HC Deb 06 December 1960 vol 631 cc1205-17

10.11 p.m.

Sir Lynn Ungoed-Thomas (Leicester, North-East)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Legal Aid (Assessment of Resources) Regulations, 1960 (S.I., 1960, No. 1471), dated 16th August 1960, a copy of which was laid before this House on 19th August, in the last Session of Parliament, be annulled.

Mr. Speaker

I understand that it would be convenient to hon. Members if this and the following Prayer, which relates to Scotland, were discussed together. If need be, they must be divided against separately.

Miss Margaret Herbison (Lanarkshire, North)

If these two Prayers are to be taken together, it seems to me that Scottish Members will be placed in a difficulty, because I see no one on the Treasury Bench who is a Scottish legal expert.

Mr. Speaker

In that case, they must be taken separately. I am obliged to the hon. Lady.

Sir L. Ungoed-Thomas

As the Scottish language involves difficulties, quite apart from those of the English language which we have in this Statutory Instrument, perhaps it is as well that they should be taken separately, Mr. Speaker.

This Prayer is purely a probing Prayer, and all we want to know is precisely what these Regulations involve, what amendments are involved in them, and what is the policy behind the amendments. All we have at the moment is a very short Explanatory Note. We have emphasised before, in debates here, the importance, in connection with these Regulations, of having readily available for solicitors and laymen who work the legal aid provisions perfectly clear statements in a readily understandable and accessible form so that they can easily see what are the effects of any Regulations that are brought in.

To find out the effect of these Regulations, one has to compare them with the former Regulations, the amendments to the former Regulations and then the amendments produced in these Regulations, involving each person who wishes to find out the precise effect of these Regulations in a very considerable amount of rather intricate work.

We have pressed before for clearer statements of the precise effects of amendments. Until the Department responsible for Regulations of this kind produce amendments in readily understandable form, so that the effect of the amendments can easily be seen, we shall continue to pray against each set of amendments. I have said that before and I repeat it now, and it is for that reason that we are somewhat unnecessarily—since this could have been avoided if the proper steps had been taken—praying against the Regulations. I hope that as a result, at any rate in HANSARD, we shall have a clear and concise statement of the effect of the Regulations.

The Explanatory Note says: These Regulations consolidate, with amendments, the Legal Aid (Assessment of Resources) Regulations, 1950, and subsequent amending Regulations. It does not say precisely what those amendments are, but it adds: They include amended provisions for the assessment of resources where applications for legal aid are made by or on behalf of children … and it then mentions specific cases.

There is no indication, even in general terms, of whether the amendments are more or less beneficial to the applicants, or whether they make the tests for income and capital resources more or less stringent. When we consider the first of the amended provisions which are specifically mentioned, namely, those relating to applications for legal aid by or on behalf of children, we find, in Regulation 5: Where an application for a certificate is made by or on behalf of an infant who is under the upper limit of compulsory school age, there may, in addition to the resources of the infant, be taken into account the disposable income and disposable capital of such other person or persons, being one or more of the following persons, as the Board, having regard to all the circumstances, including the age and resources of the infant, may decide. … It then refers to those who are liable under the National Assistance Act, 1948, to maintain the infant, and certain persons having the care and control of the infant. I gather that that is a fairly stringent provision which is not in the favour of, but against, the interest of the infant.

Am I correct in my interpretation of that Regulation? If I am, why has that course been taken? What is the policy behind Regulation 5? If we have such an important departure, not just in detail on enumeration of means or anything of that sort, but in policy, why do we not have a more precise reference to it in the Explanatory Note, specifically drawing attention to the fact that the resources of infants in these cases are to be more stringently considered than they were before?

What we want is a detailed statement of the effect of each of the amendments and, particularly in the case of infants and the Regulation I have mentioned, we would like to have a statement not only as to the effect of the Amendment, but about what induced the Government to embark upon what appears to be a departure in policy towards the assessment of the resources of infants.

I hope that those are matters which can easily be disposed of by the Solicitor-General, but they are matters which could easily have been disposed of by the Explanatory Note itself, or by an accompanying document making the position absolutely clear. It is only because of the absence of such clarification that we have been driven on this, as on other occasions, to pray against Legal Aid and Advice Regulations.

10.20 p.m.

The Solicitor-General (Sir Jocelyn Simon)

I respond gladly and willingly to the invitation of the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas). I agree with him that the Explanatory Note is a short one; but I am bound to say that it follows very much, and is considerably longer than, the Explanatory Note that was appended to the 1950 Regulations, which are the original Regulations, and it draws the attention of hon. Members—or that is its intention—to where the law is amended.

This is a sphere where it is rather difficult to strike the right balance in an Explanatory Note, because the only alternative is to go into great detail and to over-burden the Statutory Instrument. I appreciate that this Note is on the short side, and I will certainly bear in mind what the hon. and learned Gentleman said and do my best to repair any deficiencies tonight.

He asked me particularly to deal with the position of infant applicants. In this respect, the Regulations are not made more stringent. They are varied in the interest and in favour of the infant applicant. I think it fair to say that that is the general effect of these Regulations. It is to introduce a new flexibility that a great number of improvements have been made in favour of the applicants. In only two cases is the test made more stringent, and that in a very minor respect.

If hon. Members would be good enough to look at the 1950 Regulations, they will see that in Regulation 5 the test laid down there for an application made by an infant was that … there may, in addition to the resources of the infant, be taken into account to an extent not exceeding that provided in paragraph (4) of this regulation the disposable income and disposable capital … of various other classes of persons.

The first class is any person who is liable to maintain the infant under the National Assistance Act. Thus Regulation 5 (1, i)—I hope this is not an inconvenient way of dealing with it—of the Regulations which are the subject of the Motion, is no more than a re-enactment of the 1950 provision.

As the hon. and learned Gentleman well knows, the persons referred to there are the father and mother, including the putative father, when adjudged, and the mother of an illegitimate child. I realise that I have used a term which is not used in Scotland, but my right hon. and learned Friend the Lord Advocate will no doubt be dealing with the translations in due course.

The second 1950 class which had to be regarded was any person having the care and control of the infant not being a person having such care and control by reason of any contract or for some temporary purpose. There again Regulation 5 (1, ii) of the 1960 Regulations is only a re-enactment.

In addition, there was a third class in 1950, namely, a person who usually contributes substantially to the infant's maintenance, being a parent, step-parent, or near relative of the infant. That class of contributor has disappeared, so there one has an improvement in favour of the applicant.

The matter does not by any means rest there, because the 1950 Regulations applied to all dependent children, whether below or above school-leaving age. In the case of children above school-leaving age, that resulted in considerable anomalies, and, in some cases, in considerable hardship. I can give the House an example. There were two cases which came to note at about the same time. The first one was that of a senior civil servant whose son was under 21 and at a university. He had done his National Service and worked as a dustman during the vacation. He therefore had an income of his own and was not a dependent child within the meaning of the 1950 Regulations. There was therefore no contribution payable in respect of him. At about the same time there came another case where the son of a skilled artisan, who had a very much lower income, was at a grammar school prior to going to university. The father there had to make a substantial contribution towards his son's assessment.

The House will appreciate that the infants in both these cases had law suits pending. The father in the second case had to make a substantial contribution, although, as I say, his income was very much lower than that of the father in the first case. That is obviously indefensible, and what the new Regulations have done is to limit the contribution by the classes of persons in Regulation 5 (1, i) and (1, ii)—of course with the mother and father being the most important—to the case of an infant who is under the upper limit of compulsory school age. Therefore, in both types of the cases that I have mentioned, where there is a child who is above school age the parent is not required to be a contributor under Regulation 5. We feel that that is a right step to take, otherwise one is penalising those parents who are already making sacrifices for their children.

I hope that with that explanation the House will see that in two respects, particularly in the latter one where we have taken out the liability of the parents to contribute towards the costs of infants who are above school age, there is a substantial improvement in favour of the applicant.

It might be convenient to draw attention now—

Sir L. Ungoed-Thomas

Before the Solicitor-General leaves that point, is it correct that under Regulation 5 there is no limit to the disposable income of the adult whose income is taken into account? Has there been any alteration in that respect? Will the hon. and learned Gentleman also he good enough to make some observations on Regulation 5 (2)?

The Solicitor-General

I am not quite sure that I understand the hon. and learned Gentleman's first question. Do I understand him to mean: Is the parent, under Regulation 5 (1, i) bound to contribute, whatever his means are?

Sir L. Ungoed-Thomas

Yes, there is no limit put on the contribution or on the means test.

The Solicitor-General

If the hon. and learned Gentleman will turn to the first page, to the definitions, he will see: 'the person concerned' means the person whose disposable income and disposable capital are to be determined or the person whose resources are to be treated as the resources of any other person, as the case may require. Therefore, that phrase attracts the various allowances and limits that are set out in the First and Second Schedules. Subject to that, of course, one is thrown back on the provisions of the Statute. For example, if we get, under Regulation 5 (1, 1), the father of an infant applicant whose capital and income are above the upper income and capital limits of the Act, then the child himself is outside the Act. I think that is the point that the hon. and learned Gentleman was making. But that is, of course, subject to the various disregards and allowances.

Sir L. Ungoed-Thomas

I appreciate the explanation. The difficulty I feel about that is that "the person concerned," on the definition of which the hon. and learned Gentleman relied for his explanation, is not a phrase which is used in Regulation 5 at all. Therefore, I feel some difficulty in saying that one can rely on the definition of a "person concerned" to produce the limitation in Regulation 5.

The substance of the point that I want clarified is whether, in fact, there has been any difference at all in the test of the adult person's contribution under Regulation 5 as compared with the corresponding Regulation before these amending Regulations were brought in.

The Solicitor-General

No, not under Regulation 5 itself, but all the income limits and the capital limits have been adjusted either in the 1959 Regulations or in these Regulations in favour of the applicant. I hope I have made that clear. In the case under Regulation 5 (1, i) the father's income is aggregated with the child's income and the father's capital with the child's capital, and those two aggregates are then subject to the test of the main Act but subject to the various allowances, disregards, etc., which are set out in the Schedule.

Sir L. Ungoed-Thomas

That is the position immediately before these Regulations?

The Solicitor-General

Immediately before. The only changes in the Regulations are the various changes in the disregards, to which I shall refer shortly, such as improvements from the point of view of the ownership of a house, insurance policies and so on.

The hon. and learned Gentleman asked me also to deal with Regulation 5 (1, ii). That, as I say, is no more than a re-enactment of the 1950 Regulations, and it covers, I imagine, such people as grandparents who are looking after orphan grandchildren, children the marriage of whose parents has broken up, children whose parents are abroad, children living permanently with an aunt, uncle and so on. It expressly excludes persons having care and control by reason of any contract or for some temporary purpose, as in the case of a child staying with somebody while the parents are abroad, say, for a month or so, or, for example, the case of the schoolmaster or schoolmistress.

I do not know whether it would be convenient if I said something about some of the other respects in which the Regulations effect substantial improvement. The first is in respect of deductions for tax. The effect of the 1950 arrangement was that in certain cases the Board computed the liability for Income Tax on the income of an applicant for legal aid after deducting employment expenses such as travelling expenses. Those were a permissible deduction under the 1950 Regulations for determining the rate of tax.

What the 1960 Assessment of Resources Regulations aim at doing is arriving at the net amount—the disposable amount—in the hands of the applicant. Therefore, the administrators, who operate these matters realistically, consider what is left after payment of tax. Among other things, however, they say that to earn one's income one may have to incur expenses in travelling to and from work, and that is taken into account under these Regulations, although it is not a matter that is taken into account by the Inland Revenue. Travelling expenses to work cannot be claimed as a permissible deduction for tax. The result of that was that under the 1950 Regulations the Board was allowing too small an amount of tax in its computation of disposable income, and we have taken the opportunity of putting that right.

Another important respect in which a change has been made is with regard to the resources of a spouse. Regulation 4 (2) (i) of the 1950 Regulations provides that The resources of the spouse of the person concerned shall not be treated as his or her resources if— (i) the proceedings in respect of which the application for a certificate is made are a matrimonial cause. Paragraphs (ii) and (iii) do not matter for the moment.

The corresponding Regulation of the 1960 Regulations is also Regulation 4 (2) (i) which states: The resources of the spouse of the person concerned shall not be treated as his or her resources if:— (i) the spouse has a contrary interest in the dispute in respect of which application for a certificate is made. This is one respect in which we have tightened up the Regulation against the applicant at the same time as, in another respect, making it more favourable.

As I have pointed out, the 1950 Regulations provided that there should not be aggregation where the proceedings for which legal aid was sought were a matrimonial cause, but there may be other suits between spouses which are not matrimonial. With increasing frequency nowadays we get running-down actions, actions for negligence in driving, brought by a wife against her husband and by a husband against his wife. Obviously, if that is a proper matter to be litigated, it should attract legal aid, but it was not covered by the 1950 Regulations. In respect of that, therefore, the 1960 Regulations are more favourable.

But at the same time the 1950 Regulations did not take into account the fact that the litigation between spouses, even in a matrimonial cause, might be after one of the spouses had remarried. For example, after the wife had remarried she might want to engage in a dispute about the custody of the child of the first marriage, she having married a man well able to finance the litigation himself. So we have provided for that in Regulation 4 (2, i). It states: The resources of the spouse of the person concerned shall not be treated as his or her resources if the spouse has a contrary interest in the dispute in respect of which the application for a certificate is made. In other words, the spouse in this case, being the second husband, as the Regulation is redrawn would have his resources aggregated with those of the wife.

I hope that I am not taking up too much time, but the hon. and learned Gentleman invited me to explain the somewhat detailed respects in which these Regulations depart from the previous Regulations. First, I will deal with the allowances against income. The 1950 Regulations—that is Paragraph 7 of Part II of the First Schedule—authorised the Board to make allowances only in respect of certain specified relationships. The 1960 Regulations—and that is Paragraph 10 of the First Schedule—remove that restriction and therefore are very much more realistic. They enable the Board to take account of the applicant's actual commitments to various relatives, and, what is more, they improve the allowances.

Paragraph 5 (ii) of Part 2 of the First Schedule of the 1950 Regulations made allowances in favour of persons paying maintenance to a separated wife. Paragraph 11 of the First Schedule of the 1960 Regulations extends this provision to persons paying maintenance for a former spouse or child or a relative even if they are living outside the household, so, again, it is looking at the reality of the charges on the applicant's income. I think that that is the main thing to which I should draw the attention of the House on the allowances against income.

Perhaps I ought also to mention that paragraph 10 (1, b) provides for allowances in the case of a dependent child or a dependent relative, and those are now related to the National Assistance scale. Therefore, a child attracts an allowance of between £50 and £70, according to age, and the dependent relative attracts about the same allowance as the wife—I think it is about £95 if over the age of 21.

I turn to the rules for computing disposable capital. The first improvement and amendment is in relation to the value of the house. It may be easiest if I go straight to the 1960 Regulations and then remind the House of what was in the 1950 Regulations. The capital allowances are dealt with in the Second Schedule, and Paragraph 9 (2) states: There shall be taken into account one half of the amount by which the value of the dwellinghouse, after deducting therefrom the amount of any encumbrance charged thereon, exceeds £3,000. That compares with £2,000 in the 1950 Regulations. The proviso is new: . . the Board shall not take into account any sum in respect of the value of the dwellinghouse if it appears to the Board to be inequitable or impracticable to do so. That again introduces a new flexibility in favour of the applicant and takes cognizance of the fact that in times of credit stringency it may be virtually impossible for the owner of the dwellinghouse to raise a mortgage on it to pay for litigation.

The second matter to which perhaps I ought to refer is in respect of insurance policies. In the proviso to Paragraph 11 of the Second Schedule there is a double improvement. The first is that the figure of £75, which was formerly the amount allowed in respect of insurance policies, is raised to £125; and, secondly, it is only the excess over £125 which is brought into computation, whereas formerly if the insurance policies were over £75 the whole amount was brought in.

I now turn to Paragraph 14 of the Second Schedule, which deals with the case Where the person concerned has living with him one or more of the following persons, namely:—

  1. (a) a spouse whose resources are required to be treated as his for the purpose of these Regulations;
  2. (b) a dependent child;
  3. (c) a dependent relative wholly or partly maintained by him;"
Then the Paragraph provides for a scale of allowances increasing according to the number of persons who are living with the person concerned. That is an improvement on the 1950 Regulations, which imposed a limit of £75 on the amount which might be allowed by the Board in respect of relatives. Quite obviously, if there is a large household of relatives it can be a considerable drain on the resources of the person concerned, and we felt it right to make these more generous allowances.

I think I ought to draw particular attention to Paragraph 15 because it is there in response to a plea made by the hon. and learned Member when we were debating the Legal Aid Act, 1960. It is to meet the case he put where there is a person with a very low income. He pointed out, it seemed to me quite rightly and cogently, that it is very hard on such a person to require him to exhaust the whole of what little capital he has put by. I hope that meets the sort of case the hon. and learned Member had in mind. It provides that Where the disposable income of the person concerned is less than £375, there shall be an allowance of a sum equal to the difference between the amount of the disposable income and £375. I will explain how that would work out. Let us suppose that a person's disposable income is calculated at less than £375—that is, the lower limit of disposable income, £250, plus the lower limit of disposable capital, £125. The amount by which his disposable income falls below £375 is allowed against his capital. If a person has a disposable income of £200, for example, he would have an allowance against capital under paragraph 15 of £175.

I hope that I have dealt with the principal points, although there are a number of minor matters and a considerable number of what the House I am sure will agree are drafting improvements. We have considerably compressed the Regulations. If there is any other matter with which the hon. and learned Gentleman would like me to deal, I shall do my best to deal with it.

10.52 p.m.

Sir L. Ungoed-Thomas

May I thank the Solicitor-General for his very full and courteous reply. We are glad to know that some of the arguments which were put on another occasion, although strongly opposed on that occasion, have now been accepted and embodied in the Regulations.

The Solicitor-General

I was noncommittal on that occasion but certainly not antagonistic.

Sir L. Ungoed-Thomas

He and I are both fully aware of the length of time which it takes for valid arguments to penetrate some people. We are very pleased that these arguments have had some effect on the Government, even after some months.

What the Solicitor-General said does not mollify our attitude about this Explanatory Note or the Explanatory Note which has been given on previous occasions. It would have been very helpful, for instance, if in this Explanatory Note the general statement had been made that all the amendments were beneficial to the applicant except in certain specified instances, and most of the beneficial amendments could have been stated extremely shortly. For example, in dealing with Regulation No. 5, which is the main Regulation to which attention has been directed, it could have been stated very briefly in the Explanatory Note that this had a beneficial effect in that it imposes the upper limit of the compulsory school age and prevents the one section of adults from coming within the provisions to which the Solicitor-General referred. That would dispose of Regulation No. 5. But as things stand in the Explanatory Note, it is extremely complicated and it requires a great deal of work to find out the meaning.

I suggest for the Solicitor-General's consideration that when making an Explanatory Note of this kind it would be adequate to give the general effect, showing where the amendments are beneficial and where they are made more stringent, in general terms; but, at the same time, for those who are working the Regulations, he should give the kind of detailed explanation which he gave this evening, giving examples, for which we are obliged. I press upon him again the desirability of having both general and detailed explanations—a general explanation for those of us who have to consider the subject in the House and a detailed explanation for those who have to work the Regulations. I hope that this submission tonight, which has been made previously to the Government, will at last penetrate their mind and have the same effect as other submissions have had in the past.

I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.