§ 1.20 p.m.
§ Mr. Eric Fletcher (Islington, East)
I rise to pursue a subject which, Mr. Deputy-Speaker, we were discussing earlier this morning on the Third Reading of the County Courts Bill. I am very glad to think that in the less trammelled atmosphere of an Adjournment debate it will be possible to elaborate some of the matters which would not have been technically in order on that Third Reading. I should like to say that I am very grateful to the Solicitor-General for coming here to listen to this debate and to reply to the observations which will be made.
I do not think that anyone would doubt —and I should be the first to pay tribute to—the great advantages derived by a great many people of poor means from the Legal Aid Scheme since it was introduced by the Labour Government about eight or nine years ago. Having said that, one must realise that no scheme of that kind is perfect, and that during the years a number of blemishes, a number of abuses—in fact, a number of injustices—have come to light.
I rather regret that, judging from the replies that have been given from time to time by Government spokesmen in this House, neither of the Law Officers of the Crown really seems to be alive to the abuses and injustices that have become apparent in the administration of the Legal Aid Scheme in the High Court. Therefore, now that Parliament is about to pass the County Courts Bill, which is to give increased jurisdiction to those courts and also to introduce a scheme of legal aid in them, it seems most appropriate that the Government should take the opportunity of overhauling the whole Scheme in the light of the experience of the last few years.
We do not know, at the moment, precisely how the Scheme is to be operated in the county courts. It is, therefore, very important that those of us who have had some experience of seeing how it is administered in the High Court should give the Government the benefit of that experience, and hope that, when it is extended to the county courts, the blemishes that have been revealed will not be repeated. We do not even know 2292 whether or not there is to be only one scheme applicable both to the High Court and to the county courts.
During the debate on the Second Reading of the County Courts Bill, the Solicitor-General agreed with me that it would be most undesirable for the legal aid committees to decide at the outset that, for example, a litigant who is to be legally aided in an action for damages for personal injuries should bring it in the High Court or in the county court. That is a very important decision for the litigant, and it should be taken by his legal advisers after he has his certificate for legal aid. If that is to be the system then, presumably, there will not be two different categories of applicants for legal aid.
Putting it in a nutshell, I would say that the greatest tragedy that has resulted from some legally-aided cases in the last few years is that those who have a legal aid certificate entitling them to take proceedings in, say, the divorce court for a divorce or for some other remedy in the High Court, have often found that they have had to pay more money than if they had not been legally aided at all but had consulted a solicitor in the ordinary way.
I have had a number of letters from people who have had that experience, and my hon. Friends have had similar experiences. That is a very serious criticism. The object of legal aid was to enable people who had not adequate means to be suppored by the State and so have the same opportunities for obtaining redress for injury as are open to litigants of greater affluence.
It works in this way. Under the regulations, once a legal aid committee decides that a person is entitled to a certificate, another committee has to decide what his contribution is to be. There is a complicated scale, but the general effect is very often to make the applicant pay a larger sum of money than he can afford. It is very often a sum of money that he can raise only by a good deal of self-deprivation and hardship. In a great many cases the amount exacted from him —very often by instalments—is the maximum permitted under the scales, because it is assumed that the costs will amount to that kind of figure.
It is notorious that the cost of getting a divorce today varies considerably 2293 from one case to another, but in the ordinary case—where there is no complication about getting witnesses from long distances—it is not, outside the Legal Aid Scheme, a very expensive matter. I know of a number of people who, in ordinary cases have been able to get a divorce at a cost considerably less than £50. Under the Scheme it is frequently assumed that the cost will be more—at the outset one does not know what the cost will be—and if, under the regulations the unfortunate person who gets a certificate is liable for the costs then a larger sum than necessary is exacted.
I have had, not one or two isolated cases but a number of cases of people complaining that they cannot afford to keep up the instalments required from them. Sometimes they have had to abandon the case; sometimes they have had to apply, successfully or unsuccessfully, to the committee for reconsideration of their circumstances.
§ Mr. Fletcher
And sometimes, as my hon. Friend says, have had the certificate withdrawn.
I do not want it to be thought that I am criticising those who administer, and do a great deal of valuable work on, the legal aid committees, but one of the defects in the system is the degree of rigidity which is imposed upon them. It may be they are hide-bound by the regulations, or it may be that they consider themselves to be far more hide-bound than they are. I have had cases in which the Attorney-General has apologised for the way in which the Act has been administered and for the amounts that have been exacted. In my own experience, there are a number of cases in which, if there is any doubt, the legal aid committee exact too much rather than too little from the litigant. They assume that the costs of litigation will be more than they actually prove to be.
Outside legal aid there is the greatest possible measure of flexibility. A solicitor in private practice can attune the costs of proceedings to the means of his client—and very often does. My experience, and I am sure it is that of all my hon. Friends, is that before legal aid was ever introduced there were a great many solicitors 2294 who, in the interests of humanity, conducted divorce and other cases at a bare minimum of cost.
It is much more difficult to get solicitors to do that now or to get counsel to co-operate, because members of the profession say, quite naturally, "We need not go on doing what we have been doing for years because of the legal aid system." But the system does not work in that way. The legal aid system often makes the unfortunate person who gets a legal aid certificate pay far more money than he would have had to pay if he had not got legal aid.
Therefore, I urge the Government, before bringing this County Courts Bill into operation and before applying legal aid to the county courts, to have the whole administration of the legal aid system as we have known it hitherto overhauled. I urge them to make quite sure, that the scales of assessment are very drastically reduced in the case not only of those who will inevitably bring their actions to the county court but even to those who, if they have an option to take their cases to the county court or to the High Court, decide to bring their cases into the county court.
As was realised during the debate on the County Courts Bill, that Measure will not provide the blessing that we all hope it will of enabling people to get their injuries and hardships redressed, unless there is a very humane and sympathetic administration of the legal aid system when it is administered in the county courts.
I realise that in an Adjournment debate of this kind one cannot call for any specific pronouncements from the Government on precise details of the scheme when it is introduced, but we hope that as a result of this debate these matters will be very fully considered before legal aid is introduced into the county courts.
§ 1.31 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I do not want to detain the House for more than a few minutes in supporting the appeal which my hon. Friend the Member for Islington, East (Mr. E. Fletcher) has made for a thorough reconstruction and overhaul not of the Legal Aid and Advice Act but of the spirit in which it is administered. I will not go over any of the ground that he has 2295 covered, but I should like to say that I endorse virtually every word he said.
There is a rigidity, and particularly a financial rigidity, which, in many cases, works very great injustice indeed. It is not more than a guess, and it might turn out on investigation to be wholly unsound, but my own impression is that, except in divorce, the Legal Aid Scheme actually makes an annual profit. The cases in which legal aid is given are so carefuly vetted in advance as almost to insure the fund against loss, so that the risk of the legal aid fund having to make payments at all in all that range of cases that fall outside the divorce court must really be a very slight risk—a far less risk, I should have thought, than most solicitors are compelled to take in running their own practices.
Of course, that is not true in the divorce court. I suppose that a great many cases—I do not know whether they are the majority or not—are, in fact, brought in the divorce court where it is rare for costs to be recovered, and I suppose that any financial deficit in the legal aid fund at the end of the year would be largely attributable to the costs incurred on the divorce side.
It is not the authority that grants the certificate that fixes the financial contribution. I suppose it is this virtual impossibility that the fund will recover anything, however successful the legally-aided litigant may be in the divorce court, which leads to the fixing of contributions in very many cases quite out of proportion to the applicant's practical possibility of paying. The attitude is this: the man ought to be able to pay so much, and if we spread it over a long enough period he will be able to pay it. But the man finds that he cannot do it, with the best will in the world. I am sure that that financial side of the matter really needs looking at again.
I want to say a word about another aspect of this matter. I hope it will not be thought that one is attacking anybody or being unfair or unduly cynical. One has to remember that this Legal Aid Scheme effects a virtual revolution in our legal administration—as big a legal revolution as was effected by the National Health Service Act in the case of sick people. In both cases Parliament felt that poverty should be no bar to skilled professional assistance.
2296 There are a great many old-fashioned people in the world. Not all of them are elderly people. There are a great many old-fashioned younger people, too, people who find it difficult to attune their thinking and activities to new ideas. We all know that there was great resistance, at any rate, in part, from the medical profession when the National Health Service Act was under discussion. The Legal Aid and Advice Act was run voluntarily and with sympathetic co-operation by the legal profession itself, and the scheme that Parliament ultimately adopted was largely the scheme which had been devised by the profession long before.
Nevertheless, there are a great many people in the profession—solicitors, barristers and judges at all levels—who still look down their noses at legally-aided litigants. I do not suppose it is really social snobbery. It is probably more a habit of mind induced by long practice in a profession which is as individualist as the doctors, and accustomed to other ways. But if we are to transfer large numbers of cases to the county courts as it is now proposed to do, if a large number of those cases are legally-aided cases, and if we are not, as we are assured we are not, to put the County Courts Bill into operation until legal aid has been applied to the county court, then we have to take very great care to see that we are not establishing different systems of law for different classes of citizens.
The man who comes into a court legally aided has had his right to be legally aided thoroughly investigated before the legal aid certificate is granted, and it is nobody's business to assume that because he is a legally aided person he has a less right in the court or that his case can be examined with less care or with more cantankerous criticism than if he were a normal litigant; otherwise, we shall have a first-class and second-class litigant, first-class and second-class law, and one kind of law for people who can pay for their litigation out of their own pockets and another standard of justice for those who cannot.
I do not say that there is a difference, but I say that when we are extending legal aid to the county court and taking a great many cases out of the High Court into the county court, we run very great risk of that happening unless great care is taken.
2297 I would remind the Solicitor-General —although I am sure it is not necessary —that in the County Courts Bill there is power to increase the number of county court judges. I hope that when the Lord Chancellor exercises that power, and selects the judges to be appointed, he will take very great care indeed to see that those who are appointed to administer this new kind of jurisdiction are fully in sympathy with its objects and purposes. I should regard that as essential to the safe working of the Scheme.
What we are doing is, I am sure, right. I am sure that, properly administered and properly run, this is a beneficial scheme. But it is beneficial only if we do it with our eyes open to the dangers and the inadequacies—to put it no higher than that—which have shown themselves in the present working of the system; and only if we do it with a determination to see that justice shall be equal between citizen and citizen, regardless of their financial backing. It was to achieve precisely that result that Parliament embarked upon this legal revolution.
§ 1.42 p.m.
§ Mr. Barnett Janner (Leicester, North-West)
I am glad that we have an opportunity once more to raise this extremely important matter of the extension of legal aid. I was sorry that it appeared to be out of order to discuss it this morning, when we were discussing a Measure which intended to bring a great number of cases into the county courts. It was considered not to be in order on Third Reading——
Mr. Deputy-Speaker (Sir Rhys Hopkin-Morris)
We cannot discuss the Bill. The House has disposed of that.
§ Mr. Janner
I bow to your Ruling, Mr. Deputy-Speaker, and merely say that I am sorry that what we are about to say now could not have been said then.
§ Mr. Janner
I have raised this subject on a number of occasions and I think the time has come when the Government should tell us what their intentions are. Time after time we have asked that the provisions of legal aid should be reexamined and extended. There is ample scope in the Act for a re-examination, 2298 but we have been told to wait until such time as the Government see fit to move.
In the meantime, it has become a public scandal that a large number of people who are entitled to receive legal assistance in accordance with the Act have, in fact, been excluded from seeking advice and have even been placed in a desperate position over cases which they were legitimately entitled to bring before the court—legitimately entitled to do so because, before legal aid was granted, theprima facie merits of their cases were fully examined. As a result of that examination it was clear that there was justification for their cases being brought before the court. In those circumstances they should have been granted the facilities which the Act intended to provide.
May I quote what was said when the Legal Aid and Advice Bill was introduced? The then Attorney-General said:…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."— [OFFICIAL REPORT, 15th December, 1948; Vol. 459, c. 1221.]It is nonsense for anyone to suggest that that is what is happening under the legal aid system today. On the contrary, with the best intentions in the world on the part of those who have had to administer the provisions, nothing of the sort is happening. I, too, would express my highest regard and respect for those who have the duty of administering these provisions. They ought to be thanked for the services they have rendered. Unfortunately, they have been kept within such limitations by the regulations that it has been literally impossible for them to carry out the intentions of the Act.
It is not a question of a lack of sympathetic approach. There has been a most sympathetic approach. The fact is that the regulations have not allowed them, in spite of their sympathetic approach, to do what they should have done. They were kept within such limits, for example, in the payment of contributions that the position became difficult for those people who wanted justice done to them according to their rights.
2299 I will give the House a few illustrations. In my own experience I have come across a case in which the disposable income of a family was £292 a year but they were called to make a contribution of £68. That is a public scandal. It is well known that in the constituency so ably represented by my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) people will not and cannot go to the courts, in spite of the fact that they have serious grievances, because the amount they are called upon to contribute is so high that it does not pay them to seek justice. These people have put up to a considerable extent within injustice.
I know another case of a family in the same area—two decent working-class people who have great difficulty in making ends meet. They have two children whom they send to school. Such people do their very best to keep the family together, but in this case they were called upon to pay £89. That is from my own experience and shows how serious the position is. I repeat—it is a public scandal and something must be done rapidly to put it right.
The Solicitor-General, I know, has a very sympathetic outlook on this and many other matters. I have had the experience of working with him on committees times after time and I have found that not only does he exercise the ability which he possesses but he also approaches the subject in a reasonable and sympathetic manner. I appeal to him to see that this problem is dealt with in a proper way. Why now, particularly? It is late in the day as it is. We have had the Housing Repairs and Rents Act, in connection with which hundreds of people should have had legal advice. They should have been in a position to be assisted. In consequence of the regulations they have lost the opportunity because in many cases they entered agreements as they could not go to the courts. In nearly the whole of the provisions of that Act——
I understand from the argument of the hon. Member that he is criticising the provisions of the Act.
§ Mr. Janner
With the greatest respect, Mr. Deputy-Speaker, I am not doing that. What I am saying is that legal aid should 2300 have been available in the county courts to enable people to take their cases there. Now we have come to the stage at which we have passed the new Bill without being told what the legal aid is to be, what provisions there are to be, how they are to be put into effect, and what measure of control there is to be in these matters.
I must remind the hon. Member that debate on the Adjournment is limited to criticism of the Administration.
§ Mr. Janner
Certainly, Mr. Deputy-Speaker, that is what I am doing. With the greatest respect, I am asking that the provisions of the new Measure shall be humane instead of rigid as in the present system, which does not fulfil the purpose for which it was intended.
Why has something not been done to bring in a regulation to enable a person who, having passed through the county court and the Court of Appeal twice legally aided and those courts have held in his favour and then is taken to the House of Lords to have an opportunity of being legally aided? That position is ridiculous. It is a grave injustice. It is just flaunting the ideas which were intended to prevail in consequence of this Act.
I ask the Solicitor-General to say that it is not only unfair that the provisions of the Act have not been put into force in that respect yet, but that he will immediately see to it that a man shall not be denied justice in consequence of the fact that he is not able to pay for that justice to be afforded him. I speak with immediate knowledge of a case in which a person cannot go to the House of Lords although the other side can do so. The litigant has to prove his purpose before he can get assistance of any kind. It is not only wrong, it is humiliating. It is not a British idea, nor consistent with what the former Attorney-General said when he introduced this Measure.
Much could be said about this matter. I felt it was putting the cart before the horse to introduce a Measure like the County Courts Bill. I think the Government have failed in their duty. They know now how these Acts have worked, or failed to work, and they know how the position should be remedied. They now know that advice should be given to litigants free of charge. That should have 2301 been attended to before any Bill was introduced, whether the Bill were good, bad, or indifferent. I think that a good Measure can be introduced and possibly has been introduced, but, without legal and being properly dealt with in the manner I have suggested, we shall find that the ordinary man in the street is unable to get justice done in his case.
One thing which is not understood by the Government. and which, I am sorry to say, is not always understood on this side of the House either, is that the litigant who is poor and has to have recourse either to the county court or magistrates' court feels his position just as keenly and feels that his case is just as important as anyone with a case in the highest court of the realm. He is entitled to feel that because £1,000 or £10,000 to a man in the High Court may not mean anything like what £10, £15 or £20 means to a man who has to go to the other courts. If we look at things from that point of view we can wait no longer for reform. Not a day should be lost before this matter is dealt with. I hope that the Solicitor-General will go to his perhaps more hard-hearted colleague, the Attorney-General, and try to see that justice is done—and done rapidly.
§ 1.52 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I am sure that the House is indebted to my hon. Friend the Member for Islington, East (Mr. E. Fletcher) for raising a very important matter. It is most appropriate that this discussion should take place on the day on which we have given a Third Reading to the County Courts Bill.
I understand that about one-third of the work now dealt with by the High Court will be transferred to county courts. It would obviously be absurd to consider such a revolutionary change unless the Legal Aid Scheme were implemented very fully with reference to county court litigation. I understand that a married man with two children, earning an average national wage, is considered to be liable for a sum of £112 in costs before he can obtain legal aid. From a practical point of view, that is the position today. When one remembers that costs in the county court are about £50, if the regulations remain as they are it will be absurd to talk about giving legal aid to any person 2302 in the county court. Clearly, a drastic change is required.
I certainly agree with criticisms which have been made about the administration of the Legal Aid Scheme to date. I have come across many cases of constituents who have protested strongly about the contributions they are called upon to make. I have had information from solicitor friends and others that in an undefended divorce case the costs are in the region of £50, and sometimes less. Yet, in my experience there have been cases of constituents who have been asked to contribute something in the region of £75, and possibly more. That appears absurd. I do not know what possible justification there can be for that sort of thing. Obviously, we did not initiate the Scheme to arrange that in undefended divorce and similar cases persons should be called upon to pay considerably larger sums. Clearly, there is a case for looking very carefully into the administration of these regulations.
I have found that although sympathetic consideration is given in the majority of cases, very often, not only with regard to the amount of contribution but the way in which it has to be paid by instalments, what appears to be far too high an assessment is made. They are matters of vital importance.
The matter is appropriately discussed now and is given emphasis by the fact that we are to have this revolutionary change in the transfer of cases to the county court. That does not alter the fact that as it is now administered the present system requires the most careful overhauling. Undoubtedly, it causes great hardship in many cases.
I understand that the usual delay in the granting of a legal aid certificate is about two months. Again and again, in discussions on the County Courts Bill and otherwise, we have heard talk about the county court being a poor man's court. We have heard it said that justice ought to be provided expeditiously. But how are cases to be dealt with expeditiously if the litigant has to wait for a minimum of two months, and often considerably longer, before a legal aid certificate can be granted? Here, too, is a matter for further investigation.
I turn next to another point with which I am seriously concerned in the administration of the Legal Aid and Advice Act. 2303 Hon. Members will notice that it is called the "Legal Aid and Advice Act." Obviously, it was intended that importance would be attached to the latter part of that title; yet after a number of years of administration by means of the regulations, we have had no indication whatever of the date when there will be implementation of the provisions of Section 7 of that Act.
The question of legal advice was one of the most important things dealt with in that Act. If a person has a complaint, something for which he thinks he has a legal remedy or has suffered an injustice, is it not obvious that if he went to an advice bureau and was able to get advice as to his legal rights, one of two things would happen. In a bad case, he could be persuaded not to proceed with any question of litigation. In a good case, he could quickly be put on the road to having his rights exercised and obtaining his remedy. It seems to me extraordinary that no attempt has yet been made to bring into being the provisions in connection with the provision of legal advice.
When one thinks of the average man of small means who may have, as he thinks, a claim under the Housing Repairs and Rents Act, under the Rent Acts, or under the Landlord and Tenant Act, or perhaps in connection with a small debt or claim, what a boon it would be if he could go to an advice bureau and get advice.
One important change has been made as the result of the Legal Aid and Advice Act. It is worth while emphasising that before that Act came into existence, there were many advice bureaux and many instances of legal practitioners giving assistance in various parts of the country. These centres depended upon charity, so to speak, upon assistance given to them by various societies or by borough and county councils. At present, the London County Council pays a large sum of money in connection with the giving of legal advice. Unfortunately, however, since the provisions of the Legal Aid and Advice Act came into being, a number of those advice bureaux have closed down. I think that the provision today for legal advice is less than it was before the Legal Aid and Advice Act came into being. This, surely, is very wrong.
In the passing of that Act we envisaged the building up of advice bureaux where 2304 for a moderate sum the humble citizen could get advice. Indeed, it is to the advantage of the State that he should get that advice, for this would assist in preventing unnecessary litigation; and yet nothing has been done about it. The strongest point I would desire to make is that it is utterly wrong that there should be this delay in providing for the implementation of the provisions under Section 7 of the Legal Aid and Advice Act. I hope that before long the Government will see that regulations are made to enable people to obtain that necessary advice.
§ 2.6 p.m.
§ Lieut.-Colonel Marcus Lipton (Brixton)
The difficulties to which preceding speakers have referred in connection with the Legal Aid Scheme arise from the one cause that the Legal Aid Scheme has been put into effect piecemeal instead of being operated immediately after the Legal Aid and Advice Act was passed. We therefore have the curious anomaly that in a quite large category of cases it is cheaper for a litigant not to take advantage of the Legal Aid Scheme.
My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) has referred in particular to one category of case: namely, undefended divorce cases. When constituents in humble circumstances come to me and say that they are likely to be involved as petitioners in undefended divorce cases or they want to commence proceedings, I advise them first not to resort to the legal aid machinery but, if it is not a complicated case, to make their own arrangements with a suitable solicitor. In such cases, it may well be that the costs involved would not amount to more than, say, £50, whereas if they apply under the Legal Aid Scheme the expenditure involved might be very much larger. Many people find themselves in that position. It is surely ironical that a scheme that was introduced for the benefit of poor people should in practice penalise them. That is one aspect to which I hope the Solicitor-General will direct some of his remarks.
The other difficulty in connection with the scheme arises from the participation of the National Assistance Board in the assessment of the contribution to be 2305 made. I make no complaint about the persons engaged in the work of the National Assistance Board who are asked to investigate and make assessment in accordance with the present regulations. The difficulties arise from the fact that the National Assistance Board is perhaps not the most suitable body for dealing with this class of case. It may not be easy to suggest a practical alternative, but when an official of the National Assistance Board who for the greater part of his time deals with people who are destitute and more or less on the starvation line has to assess the contributions to be made by someone earning, perhaps, £10 or £15 a week, the tendency is—or so it appears to me—for the assessment to be much greater than it ought to be.
I have met constituents who have had to embark upon litigation on my advice because it was the only way that they could secure justice against anonymous slum landlords. After the assessment had been made by the committee sitting at Clement's Inn, I was horrified in one or two cases to discover, not only the very large sums that were required of these very poor people, but the excessively high weekly or monthly contributions that they were expected to make. That is only part of the difficulty, because they represent the middle sector so to speak of the problem of these particular constituents.
Before they could make the first move in establishing their rights, they had to go to the county court. In those circumstances, they had to make their own arrangements. It was only by the generosity of various people concerned in the matter that they were able to institute the first proceedings, which showed that they were right, because in the later stages, and on two occasions in the Court of Appeal, it was held that their particular plea was absolutely justified. Now the same point is to be tested in the House of Lords. As soon as it reaches that stage, then again the Legal Aid Scheme ceases to operate and these unfortunate citizens find themselves in this very difficult position.
On the subject of advice, that of course is an aspect of the scheme which ought to have been put into effect long ago. My hon. and learned Friend the Member for Stoke Newington and Hackney, North has refered to the diminution as a result of the Legal Aid and Advice Act in the facilities for legal advice particularly in 2306 London. What happened in my area, where the need was especially great because of the existence and operation of slum landlords. The local authority—the Metropolitan borough council—instituted a legal advice bureau. When the district auditor saw that certain expenditure had been incurred in connection with the legal advice bureau, he said "That expenditure is illegal and it must be terminated." It was only by making some kind of alternative arrangement through a citizens' advice bureau—purely a technical formality in this particular case—that the Metropolitan Borough Council of Lambeth was able to continue to incur the same expenditure in the provision of legal advice that hitherto had been regarded as illegal by the district auditor.
There we have just one or two aspects of the difficulties as they affect ordinary people. I hope that what has been said in the course of this valuable Adjournment debate will help to persuade the Government to take the speediest possible action to implement the whole Scheme under conditions which will help instead of penalise poor people.
§ 2.12 p.m.
§ Mr. Charles Doughty (Surrey, East)
The Legal Aid and Advice Act, when it was first introduced, was most certainly a very revolutionary change in this country. To have introduced its provisions fully would undoubtedly have resulted in trying to do too much, with the result that it might well have been a failure. I do not want to introduce a political note into this debate today, but I was glad to note that the Conservative Party was the only one to announce in its manifesto in the recent Election the intention further to extend the provisions of the Act.
So far as the administration of the Legal Aid and Advice Act is concerned, I should perhaps declare an interest, as I sit regularly on those committees which grant or refuse certificates. It is not a very enviable task with the information available to one upon those occasions. Some people rather forget that the words are "legal aid" and not "free legal assistance." The actual assessment of the capabilities of people to pay is made by the National Assistance Board, by those who are presumed to be fully capable of inquiring into what are the capital assets, the income and the expen- 2307 diture of those people. It would be quite impossible for a legal aid committee to do so. That information, which has been carefully gone into, is before the committee when it decides.
§ Mr. Janner
Does not the hon. and learned Gentleman agree that it is not really a question of the Assistance Board's intervention? The point is that the rules on which their decisions are based are such that they are not good enough, and they should be altered.
§ Mr. Doughty
They have to inquire into what is a person's disposable income and what his capital is, if any. It is a question of figures. On the whole, I think that they arrive at very fair results.
§ Mr. S. Silverman
Some of us who have to deal directly with these cases in the first instance are, perhaps, in a better position to form an opinion as to the actual results, and I think the hon. and learned Gentleman will find that it is a common experience of solicitors who act in these cases that the assessments are in fact too high in a great many of them.
§ Mr. Doughty
I agree that people complain of the assessment, but that is quite another thing, because they may well assume that they are to get something nearer free legal aid.
§ Mr. Silverman
I can assure the hon. and learned Gentleman that he is quite mistaken. In a great many cases——
The purpose of an intervention is not to carry on a debate by making a second speech, which is, in fact, what is being done, but merely to clear up an ambiguity.
§ Mr. Silverman
I hope, Mr. Deputy-Speaker, that you will not think it presumptious on my part when I say that it is a little difficult to know the purpose of the intervention until it has been made.
I think that I understood the purpose of the intervention. That was made fairly clear.
§ Mr. Silverman
I was trying to clear up a point on which I thought there was misunderstanding between the hon. and 2308 learned Gentleman and myself. The point to which I wanted to draw his attention in my previous intervention was that the amount charged is very often in excess of what a solicitor would have charged to a person who was not legally aided.
§ Mr. Doughty
That is the point to which I was coming. The legal aid committee is in no way responsible for the figure ascertained by the National Assistance Board and the committee makes its own assessment. It may well be that in an undefended divorce case, and in other cases, the figure is higher than if the man had gone to a solicitor and put his money down.
§ Mr. E. Fletcher
Will not the hon. and learned Gentleman agree that very often that amount is higher than the cost of the case may be?
§ Mr. Doughty
That is exactly what I was saying. It goes to prove the point that I was about to come to. Many of those who do apply for legal aid are not those who require legal aid, because they are the people who want to obtain free assistance in litigation for divorce or whatever it may be. When the matter is gone into fully by the National Assistance Board and the legal aid committee it is found that they really do not require the assistance given by the Act at all.
§ Mr. Weitzman
Is not the very fact that a person is granted legal aid acknowledgement that he is entitled to legal aid?
§ Mr. Doughty
Yes, he gets legal aid, but the assistance is often at a rate that he does not require, although it may be that the same person making a legal aid application in a defended divorce suit would require it.
There is another point which has been overlooked by all hon. Members, I think, who have taken part in the debate so far, and it is this. The person who receives legal aid—though not, of course, in an undefended divorce case—is, in the litigation, in a very privileged position, for if he should be unsuccessful in his case he is not put in the position of an unaided person who so fails, and that may be an advantage that should be taken into consideration as well.
I am not going to say that a system like this, brought in fairly recently, and extensively used by many people, is one 2309 which should not be looked at from time to time. Of course it should, but I hope that when it is looked at certain principles will be borne in mind, namely, first, that this system is for legal aid but not free legal aid, and secondly, that there is provision for advice.
I beg to differ from those hon. Members who have asked for the setting up of advice bureaux. I pay tribute to those which exist today, which are provided by various organisations, but I do not believe that advice bureaux will be able to give the assistance to the litigant that the solicitor can who is visited by his client for advice. I know, because I have assisted in granting such certificates. Under the Act, we frequently undertake a measure of inquiry and report through solicitors, who can make a full inquiry, if the committee cannot, and who report back to the committee what they find through such inquiry. That is a very useful provision and one that is very frequently used, and if it were extended litigants would be able to obtain the advice they require from solicitors.
However, when we consider whether this scheme should be extended to the House of Lords one becomes a little careful. [HON. MEMBERS: "Why?"] Because the expenses of the scheme have to be borne in mind when we are considering all the factors.
§ Mr. Janner
If a person is successful all through the litigation, to the stage when it may go to the House of Lords, how can the hon. and learned Gentleman, consistently with his view, say that that litigant should not be given aid to continue with the case?
§ Mr. Doughty
I should like to know how many such cases there have been. I cannot think of any, speaking from memory.
§ Mr. Doughty
There is a procedure to be gone through, and I find it hard to imagine that the number of such cases, is other than extremely small.
§ Mr. Silverman
The hon. and learned Gentleman will bear in mind what I am sure he has overlooked for the moment, that a case cannot go to the House of Lords at all except with leave, and that one cannot get the leave unless one has 2310 already established that the point to be litigated in the House of Lords is one of great public importance.
§ Mr. Doughty
That was exactly the consideration I had in mind when I said that I wondered how many cases there had been, or were likely to be. One does not know, because the obtaining of leave is not automatic, but in many cases, as the hon. Gentleman knows, is very difficult.
§ Mr. Silverman
A litigant gets the leave, but the hon. and learned Gentleman says he may not take advantage of it.
§ Mr. Doughty
I hope I have not induced anyone to think so by having given way as often as I have. One would think from what hon. Gentlemen have said that I was not, on the question of principle, in agreement with them. It was on questions of detail only that I was discussing the matter, and on those questions it could well be discussed yet more.
I was pointing out the difficulties of those who administer the scheme, and I would ask hon. Members to remember that the public purse is not unlimited. We are now, very rightly, to extend the scheme to the county courts, and, of course, the administration will have to be speeded up, so that the certificates can be given in time.
§ 2.25 p.m.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I am sure that this is a most useful Adjournment debate. It relates to a great public service which, no doubt like other public services, is not entirely free from imperfections. Hoping for a long life myself, I doubt whether I shall ever see it entirely free from imperfection.
§ The Solicitor-General
No. My remark was based on experience of human affairs and human fallibility, and among other aspects of human fallibility there is this one. The House, and particularly the hon. Member for Islington, East (Mr. E. Fletcher), have been good enough to indicate that they really did not think it would be possible for me here and now to make specific 2311 pronouncements about new matters at such short notice as I have had of this Adjournment debate. I can give this assurance to the hon. Members who have taken part in it, that all that has been said today will be fully and carefully considered.
I am glad to notice that without exception hon. Members have paid tribute to the work of those who work this Scheme, because it is hard and difficult work, and it is generously undertaken, and occupies time.
I wish once again to repudiate the accusation, made by the hon. Member for Leicester, North-West (Mr. Janner), that the Government are guilty of doing something wrong because they have not yet told the House what the full legal aid in the county courts is to be. This House has itself entrusted to schemes prepared by the Law Society the working of the Act, and the hon. Member knows —at least, I suspect he knows; certainly the rest of the House knows—that the Law Society is working at this Scheme. No doubt it will pay attention to what the hon. Member and other hon. Members have said. I do not, standing at this Box, have any official information whatsoever as to what its scheme is, and I told the hon. Gentleman this a short time ago, and I cannot hope to improve on that statement yet.
§ Mr. Janner
Does the hon. and learned Gentleman not know that many reports have come out from the Law Society for some years indicating how matters should be improved? But nothing has been done by the Government.
§ The Solicitor-General
The hon. Member is not following the point on which I am. I shall come to the reports in a minute. I am simply discussing at the moment the question of what will be the form of the scheme of legal aid in the county courts. Will it be, for instance, one scheme not separate from the other scheme? Or two schemes, separate schemes? That is all. I am only saying that the Law Society is working at its scheme and that I have no official information whatsoever as to what its workings are in that respect. I cannot be blamed for not telling the House what the scheme shall be. I hope I have made that point fairly clear and shall not have to tell the hon. Member the same thing 2312 again, because he does not really have to hear things said twice.
I suppose that when the House passed the 1947 Act it knew very well that this vast new scheme, involving the setting up of a new body of administration and new expenditure, was to be established only by stages. I would say, in answer to the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton), who complained that the Act had been brought into force piecemeal, that that was clearly recognised by the House when it passed the Act, because let us remember the structure of it. It was made so that Sections, and what we call bundles of Sections, could be brought into operation at different appointed days. That was clearly right, and any Government are faced with a decision as to priorities in bringing it stage by stage into force.
Our predecessors started with the High Court legal aid, and we, in accordance with the recommendations of the Lord Chancellor's advisory committee on the working of the scheme, move as the next stage to legal aid in the county courts.
I cannot speculate as to what would be the very next stage to be introduced, but I rather think, subject to some views expressed by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) that the House would probably take the view that the next stage to be introduced should be the legal advice part of the Act. Certainly we have declared in the political document referred to that, as soon as we have this next stage in the county court carried out, we will give consideration to the introduction of the legal advice part of the Scheme. But, until the administration of the county court part of the Scheme is in operation, and quite apart from the cost, it would be unreasonable to ask the Law Society to set up a vast new organisation for legal advice at the same time. It is a question of allocating priorities in bringing into operation various sections of the Act.
I think that there are two points about contributions—excessive contributions, as hon. Members urge—which are now demanded under the existing Scheme. There are the statutory regulations which govern the duties of the National Assistance Board in assessing the disposable income, and so forth, of the applicants, and then there is the question of the local committee estimating the probable cost of the litigation.
2313 In the first matter, namely the regulations, I am hampered by the rules of order, but I hope that, without outrage, I might say that we are following a paragraph which I quoted so recently that I think I need not quote again. It is in the Report of the Law Society Advisory Committee on the working of the Scheme that was published in November last. Following a view there expressed, the Government have gone on the lines that what resources are available should be directed first of all to extending the Act into other fields of application before a change in the rate of contribution is dealt with. We have adopted that method of priority advised as we are to that end by the Lord Chancellor's Advisory Committee, which does not consist by any means exclusively of lawyers. As the House knows, persons with great experience in welfare work and so forth sit on that Committee.
If hon. Members know of any individual cases in which it seems that the existing regulations have been harshly applied and they cannot by a more short-circuited method deal with the matter, I should be very grateful if they would let me or my right hon. and learned Friend the Attorney-General know about it. We could at least invite the National Assistance Board, which is always willing to look again, to review the assessment which it has made in accordance with the regulations. I hope that hon. Members will do that, because no one would wish that the regulations which the House has laid down should not be as humanely enforced as they possibly can be. I do not think that any hon. Member suggested that those who seek to enforce the regulations for the purpose of their calculations are not actuated by the best possible motives all the time, though in rare cases they make mistakes and would be glad of an opportunity to put them right.
As to the other aspect, namely the estimate of probable cost, hon. Members who are concerned with these matters no doubt know the position, but I am not sure that it is publicly known. It might be of advantage to say what it is. Under the statutes and regulations, the applicant for legal aid has to have his appropriate maximum contribution assessed by the National Assistance Board. Then the local legal aid committee has to make an estimate of the probable cost of the litigation ahead. If that estimate is more 2314 than the maximum contribution assessed, the committee will fix the contribution required at the maximum. If it is less, the committee will fix the contribution at the probable cost in their estimate.
It is said that this estimate is too rigid, but I am sure that the House will appreciate that there must be some degree of uniformity, if it can be possibly attained, in its working. In relation to divorce cases, which have been chosen as instances where it is not working well, the Law. Society issued notes for the guidance of area and local committees with the object of assisting them on points which gave difficulty and of securing some uniformity.
§ The Solicitor-General
Yes. I am about to quote from the first Report of the Law Society on the operation and finance of Part I of the Act. The notes are in Appendix V to that document.
§ Mr. E. Fletcher
Does not the Solicitor-General agree that in this context there is no great merit in uniformity, because that makes for rigidity and we want flexibility? Uniformity tends to make for a large contribution from a great many people, in many cases the maximum.
§ The Solicitor-General
I am sure that the hon. Member will allow me to develop the point. I did not realise that the notes to which I have referred were new to some members of his profession. I should have thought that, with a large number of local committees all over the country, it was desirable to have some degree of uniformity in their initial assessment of the cost, for instance, of an undefended matrimonial cause.
The notes provide broad hints to the committees. Paragraph 10 of the document contains some hints on the fixing of actual contributions in matrimonial causes. The notes invite the local committee to assume, unless the contrary appears, that the case will be undefended and that there will be no complications in its conduct. That is the first stage. On that assumption they suggest that there are right figures, which vary with the nature of the undefended cause. For instance, the figure in a case of desertion, where service by advertisement is not required, is given as probably £55. In 2315 medical nullity—an unfortunate phrase which just means calling doctors—the figure suggested is £75, and in all other matrimonial causes. £65.
How were these broad estimates arrived at? I do not suppose that one could possibly compete with the price which could be obtained, in a scheme of this kind, from some solicitors. I use the word "price", I hope without offence. A skilled solicitor who is able to streamline his office in relation to matrimonial causes no doubt could sometimes do a case more cheaply than at these clearly average figures. But these figures were arrived at by the Law Society after consultation with the Principal Registrar of the Probate, Divorce and Admiralty Division, a pretty good authority, and with the experience of the Law Society itself, whose members ought to know better than anybody what these cases cost.
§ Mr. Silverman
I do not think that many of us would quarrel very much with those figures, but it makes it all the more difficult to understand why in so many cases the contribution that is fixed is higher than those figures.
§ The Solicitor-General
I should get into trouble with the hon. Member for Islington, East if I suggested some rigidity, but these figures are given in the guidance notes for local committees to fix the amount in a case without complications. They have to make the best estimate they can of the cost. Of course, this may be changed. The applicant might be afterwards required to make a larger contribution because the case might become defended or some other complication arise; but in the first instance that is the procedure.
Of course, every charge the applicant is required to pay is taxed by the officers of the court as between solicitor and client, and when all that is done 15 per cent. is knocked off from profit costs and counsels' fees to cut it down to the charge made under the legal aid scheme.
I am sorry to see that the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) has gone, because I wanted to deal with the point he raised about the delay in granting certificates. I would have told him, as I will now tell him in his absence, that this is being urgently considered by the 2316 Law Society, which is eager to effect an improvement in this direction as far as it can.
I was going to say I was astonished, but that is altogether too young an expression in this House. We have become proof against astonishment, but I rather regret that the hon. Member for Nelson and Colne (Mr. S. Silverman) suggested that any judge in this country would qualify the quality of the justice which he administered according to the means of the litigant.
§ The Solicitor-General
I have no reason to believe that anything of the kind has ever existed, and I can certainly give him the assurance that no Lord Chancellor of any Government in this country would ever recommend the appointment of anyone to a judicial office, high or low, whose mentality showed the slightest sign of doing anything of the kind.
§ Mr. Silverman
I hope the Solicitor-General, if he was about to finish his remarks, will give me the opportunity of clearing up the position. He put the proposition I made in very much wider terms than I had done, and I certainly would not have dreamt of going anything like as far as the extent to which he attributed my remarks. I hope he will look at what I did say, because he will find that there are many people who are of that opinion. I should like to give him just this one instance. Quite recently in the Divorce Court I heard a learned commissioner say, "Is there nothing that can prevent this man from washing his dirty linen in public at the public expense?" The man was a legally-aided respondent to the petition of his wife, and the wife had an admitted income of £4,000 a year.
§ The Solicitor-General
I am glad I gave the opportunity for that intervention so that the hon. Gentleman could make it clear that he never intended to make the allegation which I have, if he did not make it, most unfortunately put into his mouth. I am very glad to hear that he entirely joins with me in asserting the belief that no judge in this country ever would allow the quality of justice which he administered to be affected in any way by the means or absence of means of the litigant before him.
2317 There is just one other thing the House might like to look at, and that is to see, what is the extent to which people are kept away from litigating by the current terms of legal aid. I want to draw the attention of the House to that before I sit down, because the House will be aware that in its last report the Advisory Committee drew attention to this fact. My quotation is from paragraph 15 of the latest Report of the Advisory Committee, page 20. It refers to the fact that—the amount asked for in contribution does not appear to prevent people from accepting the terms on which legal aid is offered to any greater extent now than it did at the inception of the Scheme.The House might be interested to know what the figures indicate in that field. Of course, the applicant is told before he accepts the offer of legal aid what the maximum contribution could be, at all events as far as it is known, because future events might alter it. Some people do refuse the offer on those terms, and, of course, those who refuse comprise all cases where for some reason or another they have decided not to litigate, as, for instance, where the claim is settled between the application and the announcement of the terms on which the parties can have legal aid.
But the percentages for calendar years of the refusals of offers of legal aid made after the application are these. In 1952, 14.5 per cent.; in 1953, 14.8 per cent.; and in 1954, 15.3 per cent. So it does not look, as far as we can get any guidance from those figures, that there is any doubt about the rightness of what the Advisory Committee said, namely, that the amount asked for in contributions is now having no materially greater effect on the assisted litigant than it did at the inception of the Scheme.
§ The Solicitor-General
No, it cannot be assumed that all those declining are because they cannot afford it. Indeed, I have made that plain. I cannot tell how many in the percentages refuse on the ground that they cannot afford their con- 2318 tributions and how many refusals are due to other causes. Those are the percentages, and they seem to remain substantially the same.
§ Mr. Janner
Before the hon. and learned Gentleman sits down, he might like to consider this example. I am sure quite a number of people who wish to seek legal aid do without when they are told before making the application what the contribution might possibly be. Would he be good enough to say whether he does or does not agree that the rules that prevail at the present—I am sure he has not quite grasped this—controlling the decision of the Assistance Board, when it decides how much an individual should contribute, are the real cause of the trouble which prevent people from taking advantage of this service?
§ The Solicitor-General
I hope the hon. Gentleman will forgive me if I refer to the rules of order and say that I do not think it would be in order to discuss an amendment of the statutory regulations. I am seeking to give an answer to the debate without infringing the rules of order, that is, to deal with the Advisory Committee's advice under the regulations as they are now.
As to the hon. Member's other point about the Assistance Board's assessment, it is possible that those who make their own guess of the Board's assessment may well be frightening people off, but I cannot possibly tell him anything further about that, and I can only give the House the facts as they rest on these percentages. I hope the House will take the view that those figures mean there has been no substantial change in the numbers deflected from litigation under this Scheme since it was first brought into force.
With these scattered observations, I hope I have covered the ground as far as I can. I give the assurance to all hon. Members that all has been said in the course of this debate will be earnestly considered by those who are concerned with the working of the Scheme.
§ Question put and agreed to.
§ Adjourned accordingly at ten minutes to Three o'clock.