will be £4 and £150.

Nor is that all. The National Assistance Board will make other allowances. I mention the National Assistance Board because, as hon. Members will have seen, it is that Board whose duty it will be to administer this part of the scheme and to assess the amount of an applicant's disposable income and disposable capital. As I have said, the National Assistance Board will make other allowances; for instance, an allowance for the rent where the rent exceeds 15s. per week, an allowance for Income Tax, and an allowance for other statutory and annual payments. I think that the net result of all the allowances, exclusions and disregards will bring the gross income within which an applicant may still qualify for legal aid to something between £550 and £750.

Similarly, in regard to disposable capital, a man's interest in his dwelling house, his furniture, his tools of trade and so on, will normally be disregarded. These matters are dealt with in Clauses 2, 3 and 4, and in the Second Schedule, and regulations may be made in regard to the matter. I will not go into that in further detail, but it will be seen from that which I have said that a very large section of the community—indeed, a very large section of the so-called middleclasses—will benefit from the scheme.

This, however, must be added. Above the limits of £3 and £4 in the case of a married man, of income, and £75 and £150 in the case of a married man, of capital, the scheme will be on a contributory basis, and the litigant will be called upon to assist towards the cost of the litigation. The amount of the contribution will be fixed by the local committee which will have before it any representations that the Assistance Board may think right to make in regard to the litigant's capacity to pay in a particular case, but the contribution will not exceed half the difference between the amount of the minimum income limit of £156 a year and £420 a year, and the whole of the difference between the capital limit of £75 or £150 and £500.

There again we have made an improvement on the Rushcliffe proposal. The non-contributable capital—£75 or £150—exceeds the figures suggested in the Rushcliffe Report. On the other hand, it is fair and right to say—because one does not want to hold out false hopes about the Bill or to pretend that it does more than it does do—that those in the higher income ranges may have to bear a substantial proportion of the costs. In the cheaper form of litigation they may indeed have to pay the whole of them. I will give one example. A man with a net income of £400 a year after allowing for all the disregards, who has saved up £500 in addition perhaps to his house, fights an action the cost of which is say £500, as it might well be. He may be called upon to pay out of his income £98—that is to say, half the difference between £400 and £208—and £350 out of his capital. He might have to contribute nearly £450 towards the cost of that action. That would be his maximum contribution. If the costs were less than that, he might be called upon to bear the whole of them.

Mr. Eric Fletcher (Islington, East)

Is that on the assumption that he lost the action?

The Attorney-General

These would be his own costs. Of course, it might well be that the costs would be payable by the other side, but this would be his liability for costs if the costs could not be recovered elsewhere. I am coming to the question of the further costs. If he lost the action he might have to pay the defendant's costs. I am going to say a word about that in a moment, but that is the case of a man who has capital in addition to his dwelling house. If he had any capital other than his dwelling house, his maximum contribution in that case where his income is that which I have mentioned would be £98, which the local committee might require him to pay by suitable instalments. That is the position in regard to the income and capital limits, and it is estimated that the scheme within those limits will bring within the scope of the Bill about 12 million people—a quarter of the population of the country. It is estimated further—and the estimate must be a little more than a reasoned guess—that about 100,000 cases will be assisted in the course of each year.

One further matter remains to be said, and that is the liability to pay the costs of the other side if one is unsuccessful. That liability, of course, has in the past always been a most powerful deterrent to the poor man engaging in litigation at all. He may think, and his lawyers may advise him, that he has got a just and a legal claim, but, fortunately for the lawyers, law is not an exact science and, short of the House of Lords, there is no certainty about it. The result is that although a man may be convinced of the justice of his cause and advised as to his probable chances of success in the courts, he will feel forced to refrain from litigation because of the risk that he may lose, and that if he does lose and is called upon to pay the defendant's costs he will be ruined.

Consequently, if we were going to open the doors of the courts freely to all the persons regardless of their means, it would plainly not have been enough, simply to provide them with legal aid in bringing their claims. The risk of paying the costs of the other side if unsuccessful would still have remained a most powerful deterrent to the poor man. On the other hand, of course—and this is equally to be considered, and has been considered—that very risk of having to pay the costs if unsuccessful has been a powerful and proper deterrent against bringing unjustified claims. It is the only deterrent now. At one time I think there were other forms of deterrent. The pillory and the whip were used against those litigants who had the misfortune to fail in cases before the courts. Bacon has something to say about the facilities which have been given for bringing actions resulting in persons vexing rather than suing. It was obviously a deterrent against the bringing of blackmailing actions or actions which it was hoped would be settled, and actions which were not thought likely to succeed. Whipping and the pillory have gone, but in these modern times it is certainly true that the risk of being dragged up to the House of Lords, even if one has been successful in the court of first instance, by wealthier opponents has been a most powerful deterrent to people who might have been able to pay their own costs but just could not afford the risk of having to pay the costs of the other side.

In these circumstances the Rushcliffe Committee recommended what may have seemed to be a very reasonable compromise—that the assisted litigant, if he turned out to be unsuccessful, should be required to pay only such sums in costs as the tribunal thought reasonable in all the circumstances, and that, in addition, his dwelling house should be protected against execution. That proposal we have adopted in this Bill. The assisted plaintiff will be saved from ruin if the case turns out to be unsuccessful; and, on the other hand, from the point of view of the successful defendant, the protection which the liability to pay costs affords him will not be entirely withdrawn. It will be remembered that in this class of case, where the protection is diminished, he will also be protected against frivolous claims by the fact that the action will have to pass through the filter of the local committee.

That brings me to the question of machinery. The Law Society, which, in this connection, is to discharge its functions through a committee consisting of members of both branches of the profession, will, in due time, with the approval of the Lord Chancellor, make a scheme establishing 12 area committees and 110 local committees, themselves composed, as far as local possibilities enable that to be done, of members of both branches of the profession. The area committees will be responsible for the general organisation and administration of the scheme in their areas, for the preparation of panels of barristers and solicitors from which intending litigants can choose their own solicitors and their own counsel as they wish, and for the appointment of the local committees, and the hearing of appeals from the decisions of the local committees.

The local committees, on the other hand, will consider and determine the applications that are made to them for legal aid, will decide whether a prima facie case has been disclosed, whether it is a case which it is reasonable and good business to bring, and what, if any, contributions ought to be made towards the cost of it; there being a right of appeal to the area committee if the intended litigant dislikes the decision. In addition, the Lord Chancellor will have an advisory committee, composed of such people as he thinks right, to assist him in the general supervision of the scheme which the Bill proposes.

Then there is the question of finance. The Bill, obviously, is going to cost money. One of the criticisms of the existing scheme was that, apart from its limited scope, it depended entirely on the charity of the profession. It is perfectly true that help was generously and readily given, but it was not right that, in a matter of this kind, litigants should have to depend on the generosity and public spirit of those who had the time to devote to this kind of work. Nor would it have been right under these proposals to withdraw from the legal profession 25 per cent. of their potential clients without providing that they should get some fees in respect of the work they were called upon to do.

The Bill provides for the payment of proper fees—55 per cent. of the taxed costs in the High Court—which means that solicitors will forgo half of their net private costs, and barristers will forgo 15 per cent. of the fees, assessed on a different basis, which they would otherwise be entitled to charge. In the county court and in the police court the margins of costs are much narrower, and it has not been possible to make that cut, so that the full taxed costs—but they will be taxed costs—will be payable to the profession. The total cost of the scheme is estimated—and again I say, quite frankly, that it is difficult to estimate—at something of the order of £4,370,000. It is thought that a substantial part of that will be met by contributions by the litigants and by costs which are recovered, leaving about £2,000,000 to be borne by the Exchequer in the form of a block grant to be provided to and administered by the Law Society. I should perhaps add just this in regard to that aspect of the matter, that the Law Society will furnish estimates and accounts to the Lord Chancellor, and that the Comptroller and Auditor-General will report each year upon them to Parliament. Both matters are dealt with in Clauses 8 and 9 of the Bill.

Now I come—I am afraid I have been rather long about all this, but it is a little technical—to the position in the criminal courts; and about that I can, indeed, be very brief. There, as I said, the proposals in the Bill do not involve any substantial interference with the existing structure. Clauses 15 to 17 provide that legal aid should be available in all cases tried in the criminal courts where it is desirable, in the interests of justice, that that should be done. In cases of doubt, the doubt is to be resolved in favour of the applicant, and machinery is to be provided to ensure that legal aid certificates are granted in sufficient time to enable cases to be properly worked out and prepared. There will be, no rigid income or capital limits, nor will any contribution be required from those to whom legal aid is granted; and in the criminal courts, consequently, both the courts where cases are tried on indictment and the summary courts, the provisions for legal aid will have a very wide scope, depending upon the discretion of the judge or the justices to whom the application for aid is made. Finally, in regard to the criminal courts, provision will be made in regulations—and these can be made under the existing law—for the payment of proper fees to the solicitors and counsel who undertake this responsible work upon the taxation of their costs in the ordinary way.

That is, I think, a general picture of the whole of the provisions in this Bill. I said it was really a Committee rather than a Second Reading Bill, and, no doubt, there are many points which will have to be discussed and clarified in the course of our Debates upstairs. If there are points which are raised on the Second Reading, my hon. Friend the Under-Secretary of State for the Home Department will deal with them. In saying that, I should wish to apologise to the House, as I am sure that my right hon. and learned Friend and colleague the Solicitor-General would wish me to do, for his absence on this occasion. He has taken a considerable part in the preparation of this Bill. He would have wished to be here today, but he is at the moment engaged in exceedingly important litigation at the Permanent Court of International Justice, and he could not be here. However, my hon. Friend, who is particularly familiar, of course, with the criminal side of the matter—which is why I have dealt with it very briefly, because it is the responsibility of the Home Office—will deal with any points that may arise in the course of our Debate here.

I commend this Bill to the House by saying that it really is an important and useful Bill, which marks, I think, an important step forward in the administration of our law; and a Bill which will, at last, remove the grave reproach that, excellent as our system of law and justice and administration has been in other respects, and admirable as are our courts, they were too often a luxury which was available only to the wealthier sections of the community.

4.55 p.m.

Major Sir David Maxwell Fyfe (Liverpool, West Derby)

Mr. Deputy-Speaker, you and I have every reason to know that the House is generally reluctant to be orally "butched" to make a lawyers' holiday, but I hope that on this occasion the results of this Measure, and the degree to which it touches the interests and lives of ordinary people, will be the excuse of my profession. I am sure that the House—every quarter of it—is grateful to the right hon and learned Gentleman for his lucid presentation of the provisions of the Bill. The Opposition is in general agreement with this Bill, which substantially incorporates the provisions of the Report of the Rushcliffe Committee set up by Lord Simon in 1944. That was an all-party and no-party committee, containing judges, barristers, solicitors, social workers, and politicians, of great eminence and experience. I should like to pay tribute and all my hon. Friends—I hope I may say the whole House—would like to pay tribute to the skilful and patient work of that committee.

I am sure the House would like to go from us to an old colleague in the person of Lord Rushcliffe our best wishes for his recovery at the moment, as well as our gratitude for the work he has done. I am glad to think that we have still a member of the committee in this House, in the person of my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) and it may be, Mr. Deputy-Speaker, that you will give us later, an opportunity of hearing what he has to say.

I want—because the learned Attorney has rather suggested it—to keep my remarks to the more general aspects of the matter, and leave any questions of details for the Committee stage. However, it is not without interest, I think, to recall that it was not only the Government and this committee which examined the problem with which we are now dealing. It is interesting that both the great political parties examined it in the last years of the war. I shall refer in a moment to an interesting result to which the Labour Party's examination led. If the House will forgive the personal intrusion, as Chairman of the Post-War Problems Committee of the Conservative Party, I appointed a committee on reforms in the administration of justice, which reported to us and suggested a scheme along very similar lines, with, curiously enough, remarkably similar limits, to those we are considering.

It is interesting that that should have happened in both parties at the end of the war, because I think the paradox is generally true, that most people in this country express admiration for our legal system, but equally desire to have as little personal contact with it as is humanly possible. Although the law, we believe, adapts itself to the changing conditions of the country, there is remarkably little interest among laymen in the practice and procedure of the law. I believe it was a repercussion of the fact that, to a great many people, an important aspect of the war was the contest between the rule of law and the exercise of arbitrary and tyrannical power, which spread the interest of that time and made everyone ready to examine the difficulties that impaired the individual's power of establishing his rights.

It is in that spirit that the matter has been approached, and the necessity which underlies the Bill cannot be overlooked, just as it has engaged the attention of legislators and social reformers for many years. It has been, and it should be, the maxim of our constitutional law, that every man is equal before the law, but it has been notorious that going to law is an expensive occupation; it is inevitable, if we consider it fairly, that it is impossible to place at the disposal of the public, at a low cost, the work of a profession whose only justification is hard-earned experience and specialised knowledge. Therefore, the methods of assisting poor persons to enforce their rights have been introduced piecemeal. I agree with the Attorney-General that at the moment the matter has gone furthest in the criminal courts. The present Bill does not affect our approach in that matter, but merely extends it; therefore, like him, I do not propose to discuss these suggestions at any length.

I want to remind the House of the position of the present Poor Persons Rules, and, as I believe, of their inadequacy. They are partly inadequate because they do not extend to the county courts, which today, with their additional jurisdiction and with the additional important matters referred to them, are very important. They are also inadequate because, as the Attorney-General has pointed out, they give an upward limit of £2 a week, extendible in special cases to £4 a week, which, as a matter of interest, was fixed in 1914, although it was not applied until 1926. Therefore, there were these facilities for the lowest income ranges, but for those in the next income range, and especially in divorce cases, there has hitherto been no assistance, the result often being a denial of human as well as of legal rights. This is especially noticeable when, as I have just reminded the House, we take into account the fact that these low limits were fixed as appropriate some 34 years ago.

The next point we ought to consider is whether Members agree with the principle of contribution in appropriate cases. I believe it is right, and all the evidence of those who have examined the matter has supported that view. My own view of my fellow countrymen is that the majority who have the money would much rather make some contribution than be entirely dependent on what they get from the State or other people. The next question which I am sure the House would like me to face frankly, as well as the other legal Members, is whether the legal profession ought to be paid, or whether it ought to give this service for nothing. It has hitherto given the Poor Persons' Service for nothing, and, more than that, there has been a considerable body of evidence from solicitors, accustomed to deal with poor persons' divorce cases, that the average expense, that is the actual out-of-pocket expense apart from doing the work, is £15 for poor persons' divorces which they handle. I do not think many Members would consider it either right or practicable that the legal profession should take on this greatly extended burden, and, as the Attorney-General said, through its existence lose the chance of clients, without some payment being made. I believe it is right, and, as I have said, I believe that the existing procedure would collapse if we endeavoured to extend it without making that addition.

On the question of public demand, the increased demand is shown most clearly by the experience of the many admirable legal aid centres that have been established by voluntary effort throughout the country. Most of my legal colleagues here have been a "poor man's lawyer," as it was called in my day, in some part of the country and know what the work means. It is fascinating but very difficult work, and work which it has been a great privilege to do. I will quote, as an example, the experience of Cambridge House, which is the largest of such centres. Between 1899 and 1900, 224 persons were given legal advice; in 1923, the number had risen to 1,780, and between 1936 and 1939, the average was 3,000. In the year ended March, 1944, the letters and interviews at Cambridge House totalled 12,000. That was voluntary work, and it shows as clearly as anything the increase in demand. Any of my colleagues who have done this work know how infinitely the cases can vary from the simplest matters to the most intricate problems.

It is essential that, in devising a scheme to deal with this situation, we should bear in mind maintenance of the assisted litigant's confidence in his legal adviser. That means ensuring that he can, if he wishes, have a reasonable range of choice in his legal adviser, and it also means assuring him that his legal adviser is independent of State or other controls. In this connection, I would remind the House of the very notable words contained in the Labour Party's memorandum after examination of this subject, which are quoted in paragraph 129 of the Rushcliffe Report. There are obvious objections to the State itself establishing and maintaining legal advice bureaux. Not the least of these objections is that the State itself is directly and indirectly affected by many of the claims upon which such bureaux would have to advise. Nor, in the opinion of the Labour Party, is it desirable that local authorities should be entrusted with the duty of establishing and maintaining legal advice bureaux. Differences, political or otherwise, might well arise were a local authority to be held responsible, directly or indirectly, for the advice given in any particular matter. It has to be borne in mind that many local authorities, particularly those engaged in passenger transport undertakings, are themselves frequently parties to litigation. The same view was taken in the memorandum of the Association of Municipal Corporations, and the Rushcliffe Committee endorse that view most emphatically and heartily. To show a most unusual unanimity, the same view was taken by the Conservative Committee which I had the honour to set up. There is, as far as I can see, general agreement for the maintenance of the independence of the profession and the freest and clearest advice to the litigant at his own choice. I hope the people who have been afraid of any infringement of that matter will realise the anticipatory unanimity against it, and will also realise the Bill proceeds on that basis and wishes to maintain that independence completely unfettered.

The Attorney-General dealt with the administration by the Law Society, and again I want to limit my remarks to the most general comments. I am very glad that the scheme is to be framed by a committee drawn from the Law Society and the General Council of the Bar. That committee should produce a scheme which will deal with this situation as well as can be. I am also very glad that there has been the closest co-operation, at every stage of this matter, between the Government and the Law Society and the General Council of the Bar. That certainly augurs well for the operation of the scheme.

The critical point in the scheme, which will make the difference between success and failure, is the operation of the 110 local committees. There is obviously the argument that the extension of this power of litigation will mean a flood of litigation, the courts and the profession being overwhelmed by the rush of work. We all know there are those who desire litigation, and we all know in our profession, although I do not for a moment ask the layman to give us credit for it, that the amount we do in stopping litigation is not an inconsiderable part of our work. If this is going to work we must have some control of the vexatious and frivolous litigant, and that is going to depend on the work of the local committees. I am sure the House will extend their best wishes to them when they are constituted, and would like to impress upon them our realisation of the importance of the work they are going to do.

The Attorney-General has given the reasons for not including the various tribunals and arbitrations, and I realise the force of the point that he has made. We shall all examine this problem and see exactly how the limitation is going to work. There are certain tribunals—and these tribunals grow more numerous every day—in which the litigant of small means may have to appear. I appreciate—and I have not considered before the point made by the hon. and learned Member for Gloucester (Mr. Turner-Samuels) about arbitration—that insurance arbitration, where there is a person of small means who has a motor bicycle or a small car and has got into difficulties about his insurance policy, is one class that might have to be considered.

Mr. Turner-Samuels

Such a person has no option; the policy is issued in that form and he has to take it with that clause in it or else have no policy at all.

Sir D. Maxwell Fyfe

I am grateful to the hon. and learned Gentleman, and although I appreciate the difficulty of differentiation on any ground of principle between such a person and a party who has taken out an enormous contract on marine insurance, in practice that problem might be worthy of consideration. But the Attorney-General's point here was, "This is a scheme which may increase litigation quite considerably, and what we want to do with the machinery is to build it well so that, before we extend it, it can take the strain that we put on it," and while appreciating that point, we want to consider the practical results.

The next point which I should like to put quite frankly before the House is that of the contribution which the legal profession is making to costs. The general scheme, as the House is aware, is that counsel will get 85 per cent. of the fees allowed on taxation and solicitors will get 85 per cent. of their profit costs. To the layman it is worth making quite clear at this point what that means. It does not mean that counsel will automatically get 85 per cent. of the fee which their clerks ask for, or that their solicitor thinks appropriate, or which may be appropriate to their deserts, but it means that the bill will be taxed by the taxing master, who is someone accustomed to dealing with cases of that kind, and he will fix what is the ordinary fee which is not a fancy fee given to special people or anything of that sort. Of what the taxing master thinks is an ordinary fee, counsel will then get 85 per cent. Similarly, profit costs mean the payment the solicitor actually gets for his work, and not, of course, disbursements and out-of-pocket expenses. He will get 85 per cent, of that.

Mr. Royle (Salford, West)

A possible way to look at it would be to consider the 15 per cent. as discount for cash payment?

Sir D. Maxwell Fyfe

The hon. Gentleman must not lead me into a very interesting but slightly embarrassing bypath. What I feel is that the House should know what is the contribution of the profession. The House should bear in mind the large amount of small litigation where fees are already very small, such as two guineas, three guineas, five guineas, or 10 guineas in a county court. That is a fee which does not give much opportunity for reduction. On the other side, I firmly believe that the £2 million, which is the estimated cost to the Exchequer, is cheap if the service will deal with the mischief and difficulty which we know exists in this matter.

My final major problem is that of the upward limits and the method of assessing them. Nobody could have been as long in this House or in politics as I have without realising the immense distaste which any form of means test creates in hon. Members in all parts of the House. Therefore, we have to approach this problem with that in mind, but I am firmly convinced that in this problem there is nothing else to be done, because somehow we must fix an upward limit beyond which people can afford to pay for themselves. What can be done is, first, to lay down with great clarity so that there will not be any mistake about it, how that limit is to be arrived at, and then to provide generously for exceptions, so that there will not be any squalid bickering about any minor difference. A real attempt has been made to do that. I sincerely trust that the choice of the National Assistance Board with their great experience to apply the principles laid down will help the great experiment which is being attempted.

The House will agree with me when I say that this is a workable method of starting the matter, and we shall want to hear from the Attorney-General how it is functioning once the scheme comes into operation. I hope we shall hear that there are no difficulties arising, particularly of the kind which, at this stage, we might think could arise. Broadly, this is a workable and helpful scheme, which will improve the position of a section of the community which badly needs help, and will, at the same time, preserve the independence of a great profession, giving members of that profession an even greater chance of serving, their fellow men.

5.25 p.m.

Mr. Eric Fletcher (Islington, East)

I am sure, Mr. Deputy-Speaker, you would be the first to appreciate the diffidence with which I, as a humble member of the junior branch of the profession, intervene in this Debate after the very lucid speeches we have just heard from the two distinguished Members who adorn the senior branch of the profession. I intervene only because I have had some 20 years' experience in Islington and elsewhere of serving as a poor man's lawyer, and trying in that capacity to help some of the people who will derive immense benefit from this Bill. The right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) said that there might he a flood of litigation as a result of this Bill, but if there is, that will only go to prove that for many years past a great many poor people have been deprived of the opportunity of access to the courts and of getting redress from grievances, injuries and injustices from which they have been suffering.

There is no dispute between us in this House about the merits of this Bill. It is cordially welcomed in all parts of the House. It enshrines the principle that the citizen is entitled to legal aid as of right, and not as of charity. It will go a long way to establishing that equality before the law without which there cannot be any real social justice in this country. It has been a crying scandal that for many years past a great many people, because of their poverty, have been deprived of the opportunity either of getting legal advice or of having access to the courts, and as a result have suffered either in ignorance, or in bitterness, innumerable wrongs and hardships.

We all share the admiration which has been voiced by the Attorney-General and the right hon. and learned Member for West Derby for the legal institutions and traditions of this country. We are justly proud of them. They are indeed the envy and the admiration of the world. One has only to travel abroad, and have experience of some European systems or indeed of some of the States of the United States, to realise what we owe in this country to our legal institutions and to the fact that we have the advantage of an independent judiciary—independent of the executive—which commands the unquestioned confidence of the population. Incidentally I wonder in what other country today one could point to—

Mr. Gallacher (Fife, West)

rose—

Mr. Fletcher

I would rather continue with my speech. Incidentally, I wonder in what other country today, including Russia, one could find the spectacle of a fearless and searching inquiry into the actions of the Ministers of the Crown being conducted with full confidence and satisfaction by one of His Majesty's judges and two eminent lawyers?

Mr. Piratin (Mile End)

On a point of Order. Is it in Order for the hon. Gentleman to raise and challenge the House to make comment on something which is sub judice? I submit that he has challenged the House to comment on the workings of the Tribunal which is at present sitting.

Mr. Deputy-Speaker (Major Milner)

I did not gather that the hon. Gentleman was doing that at all.

Mr. Fletcher

If I may ignore that interruption, I should like to say that this Bill is due to the fact that excellent though our legal institutions are, and I think partly because of their very excellence, they have for a long time past been exposed to the criticism—and rightly so—that they are unduly expensive, and because they are expensive a great many people have been deprived of access to the courts. For many years past litigation has tended to become the privilege of either the very rich or of the very poor, or of those persons who are fortunate enough to have the backing of wealthy corporations, insurance societies, trade unions, or some other similar organisation.

That has been bad, not only for the people who have suffered in consequence but also for the common law of England. The evolution and development of our common law and our legal institutions depend upon the fact that for generations the law has been concerned with the social and human problems that arise from the daily round of every-day life by all classes of the community. It is very desirable, if our legal institutions are to develop healthily, that legal principles should be continually applied to the changing conditions of our increasingly complex society, and that all kinds of problems should come before the courts for free ventilation and judicial interpretation. It makes our legal system unreal if it becomes remote from the problems of every-day life. I do not want to say too much during this Second Reading Debate, because, as the Attorney-General has said, there are many points which are more appropriate for the Committee stage. I venture to mention a few of them in the hope that my right hon. and learned Friend may have an opportunity of considering them before the Committee stage begins.

First, may I refer to the limitation imposed in the Bill upon the categories of people who will benefit? I doubt whether it is really necessary to include in the Bill an upper limit of income qualifying those who are eligible to benefit under the Bill. One of the reasons why the Bill is necessary is the inadequacy over the last 20 or 30 years of the existing Poor Persons' Procedure. Under those provisions nobody has been entitled to free legal advice and assistance unless his income was less than £2 a week, or, in exceptional circumstances, £4 a week. Those rates were fixed many years ago and were based upon the cost of living and the social conditions then prevailing, but they are completely out of date today, just as are the provisions which limit the maximum wife's maintenance order to £2 per week.

The provisions made in the Bill may or may not be adequate in present-day circumstances, but in considering whether they are so, I think it is not irrelevant to remember that many of those who will be engaged in the administration of the Bill whether in private practice or as salaried legal advisers under the scheme, will themselves be within the class of people eligible to benefit under the provisions of the Bill. As cost-of-living rates change, I should hope that we could learn from the experience of the past and make the upper limit of income flexible. I suggest that no limit should be fixed and that, like many other matters contemplated in the Bill, it should be laid down by regulation and capable of change from time to time, subject to an affirmative Resolution by both Houses.

Mr. Gallacher

Would it not be sensible to deal with the matter in the same way as health and doctors are being dealt with in another connection, so that everybody, no matter who he is, could have free access to solicitors, barristers and the rest of them? Anyone who wanted to engage a solicitor or barrister on his own, should be able to do so, as he can a doctor.

Mr. Fletcher

The hon. Gentleman is supporting my argument. According to an estimate recently made by "The Times," at least 12 million people are capable of benefiting from the provisions of the Bill. I am asking that the application of the Bill should not be unalterably fixed by statute but should be left flexible. I am suggesting that the limits should be fixed from time to time by order. It would be going too far to make the provisions of the Bill universal. It is essential that we should have a period of experiment to see what arises after the Bill has been passed into law. I am suggesting that the limits of income should be left elastic and capable of alteration by regulation subject to an affirmative Resolution. We have found that when the provisions of a statute have admittedly become out of date and when there is an overwhelming case for their alteration, it has often been said: "This matter certainly requires legislation, but there is no time for legislation on this matter."

Sir D. Maxwell Fyfe

This is a non-controversial Bill, and I think that the hon. Member for East Islington (Mr. E. Fletcher) will understand the point which I am raising. If his suggestion were to be adopted it would require a different Financial Resolution from the one which we shall discuss later today. I am not raising this as a point of Order against the hon. Member who is addressing the House, but for the consideration of the House and of the hon. Member himself. I think the Attorney-General will agree that if the suggestion were to be considered, it would require the alteration to which I have referred.

Mr. Fletcher

I am sure that you, Mr. Deputy-Speaker, will be the first to appreciate the force of that intervention, as you are a much greater authority than I am as to whether it is in Order upon the Second Reading of a Bill to discuss the ambit of a Financial Resolution which is to be discussed subsequently in Committee of Ways and Means.

Mr. Deputy-Speaker (Mr. Bowles)

The hon. Gentleman is quite in Order, because the Money Resolution has not yet been before the House in Committee.

Mr. Fletcher

I am much obliged to you, Mr. Deputy-Speaker. I was proposing to make the point that my right hon. and learned Friend the Attorney-General might consider the scope of the Financial Resolution in the light of any speeches made during this Debate, before we discuss that Resolution.

The second point is whether it is really necessary to exclude defamation as one of the causes of action not covered by the Bill. We have heard what the Attorney-General has said about it and one knows the kind of abuse that might arise if there was an unfettered right to bring actions for defamation. I should have thought this a case in which it was essential that the local committees could act as a screen effectively to weed out and remove any possibility of actions for defamation being improperly brought under the terms of the Bill. We should recognise that the reputation of a poor man is just as important as is the reputation of a rich man and that he should receive the same kind of protection.

Thirdly, may I ask that the Lord Chancellor and the Law Officers of the Crown, when they come to draft the regulations which will govern the conduct of the local committees, should provide for the local committees to be subject to and have the same advantage of privilege which members of the legal profession now have, or rather which they confer upon their clients? One of the great advantages which a person has in taking legal advice is that he does so in conditions of complete professional privilege and secrecy. That privilege is enshrined in our democratic institutions and is widely cherished in any liberal and democratic society. It is essential that people who have their cases referred to local committees for preliminary examination should be able to feel completely sure that the same degree of professional privilege and secrecy obtains and binds the members of the local committees.

The next point, which seems to me of some importance, arises under Clause 2 (2) of the Bill. As the Attorney-General has pointed out, if an assisted person brings proceedings, the house in which he lives is protected, in the sense that he cannot be called upon either to sell it or to raise money on the security of it, in order to make a contribution for costs. If the assisted person loses, it is open to the court to order him to pay a reasonable sum towards the costs of the successful litigant. We shall no doubt have cases in which an assisted person finds himself involved in litigation with a person who may be just outside the limits of this Measure because his disposable income may be £430 a year instead of £410. We may find that the unassisted person is successful but that he nevertheless has to sell his house or raise money upon the security of the house in order to pay his own costs because of the protection given to the assisted person. I venture to put forward the suggestion that Clause 2 (2) should be so altered as to make it clear, when interpreting What is reasonable in these circumstances, that the court should have regard not only to the means of the assisted person but to the means of his successful opponent in the litigation.

A further point is that a person proceeding under the Poor Persons' Procedure may be called upon, as legal members of the House will know, to give security for costs or, as an alternative, have his action remitted to a county court. Would the Attorney-General tell us whether similar provisions will apply under the Bill? Is it contemplated that, because they are assisted persons, they can be called upon either to give security for costs which, ex hypothesi, they will not be able to do, or to have to submit to their actions being remitted to a county court? If so, it will considerably affect the administration of the Measure.

Finally, I invite the Attorney-General to clarify the operation of Clause 6, which makes provision for giving legal advice and says that: Legal advice shall consist of oral advice on legal questions. … I very much hope that this will not be interpreted in such a way as to limit the duty or the right of the person giving the advice merely to oral advice. Those of us who sit as a poor man's lawyer and give advice when people cannot afford to pay for legal help know from experience that the people who come to us for advice are very frequently in need, not merely of oral advice, but of assistance in writing a letter. Over and over again, we find that a person, not necessarily illiterate but who is unlettered and unskilled in the art of writing a letter or composing the type of letter necessary to express his complaint and ensure that someone who has done him an injury or a wrong should rectify it, requires a letter to be written for him if his grievance is to be remedied. His need is for a letter which will indicate to the person who has committed the injury that he has someone behind him who has taken an interest in the case and is expressing his claim in professional terms which the applicant cannot be expected to know.

There is an enormous field between the case, on the one hand, of the man needing merely oral advice, i.e., telling a man what are his rights or, perhaps, that he has no rights; and, on the other hand, the relatively few cases in which an applicant may be advised to embark on litigation. Between these two examples there will be a very large number of cases in which a letter—or, perhaps, two or more letters—will have to be written. If, as we hope, the Bill is to have the effect of assisting these people to obtain justice, it is very desirable that Clause 6 should not be restricted. I feel sure that subject to these and other improvements which can be made in Committee, we all wish the Bill a speedy and successful passage into law.

5.49 p.m.

Brigadier Medlicott (Norfolk, Eastern)

There must have been moments during the Debate when, to lay Members of the House, the Chamber presented a depressing, if not sinister, appearance, for at times at least 75 per cent. of the Members in the Chamber were practising members of one or other branches of the legal profession. Indeed, already there have been rumbles of that semi-humorous criticism which is directed from time to time against the legal profession. In one way, however, the legal profession has something in common with this House. We are both liable to be criticised and sometimes abused in the aggregate, but our constituents or our clients, as the case may be, do seem to turn to us when they are in difficulties. When considered against the general difficulties of our economic situation and the serious problems of the day, it may seem that the Bill is, perhaps, not vitally urgent, but as it is agreed that the efficient working of our system of justice is an essential element in the working of democracy it can be truly said that the time we spend upon the Bill today will certainly not be wasted.

Those of us who view with caution any extension of the area of State expenditure must be consistent, and must scrutinise with equal care any expenditure which is proposed upon a matter in which we ourselves happen to be interested and which we might be inclined to favour. It is, therefore, with a little concern that we find that the annual expenditure under the Bill may be as much as £4,370,000, of which the Exchequer will have to bear £2,370,000. There is no necessary parallel between these proposals and those embodied, in the National Health Service, but we have already seen in that direction that estimates are liable to be exceeded and we must be prepared for the possibility that these estimates of the cost of the legal aid scheme may be too low. We shall in any case have to face an additional charge year by year upon the national Exchequer of nearly £2½ million. These are substantial figures, which cannot lightly be embarked upon. I feel, however, that in all the circumstances this is an expenditure which is justified by the needs of the day.

It need not be assumed that it is always necessarily a good thing for a person to be allowed to go to law, either at his own or at someone else's expense. Most solicitors will agree that such a person as a happy litigant is rarely met with. The unsuccessful litigant, of course, is never happy. Those who are successful rarely get as much as they hoped for, and the cost is always greater than they anticipated. Nevertheless, if our judical and legal system is to be complete, a way must be found of enabling all sections of the community to have access to the courts. The Attorney-General has rightly said that in the past it has been only too true that full access to the courts has been possible only for people of fairly substantial means. We are glad that the steps contemplated by this Bill are now being taken to improve that position.

There will be general gratification and, perhaps, a little surprise, that the Bill does not contain the remotest suggestion that the Government intend, even in the distant future, to set up a nationalised legal profession. It is reassuring to find that the Government, apparently, is aware of the grave dangers which would be involved if they destroyed the independence of a profession whose services may in the future be more and more required to enable the private citizen to fight his battles against the State.

Although there is a clear need for the Bill, I am not altogether satisfied that a vast amount of injustice is being suffered because people are not always able to go into court. I do not deny that some injustice does exist, but it would be a mistake to exaggerate its volume. In a recent case a litigant fought an action all the way up to the Court of Appeal concerning the use of a dustbin. Some important question of principle may have been involved. Most practising lawyers know that questions of real principle can arise over even the smallest items, but they know, too, that very often cases are taken to court out of what I can only describe as "pure cussedness." The committees which will be given the task of considering applications for permission to come within the scheme will have laid before them some very weird and wonderful situations and if from time to time in the proper exercise of their discretion they can discourage some types of people from going to law, they will be doing a very good turn for the Judges and for the legal profession generally.

The two further points which I want to make are both points of criticism. They are, however, important and I doubt whether they can be properly or fully dealt with on Committee stage alone. The first point concerns the payment of costs to solicitors and counsel engaged in the scheme. Most hon. Members will know which are the practicing lawyers in the House and in this respect I speak on a subject in which I have a very direct vested interest. Having said that, I am sure the House will bear with me if I refer to this question of remuneration for lawyers engaged upon the scheme.

The Rushcliffe Committee recommended, and the Government have accepted, the suggestion that remuneration should be limited to 85 per cent. of the taxed fees or profit costs. There is an exception in the case of county court work, but the bulk of the work will be subject to this deduction of 15 per cent. I cannot agree that this deduction is justified, nor has any reason at all been given as to why it should be imposed. It was admitted in the statements of the Rushcliffe Committee—based, presumably upon careful and detailed evidence—that 70 per cent. of the fees payable to solicitors are absorbed in overhead expenses, leaving 30 per cent. by way of profit or, if I may use the term, by way of earnings. The solicitor himself is thus normally left with only 30 per cent. of the total costs received from the client, but it is proposed under this scheme that he should receive a sum equivalent to only half that amount for himself.

Lieut.-Colonel Lipton (Brixton)

Will the hon. and gallant Member agree that from the solicitor's point of view it is a better proposition to have 85 per cent. of his fee guaranteed by the State than to claim the full fee, the recovery of which is frequently most problematical?

Brigadier Medlicott

I am grateful to the hon. and gallant Member for that intervention, because I think it is generally understood that that is perhaps the main reason why the deduction is suggested. But I am not altogether convinced that such a request ought to be made to the profession merely because under some circumstances lawyers, perhaps out of the kindness of their hearts or for other reasons, do not receive the full 100 per cent. which Parliament originally laid down as a just reward for their services. That fact should not be used against them in asking them now to accept permanently and over a very wide range of work what is virtually a cut of 15 per cent. I do not want to labour the point, but the profession is entitled to say in its own defence that its general rate of remuneration is not excessive, and as yet I have not been satisfied by anything which has been said in this Debate that there is any real reason why the work done under this particular scheme should be made the subject of this quite substantial reduction in remuneration.

The other point of criticism I wish to make is clearly one of greater importance from the public point of view. I think the Bill places a little too much emphasis on litigation as compared with conciliation or negotiation. In this matter I am glad to be able to follow the comments made by the hon. Member for East Islington (Mr. E. Fletcher) arising from his very considerable experience of poor man's lawyer work. There is a wellknown poor man's lawyer centre in London which this week has given figures to one of the professional journals on this point.

It is stated that out of the enormous number of matters raised by people who consult that centre only about seven per cent. result in litigation; possibly another seven per cent. would be suitable for litigation but the parties concerned decide not to go on; and of the remaining 86 per cent., one-half can be satisfied by oral evidence alone and the other half need assistance by way of correspondence, negotiations and similar work. I suggest that on this point the Bill is defective and I hope that by amending Clause 6 this defect might be overcome. In case it might be thought that I am putting purely the professional point of view on this subject, I will quote from a paragraph which appeared in the "Tribune" of 3rd December, where this very matter is mentioned. It was pointed out: There appears to be no provision for the enormous field of legal activity lying between oral advice and actual litigation. The "Tribune" went on to emphasise that a simple solution would be To increase the functions of legal advice centres to include writing letters and negotiating up to the point where litigation is unavoidable. I would also put it in another way and say that if the negotiations that can be carried on in these legal advice centres are conducted in the right spirit there is no reason why litigation could not be avoided altogether in a great number of cases.

I think, quite apart from the evidence we have had in the Debate and the evidence I have quoted from "Tribune," it will be obvious to those who have experience of working at poor man's lawyer's centres throughout the country that in the vast majority of cases, or at least in a very high percentage of cases, it would be almost worse than useless merely to give the applicant oral advice. One of the curious features of the present day and perhaps of earlier days is that a large proportion of the population appear to be either unable or at least unwilling to write letters upon those matters which may come within the scope of this Bill. We know from personal experience that there is one exception to that rule; the population as a whole are fully capable of writing letters to their members of Parliament in unlimited quantities.

But there are other types of letter which are not written, though they ought to be written. I refer to such matters as disputes between relatives over the contents of a will—or arising out of the absence of a will—differences arising out of hire-purchase agreements and in regard to problems of debtor and creditor generally and of course the ever-present disputes between landlord and tenant. A great number of these problems are not necessarily problems which lead to litigation but because of the failure of people to write the proper letter at the time when they should, many of these situations drift into a hopeless muddle. It is here that the work of the legal advice centre can be most valuable but it should not be limited, as it is proposed to limit it at the moment, merely to giving oral advice. I doubt, however, whether the mere extension of the powers of legal advice centres will be sufficient to meet the point, as it is not certain that the salaried solicitor will himself be able to cope with all the situations which may arise, but that is probably much more of a committee point.

I wish to mention only two other points. Already we have provided in the criminal law for the troublesome individual known as the habitual criminal. Solicitors will know that there is a type met with in civil matters who can only be described as an habitual litigant. We shall have to rely very largely on the area and local committees to see that the wrong kind of case is not brought before the courts. Secondly, if there is to be that considerable increase in litigation which this Bill may possibly facilitate, there will have to be a speeding-up in the procedure of the courts, and particularly some shortening of the time taken up in getting pleadings in order and by other matters of a technical nature.

Although this Bill will probably not achieve all that its sponsors hope, as is the case with so many Bills, it will be welcomed not only by the legal profession, but by all who have had experience of social welfare work. Although there are points on which the Bill can probably be improved and strengthened, we can say with confidence that it provides a framework within which in due time there may be erected a valuable, and perhaps imposing, structure which will add greatly to the general scheme of our already considerable social welfare legislation.

6.8 p.m.

Mr. Hector Hughes (Aberdeen, North)

I was glad to hear the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) paying tribute to the admirable work done by voluntary organisations in assisting the administration of justice in times past. This Bill will tend to make much of their work unnecessary in future and, if two suggestions which I offer to the House are adopted, it will go a little further towards making such organisations completely unnecessary.

This Bill as it stands will go a long way towards eliminating and making untrue the old gibe that there is one law for the rich and one law for the poor. That gibe was completely true before the beneficent work of such bodies as the Cambridge University Settlement and Toynbee Hall. Then it had two sinister meanings. One was that our substantive law favoured the rich, and that was then true. It was indeed true that the law of property, the law of contract, of torts and, indeed, our criminal law, favoured the rich. The second sinister meaning was that our procedural law favoured the rich. That is still true and is one of the defects in our system which this Bill aims at remedying.

The right hon. and learned Member referred to the fact that in this country all citizens are equal in the eye of the law. Happily that is true under our system and this is one of those marks which differentiates our system from systems in other countries. Our law is made up of the common law, the principles of equity and statutes, the theory of all three being the same, that all citizens are equal in the eye of the law. Unhappily, that does not work out in practice. Modern statutes have done much to tend to make it true and the modern law of property, of contracts, of torts and criminal law have tended to eliminate that prejudicial difference. One might go further and say that in these days the tendency is, perhaps, a little the other way. Examples of that are the Factory Acts, Workmen's Compensation Acts, Public Health Acts and others that readily spring to mind. But that statutory tendency is right and today we find that, although in theory all citizens are equal in the eye of the law, in practice that is not so because of the expense of litigation.

It is tragically true that the cost of getting justice is too great. The very rich, or the very poor, can get justice, but the class which finds it difficult to get justice and the class which is not assisted by this Bill, is the middle class. I think that is one of the blemishes in this otherwise admirable Bill. It does not go far enough and does not relate itself to today's cost of living. It does not relate itself to those who, at current prices, are poor and cannot face litigation without grave danger of ruin, or without foolhardy recklessness and who, very often, therefore, suffer and, even after this Bill, if it passes in its present form, comes into law will rather suffer injustice than embark on the perilous sea of litigation, which may mean complete ruin for them.

How is this blemish to be removed? It can be removed in one of two ways, either by reducing the cost of litigation, or by raising or abolishing the financial limits contained in Clause 2. Can we reduce the cost of litigation? I do not think so. That cost arises under three heads. First, there are the solicitors' costs, which are subject to taxation by the Taxing Master, and which, in my view, are not excessive today. Secondly, there are counsel's fees, which are largely under the control of the litigant himself. He can choose some fashionable and expensive counsel, or he can choose some equally efficient counsel who is not so fashionable and whose fees are not so great. The third heading of the cost of litigation is court fees, which are not heavy. I do not think that the cost of litigation can be reduced under any of these heads. I do not think that is the answer to the problem which confronts us in this Bill.

The other way, which is the one adopted in this Bill, is to give free or assisted legal aid to those who need it. It should be remembered that the legal profession has a splendid record in this matter. It is perhaps not generally as widely recognised or appreciated as it should be. It is a fact that for many years members of the legal profession have regarded it as a duty, as a debt of honour, to take a certain number of poor persons' cases every year. The taking of such work often excludes other work. It is difficult to estimate the duration of such cases. They may take many days; they may involve an appeal; they may use up a great deal of time and effort. But this philanthropic work has been done by both branches of the legal profession, with credit to themselves and utility to the community for a great many years. Indeed, the devoted band of social workers and lawyers in places like Toynbee Hall, where, I am creditably informed, the Prime Minister worked at one time, have done a great social service to the community. I think this is the time to mention that and to recognise it.

If this Bill is passed it will do much to make unnecessary that type of voluntary and philanthropic work. That is why I support it, but I venture to make two criticisms of the Bill, one relating to the financial conditions of legal aid, and the other to legal advice in criminal matters. As to financial conditions of legal aid, Clause 2 limits such aid to persons whose disposable income does not exceed £420 a year. The Clause then continues with a proviso, which I suggest is a very prejudicial one: Provided that a person may be refused legal aid if he has a disposable capital of more than five hundred pounds and it appears that he can afford to proceed without legal aid. These limitations are unsound and wrong. The test should be left to the committee which will administer the Measure, or each case should be judged on its merits.

Can it be said that a man with £420 a year, which is roughly £8 1s. 0d. a week, should be entitled to legal aid, as he will be under the Bill, while a man with £430, which is only £8 5s. 0d. a week, should not be entitled to legal aid. This seems to me to be an arbitrary and unfair distinction between two men of the lower middle class, who cannot be expected to incur the perils of litigation without aid. The proviso means that a man who has saved money is penalised as against a man who has not saved money. The proviso should be deleted.

To sum up this aspect of the matter, I support my hon. Friend the Member for East Islington (Mr. E. Fletcher) in saying that this matter of administration should be dealt with by regulation, as regulations can more easily be altered than can legislation, according to the changes in the cost of living from time to time. From information which has reached me, such bodies as the Incorporated Cambridge University Settlement, a representative body with members of great experience, favour the view which I have ventured to put forward.

I wish to say a word about legal advice in criminal matters. There is a striking anomaly in this respect. Part I of the Bill, which deals with civil proceedings, provides in Clauses 1 to 5 that legal aid may be given, and in Clause 6 that legal advice may be given in civil proceedings. Part II of the Bill, which deals with criminal proceedings, provides by Clauses 15 to 18 that legal aid may be given, but there is no provision anywhere in the Bill for legal advice to be given in criminal matters. Why not? Is a man's life and liberty of less consequence than his civil contracts or his torts? The idea seems to me to be foreign to justice. Advice is just as important in a criminal charge as in a civil matter—indeed it is often more so. The accused person may be in gaol, he may be an ignorant person, he may be weak-minded or insane. The police who make the charge will be free to get such advice as they like, and indeed the best advice in the land, while the unfortunate accused is not, under the Bill, assisted to get any legal advice whatever.

The Under-Secretary of State for the Home Department (Mr. Younger)

It seems to me that my hon. and learned Friend is not on a good point here. In a criminal case, legal aid will be available from the very beginning. The distinction on the civil side between aid and advice surely does not exist on the criminal side? There is in the Bill provision for anyone who is accused of a crime to obtain all the advice which is necessary.

Mr. Hughes

I do not think that that is the answer to the point which I was making. It was that there is a great disparity between the two parts of the Bill. In civil proceedings a person is entitled to legal advice as well as legal aid. In criminal proceedings a person is entitled under the Bill to legal aid only, and is not entitled to have legal advice. There is no provision for the latter.

Mr. Manningham-Buller

Surely if a certificate for legal aid is given early enough in the criminal proceedings, any lawyer who accepts the task of giving that legal aid will give advice in the course of it?

Mr. Turner-Samuels

It will be his duty to do so.

The Attorney-General

I wonder if I can help my hon. and learned Friend. As I understand the matter, Clause 6 provides that legal aid should be available on legal questions. I understand that to cover all legal questions. We have not expressly contemplated that legal advice should be available in order to show people how they may commit criminal offences without being caught in the criminal courts. That is not the purpose of the Bill. But legal advice on any legal matter would be included under Clause 6. Criminal matters do not arise until there are criminal proceedings in regard to them, and legal aid will be available.

Mr. Turner-Samuels

And that includes advice.

Mr. Hector Hughes

I would like to know why it is considered necessary to put in Part I an express provision that in civil proceedings a litigant may get advice, while in Part II, which relates to criminal proceedings, there is no reference to advice?

The Attorney-General

if my hon. and learned Friend will allow me to intervene again, I would say that I think he is mistaken on the point. Part I does not deal with advice in civil proceedings but with legal aid in civil proceedings and with legal advice, that is, advice in regard to any matter. Criminal matters do not arise, as a rule, until after a crime has been committed.

Mr. Hughes

That is precisely my point. Part I provides for two things, advice and aid. Part II provides for aid only; it does not provide for advice. Does not the Attorney-General agree that in a criminal case it may be and indeed often is, necessary for an accused person to be advised as to the nature of the offence and as to the nature of his defence and various matters as to whether his plea should be "guilty" or "not guilty"? Would that come under the heading of advice as distinct from aid?

The Attorney-General

Certainly. If my hon. and learned Friend is acting under the scheme, and is called upon to advise his client to plead guilty, he will certainly be entitled to do so. That is part of the provisions for legal aid under Part II of the Bill.

Mr. Hughes

Very well. This is a very interesting discussion which I shall consider when I see it in HANSARD. It will be open to me, no doubt, to raise the matter on the Committee stage, if I happen to be a Member of the Committee.

There is another matter touching upon the one to which I have been referring, namely, that an accused person should be entitled to advice, in a case in which he has pleaded guilty, as to the circumstances in mitigation of sentence. It seems to me that there is no provision in the Bill to cover that. I have had a communication from an association of solicitors in London who are considering this Bill. They put this point, which seems to me to be a perfectly legitimate criticism of an otherwise good Bill: One of the most important matters to applicants"— that is, applicants for legal aid— … is the question of legal aid on mitigation of sentence, in other words on pleas of guilty. The Home Office contend that it is already provided for in the Poor Prisoners Defence Act, 1930, and Mr. Justice Humphreys remarked (see Clause 135, page 25, of the Report of the Rushcliffe Committee) that it should be more frequently used. The fact remained that it is not at all clear in the old Act that such a power exists. I will guarantee that not one applicant out of a hundred knows that it is so, I have never heard a magistrate offer it nor have I heard an applicant ask for it as they always think they have to have a defence. There is no earthly reason why a Clause should not be added to the Bill… I hope that point will be cleared up. That seems to me to be a matter of principle rather than a Committee matter, and one which should be raised on Second Reading. Otherwise, I think that the Bill is a good Bill, and it gives me great pleasure to support it.

6.30 p.m.

Mrs. Braddock (Liverpool, Exchange)

I am very pleased with the recommendations in this Bill. I believe that it is a means of commencing to deal with some of the very grave injustices that there have been in regard to legal actions because of the inability of people to pay. I hope that this Bill is the forerunner of other Bills that will deal with other sections of the law where there are also grave injustices.

The Attorney-General mentioned that there was no other way of dealing with cases that required free legal aid except through the poor man's solicitor departments. That is not quite right, because in Liverpool about 18 months ago, we appreciated the fact that there was need for some other type of legal advice for people who were unable to pay. The local authority itself, after discussing the matter with the magistrates, who had met cases of this sort in the courts, decided to allocate the sum of £500 to the Personal Service Society for the purpose of paying a solicitor on an agreement through the Law Society in Liverpool.

That agreement was made, and continues to operate at the moment. The matter came to light because, in respect of many cases in the courts, it was found that one side was able to obtain a solicitor, and pay him, and the other person was unable, from the financial point of view, to obtain a solicitor. Magistrates, feeling the position rather keenly, were adjourning cases so that the second party might obtain legal advice. The present position has obtained in Liverpool for about 18 months and we are now awaiting a progress report. So far as I know, it is working very well indeed, and I think the result, when the report appears, will be rather gratifying and of particular interest.

A point about which I am rather concerned, and to which I hope some attention will be paid, is the length of time it is anticipated that the committees will take to decide whether a person is entitled to receive assistance free, or even on a basis of assessment. In many cases involving the poorer sections of the community people cannot afford to wait a great length of time for a case to be decided. I consider that there should be something in the Bill which lays down a definite maximum period in which to decide whether a person is to be granted free legal advice, or advice at a reduced fee. Many of these cases are cases of matrimonial difficulties, or bastardy cases, where, unless some decision is taken fairly soon, the person loses a certain amount of money. I consider it a matter of extreme importance that when a committee has to decide, it will not take the considerable length of time that the legal profession generally takes to make decisions in relation to these things.

Another type of case to which I wish to refer is that of libel or defamation of character, where, on the one hand, the person who takes action may be in a position to pay and not need to make any application for assistance, and, on the other hand, the person who is accused may be completely unable to obtain legal advice to defend the action. That is a matter which ought to be looked into, and in a case of that sort the right to make application for free advice or reduced legal charges should be considered. It is extremely important, because we are excluding completely from the right of obtaining legal advice—unless they can pay for it—persons who may be accused. They may be unable to pay any of the costs or even obtain any sort of legal advice at all.

I am pleased that the question of assessment is being handed over to the National Assistance Board. I believe that that organisation is one whose activities should not be confined merely to people who are completely destitute, or who require assistance in regard to additions to the amount they can obtain for assistance. If matters of this sort are referred to them, the Board will be put on a much higher plane in relation to the community as a whole than if they are allowed only to deal with matters in relation to extra amounts for people who find themselves in difficulties.

There is also the question of who will have the right to advise a person that he may be entitled to legal assistance at a reduced price. In Liverpool, if the magistrates commencing a case find that one side has a solicitor and the other has not, and the magistrates themselves think it is not right to proceed unless solicitors are employed on both sides, they can say that that person ought to be entitled to consideration for the free service. Can that right still be left to the magistrates under this Bill? Can they send a recommendation to the committee, or give the right to the person who is before them to take a recommendation to the committee, to the effect that the magistrates who have commenced to deal with a case are adjourning it because they feel that, there being a solicitor on one side, the other person ought also to be legally represented? Those are matters which ought to be considered, and might be included in the Bill by Amendment in the course of the Committee stage.

I have referred to these matters mainly because they relate to the poorer section of the community who, up to now, have found themselves in difficulties on many occasions, because they have been unable to pay, even unable to consider going to a solicitor, when some action was taken against them, or when they found themselves in some difficulty requiring advice from a solicitor.

6.38 p.m.

Mr. Basil Nield (City of Chester)

I am pleased to be able to follow the hon. Lady the Member for the Exchange Division of Liverpool (Mrs. Braddock) because I think it would be unfortunate if only Members of the legal profession were to give their views to the House upon this important matter. She has made several most interesting suggestions which I am sure will be considered.

Underlying the recommendations of the Committee set up under the chairmanship of Lord Rushcliffe are two matters of principle, similar, but quite distinct, which, in my view, will attract general approval. The first is that lack of means should not be permitted to prevent any person from prosecuting a just civil claim, or reasonably resisting a claim, in the King's courts. The second is that poor persons charged with criminal offences should, wherever possible, be afforded legal assistance so that their case may be properly presented to the court.

The Rushcliffe Committee, to whose work I should like to add my own tribute, proposed detailed means for bringing these two principles into operation. Those proposals, as the Attorney-General has pointed out, are largely accepted by the Government and this Bill seeks to provide a scheme wherein machinery may be set up to put them into effect. Part I of the Bill deals with legal aid in civil proceedings, and Part II deals with legal aid in criminal proceedings. I wish, first of all to say a word as to legal aid in civil proceedings. As it appears to me, under this Measure a person is to be admitted to legal aid if two conditions are satisfied, namely, if he shows that he has reasonable grounds for taking, defending or being a party to the proceedings, and if he goes on to show—although logically this should come first—that his means are insufficient to meet fully, or at all, the expenses of legal assistance and representation.

Those of us who have practised the law for some time know that there is, unfortunately, a considerable amount of vexatious or frivolous litigation. It seems, therefore, quite right to insist that someone shall decide whether there is at any rate the appearance of merit in a case before legal assistance is granted. On that point, therefore, I would say that those who have to decide this first point, whether there is sufficient merit in the case to receive aid, must on no account seek to try the case in advance. It would no doubt be quite sufficient to say whether there is a prima facie case for the granting of this assistance. Who is it then who has to decide that extremely important, and it may be, difficult question?

When I said that this Bill provided a scheme wherein machinery might be set up, I chose my words rather carefully, because it seems to me right to say that we are here really delegating to the Law Society, with the assistance of the General Council of the Bar, the task of producing the scheme and, in effect, of putting it into effect. This is obviously a weighty task and responsibility, and it shows considerable confidence in the profession. It appears from the White Paper that area committees are to be established in some 12 areas, and they in turn are to set up local committees which, we are told, would number 110. Under the local committees are to be what are known as certifying committees whose task would be to decide this question of whether there is merit in the litigation. It does seem to me that the committee has a difficult and delicate task, but I feel quite certain it is one which members of the legal profession will undertake in a public-spirited manner, and that they will do their best in that direction.

I desire to say a word upon the other condition to be satisfied before aid is granted, and that is the condition as to the means of the applicant. It has already been pointed out that this task of determining whether an applicant is within the means limit, is to be undertaken by the National Assistance Board. That was one of the points commented upon by the hon. Member for the Exchange Division of Liverpool. I desire to say a few words about it. An investigation into means is always difficult. It is the experience of hon. Members that there are many who resent a scrutiny into their private affairs, but I am bound to say that where public monies are to be spent it seems right in the interests of everyone that only those who are of limited means should be included. Therefore, inquiry is necessary.

The question is: who is best able to undertake that inquiry? I wish to put out a suggestion for consideration during this discussion. I wish to submit—though one must wait to hear all the arguments—that this task might also rest with the area committees or the local committees. One knows from former experience, particularly in matrimonial causes where committees are set up, that they have undertaken the investigation of means. Is it right, or is it not, to say that there are advantages attaching to the committee or sub-committee undertaking this inquiry as well? I suggest that there are some advantages.

First, it might avoid two such inquiries, or inquiries by two bodies. It might also be that if, as we hope, these local committees establish sympathetic relationships with their applicants, that the applicants would be more ready to allow them to inquire into this question of means. It might also be said that we would be more likely to get uniformity of treatment within any particular area. I do not come to any final conclusion on this matter. I hope that hon. Members may think it worth while to consider that point.

Before I leave Part I which deals with legal aid in civil proceedings, I wish to say something about those categories of proceedings which are excluded. This is a matter upon which perhaps the Under-Secretary of State for the Home Department might feel inclined to make some comment when he replies to the Debate. When the Attorney-General opened this Debate, he pointed to the second part of the First Schedule, to those categories of proceedings in which aid is excluded. My first observation—and this is not the specific point—is that one wonders whether it is right, so long as these causes of action remain recognised by law, to exclude them, however much perhaps many judges may disapprove of some of them. I have in mind particularly breach of promise of marriage. However, the right hon. and learned Gentleman has explained his view on that.

The point I want to make is that the Bill, in the First Schedule, makes use of this expression: Proceedings wholly or partly in respect of—(a) defamation. Is it considered right that the words "or partly" should remain? I will give an example from an experience of mine only two or three weeks ago. There was an action in which an employed person sued her employers on three grounds—first, that she had been slandered; second, that she had been trespassed against by being falsely imprisoned; and third, that she had been wrongfully dismissed. If this Schedule is not altered, as I understand it, with those three causes of action, as it is partly in respect of defamation, she could not have been financially assisted, whatever her means were. Perhaps that point is worthy of consideration.

I pass to Part II, which deals with legal aid in criminal proceedings. Here there is no great alteration of the existing state of things, but I certainly welcome two major improvements. The first is that if there is doubt whether a man's means justify aid, then that doubt shall be resolved in his favour, that is, in favour of granting the aid. The second point is that application for legal aid may be made by post, and so on, in order that it may be granted well ahead of the date of trial, so that proper preparation may be made. I am bound to say—and I speak not without some experience in these matters—that I would always advocate the granting of legal aid in criminal cases wherever it is possible to do so. It is necessary in the interest of justice, in the interest of the accused and in the interest of the court which has to determine the various matters which arise.

Finally, there is one point upon this part of the Bill on which perhaps the hon. Gentleman might think it right to say a few words in his reply. When one is considering the granting of free legal aid to someone accused of a crime, it is immensely important to consider also the granting of proper arrangements to enable him to call witnesses in his defence. Of course, one knows that such arrangements exist. I have in mind those cases, which are by no means rare, of a capital charge where maybe an answer of insanity is advanced, and where it is only just and right that the accused should have available expert medical testimony for the purposes of his trial. I ask whether the Government are satisfied that under existing arrangements there are proper facilities for the calling of expert witnesses in such circumstances.

Mr. Turner-Samuels

Has the hon. and learned Gentleman any doubt about that and, if so, why?

Mr. Nield

I have some doubt in this direction. The discretion which is vested sometimes in the clerk of the court as to taxing costs in respect of expert witnesses may be so exercised either as to allow one witness and no more, or to allow a fee which is regarded as inadequate. Thereafter, of course, witnesses may be unwilling to come, because they realise the inadequacy of such taxation. I was about to say that if the legal profession is able to set up and to operate the machinery for giving effect to the purposes contemplated in this Measure, then a great service will have been done to the community and to the administration of justice.

6.55 p.m.

Mr. Harry Wallace (Walthamstow, East)

As one who, as a trade union official, has had much to do with getting assistance for persons who have been injured and needed help, I welcome this Bill. I welcome it because those who have suffered most under our economic system will, under this proposal, at last have an opportunity to assert their rights and their independence. It is a welcome gesture to individualism. Like other hon. Members, I am not altogether satisfied with the allowances proposed or the limit of disposable income. The Attorney-General has said that this is an experimental Measure, that it is not the last and that he hopes to see further improvements.

I would, however, join with those of my hon. Friends who have suggested that these limits should not be included in the statute but that they should be administrative limits. I give an example. In the case of children, there are differential rates according to ages. I suggest that in modern housing conditions the variation in the fares that men have to pay when travelling between home and work is so great that there is a case for recognising the difference and allowing for it as we allow for children. It may be that one person pays four or five shillings a week; another may have to pay 10s. a week or more.

I am asking for guidance. I may be suspicious or I may be ignorant, but in Clause 4 there is a reference to rent, taxes, and interest on loans. Is it correct to assume that a man who is making payments to a building society will get relief? If so, how will that relief be applied? I should like to know whether the whole of his payment of principal and interest will be regarded as rent, because that combined payment may amount to as much as £76 a year. I should like to be enlightened on that point.

There are to be 110 local committees. As I understand the scheme, they are to cover the whole country; therefore each committee will be responsible for a large area. I should like to know how the committees will come to the speedy assistance of those who need advice and aid. A person may be seriously injured or killed on the road. The dependants may be a long way from the office of the local committee. Those with experience of this type of accident know that it is essential to be on the scene of the accident as quickly as possible, because sometimes the evidence disappears. Also, the inquest may be held within a couple of days. How will the person seeking assistance get to the office of the local committee, and how will that committee come to the assistance of a person in urgent need? Is the local committee to hold an inquiry, to try the case, before assistance can be given?

My experience of this type of case is that, invariably, one has to get a solicitor quickly, and even arrange it by telephone, so that he will act quickly in the interest of the dependants when the inquest is held, which may be within a couple of days. It may be that the dependants, the persons entitled to relief, have to travel some distance to the office of the local committee. They may have to travel there many times. Indeed, they may have to travel several times to see the solicitor who is helping them. Do they pay their own fares, or how is that expenditure to be met? It may also be that medical or specialist's opinion will be needed. Will that expense fall upon the persons seeking relief under this scheme; or must they provide their own doctor or specialist as the case may be?

The trade unions of this country have done much though not exclusively—other organisations have helped—in this matter. Their usual procedure is to get help quickly, especially in cases of accident. Assuming that one of these organisations, appreciating the urgency of the case, employs a solicitor, will the answer be that the person concerned cannot seek relief under this Bill, or is there going to be, as I thought the Attorney-General hinted, some method of co-operation between these unions and service organisations and the local committee? I realise that these points need consideration, and I hope that, in Committee, attention will be given to them.

7.2 p.m.

Mr. Turner-Samuels (Gloucester)

One or two points have been mentioned in this Debate with which I should like to deal shortly. First, I should be very sorry if any criminal, for whom both this House and the law usually have a very tender regard, were under the misapprehension that he was not entitled to the advice provided through the Bill. Indeed, one of the aspects of this Bill which leaves nothing to be desired, is where it provides for legal aid in criminal cases. Clause 6 makes it perfectly clear that everyone is entitled to advice on all legal questions. Whether a potential criminal is likely to go to a solicitor for advice whether he ought to commit a certain crime or has committed a crime, I do not know. But it is perfectly clear that once it is discovered that there has been the commission of a crime, and that proceedings have been begun, then the criminal, under Part II of the Bill, is entitled to what is termed "legal aid." The connotation of that phrase clearly includes the advice which his legal advisers will give him regarding the offence with which the "assisted person" is being charged.

The second point to which I wish to refer is the one mentioned by the hon. and learned Member for Chester (Mr. Nield) with regard to expert witnesses. I am speaking now from personal experience. He referred to a case in which there was a capital charge, and in which it was necessary to have some medical testimony on behalf of the accused. I was recently engaged on the side of the defence in a case of that kind in which the fullest facilities were afforded to the accused in that respect. In fact, several medical men were engaged on behalf of the accused lady. They gave evidence at the trial, and their evidence was instrumental in bringing about what I thought was a very proper and just result. But that is not the only case where it applies.

The hon. and learned Gentleman is himself a recorder, and I am sure he will agree that, even under the present system, in cases where legal aid is granted although it is usually in respect of counsel only, there may be a case—and such a case has come within my own jurisdiction—where it would be proper in all the circumstances to include in the grant the services of a solicitor. I can tell him that I made such a grant on one occasion recently. The result was that a solicitor was appointed, and there was an array of, I think, some seven or eight witnesses on behalf of the accused of whom the solicitor took proofs and everything necessary of an evidential nature was done on behalf of the accused. Therefore, on those particular matters I do not think there is any doubt. I do not think that on questions like aid in criminal or civil cases, on topics such as vexatious litigation and the establishment of a certifying committee, there is any disagreement in the House at all. There are, of course, other aspects of the Bill about which something must be said: they are matters of principle. It is not merely a question for discussion on Committee; it is a much broader and larger matter of principle than should be left to the Committee stage.

My right hon. and learned Friend the Attorney-General, in presenting this Bill to the House, used his descriptive brush with a deft and experienced hand. He brought out the features of the Bill in the most attractive light. I would like to say what I am sure the House would wish me to say, that we appreciate his effort and attendance having regard to his very heavy commitments elsewhere. The House is under a very heavy debt to him for being here and for taking charge of this Bill. Then we had the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) who followed him and gave us his usual lucid exposition on this important legal matter. He did not add much to what my right hon. and learned Friend had said except that he gave us the benefit of his counsel and the sanctity of his blessing.

No one can doubt that the reform envisaged in this Bill is long overdue; it is very necessary, and it is heartily welcomed by everybody. Of course, both parties, as the right hon. and learned Member for West Derby knows—and, I think, mentioned—have been very active in canvassing this particular matter. The Labour party and the Tory party have investigated the subject and have published their views.

That brings me to the first point of principle, which is whether there should be in this Bill what is termed a fixed financial limit. I am bound to say at the very outset that the presence of a fixed limit in this Bill is absolutely contrary to the policy of the Labour Party on this subject, a policy which is very clearly set out in the Report of the Party in 1944 and which appears on page 215 of that Report. After having gone into the matter very carefully and very fully they said there was: no justification for the retention of the financial limits set out in Order 16, Rule 23— —that is the Poor Persons' Rules— of the Rules of the Supreme Court for the purpose of determining whether an applicant is or is not to be regarded as a poor person. They go on to say: The test to be applied, it is submitted, is his available means in relation to the approximate cost to him of the particular proceedings in which he may be concerned. A person may have sufficient means to take or defend proceedings in the County Court, but he may have wholly insufficient means to enable him to take or defend proceedings in the High Court. The Report said it was the policy of the Labour Party to abolish all financial limits. With respect, that is the view I desire to put forward in relation to this principle—that the Government ought to look at this matter again and see whether this fixed limit is in fact either just or necessary.

On the other hand, the Tory Party a year later published their report, and if I may say so with respect, if the right hon. and learned Member for West Derby will look at it—it is entitled "Looking Ahead" which is something like "Let Us Face The Future"—he will see that their views about this particular subject are expressed on page 10 of that document, which deals with the administration of justice. There they say that it is essential to have an income limit and the ground upon which they put that case is that unless there is an income limit there would be an absence of uniformity. The extraordinary thing is that finally they express the opinion that any person who applies for assistance should be required to contribute according to his or her means. That, of course, is quite different from a fixed limit and, indeed, is a substitute, and, in my view a wise and proper substitute, for having any particular financial limit such as the Bill contains.

On the question of uniformity and whether that is a sound ground for saying that we must have a fixed limit, I would say only this—and I think the right hon. and learned Member for West Derby will agree with me. If in every case we could predicate that the circumstances were to be the same both in the nature of the case and in the circumstances of the person who is the litigant, it might be possible to get uniformity. As, however, all these cases vary so much in their circumstances I doubt very much whether we could achieve that result either in the financial circumstances of the litigant, or the circumstances of his case, its effects, the time it is going to take, or the complexity of the problems it involves. Therefore, when we come to measure up these cases we find it is absolutely impossible to achieve what is described as uniformity.

One man whose case is difficult will probably find that he is involved in a large amount of costs. Another man whose case is not so complicated will find that his costs will not be so great. Therefore, when we come to the question of contribution we find we cannot achieve uniformity because, just as a case differs in its effect and its costs, so the contribution he can pay will also differ in regard to his financial capacity. One man will contribute £100 and another man may have to contribute £300, and so on.

I cannot see, therefore, why this particular aspect of the Bill cannot be met by simply having a system of contribution. That is not an original idea of my own by any means, it is actually being applied in many Continental systems. In my submission that is what the Government ought to consider and apply here. They should say that the financial position of each litigant is the only fair test and that, having studied the financial position of that person, it should then be decided what contribution he is in a position to make. That would meet the case absolutely and there would be no need for a fixed limit at all. It is perfectly clear that such a limit must lead to injustice. I should have thought myself that achieving justice was the very linchpin of any system of legal aid and in my submission, therefore, this idea of a fixed limit should go.

Let us take the limit contained in the Bill. The £420 class will be all right. The wealthy people will be all right. Those in between are bound to suffer hardships. It is impossible to avoid that. Take, for example, the variety of case which we get. Take a man who has an ailing wife requiring constant treatment. Obviously that man is in a different position from, and requires more money than, the man who has a healthy, active wife. Take the case of a man with a large family, whose wife may be expecting another child, and compare it with the man whose wife has no child at all and is not likely to have one. Those are only two examples of an infinite variety of types of cases we are bound to come across in trying to administer this Bill. That is why I say that the idea that we can have a fixed limit of this kind is absolutely impossible.

Turning to the question of deciding what a man has to pay we come to what is called disposable income and capital. We have to see whether a man will actually receive the aid this Bill purports he is to have. First of all, he has to contribute on the basis of half his income above £156 per annum and also the whole of his capital assets above £75. The Attorney-General will see in paragraph 19 of the White Paper an example in which £36 is available, and in that example, if the case goes to the county court, the man will probably get no aid at all because it is very unlikely that the costs will exceed £36. If the case is taken to the High Court, after deducting £75 from the available capital, it is clear that the assisted person will have to pay a very substantial sum towards the costs of the litigation. The result is that he may have to pay such a large sum that he will find himself in the very financial difficulty which this Bill is designed to obviate. That, of course, would not carry out the purpose of a scheme for legal aid at all. It would not encourage people to litigate even perfectly proper cases, because they would be afraid of the uncertainty of the costs and of the results of such cases.

Mr. Scholefield Allen (Crewe)

It should not go out from this House that if a man gets only £420 a year he cannot get any help. Clause 4 provides: References in this Act to a person's disposable income or disposable capital shall be taken as referring to the rate of his income or amount of his capital after making— (a) such deductions as may be prescribed in respect of the maintenance of dependants, interest on loans, income tax, rates, rent and other matters for which the person in question must or reasonably may provide . . My hon. and learned Friend referred to a man with a child or a sick wife, and said that in such a case the position would be different. In fact, all those matters are to be taken into consideration. I have seen the view expressed in a legal journal that a man may be earning as much as £1,000 a year and still be entitled to benefit under this Measure. I would not like it to go out in the Press from an hon. and learned Member on this side of the House, that no assistance will be given to such a person.

Mr. Turner-Samuels

That is why I deliberately referred to the White Paper. I showed from the White Paper that after making certain deductions, there were still certain balances left. What my hon. and learned Friend has just said is obvious, and that is why I did not mention it. The cases are to be found in the White Paper, and I referred specifically to them to avoid going into the details which are all to be found there. I ask the Attorney-General to examine this matter again. Even taking what my hon. and learned Friend the Member for Crewe (Mr. Scholefield Allen) has said, it still means that the assisted party would have a very substantial sum of money to pay.

There is a further point which constitutes a great flaw in the Bill. It appears to have been overlooked that when a case is brought in the High Court and the defendant can make an affidavit showing that the plaintiff has no visible means to pay the defendant's costs if the plaintiff loses, then the case can be, and will be transferred to the county court. Therefore, there will be a distinction between the well-to-do litigant and the poor litigant, because in every case of that kind which begins in the High Court these proceedings for transfer will be issued and an assisted person will in all likelihood have to have his case tried in the county court instead of in the High Court. I cannot see why there should be that distinction between two classes of litigants, and why the assisted person should be under a disadvantage which a well-to-do person does not have to suffer.

I ask the Attorney-General to examine also the position of the certifying committees. A certifying committee has to perform a special duty and has to consider whether the proposed assisted person has a reasonable case. Involved in that factor is the consideration of facts, and not only points of law. It is not right that minds which are exclusively technical should be brought to consider those facts. It seems to me that that is a point for a "jury" view, because very often the matter will be decided on the facts rather than upon the law. It is not primarily for such a committee to decide questions of law. It is really for the court to decide those questions. It is for the committee to decide whether, on the facts of the case, it looks reasonable and ought to be allowed to be brought. Therefore, I ask the Attorney General to consider injecting into these committees some consumer or lay representation.

I would ask the Attorney-General to consider another aspect of the matter. On these committees there will be members of the Bar and solicitors exclusively. Might it not be said that here we have lawyers who are judges in their own cause? They are judging a matter which really concerns them very closely in a professional capacity, and are not only taking into account the personal and lay position of the assisted person. From the point of view of the profession as well, it would be much better if there were some independent voice or lay representation outside the legal profession, which would be entitled to have a say in this matter. I do not say that the independent voices need be in the majority. I cannot understand why, although there is to be no lay representation on the certifying committees, there will be such representation on the advisory committee whose duty will be to advise the Lord Chancellor. I cannot understand why this distinction should be made between the certifying committee and the advisory committee.

There are various other matters, such as provisions which exclude certain tribunals and certain types of proceedings. I find it very difficult to understand why these tribunals have been excluded. In these days tribunals are very important from a Parliamentary point of view. Much of our legislation involves orders and regulations under such legislation as the National Insurance Act, the Industrial Injuries Act, the National Health Act, National Service, rating appeals and pension appeals. All these are matters of first-class importance, and they all involve tribunals before whom people of very slender means have to go, on issues which are very important to them. I cannot see why there should not be representation in such cases.

In the matter of arbitration, I cannot understand that at all. Arbitration is increasing greatly. As the right hon. and learned Gentleman the Member for the West Derby Division said, contracts of insurance constantly include arbitration clauses. Very often the party concerned is a person of very poor means, and there ought to be facilities for legal aid in those cases.

There are many other matters to which I should like to refer on this Bill, but I do not think it would be right to detain the House longer. These matters can be dealt with in Committee; and there are other hon. Members waiting to take part in the Debate. Therefore, with those criticisms of its details, I desire to say I agree with the basic principle of the Bill. Nevertheless, I think that the matters which I have touched upon, and others which I have not, will have to be very carefully considered in Committee.

7.31 p.m.

Mr. Emrys Roberts (Merioneth)

This Bill is a great advance towards achieving the principle that all men should have equal facilities of access to the courts of law. Whatever detailed criticisms may be made of the form and scope of the Bill, the fact that it is a great advance towards social justice will still remain. I should not like my criticisms, therefore, to be regarded as mitigating or modifying the tribute which I pay to those who introduced the Bill.

However, it is clear that a scheme of giving assistance in legal matters does give rise to several difficulties which we have not yet faced and resolved. Under this Bill there are at least four divisions of legal assistance. The first is the legal aid centre; the second consists of facilities for taking and defending actions in the civil courts; the third is the self-contained divorce unit; and the fourth is the legal aid available in criminal proceedings. Much of the way in which the legal assistance will work will depend on the scheme which is to be formulated by the Law Society. Much of it is left out of the Bill. I think, however, one can indicate how in some respects the Bill seems to impede the formulation of a proper scheme.

I should like, first, to deal with the legal advice centres. It is strange that they are not treated first in the Bill, because they are, in a sense, the basis of legal aid. I had some experience of the working of a legal advice centre during the war, and the experience gained with the legal advice bureaux of the Army and Royal Air Force may be useful when we work out the way in which the legal advice centres are to work under this Bill. It seems to me that the scope of the work which the legal advice centres will do has not really been well thought out. It is not enough merely to say that they shall be able to give oral advice and help in preparing applications for legal aid. In most cases, when a person wants to take action because he feels his rights have been violated, or wants to defend an action brought against him, it will be to the legal aid centre that he will go. The legal aid centre will be the place from which legal assistance will emanate. In many cases a legal aid centre will not be able to give helpful legal advice without, for example, taking statements from witnesses. Is that to be part of the work of a legal advice centre? If they are to help in preparing applications for legal aid to the local committees, it seems essential to me that the legal advice centres should have power, not to make inquiries in the way in which an inquiry agency makes them, but to get in touch with witnesses and to take statements from them very much in the way in which the legal advice bureaux did in the Forces.

I think it was the hon. Member for East Walthamstow (Mr. H. Wallace) who referred to the kind of case in which a man must take action quickly. It is well known that a wise man, when he is concerned in a case which may go to a court of law, takes legal advice at the earliest possible moment. A great mistake that one often finds is that the taking of legal advice is left until too late a stage. If a man is involved in an accident—say, a man riding a bicycle; not driving a motor car, for he would be covered by a policy of insurance—and wants legal advice, he will probably go to a legal advice centre. They may want to get in touch with various people. They may want to advise a certain course of action, or to arrange for representation at an inquest. if all this is to be effective, they should have power to take quick action. The solicitor in charge of a local advice centre should have power to take action and to arrange for a man's legal representation right away, otherwise many of the advantages of legal assistance will be lost.

Another difficulty which may occur with regard to legal advice centres is that the two parties may go to the same legal advice centre. That may easily happen. More often than not the two parties to a law action reside in the same locality. If there is but one centre, presumably the one who gets there first will get the advice, and then what will happen to the other one? That brings me to the position of the local committee which gives civil aid certificates so that an action may be carried on in the High Court or county court. The same thing may happen there. The person who wants to bring the action may refer it to the local committee; and, after he has obtained his civil aid certificate there, the person against whom the action is brought, who may very likely be in the category of an assisted person, may apply to the same committee for a civil aid certificate. These complexities must be very carefully worked out.

Many hon. Members have talked today about restricting the eagerness of potential litigants, of damping down their enthusiasm for going to law over a grievance. People must not be encouraged lightly to go to courts of law. As against that, it is equally important that persons should not feel aggrieved that they have been deprived of access to the courts. I am not sure that the provisions of this Bill repecting civil aid certificates are really adequate in that respect. Suppose a man goes to a local committee and asks for a civil aid certificate, and is refused it; he has the right, apparently, to appeal to an area committee; but if that committee turn him down he has no further appeal. In criminal cases he can go to the judge. Surely in civil cases also it is only right that there should be an ultimate right of appeal to a judge, say a county court judge, against the refusal of a committee to grant a civil aid certificate. After all, the power to grant or refuse a civil aid certificate is a very important power.

I want to say a word now about the scope of the subjects the Bill is to cover. I agree that defamation should be included in the Bill. It is unjustifiable that the right of a man to protect his reputation should be separated from his right to protect his property. I am not impressed with this talk about garden-wall slander, because slander in a small village or street can be just as much the cause of injury and suffering as any other legal wrong. If we say that these are merely petty squabbles for which legal assistance cannot be given then we are making a mockery of the principle that all men are equal before the law. I hope the Government will be ready to accept an Amendment in Committee toe include defamation.

A good point was made about the unfairness to a non-assisted person who finds himself in litigation against an assisted person. Normally, it is the person who wins an action who has the costs awarded to him, and it is the unsuccessful party that pays his costs. An action may be brought by a person just above the limit laid down in this Bill, and he may win the action.

Mr. Janner (Leicester, West)

Will the hon. Member say what he means by "limit," because, as has been pointed out, the limit is not the amount expressed in terms of the Bill, but is dependent on what the National Assistance Board say?

Mr. Roberts

I mean a person who does not qualify for assistance. If an action is brought by a non-assisted person against an assisted person and the non-assisted person wins, he then has to pay, unless he has an order from the court, the whole of his own costs. Surely, in that sort of case where a successful litigant is unable to recover the costs from the assisted person, the costs should be borne by the Legal Aid Fund; this would be the equitable way of dealing with the position.

The administration has quite rightly been left to the Law Society, but it will be a mistake to make that administration a closed shop, entirely the preserve of lawyers; I speak as a lawyer. I see from the White Paper it is intended that the area committees shall consist entirely of lawyers, as well as the local committees. It is quite right that the certifying committee shall consist of lawyers, but surely the area committees should have lay representatives—for example, magistrates. It will be good for the lawyers and for the laymen and for the scheme if laymen have a voice in the working of this scheme.

Lastly, I do not see any provision in the Bill that a report on the scheme has to be presented to Parliament every year. It would be very desirable for an annual report to be presented by the Lord Chancellor to Parliament on the working of the scheme as a whole, on the civil side and on the criminal side. If we are to make further steps towards the principle of equality of all persons before the law, it is essential that Parliament has cognisance year by year of the way the scheme is working out.

7.46 p.m.

Mr. William Wells (Walsall)

I think that in the course of later stages of this Debate—if I may say so without disrespect to a great profession of which I am proud to be a very undistinguished member—we have lost sight of the fact that we are undertaking a bold, great and imaginative reform. We have lost sight of that fact in the mass of details raised, which are all very interesting and important, and will, no doubt, be dealt with during the Committee stage. I agree with the hon. Member for Merioneth (Mr. Emrys Roberts) that we desire to see lay representatives on these area committees, although I appreciate there are difficulties about that. It may be felt that, as the committees are dealing with extremely confidential matters, only those who have had professional training in handling confidential matters and will treat them with discretion should be on these committees. But that is rather a cowardly course to take. I believe there are plenty of people upon whom the importance of discretion can be impressed, and that it would be a tremendous gain, both to the scheme and to public confidence in the scheme, were lay representatives to be brought in.

I very much disagree with the suggestion, tentatively put forward by the hon. and learned Member for Chester (Mr. Nield), that the financial administration under the Bill should be transferred from the National Assistance Board to the organisation that is responsible for the rest of the scheme. We have to face this rather delicate matter that there will almost inevitably arise occasions when it will be of financial advantage to certain persons sitting on committees that a litigant shall not be entitled to assistance, when the grant of such assistance will mean that professional people will not get the full professional fees. It would be fatal if those who have to assess the factors in any particular case and decide whether a person deserves assistance financially were members of the legal profession. The National Assistance Board will command the public confidence in a much greater measure—I say this with all respect—than those who administer the rest of the scheme could do.

There are two broad questions which have to be answered in relation to the Bill. Does it provide the right kind of service to the people who need it; and secondly, is the machinery likely to be efficacious? The great merit of the Bill, and of the Rushcliffe scheme to which broadly it gives effect, is that it gives the assisted litigant the same sort of service on the same footing as the non-assisted litigant. I emphasise the importance of the free choice of legal adviser for which the scheme provides.

I suppose that the means test provision will at all stages give rise to a certain amount of anxiety, but in this case it is right and inevitable to háve some kind of means test. The Bill gets very near, however, to an extremely objectionable kind of means test in Clause 2 (2,e), which deals with the liability of an unsuccessful assisted litigant who has to pay the costs of a successful party. I hope that when the regulations are drawn up, they will be drawn very tightly in defining the principles on which the Assistance Board is to work and also very generously as to the kind of help that is to be given to the unsuccessful litigant.

The provisions dealing with disposable income are good. It still remains a fact that heavy litigation is bound to be a heavy burden, although my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) rather exaggerated the danger of that position and minimised the provisions in the Bill that deal with it. The most questionable provision on the financial side is that dealing with disposable capital. Even successful litigation might prove serious, embarrassing or even ruinous to a litigant with a small capital, if several appeals were involved. As to the general points that have been made regarding the financial limits—if that is the proper word to use—it is inevitable that, for one reason or another, there will be hard borderline cases, about which one could argue indefinitely—such as why somebody who has 4s. more than somebody else should be excluded from this scheme. I do not see how any scheme that can be devised by the human brain can be exempt from that sort of objection, and there always will be, and must be, the hard case. I hope that at some later stage it may be possible to introduce some further flexibility in income limits. For example, it is no hardship for a man with a little income to fight a county court action, but a high court cause which might go to the court of appeal or even to the House of Lords would be quite a different matter.

I wish to deal only very shortly with two outstanding points from Part I. The first is excluded causes of action. This seems to me one of the most difficult and delicate matters in the whole of the Bill. Personally, I shed no tears over the exclusion of any of these causes of action except defamation. I would agree with the Attorney-General that all these exclusions are matters of convenience—so as not at first to overweight the machine—rather than of principle. However, the question of libel as distinct from slander needs some careful further thought. Nobody is more aware than I am that there exists a blackmailing business on the fringe of the legal profession which exploits such causes of action. Libel undoubtedly is responsible for some of the least meritorious causes that come before the courts; it is also responsible for some of the most meritorious causes that come before the courts. It is a grave hardship for a man who would otherwise be an assisted litigant, if he cannot in any circumstances, except those adumbrated by the hon. and learned Member for Chester, namely, where he has other causes of action, get assistance to bring that cause before the courts. I agree, on the other hand, with the Attorney-General that for the time being, in view of the necessity not to overload the scheme with tribunals other than what I will call the normal courts of law, we must for the present exclude such bodies from the purview of the Bill.

I have one or two short questions to ask on Part II. Why is no rule-making power included as there is in Part I? If the answer is that previous legislation covers this point, is that really a satisfactory answer? I do not want to weary the House with a lot of detail at this stage, but I would ask my right hon. and learned Friend to give some thought to the point. One further point I wish to make on Part II is—would it not be well to make quite clear to all, as already, since a judgment of Mr. Justice Humphreys, it has been clear to all those who have studied the matter, that legal aid may be made available where the prisoner intends to plead guilty to the charge.

In the course of what I have said before, I have covered the points I wished to make about the machinery of the Bill. It is right to touch shortly on its effects on the profession. Speaking as a member of the Bar, one should face the fact that in the short run, the scheme is going to be a very mixed blessing for the solicitors' branch of the profession whereas, on the whole, it is going to be good for the Bar. I do not think I need go into details on that point. It rests shortly on the difference between the comparatively small overheads that the barrister has to meet and the much heavier overheads that the solicitor has to pay. I believe that the Law Society are doing a great work in undertaking this matter. I also believe and hope that the solicitors who enter the scheme will be compensated to the full in the long run for the present losses, disadvantages, and inconveniences that they may incur by having to build up a larger litigation staff than will be justified by the profits that they will receive from the work. I believe that a Measure of this kind is the only way to keep the legal profession in touch with the requirements of justice today, and I am sure that the Law Society are right in the action that they are taking. I hope that they will be supported by solicitors throughout the country.

I believe that this is a thoroughly good Bill. On this side of the House, we are used to those who sit in front of us proposing thoroughly good Bills. We are not always accustomed to the reception which this Bill has received from the other side of the House today. There was, indeed, a moment when I thought that the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) was going to be tempted into drawing an analogy from a legal advice bureau to a licensed house, but he steered clear of that temptation with commendable strength of mind. I feel in this time, when political controversies are sharp and will become sharper, that it is very good that there should be a wide measure of agreement between the two sides of the House on this great, bold and imaginative Measure of social reform.

8.1 p.m.

Mr. Julius Silverman (Birmingham, Erdington)

I am glad of the opportunity, as another member of the Bar, to participate in this discussion. It may be said that the Debate has become purely a lawyers' day out, but I do not see why lawyers should not have a day out like anybody else. Moreover, I think that all those who have spoken have emphasised the human rather than the technical side of the problems of the law. I want to deal with Part II of the Bill. Speaking for myself I am generally content with the provisions of Part I. I can think of modifications and criticisms but these provisions deal satisfactorily with the position, when they are taken broadly, and as a whole. Part II deals with legal aid in respect of criminal offences. I am bound to say that I am not satisfied with it. The ordinary man frequently and largely comes into contact with the law precisely in relation to those offences. One might say that the magistrates and petty sessional courts are the poor man's courts even more so than are the county courts. So far as this class of case is concerned, the obiter dictum of Mr. Justice Darling, which was mentioned by the Attorney-General in opening, that the courts, like the Ritz, are open to everybody, loses its sting. In the criminal law the person who is involved does not choose whether he goes there or not. The man who brings a case under civil law can choose whether to bring it and the person who defends it can choose whether to defend it. The person involved in criminal proceedings is brought to the court whether he likes it or not. He is not concerned with the fact that the courts are open. In most cases he would very much rather that they were shut.

I can remember a case in which I was prosecuting when very young at the Bar. The man pleaded for legal aid. The recorder presiding over the court asked him whether he had any means. He replied: "Yes. Sir, I have a wife and six children." Upon that, the recorder said: "A very doubtful asset." I thought that incident was not so much amusing as rather touching and expressive. Here is the small man who comes into conflict with the panoply and crushing machinery of the law and who is frightened, bewildered and somewhat helpless. I have always a certain sympathy, whatever may be the State, or the tribunal or the crime, with the man who is pitting his own puny resources against the powerful legal machine of the community; against the resources, for instance, which the police have to prepare and state a case, summon witnesses and obtain documents. I have always a certain sympathy with a man in that position.

I believe that in this country we have done much to redress the balance between the man who is fighting for liberty and the community, to ensure that there shall be a balance of justice and that both shall present their cases fairly. I believe we have done more than any other country, although I do not think we have done enough. In this respect I do not think that the Bill goes far enough. I am not at all satisfied that the Poor Prisoners Defence Act and the other provisions for legal aid for people tried for criminal offences satisfactorily meets the needs of the community and of the poor person who is tried for his liberty. In fact the matter is dealt with in the Rushcliffe Report; some of the criticisms are mentioned there, upon page 25. There is a quotation from "The Justice of the Peace," 1943, page 325; which in turn mentions some observations made by Mr. Justice Humphreys at a then recent trial. It says: From the newspaper report it appears that the learned judge had inquired why the prisoner, who it seems may have pleaded guilty, was not represented and was informed by prosecuting counsel that Clerks to Justices were often reluctant to grant legal aid to persons who did not disclose their defence before the magistrates. I think that those who practise in the courts would say that that was a frequent occurrence even today.

It is difficult in many deserving cases for the prisoner, who ought to obtain it, to get legal aid. There are certain exceptions. I know, for instance, of certain courts, quarter sessions and assizes where the judge or recorder sometimes gives legal aid to a man who has pleaded "Not guilty" when it appears quite clear from the depositions that he is guilty, no doubt in order that he may be advised by counsel on his plea. In those cases, while the altered plea may in due course save the time of the court and may be a good investment in saving the time of witnesses and others, it is a little remarkable that the man, just because he has pleaded "Not guilty" and has been rather awkward, derives the benefit of legal representation, when, if he had pleaded "Guilty" at the outset, he would not have got the same rights. Some of the more cynical members of the Bar have been heard to describe the Poor Prisoners Defence Act as the "Poor Defence of Prisoners Act." Sometimes that seems to be true because of the inadequate time and facilities allowed to provide for the defence of prisoners.

The Bill continues the old procedure in relation to the provision of legal aid for those people. The existing structure is hardly modified at all. All that happens is that we get new guiding principles put forward, but the same discretion which was exercised before is vested in the same tribunals and is exercised in precisely the same way. I should prefer a much broader provision. I do not see why, if the prosecution of a prisoner is a State expense, the defence of a prisoner should not be a State expense also. If it is in the interests of the public that a man should be prosecuted, it is also in their interests that the other side should be heard and that a fair balance should be placed before any tribunal.

Where any man is tried for his liberty—for any offence which might involve a sentence of imprisonment—he ought to have the absolute right to be defended, irrespective of whether he pleads guilty or not guilty, whether he does or does not disclose a defence or, I will even add, irrespective of his means. It may be said that such a system would result in people who could afford to pay for their own defence getting away with the expense. I am not unduly concerned about that. Such a provision, of course, would avoid a means test, and as far as the people with means beyond any income limits are concerned they pay through their taxes for legal defence: I do not see why they should not get it in precisely the same way as under the National Health Service, for instance, they receive medical attention without being asked by anybody about their means.

Moreover, it is in the experience of all of us, members of the legal profession and otherwise, that not infrequently a man of what we might call the middle income group defends himself against a criminal charge, vindicates his name and saves his liberty only to find that he is financially ruined. That which I have proposed would obviate such cases. If it is not possible to introduce such broad terms into the Bill, I ask the Government to consider introducing a more uniform method of assessing means even if it is that provided in Part I of the Bill. For all its deficiencies, this method does introduce an element of uniformity where otherwise there would be complete diversity and a complete difference in practice and in the assessment of means. I say frankly that some magistrates' courts are not in a position to understand and assess the means of the ordinary working man. This is a matter, however, which is still left very largely in their hands. It would be far better for such provisions to be vested in the National Assistance Board or dealt with in some other form than that which now exists.

These are matters to which the Under-Secretary of State for the Home Department will, I hope, reply, for I am not satisfied with the provisions of legal aid in criminal cases. After all, civil cases may deal in property but a criminal charge involves what to a man is the most important thing, his liberty, and I hope that we shall not continue the present unsatisfactory structure. Having made that criticism I want, in conclusion, together with other hon. Members, to congratulate the Government upon the introduction of this broad and humane Measure during their other preoccupations. I consider the Bill to be a great step forward in the social and legal structure of this country.

8.15 p.m.

Mr. D. A. Price-White (Caernarvon Boroughs)

As I sat listening to the even tenor of the Debate, I could not help thinking that nothing was further removed from the hurly-burly and bitterness of the litigation which we seek to make more accessible to the general public than the calm and peace of this Debate. It has also been described as a Roman holiday for the lawyers. I only wish that this particular Roman Empire were more thickly. populated on this occasion.

The hon. Member for East Waltham-stow (Mr. H. Wallace) implied that there was something remarkable in the Bill in that it was experimental. But this is by no means the first experimental Bill we have had in this place of recent years. It has, however, this great difference: that for executive purposes it is to be put into the hands of the Law Society rather than of a newly-appointed national commission or board. In the hands of the Law Society it will have a far greater chance of proving its worth in practice than certain other experimental Measures which we have recently considered.

I do not wish to detain the House unduly, but there are certain points of legitimate criticism which do arise in the Bill. I am thankful that there are very many more points of general agreement. I am sorry the Attorney-General is not in his place, for I should have liked to have had the opportunity of congratulating him on the lucidity and care with which he explained the Measure. A tribute is due equally, I think, to the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe). Tomorrow morning the Attorney-General will have many more interesting and exciting matters to read than any report of my speech in HANSARD, but he is to be congratulated on the manner in which he introduced the Bill. I felt I was being taken back to certain times, longer ago than I care to remember, when, as an articled clerk, I used to listen to the Attorney-General, as he now is, dealing with licensing and various other matters in courts somewhat further North than here. I felt that tonight he was more at home and was back once again in what was for him a legitimate stamping ground, with no inhibitions as to whether a political opinion ought to be expressed or otherwise.

I should like to deal particularly with the remarks of the hon. and learned Member for Gloucester (Mr. Turner-Samuels) and the hon. Member for Merioneth (Mr. Emrys Roberts). I think they were quite fair in introducing criticisms of the non-provision for lay persons on the various committees. This is a matter, quite frankly, of some delicacy, particularly to lawyers, but the decision to have these committees composed of technicians—professional lawyers—is, I feel, perfectly sound. The hon. and learned Member for Gloucester failed to remember that the Bill is the result of a unanimous report by, possibly, one of the best and what, I trust, will be proved to be one of the most successful committees set up—the Rushcliffe Committee, which was non-party and truly representative, and which dealt with the particular problem of the constitution of these committees and decided that in the interests of the scheme and thereby of the general population of the country, it was fairer, sounder and would promise a greater efficacy, if the committees were made up of professional lawyers. I am certain that in that decision they were right.

I can understand how their decision might lead to a suspicion of there being a closed shop of the very vilest and worst type, in favour of lawyers and how it might, in some respects, make the whole scheme distasteful to very many persons. The whole problem is really a matter of, if I may use the expression, mass psychology. I happen to belong to the branch of the profession which I am pleased to regard as the harder working, the more practical and certainly the more poorly remunerated. One comes face to face with the various difficulties of the ordinary person in different ways and I have found that, while it is regrettable, it is nevertheless true that the average person, apart from social occasions, hates to be seen in the professional company of a lawyer. I know from experience that, if a solicitor sets up a practice and puts up his nameplate at a single address, it is surprising what a number of persons who would normally go to consult him, do not go there because they are immediately labelled as being engaged in litigation.

But let him remove his office to a larger and more commodious building where there may be an accountant above him, a flimsy bookmaker and an Income Tax collector or expert behind him and the increase in clientele is remarkable, because the average person bluffs himself or herself that no one in the street outside knows whether it is to the bookmaker, the accountant, the Income Tax collector, or the lawyer that he, or she, is going. I always feel that the public go to great pains to get lawyers out of the way by getting so many of us elected to this House and in that way, perhaps, they get the last laugh. But, in spite of the general suspicion of the profession, there is not the slightest doubt that they have the greatest respect for our training and experience, particularly in matters of judgment and advice and. above all, in matters of secrecy.

I can well imagine, and I am not speaking particularly of a place as large and as impersonal as London, but of the sort of place in which I have practised, and on which this Bill, when it becomes law, will have a more direct and practical impingement than on this great metropolis, that what will happen is that Mr. Smith will be told that he will be considered and treated properly and fairly by a committee of lawyers. But, directly one tells Mr. Smith that Tom Williams—who has no association with this House—his neighbour up the street, is on the committee, he will say, "Tell my private affairs and my trouble with the missus to that fellow? Not likely."

Therefore, I am all the more surprised that the hon. and learned Member for Gloucester and the hon. Member for Merioneth sought to criticise the proposal. After all, everyone is human and a committee will be considering most intimate details of a man's or a woman's life. On the committee there may be someone who is perhaps more garrulous, who may reveal those details and do irretrievable harm to that person whose confidences are given away. If that happens, how can we remove the ill that has been done and where is the sanction against a chatterbox on the committee? There is none. But if we confine membership of the committees to trained professional lawyers, there is the sanction of the organisation and disciplinary measures of, respectively, the Bar Council and the Law Society, and thereby there will be an assurance of that sanctity of confidence so necessary to the scheme. Many applications will be turned down, quite rightly, on their legal merits and on the facts, where it would be an abuse and a waste of time of the scheme if they were allowed to pass up the chain of circumstances purely by reason of sympathy, as would so often be the case if the matter were not dealt with purely on its legal merits. The scheme would be cluttered up with cases in which it would not be right to have made available the facilities afforded by the legal aid scheme.

I say with every certainty that the Rushcliffe Committee was correct. I appreciate that as a profession we lawyers are open to doubt and attack on this proposal, but I am equally certain that if the scheme is to work in the manner in which we hope it will work, and know it can work, the proposals are correct. We must not forget that the Rushcliffe Committee and the Bill have provided for the voice of the layman to be heard, and his advice taken, on the highest committee of the whole scheme. The Advisory Committee of the Lord Chancellor has the lay voice on it and has none of the suspicion of the professional lawyer.

One small criticism, in which I may be anticipating the Committee stage, is in relation to the provisions for county court cases. They will permit of an approved litigant employing a lawyer, at the expense of the State, to obtain judgment. If the successful litigant wishes to enforce the judgment by way of a judgment sumons, he has to pay for that eventual and final proceeding in his action. That point should be looked into on the Committee stage. It is rather like sending one's favourite nephew a motor cycle for Christmas, but pointing out at the same time that he is too young to hold a driving licence.

Perhaps it is right that I should take this opportunity of recording that the scheme—which we all welcome—is a result of the enormous amount of unknown and sometimes unappreciated work done in the past by both branches of the profession in poor persons' procedure and legal aid as we know it today. Too little is known of what has been done in that direction. I found in experience that if one wanted a really difficult and long-drawn-out case, it came into the office under that procedure. But we did not grumble and great work was done. We all trust that the Bill will go through smoothly and produce a scheme which, at long last, will provide a system making full legal aid available at reasonable cost to all who are justified in taking action in the courts.

8.27 p.m.

Mr. Driberg (Maldon)

Hazlitt said that the only thing that gave him any respect for the House of Commons was the contempt felt there for lawyers. Of course, on an occasion such as this, I would never venture to echo such seditious words; none the less, I do not think that those of us who are not lawyers need be too diffident in intervening in this Debate. This Bill is not primarily a lawyers' Bill; it is primarily, so to speak, a consumers' Bill. It is one of the many Measures introduced by the present Government for the benefit of the vast mass of the people, working-class and middle-class, and as such. I think we all congratulate the Government upon it. In this case it is not the vast mass of the people who are affected, but that considerable minority of them who, unfortunately, from time to time "get," as we always unkindly put it, "into the hands of the lawyers."

As several hon. Members, including the hon. Member for Caernarvon Boroughs (Mr. Price-White), have remarked, this Debate has been considerably more mild and less bitter than yesterday's, which was also introduced from the Opposition Benches by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe). I feel sure that, with his usual fairness, the right hon. and learned Gentleman will seize every opportunity he gets in the country of praising the Labour Government as warmly for this Measure as he will continue, no doubt, to damn them for yesterday's Licensing Bill.

I agree with many hon. Members who have questioned whether the top income limit of £420 disposable income is really logical or equitable. Several of my hon. and learned Friends argued among themselves for some time about the real gross income that that represented; but the Attorney-General had already told us that it represented, on an average, probably a gross income of £550 to £750. It seems to me that there may be many people, professional men, doctors, Members of Parliament even, with gross incomes of considerably more than that, say £1,000 a year to £1,500 a year, who still could not possibly afford protracted legislation, especially in the High Court. This, incidentally, as the Attorney-General is undoubtedly aware, is one of the criticisms of the Bill made by the Haldane Society, which may help to commend it to my hon. Friends on this side of the House.

One small point, in passing, is this, I am extremely glad to notice in the Bill that when the service provided is not free justice but what one might call assisted justice, it is also to be hire-purchase justice—that is to say, the payments may be made gradually over a period of time. I hope that we can take it—I suppose we can—that the litigant will not be required to pay that lump sum in advance which solicitors usually, cautiously demand of him—that £50 or £100 which is such a damper on the glowing optimism with which people set out on litigation.

The main point that I wish to make has already been raised by several hon. Members on both sides of the House. I with them, regret very much that libel and slander, particularly libel, have been omitted from the Bill. As a journalist, I have been at the receiving end as well as the delivering end of a number of writs for libel. On the whole, I think that the former is the less uncomfortable position, because the journalist who perpetrates an alleged libel is, after all, protected financially by his employer, the publisher of the newspaper in which he writes it; and no doubt the employer, in turn, is covered by an insurance policy. But no such protection is available to the ordinary citizen who feels himself grievously libelled, perhaps by some big or powerful, or small local, newspaper. The costs of trying to vindicate his reputation are bound to be very considerable. After all, one cannot start a libel action in the county court, but only in the High Court.

There may be two main reasons why it was felt impossible or unwise to include libel within the scope of this scheme. The first is that our libel laws are obscure, archaic and confused, and therefore, as the Attorney-General said, they are capable of abuse and are in fact constantly being abused, by blackmailing threats of libel actions and so on. No doubt these laws will in due course be reformed, either on the lines suggested by the Porter Committee or otherwise. I hope that, if we have to wait until then, either my hon. Friend tonight or perhaps the Attorney-General during the Committee stage, will give us some rather more definite assurance that libel will be brought within the scope of this scheme.

The second reason against including it was, of course, indicated by the Attorney-General when he spoke of the back doorstep arguments, the petty squabbles, and hinted that public money would have to be spent on a mass of frivolous and what are politely called speculative actions. But I should have thought that that would sort itself out fairly quickly. For the first few months there might be thousands of attempts to bring frivolous actions of that kind, but surely the committees will have quite sufficient powers to refuse certificates and quite sufficient experience to see very quickly whether what is being brought before them is serious or not. In this connection, I was not greatly impressed by the Attorney-General's argument that the treatment of this matter by different committees in different areas might not be uniform. I should think that that criticism might equally apply to all sorts of different types of cases.

It might well be, especially at first, as I say, that nine out of ten cases in which people sought legal aid or advice in connection with libel would be frivolous or speculative, but the tenth case might be like the now celebrated case of Miss Arnot Robertson, which I should like to quote by way of illustration of the kind of thing which I feel ought to be covered by this Measure. Since I am quoting it, I should perhaps make the illustration more exact and more graphic by venturing briefly to remind hon. Members of the facts of this case.

It was in 1946 that a large film company, Metro-Goldwyn-Mayer, wrote to the B.B.C., whose film critic at that time was Miss Arnot Robertson, complaining of her criticisms of their films. She sued them for libelling her in their letter to the B.B.C., and for slander, since they had also read the letter to a newspaper. The case was heard in the King's Bench Division in July, 1947, and judgment was given for Miss Robertson, with £1,500 damages. The jury held that the M.G.M. letter was libellous and malicious and imputed professional incompetence. The film company appealed in July, 1948; the appeal succeeded, the three judges in the Appeal Court agreeing that there had been technical misdirection of the jury in the lower court.

The appeal succeeded, with costs against Miss Robertson, who thus found herself, and finds herself, not £1,500 better off financially but about £5,000 down financially, a sum which is quite ruinous to her. Leave was granted to appeal to the House of Lords; but, of course, if she should so appeal, it would cost probably another £2,500, making a sum of about £8,000 in all. That seems to me to be pre-eminently the kind of case, raising as it does an issue of great public importance, the right of free criticism, in which public money should be used. It is a matter of real public interest. Yet this lady, this film critic, has been penalised through no fault of her own, and not on the merits of the case, but because, as I have explained, there was technical misdirection in one court. I hope, therefore, that when my hon. Friend replies to the Debate he will assure us that serious attention is being paid to this kind of issue.

I stress this illustration in particular, because it is perfectly clear that this particular company has been abusing its wealth and power and throwing its weight about, and pursuing, as a policy, a vendetta against free criticism. Some years ago it tried the same trick on with another film critic, Miss Dilys Powell, of the "Sunday Times." I do not know whether she then contemplated an action for libel. It may well be—and this is why, I think that this also is relevant—that she would have contemplated such an action had it been possible to bring one with the assistance afforded by this Bill, if libel were in it. I do not know whether she did contemplate it, but fortunately her employers, the "Sunday Times" and Lord Kemsley, stood by her very staunchly. For 10 solid months she was barred from every M.G.M. film and for 10 solid months no review of any M.G.M. film appeared in the "Sunday Times"; that is not a satisfactory situation from the point of view of the public, who, after all, are entitled to be informed of what is going on in the film world, as in every sphere of news and culture. That is why I say that this kind of action is pre-eminently of public interest.

Incidentally, Lord Kemsley, whom I have just mentioned, has contributed very generously to the fund which a number of individuals are raising for Miss Arnot Robertson; so have the National Union of Journalists, of which she does not happen to be a member, and a number of other individuals and newspapers. The extraordinary, fantastic climax of the episode is that, when some of her colleagues in the Critics' Circle started to get up this fund, to have a whip-round—and it is, after all, a pretty substantial whip-round, for £8,000 takes a bit of raising—M.G.M., quite legally, weighed in again with threats of libel actions against them, obviously in order to restrain them from trying to help their colleague in her difficulties. The power-crazed vindictiveness of this Caliban corporation is really, I must say, most deplorable.

It is also worth noting that the people who do organise such a comradely whip-round are possibly running a very slight risk of being accused of the terrible crime of maintenance and/or champerty. That I am not qualified to deal with; possibly some of my legal friends are.

There is, as I say, this fund for Miss Arnot Robertson to which a number of public-spirited individuals have contributed; I hope that many more will do so. But I feel that it should not be left to the caprice of individual generosity, or the accident of being able to find somebody with the time to spare to organise such a fund—which is quite a big job—in order to see that justice is done in a matter of real public interest such as the maintenance of free criticism. As things are, it may, clearly, be difficult in the future for critics, or other writers in similar circumstances, to risk bringing libel actions at all against these opulent and barbarous Hollywood corporations, whoever they may be, who are trying to gag English criticism and intimidate English critics. I hope that my hon. Friend and the Attorney-General will endeavour at the earliest moment to make good this considerable and serious flaw in their otherwise excellent Measure.

8.44 p.m.

Lieut.-Colonel Lipton (Brixton)

Many of us have felt for a long time that an adequate, measure of legal aid was a very essential part of our scheme for social security. To that extent we are all very grateful to the Attorney-General for persuading the Government to introduce this Bill now. It will provide a cheap kind of social insurance. It will help to increase public respect for the law, which in itself is a very desirable thing. As a matter of fact, if I may be pardoned for harking back to the past, this very subject of legal aid was one on which I spoke in this House in 1945 when I had the privilege and the ordeal of making my maiden speech. I suppose that for three years to elapse between asking for something and getting it done, cannot be regarded as too long in these days.

I do not propose to cover the ground already covered by previous speakers. Many points have been made which are, in effect, Committee points. There is, however, one very important matter to which I wish to draw attention. It involves a problem which I think may vitiate the greater part of the discussion which has already taken place. It is this. Many of us have felt very strongly that the assessment or the fixing or disposable income and capital should not form part of the Bill but should be left for amendment by regulation from time to time. The right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe) did mention that the poor persons' aid rules at present in operation are based on 1914 figures. It has taken over 30 years to get away from those figures of £2 or £4 a week beyond which legal aid is not available. What I and many other hon. Members are afraid of is that if these Clauses relating to disposable income and capital form part of the Bill, it will be quite impossible at a future date, without amending legislation, to introduce any changes in that respect.

The hon. and learned Member for Daventry (Mr. Manningham-Buller) will recall that, when he compares the figures set out in the Conservative pamphlet entitled "Looking Ahead" on the subject of legal aid, with the situation that now exists. I think he will agree that he would not find it possible to come to this House and argue that the figures advocated in the 1945 publication of the Conservative Party could be justified now. Reference was made to the fact that if the Government do not accept the suggestion to take out of the Bill the specific Clauses relating to the fixation of disposable income and capital, then it will be quite impossible for any ordinary Member to introduce any Amendment to that effect on Committee stage. I hope I am not breaking the rule as to anticipation, but the Financial Resolution which the House will be asked to pass if the Bill receives a Second Reading, will so tie us down as to make it quite impossible for any hon. Member in any part of the House, to introduce any change in that respect in Committee.

The discussion that has taken place on these Clauses will serve no purpose during the remaining stages of the Bill unless we can persuade the Government to think again on this one particular item. I hope that they will do so. I hope that by an adroit use of Parliamentary procedure, hon. Members will not be deprived of the opportunity, to which perhaps some of them were innocently looking forward, of persuading the Government on the Committee stage to introduce some Amendment to the Bill as it stands. It will be most regrettable if, as the result of the Second Reading and the Financial Resolution, this House were denied the opportunity of putting forward any Amendment which would enable the authorities administering the scheme to vary the figures of disposable capital and income from time to time by regulation. The Attorney-General said that this is a skeleton Bill. The items concerning disposable capital and income will not be subject to regulation. Amending legislation will be required, and, judging from our experience, it is only once in a generation that we get legislation dealing with legal aid for persons of moderate means.

I hope that the rôle to be played by the Assistance Board will not be a delaying factor. Reference has been made to the necessity for speed in granting legal aid certificates. I hope that speedy investigation will take place, particularly in those cases where the applicant has to enter an appearance or where action must be taken within a specified time of six or 12 months of the event in respect of which the litigation arises. It may be assumed that in the early stages of the scheme it will be found that many people will ask for legal advice and they may have only 24 or 48 hours before their legal remedy, such as it is, will be exhausted. I hope that provision will be made to surmount that difficulty both on the part of the area or certifying committees and on the part of the Assistance Board.

As regards the spate of litigation likely to ensue, those of us who have had experience of legal aid in the past agree that the bulk of the cases likely to crop up are matrimonial cases. There is a vast pent-up demand for divorces on the part of people who have £4 10s. or £5 a week and who hitherto could not afford to take proceedings. For the first year or two, it may well be that the bulk of the cases requiring attention will be of a matrimonial character. Even at present, under the Services legal aid scheme, with the demobilisation that is taking place, the bulk of the Service applications concern matrimonial difficulties. The same experience will arise when this Bill becomes law. For those reasons, I hope that the fullest possible use will be made of the divorce units to be run and maintained by the Law Society. Under the Bill as it stands, the divorce units of the Law Society will only be able to undertake those cases where the contribution from the applicant does not exceed £10. Even if it is found necessary in order to keep the divorce units of the Law Society fully occupied, to increase the £10 limit, I hope that there will be no hesitation in arranging for that to be done.

From my knowledge of the good work done by these divorce units, I can say that they deal with the cases, most of which are undefended, with a despatch and a degree of economy with which the ordinary outside firm of solicitors is unable to compete. To that extent, there ought to be a considerable saving in expense to the Exchequer, if the utmost possible use is made of the divorce units of the Law Society. I should have liked to deal at greater length with the point already made about the gap that seems to exist between the oral advice to be given by the solicitor at 2s. 6d. a time, or less, and the stage when the certifying committee will grant a certificate entitling the application to proceed.

Those of us who have had any experience of the Services legal aid scheme know that it is impossible to limit advice to a few oral remarks. In order not to waste the time of the certifying committees—because they will consist of busy professional men—it is absolutely essential that the schemes should authorise the advising solicitor to establish whether or not there is a prima facie case. Otherwise, it will be found that one will have to ask the certifying committee to grant certificates in a large number of cases where it is found subsequently that there is no cause for action but where it would be dangerous to refuse a certificate because the applicant may possibly have a case which has not yet been substantiated or verified by the advising solicitor.

I support the plea that there should be some consumer representation. I do not think that the question of privilege or the confidential relationship between solicitor and client would be affected. After all, it will be the job of the certifying committee to go into the details. There would be no danger in some lay representative sitting on at least the area committees, if not on the local committees. The actual details of any case in respect of which a certificate is to be granted will be known only to the certifying committee. It is that committee which will have to decide, and that committee will consist solely of barristers or solicitors.

My next point concerns the position of Service applicants under the Bill. At the moment provision is made under the Admiralty, Army or Royal Air Force legal aid schemes. Officers and other ranks—qualified solicitors, barristers and solicitors' clerks—are available at all command headquarters at home and abroad to advise Service men on legal questions which affect them in their civilian capacity. I hope that the regulations to be drawn up will not mean that any lesser number of Service men will be eligible for assistance than has been the case hitherto. I hope that the regulations will be interpreted most generously, particularly in respect of the men serving overseas, who are cut off from the ordinary sources of advice available to men who are serving at home.

I do not know how that problem will be dealt with by the Law Society under the Bill. It may be that they will have representatives in a civilian capacity attached to the various command headquarters to whom Service applicants will have speedy access when necessary. There are a number of officers and men in the Navy, the Army and the Air Force who voluntarily extended their Service for the purpose of ensuring that there is no gap between the winding up of the Services legal aid scheme and the introduction of this Bill. I hope that the most generous possible provision will be made for them. As a result of continuing in the Service, many of them no doubt have sacrificed civilian opportunities. When the Law Society comes to fill the appointments which will be necessary under the scheme, I hope that they will give special consideration to these Service men and, in some cases, women, who voluntarily stayed on with the Services for the purpose of ensuring continuity of the legal aid scheme in the Services. They have a strong claim upon the attention of those who will be responsible for organising the scheme.

As has already been said, this Bill is an ambitious venture of great social and legal significance. I think that, but for one or two other competing items in our legislative programme, pride of place in this Session would have been given to the legal aid scheme. It represents a very considerable step forward in building that structure of social security which the present Government were pledged to introduce.

9.0 p.m.

Mr. Manningham-Buller (Daventry)

I think the House will agree that this Bill has received as cordial a welcome as any legal Bill is likely to receive from a whole body of lawyers. I welcome that fact. I am glad the Bill has received such a general welcome, although I am sorry that its appearance has, for reasons which I can well understand, been delayed until now. As far as I am concerned this is—certainly in one respect—a remarkable Bill. It is one of the few Bills introduced by this Government to which I can give almost unqualified support. Indeed, if I did not do so, I should really be denying my one-twentieth share in the paternity of this Measure.

I hope that hon. Members will not seek to make the introduction and passage of this Measure an occasion for party propaganda. Credit is, it is true, due to the Government for introducing this Bill; we could not. But this Bill emanates from the action of Lord Simon in appointing the Rushcliffe Committee, and from the unanimous report of that widely representative Committee on which I had the honour to serve. I can say with confidence that had we on this side been the Government since 1945, we would certainly have introduced a Measure of this sort at the earliest opportunity. Therefore, while the Government can be congratulated upon using Government time for the introduction of this Bill, I hope that the congratulations of the hon. Member for Maldon (Mr. Driberg) will go no further than that.

I have no doubt that my former colleagues on the Rushcliffe Committee will be gratified by the reception which the result of their many hours of labour has received today. We worked in great harmony. I have no doubt also that Lord Rushcliffe will be pleased by the tribute paid to him by my right hon. and learned Friend. The debt of those of us on that Committee to Lord Rushcliffe was a great one. His able chairmanship contributed much to the harmony of our activity and to the unanimity of the result. It is not to be expected that a scheme of this magnitude, though generally welcomed, should not come in for some general criticisms, and I propose to say a few words on them. We shall, of course, have an opportunity of discussing them in full in Committee, and I trust that during the Committee stage we shall make some improvements in this Measure.

The first big problem which the Rushcliffe Committee had to face, and which this House has to face, was one of definition—the question of determining what section of the community should be entitled to receive aid from the State in respect of litigation. There are two alternatives. One is to fix a ceiling below which anyone can obtain legal aid free of charge. That ceiling must be entirely arbitrary, and will result in many anomalies between the people just below the ceiling and the people just above it. Of course, the existing poor persons procedure system is based on the principle of a ceiling below which legal aid is provided and above which there is no legal aid. The alternative is the provision of assistance involving a contribution from the litigant. We recommended that there should be no contribution from the litigant if his net income and his net capital were below certain figures and that he should be required to assist towards the cost of his litigation if his net income and net capital were above those figures but below certain ceilings.

We decided in favour of that alternative and I am glad that the principle has been accepted by the Government. The difficulty arises, once that alternative has been accepted, of fixing the limits below which there is to be free legal aid and above which assistance is not to be given. I note that the Government have substantially accepted our recommendations as to those limits, but, in passing, I welcome their intention to increase the amount of capital which can be disregarded. The sum put into this Bill for that purpose is higher than we, in the light of the evidence given to us, thought it practicable and possible to recommend. I understand that the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) was right in saying that after the Financial Resolution has been passed it will not be open to us to amend these limits in the course of our discussions in Committee. Views may differ as to those limits and the rightness of the level at which they have been fixed, but this scheme breaks new ground, entirely fresh ground, and I think it is right to start with those limits; they can easily be amended by a short Bill in the light of our experience in the working of this scheme. It is better to do it that way, in my opinion, than to do it by regulation.

Another danger one has to guard against in a Measure of this sort is that the scheme may be abused, for it would be utterly wrong that public money should be used to support frivolous. vexatious and trumpery litigation. I consider the fact that in a wide range of cases the litigant himself will be called upon to make some contribution is in itself a deterrent, which should not be disregarded, against the commencing of such actions. The other effective safeguard is contained in Clause 1 (6). It states that legal aid shall not be given unless there are reasonable grounds for taking, defending or being a party to the action and that it can be refused if it appears unreasonable that legal aid should be given in the particular circumstances of the case.

The operation of that safeguard will rest with the local committees. My right hon. and learned Friend said, and rightly said, that they form the critical point of this whole scheme. On them a great responsibility will rest. In my view it is right, having regard to the questions which the local committee will have to determine, that the local committee should consist entirely of lawyers. I think there was great force in the arguments put forward so ably by my hon. Friend the Member for Caernarvon Boroughs (Mr. Price-White); bearing in mind that that committee will have to say whether there are reasonable grounds for bringing the action, it is desirable that it should be confined to professional gentlemen who are accustomed to, and expert in, making decisions upon that point.

I think it is right that the assessment of the means of the individual should not be made by that committee but should be made by the National Assistance Board. If I understood the speech of the hon. Lady the Member for the Exchange Division of Liverpool (Mrs. Braddock) correctly, she was pleased that the National Assistance Board had been brought in to deal with this function. On the Rushcliffe Committee we thought, after careful consideration, that they would do it best, with least errors and least hardship, and I feel sure that this House can rest confident that they will admirably fulfil the functions with which they are now being charged.

Another question which has aroused great discusion today is the question of the courts in which legal aid should be obtainable. The Attorney-General in moving the Second Reading said that tribunals should be excluded from the operation of this Bill, at any rate in the first place, on the ground that there are many tribunals where people are not normally now represented either by a member of the Bar or by a solicitor, and that to include representation at tribunals would overburden the whole scheme and prevent its effective operation. Frankly, I do not share that view. I think that in setting up a scheme of this sort it is wrong to deny assistance to an individual who has to come before a tribunal whose decision as to his conduct may affect not only his character and reputation but also the future of himself and his family. I think there ought to be power to give a man who should be represented before such a tribunal legal assistance where his means are the limits stated in this Bill. I should like to see tribunals included as the Rushcliffe Report recommended, though perhaps it might be advisable to say that with regard to representation at tribunals the certificate should not be given by the local committee but by the area committee. If the area committee and the local committee do their work properly I should not have thought that the inclusion of tribunals would have led to the presence of lawyers at such tribunals more frequently in the future than in the past.

I disagree with the right hon. and learned Gentleman the Attorney-General in his observations with regard to town and country planning inquiries. We have had little experience of those inquiries under the 1947 Act; we are just at the beginning. But I feel sure that we shall find many people of small means gravely affected by the plans made under that Measure. I should like this Bill to contain the power to provide them with some amount of legal assistance—subject, as I say, to sufficient safeguards. I think that we could devise those safeguards.

Mr. Keenan (Liverpool, Kirkdale)

Could the hon. and learned Gentleman give some indication as to where he would draw a line? What limit would he suggest? He is going very wide.

Mr. Manningham-Buller

I was saying that the limit would be the exercise by, say, the area committee of their discretion not to grant a certificate except where it was reasonable for the man to be represented before the tribunal. Under the Clause to which I referred the House they have ample power to refuse a certificate where it would be unreasonable in the circumstances to grant it. I am not impressed by the right hon. and learned Gentleman's argument that we might well get diversity of decision between the local committees. The hon. Member for Maldon, I think, dealt adequately with that argument. We are bound to get a certain amount of diversity of decision between local committees. I believe it is unavoidable. I do not think it matters, but it is a pity—and this is one of my few criticisms of this Measure—that in this respect the Government have departed from the Report of the Rushcliffe Committee.

One other respect in which they have departed from the Rushcliffe Report is by the exclusion of legal aid in cases of libel and slander and breach of promise. I thought that the hon. Lady the Member for the Exchange Division of Liverpool was, indeed, on a good point when she said that at least legal aid ought to be available to the defendant in a defamation action. I think that point is quite unanswerable. But I would go further. While agreeing with the right hon. and learned Gentleman that the vast majority of libel and breach of promise actions are trumpery in character, I would go further and suggest the retention of the power of giving legal assistance in the minority of cases where legal assistance was required.

In my belief, the local committees, if they function properly—and I would trust them to operate properly—should be an adequate safeguard against the bringing of that sort of trumpery action with public money. If it is not thought that the local committees are adequate for that purpose, then I think we could well say that the decision to grant legal aid in libel actions and in breach of promise actions ought not to be made by local committees, but by area committees. That, I think, would be a sufficient safeguard. I did agree with the right hon. and learned Gentleman that in no circumstances should legal aid be given to common informers to bring their actions.

The only departure in this Bill and in the Rushcliffe Report from the principle of the assisted litigant comes in relation to legal aid in the criminal courts. The hon. and learned Member for North Aberdeen (Mr. Hector Hughes) seemed to me to be rather confused by reason of the alteration that this Bill proposes in the existing procedure in criminal courts. It is quite clear that under this Bill legal advice may be obtained in England on any branch of the English law. We did not recommend in our Report any alteration—any very big alteration—of the poor persons' procedure in the criminal courts. We did stress the desirability of bringing to the knowledge of the public the facilities available, and I was somewhat alarmed and distressed to hear the observations of the hon. Member for Erdington (Mr. J. Silverman), who, I regret to see, is no longer in his place, to the effect that the exhortations in our Report of 1945 on that matter have still not been complied with in 1948. It may be that, contrasting the legal aid available in the criminal courts with the legal aid available in the civil courts after this Bill becomes an Act, the comment may be made that aid is too readily available at the State expense in the criminal courts and not sufficiently readily available in the civil courts. Whether that comment will be made or not one does not know, but if it is made, I think the error in favour of aid in the criminal courts—if there has to be an error—is an error on the right side. It may well be that when this scheme comes into operation we shall have to look at the whole procedure of legal aid in criminal courts again.

I now turn to the legal advice provisions of this Bill. I should like to have from the hon. Gentleman who is to reply to the Debate an answer to a few questions which, I think, are, perhaps, a little more than Committee points. Under Clause 6 legal advice is to be provided for members of the Forces. I do not think that the right hon. and learned Gentleman said very much about that Clause. It certainly formed no part of the considerations of the Rushcliffe Committee because it was not within our terms of reference. It is stated in Subsection (3) that in the case of a member of the Forces legal advice shall include advice on the law of any part of the United Kingdom. As a practical matter I should be rather interested to know how that is to be carried out, for there are many Scotsmen who are competent to express opinions on the law of England, but it would not be very easy, I think, to find members of the English Bar who felt themselves in any degree competent for a fee of half a crown or less to express any opinion of any value on the law of Scotland. It gets a little more complicated than that, because when a member of the Forces is overseas, unless regulations otherwise provide, he is entitled to legal advice on the law of any country or territory in which he is serving. I should be rather interested to know how that is to be operated. Does it mean that when troops go out to Malaya, a hasty search has to be made for people who will accompany them and be able to advise not only as to the law in England, Scotland and Northern Ireland, but also as to the law in Malaya? We ought to be told a little about that matter.

It is unfortunate, in this connection, that we should not have had available for our consideration before the Second Reading of this Bill the Report of the Courts Martial Committee. We know that the Secretary of State for War has had that Report in his possession since May this year. This House has not had an opportunity of seeing it yet, and it may well be that when we do see it we may want to adapt this Bill to the content of the Report. This Bill merely provides for legal advice to members of the Forces, but it may be that after we see that Report we may feel that not only should there be legal advice, but perhaps, in some cases, legal aid slightly different from the legal aid that has been provided heretofore to an accused before a court martial. It is unfortunate that so much time has elapsed without our being able to see the content of that Report.

I am glad that in the course of our Debate today it has not been suggested that this Bill is for the benefit of the lawyers; indeed, my hon. and gallant Friend the Member for East Norfolk (Brigadier Medlicott) rather complained that it is a Bill that imposes hardship on lawyers, in that lawyers were only to obtain 85 per cent. of what the taxing master thought was the proper charge for the services they had rendered. The legal profession, both sections of it, have done a great deal in the past to assist poor persons who get into difficulties with the law. That is a matter in which the profession can take, and should take, great pride. When this Bill becomes an Act, they will have sufficient opportunities of serving the community, in particular on the local and area committees, and it is right that in this particular category of work they should be asked to undertake it at less than their normal fees. It is to be noted, if the case is one of assisted litigation, that the unassisted litigant will be liable to pay the full costs, even though counsel and solicitors do not obtain their full fees for their own use, and that the Legal Aid Fund will benefit to the extent of 15 per cent. This Bill should certainly have its Second Reading, and I hope it will reach the Statute Book before the next General Election. Each political party should take pride in the work that has been done to bring this Bill forward. I hope it will go far to meet a long-felt want, and that it will be found to contain adequate safeguards against abuse.

9.25 p.m.

The Under-Secretary of State for the Home Department (Mr. Younger)

I know that my right hon. and learned Friend the Attorney-General, who introduced this Bill, would wish me to begin by thanking hon. Members for the extremely co-operative spirit in which they have received the Bill, no matter in what quarter of the House they sit. There has been a certain amount of criticism, but it has all been helpful. I need not fear contradiction in saying that the Bill as a whole is welcomed by hon. Members. Naturally, with a Bill like this a great many points have been raised which will be more suitably dealt with in Committee, but there are some of considerable substance. In winding up this Debate, I shall try to avoid getting caught up in a mass of technical details, and confine my remarks to the matters of substance.

Perhaps I may begin by saying a few words about Part II of the Bill, which deals with aid in criminal proceedings, because that is the part with which the Department I represent is most directly connected. I do not think I need take up much of the time of the House in discussing that part, because not a great deal has been said about it in the Debate. The Rushcliffe Committee found that the existing system in criminal proceedings was a good deal less unsatisfactory than the system in civil cases, and their recommendations were correspondingly less drastic. I think I am right in saying that, either in this Bill or in some cases by circular issued already from the Home Office, we have substantially met all the recommendations made by the Rushcliffe Committee with regard to criminal proceedings.

The only general criticism of this part of the Bill came from my hon. Friend the Member for Erdington (Mr. J. Silverman). He suggested that even under the Bill aid would be granted far too infrequently in criminal cases. I am not quite sure what provisions he thought would require to be inserted in the Bill in order to deal with the situation. If I remember aright, he said that if it were considered to be in the interest of the public to prosecute a man it was in almost all cases equally in the public interest that a man should be properly defended. I do not think one would dissent from that, and, indeed, in the Clause which will now govern the discretion of the courts for the granting of aid it is substantially covered, because the only criterion they have to consider is whether it is desirable in the interests of justice that there should be legal aid. I do not think one could go further than that, unless one were going to say that automatically in all cases there should be free legal aid. That seems to be an absurdity, because there are a number of cases where legal aid is clearly unnecessary. I doubt whether we could put in a wider phrase in the Bill than we have put in, and I can assure the House that the advice to those who are responsible for exercising discretion will certainly indicate that it is the intention that that aid should be freely granted.

Several hon. Members were anxious that the right to free legal aid should include the right to have such aid even though a man had pleaded guilty and there was nothing remaining to discuss except the plea in mitigation of the sentence. I am authorised to say that this is a matter with which the Government are in full sympathy, and we are very willing to try to find a suitable form of words which would cover that for insertion in the Bill at a later stage.

My hon. Friend the Member for Erdington also suggested that it was necessary to have a much more scientific method for the assessment of need in criminal cases—something comparable to the set-up on the civil side, that is to say, by the National Assistance Board. I think that that would be administratively impossible, because of the time factor. It is essential that there should be quick estimates, and the method must necessarily be much more rough and ready on the criminal side. I am not aware, in cases where legal aid has been refused, that it has in any substantial number of cases been refused because the courts took too strict a view of the means of the applicant. It is probably much more often upon other considerations, related to the issue involved in the case, that they err on the side of strictness, if indeed they do so err.

I think that those are the only substantial points which were raised on the criminal side, except one suggestion from the hon. and learned Member for Chester (Mr. Nield). He was doubtful about whether there was proper provision for the expenses of witnesses. I would point out that that is a matter which must inevitably lie in the discretion of the courts. I have no reason to suppose that that discretion will not be properly exercised. Taxation is always a matter of discretion in this as in other matters, and we have done our best in that respect, in Part II of the Bill, to encourage a more generous assessment of fair costs than has been allowed in the past.

Turning to the other side of the Bill, which has been far and away the most discussed in the Debate, I think everybody has proceeded on the assumption, which we on this side of the House are also prepared to make, that justice should, so far as is possible, be available to all. As the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) said, everybody should be equal before the law. The Bill takes a big step forward towards that ideal.

Where the Bill has been criticised is in those respects where it fails to go all the way. There have been comparisons, made in passing by a number of speakers, with other social services, some of which we are now trying to apply universally, sometimes on the insurance principle and sometimes wholly out of taxation. I think there is a distinction, perhaps a rather fine one, which can be drawn between the type of service which we are discussing today and those services to which I have just referred. In the first place, there is a difference of scale. Although it is true that every member of the public should have the right to call in aid the courts of law in proper cases, it is not the case that nearly so many people have recourse to the law—at any rate, I hope it is not true—as have recourse to doctors or dentists, or to aid for their old age, or to the facilities of the other services. This problem is on a scale which can be suitably dealt with in a different way.

Secondly, the right to go to law can be more easily abused than rights under other social services. On that account, while we do not wish to restrict the availability of the right to go to law in suitable cases, I think it is right that we should have our eye very much on the safeguards which should be imposed upon the use of that right. There should be safeguards for the taxpayer. Hon. Members will have noted the estimate on page 3 of the Financial Memorandum. I do not think it is any secret that that estimate is in some respects almost a guess. None of us can tell for certain what expenditure we are letting ourselves in for as taxpayers in passing this Measure. Therefore, one cannot overlook the interests of the taxpayer in this matter.

Secondly, there is the unassisted opponent of the assisted litigant, whose interests, after all, do require consideration. If the State is to finance a great deal of litigation, we must remember there is always another party to all litigation and that he may have to sustain his defence or his complaint out of his own means; he, too, is a taxpayer. We must keep something of a balance between the assisted and the unassisted taxpayer.

Thirdly—and, perhaps, the most important from a practical point of view—there are the safeguards for the profession. I say that, not in the sense of safeguards for the financial interests of the profession, but simply as regards their ability to cope with the work which is being put upon them. Under the Bill they are taking upon themselves an immense responsibility. Again, it is a responsibility the extent of which none of us here can estimate today. We want to be certain that they are at any rate likely to make a very good shot at what we put upon them in the early months and years.

The principal criticisms which have been made relate to the various safeguards put into the Bill regarding the scope of the service to be provided. The one which has been most frequently mentioned is the limit put upon the income and capital of an applicant. There is, of course, an element of the arbitrary in the choice of the particular figures. In one respect the choice coincides with that of the Rushcliffe Committee; in another respect, that of capital, it is more generous; but I think all must admit that it is to some extent an arbitrarily chosen figure. Indeed, all the safeguards to which I propose to refer are in a sense arbitrary safeguards; they relate to the exclusion of tribunals and to the exclusion of classes of case. We have to impose them because there must be some limitation to the scheme if we are to be able to work it. As my right hon. and learned Friend the Attorney-General said in opening the Debate, however, they are not really limitations which can be individually defended on logical grounds or on grounds of principle. They are, therefore, very hard to argue about effectively, but the hard fact remains that, whether the arguments are attractive or not, some line must be drawn. At this stage, at any rate, there must be some limitation to the service. This is something from which we cannot escape.

There is really only one choice before us. Either we must have an upper limit of the kind proposed in the Bill or we must decide to have a full national service without any limit. That is something which none of us, I imagine, at the moment is prepared to face. I am not quite sure whose was the estimate which has been referred to—it appeared, I believe, in "The Times"—of a possible 12 million potential clients for the scheme. If that proves to be so, a very considerable proportion of the whole population will in any case fall within the scheme, even with the restricted limits laid down from the point of view of means.

My hon. Friend the Member for Maldon (Mr. Driberg) raised the fairly well-known case of Miss Arnot Robertson, in which he talked in terms of £8,000 worth of costs. We all know that such cases exist, but they could hardly be brought within the scheme regardless of means unless we had a complete public service covering all types of cases. His suggestion—if, indeed, he was suggesting that a case of that kind should be brought within the scope of the Bill—went a good deal further than anything contemplated by the Rushcliffe Committee or anything which the Government feel they can contemplate at present.

Mr. Driberg

I was suggesting that it is eminently in the public interest that a case of that kind should be fought all the way through, if necessary.

Mr. Younger

I do not want to dispute that, but I think it raises an issue outside the scope of this Bill, one which they face in some other countries, namely, where there is an appeal from the judgment in the court of first instance the practice that the State considers it its responsibility to look after the litigants. That seems to be the wider principle raised in the Arnot Robertson case.

These figures have been criticised as taking no account of the cost of living. That is not quite fair. If hon. Members look at Clause 4 (1), they will see, first, that the figure of income is that of disposable income—that is to say, income disposable after a good many deductions have been taken into account—and that such deductions may be prescribed in respect of the maintenance of dependants, interest on loans, income tax, rates, rent and other matters for which the person in question must or reasonably may provide. In other words, if the cost of most of the necessities of life were to go up very considerably, the deductions would presumably go up with them, or it may be so prescribed by regulation. Therefore, I think it is not fair to say that these figures, unlike the figures which were in the old legislation, take no account of the cost of living.

Before leaving the question of means, there is the point of who should assess means. It was suggested by one or two hon. Members that the National Assistance Board was not the most appropriate body, and they suggested that this should be done by some of the committees set up under the Bill. Apart from the fact that I very much doubt whether those of the legal profession responsible for running the scheme would be willing to undertake such work, I think it is clear that the only existing body with experience enabling it to assess means in a more or less scientific manner is the National Assistance Board. I share the view of my hon. Friend the Member for the Exchange Division of Liverpool (Mrs. Braddock), and I think her views were echoed by the hon. and learned Member for Daventry (Mr. Manningham-Buller), that we should get away from any idea that the National Assistance Board is not an appropriate body to deal with these matters. After all, the National Assistance Act was passed largely with a view to getting rid of the old Poor Law and away from any idea of the taint of old unhappy things, and if the National Assistance Board is considered good enough for assessing means for one purpose, I see no reason why it should not be considered equally good for assessing means in this instance.

Passing to the other safeguards, we have the excluded tribunals and excluded types of action. Those points have been fairly fully covered and I doubt whether there is much I can add. I have with me a list of at least 66 different tribunals where it is known that legal representation is allowed and I know that list is not exhaustive. One must face the fact that the sheer burden of work falling upon those who take part in this system, whether counsel or solicitors, would he very considerably increased if the scheme were immediately extended to all those tribunals.

Mr. Manningham-Buller

Assuming certificates for legal aid were given?

Mr. Younger

It would very much increase the difficulties of the committees if they had to adopt a restrictive policy. We would sooner give them a more or less restricted field to operate in to begin with. The Attorney-General gave the figures of existing counsel and solicitors believed now to be in practice and if hon. Members look at the figures in HANSARD tomorrow they will come to the conclusion that those figures would be barely adequate to give a full service over the field which we are proposing to cover. It is a strictly practical matter; it is not one of principle. One cannot deny that there may be matters of great importance just as complicated coming before tribunals as even before the High Court of Justice. But the line has to he drawn somewhere, and if that has to be done it is not unreasonable to draw it where we have drawn it. We are putting a big new burden on the free aid system by bringing in the county court, which is a very big commitment, the whole legal advice service, to be staffed by part-time and whole-time solicitors, and bringing in the area and local committees. We have every intention of expanding when we can, but I think that in the case of the excluded tribunals we are fully justified in having at the moment limited the scope as we have done.

The excluded types of action are admittedly a more difficult matter. In particular, the House has obviously been most interested in the case of defamation. Many Members have asked why that could not be left to the discretion of committees. It could, but my right hon. and learned Friend pointed out in his opening remarks that defamation is a type of action which lends itself to somewhat frivolous initiation. There can be many cases in which there is a perfectly good cause of action and in which some damages would no doubt be obtained, but as a matter of common sense it would be much better if the whole thing had been forgotten. At the moment the deterrent of costs is one of the reasons why so many of those cases are not brought.

If we were to ask the committees to reject applications for certificates on a large scale, not on the grounds of the applicant's means and not on the grounds that he is not considered to have a good cause of action but on the ground that in the opinion of the committee, although he has a good case, yet it is not worth while, it would greatly increase their difficulties. I know that the Bill covers that point, I think in Clause I, (6), which states: A person … may also be refused legal aid if it appears unreasonable that he should receive it in the particular circumstances of the case. I agree that that is a necessary safeguard. It is a judgment which the committees will in any case have to make, but I think that one fairly substantial ground for excluding defamation initially is that it would lend itself to the type of application in which the committee would be asked to make that difficult decision. We should be greatly adding to their burdens were we to include that type of case. I repeat that it is difficult to justify the exclusion of defamation as a matter of principle. It is simply a question of where the line is to be drawn. We hope that before long we shall be able to rub out the line and draw it in a different place if our administration proves capable of handling the work put upon it as a beginning.

I beg hon. Members, in considering all these various restrictions upon the scope of the scheme, to look at it as it stands and ask themselves whether they think that the Law Society, and to a lesser extent the Bar Council, and the profession generally, would, if they were asked, think that under this Bill they will have their hands full or not. Is it not the case that with the Bill as it stands every member of the legal profession and the resources of the profession will initially be stretched to the utmost? I think that would rule out any substantial increase in the scope of the Bill.

I have been asked about the advice system. The point which has been most frequently raised has been the criticism that only oral advice is to be given. That has been a matter of rather anxious consideration. One of the main reasons why it was thought difficult to extend it to the writing of letters, the conduct of negotiations, etc., was that if that were to be done not only would the time of the interviewing solicitors be taken up to a much greater extent but more solicitors would be needed and much more time would be taken in visits to the various advice centres. It would also be necessary to provide them with a staff, and the administrative burden of the service would be considerably increased. I would like, though I know this is not a complete answer, to call the attention of the House to the provisions in Clause 1 (5) which deal, not with advice, but with legal aid, and to draw attention to the fact that under the legal aid provisions it is possible to give representation by a solicitor: and so far as necessary by counsel (including all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or to bring to an end any proceedings). Therefore, if there were any possible action in contemplation I think it is very likely that the legal adviser, under the legal advice scheme, could assist the man in preparing an application for legal aid, and in very many cases he would be covered by legal aid. No doubt there is a "no man's land" in between the advice provisions and the aid provisions which is not fully covered. I am wondering whether one might hope, and I throw this out as a possibility, that that would be the sort of relatively small loophole in the scheme which might be covered by co-operation with some voluntary society in respect of whose co-operation hon. Members have expressed the hope that it will not come to an end, and that there will be a tie-up between the voluntary bodies and the new scheme. I think that that is one possible solution.

A good many things have been said about the very complicated and technical question of the liability of an aided litigant for the costs of his successful opponent. My right hon. and learned Friend dealt to some extent with that in his opening remarks. I do not wish to get involved in detail, and I think this is a matter which is essentially suitable for discussion in Committee. I think that there must be some compromise in this matter. We do not want an assisted litigant, or potential litigant, to be too much deterred by the thought that even if he is aided in regard to his own costs, he may eventually find he is likely to be ruined by having to pay the costs of his opponent. Some provision must be made against that and that provision is made in Clause 2. He has only to pay what is reasonable. I think that would be interpreted as to what is reasonable, having regard, not only to his means, but also to the means of his opponent. There must be some deterrent, because one has to bear in mind that although his case is being conducted for him, his consent will be necessary for a compromise or settlement, and it is right that he should have some good reason occasionally for agreeing to settle the matter out of court without fighting it to the bitter end just because his own costs are being paid.

Last of all the safeguards against an abuse of this system, and the most important one, is the sifting process carried on by the area and local committees. That is not a thing on which I need say any more tonight. One hon. Member said these committees were the key to the whole system, and I am sure that that is absolutely correct. It is a very great responsibility which they are taking on, and they have a very difficult task.

Some hon. Members have suggested that the matter should not be left too much in the hands of lawyers and that there should be what is called consumer representation. It is proposed that there should be consumer representation on the Advisory Committee, which is provided for under Clause 12. But I think the work of the area and local committees is essentially work of a legal nature and requires legal knowledge. There is a good deal in the point made by the hon. and learned Member for Daventry (Mr. Manningham-Buller), the hon. Member for Caernarvon Boroughs (Mr. Price-White) and others, that if the confidential relationship is to be preserved between the persons who are dealing with these matters and the applicant, then it is necessary that they should be professional men.

Mr. Emrys Roberts

There are, of course, other professional men besides lawyers who are accustomed to preserving confidences.

Mr. Younger

I think they would be covered by my remark that the working of these committees will require knowledge of the courts and of the substance of legal issues.

I was asked to justify the provision that there should be only 85 per cent. of the profit costs and all counsels' fees paid on a taxation, except in the county court. One reason one might put forward is that the whole of the administration of this system is left almost entirely to the legal profession. The acceptance of this deduction from their normal remuneration is some guarantee to the public that the legal profession is operating this scheme, and intends to operate it, in a disinterested manner, and that it will not have, so to speak, any vested interest in pushing litigation under the free aid system at the expense of the State simply for its own sake. The profession has shown itself willing to make this contribution to the scheme which is, incidentally, a much lesser one than it has always made voluntarily in the past.

Mr. Manningham-Buller

The hon. Gentleman spoke of a lesser contribution than has been made in the past. It may be lesser in amount of the sacrifice of the individual fee, but probably the sacrifice of time on the whole will be greater.

Mr. Younger

I agree that in the aggregate this service may be so much greater that the total contribution made by the profession may be larger, but I was thinking that so many members of the profession had actually done all this work for nothing in the past. It is, at any rate, a great improvement of their position from that point of view.

In conclusion, I do not claim any more than anyone else has claimed that this is a perfect Measure. It is really impossible to get a perfect solution of this problem so long as there are considerable inequalities of income and resources between different citizens and so long as the cost of litigation remains high. I doubt myself whether the cost of litigation can ever be very low for the reason which was given that, after all, it is a matter involving the services of highly trained people. It is not easy to arrive at the truth. It is not a thing that we can expect ever to do very cheaply, though we hope that there may be some improvement. We believe that this Bill is a very great advance and that it is at least as much as the legal profession can take on at the moment.

Litigation on a vast scale is not, of course, good in itself. That justifies the rather cautious approach we are taking to this considerable extension of the possibilities of litigation. I should like to pay tribute in my closing words to the numerous voluntary societies and to the profession who have carried on for so many years in very difficult circumstances, not to the entire satisfaction of the litigating public but nevertheless with very considerable success. I know that they will welcome this much larger scale provision just as much as do the public. I thank them in advance for the co-operation which one hopes that the voluntary societies will give under the new scheme. I commend this Bill to the House.