HC Deb 05 February 1965 vol 705 cc1494-502

Motion made, and Question proposed. That this House do now adjourn.—[Mr. George Rogers.)

4.3 p.m.

Mr. William Yates (The Wrekin)

In the preserving of civilisation as we know it, I acknowledge at least one great maxim: "The price of liberty is eternal vigilance." Vigilance in protecting the right of the individual to freedom and justice is the duty of the Press, of those who practise the common law and of this House.

I am obliged to ask for the indulgence of the House and the Minister without Portfolio on this subject, which concerns the Legal Aid and Advice Acts, 1948 and 1963, in respect of my constituent, Mr. Leonard Barrett Bonser. The reason for this is that I admit at once that I am not a lawyer. My knowledge of this subject is wholly academic. After the war I tried the cuisine at Lincoln's Inn and subsequently resolved not to eat there again. I hope, therefore, that the hon. Gentleman will not hesitate to interrupt my speech and correct me if I am wrong in law or in my interpretation of these two very important Legal Aid Acts.

Mr. Bonser of No. 2, Charles Street, Allbrighton, came to my office in Wellington in 1964 and told me that he had been most grievously wronged and that he was determined to obtain justice. Having heard his case, I decided that I would fight for him, and at present I am his only champion. In a sworn statement at Wolverhampton on 4th December, 1964, Mr. Bonser declared: I have come to the conclusion that I can get justice if I can afford to pay for it and in view of the shabby treatment I have received from Tedstone I feel justified in claiming compensation. This is very much in marked contrast with the words of the then Attorney-General in 1962 when the House discussed the Legal Aid Scheme. He said that it would open the doors of the courts freely to all persons who might wish to avail themselves of British justice without regard to the question of their wealth or ability to pay.

On a later occasion he said that the introduction of the Legal Aid Scheme has created problems of its own. These Schemes, as far as I can ascertain, do not appear to protect my constituent. Therefore, as Parliament votes about £4 million a year for legal aid, I am anxious to bring this matter to the attention of the House.

I will present the facts as far as I am able to ascertain them as a layman. I may remind the House that I have no staff to go round conducting inquiries. I have only a secretary—unlike the position in other Parliaments where Members of Parliament have offices and secretaries who can conduct inquiries. In passing, therefore, I welcome the proposed appointment of a Parliamentary Commissioner, an ombudsman. I have only myself, and the House will have to rely on me in this case. I have done my best to get the facts.

Mr. Bonser is not a man of property. He served in the Royal Air Force and, I understand, reached the rank of warrant officer. At the end of his career he decided with his wife to set up as a newsagent in Albrighton and, in 1958, was fortunate enough to find suitable premises.

The tenant of a shop owned by the Cosford Motors Ltd. was a Mr. Wolridge. Mr. Wolridge had a 10-year lease, and that lease had four years left to run. He agreed to assign to Mr. Bonser the unexpired term of four years. There was, in addition, an important clause in the lease giving the option to renew for a further term of 10 years. Mr. Bonser naturally calculated that he would have that shop for 14 years during his retirement.

On 10th September, 1958, Mr. Bonser employed Messrs. Stirk, Adams and Company, of Wolverhampton, to act as his solicitors and draw up the necessary legal documents. He then expended his entire service gratuity and some of his own capital—about £2,000—and successfully opened his business, designed to present himself with a livelihood in his retirement.

For professional reasons, about which I am not quite clear, Messrs. Stirk, Adams and Company invited him to appoint Messrs. Tedstone, George and Tedstone, solicitors of Wolverhampton, to act in its place for Mr. Bonser. Mr. Bonser agreed and he therefore took the assignment to Messrs. Tedstone, George and Tedstone. In his sworn statement he mentioned this interview, and I quote from his sworn statement again: In 1960 I went to see Tedstone concerning an agreement. At this time he saw the lease in question, he examined it and informed me it was a good lease and nothing was wrong with it—and providing I exercised the option six months before the present time expired I would be safe for another ten years. He instructed me to come back to him six months before the present term expired, August, 1962. Early in 1960 the original landlords, Messrs. Cosford Motors Ltd. had, I understand, become bankrupt and sold their property and assets including the shop in question, and the ownership passed on purchase to Messrs. Chick and Company. This act, in itself, I believe, did not affect Mr. Bonser's right at law because he became the tenant of Messrs. Chick and Company. In December, 1961, Mr. and Mrs. Bonser saw their solicitor with the lease and asked him to exercise the option. They were told that after Christmas would do and the interview therefore took place in January, 1962.

Shortly afterwards, to the utter astonishment and shock of Mr. Bonser, he received a letter from Mr. Tedstone. This letter informed him that the landlord's solicitor declined to recognise the option because it was not registered at the Land Registry as provided for in the Land Charges Act, 1925, Section 10, Class C (iv). At a later interview Mr. Tedstone implied that the landlord's solicitors were merely splitting hairs and that if Mr. Bonser would not accept their new terms he suggested that perhaps he could get counsel's advice. This was done. Therefore, Mr. Tedstone informed Mr. Bonser that counsel did not think there was a good case to take to court. Mr. Bonser asked why and he was told that that was counsel's opinion.

Mr. Bonser has told me that he has never yet seen a copy of counsel's opinion. My constituent was outraged and took the lease to another firm of solicitors in Birmingham, Messrs. Bosworth Bailey and Cox. They explained to him, for the first time, why the option was useless and Mr. Bonser then realised that Mr. Tedstone apparently did not know anything about the registration of leases and options. Therefore, Mr. Bonser applied for legal aid to sue Messrs. Tedstone, George and Tedstone for professional negligence.

He applied for legal aid at, of all places, Nottingham, because he thought he had put his foot into a lawyers' "hornet's nest" in his own area and he was nervous that telephone calls would prejudice his chances of obtaining legal aid locally. I do not think that a nice thing to think, but that is what he did think. He did not find local solicitors actively helpful when the question arose of another solicitor's professional negligence. He felt that lawyers locally were ganging up against him and that he would shut up. Meantime, of course, Mr. Bonser had been to see me, and I advised him to obtain legal aid without delay. An application was made and refused. It was again refused on appeal.

On 16th March, 1964, therefore, tabled a Question to the Attorney-General, and he kindly invited me to send him the documents in the case for examination. The Attorney-General was coming to speak in my constituency and therefore I suggested to Mr. Bonser that he should come and discuss the whole matter with him. Unfortunately, they were unable to keep that appointment.

Mr. and Mrs. Bonser have lost all. They have lost their lease; they have lost their shop; they have lost their savings. Their retirement has been ruined. In such straits, they are forced to take in lodgers. Worse was to come. Messrs. Tedstone, George and Tedstone sued for their legal fees for counsel's advice. Legal aid has been refused and again denied on appeal. My constituent had no other course open to him but to ask me to tight for his rights in the High Court of Parliament. Has he no redress? If not, I want to know why. I want to know what should be done, for no constituent of mine shall ever go without redress as Long as I am here as his Member.

4.16 p.m.

The Minister Without Portfolio (Sir Eric Fletcher)

The hon. Member for The Wrekin (Mr. William Yates) has given a very clear account of the injustice which he complains one of his constituents has suffered. It is not for me either to admit or to deny the substance of the facts as related by him. The subject which the hon. Member gave notice he was proposing to raise during this Adjournment debate was the Regulations for legal aid. As I listened to him, I gathered that as far as this House was concerned his complaint was that his constituent did not obtain a certificate for legal aid.

I think it right to explain that the Legal Aid and Advice Act, 1949, which, as the hon. Member knows, was introduced by the Labour Government, has enabled a large number of citizens who were previously unable, through poverty or lack of means, to obtain justice in the courts to be legally aided and to have the services of solicitors and counsel.

As you will be aware, Mr. Speaker, under the 1949 Act, the provisions of which have been extended from time to time, a scheme is made by the Law Society with the approval of my noble Friend the Lord Chancellor and with the concurrence of the Treasury, and that scheme provides for the operation of legal aid and advice throughout the country to be administered by local law societies. The result is that anybody who wishes to obtain a certificate for legal aid applies, in the first place, to a local committee and, if he is not satisfied, on appeal to an area committee.

It is significant—and the hon. Gentleman has underlined the fact—that anybody applying for legal aid is not confined to the area in which he lives. The hon. Gentleman's constituent may or may not have had good reason for preferring to make his application in Nottingham, although he lived in Wolverhampton. He was certainly entitled to apply in Nottingham, and he did so. His application was not granted. He then applied to the area committee for the West Midlands, which also happens to sit in Nottingham. Again, his application failed to meet with success, and that is the burden of the hon. Gentleman's grievance.

I am bound to observe that the decision both of a local committee and an area committee is a judicial, or quasi-judicial, decision. It is not open to challenge in this House, for this reason. It is a final decision. It is a decision for which neither my noble Friend the Lord Chancellor nor any Minister of the Crown has any responsibility. If the hon. Member reflects, I think that he will appreciate that it would be quite wrong for any member of the Executive to interfere with a decision of a quasi-judicial nature by a local committee or by an area committee. It would be wrong for any Minister of the Crown to interfere.

For that reason, it would be creating an undesirable precedent if an hon. Member, in this House, were allowed to challenge the merits of a decision by an area committee. Therefore, my first observation is that it would be wrong for me in principle either to attempt to justify or to comment upon the decision, in the same way as it would be totally wrong for this House to comment upon the correctness of a decision in the High Court or the Court of Appeal.

I ought to add for the benefit of the hon. Member that, although an applicant may be aggrieved by the decision of a local committee or an area committee, there is nothing to prevent him, if he so wishes and if he is so advised, renewing his application. He is entitled to do that either in the locality where he first made application, or in any other locality. I am not encouraging the hon. Member's constituent to do that, but it may, perhaps, allay his sense of grievance if I point out that fact.

In his opening remarks, the hon. Member expressed sentiments about the high quality of justice in this country and the value of the Legal Aid and Advice Scheme in general, with which, I am sure, we should all agree. It is relevant for the House to know, since we are discussing the operation of the scheme, that it is proving increasingly beneficial and is being used to an increasing extent.

The hon. Member has mentioned the kind of figure at which the cost to the Exchequer is at present running. The House, and, indeed, the country, may be interested to know that in 1963 there were no fewer than 122,000 applications for a certificate for legal aid. As an indication of the care with which the legal aid committees do their work and of their readiness to grant certificates, of those 122,000 applications certificates were either granted or offered—I use that phrase because there are a few cases in which a certificate is offered but for some reason it is not taken up—in no fewer than 96,000 cases.

Mr. William Yates

But not in this one.

Sir E. Fletcher

That is true. Applications were refused in 26,000 cases. Obviously, it would be wrong to expect a certificate to be granted in every case. The duty of the local committee is to satisfy itself that there is a prima facie case, not to try the merits, and a certificate is denied only if a committee feels that there is no prima facie case.

Mr. William Yates.

I appreciate the work of the committees. When the committee replied to my constituent, it said that there was no prima facie case, but did not add anything more to assist my constituent. I am not a lawyer, and I do not understand these things, but I think that perhaps my constituent was endeavouring to bring his action against the wrong company. If the legal aid committee had said that his action was ill founded against the firm in question, but that he should examine the possibility of taking action against the other firm, it would have been more helpful.

Sir E. Fletcher

I appreciate that and I have not overlooked that the hon. Member might make that observation. On reflection, however, he will, I am sure, appreciate that for a local or an area committee to extend its jurisdiction either to grant or to withhold a certificate by going on to say that in such and such other circumstances the applicant might be well advised to take a certain course, would be to ask it to do something wholly outside its powers and something that would be totally inappropriate.

It is not the function of the local or an area committee to give advice. It is their duty, both to the citizen and to the State, to grant a certfiicate if there is a prima facie case. Equally, there is a duty to the State, whose money is involved, not to grant a certificate if they come to the conclusion that there is not a prima facie case. As I understand the facts of the Bonser case, in this instance they were, I think I am entitled to say, justified in reaching the conclusion they did on the basis of a counsel's opinion which had been submitted to them.

I should add that in addition to the beneficent. provision which the State now makes for legally aided litigants the State also enables persons to obtain legal advice. This, as the hon. Member knows, was introduced not at the outset, but, I think, in 1958. As a result, there are about 60,000 applications a year for legal advice which costs the nominal sum of 2s. 6d. for those who are within the scheme by reason of their income, or nothing if they are on National Assistance. Therefore, whether a person is entitled to free legal advice or not, anybody desiring to litigate with the advantages of legal aid is, of course, well advised in the first place to obtain advice as to the merits of his claim and against whom he wants to make his claim and how it should be brought.

Both my noble Friend and I are most anxious that the opportunities of the Legal Aid and Advice Scheme should be fully known. They are known to an increasing extent. The numbers who apply are growing each year. For example, I understand that of every 100 matrimonial cases which are now tried in the High Court at least 100 of the parties receive legal aid. A large number of the cases brought by legally aided litigants succeed.

Taking the wide view, I think that it is true to say that the inception of this scheme and its administration have contributed very largely to enabling all sections of the public to obtain justice, a fact which was not the case before 1949. In addition to that, the experience of the courts goes to show that they are much better able to administer justice by reason of the fact that nowadays practically all litigants a large number of whom are legally aided, come before them with the benefits of professional advice.

I hope, therefore, that the hon. Member will not think that the experience of his client is any reflection at all on the satisfactory way in which the Legal Aid and Advice Scheme is generally working, and he may well think it desirable to follow up the suggestion which I have made, that he should try again, in the case of this client, to see whether he has any more success with a different local committee.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes past Four o'clock.