§ 10.12 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
I beg to move,That an humble Address be presented to Her Majesty, praying that the Legal Aid (General) Regulations, 1960 (S.I., 1960, No. 408), dated 11th March, 1960, a copy of which was laid before this House on 18th March, be annulled.This Prayer is brought before the House really in continuation of the debate we had on Report stage and Third Reading of the Legal Aid Bill a short time ago; and in the hope of clearing up two points that were left outstanding on that date. As those who are interested in these subjects will know perfectly well, the position is that in computing the disposable capital or income of a person who is claiming legal aid, certain items are disregarded and certain allowances are made. The allowances with which I am now concerned are those for a spouse, a child or another dependant.
The position with regard to the allowances is a little complicated, and, I think, a little unnecessarily complicated by these Regulations and the other provisions that the Government have made. There are in the case of matters not involving litigation different allowances from those in the case of matters involving litigation. In the case of capital, there are different allowances from those in the case of income, whether the capital or income comes under matters not involving litigation or comes under matters involving litigation. Therefore, as I understand it, we have four separate sets of allowances in respect of a spouse, a child or another dependant.
These Regulations against which we pray deal with matters not involving litigation. Paragraph 9 of the Schedule provides for allowances in computing the income of an applicant. It provides that in computing the income of an applicant there shall be allowed £78 in respect of a spouse, £65 in respect of a child and £78 in respect of any other dependant. What we were very much concerned about on the Report stage of the Legal Aid Bill was that at that time no similar allowances were made in assessing the disposable capital. That seemed to us utterly indefensible and we pressed hard 830 on more than one occasion to have similar allowances made in respect of capital.
Since we decided to put down this Prayer there have been amending Regulations which make allowances in respect of capital in non-litigious cases. But the allowances which are made are different from those which we have in paragraph 9 of the Schedule to these Regulations in respect of income in non-litigious cases. Instead of £78, £65 and £78 for a spouse, a child and another dependant respectively, the amounts are £75 for a spouse, £50 not for a child but for a second dependant, and £25 not for another child but for a third dependant.
§ The Solicitor-General (Sir Jocelyn Simon)
The hon. and learned Gentleman is dealing with capital now, is he not?
§ Sir L. Ungoed-Thomas
That is right. I am comparing the allowances made in respect of capital under the new amending Regulations as contrasted with the allowances made in respect of income in paragraph 9.
§ Sir L. Ungoed-Thomas
I appreciate that. The amendments, of course, are to paragraph 8 because paragraph 8 deals with capital. If the amendments were to paragraph 9 they would be in respect of income. As a result of the amendments to paragraph 8, we have a discrepancy between the allowances in respect of capital and the allowances in respect of income. The amounts are different and the ways in which they are arrived at are different.
In paragraph 9—if I may repeat what I have already said to get it completely clear between the Solicitor-General and myself—there is £78 for the allowance in respect of a spouse. That compares with £75 for a spouse in respect of capital under the amending Regulations. The second item, £65 in respect of a child, compares with £50 in respect of a second dependant—not a child at all but any second dependant. That is the allowance made under the amending Regulations for calculating capital. Thirdly in paragraph 9 relating to the calculation of income we have £78 in respect of any other dependant, and that contrasts with £25 in respect of a third 831 dependant in assessing the capital under the amending Regulations. We have discrepancies there not only of amount but also in respect of the persons relating to whom those amounts are calculated. We have the spouse the same in each case, but instead of a child we have a second dependant, and instead of another dependant we have a third dependant.
Why are there these different methods of dealing with it? Why the different amounts, and why the different description of persons in respect of whom the amounts are allowed? The impression it gives is of an inefficient jumble, and moreover, the impression one has of the smaller sums allowed in the amending Regulations is that there has been some rather severe cheese-paring by the Treasury after the Lord Chancellor's Department and the Attorney-General's Department have had the principle of applying the allowances accepted.
Obviously, in all these cases, the need is the same. In every case, the need is to provide for a dependent wife, a dependent child or some other dependant. I completely fail to understand why there are these differences in the methods of calculation or, indeed, in the description of the dependants in respect of whom the allowances are made. That is the first point.
To pursue the discrepancy a little further, I come now to the litigious cases. In litigious cases, the allowances—dealing with capital alone, in the first place—for a spouse, a child and another dependant are governed now, as I understand it, by the 1950 Legal Aid (Assessment of Resources) Regulations, and there we have an all-over sum of £75. It does not matter whether it is merely a wife, or a wife and a child, or a wife, child and another dependant; we have an all-over sum of £75, however many dependants are involved.
I understand that it is intended to bring in other Regulations which will make the allowances the same as the capital allowances in non-litigious cases, that is to say, £75 for a wife, £50 for a second dependant and £25 for a third dependant. I should like to know whether that is so.
§ Mr. Speaker
I am sorry to interrupt the hon. and learned Gentleman, but I am under an obligation, unfortunately, to 832 keep the debate in order. Can that be managed without a discussion of some Regulations other than these? If it can, I do not desire to object. If it cannot, then I must ask him not to pursue that topic.
§ Sir L. Ungoed-Thomas
I appreciate that, Mr. Speaker. The only point I was making was that we have these discrepancies, and part of the discrepancy arises from a provision within these very Regulations.
§ Mr. Speaker
We cannot, I think, discuss what some future Regulations might or might not provide. I do not wish unduly to restrict the hon. and learned Gentleman, but I have to make that clear.
§ Mr. Eric Fletcher (Islington, East)
On a point of order, Mr. Speaker. It seems to me that we are in a quite unprecedented position. We are praying against a Statutory Instrument, No. 408 of 1960. Since this Instrument was made and since it was laid before Parliament, a subsequent Statutory Instrument has been made, No. 730 of 1960, made on 13th April and laid on 20th April, which purports to amend Statutory Instrument No. 408 of 1960 in respect of which this Prayer is moved. I am not familiar with any case in which this situation has arisen hitherto. For the guidance of hon. Members, I would ask you to say that, in commenting on a Prayer against this Statutory Instrument, in the unprecedented circumstances in which we find ourselves, one is entitled to refer to a Statutory Instrument made since and amending it. I have no doubt that, in due course, we shall be praying against the subsequent Statutory Instrument. It seems to me that we shall find ourselves in a difficult position if we cannot comment on the subsequent Instrument which purports to amend the Instrument with which we are dealing.
§ Mr. Speaker
The hon. Member for Islington, East (Mr. Fletcher) understands my difficulty. He has told me many things which I did not know and into which I would never have had the time to inquire, but, for the purpose of the debate on these Regulations, no doubt it is right to complain about these Regulations in so far as something which has happened since shows perhaps that they are, in form, inadequate 833 or fail to anticipate enough. What would not be in order, I conceive, would be to deal with the provisions of some future Regulations separate from these. It may be that I stopped the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) too soon, but I do not want the debate to run beyond the limits that I can permit.
§ Sir L. Ungoed-Thomas
I hope that I shall keep in order, Mr. Speaker.
The point that my hon. Friend the Member for Islington, East (Mr. Fletcher) makes is this. These Regulations provide for computing the income of an applicant and the allowances in respect of the income. They do the same in respect of capital by the calculation both of allowances on income and capital under these Regulations in non-litigious matters.
There are other Regulations already in existence which deal with litigious matters. Part of my complaint is that there is a discrepancy between the non-litigious and litigious treatment. I submit that that is relevant to these Regulations and therefore within the four corners of the debate. The only reason for making reference to any future regulations was by way of concession to the Government and in anticipation of what I knew their reply would be. With regard to some Regulations in litigious matters, the Government are to bring the matter into line with these Regulations. That is the only object of referring to future regulations. I hope that that would be within the four corners of the rules of order.
In litigious cases, the allowances for the spouse, child and dependants are at present covered by the 1950 Legal Aid (Assessment of Resources) Regulations and £75 is an overall figure for all dependants, irrespective of the number of dependants involved. This is where I am making a concession in anticipation of the Government's reply. I understand that they intend to make regulations which would bring the matter into line with the capital allowances made under the amending Regulations in non-litigious cases to which I have referred, namely, £75 for the spouse, £50 for the second dependant and £25 for the third dependant. That leaves outstanding income allowances in litigious cases.
834 The position of income in litigious cases is governed by the Legal Aid Assessment Regulations, 1959. Again, they are different because they are based on the National Assistance regulations for the time being. This is a slightly complicated, but unnecessarily complicated, situation. We should like to know the reason for the difference of treatment in these four categories of case. If the Government, as I understand it, bring the capital allowances in litigious cases into line with the amending Regulations which make the capital allowance in non-litigious cases, we shall have, first, the same allowances in capital cases, whether litigious or non-litigious cases; secondly, a different set of allowances for assessing income in litigious cases; and, thirdly, a different set of allowances for assessing income in non-litigious cases. So why these three different sets of allowances?
The second point I hope I can deal with much more briefly. It deals with a matter which was raised on Report of the Legal Aid Bill and which really was not at all satisfactorily disposed of. On Report we pressed for an increase in capital allowances corresponding to the increase which was made by the Legal Aid Bill in income allowances, and in answer to our pressure for this course to be taken the defence was put up that the Assistance Board did in fact make additional allowances or disregards in assessing disposable capital. It appeared in more than one column of the Official Report of the debate. It appears at column 1092 under date 28th March, 1960, and I dare say it appears in several others as well. It appears in column 1076.
We were told then that where disposable income is less than the free income limit of £250 for which the Legal Aid Bill provided then in addition to the free capital of £125 there is allowed a further free capital of £125 which is reduced by £1 for every £ by which the income exceeds the free limit of £250. Of course, it is a substantial matter, one which we were delighted to hear about, as we said at the time, that this was a matter which was universally applied—as it obviously must be applied: anything else would be intolerable when we are dealing with allowances of this kind—by all the assistance boards throughout the country.
835 It is perfectly settled and established practice and has been, apparently, for some appreciable time, but this was completely unknown. It was unknown to us. The first we heard of it was in the reply which the Solicitor-General gave on Report of the Bill, and it came as a matter of great astonishment, I think it fair to say, to every single person in this House, many of whom had intimate knowledge of and intimate practice in legal aid matters.
Quite obviously, a matter of this kind is a matter which should be provided for by regulation and not left obscurely as a matter of practice for the assistance boards. The Solicitor-General, in justification of this course, suggested:Indeed, the discretion given to the National Assistance Board … is given in the Legal Aid (Assessment of Resources) Regulations, 1950. Second Schedule, Part 11, paragraph 5….He read the paragraph:'Where there are special circumstances the amount to be deducted from the applicant's capital resources may be adjusted as is appropriate to meet those circumstances.'"—[OFFICIAL REPORT, 28th March, 1960; Vol. 620, c. 1092.]We knew that Regulation existed,of course. Of course, it is important to have a regulation of that kind to provide for discretion in marginal cases. It is dealing with special circumstances; obviously, special circumstances of the kind not contemplated as a matter of regular application, as a matter of course in substantial amounts by the assistance boards throughout the country.
I venture to suggest that I very much doubt whether in fact these amounts, these considerable sums, to which the Solicitor-General referred as being allowed by the National Assistance Board, are indeed intra vires paragraph 5 of Part 11 of the Second Schedule of the 1950 Regulations.
It may well be that if these were ever tested it would be held that they are not within paragraph 5 at all, because that paragraph does not contemplate any such substantial regular amounts. It merely deals with the comparatively small amount of marginal discretions arising in special circumstances, and we cannot say that they are special circumstances when we have a regulation formulated and applied in substantial 836 amount by the National Assistance Board throughout the country. They are not special circumstances. They are ordinary regular circumstances and I would very much doubt whether they are within paragraph 5.
It is quite wrong, in any event, that matters of this kind should not be dealt with in the Regulations. They should be there for every practitioner to see and every claimant to know about and not be dealt with in this obscure, dark way by the National Assistance Board. We are delighted and very much welcome that the Board does this. I am not opposing the substance of what it does, but it is not a matter which should be allowed to be covered by such a thing as paragraph 5. It is a matter of considerable substance and regular practice which should be provided for in the Regulations themselves.
§ 10.36 p.m.
§ Mr. Eric Fletcher (Islington, East)
I should like to support what my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) has said, and I particularly agree with him in saying that I think this is one of the most inefficient pieces of muddled and jumbled forms of delegated legislation that the House has been confronted with for a very long time. My hon. and learned Friend has dealt with the merits of the matter and has pointed out the absurdities and incongruities of these Regulations.
I should like to add some further reasons why the House should urge the Solicitor-General to take the Regulations back and consider them in the light of his own amendments which he has made since the Regulations were laid and in the light of my hon. and learned Friend's devastating criticism of them. It is quite monstrous that the House should be asked to deal with matters in this way. We are dealing with a very complicated subject of vital interest to thousands of people who are dependent on legal aid to obtain their rights.
This Statutory Instrument was laid on 18th March under the Legal Aid and Advice Act, 1949, with a view to its coming into operation on 28th March. But since then we have had another Legal Aid Act which obtained the Royal Assent on 13th April. On the very day that that Act received the Royal Assent, 837 two further Orders were laid, Nos. 729 and 730, for the purpose of amending these Regulations, and amending them in a series of important particulars, varying the amounts, changing the sum of £75 to £125, substituting £7 10s. for £4 10s., substituting £2 5s. for £1 10s., substituting £1 7s. for £1 5s. and making all kinds of similar and not exactly trivial amendments of a detailed character. The result is that it is very difficult either for the ordinary applicant to understand or for the ordinary practitioner in these matters to know what is the law on the subject and what are the Regulations.
I stress the difficulty of knowing what is the situation in addition to the matter in which my hon. and learned Friend was interested, which was the absurdity, as it seems to us, of the differences between the allowances in cases where there is litigation and where there is not, and the allowances for capital and for income. In some places it is £78 and in others £65. The whole of the provisions on the subject are now in a state of chaos, and I think that my hon. and learned Friend was quite right. Obviously, there has been some disagreement and argument between the Lord Chancellor's Department and the Treasury, and I am not sure who the Solicitor-General is representing at the moment.
§ Mr. Fletcher
There is this further complication which I find very puzzling. One of the Instruments which purports to amend 1960–408, namely, 1960–730, was made by the Lord Chancellor with the concurrence of the Treasury, but the other Instrument, No. 729, was not.
§ Mr. Fletcher
I do not know whether it was made with the concurrence of the Treasury or not, but I think it significant that it is not expressly made with the concurrence of the Treasury. The Solicitor-General says that it is a bad point, but, with respect, I think it is an important point. Those who have to consider the validity of these Instruments and examine the Act of Parliament under which they are made, find that certain Instruments can be made only with the 838 concurrence of the Treasury. Here I speak in my capacity as Chairman of the Statutory Instruments Committee and on behalf of the members of the Committee. If Government Departments have power to make Statutory Instruments with the concurrence of the Treasury, we find it very embarrassing when in some circumstances they make an Order saying it is with the concurrence of the Treasury and in other circumstances they omit those words. We are not sure whether, when they omit those words, we are entitled to assume that it means that they have not the concurrence of the Treasury.
§ Mr. Speaker
The only Regulations we are allowed to discuss at this moment are expressed to be with the concurrence of the Treasury. I do not think I am entitled to allow the hon. Member to discuss other Regulations. I think it fair to say that he can use other Regulations to the extent of a yardstick with which to beat these Regulations—if one does beat things with a yardstick—but he must not go beyond that point. The duty is imposed on me of restraining him from doing so.
§ Mr. Fletcher
I do not want to beat any Regulations with a yardstick. I want to beat them, if I may, on their merits.
I am puzzled that since these Regulations were made they have been amended. I am content to try to criticise them either in their unamended or amended form. I do not mind the method of procedure. I am prepared to criticise them either unamended or amended. I imagine that if I criticise them in their original native form I might be met with the argument that since they were laid they have been amended. If that is the argument which we will have to face, even as amended—and it is only for that purpose that I refer to the amendments—I oppose them.
§ Mr. Speaker
I think that the hon. Member must understand my difficulty. I am sorry to trouble the hon. Member but I only do it in so far as I have to. To the extent that the Regulations have been amended, the Prayer he is at present supporting is dead and should not be allowed. That is my difficulty. The hon. Member can pray against that which is still effective, but not beyond that.
§ Mr. Fletcher
I entirely appreciate your difficulty, Mr. Speaker. I am sure that you appreciate mine. I do not think that it is fair either to you or to the House that we should be presented with this problem. We have here a Statutory Instrument, No. 408, which we find thoroughly objectionable because, as my hon. and learned Friend said, it is muddled, it is inefficient, it is a jumble, it is inconcise, it is contradictory, it makes the maximum complication of a subject which ought to be inherently simple and straightforward so that anybody can understand it and, since it was made, and, perhaps, since the Prayer was put down, there have been amendments to the Regulations.
I am not concerned with the amendments. All I am concerned to say is that they do not make the matter any better. As the Solicitor-General has obviously had second thoughts, and third thoughts, and, in the case of the Scottish Regulations, in which there have been three amendments, fourth thoughts, this indicates that the whole subject is in a state of chaos and confusion.
As we have put down the Prayer, and because on any footing nobody would claim that the original Regulations and their amendments were a model of perfection, I urge the Solicitor-General to say that consolidating Regulations will be issued.
I suggest to the Solicitor-General that, because of the complete muddle, and because of the criticism made by my hon. and learned Friend, he ought, in view of his own amendments and of the criticisms, to accept the Prayer, to withdraw the Regulations, to which we all object, and to introduce new Regulations, in which he can incorporate the amendments which he recognises must be made and in which he can have the opportunity of accepting the arguments which, we think, require him to make still further amendments.
I hope that the Solicitor-General will not have any false pride on this subject and will realise that this is a matter of supreme importance which we want to get right. Will he, therefore, accept the Prayer, withdraw the Regulations and incorporate in one all-embracing set of new Regulations both the amendments which he wants to make and the other amendments which, I am sure, he ought 840 to want to make as a result of this debate?
§ 10.49 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) and the hon. Member for Islington, East (Mr. Fletcher) are obviously confused about the position. The confusion is due not to the Regulations prayed against, but to the fact that, as it seems to me, the Prayer has been put down to the wrong Statutory Instrument. The Regulations that are prayed against are those made on 11th March. They came into operation on 28th March. That was the very day when we debated the Legal Aid Bill, and when the hon. and learned Member and the hon. Member who have spoken made the points which they have made again today. The Legal Aid Bill received the Royal Assent on 13th April; the Prayer was not put down until 22nd April and, as I indicated during the debate on the Legal Aid Bill, the amending Regulations that have been made were already intended. The amending Regulations were made on 13th April; they were laid before Parliament on 20th April, and they came into operation on 27th April.
The reason why they were not made before the Bill was passed through Parliament was simply that it was not thought right to give effect to the recommendations of the Advisory Committee until the main recommendations of that Committee had had Parliamentary approval; indeed, it would have been a great discourtesy to Parliament to make those amending Regulations, based on the Advisory Committee's report, before its main recommendations had received the general approbation of Parliament. I thought I had indicated quite clearly that we intended to make these amending Regulations, and it was for that reason that we made them in due course.
But what the Prayer does is to pray against the original Regulations, which have since been amended; not only that, but it is intended—as I indicated during the course of the debate on the Legal Aid Bill—to make further amendments to the Legal Aid (Assessment of Resources) Regulations, 1950. Having said that, I apprehend that practically everything else I may say, at least in 841 answer to the hon. and learned Member and the hon. Member, will be out of order.
As I pointed out, all they are praying against is the original Regulations, and without unduly trespassing on the rules of order I may say two things. In the first place, one cannot make actually equivalent the allowances on capital and the allowances on income; that is not comparing like with like. The distinction was drawn from the beginning by the Rushcliffe Committee, as we debated fully in our discussion of the recent Legal Aid Bill and that distinction has been drawn throughout by the original Legal Aid and Advice Act, 1949, by the Regulations made by the party opposite under that Act, by the recommendations of the Lord Chancellor's Advisory Commitee thereafter, and by our Bill which was based on those recommendations.
The reason is that the capital allowances follow the advice of the Advisory Committee; the income allowances are based on the National Assistance Board's scale of allowances, plus a rent element which is infinitely variable and a miscellaneous element which also tends to vary; indeed, we have varied them recently in favour of the applicant.
Having said that, perhaps I can add, while hoping that I remain within the realms of order, that the Legal Aid (General) (Amendment) Regulations, 1960, No. 730, give effect to what I indicated in the debate on the Legal Aid Bill the Lord Chancellor proposed to do about capital allowances. As the hon. and learned Gentleman, with his usual clarity and fairness, pointed out, we have in fact amended the capital allowances by the amendment of paragraph 8 of the Schedule; and we have amended the income allowances in paragraph 9 (b) as well. That is the first point.
Secondly, the hon. and learned Gentleman is quite right when he reminds the House that I pointed out that the National Assistance Board allows as a deduction against capital half the minimum disposable income where no contribution from income is exigible, and I also pointed out that there is a sliding scale in the cases where there is some capital but no, or virtually no, income. The hon. and learned Gentleman very fairly made his point that if that is the practice of the National 842 Assistance Board, it would be more properly put in Regulations than left to a purely administrative practice. Although he purported to be taken by surprise, it is fair to say that that is a practice of very long standing under Regulations which were made as long ago as 1950, and it has been left to practice rather than put in new Regulations not only because no new Regulations have been made but also because it leaves a flexibility, as I am sure the hon. and learned Gentleman will see, in the marginal cases.
Nevertheless, I see the point of his observations—that if it is an almost invariable administrative practice, applicants are entitled to know where they stand. All I say about that is that it would require an amendment not of these Regulations but of the Assessment of Resources Regulations. Those are being redrawn at the moment. We propose to rewrite them substantially and if the hon. and learned Gentleman will be satisfied with that, I will give very great weight to the considerations which he has urged and which seem to me to be substantial—without, as he will understand, giving any specific undertaking. I can also say that in the meantime I do not think that any applicant is likely to be prejudiced because, as I indicated, those considerations are already applied administratively and will continue to be applied administratively.
I am impressed by the argument which the hon. and learned Gentleman urged that if there is an invariable administrative practice, it is preferable by and large that it should be written into Regulations. All I can say is that certainly these are not the appropriate Regulations and nor are the amending Regulations, which by the rules of order the hon. and learned Gentleman is precluded from mentioning but which by some dexterity he and his hon. Friend the Member for Islington, East have succeeded in mentioning. It will be within the context of some quite different Regulations, the new Assessment of Resources Regulations, that we will seriously study the considerations the hon. and learned Gentleman has urged.
§ Sir L. Ungoed-Thomas
In asking leave to withdraw the Motion, I make the comment that I cannot understand 843 why if the Regulations in Order 730 were not introduced, those in Order 408 should be introduced. We are at a complete loss to understand why rent considerations should not have been brought into account, but as the provisions are now far more satisfactory, I beg to ask leave to withdraw the Motion.
§ Motion, by leave, withdrawn.
The following Motion stood upon the Order Paper:
That an humble Address be presented to Her 'Majesty, praying that the Legal Aid (Scotland) (Section 5) Regulation, 1960 (S.I., 1960, No. 497), dated 17th March, 1960, a copy of which was laid before this House on 24th March, be annulled.
§ 11.1 p.m.
§ Mr. Douglas Johnston (Paisley)
The points desired to be raised by my hon. Friends in this Prayer are substantially the same as those which have already been dealt with in discussion of the English Prayer. The first point has been dealt with by amending Regulations. I understand from what has been said by the Solicitor-General that the second point is likely to be met by further amending regulations. In those circumstances, I beg to ask the leave of the House not to move the Prayer which is in the names of my hon. Friends and myself.