§ Order for Second Reading read.
§ 3.53 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I beg to move, That the Bill be now read a Second time.
The first main proposal of the Bill is to extend the scope of the Legal Aid and Advice Acts of 1949 so that many people who now cannot qualify for legal aid and advice under those Acts will be able to do so. Its second main purpose is to modify the financial contributions which those who obtain legal aid are called upon to make.
Before I say any more about the contents of the Bill, may I remind the House that the Rushcliffe Committee, appointed by Lord Simon when he was Lord Chancellor, on which I had the honour to serve, when it reported in May, 1945, put forward a complete scheme for legal aid and advice. In 1949, the vast majority of the Committee's recommendations were embodied in the Legal Aid and Advice Act, 1949, and the Legal Aid (Scotland) Act, 1949.
Owing to the financial situation of the country at the time, only those parts of the English Act relating to legal aid in the Supreme Court and in the Scottish Act relating to legal aid in connection with civil proceedings before the court of session and the sheriff court were brought into force on 2nd October, 1950. The decision of the Labour Government, inevitable though no doubt it was in view of the circumstances of the time—I am not criticising it—has complicated the administration of the legal aid schemes ever since.
Whenever more money has been available, the question has arisen whether the financial provisions should be amended to bring them up to date or whether the scheme should be enlarged by bringing into force other Sections of the Acts. The Advisory Committee constituted under the Act, while drawing attention on a number of occasions to the severity of the financial contributions required under the 1949 Act, in its second, third and fourth annual Reports recommended the introduction of legal 647 advice and in its fifth Report recommended that that should be done before the financial provisions were altered. It also criticised the omission to provide legal aid in county courts and for civil proceedings in magistrates courts.
In 1954, legal aid was extended to proceedings in the Chancery Court of the County Palatine of Lancaster. On 1st January, 1956, it was extended to county courts, the Chancery Court of the County Palatine of Durham, the Liverpool Court of Passage, the Salford Hundred Court, the Bristol Tolzey Court and the Norwich Guildhall Court.
On 2nd March, 1959, the sections in the English and Scottish Acts providing for oral legal advice came into force, and my noble Friend, on 12th June, 1958, made an announcement with regard to the bringing into force of the provisions relating to legal aid in matters not involving litigation. He made a further announcement on 16th December, 1959, with regard to legal aid in magistrates courts and courts of quarter sessions in matrimonial and affiliation proceedings. On 20th May, 1958, my right hon. Friend the Home Secretary also made an announcement about the implementation of Sections 21 to 23 of the English Act. The provisions concerning legal aid in matters not involving litigation and those relating to criminal cases to which I have referred will come into operation next March. It is against that background that the Bill has to be considered.
Since 1951, very considerable progress has been made in extending the application of the legal aid schemes. Now we are able to turn—I am very glad that we are able to do so—to amending the financial provisions. Under the Legal Aid Acts of 1949 legal aid is now available to anyone whose disposable income does not exceed £420 a year. That is subject to the proviso that a person may be refused legal aid if he has a disposable capital of more than £500 and it appears that he could afford to proceed without legal aid.
Under those Acts a person receives free legal aid only if his income does not exceed £156 a year. In making these provisions in their legislation in 1949, the Socialist Government followed the recommendations of the Rushcliffe Committee which reported in 1945. I need hardly remind the House that between 648 1945 and 1949 the cost of living rose considerably, but no adjustment was made of the figures recommended by the Rushcliffe Committee.
Perhaps I should explain what the words "disposable income" and "disposable capital" mean. They mean the income or capital left after making various deductions. The deductions include rent including repairs, sums in respect of dependants, Income Tax, National Insurance and other insurance contributions, trade union subscriptions, the expense of travelling to employment, superannuation payments and reasonable hire purchase commitments.
In its Report of June, 1959, the Advisory Committee recommended that the upper disposable income limit should be raised from £420 to £750, and that the upper disposable income limit for free legal aid should be raised from £156 to £275. As the House will see, the present Bill proposes that the limits should be, not £750 but £700, and not £275 but £250. The Government have thus not been able to accent the Advisory Committee's recommendation in full, and I feel that I should explain why.
The Committee based its recommendations on two grounds. The first was that the increase from £420 to £750 reflected closely the 75 per cent. increase in the cost of living since the Rushcliffe Committee reported in 1945. The other was that in 1949, 24½ million people had incomes that brought them within the financial limits of the Acts, and the increase the Advisory Committee proposed would bring in 25 million people.
It is true that the cost of living has risen by 75 per cent.—in fact, I am told that the figure is 78.5 per cent.—since 1945, the date of the Rushcliffe Committee's Report, but since Parliament approved the present financial limits in 1949 the cost of living has risen by 52 per cent. Raising the upper limit to £700 is an increase of 66 per cent. so that the limit now proposed is really higher than the limit fixed in 1949. It more than meets the rise in the cost of living that has occurred since then.
It must also be borne in mind that the Government have already implemented the Advisory Committee's recommendations for certain increases in the amounts that can be deducted from the gross income to arrive at the total disposable 649 income, and that, itself, has increased the scope of the legal aid schemes.
Under our proposals, a single person with a gross income of £1,000, and with, say, £478 deductible to determine his disposable income, will be entitled to legal aid, and his maximum contribution will be £90 10s. A married man with three children and with a gross income of £1,500, and deductions from that of, say, £639, will be entitled to legal aid, and his maximum contribution will be £123. I think—indeed, I hope—that the House will agree that those with incomes above these limits should be able to finance their own litigation.
As I have said, we do not propose to raise the limit for free legal aid quite as high as the Advisory Committee recommended. If I may remind the House, that Committee's figure was £275; ours is £250. The Committee's figure represents an increase of 76.2 per cent. over the Rushcliffe Committee's proposals. As I say, the cost of living has risen 52 per cent. since 1949. The Government's proposals are an increase of 60.2 per cent. on the figure fixed in 1949, which more than counterbalances the rise in the cost of living since that year.
Here, again, one must bear in mind the deductions that can be made to arrive at the disposable income. I am sure that the House will agree that while it is right and proper to give financial support to litigants with worthwhile cases, one must be careful to see that support is not so great as to encourage litigation. The fact that a contribution is required is a deterrent to litigation, and the higher the limit of free legal aid the more is that deterrent removed.
I said that the second ground on which the Advisory Committee based its recommendation was that it would bring into the scope of the scheme 25 million people. The Committee worked on the Blue Book on National Income and Expenditure for 1958, which gave income figures for 1957. The 1959 Blue Book shows that the Government's proposals wi1 cover a figure slightly in excess of 24½ million.
The changes to which I have referred are made in subsections (1) and (2) of Clause 1. Subsection (3) enables these limits to be varied upwards by regulation, so that the schemes can be further extended, should occasion arise, by regu- 650 lation. This was recommended by the Advisory Committee. Legislation, not regulations, will be required if it is later desired or intended to restrict the operation of the schemes.
Subsection (4) contains some transitional provisions that are rather complicated—provisions affecting legal aid cases that will be pending when the Bill comes into force. Broadly, the effect is that where the period of computation taken by the National Assistance Board to assess the means of the applicant for assistance is still current when the Bill comes into force, the assisted person's contribution will be assessed in accordance with the new provisions in relation to that part of the period that still remains to run.
The new and important provision with regard to the assessment of contribution is that whereas, under the Acts, an assisted person was liable to be called upon to contribute half the sum by which his disposable income exceeded £156 he will now be required to contribute only one-third of the sum by which his disposable income exceeds £250; and whereas he may now be required to contribute the amount by which his capital exceeds £75, under the Bill he will be required to contribute only the amount by which it exceeds £125.
The House will, therefore, appreciate, I hope, that not only is the limit of disposable income raised very considerably, so that many people who are now excluded can get the benefit of these Acts, not only is the limit of free legal aid substantially increased, but also the extent of the liability of contributions is materially reduced.
I now turn to the other Clauses—
§ Mr. George Chetwynd (Stockton-on-Tees)
I am sorry to interrupt the right hon. and learned Gentleman's very clear explanation, but would he say whether the assesments of people who have already been awarded legal aid certificates and have not completed their payments will be reviewed automatically—or will they have to apply for a review?
§ The Attorney-General
The transitional provisions cover the case where the period in which the computation is made is still current. As I have said, the provisions are complicated, and we can discuss them more fully in Committee.
651 Putting it, if I may, quite shortly, the basis is this. The National Assistance authorities estimate the income for a period of, say, twelve months ahead. On that, an assessment is based. If the computation period extends over a date two months after the passing of the Bill there can be—and, no doubt, will be—a revision. I should not think that it will be necessary to apply, but I can make inquiries about that. There will be a revision so as to ensure that the contribution in respect of the period after the Bill has come into force will be in accordance with the new provision to which I have referred, namely, at the rate of one-third instead of one-half of the income. I hope that I have answered the hon. Member's point.
§ The Attorney-General
I will now turn to the other Clauses in the Bill. Clause 2 contains provision for regulations to be made varying the percentage of taxed costs to which barristers and solicitors are entitled as remuneration for conducting legally-aided proceedings in the House of Lords, the Supreme Court, the court of session and proceedings in the sheriff court when they are taxed on the higher scale.
As the law now stands, barristers are entitled to 85 per cent. of their fees in such cases and solicitors to 85 per cent. of their profit costs. My noble Friend's Advisory Committee recommended that this percentage should be increased to 90. The Government do not feel able to accept that recommendation at the moment, partly because they are not wholly satisfied that the Committee's recommendation was based on sufficient material to justify its conclusion and partly because, so far as England and Wales are concerned, they think that it would be right to await the effect on solicitors' costs of the new Rules of the Supreme Court which apply to costs incurred after 1st January this year.
The House will note that the power to vary the rate of remuneration is exercisable only so as to increase it. The House will also note that there is no reference to the rate of remuneration for conducting legally-aided proceedings in county courts. That is because the 1949 652 Act already provides for barristers and solicitors to be paid the full amount allowed on taxation in such proceedings.
Clause 3 relates to the Legal Aid Scheme in Scotland and it gets rid of a defect in the operation of that scheme in Scotland. I understand that in Scotland an application for legal aid has to be made in considerably more detail than is necessary in connection with an application for legal aid in England and Wales. For instance, the statements of witnesses have to be provided and the case prepared almost to the stage of hearing, and that preparatory work is done by a solicitor.
The solicitor's right to payment rests on Section 6 (4) of the Scottish Act, which provides thata solicitor who is acting for a person receiving legal aid shall be paid for so acting out of the Legal Aid Fund".Because this provision refers to a solicitor who acts fora person receiving legal aid",in the case where the applicant never receives legal aid, either because of his application for legal aid being refused or because he himself refuses to take up the offer, the solicitor cannot be paid out of the Fund.
Clause 3 will enable a solicitor in future to obtain payment out of the Legal Aid Fund where the application for legal aid is approved, but the applicant himself does not accept the offer of aid. It does not authorise payment where the application for aid is refused.
§ Mr. Eric Fletcher (Islington, East)
Before passing from Clause 3, would the Attorney-General explain why this applies to Scotland only and why it should not apply equally to England and Wales?
§ The Attorney-General
Because it is a provision which appears to give difficulty only under the Scottish Act.
Clause 4 is a declaratory provision intended to remove a doubt about the construction of provisions in the Acts which require the payment into the Legal Aid Fund of sums due to it. These provisions might be construed as requiring payment into the Fund by a solicitor to whom, for example, money has been paid in accordance with the terms of a settlement, notwithstanding that money is owed to the solicitor out of the Fund 653 in respect of the costs incurred by him. This Clause makes it quite clear that the solicitor may set off the money in his hands against the debt owed to him out of the Fund, and it will, therefore, simplify. and to some extent, I trust, cheapen the administration of the Legal Aid Scheme.
Clause 5 is purely formal.
There have been very many suggestions, since the Legal Aid Scheme was brought into force, for improving it. I do not today, however, want to say anything about what is not in the Bill except to deal with our reasons for not including in it a provision for the abolition of the Law Society's Divorce Department, which was one of the economies recommended by the Lord Chancellor's Advisory Committee.
There is, in fact, no necessity to put anything in the Bill to give effect to this recommendation, because the regulation-making power in Section 6 (7) of the 1949 Act is wide enough to enable the Department to be brought to an end by regulation. The Government do not, however, propose that, at any rate for the time being, any such regulation should be made. They propose to watch the effect of the new financial provisions of the Scheme before coming to a final decision about the future of the Divorce Department.
But I should tell the House that under present conditions it is extremely difficult to recruit solicitors into the Department, and the expansion of the Legal Aid work which will result from this Bill may well lead to the solicitors now employed by the Department being promoted to other positions within the scheme. It is, therefore, not beyond the bounds of possibility that the Department will come to an end within a comparatively short time through lack of staff.
I have now explained what the Bill seeks to do and its impact on the Legal Aid Schemes. I felt that it was necessary to give the reasons why we do not feel able to accept the recommendations of the Advisory Committee as to the limits of disposable income which it proposed. We have, I think, accepted nearly all, if not all, its other recommendations in their last Report.
654 This is, I submit, a very useful Bill. It will enable help to be given to those who are sued and can ill afford the expense of litigation. It will enable help to be given to those who sue in respect of injuries or damage they have suffered and who cannot afford litigation. It reduces the burden of contributions made by assisted persons. It is a beneficial Bill and, having been closely associated with this social service since its inception, I am very glad today to be able to commend it to the House.
§ 4.18 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
It is a pleasure to be able to welcome a Bill which is brought forward from the other side of the House. I am happy that the Attorney-General has had the opportunity of introducing this Bill, knowing, as I do, the interest which he has taken in this matter ever since the days of the Rushcliffe Report.
The Legal Aid Act, of course, was a new departure in legislation. When we passed that Act in 1949 it was the first time that we had on the Statute Book any attempt to do the work which had hitherto been left largely to voluntary societies and purely gratuitous work on the part of the legal profession. Its purpose was to prevent the denial of justice to those who could not afford it, to remove from the law and the administration of justice in this country the well-known gibe that justice was open to everyone in the same way as was the Ritz.
There was only one part of the right hon. and learned Gentleman's speech to which I took some exception. I refer to his complaint that the Labour Government did not bring in the whole of the Act at the same time.
§ The Attorney-General
I expressly refrained from criticising. I said that it was, no doubt, inevitable.
§ Sir L. Ungoed-Thomas
I will put it in this way. The right hon. and learned Gentleman said that complicated difficulties were created because the whole Act had not been brought in at the same time. He recognised the inevitable economic stringencies of the time, but he said that there had been these complications.
In that case, why have not the Conservative Government long since brought 655 into operation all the rest of the Act? For five years, from 1951 to 1956, they did nothing at all about it. Since then, they have gradually extended and put into operation piecemeal provisions which had not been put into operation in 1949, and, of course, every single one of those extensions has been welcomed on this side of the House. We have pressed particularly, time and time again, for the improvement which this Bill, at last, brings in.
The Act has had its teething troubles. There have been criticisms, some of them severe. There are still difficulties in the administration of the Legal Aid Scheme. We are still learning as we go along about the administration of it. But nobody today suggests that we should go back upon the principle of the legislation which the Labour Government introduced in 1949. All parties are united in applying that principle.
There are, each year, about 40,000 applications under the Act and about 20,000 cases of people receiving legal aid. Of those, roughly nine out of ten are successful in obtaining relief of one kind or another, either successful litigation or by compromise in the course of litigation. Therefore, as a result of the Act, about 18,000 people a year are helped in obtaining justice which they might otherwise be denied.
The cost is borne partly by the State and partly otherwise, through contributions made, and so forth. About half the cost is borne by the State. I will read what is said in the eighth Report of the Law Society on the Operation and Finance of Part I of the Legal Aid and Advice Act, 1949. There is a detailed statement on the finances of the scheme, and the comment made is:The statement shows clearly that the cost of the Legal Aid Scheme is by no means borne entirely by public funds. In fact, the Exchequer grant covers only about 50 per cent. of the cost, the remainder of which is borne by the contributions made by assisted persons, by costs recovered on their behalf, and by the enforcement of charges on property recovered or preserved. It may fairly be added that the cost to the State and to assisted persons is also reduced by solicitors and counsel accepting a reduction of 15 per cent. in their fees and charges in litigation and a nominal fee for serving on area and local committees".I shall not here enter into the question of solicitors' and counsel's charges and 656 what the amount should be. It does not arise on this Bill. The Bill provides that it shall be possible to increase those charges by regulation subject to negative resolution. The extent to which they should be raised would obviously be a matter to be considered and debated by the House when the regulation is brought forward. I cannot understand why the regulation should be limited only to increasing the charges. After the charges had been increased, for one reason or another it might be desirable to decrease them. I do not see why power should not be taken either way. The method of dealing with it by negative resolution seems wholly admirable.
The Legal Aid Scheme, of course, has been a triumphant success. I wish to acknowledge here the part which the whole legal profession, to which I am proud to belong—a dangerous admission to make in this House—has played in administering the Legal Aid Scheme. It ought to be recognised that solicitors and counsel are coming forward more and more each year to take part, and it is possible—indeed, this is the practice —for legally aided persons to have counsel and solicitors appropriate for the particular case in exactly the same way as people who are not assisted do.
There are still defects within the scope of its administration. There is, of course, the defect which has been outstanding for some years and which the Bill is designed to remedy, the defect caused by the rise in the cost of living and the fall in the value of money. The result of the fall in the value of money since 1949 has been that the Act for some years has failed to give the help it was intended to give. Inflation has, to a considerable extent, defeated the purpose of the scheme. The Act was designed to prevent the denial of justice to those who could not afford it. The line was drawn, roughly, at the man with £10 a week. He was outside the Act if his disposable income was £420 a year, equivalent, roughly, to a gross income of £520, or if his capital was £500 or more. If a litigant had £10 a week, he had to pay what he could afford; all his capital, if he had capital, over £75—a fairly stringent provision—and half the amount by which his income exceeded in the year £156.
I recognise at once the point made by the Attorney-General, that the Rushcliffe 657 Report was based on 1945 values, and it is perfectly fair to say that prices went up between 1945 and 1949. I acknowledge, also, that the right hon. and learned Gentleman subscribed to the Rushcliffe Report. I have heard it said in the House that prices have roughly doubled since 1945. Taking rough figures for the sake of argument, let us assume that prices have doubled since 1945. The £10 a week man is now £5 a week man in terms of 1945 values. The result is that even those who are on the borders of destitution—this is, in fact, so in practice—have been excluded from the advantages of the scheme.
In the seventh Report on the operation of the scheme, certain figures were given to illustrate how it had been working. The case was quoted of a wife separated from her husband who had a gross income of £411 or about £8 a week, and a disposable income calculated at £4 a week. Her rent was 13s. 9d. a week, and she had five children under ten years of age. Her contribution under the scheme was £28.
Of course, owing to the fall in the value of money, it has become quite impossible for many people who were intended to do so and who came within the four corners of the scheme to benefit from it because of the amount of contribution exacted. The result is that over the years applications for the benefits of the scheme have fallen. The number of cases in which persons have been refused aid because they could not afford to pay the contribution required under the scheme have increased in number. The amount in contributions which have been exacted under the scheme have increased. The figures given by the Advisory Committee in its Report show this perfectly clearly.
Applications have fallen every year except last year, when the advantages of the scheme were extended to the county courts. This year, the number of applications has fallen by 11 per cent. They have fallen by over 30 per cent. over the period in which the scheme has been in operation. Of the number of people who have applied the percentage of those who have not had aid because they could not afford to pay the contributions—this is the reason given in the Report—has increased year by year. In 1950, the number was 3.6 per cent.; in 1955, 11 per cent.; in 1956, 14.6 per cent.; in 658 1957–58, 16.7 per cent., and that is the last figure with which we have been supplied. Take the number of cases of contributions of over £100. The percentage of these has gone up year by year—1950, 1 per cent.; 1955–56, 12 per cent.; 1956–57, 13 per cent.; and 1957–58, 14 per cent.
As I have said, there are roughly 40,000 applications for aid, and probably, as far as I can work it out—and this seems a fairly conservative estimate; I have put it appreciably lower than the estimate made in the House last year—13,000 people are prevented by the fall in the value of money from taking advantage of the scheme. If nine-tenths of the cases are successful, about 12,000 people are denied justice, either because the fall in the value of money means that they cannot afford to pay the contributions, or that they do not come within the scheme at all.
The Bill makes a very substantial contribution towards improving the present position, which is scandalous. To have allowed the scheme to continue year after year, without bringing in a measure of this kind, is something of which the Government cannot be proud, but now that they have done so they have brought forward their proposals in a way which we welcome. Limits have gone up substantially, roughly, as far as I can make out, restoring the 1949 position. We should have liked to see something rather better, because we are not in the stringent position of 1949.
We would have preferred the Attorney-General to have prevailed, as I am sure he has tried to prevail with his colleagues, to restore the reality of the Rushcliffe recommendations in 1945. We should, therefore, have liked the Government to go back, as we can afford to go back, to the Rushcliffe recommendations rather than to the position which prevailed when the 1949 Act was passed. However, we are going back to the 1949 Act position, and that we welcome.
We also welcome the provision for raising the limits by regulation. This is obviously a sensible thing to do. If we are to have, as we have had over recent years, continuing inflation, it is certainly most advisable to have a comparatively quick method of dealing with the problem of raising the limits. We also welcome the substantial advantage. 659 to which the Attorney-General referred, of the maximum amount of contribution from the disposable income being reduced from a half to one-third.
What I do not understand—perhaps I may have missed something here—is why the £500 capital limit has been retained. The position at the moment, generally speaking, is that a person with £500 capital cannot have the advantage of the scheme, unless there are special reasons. I believe that that point is not dealt with in the Bill, and this I cannot understand.
§ The Attorney-General
The £500 capital is not an absolute bar. It is subject to the qualifications in the 1949 Act which I mentioned. The Advisory Committee recommended that that figure should be left unchanged, and we accepted its recommendation. It is only a bar, speaking from memory of the provisions, if it is clear that a man could afford to defend the litigation himself. It is not a complete bar.
§ Sir L. Ungoed-Thomas
I appreciate that. The words are: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".If the scheme is operated in such a way that the £500 limit is ignored altogether, I can understand the point of the Attorney-General, but the £500 is there, presumably, to have an effect. If it has an effect, I cannot understand why it should not be modified by increasing the £500 limit in the same way as everything else is increased. If it is completely ignored in administration, I understand the point of the right hon. and learned Gentleman, but, short of that, I do not understand it.
§ The Attorney-General
It was the recommendation of the Advisory Committee, which went into all this with great care, that that figure should not be altered in its last Report when it recommended the changes to which I referred.
§ Sir L. Ungoed-Thomas
I do not know whether the Attorney-General is referring to the eighth Report, or whether he has a report which is not available to us. In any case, it is a point which causes us some difficulty 660 and which we shall certainly wish to pursue.
So much for the Government's proposals. The Attorney-General dealt with other matters to which I should like briefly to refer.
§ The Attorney-General
The Report to which I have referred is that of the Advisory Committee upon the Financial Provisions of the Legal Aid and Advice Act, 1949, and the Legal Aid (Assessment of Resources) Regulations Cmnd. 918.
§ Sir L. Ungoed-Thomas
We do not consider the position with regard to the £500 limit satisfactory.
The Attorney-General referred to matters outside the scope of the Bill, but, nevertheless, within the scope of the discussion on Second Reading. He referred to the National Assistance scales. I appreciate that the Government have improved the scales for assessing disposable income. For years it has been a matter of complaint that, while the National Assistance scales, upon which the scales for assessing disposable income were based, have been improved, the scales under the Legal Aid Act have not been improved. That has now been done and we very much welcome it, but I have been unable to find out how far these are now in line with the National Assistance scales.
I have a great deal of sympathy with the point which was made by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke), when this matter was last discussed by the House, that these legal aid scales in assessing disposable income should be identical with the National Assistance scales and should automatically increase and vary in accordance with the variations in those scales. I do not know why that should not be done. Perhaps we may have some comments from the Solicitor-General, in winding up the debate, on this aspect of legal aid administration.
As to the legal advice scheme, we have not, most unfortunately, had the tenth Report which would cover information about its operation. The Report is due to come out very shortly and it is unfortunate that we are having this debate just before its publication. It would have been more helpful if we had had the Report first.
§ Sir L. Ungoed-Thomas
I beg the House's pardon. It is the ninth. It was the eighth Report which was last published.
I do not know whether the Attorney-General has the information. I wonder whether he could give us some estimate of the cost of the scheme and its effect on litigation. It is thought that the advice scheme may reduce the cost of operating the rest of the scheme. We should be grateful for some information about the net saving of the Legal Aid and Advice Scheme. According to the last Report, for 1956–57, the total grant in aid was roughly £1,400,000. I do not know whether more recent information is available. If there is, it would be helpful if we could have some indication of the cost in later years.
Lastly, there are matters which are still outstanding under the Legal Aid and Advice Act. Could we be told when the whole of the Act will be effectively in operation? Can the Solicitor-General tell us something about the application of the Act to tribunals? We realise that tribunals do not come within the Act itself, but there are tribunals to which it might be helpful to extend it. I do not know what the Government intend to do about that, but we should be grateful for some observations about it.
The Bill is one which we very much welcome. It is a Bill for which we have pressed for a considerable time. It is long overdue, but it is none the less welcome for the fact that at last it has appeared, and we are grateful to the Attorney-General for the part which I am sure he has personally played in bringing the Bill before the House.
§ 4.44 p.m.
§ Mr. John Hobson (Warwick and Leamington)
I, also, should like to sing a little song of praise and welcome to this Bill and to congratulate both the Attorney-General and the Solicitor-General on the part they have played in introducing this extraordinarily useful and beneficial Measure.
The Bill is the climax of a long series of activities which, since 1954, have brought into operation large numbers of the provisions of the Legal Aid and 662 Advice Act. It is quite plain now that the Government have been proceeding upon a plan by which they would gradually extend the Legal Aid Scheme to the various courts and, having done that, would proceed to make it available as widely as possible. While it may be true that in this House it is dangerous to be a lawyer, and while I know that every sensible person in the country would wish to dissuade every form of litigation, nevertheless, it remains true that it is a vital interest to us all that those who have to litigate should be able to do so and should not be kept from the doors of the Courts of Justice by lack of funds.
This Measure will extend the availability of legal aid very widely indeed. I calculate on the figure, given by my right hon. and learned Friend the Attorney-General, of 24½ million persons to whom it will apply, that that represents approximately 94 per cent. of the total personal incomes of the country. The availability of legal aid is based upon the income of the family. The basis of income groups are family income groups, of which there are at present about 26 million in the country. For 24½ million of these, legal aid will now be available. It is a measure of the widespread benefits which this scheme will bring that so many people in the country, if they need legal aid, can now have it.
I also welcome two other things about the scheme. I welcome, first, that the lower limits for free legal aid are being raised so that help from public funds is concentrated upon those who need it most. That I regard as a good, sound Conservative principle. Secondly, I welcome the fact that the amount of contribution that has to be made out of income is reduced and scaled down.
The third result of the Bill is that the upper limit within which legal aid is available has been raised. That does not cost the Exchequer very much, if anything, because the contributions from those in the upper-income groups will more than likely cover the whole of the costs that are likely to fall upon public funds. Nevertheless, it is of great importance that people of moderate means should not be prevented from undertaking heavy litigation by reason of financial stringency. It is just as difficult for a man of moderate means to 663 undertake heavy litigation against powerful corporations or the State as it is for impecunious people to embark upon small litigation which is beyond their means.
One of the results of raising the higher limits for legal aid is that those of moderate means can litigate on hire-purchase. They make contributions, fairly scaled to their capacity to pay. They can make them over a period. They know that, however heavy and expensive the litigation may become, their liability to the fund is limited. They know, also, that their liability to costs, should they lose, will also probably be limited to the amount which they can afford to pay.
The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) said he thought that only about 50 per cent. of the cost of legal aid fell upon the State, but from my reading of the figures I would have assumed that it was a very much lower percentage, when one takes into account the whole amount that goes into the pool by way of recovery of contributions and of damages and of costs from opponents. But whatever the right figure of the percentage from public funds may be, the fact remains that this is an astonishingly cheap scheme.
We have not yet been told the total cost to the State after all these provisions have been brought into operation. I hope that the Solicitor-General will tell us the estimated total cost of the scheme when all the provisions have been brought into operation. At a rough estimate I should imagine that it is not far from £2 million, though it may be a little more or a little less.
The total disbursements on litigation in some years amount to around £8 million, but they are adjusted by the assets which will be brought into the scheme. However, even if the figure is £2 million, £3 million or £4 million, it is infinitesimal compared with the cost of our other welfare schemes, such as the National Health Service, National Insurance and what is spent upon education. These require amounts from the Exchequer between two hundred to four hundred times greater than the Legal Aid Scheme requires from the public purse. Yet justice and its proper administration is just as important for the 664 democratic State as are the benefits we get from the other schemes under the Welfare State.
While I give a broad and general and heartfelt welcome to the Bill, there are one or two minor matters which I must raise. They do not detract in any way from my general approval of the Bill, but I ask my right hon. and learned Friends to consider them. The first is the question of the capital limit of £500. It is true that this limit is to be applied only if it appears that the applicant can afford to proceed without legal aid, but I think that it will be found, in practice, that it is an actual limit which most area committees in practice apply.
It is a curious figure, whose origin has never been disclosed. Certainly, the Rushcliffe Committee gave no reason for arriving at a figure of £500 as the capital limit. The Advisory Committee which considered the matter, recommended, in its report of last June, that there should be no change in the provision as to capital. It did not give any reasons for its conclusion. It did not investigate the matter or the operation of this limit. It gave no reason for its finding. The figure of £500, both in its inception and in its recent consideration, seams to have been one which has not provoked any discussion and about which nobody has given any reasons.
I would like to tell the House of a case in which I was concerned in which a gentleman was killed under an operation in a hospital. The only asset he left was a policy of life insurance for £800. He left a widow with two young boys, she having no income of any description. The local area committee said that because of the asset of £800 which was hers she must litigate at her own expense and was to be excluded from legal aid. So she had to determine whether to pledge the whole of the remaining assets of that family to undertake an action against the Medical Defence Union and the regional hospital board, the latter, of course, being supported by State funds.
There are many elderly widows in my constituency who have small savings and almost no income and who are equally affected. What never seems to have been considered is the relationship between capital and income. It is true that at present a person who is at the limit of £700 would have to contribute 665 £150 out of his income, and no doubt if he had £500 disposable capital in addition he could easily afford to contribute the £375 of it which is in excess of the bottom £125.
Such a person would be contributing then a total figure to the fund of about £375. It might well be that he could afford it and there is no reason why, if he had more capital, he should not be excluded from legal aid. However, he is in a very different position from the person who has £600 or £700 disposable capital and almost no income at all Such people are excluded from National Assistance and, in practice, they are normally excluded from the benefits of legal aid.
If one takes the £500 capital figure as at May, 1945, when the Rushcliffe Committee reported, its present equivalent value on a rise of 78.5 per cent. in prices would make it equivalent now to £890. I hope, therefore, that this matter may be reconsidered, and that, in Committee, it may be possible to insert a figure of £700 or £800 into the Bill as the limit of capital, coupled if necessary with a provision that if there is income in addition a person who, under the scheme, would have to make a contribution of over, say, £250 might be excluded.
There is another matter on the subject of capital, and that is the fact that the whole of the capital beyond £125 has to be contributed. For a widow with a small income that is difficult. It is also difficult for a person whose disposable capital is not in a liquid form, who has it locked up in a business or who is employing it in some way in which it cannot readily be made available, and who yet has to produce the cash for his contribution. And yet if the litigation is successful, the other side will pay the costs and he will get all his contribution back again. He will have been put to the general inconvenience of making his capital liquid, of handing it over to the Legal Aid Fund, and of then getting it back, having, in the meantime, been placed in considerable difficulty.
I have always thought that a solution of this difficulty might be found in persons making different contributions. One would be made initially, before it is known whether or not the litigation is to be successful. A subsequent or supplementary assessment could be made later 666 upon the failure of the litigation. Litigants would have to pay a higher percentage of their income and a higher percentage of their capital should their litigation fail.
§ Mr. Hobson
No, I think not.
My idea is that the pressures upon those involved in litigation should be equal. One of the difficulties at present is that the person who has been assessed for a contribution, particularly if it is nil, has as it were put down his stake, and there is not the slightest pressure upon him to settle the litigation. He does not feel under any need to do so; whereas the opponent, who is unassisted, is under the double pressure of being at the risk of losing the whole action and also of being at the risk of having to pay the whole of his own costs even though he wins.
If, however, an assisted person, even though one with a nil contribution, had to pay something, however small, should his litigation be unsuccessful, he would, in those circumstances, have some pressure upon him, as does the ordinary litigant, to terminate his action upon reasonable terms.
That brings me to the other subject which, I hope, it may be possible to consider, if not under this Bill, then in the very near future. That is the question of the successful unassisted litigant. I hope that it may be possible in the near future to introduce a proposal which will go at least as far as this: that where a court finds that there has been individual and particular hardship upon a successful unassisted litigant by reason of an action being brought against him by an assisted person, the court will have power to order that the Legal Aid Fund should pay the whole or some proportion of that person's costs.
I am sure the eventual object should be that the full costs of all successful unassisted litigants should be paid out of the Legal Aid Fund. I see from the latest Report of the Advisory Committee that that Committee estimates the total cost of doing the latter, namely, contributing 100 per cent., at a figure of only £227,000—£¼ million to pay the whole of the costs of all successful unassisted litigants.
667 It is an ancient provision of the law of maintenance that citizens should not be harried by litigation in the courts of justice by persons not concerned with the litigation. It has always been the rule that the law would not stop the litigation, but that if the action went through and a person suffered damage by the officious intermeddling of another that other should pay the damage suffered.
The Legal Aid Scheme, of course, departed from that principle. Nevertheless, it is surely only fair that those who provide the sinews of an unsuccessful war should make good the damage to those who have suffered thereby. There have in the experience of everybody who has practised in the courts been cases of very great hardship indeed to defendants who have had to defend an action against a legally-assisted plaintiff, who have defended successfully and who have been left to pay the whole of their own costs of the action.
The trouble is that this may happen to a person only just outside the limits of legal aid. The plantiff may be just inside the limits of legal aid whereas the unassisted person is just outside them. The consequences for the two are so very different that it must strike one that that is imposing an injustice upon the person who is left to pay the whole of his own costs.
The right of the successful unassisted litigant to recover any costs depends at present entirely upon the position of the assisted opponent. It does not seem right that that should be the basis on which his costs should be assessed. I ask the Government to consider, at any rate as a first step, that the court should be given a discretion in cases of individual hardship to order the Legal Aid Fund to pay the whole or part of his costs.
In a very large number of these cases the defendant is represented by an insurance company, others are represented or supported by trade unions and many others have funds available to them. The total cost of providing for costs in cases of hardship only would be really very small indeed, especially when one realises that to pay 100 per cent. of the costs of unassisted litigants would cost only £¼ million.
668 Being a lawyer myself I had better follow the example of previous speakers and walk delicately on the subject of the 15 per cent. We all seem to be avoiding that subject, and perhaps it is better at this stage not to go into it at all except to draw a short contrast with the medical profession and to remind the House that, of course, other professions which operate welfare schemes with funds provided by the State do not give any discount, charity or gift to those receiving the benefits of the scheme.
It is true, of course, that as far as lawyers, both solicitors and counsel, are concerned, they have the benefit at any rate of having a client behind them who will pay the costs or, at least, of having a client whose costs will be paid for him. That is a very great benefit indeed.
I do not think that the right hon. and learned Gentleman was correct in saying that the Bill provided only that we could raise the remuneration and could not subsequently lower it if we so wished. Clause 2 says that the words to be inserted after "eighty-five per cent." are:or such larger percentage as may be prescribed.It would, therefore, be possible to put up the percentage to 95 per cent. and then to put it down to 90 per cent. or to any other percentage, but it must remain, I suppose, between 85 per cent. and 100 per cent., because the prospects of lawyers being paid more than 100 per cent. are, I imagine, remote.
The only other small point I would ask my right hon. and learned Friends to consider is the question of the Privy Council. The Privy Council was never provided for in the Act because it was considered that most litigation would be coming from places overseas and was not the concern of taxpayers in this country. But the fact remains that very great hardship is caused to a small number of specialists, both members of the Bar and solicitors, who appear for appellants before the Privy Council who now appeal in forma pauperis.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
This equally applies to cases going to the House of Lords. There is equally no provision there. There is, of course, provision for appeal to the Court of Appeal.
§ Mr. Hobson
I think it has, but if my hon. Friend is correct in saying that there is no legal aid in the House of Lords, then what I am saying must apply equally there. But whether the House of Lords is the same as the Privy Council or not, at any rate as far as the Privy Council is concerned the burden falls upon a very small number of specialists. It would not cost very much to remedy this situation.
These specialists, particularly the solicitors, are actually out of pocket owing to the printing costs which they incur and the cables which they have to send in order, very often, to appear in murder cases for persons who have no means at all and who are often under sentence of death. There is very great urgency in these cases and for both solicitors and counsel, apart from the disbursements which they pay out of their own pockets, there is, of course, a very heavy burden of responsibility and work in preparing the appeal, in drafting the petitions for leave to appeal and the substantive petitions and in attending and conducting the hearing before the Privy Council.
I am sure that everyone in the House will regard the functions of the Privy Council in administering the law throughout the Commonwealth, as far as that jurisdiction now remains, as of great importance. Lord Denning has suggested that it should go on assize in Africa, and I am sure that everyone is interested in seeing that appeals are conducted in the best possible manner in the Privy Council. I think that at the moment they are so conducted, but it causes great hardship to a very few and it would not cost a great deal to give them some remuneration beyond what they now get when an appellant appears in forma pauperis.
I make these suggestions only with the desire, which I am sure everyone in the House also feels, of improving the Legal Aid Scheme. I am sure that all lawyers and all those who have had the privilege either of administering or assisting in operating the Legal Aid Act know full well the great benefit that it confers on 670 the people of this country. It is one of the foundations upon which our free and democratic way of life can be carried on. It helps us to see that everyone in this country is equal and free before the law.
It is for that reason that I am particularly glad to welcome the Bill because it extends, improves and maintains those provisions. I hope that, subject to the few matters which I have raised, the House will give the Bill a rapid passage into law.
§ 5.9 p.m.
§ Mr. Elwyn Jones (West Ham, South)
I should like to support almost every suggestion which has just fallen from the lips of my hon. and learned Friend the Member for Warwick and Leamington (Mr. Hobson) who sits on the other side of the House. This is a rather rare contingency, at least within the precincts of this Chamber, although, happily, we are in agreement elsewhere on a number of matters.
It was clearly quite contrary to the principle and spirit of the main Measure that the scale of contributions should be so high that just claims were being defeated for that reason, and it was difficult to resist properly claims which very often were without foundation. This Measure will go a good deal of the way to end a situation which is clearly unsatisfactory.
One of the controversial matters which the hon. and learned Gentleman has mentioned is his suggestion that the successful defendant should recover his costs out of the Legal Aid Fund. Subject to the condition which the hon. and learned Gentleman added, that it should be in the discretion of the court whether that should be done or not, I feel that the time has indeed arrived when serious consideration should be given to that proposal, because when one appears in these cases it is most unhappy to feel the burning sense of injustice of the successful defendant who just happens to be the wrong side of the line from the point of view of legal aid. I hope that that matter will be considered as a matter of urgency.
I have one or two practical suggestions to make which, I am sure, will receive consideration. I express my regret that in this Bill steps have not been taken to implement Section 23 of 671 the 1949 Act relating to the Court of Criminal Appeal. The jurisdiction of that court is a vital part of the administration of our justice, and I hope that implementation of the Section relating to it will receive early consideration. When that consideration is given, I hope also that provision will be made to ensure that it is the counsel who conducted the case at the trial who appears in the Court of Criminal Appeal. At present, generally speaking, it is aimed to achieve that result, but from time to time the situation does arise where it is not the trial counsel who argues the case before the Court of Criminal Appeal, but somebody else, nominated, perhaps, from necessity—I do not know why—by the Court of Criminal Appeal itself. It is not a satisfactory arrangement—unless, of course, it be that the appellant himself has chosen to shed his counsel. That is a contingency which, I am glad to say, only very rarely arises, at least in my experience on the Wales and Chester Circuit.
Quite apart from that matter, I also invite the Solicitor-General to give consideration to reducing the cumbrousness of legal aid in the county court. At present, even with a very small claim in the county court, the poor man's court, as it has been called, the whole paraphernalia of certification, means test, inquiry and investigation has to take place. It does seem absurd that in some cases, where the cost cannot possibly exceed £50, there should be all this machinery with the means test and certification and the consequential considerable wasting of time and delay, which may cause hardship in the kind of case which has to be considered in that court.
I am wondering whether consideration could be given to amending the present arrangements on some such lines as these, that where an applicant's solicitor certifies that the probable cost of a county court action is less than, say, £50, the secretary of the legal aid area shall, with the chairman's authority, be entitled to issue a legal aid certificate without the necessity of the certifying committee of three solicitors and one barrister sitting for the purpose of issuing the certificate.
As the next step, in the event of that certification by the applicant's solicitor 672 and of the solicitor certifying that he himself has made reasonable inquiries to satisfy himself that the applicant's declaration of means is correct, then the secretary of the area committee might be given authority himself to make the assessment of the applicant's financial contribution, if any, without the necessity of any oral examination of the applicant's means.
If it were thought that that would be leaving too much to the responsibility of solicitors, or—perish the thought—if it were thought that all solicitors could not be so entrusted with the handling of public funds, it might be possible to make a provision to enable the National Assistance Board to carry out a spot check of these—I may call them—less than £50 declarations by visiting the homes of a proportion of the applicants and checking their means, so that it would be known that the system was subject to that safeguard and that degree of supervision. That check could take place after an interval of time, and it would not delay the hearing of the case in the meantime in the county court.
My experience is—and I have been told this by some of my friends who are experienced in the county courts—that the present cumbersome arrangements are excessive and ought to be avoidable, and I hope that this practical suggestion I have made will receive attention and consideration in due course.
§ 5.16 p.m.
§ Mr. Graham Page (Crosby)
During the years that this Legal Aid Scheme has been in operation it has, as the hon. and learned Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas) said, been an outstanding success. He also used in connection with it the word "defects". I should not have said that they were defects so much as shortcomings, because within the field in which it has been intended to operate it has operated successfully; but there have been, I would say, three major shortcomings in the extent of the operation of the scheme.
One of those shortcomings is being remedied by this Bill. During these years the value of money has decreased, with the result that the limits of capital and income set in the 1949 Act are now excluding those people whom the original scheme intended to benefit. I think the 673 figures put into this Bill are about right in restoring the intentions of the original scheme. I do not wish to dwell at any length on that matter because it has been dealt with already by right hon. and hon. and learned Members.
The second shortcoming which has appeared in the operation of the scheme is in the extent of it to the courts, or rather the restriction of it to certain of the courts only. My hon. and learned Friend the Member for Warwick and Leamington (Mr. Hobson) mentioned the Privy Council. I should declare an interest at once, as being one of the small handful whom he mentioned who practise in the Privy Council and who, on a rota, undertake cases from overseas in forma pauperis.
I shall not add to that except in this way, that the House has recently been giving more jurisdiction to the Judicial Committee of the Privy Council in the case of appellants from professional disciplinary bodies. I think that these are the sort of cases in which legal aid will be necessary. For example, there will be the professional man who has for some reason been debarred by his disciplinary committee from exercising his profession. He may have spent all his savings in fighting the case before that committee. He will be out of work, out of earnings, by reason of having being debarred from his profession. He is just the sort of person who, if the merits of his case warrant it, should have assistance in taking it before the Privy Council, as we have been giving him a right to do by recent legislation passing through this House.
It has also been mentioned that the scheme does not apply to quasi-judicial tribunals. I hope that my right hon. and learned Friends will give this point very careful consideration because the person who gets caught up in that sort of case—that is to say, one before a quasi-judicial tribunal—is very often not at fault himself in that it is not through any act or conduct on his part that he finds himself entangled in the web. It is frequently by reason of some administrative or executive act, and he fears that he may be ruined unless he resists it. He then has to go before one of these tribunals, which is to him no different from a court of law. We ought to consider extending the scheme to such a man.
674 I feel, too, that we must some time give consideration to extending it to arbitration. A layman thinks perhaps of arbitration as being only between two large commercial firms, but even a man of the smallest means may become involved. If he has signed a tenancy agreement with an arbitration clause about the abatement of rent in the case of fire, or if he has signed a service agreement or an agreement for employment, which often contain arbitration clauses, he has by signing the agreement deprived himself of any benefit from the legal aid system because he has deprived himself of resort to the courts. We ought to consider extending the scheme to that sort of case.
The third shortcoming that I wish to mention—it has already been mentioned from both sides of the House—is the lack of provision for the costs of the opponent of an unsuccessful assisted person to be paid out of public funds. The results of this have in some cases been scandalous and they have fallen very harshly on the successful litigant. Of course, before a legal aid certificate is granted each case is carefully examined by a legal aid committee, but it is not the duty of that committee to say, "This man might not be successful". What it has to consider is whether the applicant has, in its opinion, a prima facie case. Some of the applicants to whom a certificate has been granted are bound to be unsuccessful in the final result. Consequently, as the legal aid scheme now stands, their successful opponents are left to pay what are sometimes extremely large sums in costs.
Not many assisted persons are unsuccessful, I am glad to say. The percentage shown in the 1957–58 Report was only nine. Nevertheless, that means that there were as many as 1,731 cases in which judgment was given against the assisted person without costs.
§ Mr. Charles Fletcher-Cooke (Darwen)
Does not that figure include undefended divorces, where the petition is almost bound to be successful?
§ Mr. Page
I understand not. I believe that I am quoting figures which exclude divorce cases, but I stand to be corrected on that.
Apart from the cases in which judgment was given against assisted persons without costs, about 10 per cent. of the cases were settled. From experience 675 one knows that in many cases the unassisted litigant settles the case rather than face the further costs.
It is unfortunate that we are having this debate today before the publication of the Ninth Report of the Law Society on the operation and finance of Part I of the Act. I understood that the Report would be available with the comments of the Lord Chancellor's Advisory Committee before today. It is important to the point which I have been making about the costs of a successful opponent of an assisted person, and as the Report is already before the Lord Chancellor, I see no harm in my disclosing that there is advice in that Report from the Law Society that the criticisms about this matter in the Press and in the House are well founded and that, in the view of the Law Society, provision should be made accordingly for the payment of the costs of the successful opponent out of public funds.
Certain palliatives have been suggested to relieve the difficult position in which the successful litigant finds himself. It has been suggested, for example, that in appeals the assisted person should not be allowed to appeal unless he has special leave to do so from the court of first instance or from the court of appeal. That would be going against the fundamental basis of the legal aid system, which is that the assisted person should be treated in exactly the same way as any other litigant. Also, it would be impracticable because in practice one needs to consider the transcript of the judgment in order to advise whether an appeal should be taken. Also, it would apply only to appeals and not to cases of first instance. I think that perhaps that suggestion does not go far enough.
A further suggestion to meet this difficulty is that all proposals for settlements should be reported to the legal aid committee. That can be done now. If a solicitor acting for an assisted person wonders whether he should proceed with the case in case of an offer of settlement which he has received, he can go to the committee and ask for advice. The solicitor acting for the litigant who makes the offer can also report it to the committee. That can all be done now, but I do not think that making it compulsory would be at all practical. After 676 all, offers of settlement vary from day to day and even from hour to hour during negotiations.
This matter could perhaps be provided for by setting up a fund for the purpose to which would be allotted £5 out of the contribution of each assisted person. My hon. and learned Friend the Member for Warwick and Leamington has said that to pay in full the costs of successful opponents of assisted persons would cost less than £250,000 per year. I believe that a fund made up of £5 per head of the assisted persons would build up into a substantial figure out of which at least a contribution could be made towards the costs of successful opponents of assisted persons. I agree entirely with the proviso which was put forward by an hon. and learned Gentleman opposite that this would apply only if the court awarded costs to the successful opponent.
However, I am sure that, whether it be done by means of a fund such as I have suggested or in any other way, we have to meet this position, and I regret that it has not been met in the Bill. It is not the same position as the payment of costs to an acquitted person in a criminal case. There is an argument against that, an argument on the ground that it might deter the police in the course of their public duties.
Here it is quite different, and we are using public funds to subsidise an individual in his litigation—quite rightly so. If the public backs the wrong horse, then it ought to take the responsibility and it ought to pay out of public funds the costs of the successful opponent of the assisted person and prevent the very extreme hardship which has occurred in a number of cases. I hope that my right hon. and learned Friends will give that point very careful consideration.
§ 5.30 p.m.
§ Mr. Leo Abse (Pontypool)
I join in welcoming the Bill, which will remove some of the financial inhibitions of those who have the right to proceed to the courts, but there are certain features attendant on it which should be brought to the attention of the House.
I listened with considerable interest to the reasons given by the Attorney-General as to why the recommendation of the Advisory Committee for winding 677 up the Law Society's Divorce Department is not immediately to be adopted. The existence of this department is, of course, quite contrary to the fundamental and important rule of the Legal Aid Scheme, that an assisted litigant is just as entitled to select his own solicitor as is any non-legally aided person. It is important that a woman who may be a charlady who is brutally beaten by her husband should have the same rights to select her solicitor in a divorce case as any duchess has when her duke goes off with a chorus girl.
I do not regard it as satisfactory that we should be told that, by administrative action, the department is ultimately to be wound up. There is an important point of principle involved and the necessary steps should be taken immediately to wind up the department.
§ The Solicitor-General (Sir Jocelyn Simon)
I am sorry to interrupt the hon. Gentleman. My right hon. and learned Friend said that it would be by regulation. "Administrative action" may give the sense of there not being Parliamentary intervention.
§ Mr. Abse
I am speaking as a Parliamentarian and not as a lawyer. When I say "administrative action", I gather that it is intended ultimately to integrate the department into other departments of the Law Society. However, I think that it is important, rather than merely wind up a department which has undoubtedly done useful work, that some consideration should be given to how it could be employed for some other purpose within the existing scheme.
Now that we are extending legal aid to the extent proposed, it is time to be considering how we can economise. We are creating a new social service and it is important that we should consider how cheaply we can administer what is and undoubtedly will be a great scheme. Every solicitor knows full well that when his case is complete and taxation is sought, a difficulty arises, for if the solicitor has acted for a legally-aided plaintiff and wishes to enforce the costs against the defendant, in innumerable cases it is found that solicitors' offices are not properly equipped for the task. Shortage of staff, pressure of current work and high overheads all mean that 678 to enforce and collect costs, which are usually paid upon a monthly basis, is a difficult task. It requires a large-scale, specialised, debt-collecting department.
It has been well recognised by large organisations engaged in mail order business or hire-purchase that in order to collect one's money, it is necessary to set up a separate department and to have a solicitor connected with it, by retention or actually in a legal department dealing specifically with that type of work. I am sure that, with the best will in the world, solicitors are not at the moment collecting costs as effectively as they might, costs which could go into the Legal Aid Fund, because they simply lack the machinery within their own offices for that type of work. It should be centralised and done on a large scale.
Since the continued existence of the Divorce Department is undoubtedly an irritant to all solicitors, because it offends the fundamental principle of the Legal Aid Scheme, I suggest that this department should be metamorphised into a debt-collecting agency. It is already well-equipped for and has some knowledge of that type of work, as it must through collecting its own costs from defendants against whom an order has been made.
Equally, it could obviously do the work of the Law Society, which is frequently compelled to commence proceedings against assisted persons who have failed to maintain their contributions. I hope that some thought will be given to the possibility of absorbing into such an agency those people who have been in that department for so long and who constitute a problem at the moment.
Since we are considering economies and how we can ensure that the costs of this scheme will be as low as possible, I believe there is an obligation on the legal professions so to order and conduct their work that it is efficient and economical. I believe that one should ask the professions to consider whether there are not means whereby the costs of these schemes could be reduced. Some examples spring to mind immediately.
It is time that solicitors had the right of audience before commissioners in divorce cases. It seems to me to be an unnecessarily heavy burden on the Legal Aid Fund that in simple, undefended divorce cases it is necessary for both a 679 solicitor and a barrister to be in attendance. It is quite wrong that that should be so when solicitors conduct matrimonial proceedings before magistrates, or before a stipendiary magistrate, often over two or three days, and obtain an adjudication upon the basis of which the divorce ultimately takes place. Such undefended divorces are simple and almost mechanical procedures and it seems unnecessary to have a solicitor and a barrister in attendance. The Bar may place some resistances to such a suggestion, but the taxpayer has a right to be considered in this case. I put forward the view that this is one way in which there could be a substantial reduction of the costs of divorces on the Legal Aid Fund.
We cannot expect a social service of this kind to be introduced without there being obligations upon the professions to examine some of the systems now in existence. We are all aware, if we have had any contact with the law, of some of the apparent frivolities, as I would call them, of the assize system. From my own experience, I know that there is an unnecessarily heavy burden on the Legal Aid Fund because of the time which has frequently to be spent in travelling from one town to another while an assize is sitting, not only by solicitors and barristers, but by witnesses, experts, consultant engineers, and consultants.
This occurs, for example, when an assize is held in South Wales. Although it would be simple for cases which could conveniently be heard in Cardiff to be heard in Cardiff and cases which could conveniently be heard in Swansea to be heard in Swansea, because of the traditional alternation of the assize town between Cardiff and Swansea, dozens of witnesses at each assize are compelled to travel from town to town and dozens of people are compelled to waste time.
§ Mr. Charles Doughty (Surrey, East)
Has the hon. Gentleman brought these facts, important as they may be, to the notice of the Streatfeild Committee, which is inquiring into this very position?
§ Mr. Abse
I am obliged to the hon. and learned Gentleman. I am aware of the work of the Committee, but it touches considerably on the cost to the 680 Fund. When we are discussing a Legal Aid Bill of this kind, we should draw attention to our disquiet that this burden should fall on the Fund.
Because the scheme is being extended we should consider also whether it would be possible to extend the jurisdiction of the county court judges. Costs in the county court are lower than in the High Court. It is to the credit of the scheme that the extension of the jurisdiction of county courts to £400 has proved successful. It would speed up work and reduce costs if the jurisdiction was raised to, say, £600. Such a change would avoid not only long delays but the additional costs due to a case being heard in the High Court.
Now that the State is becoming one of the most important patrons of the legal profession it is increasingly necessary to ensure that taxpayers are assured that lawyers have no vested interest in the perpetuation of litigation involving divorce and crime. Obviously they have not. I know that lawyers would willingly work themselves out of a job as far as divorce and crime are concerned, but great dangers will exist if the training of members of the Bar and solicitors reduces them to what may be called functionaries.
We are now considerably expanding a social service. The legal professions must therefore recognise new obligations to the community. Those obligations are different from what they were in the past. For example, if we are to have a Legal Aid Fund of this type in existence to which more and more charges can be debited we surely have an obligation to bring in a training scheme for the professions in which, for example, as far as the criminal law is concerned, a lawyer has some knowledge of penology as well as criminology. He should be in a position to be a social engineer as well as a functionary.
The lawyer will eventually have to face the need to reconsider his training. He could, for example, make an important contribution in reducing the number of the divorce cases if he had the type of training that I have in mind. It is not enough for us to give merited praise to the legal profession for the way in which its members have participated within the scheme. They have played an important part, but it must be 681 realised that the extension of the scheme will present a challenge to the legal profession. This challenge will be met if the lawyer is prepared to accept the rôle of a social engineer working within an important social service.
When that is done we will be able to attract into the legal profession not only those of great ability but those who are moved by the idealism which will become increasingly important if we are to make this new great social service work with humanity and understanding.
§ 5.44 p.m.
§ Mr. Charles Doughty (Surrey, East)
I, too, welcome the Bill. I listened with great interest to what the hon. Member for Pontypool (Mr. Abse) said, but I hope that the House will not accept 90 per cent. of his suggestions. Whatever branch of the legal profession a lawyer belongs to, it remains a legal profession. After one has studied the theory of the law, one puts one's knowledge into practice in whichever branch of the profession one chooses. The suggestion that lawyers should follow the fate—and I use that word advisedly—of being controlled and directed, either directly or indirectly, by the State because the State contributes something towards the money which they ultimately receive, is one which I hope all lawyers, in whatever part of the House they sit and in whatever branch of the profession they practise, will fight tooth and nail. I hope that they will remain good lawyers, and good lawyers only.
Having criticised the hon. Member for Pontypool, may I now, by way of consolation, say that I agree with much of what he said about some things? I was amused by my right hon. Friend the Attorney-General discussing the Law Society's Divorce Department. I agree that it is time that it came to an end. I was wondering whether my right hon. Friend was going to cut its throat, or let it die a natural death.
There are two important factors to bear in mind. When listening to the Attorney-General I realised the enormous number of people affected by this scheme. Until he told us the figures, I had not realised that almost half the population of this country, whether they be affected by civil or criminal matters, were entitled to ask for 682 the advantages of the scheme. It is an enormous proportion. If a person applies for assistance under the scheme and obtains a certificate he receives not only direct financial advantages, but indirect ones. The granting of a certificate means that if the litigation is contested and the holder of the certificate loses the action he is absolved from the ordinary burden that falls on unsuccessful litigants, that of paying the other side's costs. That has a double advantage: first, financial assistance to a greater or lesser degree to pursue an action, and secondly, the removal of the fear of having to pay costs. A legally assisted person is therefore in an extremely advantageous position.
§ Sir L. Ungoed-Thomas
I am sure that the hon. and learned Gentleman would agree that that point has validity only if the aided person does not make a contribution. The vast majority of people are required to make substantial contributions. In the past the contributions have sometimes been so large that the assisted person has not been able to continue the action.
§ Mr. Doughty
I will come to that point in a moment. I am dealing with the costs of the successful opponent if the legally-aided person loses his case. Be it 100 per cent. or only 5 per cent., the legally-aided person has the shield of not being called on to pay the successful party's costs.
One of the advantages of that is that as soon as the other side knows that its opponent has a legal aid certificate it is inclined to say: "I have a good case. Everybody says that. But what is the point of fighting it? It is heads you win and tails I lose. Let us see if we can consider it entirely as a commercial transaction and pay whatever it costs us to fight the case". That is an advantage that has little to do with the merits of a case. It is an additional reason why I support what hon. Members on both sides of the House have said. We must think more of the person who is up against a legally-assisted person, whether that person be just outside the limits of the legal aid system or whether it be the State.
He will look upon it as a commercial transaction and, acting as a reasonable man, paying out money, he may feel that 683 he should not pay it. The legally-assisted person will have a certificate, where-as the person who is just outside the scheme feels great hardship if he wins his case and gets no order against his apponent, who is nearly as well off as he is.
I agree with my hon. and learned Frend the Member for Warwick and Leamington (Mr. Hobson) about the question of principle. I do not think that it should be left to the court to say that there should be such an order in cases of hardship, because it means that the court will have to inquire, in every case, what were the defendant's means and what was the hardship involved, and courts do not have the time to do this. I see no reason why a person should not have protection and also be ordered to pay the other side's costs.
We have heard about the details, with regard to capital and income, which have to be given by the legally-assisted persons, but that applies only in a serious and contested case, whether it is a question of divorce, common law, or chancery. In the vast majority of cases, which are usually undefended divorce cases, a contribution far below the maximum figure is asked for. It is all that is required to conduct the matter, certainly in county court actions and undefended divorce actions.
I do not know whether it is true, but I have heard that in cases where actions are dealt with quickly—such as undefended divorce cases in the county court—and an order is made for a contribution to be payable at a small rate weekly or monthly, there is a tendency for the assisted person against whom such an order is made to forget about those weekly or monthly payments. I am told that the amount now owing to the Legal Aid Fund in respect of such cases has grown to a large sum. This may be quite untrue, but I should like to know what the position is. I am told that individual repayments are not worth recovering. It is not worth the time and trouble involved to recover a few shillings. That factor must be considered when we are thinking about the finances of the scheme.
The Bill only brings this legislation up to date. It raises the level at which people can be assisted, and I believe that 684 in this case we have struck the right level in regard to income. I hesitate to refer to anything which has been said about the contributions by the Bar, but it has been said that it is a little hard that it should have to make this contribution. Since the administration of this scheme will obviously be much more expensive than in the past—both in respect of greater numbers to be dealt with and in its application to criminal matters —I should like to know how it will be administered. At the moment it is administered by legal aid committees, composed of people who work for nominal sums, and if the work becomes too extensive it may be difficult to obtain enough committees to sit often enough to consider these matters.
I would point out that these matters are difficult to consider. I speak from experience. Like most hon. Members present, I sit on one of these committees. Ninety-nine times out of a hundred we hear only one side of the story. Generally we hear only what the petitioner or the proposed plaintiff says. That does not make it any easier to come to a decision whether to grant or refuse a certificate. I know that we sometimes make a mistake and issue a certificate when, if we had heard the other story, we would not have done so.
As for the point concerning the cost of travelling to assize towns, I have already said that that is being considered by the Streatfeild Committee, and we should wait to hear what the Committee reports before deciding whether the assizes should be moved from one town to another, or abolished at one place and taken to another county.
I welcome the Bill. I know that it will have an unopposed passage. I am sure that it will assist people who feel, rightly or wrongly, that they have a grievance. The benefit to the community will be very great.
§ 5.56 p.m.
§ Mr. John Morris (Aberavon)
I support the Bill, because it is an extension of the Measure passed by the Labour Government in 1949. It was estimated in The Times, shortly before the 1949 Bill came into force, that almost 12 million people were capable of benefiting from it, and the Attorney-General has said that over 24 million will benefit from this Measure. 685 I wonder whether that figure is based solely on income, or also takes into consideration the various amounts of capital which people have, and whether the figure is very much affected by the wide range of capital possessed by people today.
One of the principles underlying the Report of the Rushcliffe Committee was that thelack of means should not be permitted to prevent any person from prosecuting a just civil claim, or resisting a claim, in the Queen's Counts.As Lord Shawcross—the then Attorney-General—said in introducing the Second Reading of the 1949 Measure, it was the charter of the little man to the British courts of justice. It has proved to be so in the last eleven years. It follows a principle that has long been enshrined in our constitutional law; indeed, it stems from Magna Charta itself. It is the principle thatTo no one will we sell, deny, or delay, right or justiceThat is the silver thread of equality before the law which runs through British constitutional history, and I am proud of the obvious results of the 1949 Act, which has enabled vast amounts of money to be recovered from time to time. We have only to peruse the annual Reports of the Law Society, dealing with the working of that Measure, to know how well it has worked out in practice.
Two things have since affected that Act. The first, as we have heard, is the fall in the value of the £, as compared with its value in 1949, or even as compared with its value in 1945, when the Rushcliffe Report was published. The second factor has been the general rise in wage levels.
The Bill will raise the income qualification from £420 to £700, and it will also raise the "no contribution" limit from £156 to £250. The figure of £500 in respect of capital remains, but no reason has been advanced why it should not be altered, together with the others. Indeed, no reason has been given at any time why that figure was brought into being. I hope that the method of arriving at disposable income will remain as at present, and that the same exclusions and disregards will be used when arriving at the final income.
A vast amount of litigation today in the Queen's Bench Division, and assize 686 courts, is financed either by insurance companies or by trade unions. A workman injured at work has two options. He may either go to the Legal Aid Fund to finance his claim for damages, or to his trade union. At this juncture, tribute should be paid to the great work done by the legal funds of trade unions for the amount that has been saved to the Legal Aid Fund by litigation financed by trade unions.
Only last Saturday in my constituency I heard of a case in which, because of the current limits of the Legal Aid Fund, a man who, for some reason or other, was out of compliance with his trade union and, unfortunately, during that time had had his hand cut off, was unable to have his litigation financed by his trade union. Unfortunately, such was his wage limit, he was not able to obtain the advantage of the Legal Aid Fund. There will always be gaps, always people who will not fall within any branch of the funds available, but, with the raising of the limits, and a recognition that the £ has fallen in value since 1949 and wage levels throughout the country have risen, the Bill is welcome in that it will extend the Act of 1949.
I have been reading the eighth Report of the Law Society on the operation of the 1949 Act. It showed that the cost of the scheme was by no means entirely borne by public funds. It stated that the Exchequer covers hardly more than 50 per cent. and the remainder is borne by contributions made by assisted persons from costs recovered on their behalf and enforcement of charges on property recovered or preserved. It shows that for the working of the scheme funds have been obtained from other sources. Both counsel and solicitors recover 85 per cent. of their fees through legal aid litigation. Whatever the reason for the original introduction of the figure of 85 per cent., it shows that the two branches of the profession have subsidised litigation to that extent. There are also compensations because their fees are guaranteed and the Legal Aid Fund can hardly become a defaulting client. I welcome the provision for raising the figure under present legislation.
The anomaly of the Divorce Department of the Law Society has been referred to in the debate. I am not saying that injustice is done to the client when 687 the charlady, as was mentioned by my hon. Friend the Member for Pontypool (Mr. Abse), obtains a divorce through the Divorce Department, but surely every litigant is entitled to choose his own solicitor and his own counsel. Solicitors and counsel should be properly paid for the work done for the client. From my own knowledge, at present counsel appear on behalf of the Divorce Department for fees as nominal as £3 5s. 6d.
If the fee for conducting other kinds of divorce within the Legal Aid Fund, or any other fund, is regarded as a proper fee—and it is very different from £3 5s. 6d.—why should the very poor be differentiated from the poor? Why should such a person be allocated a solicitor and not allowed to choose his own, as is done in any other form of litigation? I hope that appropriate action will be taken at the earliest possible opportunity to do away with the Divorce Department of the Law Society as it now stands. There is no reason why it should remain in existence.
I endorse the plea that the Legal Aid Scheme should be extended up to the Privy Council and to many other courts and quasi-courts. A small man who has a motor car or a house may have a claim against an insurance company or a disagreement with the company and the policy may state specifically that any problem must be litigated not in a court of law, but under arbitration. There are many clauses under which goods are sold and arbitration is preferred—or laid down in the terms for selling the original article. This should be seriously considered.
I should not like to say how wide the Bill should go, but it should be seriously considered whether legal aid should be extended to spheres beyond strictly courts of law. Tribunals and arbitrations should be considered. If legal aid is to be given for a court of law, why should it not be given to a man who needs it in a quasi-court?
I welcome the fact that power is taken in the present legislation to raise the limits by regulations subject to an affirmative Resolution. I hope that changes in wages and the value of money will not be allowed to outstrip the new limits by eleven years again before we have further legislation. I hope the present scandalous position whereby a 688 large number of people are denied their rights and are unable to finance their litigation will be remedied and that such people will not again have to wait such a long time for new legislation to be brought in.
§ 6.8 p.m.
§ Mr. John E. Talbot (Brierley Hill)
This is the first time that I have had the privilege of addressing this House and I would ask hon. Members to extend to me the generosity which they are always so ready to extend to those who speak here for the first time.
I should not have sought to do so had I not been able to bring a point of view to the debate which, perhaps, is slightly different from those of hon. and learned Gentlemen who have spoken earlier, namely, that of the country solicitor who is operating the Legal Aid Scheme. I wish to say how valuable an experience it has been for me to listen to this debate and to obtain the reaction of Queen's Counsel, and others more experienced than I am in the law, to this important subject. As has been said, the best way to become "the Ruler of the Queen's Navee" is to polish up the handle of the big front door of the lawyer's office. In my experience, one needs to go to the bottom of the ladder rather than to the top to find where the shoe pinches.
There are one or two things I wish to say about the Bill, which I heartily welcome. I start on the very controversial point in Clause 2, the amount of remuneration which a lawyer ought to have. I disclaim at once any personal interest in this, because every case I have taken under such legislation has been a complete loss. I wonder whether people generally understand the great complexity of the organisation of the solicitors' branch of the profession. Here, in London, there are large firms with fifteen or more partners and detailed specialisation in every branch of the law. To such a firm one, two or ten cases of this type are a mere incident in its professional progress, but in the country one finds it rare to have a partnership firm of more than five partners.
When one goes into a country town such as that in which I practise, one finds that the average firm consists of one, two, or at the most, three partners. Such 689 a firm is engaged almost entirely in conveyancing, family advice and buying and selling property. A case handled by such a firm going to assizes or the High Court is a major operation. It is a complete upheaval of the steady tenor of that office. It will be appreciated that in many cases firms of that kind have no managing clerks or articled clerks to collect evidence, which is one of the things that clients apparently expect one to do, and they have no means, other than the principal personally giving his time, of doing proper justice to the cases which their clients bring to them.
May I also point out to the House that the travelling problems in the country are utterly different from those in London. The town in which I practise is 15 miles from the nearest assize town and 40 miles from the divorce registry to which our affairs have been allotted. It is not just a question of popping out of Lincoln's Inn into the Law Courts and being back again in one's office within ten minutes. In having to attend before the district registrar in chambers, 40 miles away, an entire day's professional earnings are gone. This not only means that one may lose money, but that one gets behind in one's work, which no conscientious solicitor likes to do, and he may perhaps have to neglect some other client's business which is equally deserving.
I wonder whether the Government have given sufficient attention to this type of country practice in considering the recommendations which they have had. To such a firm, its duty under this Act can only cost it money, whereas a large firm, which is well-equipped to organise and undertake work of a character which ends in the High Court, may even make a profit out of the 85 per cent. costs. I therefore ask the learned Solicitor-General to say whether he can hold out some hope that this question may be gone into again.
I ask this, too, for another reason. Let us get clear what is the true basis of asking a solicitor today to work for less than the proper fees. Is it because he is working for the Government? I shall put a case which may perhaps be shot down as reductio ad absurdum. Let us suppose that we have a train in which there is a Cabinet Minister, or someone even more eminent. Would we say to 690 the engine driver, "You must work that day for 85 per cent. of your trade union wages because you are privileged to convey a member of the Government behind you"?
I suggest that if one did that the train would move just about as fast as the trains are moving today. There is no logical justification in asking a profession to work for less than its proper fee. It is not done in any other profession as regards the Government or local authorities.
Merely because services are rendered people should not be paid less than the economic value of their services. The person who renders this service should not be compelled willy-nilly to share the loss. In that sense, one has a feeling that 85 per cent. is a compromise between the days when the legal profession worked willingly for nothing and the alternative to paying the full value for its services. Like all compromises, there comes a time when this has to be able to stand in the light of day, supported by logical and ethical arguments.
Turning to Clause 3 of the Bill, I ask the Government to have another look at it, and, in particular, I want to discuss the liability of a solicitor advising a would-be applicant for legal aid in divorce. As we all know, a solicitor in a divorce case has a double responsibility. He has a responsibility to the client who consults him to give his best advice to that client and he has the responsibility to the State to ensure that in divorce—which, as we all appreciate, in the law is a quasi-criminal matter, in which the State has a direct interest—that interest is duly observed in the presentation of the case.
In my experience, this means that even before an application can be properly submitted to the legal aid committee, the solicitor, if he does his job properly, has to do exactly the same amount of work that he would have to do in presenting and preparing that case for court. It may be that he will not be the solicitor who will take the case. If he fails in his duty in advising the applicant to see that what he seeks is put down correctly for the legal aid committee, he may unknowingly involve the firm of solicitors who ultimately conduct the case in difficulties in which, had they known the full facts, they would not have encountered.
691 I feel that in divorce it is possible to take too slender a view of one's responsibilities. Nearly all these cases come to a solicitor before going to the legal aid tribunal and every incentive should be given to ensure that the case, before it reaches the stage where the brief is prepared, receives the most careful consideration and attention. The position is, of course, that the solicitor is either not paid at all for doing that work, or, if he wishes, he can send in his bill, but often the people concerned are unable to pay it and often he does not send in a bill because he would be ashamed to do so. I ask that that situation may be reconsidered.
I should like to make one other suggestion on the question of legal advice in additional courts. This is a matter which particularly concerns my constituency, Brierley Hill, where the urban district council has recently obtained an order permitting it to acquire a large insanitary area of the town, as the result of which compensation is now payable to the persons evicted. I have had the embarrassment of three of my constituents asking me whether the advice which they had received from local solicitors about compensation they have been offered is correct. Naturally, I have been unable to give an adequate reply.
The situation has emerged that in some of these cases the sum which has been offered, owing to the zeal with which the district valuers prosecute the interests of the Government, is very slender. We all know that there is an appeal in these matters to the Lands Tribunal, in London, but we often find that the cost of going there will exceed the compensation which will be received. No doubt some would say that an injustice is being done. We cannot take away the homes of people for the site value, or little more, because their homes have to be abolished in the interests of social progress. I say that an appeal from the district valuer to the Lands Tribunal merits the assistance of legal aid.
I hope that these and other grounds referred to by hon. and learned Members who have spoken will engage the Government's sympathetic consideration. Finally, I want to say how well, in my experience, the Legal Aid Act has worked and is working. The principle is not in dispute. This Bill is required 692 only to march with the times and to tidy up the odds and ends. I can testify to the immense amount of social good which the Legal Aid Act has done. I am sure that in our further consideration of it we shall produce a fully up-to-date code which will satisfy the need of the people who require legal aid.
§ 6.21 p.m.
§ Mrs. E. M. Braddock (Liverpool, Exchange)
I had intended beginning my speech by saying that I had been to the door to see whether there was a notice on the board stating whether anyone other than a lawyer was allowed to take part in the debate, but the sting has been taken out of my comments by the fact that the tradition of the House requires that I should first make reference to the maiden speech of the hon. Member for Brierley Hill (Mr. Talbot). I do so with the greatest pleasure. I listened carefully to the points which he made, which are quite new in relation to this subject. The House will hope to hear him again at a time when he can be more controversial with his own side of the House. He will then have a fuller opportunity to deal with the points which a new Member of the House wishes to bring out. I speak for the whole House when I say that we hope to hear him on many occasions.
I have been waiting for the Bill for some time to see whether provision would be made in it to protect those people who receive legal aid and on whose behalf an order is made for damages. Perhaps the best way I can explain this is to cite a case of which I know. I believe that there are many similar cases. This case occurred in my constituency, and it concerns an ordinary working man who in 1950 had an accident at his work. His firm were not insured. The person on whose property the accident had occurred was not insured.
As a result of the accident the man lost an eye. This reduced his earning capacity. He was advised to see a solicitor about a claim, and he did so. The solicitor suggested to him that he had an excellent case, and gave him some idea of what the cost would be. The man replied that he was working as an ordinary labourer and could afford nothing like the amount of money which would be required to pursue his 693 claim for damages. His solicitor told him how he could apply for legal aid. His case was submitted, and he was considered to be in such a bad financial position that the amount he was to pay was fixed at only £12 10s. He said that he would try to pay that. He paid £12 10s. to the Law Society and obtained a legal aid certificate. His case ultimately went to the courts and he was awarded damages of £950 in 1950 or 1951. The person against whom the damages and costs were awarded went into court to say that this could not be paid. That was contested and an order was made for a weekly payment of 10s. for the £950 damages plus the costs.
The mother of this man, a constituent of mine, came to see me and wanted to know what would be the position in respect of the damages which her son had been awarded. I wrote to the Legal Aid Department and was informed that it had no power to do other than claim the £249 costs. These had to be paid on the basis of the order which had been given in court for the costs.
This man has not received a half-penny of the £950 damages, because the Law Society said that under the Legal Aid Act there was nothing to prevent it from fully recovering the amount of costs before any damages were paid. I waited for five years. It is about five years since I contacted the Law Society. Oddly enough, possibly because the man saw that the Bill was being introduced and wanted to know what would happen under it, I received a letter from him this morning asking me what was happening about the £950 damages for the loss of his eye.
Obviously, this is not the only case of this sort. I had hoped to see a Clause in the Bill giving the Law Society power to say that instead of claiming the whole of the costs, only half of the weekly payments would be made to the Law Society and the other half would be made to the injured man. That would have given him a small sum. It is very difficult to give praise to a scheme when ordinary, working-class people who think that they have been given the advantage of it are subsequently £12 10s. out of pocket in a case in which they have been given legal aid, particularly when they do not receive a halfpenny of the damages. In this case, £950 has been awarded for the 694 loss of an eye and the man's earning power has diminished considerably as a result of the loss of an eye. This is a point which should be dealt with in the Bill.
This is Second Reading, when I can say what I think should be included in the Bill. I think the Solicitor-General should look at this point to see whether it is possible to insert a short Clause stating, in effect, that in cases of this sort a man who is awarded damages should receive half of the amount which is to be paid weekly or monthly by the person against whom the order is made, where that person is not in a position to pay all the costs or damages at once. Probably, as a result of my raising this matter tonight, my post within the next few days will be heavy with letters on similar cases. It ought to be possible to frame a Clause such as I have outlined.
I do not know whether the Legal Aid Department has any information on cases of this sort. The mother of this man, a constituent of mine, says, "It is all very well to say that this is legal aid, but although my son won his case, it cost him £12 10s. and he has not received that money back. In ten years he has not received a halfpenny of the £950 damages." With payment at the rate of 10s. a week, it will be another few years before the £249 has been paid, even if the order is being paid, as the court instructed, on a weekly or monthly basis.
It is no good lawyers patting themselves on the back about this scheme, even though they will get something extra out of it. We cannot be satisfied while there is even one case in the country in which a person who has been given legal aid, and who has been awarded damages, receives none of the damages because the Legal Aid Department first requires the whole of its costs back before a halfpenny can be paid to the injured person.
I hope that notice will be taken of this point and that inquiries will be made through the Law Society to see how many similar cases there are. If we discover that there are a number of these cases, I hope that before the Committee stage an opportunity will be given to insert a Clause which will guarantee protection to people to whom the law gives the right of legal aid but who are then 695 deprived of the right to any of the damages awarded. This matter needs attention. I should have waited until I caught your eye, Mr. Speaker, even if I had sat here all night. I am not a lawyer, but just an ordinary Member of Parliament in touch with this sort of case. My only association with legal aid is seeing people who come to me to get legal advice. I send them to a personal service society to see whether they are entitled to make application for legal aid.
In case the Law Officer wishes to look at the case more closely, let me give him the name and address so that his Department can obtain the details from the Law Society and check that what I am saying is true. The man's name is Mr. R. Travers, of 17, Croxdale Road, Liverpool 14.
Those are the facts. If that is the situation in one case, there must be many more, and I am told that there are. It is essential to make a full inquiry to discover whether it is necessary to put a new Clause into the Bill in order to protect people who receive legal aid and obtain damages and ensure that the whole sum is not taken away by the Law Society in the payment of costs in circumstances such as I have related.
§ 6.31 p.m.
§ Mr. E. G. Willis (Edinburgh, East)
My hon. Friend the Member for Liverpool, Exchange (Mrs. Braddock) has undoubtedly raised a very important point which the Government should examine. If it is not a point to be dealt with in the Bill, perhaps it could be dealt with by regulations under the main Acts.
I rise to say a few words about the Bill, because it deals with Scotland and I feel that at least one Scottish Member ought to say something about it. Up to now no one from Scotland has spoken and, as usual, there has been no explanation from the Scottish Office about how the Bill affects Scotland. We have had simply a brief word from the Attorney-General, and that is not good enough.
I welcome the Bill as far as it goes, but it does not go far enough. All it does is to raise the limits of the main Acts to bring them into line with the extent to which the cost of living has risen since the original Acts were passed. The original Acts were passed in 1949 696 and became law in 1950. An increase of £280 upon £420 does not represent very much more than the fall in the value of the £. If it does only that, as it appears to, the Bill does not do very much.
We must not forget that not many years after the principal Acts were passed large numbers of people were being excluded because of the narrowness of the limits set by them. If the value of the £ falls again, that is likely to recur. I should have liked to have seen the limits higher than they are set at present. I was not very enthusiastic about the provisions and limits set in the 1949 Acts. I recognised that they met a need, but they did not meet it in the proper way.
Legal aid must be considered from the point of view of it being a social service which is paid for through Government machinery and used by the people in accordance with their needs. I know that that is to some a rather revolutionary doctrine and is not favoured by many lawyers, although there are lawyers in Scotland who prefer that attitude. The hon. and learned Member for Surrey, East (Mr. Doughty) said that he did not want to see lawyers controlled. Lawyers enjoy many things in this world, but they cannot have it both ways. If the State is to spend increasingly large sums of money on providing legal aid and meeting the expenses of lawyers in connection therewith, lawyers must accept the consequences. Whilst I welcome the Bill inasmuch as it remedies something which has been causing much criticism for many years, it does not seem to me to go far enough.
Clause 3 deals exclusively with Scotland. I am glad that the Clause is in the Bill. I believe that the Law Society recommended in one of its annual Reports that this provision should be made. A certain amount of publicity has been given to this and to the necessity of meeting the expenses of lawyers who prepare cases which are not ultimately accepted. However, the provision does not go far enough. Here I put in a word for the lawyers, which is a some-what unusual event for me. My dealings with them are such that I do not always feel too friendly towards many of them, but I must put in a word for lawyers in this connection. I wish to quote a case which I think would not be covered by Clause 3. An applicant in Edinburgh 697 went to the Law Society with a view to obtaining legal aid for bringing an action for damages. She was then sent to solicitors who spent about two years trying to prepare a case for her. At the end of those two years she decided that she was not satisfied with the lawyers. She went back to the Scottish Law Society. She was sent to another lawyer. As the second lawyer could not have access to the evidence accumulated by the first firm of lawyers, he had to set about trying to prepare a case. He spent a year to eighteen months trying, but was not able to do so. I did not see the evidence prepared by the first firm, but a considerable amount of work must have been done. Unless the case is taken before the Committee—in other words, unless there is a probabilis causa which is presented to the appropriate committee—I am told that the lawyers receive nothing. Perhaps the Law Officer will confirm that. That seems to be rather unfair to the lawyer and to the applicant.
A firm of solicitors is rather hesitant about the expenditure it incurs, especially in a case which takes a long time and probably demands the obtaining of evidence from witnesses in other parts of the country. In this case the witnesses were situated all over the country. It was exceedingly difficult to obtain witnesses. Indeed, it was very difficult to find where they were, let alone to obtain evidence from them. This position is unfair not only for the lawyer, who has gone to considerable trouble, but also for the applicant who is likely to find that the firm acting on her behalf does not do all that it should to try to build up the case.
That is inevitable in the nature of things, but Clause 3 does not do anything about it. Therefore, whilst the Government have undoubtedly met one of the criticisms of the administration of the scheme in Scotland, I doubt whether they have gone far enough. Perhaps the English may think that they ought not to, but in a matter like this the Lord Advocate should not so much consider the feelings of the people south of the Border. We want justice in Scotland —never mind what the English may be content with. The Lord Advocate or some other Scottish Minister should tell 698 us how the Bill, and this special provision that amounts to almost a quarter of the Bill, affects Scotland.
§ 6.41 p.m.
§ Mr. G. R. Mitchison (Kettering)
In the absence of a reply from any of the Scottish Ministers to what seemed to be a purely Scottish question on a purely Scottish Clause, I suppose that I have no alternative but to assume that there must be some sinister reason for their silence. If they really do not wish to speak, or if they have some reason for not doing so, perhaps I may be permitted to say a word or two about the debate.
It has been very interesting for the lawyers to listen to one another. They have approached the matter from slightly different points of view, but, at the end of the day, we should remember that on this occasion there has not been a cloud of witnesses. There has been a cloud of lawyers, and two witnesses. Only one of those witnesses was English, and that English witness brought up a point that I felt was very real, although whether it is very closely connected with this Bill is another matter.
There is something wrong when a man who has recovered substantial damages from an insolvent or, shall I say, a poor person, finds that whatever money that person has must first go to the Legal Aid Fund and that the successful litigant thereby gets nothing by way of damages. I know that that point of view may be shocking to many lawyers if they look at it too much as a legal matter, but they will agree that when one looks at it as an ordinary social question it is right that that state of things should end, and that there should be some provision for it in a Bill that provides a form of legal service.
I shall not go over all the comments made by my hon. Friends, but shall, instead, select one or two points. One is that it is the experience of many of us that when dealing with constituents the danger point, if I may call it that, in the legal aid arrangements is the county court; that is to say, there are people who want to bring comparatively small but very real cases in the county courts, and they are the people who are apt to find that under the scheme the difficulties of doing so are too great.
The Eighth Report says that the average contribution to county court cases is 699 rather over £40 and that the average contribution to High Court cases is rather over £50. On the other side of the picture we have my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) asking that for the small litigants—the under-£50 claims in the county court—there should be some simplified procedure. I shall not go into the details—I no longer practise at the Bar and should not feel competent now to do so—but I suggest that as the scheme develops, the county court, and particularly the small cases in the county court, ought to be watched very closely in order that, if possible, things may be simplified.
I turn now to the Divorce Department of the Law Society. I appreciate the difficulties and the objections, and the murderous tendencies of various speakers today in regard to that department are easy to understand. However, we have to remember, when all is said and done, that it is dealing with a certain number of simple divorce cases, and dealing with them, as one of the notes in the Report says, very cheaply indeed.
While I agree with what one of my hon. Friends said, that litigants ought to have the right, where practicable, to choose, there are many simple cases where litigants are very glad indeed to have the services of the Divorce Department. From the point of view of economy of administration, there is something to be said for it, even when we have to complicate the figures by bringing in the administration costs of the department itself.
Next, I want to congratulate the hon. Member for Brierley Hill (Mr. Talbot) who, in a maiden speech, gave us a sympathetic and lively picture of some of the difficulties of solicitors in country practice. He made us see something of what the country solicitor's day's work is like. That is always a very good introduction to this House. I hope that we shall hear him again and have the benefit of his experience.
I have left my congratulations on the hon. Member's maiden speech to this stage because he mentioned particularly the hardship he felt had been caused in a number of cases by the inability of people to go to the Lands Tribunal. Whatever the merits or demerits of this case may be, I suggest we could not have 700 taken a better instance to illustrate the point put forward by my hon. Friend the Member for Aberavon (Mr. Morris) and others of my hon. Friends, that it is time that legal aid should be extended to tribunals and—I agree with the hon. Member for Crosby (Mr. Page)—to arbitrations, too.
I think that it was my hon. Friend the Member for Aberavon who mentioned insurance policies. That is a very common case. An arbitration clause in an insurance policy may really defeat a poor litigant who, in court, would have been able to get legal aid but cannot get it in arbitration proceedings. As those of us who have practised at the Bar well know, arbitrations do not always save expense, They have been known to develop into a game of procedural shuttlecock that adds to the cost.
When the Legal Aid Scheme was first introduced, there was no Franks Report, and hon. Members on both sides have joined in trying to give a measure of legal protection and legal regularity to tribunals—for that is the broad effect of the Franks Report—and it seems to follow as a corollary to that that legal aid should be extended in this way.
That brings me to a rather broader point. The vast majority of the provisions of the present Act have, in one form or another, been brought into operation. There is very little left. It is about time that the Government cleaned it all up and applied legal aid or legal advice in all the places where it could be done under the Act; Section 23 was mentioned by my hon. and learned. Friend the Member for West Ham, South. It would be simpler now to complete the Act, and it does not require very much for that to be done.
We welcome the Bill as a whole because it provides for the type of increase for which we have been asking. I cannot, however, conclude without saying that it seems to me that the Government, or the Treasury, have been a little tight-fisted. These increases ought to have been brought in a long time ago. In the circumstances, it was unwise and not really right to embark on the nice calculations with which the right hon. and learned Gentleman presented us and to cut down on a matter of this sort the recommendations of their own Advisory Committee. I should have thought that 701 it was just for this sort of point that the Advisory Committee was set up, and that when we get this Report it requires very special grounds and not mere niceties of calculation to cut down the figures that that Committee suggests to the Government.
I should like to make one more point, and here I go beyond the Advisory Committee. I do not feel that the capital arrangements are satisfactory at present. This figure has remained very low in proportion to the income figure for a long time. It is not operated on the same lines as the National Assistance capital provisions. There are disregards in connection with National Assistance which do not apply in these cases, and this is justified in the Advisory Committee's Report of December. The Advisory Committee was asked to consider this question, and stated:Capital is accumulated, as the Rushcliffe Committee recognised, as a 'nest egg' for dealing with emergencies, and legal proceedings if undertaken in good faith are emergencies for which capital should be used.There are all kinds of things that are emergencies, and many of them have to be provided for by National Assistance and the like. But why this particular emergency should result in this sort of treatment of capital I do not understand.
The Committee goes on quite illogically to say:… some regard has to be had to the decline in money values and to the desirability of encouraging people to save.The Committee then suggests the amendment of £125 that we have in the Bill. My comment on that is: if it is thought that some regard has to be had, surely more regard ought to be had. Surely this capital amount ought to have a substantial increase corresponding with the increases which have been made from time to time. Indeed, it surprises me that I should have to say this to a Tory Government who, I thought, were proud of encouraging people to save. I always feel that many of the hardships of legal aid lie in calling on people to spend their savings in order to vindicate what is their right or, if one likes, to defend themselves against an accusation which proves to be unfounded. It is, in a sense, an emergency, but it does not seem to me to be morally right that savings should be called upon for that purpose.
702 I would make one comment on the point about the provision for successful opponents recovering from the Legal Aid Fund. This point was made by many hon. Members, and one sees the point, but I would like to make this comment. First, it is not entirely a comment on the Legal Aid Fund. This is really the difficulty of the insolvent litigant—the man who, with or without sufficient resources, starts an action against a council, let us say, in the hope of getting it settled and not for much other reason, and the council, regarding his insolvency, may think it expedient to pay a little money without really being liable. It is a general scheme.
Secondly, I would say this about it. If we are going to do this, we are then going to increase the liability of the assisted litigant, and this will involve a pretty comprehensive reshaping of some of the conditions about his own contribution. I am not saying that it is not a matter which should be examined; I feel that it is. But I do not think that it is so simple a matter as some hon. Members have indicated today.
We on this side of the House support the Bill because it represents some increase. We feel that there are many other things that could still be done to improve the Legal Aid Scheme, that there are points which need looking into, that many of them indeed have arisen and have been commented on in today's debate, and that after this excellent debate we on these benches will not divide the House.
§ Mr. William Ross (Kilmarnock)
On a point of order, Mr. Speaker. This Bill includes a provision applying to Scotland and I was wondering whether any Scottish Minister would give us an explanation of the Scottish Clause, Clause 3.
§ 6.57 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
My right hon. and learned Friend the Attorney-General and I are very grateful for the reception that the Bill has had today and for the valuable speeches and fertile suggestions that have been made from both sides of the House.
703 There have been many good speeches today, but I know that the House would wish me to single out the maiden speech of my hon. Friend the Member for Brierley Hill (Mr. Talbot). I should like to join with the hon. Lady the Member for Liverpool, Exchange (Mrs. Braddock) and the hon. and learned Member for Kettering (Mr. Mitchison) in their very felicitous and completely merited tribute to my hon. Friend for that speech. It gave us a picture of the working out of the scheme on the ground, as one sees it from a country solicitor's office, that was of very great value to our apprehensions in the debate.
There have been a number of other suggestions and ideas on which I will not comment at this time, except to say that we will, of course, study them gratefully and constructively in the course of the next few weeks.
The hon. Member for Pontypool (Mr. Abse), who is not now here, put forward a general argument—I thought tenuously attached to the Bill—about the organisation of the legal profession and, indeed, the whole legal system, and it certainly extended far beyond the Legal Aid Scheme. I thought that he was lucky in some ways to be allowed to deliver the whole of that speech; and I do not think that it would be appropriate for me to reply to it, except to say that the matters with which he dealt were reviewed by the Evershed Committee, whose conclusions by no means accorded with his, and some of them are being considered at the moment by the Streatfeild Committee, as my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) pointed out.
I should like to deal with a number of leading issues which have been raised. I know that the hon. Member for Edinburgh, East (Mr. Willis) will acquit me of any sort of discourtesy if I do not deal with Clause 3, because he did not have the advantage of hearing the explanation of my right hon. and learned Friend the Attorney-General in introducing the Bill. I think that I should be doing the House an injustice if I repeated what he said.
§ Mr. Willis
I am sorry that I did not hear what the right hon. and learned Gentleman said. I made inquiries and I was informed that what he had said had been a very trifling contribution to 704 the debate. [Laughter. ] I mean that what he had to say about Clause 3 had been a very trifling contribution to the debate. I was not referring to his speech as a whole. Indeed, I understand that the right hon. and learned Gentleman was most diffident even in making the few remarks he did.
I did ask about the extent of the Clause and I quoted a specific case. Surely we ought to have an answer about that from the Scottish Ministers.
§ The Solicitor-General
I can only say that, even within the limits to which the hon. Gentleman finally restricted his remarks, he is quite misinformed about my right hon. and learned Friend's speech. When he reads it in HANSARD, he will, I think, find that my right hon. and learned Friend dealt with the very point to which the hon. Gentleman adverted.
The Legal Aid Scheme as a whole has stood up very well to examination today. The essence of the scheme is that the Legal Aid Fund should be put in the same position as the solicitor of a private client and the legally aided litigant should be treated, so far as possible, exactly as a litigant litigating privately. From that arise the circumstances to which the hon. Lady the Member for Liverpool, Exchange referred. Because of that conception of the Legal Aid Fund, it was laid down in Regulation 16 (6) of the Legal Aid (General) Regulations, 1950, made under the 1949 Act, thatUpon receipt of moneys paid to them by virtue of this Regulation, The Law Society shall retain—(a) any sum paid by virtue of an order or agreement for costs made in the assisted person's favour.I have had the very great pleasure of serving with the hon. Lady on a Royal Commission. I know her deep interest in social problems and the very solid way, if she will allow me to say so, in which she approaches them. I am sure that she will understand that, although in individual cases this may work out unfortunately, it is inherent in the scheme if one is to endeavour to treat the assisted litigant in the same way as a private litigant is treated. No doubt, we shall have the opportunity to look further into that matter, even if we do not have the opportunity of discussing it on this Bill.
§ Mr. Mitchison
There is this difference, that, if the solicitor concerned had been a private solicitor in a case like that, it would have been open to him to forgo his right to have the first payment applied to costs and to allow the injured person to receive some damages. The difficulty of the Act and the regulations made under it and the character of the Fund is that that is impossible.
§ The Solicitor-General
The hon. and learned Gentleman is, of course, quite right in saying that it would be open to a private solicitor to behave in that way. Of course, the normal relationship of solicitor and client is a business one.
The first of the principal topics which arose in the debate related to the cost of the Scheme. The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) asked for the cost of the scheme. Last year, the cost of the scheme was £1,400,000. If one adds to that the new provisions relating to oral advice and legal aid under Section 5 which will come into effect shortly, the extra cost will be £232,000.
There are then the new assessment regulations which will add an extra £100,000. The Bill's proposals will amount to about £675,000, and the magistrates' courts will account for £250,000. The total of those figures is £2,657,000. Those are the figures for England and Wales only. I regret that I am unable to give an estimate of the cost of extending the scheme to tribunals or the Judicial Committee of the Privy Council.
§ Sir L. Ungoed-Thomas
The right hon. and learned Gentleman gave a figure of £232,000, I think, with reference to legal advice. Is that a net amount taking into account litigation which it is calculated will be avoided by reason of the giving of advice, or is it the fact that the cutting down of litigation as a result of the legal advice provisions is not taken into account in the figures he has given?
§ The Solicitor-General
It must be the latter, because at this stage the net effect would be absolutely incalculable.
The comparable figures for Scotland are as follows. The cost last year was £179,000. The figure for oral advice is £5,000 and for Section 5 £10,000. I gave those two figures together in the English 706 figures. For the new assessment regulations the figure is £12,000 and for the proposals in the Bill the figure is £95,000. The Scottish Land Court will account for £1,000 and the Lands Valuation Appeal Court will account for £1,000. The total there is £303,000.
I am told that it is not possible to forecast the cost of introducing in Scotland legal aid in criminal proceedings until the report of the Guthrie Committee, which is now considering this subject, is received. It can reasonably be expected to amount to between £200,000 and £300,000 a year. I hope that I shall not be blamed if those limits are exceeded.
Those are all very large figures. Several hon. Members have quite rightly said that this is a social service, but it is an expensive social service which has to compete in the Exchequer with other expensive social services. Although, today, our interests are rightly focussed on this scheme, we must not lose sight of the fact that there are other claims upon the taxpayer and such funds as are available.
The hon. and learned Member for Leicester, North-West asked me how the scales under the Bill and the scheme compare with the National Assistance scales. The answer is that, by and large, they are identical in both income and disregards. But, as the hon. and learned Member for Kettering pointed out, there is a divergence when capital is considered. This leads me to deal with the third of the topics raised by several hon. Members, including my hon. and learned Friend the Member for Warwick and Leamington (Mr. Hobson), and two hon. and learned Members opposite, namely, the capital limit of £500.
We are not altering the limit there, and we have taken that course because we were recommended to leave it where it is by the Advisory Committee. In paragraph 11 of its Report, Cmnd. 918, the Advisory Committee says:The proviso to section 2 (1) of the Act provides that a person may be refused legal aid if he has a disposable capital of more than £500 and it appears that he can afford to proceed without legal aid. We recommend no change in this provision.The hon. and learned Gentleman traced that back to the recommendation 707 of the Rushcliffe Committee, which said that the capital could be expected to be called on if there were a sudden emergency. It seems to me that the sudden emergency of litigation is quite different from the emergency which calls in the National Assistance Board. That is a continuing emergency in a sense, and, therefore, it is reasonable to have a wider disregard from the point of view of capital than under the Legal Aid Scheme. At any rate, that is, I should have thought, the idea behind the Rushcliffe Committee's recommendation.
§ Mr. Mitchison
It was not I who traced it to the Rushcliffe Committee. It was the Advisory Committee itself, in paragraph 8 of its Report. Having said that, the Committee then made a concession in order to have some regard to the decline in money values and to the desirability of encouraging people to save.
§ Sir L. Ungoed-Thomas
The rub on the capital point is that it takes everything over £75, which is now increased. That is what appears to us on this side to be so extremely severe.
§ The Solicitor-General
I appreciate that. That is fundamental to the idea of calling on capital for the sudden emergency of litigation. A line must be drawn somewhere.
It seems to me that this further conception may have lain beneath the Rushcliffe Committee's recommendation and, indeed, the Advisory Committee's recommendation. A person may have capital sufficient ex hypothesi to finance litigation. In those circumstances, would it be fair or right to call on other people, the general taxpayers, some of whom may be considerably less well off from the point of view of income and capital, to assist in the litigation which, as I say, the litigant himself is capable of financing?
The next matter which was canvassed concerned the future of the Divorce Department of the Law Society. This was raised by the hon. Member for Pontypool and, in a very interesting speech, by the hon. Member for Aberavon (Mr. Morris). The argument was that the legally-aided litigant is placed in 708 a different position from that of the private litigant in that he cannot have a free choice of solicitor. It seemed to me that there was great force in the reply of the hon. and learned Member far Kettering. The hon. Member for Pontypool said that undoubtedly it has done useful work in the past, and I am sure that the hon. and learned Member for Kettering was right when he said that there were good reasons of economy for setting it up.
We have not formed any final conclusion about the future of the Divorce Department of the Law Society. The position at the moment is this. We are to pass this Bill which will greatly extend, as has been recognised, the number of people who may be claimants for legal aid. It seems to us, particularly as the Divorce Department has worked well in the past, that this would be a bad moment to wind it up suddenly. It may, as my right hon. and learned Friend said, have to run down for administrative reasons, but this would be a bad moment to make a sudden break in a machine which is functioning satisfactorily.
§ Sir L. Ungoed-Thomas
Obviously, important questions are involved here. If there is a change of policy, will the House have an opportunity to discuss it before it is put into operation?
§ The Solicitor-General
I would not like to give an immediate answer to that question, because I am not sure whether it would need a resolution. At any rate, I do not doubt that there will be an opportunity to discuss that matter in the course of the Bill, when I will try to give a specific answer to the hon. and learned Member.
The fifth main point which was raised concerned the remuneration of the legal profession in operating the provisions of the Bill and the Legal Aid Scheme. The Rushcliffe Committee recommended, and the scheme originally set up by the party opposite implemented, a deduction of 15 per cent. from the sum normally payable to the solicitor or counsel conducting the case. The Rushcliffe Committee pointed out that that deduction represents 50 per cent. of the profit normally remaining to a solicitor after he has met his overhead expenses. The Law Society has represented that the profit of a case was frequently—in fact, it said, normally—less than 15 per cent.
709 Again, I think that this is not a subject on which we should take up a rigid position, but the new and uncertain factor at the moment is that the new costs rules, as the House knows, came into effect on 1st January this year, and none of us has yet had practical experience of their effect. There is no doubt that they will very considerably raise solicitors' profit costs—probably by over 30 per cent. Again, this would be an inauspicious moment to revise that figure of 85 per cent., but it is one which we will keep under constant review and which we have taken power under the Bill to raise if circumstances so demand.
§ Mr. J. T. Price (Westhoughton)
While the Solicitor-General is giving deep thought to the proportion that ought to be retained, will he bear in mind, in considering the question of the payment of costs from a State fund as compared with payment from a private client, that the solicitor of a private client has to rake into account a number of bad debts and irrecoverable costs? Anyone in practice will bear testimony to this. I should imagine that 85 per cent. guaranteed by a State fund is a much more valuable guarantee to the legal profession than 100 per cent. which has to be collected by the hit-and-miss methods now open to it.
§ The Solicitor-General
Undoubtedly there is a certain amount of force in that assertion which was made very pointedly by the hon. Member for Aberavon. There is no doubt that the certainty of payment and, to a great extent, the speed of payment under the scheme has been of value to the legal profession. It is not unreasonable that that should be reflected in the percentage—
§ The Solicitor-General
The hon. and learned Gentleman must work that out from his own Stock Exchange experience. At any rate, as I said, we have taken power to raise the percentage by regulation, when we know rather more about the working of the new cost structure, if that is indicated.
710 Lastly, many hon. and learned Members raised the question of the costs of an unassisted litigant. This is a very difficult question which we have to weigh. Undoubtedly, it is a hardship to an unassisted litigant whose opponent is assisted and who, when he succeeds, fails to recover the costs which he has incurred in vindicating himself. Undoubtedly, where a legally-aided litigant has lost in the first instance and legal aid is then extended so that he may take the case to the court of appeal where the unassisted litigant again wins, the hardship seems even more difficult to bear if only because the chance of recovering any costs there must be very remote.
It is easier to state the case than to find the solution. In the time of Queen Elizabeth the form of order for admitting a person to sue as a poor person read:But if the matter shall fall out against the plaintiff, he shall be punished with whipping and pillory.I do not think that even my hon. Friend the Member for Ayr (Sir T. Moore) would go as far as that desperate expedient in this case.
By the eighteenth century there were virtually no sanctions but the operation of the poor persons procedure was very restricted. By the beginning of this century, as hon. Members know very well for they must themselves have taken part in the operation of such schemes, there was a committee of lawyers which investigated every case to see that a prima facie case was made out. The unsuccessful litigant admitted as a poor person was ordered to pay an opponent's costs only if it was found that he was admitted as a poor person by fraud or misrepresentation.
I am sure that the hon. and learned Member for Kettering is right when he puts the matter in its wider setting. This problem is not a new one nor, as he pointed out, is it limited to legal aid. It is a problem which is inherent whenever a man is sued or sues and is not good for the costs.
A number of suggestions have been made in the course of the debate about which I should like to say a few words. The first is the suggestion of payment of the assisted person's opponent's costs by the Exchequer in some form or another, either by an indemnity fund or 711 by automatically paying the amount which the award against the assisted person does not cover. The first and principal difficulty is the cost. As I think my hon. Friend the Member for Crosby (Mr. Page) pointed out, it would cost £200,000 to set up a full idemnity fund for the High Court alone. That sort of sum must be viewed not only in the light of other calls for the extension of legal aid which we have heard today, but also in the light of other claims for other social services.
Secondly, and perhaps even more important within the immediate context of the scheme, it would mean the State embarking on both sides of litigation. That happens occasionally at the moment under the Legal Aid Scheme, but it is inherently undesirable, as I see hon. Members with experience of litigation under the scheme agree. As my right hon. and learned Friend the Attorney-General said in opening the debate, it is important that legal aid should not actively encourage litigation.
Among other things, the conduct of the action being uncontrolled, there would be no control over the incurring of costs by the unassisted litigant who would claim to be indemnified. As a marginal point, it might also tempt committees to tip the scales in favour of granting legal aid when they should refuse it. On these grounds, and most of all because of the cost and the fact that it would be an incentive to litigation, we should pause very long before adopting that expedient.
My hon. Friend the Member for Crosby mentioned some other matters which were very useful to have reviewed. He mentioned that leave to appeal should be sought in the case of a legally assisted person who had failed in the court below and wished to go to appeal, just as in an interlocutory appeal leave to appeal must be given by the court below or, on refusal, by the Court of Appeal. Among the arguments against this is that it differentiates between the legally assisted litigant and the paying litigant who does not have to have leave to appeal.
On the other hand, the poor person under the old procedure had to have leave and so, I think, did the bankrupt. But it is a matter which we should bear in mind as a possible way of saving 712 litigation where there is no chance of a successful litigant recovering his costs.
§ Mr. Mitchison
Would the hon. and learned Gentleman help me? If there is a question of appeal, does not the litigant have to consult the people responsible for administering legal aid and therefore this would be adding to or substituting the court for the legal aid authority?
§ The Solicitor-General
The hon. and learned Member is quite right. That was the point I was next going to make.
It would be a definite inroad into the Legal Aid Scheme in that under the structure of the scheme we give responsibility to the Law Society through its local or area committees to say whether the proceedings are to be brought. It is only fair to mention also that appeals are considered not by the local committees but by area committees. The proportion of successful appeals is just about 50 per cent. and that figure is actually higher than successful appeals to the House of Lords where the leave of the Court of Appeal or the House of Lords is required. Nevertheless, having said that, I still do not think that it is a matter that we should exclude altogether from view.
Similarly, my hon. Friend the Member for Crosby mentioned the point, though only with disfavour, that we might try to improve the machinery of bringing to the notice of the Legal Aid Committee any reasonable offer made immediately before or even during the course of litigation with the object of trying to restrain the pursuit of the litigation where there was no chance of a succcessful defendant or respondent recovering his costs.
Another matter which it is right to mention is that there is power already in the judges under Regulation 15 (6) to call on the unassisted party to file an affidavit setting out his means so that the court can take that into account in awarding costs in his favour. I am told that the power is rarely exercised. It seems to me a valuable one. There are already a considerable number of disregards, both capital and income—and quite rightly—which are very relevant when one is considering whether legal aid should be granted and what contribution should be demanded from the 713 litigant towards the Legal Aid Fund and the taxpayer generally.
But the situation is different when it is between one litigant and another where the legally aided litigant has failed. It seems to me that the balance of hardship is then a different one; and particularly now that we are raising the disregards, it seems to me that it would be reasonable that the judges should exercise the power to make a much closer investigation of means and see whether in all the circumstances it is not fair to make a positive order for costs against the legally aided litigant who has failed on a rather stricter standard than in the past.
I hope that I have dealt with the main points raised in the debate. We will consider the suggestions made. We shall be able to discuss the details of the Bill, including the Clause mentioned by the hon. Member for Edinburgh, East, when we get to Committee.
§ Mr. Willis
When we deal with the Scottish Clause can we have an assurance that at least on that occasion it will be dealt with by Scottish Law Officers?
§ The Solicitor-General
I will gladly draw that suggestion to the attention of my right hon. and learned Friend the Lord Advocate—indeed, he is here himself to hear that helpful and, as it seems to me, constructive suggestion.
As I have said, we are grateful for the support which is being given to the Bill. Those of us who are lawyers—and we have mainly contributed to this debate—get great enjoyment from the exercise of our profession. But in the end, what contributes most to our satisfaction is the thought that we are trying to serve in our way the great cause of justice. One of the things that is most painful is to find someone who is labouring under a sense of injustice and who feels that the courts are closed to him for lack of means. It is because the Bill improves the machinery for ensuring justice, not least to those who are poorest, that I again commend it to the House.
§ 7.32 p.m.
§ Mr. William Ross (Kilmarnock)
I am sorry that I have to come in at this 714 moment, Mr. Speaker, but it would be much better if there had been an intervention from one of the Scottish Ministers. It is a sad day for Scottish law that such a thing should have happened. One of the things we were guaranteed by the Act of 1707 was that Scotland, as a nation, began to get the continuance of its own law. Over the past few years, under a Conservative Government, we have seen Scotland being sorely trampled upon, and legislation which merited a separate Scottish Act of Parliament being churned in along with English legislation. So it did not come to us as any surprise, when there was a new Legal Aid Bill, that we were again part of an English Bill. But even accepting that, we did not expect that when the occasion came to debate the Bill we would not hear a single whisper from any of the Scottish Ministers, particulary the legal officers.
If the Attorney-General thinks that this is not such an important Bill, does he not think that it is sufficiently important to Scotland that one of the Scottish Law Officers should address himself to it? After all, the main parts in relation to Scotland which are alike could have been equally dealt with by a Scottish Law Officer. Of course, we have the apology from the learned Solicitor-General and the promise that we shall get more elucidation of the Scottish part in the Committee.
The fact is that Clause 3, which is an important one, does not apply to England and Wales, but only to Scotland. whereas the other Clauses apply equally to England and Wales. I am tempted to go over the whole Bill from Clause 1, but I will resist that temptation. I take the introduction of the Bill as a measure of success of years of prodding by my hon. Friend the Member for Edinburgh, East (Mr. Willis) and myself. I can remember when the Legal Aid Bill went through in the Scottish Grand Committee, because we had a Scottish Bill then. My hon. Friend and myself acted more or less as the Opposition at that time and expressed our dissatisfaction with the statutory limits that were laid down. Although it has taken ten years for the limits to be raised, I join with my hon. Friend in again expressing our dissatisfaction with the limits as they presently are.
715 I want to try to telescope two speeches into one, Mr. Speaker, and I am glad to see from the Money Resolution that it will be possible for us to make suggestions in relation to its amendment—does the Lord Advocate wish to intervene?
§ Mr. Ross
I thought that the right hon. and learned Gentleman wished to refer to something I had said. I did not realise that he was going to make his speech. He must not do that yet. I want to ask the Lord Advocate why Clause 3 is there and why it is limited only to Scotland. Does he think that it goes far enough? When we appreciate the time and trouble taken in preparing a case for submission in relation to the establishment or refusal of legal aid, it is pretty bad, when a certificate is granted, if the client refuses to accept it and does not go on to proceedings.
Surely the same difficulty will arise in relation to a closely contested case if legal aid is granted but not accepted because of the amount of work done by the solicitor. What are the reasons that have made the Lord Advocate not press for the inclusion of that type of case, for the proper remuneration of a solicitor in that instance? It may well be that just as much work is expended, that there is just as much expense and labour in respect of the gathering of evidence, seeing witnesses and the rest. What effect does the Lord Advocate think the fact that this remuneration will not be available will have on whether or not a solicitor will proceed very far in the case? It may well be that because of this bar many a case that has been accepted by the Legal Aid Committee may not be proceeded with.
Despite what we have said, we must appreciate that lawyers might well be human, and might have no desire to submit themselves to losses in respect of such work and effort. Does not the Lord Advocate think it would have been wiser to allow us to discuss this in Committee? Judging by the Money Resolution, this is one of the things we shall not be able to amend in Committee, as I read paragraph (c). Did not the Lord Advocate appreciate that by word- 716 ing his Money Resolution in such a way he would not give us an ample opportunity of raising a controversial point?
Apart from that, we are glad to have the Bill. It does not go far enough, but, unlike the Solicitor-General, I am sure that there are still many people who will not get the legal aid to which we think they might have been entitled, as a result of the financial limitations here laid down.
§ The Lord Advocate (Mr. W. R. Milligan)
May I answer briefly the points made by the hon. Gentleman the Member for Edinburgh, East (Mr. Willis) and by the hon. Gentleman the Member for Kilmarnock (Mr. Ross) in regard to Clause 3, which is the Scottish Clause? The point raised by the hon. Member for Edinburgh, East related to circumstances in which no legal aid certificate was ever granted, and it is suggested that by both hon. Gentlemen that provision might have been made in certain circumstances that the solicitor should be remunerated.
I would draw the attention of hon. Members to Section 1 (6) of the original Act, which provides that a person shall not be given legal aid unless he has probabilis causa litiganti. It was thought at that time that that was appropriate. I think it is right that unless a person has a probable case which satisfies the financial arrangements no legal aid should be granted.
The second situation which may arise—it is the one which Clause 3 is designed to meet—is where a legal aid certificate is offered but is not taken up. In those circumstances there is a probabilis causa litiganti, and, in our view, the solicitor is well entitled to be remunerated for his services.
The third type of case is that existing at present, where the certificate is granted and is taken up and the solicitor gets his remuneration. I appreciate the points made by hon. Members. One might go back much further and say that when any solicitor was consulted at any time he should get remuneration, but, of course, under certain other provisions in the Bill he has an opportunity, under legal advice and the like, of getting remuneration for what he does. Clause 3 is meant to deal with the situation in which there is injustice to the solicitor, where he has done all his work but for 717 one reason and another the person who has been granted a certificate does not feel disposed to carry it forward.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee, pursuant to Standing Order No.38 (Committal of Bills).