§ 6.58 p.m.
§ Sir Peter Rawlinson (Epsom)
I beg to move,That an humble Address be presented to Her Majesty, praying that the Matrimonial Causes Rules 1968 (S.I., 1968, No. 219), dated 21st February, 1968, a copy of which was laid before this House on 29th February, be annulled.
§ Mr. Speaker
If it is convenient we can consider at the same time the next Motion—That an humble Address be presented to Her Majesty, praying that the Matrimonial Causes (Costs) Rules 1968 (S.I., 1968, No. 281), dated 21st February, 1968, a copy of which was laid before this House on 8th March, be annulled.
§ Sir P. Rawlinson
The two Motions concern the legal machinery which affects the changes in the mode of trial of some-think like 40,000 undefended divorce cases every year.
§ Mr. Speaker
Order. It is very difficult for anyone to address the House against a background of conversation.
§ Sir P. Rawlinson
The fact that the Motions concern something like 40,000 undefended, as they are known, divorce cases a year gives to the House some indication of the number of people who will be affected by this change in legal machinery. I suppose that, with the children of the families concerned, it comes to well over 100,000 people each year. Although the title of these Motions is the rather dry title of "Matrimonial Causes Rules", in fact this is a subject which is of considerable importance which affects the lives of very many of our fellow citizens.
964 The Matrimonial Causes Act, 1967, in respect of which these rules were made, mandatorily transferred to the county courts suits where there is an allegation of adultery, cruelty and desertion. Power was vested in the county court to grant a degree in such circumstances.
While some persons objected, for the various reasons which the House will recollect we debated in 1967, apparently that matter of principle has been generally accepted, certainly by the House. I remind the House that it was in the summer of 1967, in the last Session of this Parliament, that this decision was taken by the House. An entirely new situation arises now, because in this Session of Parliament already, the House has given a Second Reading to a new Divorce Bill, and within six months at the latest we shall know whether that Bill will be enacted into law. The Bill has within its provisions, if enacted as they now stand, certain radical changes in the substance of the divorce law.
By these rules Parliament is being asked to alter the law without changing the substantial law. The whole concept of divorce may be changed if the Bill to which I have referred receives the approval first of the Committee upstairs, then of the House, and finally of another place. The whole principle of a guilty party in a divorce suit will disappear. There will be a wholly new justiciable issue. There may be many who wish to see that happen and the House should take that into account, but is it right to change merely the machinery of a system—which, I agree, has lasted for a considerable time—when we are considering a substantial change in the law itself?
Apart from the Bill, the Law Commission is studying this matter. Great minds are considering the whole corpus of family law. The members of the Commission and their staff have been given the task of considering all aspects of the law affecting marriage, divorce, the custody of children, access to children, maintenance of the spouse, and so on. In fact, they are going beyond that and considering the position in law of a woman and her property. They are considering the guardianship of infants, and also whether we should establish family courts. This is a new concept, a new jurisdiction, and a new procedure.
965 I very much welcome that. It is right that the Law Commission should review this aspect of the law, and its report will no doubt be extremely useful. Therefore to alter the law by these rules, is, to my mind, a cockeyed way of undertaking reform. It seems pointless to start changing the machinery of the law if we are to change the law itself by July, or if not then by October, and then perhaps later again be asked to make another change when the Law Commission has reported. This is putting Parliament through the hoops.
What is the point of proceeding with these rules? Surely it would be more sensible, more practical, more reasonable, and more cognisant of the proper position of Parliament to wait for a few months to see what happens to the Bill which is now being considered, and then to come to the House with these rules?
My first practical suggestion to the Attorney-General is to hold up the operations of the Matrimonial Causes Act,1967, to see what Parliament finally decides in 1968 about the Divorce Bill. I hope that the Attorney-General will wait until the Law Commission has reported. If he does not agree to do that, I hope that he will agree to wait at least until the Divorce Bill has become law.
We now have an enormous amount of time at our disposal, and I hope that when the Attorney-General replies to the debate he will deal with all the points that I have raised.
Apart from my comments about this extraordinary mode of carrying out law reform, I am concerned about the merits of the rules, and the manner in which they came into existence. It might be acceptable to some of us that the county courts should deal with undefended cases which lead to the termination of a marriage, but it must be remembered that Parliament has always intended that a High Court judge should deal with divorce cases. Parliament has always taken the view that, even though a case is undefended, it should be decided by a High Court judge.
The system of appointing Commissioners, or of appointing persons under the Commission to sit as Commissioners—and county court judges sit as commissioners—was adopted only because 966 of the pressure of business. It was not the way in which, Parliament wanted the question of divorce to be dealt with by the courts. Now, however, as a deliberate expression of Parliamentary policy, questions such as the custody of children, access to children, the maintenance of a wife, and so on, will be decided by the county courts whose jurisdiction we have limited to disputes involving no more than £500.
Parliament has kept a close control over the tiers of judges, in the sense that the county court is a second-tier court. Its jurisdiction is extremely limited and restrained. This is deliberate Parliamentary policy, and, accordingly, and I say this with no disrespect to the county court judges—county courts are manned by second-tier judges.
We should not require parties to have their lives, their residences, and the conditions under which they live with their children decided by second-tier courts, and second-tier judges. It may have happened in the past in certain parts of the country, but it has never before been done as an act of deliberate Parliamentary policy. It has never been deliberate policy for these judges to deal with ante-and post-nuptial settlements, to award maintenance over many years, and to deal with the lump sum payments which may amount to thousands of £s. Is it sensible that as an act of deliberate Parliamentary policy we should give this power to judges who, in other respects, are limited to a jurisdiction of £500?
I have always thought that the system of Commissioners was unsatisfactory, but I know that the practice has been adopted for many years because of the pressure of business in the courts. Even though they deal with simple divorce, or simple pleas, I do not believe that the system is wholly satisfactory, yet now by these rules, we are to force the parties concerned to have important issues decided by county court judges.
Where a marriage has come to an end, the wisdom of Solomon is needed to make a just and sensible decision about the custody of the children. For this task we need the best judges. We need men of proven ability. One of the most difficult decisions which a judge has to make is that of deciding with which parent the child of the marriage should spend 967 his life, how often he should see each parent, how much access should be allowed by each parent, and so on. This judicial task has been performed by county court judges, but not as a deliberate act of policy by Parliament.
A county court judge sitting in the provinces exercises that function, but he does so as part of the High Court. The suit is in the High Court, and the parties can apply to have matters such as access to the children and custody of the children, transferred to the principal probate registry. The Attorney-General may be interested to know that in today's lists, out of about six summonses, three have come from a district registry. This has happened because power was given to either party to go to the district registrar and say, "I want this case transferred to the principal probate registry and have it heard in London." It would seem that it was left to the Rules Committee to decide, what, under the Act, could be sent to be tried by the High Court and not retained by the county court.
At that time many people believed that issues of custody, maintenance and access had been left for decision by the Rules Committee—and many people still believe that to be the case. As I understand it, however, when the matter came before the Rule Committee that intention of Parliament was thwarted, and it was not left to the Committee so to decide. It was said that Parliament had already decided this issue. If that is so it is a serious matter, because it means that although Parliament decided that something should be given to a committee of experts—a committee presided over by the Lard Chancellor and consisting of other judges, and the President, as well as practising solicitors and practising barristers—
§ Mr. Speaker
Order. It seems to me that the right hon. and learned Gentleman is criticising the 1967 Act. He cannot do that in this debate.
§ Sir P. Rawlinson
What I am objecting to is that there is provision that all these ancillary matters should have gone to the county court. I am saying that under the Act the Rule Committee has the right to decide whether or not that should happen. I am asking the learned Attorney-General 968 whether the Rule Committee considered this question before producing these rules. Before that Committee produced the rules under the Act was it allowed to discuss and decide whether these ancillary matters should go to the High Court or be retained in the county court? The answer to the question will very much affect our judgment about the rules which are now under discussion.
I would remind the right hon. and learned Gentleman that Section 1(5) of the Act reads:Rules of court shall define the circumstances in which any matrimonial cause is to be treated for the purposes of this Act as undefended and may make different provision with respect to matrimonial causes of different descriptions.Section 2(2), again dealing with powers given to the Rule Committee says that:rules of court shall provide for the transfer to the High Court of any proceedings pending in a county court by virtue of this section in any case where the transfer appears to the county court to be desirable, and may so provide in such other cases as may be specified in the rules.I understand that that was the position with regard to the Rule Committee when, in Standing Committee, my hon. Friend the Member for Colchester (Mr. Buck) moved an Amendment to set out this requirement instead of leaving it to the Rule Committee. In replying, the learned Attorney-General said that:The Bill requires rules to provide for the transfer to the High Court of proceedings relating to the children where the transfer appears to the county court to be desirable. It also enables rules to be made so to provide in such other cases as may be specified in the rules. With this safeguard, I can see no reason why the county court judges should not have full jurisdiction to deal with issues of custody."—[OFFICIAL REPORT, Standing Committee F, 15th June, 1967, c. 35.]So the right hon. and learned Gentleman was telling the Committee that there would be other cases which would be dealt with by the rules. To corroborate that impression, I remind him what the late Sir John Hobson said on the Report stage of the Measure, on 15th July, 1967, when he moved an Amendment fixing the level beyond which a case should go to the High Court. He said:I also appreciate that the Rule Committee could deal with this under its general power to make rules on these matters in such cases as it may specify.969 He appreciated that it was a general power of the Rule Committee to make rules on these matters, but by making his Amendment he showed that he preferred Parliament to make the decision.
In his reply, the right hon. and learned Gentleman said:The Government take the view that it would be undesirable to fetter a county court by requiring it to transfer proceedings where the amount of any order is likely to exceed a particular sum and the parties have not consented to the jurisdiction of the county court." [OFFICIAL REPORT, 5th July, 1967; Vol. 749, c. 1758–63.]He did not deal with the view expressed by his predecessor about the general power of the Rule Committee to make rules on these matters.
I should like to hear from the right hon. and learned Gentleman what powers the Rule Committee was told it had which made it produce the rules that we are now debating. It is not only the view of some hon. Members; it is also the view of the Bar Council that Section 2(2) of the Act provides specifically for the Committee to be able to make rules in such cases.
I ask again: was the Rule Committee permitted to discuss this question or was it prevented from doing so? The memorandum which the Law Society issued referred to the objections raised by the solicitor members of the Rule Committee Put said that they were eventually satisfied by the Lord Chancellor, who said that such rules were necessary to give effect to the intention of Parliament. Did Parliament have that intention? Is that the correct interpretation of Section 2(2)?
In another place the noble Lord, Lord Silkin, said that others on the Committee signed with reservations. Were there reservations? If so, by whom? Were such reservations minuted? Was discussion and decision prevented? If so, although Parliament allowed the Bill to go through in the belief that the Rule Committee had power to make the relevant rules—and the Act provides that the Rule Committee had such power—the Minister refused to permit the Committee o discuss it and to make such rules.
This is a serious matter. It may be that I am wrong, and I shall listen to the right hon. and learned Gentleman, who will no doubt tell us about it. This 970 matter could be challenged elsewhere. But if the House has given a Committee of experts a certain power and that power has not been exercised because the Committee was told that it could not exercise it, a very serious situation arises.
I have only one comment to make on the merits of the rules themselves. They will be a sharp weapon in the hands of a wealthy party in divorce proceedings. A husband might be well off and his wife legally-aided, so that, in a custody case, she would be restricted to the county court scale while the husband's resources would be unlimited. Apart from the advice and representation which he could call upon, what will be the position of experts like doctors and psychiatrists who are often needed in these cases, when limited to the county court scale? What about the accountants who are often called in? All these matters are acceptable on a High Court scale, but will they be so on the county court scale? Is the balance not being shifted? The court can deal with such questions as whether George A has committed adultery with Mary Y, but we should ensure that the children are dealt with by the best possible judges.
This will mean reduced remuneration for solicitors. The Prices and Incomes Board recommended an increase in their county court income. The Attorney-General said in Standing Committee:The rules committee which will have responsibility for these sums will undoubtedly pay regard to the principle of fair remuneration."—OFFICIAL REPORT, Standing Committee F; 15th June, 1967, c. 50.]Have they been permitted to do so? I suspect that Parliament has been fobbed off with a Rule Committee which has been met with the Minister's diktat, and that remuneration is not fair but has been reduced, although the Prices and Incomes Board said that it should be increased.
Hon. Members are quick to criticise lawyers, although it is said that there are more lawyers than representatives of any other profession in the House. The distinction should be made, perhaps, between lawyers and practising lawyers, but if there were such a great lobby, they should be turning out in their hordes this evening. We were quick to ensure fair remuneration for ourselves—
§ Mr. Speaker
Order. With respect, there is no mention of remuneration in the Order which we are discussing.
§ Sir P. Rawlinson
I think that there is in the costs rules, Mr. Speaker, which we are discussing at the same time—
§ Mr. Speaker
Order. I am sorry. The hon. and learned Gentleman is right. We should, however, leave out the subject of the salaries of Members of Parliament.
§ Sir P. Rawlinson
If any hon. Member wanted to criticise, it should be remembered that the majority of this work is done by the country solicitor who will suffer unfairly and service will deteriorate. Anyone who practices law does so to give a service and should be entitled to fair remuneration. I suspect that this has been settled by the Rule Committee because the solicitors signed under protest and I ask the right hon. Gentleman to give us the details of what other members signed under protest—
§ Mr. Leo Abse (Pontypool)
With great respect, I understand that the solicitors concerned have not signed this at all.
§ Sir P. Rawlinson
I am obliged. I am completely wrong. The solicitors, of course, did not sign, and I should like to know whether any other members signed either of these sets of rules subject to any minute or reservation.
What is the Law Commission's view of these rules? Has this Rule Committee, which makes these rules which play an important part in the machinery of the law, the opportunity to make such rules as it thinks right under the Act? Power was not given to the Lord Chancellor, as a Minister, to decide as he liked. He must not arrogate to himself powers which Parliament did not give him. The Act speaks for itself, as do the right hon. and learned Gentleman's words in Committee and the views of his predecessor and the Bar Council.
I often detect criticism of Parliament's lack of control over Ministers, and it would be reinforced if these rules had been produced under a Minister's diktat. I have detected also a certain reluctance in matters of law to pay heed to what are described as time-consuming and sometimes as time-wasting arguments about law reform. But Parliament is a sensible body in which to debate law reform. Just as war is too important to be left to generals, so is law reform too important to be left to lawyers. The more it is discussed by hon. Members who are 972 not lawyers, the better for the law, because they bring the commonsense attitude of men who may serve on a jury or a bench. I hope that law reform will never be pushed through without listening to arguments in Parliament.
My principal objections to the rules are that it is wrong that they do not provide that the parties at their own risk can go to the High Court for a decision in matters of access and maintenance and that it is wrong that a rate of remuneration for solicitors should be settled unfairly. I hope that the right hon. and learned Gentleman will tell us that the Rules and this legislation will be postponed until a proper and sensible Measure is brought forward.
§ 7.29 p.m.
§ Mr. Gordon Oakes (Bolton, West)
I listened with great interest to the right hon. and learned Member for Epsom (Sir P. Rawlinson). I agree almost entirely with what he said, particularly in the second half of his speech. In the first half of it, I thought, there was a certain tendency to attack the Act itself.
In addressing the House, I want to deal, in particular, with the second Motion relating to costs. I am a practising solicitor with a small divorce practice. In the Memorandum of the Law Society, which solicitor Members of the House received, these words occur:The Council—that is, the Council of the Law Society—are not aware of any other section of the community, professional or otherwise, who are being asked in the present stringent economic situation to do the same or more work at a substantially reduced rate of remuneration and at a consequent personal loss.
§ Mr. Mark Carlisle (Runcorn)
The hon. Member states that that is the view of the Council of the Law Society. Does he agree that the same argument, under the same set of costs, applies equally to the Bar and to solicitors?
§ Mr. Oakes
I entirely agree. I was quoting the Memorandum of the Law Society, but all my remarks have equal force for the members of the Bar. This is not a demarcation dispute between the two branches of the profession. We are all in this together, and we are all in the position that under the rule the same 973 amount of work, or possibly more work, 'A/ill bring substantially less money.
I was a member of the Standing Committee on the Matrimonial Causes Bill. The right hon. and learned Member for Epsom quoted what my right hon. and learned Friend the Attorney-General said about costs. I want to read a further quotation from my right hon. and learned Friend from the OFFICIAL REPORT of 22nd June, c. 70:The Rule Committee is not specifically required to have regard to the principle of allowing fair remuneration in prescribing the scale and, in my submission, it is unnecessary to require it to have regard to that principle in prescribing the fixed costs to be allowed in undefended matrimonial causes. As the fixed costs will be related to the amounts which might be expected to be allowed if the costs were taxed, regard will in effect be paid to the principle of fair remuneration, but I do submit that it would not be appropriate that e Rule Committee should be told to have regard to this principle. I am quite confident that in practice it will have due regard to it."—[OFFICIAL REPORT, Standing Committee F, 22nd June, 1967; c. 70–1.]They have not had due regard to it. That is what the Motion and the debate is about. Instead of having regard to the principle of fair remuneration on a 1968 basis, they have applied a scale of costs which was drawn up over 13 years ago for an entirely different class of work from divorce work—and that is tie scale of costs which will apply to both barristers and solicitors in this very important branch of the law.
The Rule Committee, which is composed of my noble Friend the Lord Chancellor, two county court judges, two practising barristers and two solicitors, considered these rules, and, as my hon. Friend the Member for Pontypool (Mr. Abse) pointed out, the solicitor members of that Committee did not sign the rules. They did not sign the rules because the principle of fair remuneration had not been adopted. What is astonishing is that the Committe had before them, when they were considering these rules, the Report of the National Board for Prices and Incomes on the Remuneration of Solicitors, which had been published the week before that Committee meeting. Paragraph 65 of that Report states that solicitors are grossly underpaid—no matter what may be the view of the public or of hon. Members.
§ Mr. Percy Grieve (Solihull)
May I reinforce the point which the hon. Mem- 974 ber makes? I hope that this will assist him. It is stated in the Matrimonial Causes Costs Rules that there should be allowable in respect of solicitors' charges, if counsel is briefed at the hearing, £40, or in a higher rate case, £43. That is in paragraph 7. I am given to understand that it is no more than a solicitor would have expected to earn in an undefended case in 1939, let alone 1955.
§ Mr. Oakes
I am obliged to the hon. and learned Member. As far as I know, that is correct. I was at that point discussing what the Rule Committee had before them. They had before them the Report of the Prices and Incomes Board on the remuneration of solicitors, paragraph 65 of which said that solicitors are clearly grossly underpaid in present county court business, to such an extent that very many firms will not undertake it at all. They recommended that there ought to be an increase of no less than 55 per cent. in the costs of county court business. The Prices and Incomes Board had in mind this Bill, because in paragraph 66 they specifically stated that the principle of fair remuneration and their consideration of a general increase of costs ought to be regarded as essential by the Rule Committee.
What the Law Society and the Bar Council, most Members of the House and certainly members of the Committee expected was that there would be a separate scale in divorce business just as there is a separate scale for bankruptcy business in the county courts. It must be remembered that all divorces will commence in the county courts. We cannot put a petitioner for divorce, whether undefended or defended, on the same basis as a plaintiff in an action for the recovery of debt. I think that hon. Members who are members of the Bar appreciate that before the matter ever goes before the courts, solicitors have a whole host of considerations to bear in mind. We are dealing with a family and with the children. We are dealing with the future lives of the parties, and with maintenance, which may amount to tens of thousands of £s over the years. We are dealing with the matrimonial home. All these matters must be considered before the petition is ever put down, and advice must be given upon them.
This is a very human problem, and it should be related to a very different scale 975 from that of a man who is suing for the hire purchase payment of a motor car, for example. As a rule, a solicitor has to deal with distraught persons on either side of the divorce, not with a coherent business man who will explain the case quickly but with people often at their wits' end. He must have great patience and understanding, and it takes a great deal of time to sort matters out from the rather incoherent statements of the intended plaintiff or intended defendant. A different scale altogether is required in divorce business from that of any other business in the county court.
It is often thought by members of the public and it is thought by hon. Members who are not lawyers—it is certainly exaggerated by the Press—that solicitors make a vast fortune. The Report of the Prices and Incomes Board should have dispelled that view. In this country solicitors are very much in the position of the Red Queen in Alice—they have been running for years to stand still. My senior partner in the firm in which I work outside the House is a man of nearly 60 who should be on the point of retiring. He has suffered a very severe illness, and a lesser man would have given up work altogether. He cannot sit at a desk to work. In fact, he works not eight hours a day, not 10 hours a day, but 12 or 14 hours a day—after 20 or 30 years in practice—because solicitors find themselves in the position of having to run fast in order to stand still.
§ Mr. Anthony Grant (Harrow, Central)
Would the hon. Gentleman agree that, unlike a number of other occupations, a solicitor—particularly the senior partner to whom he referred—is unable, because of economic events and the tax structure, to build up a capital asset and so prepare for his retirement? Is it not all the more reasonable, therefore, to ask that he be allowed to earn a reasonable livelihood?
§ Mr. Oakes
That is indeed the position in which all solicitors find themselves. When the public generally consider the activities of large firms in London and the provinces, they may think that tremendous incomes are made, but these firms probably do expensive conveyancing work in the main and are not interested in divorce work. Many solicitors operate 976 on the theory that the money made on conveyancing subsidises the money lost on litigation. That is all very well if every firm of solicitors is doing its fair share of litigation, but that is not the position. Some firms do almost exclusively conveyancing while others must carry the burden of dealing with litigation on an unprofitable basis.
Since the Rule Committee considered this matter, another question has entered into the issue—Selective Employment Tax. It has been increased in the Budget and while I am not attacking the tax, because I support it—I supported the Chancellor in imposing it—it is a tax on services and should not be a tax on the provider of services in the sense that the solicitor provides them in the county court. Under the Act a solicitor cannot agree to a figure of charges other than that laid down. This means that he must pay the S.E.T. at an increased rate without being able to recover it from his clients. He must, therefore, pay it out of his own pocket. S.E.T. was never designed as an additional tax on the individual but as a tax to enable services to contribute to the Exchequer. This is relevant to this matter, because the scales under the rules are too low and do not provide for this extra burden which solicitors must carry.
The solicitor finds himself squeezed between the two and I therefore urge my right hon. and learned Friend to look at the rules again. It is rare for rules to be brought before Parliament and for a whole section of the legal profession—the entire solicitors' branch—to refuse to sign them. This is a danger signal which my right hon. and learned Friend must consider. We should have separate rules for divorce matters. New rules should, therefore, be introduced and they should be based on the fair and reasonable remuneration which my right hon. and learned Friend promised the Committee. Although I have the highest personal regard for my right hon. and learned Friend and admire him enormously as a lawyer and Minister, unless this is done I will not be able to support the Government if a Division is called.
§ 7.44 p.m.
§ Sir David Renton (Huntingdonshire)
Speaking from the breadth of his great 977 practical experience, the hon. Member for Bolton, West (Mr. Oakes) properly described this as a human problem. Almost every hon. Member in the Chamber, and probably every hon. Member who will speak in this debate, is either a barrister or solicitor. When we are talking of what to many laymen will be considered to be as dry as dust, the rules of court, we should never forget that we are dealing all the time with matters which affect the married state, the happiness of children and the wellbeing of people whose lives have temporarily been badly upset over divorce. It is important, therefore, that the House and the public should be satisfied that the Government are acting in accordance with the wishes of Parliament and that nothing is being done hastily, badly or in a way likely to lead to unexpected and undesirable results. The hon. Member or Bolton, West, therefore, made a valuable contribution and I trust that the Attorney-General will heed his remarks.
I feel rather sorry for the Attorney-General in this matter because although le must answer us, I very much doubt whether he has had to take a direct responsibility behind the scenes. As a Member of the Government, he must share the collective responsibility, of which we hope there will be very much more in the future.
My right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) reminded us in a convincing speech that under the 1967 Act various ancillary matters were to be not only discussed but decided by the Rule Committee. In a sense, Parliament therefore delegated to that Committee the decision on those matters. No doubt because he did not wish to make too long a speech, my right hon. and learned Friend did not go in great detail into those matters, but we should remember what is stated in rule 68 onwards. Those rules cover a large number of matters; for example, an order for alimony pending suit, a child maintenance order, a maintenance order, a secured provision order, a permanent alimony order, a lump sum order and various other matters.
§ Mr. Grieve
Is my right hon. and learned Friend aware of matters like a variation of settlements order or a wife's property settlement order, matters which may involve considerable sums of money 978 far outside the normal county court's jurisdiction?
§ Sir D. Renton
I am grateful to my hon. and learned Friend, although I said that there were various other matters dealt with. I mentioned only those which would most frequently arise.
We must bear in mind not only those matters under the broad heading of "ancillary relief" but the fact that difficult decisions which have far-reaching effects and which involve considerable sums of money must be reached. Hon. Members with less legal experience may be tempted to say, "That is a matter for the rich. Parliament is concerned with the masses." If Parliament is incapable, by rules of court, to ensure that justice is done to the rich, then the outlook for the poor is not very good. The rich can always employ expensive lawyers—I shall return to the question of costs—and while we have legal aid, there is a shortage of lawyers generally and especially of lawyers applying the legal aid system. It is important, therefore, that the rules of court should ensure that the public have complete confidence in those rules as well as complete confidence in the way in which they are administered by judges and court officers.
As my right hon. and learned Friend said, we are making a very big change in giving this jurisdiction to the county courts, and as Parliament in making the change specifically said that the ancillary matters were to be decided upon by the Rule Committee, we should be told exactly what consideration the Rule Committee gave to them. It would be very bad if there were the slightest doubt whether there was anything in my right hon. and learned Friend's suggestion that the Committee itself was not so fully seized of the matter but that a Minister invited it just to approve what was put forward. I hope that that did not happen, but I understand that in the profession there has been some doubt about it. I look forward to the Attorney-General's being able to reassure us on that point.
It would be helpful to be enlightened on a point in the Explanatory Note to the Matrimonial Causes Rules, 1968. Paragraph (3) on page 71, states:A woman with whom a husband is alleged to have committed adultery must be made a respondent, whether or not costs are 979 claimed against her (rule 13) and she will no longer be treated as a person entitled to intervene.One view of that statement is that it means a mere change of procedure, but I would suggest that it is such an important change of procedure that it amounts, in effect, to a change in the substantive law.
Rule 13 states:Unless otherwise directed … where a wife's petition alleges adultery with a woman named, the alleged adultress shall be made a respondent in the cause …There may be good reasons for that rule, but the system whereby the woman named has had the right to intervene but not the obligation to become a party to the suit is one that has worked for a great number of years, and worked with reasonable satisfaction. If this change is being made merely by rules of court, we should be told exactly why it is being changed.
I hope that the right hon. and learned Attorney-General will heed the advice of his hon. Friend and arrange for the Matrimonial Causes (Costs) Rules to be withdrawn, and to be reinstated when the matter, which is of very great importance, has been given further consideration.
The background to the complaint of the hon. Gentleman and of my right hon. and learned Friend is that in England and Wales today there are more law students than ever before and their numbers increase as law schools are enlarged and new ones are created, but the number of lawyers relative to the amount of work that has to be done is nothing like enough. We all know it. We know it at the Bar. In the solicitor branch of the profession it has caused acute trouble in the administration of the legal aid scheme. With that as a background, and bearing in mind what the Prices and Incomes Board has said, it seems most extraordinary that in order to achieve a relatively minor economy the Government should have possibly made the situation even worse by reducing the remuneration payable.
I am all against any branch of our profession being thought by the public to be overpaid, but the scales laid down here amount to about the same as was being paid 30 years ago, and before. 980 In those circumstances, if we want to see the legal aid scheme as applied to the new county court jurisdiction in divorce to go successfully, we should make sure that the remuneration offered to solicitors will be sufficient to attract enough solicitors to do the work. If that is not done, the intentions of the Government and of Parliament will be frustrated.
I endorse what was said by my right hon. and learned Friend about what I can best describe as chickens and eggs and carts and horses, although he did not use those words. We all want to see law reform—goodness knows, we have had law reform in pretty well every year since the war, and it will go on, I think, for many more years—but this is a branch of the law in which we have to be fairly sure-footed when we step forward.
It seems very strange, when we have the substantive law being dealt with in a divorce Bill going through the House, when we have the Beeching Committee sitting—and, we hope, not taking too long over its deliberations; it has had a fair amount of time already and is likely to report before very much more time has elapsed—and when we have the Law Commission nearly ready, presumably, to put forward proposals covering the whole range of family law, to introduce these rules, some of which are controversial, and to invoke the jurisdiction of the county court in divorce matters in the particular way in which it is proposed to be done. My right hon. and learned Friend was right to challenge the Government. We should be making sure of every step forward in a delicate matter like this which, as the hon. Gentleman said, affects mankind at large. These are human problems wrapped up in legal clothing, but we want to make sure that the legal clothing fits properly and is suited to every occasion.
I hope that hon. Members who are not members of our profession will forgive us for taking up fortuitously available time—out of evil cometh good—to discuss this important matter; and that the right hon. and learned Attorney-General will be able to help us to some extent.
§ 8.0 p.m.
§ Mr. Leo Abse (Pontypool)
My hon. Friend the Member for Bolton, West (Mr. Oakes) said that he had his interest to 981 declare since, as he said with characteristic modesty, he had a practice which included a small divorce practice. Let me say with customary immodesty that I equally declare my interest, because I have a very large divorce practice. This does not mean that anything I can say would add to the weight of the argument of my hon. Friend except so far perhaps as precisely because of that it is open for me to speak on this subject with a little more detachment.
I suppose that it would weary the House if I followed the course which has been already so well trodden by the right hon. and learned Member for Epsom (Sir P. Rawlinson). In much of what he said I am sure he spoke for all of us, or almost all of those present. It is curious with what unanimity the House is speaking tonight. Once again the Attorney-General is the stag at bay, as he has been ever since he started on this ill-favoured matrimonial causes legislation. I do not share the implied condemnation of the purposes of the Act itself which perhaps may have been seen within the right hon. and learned Gentleman's contributions, because I have long yearned for a Measure—and long urged a Measure—which would enable solicitors to deal with divorce in the county court for which they are well equipped.
Equally, I do not raise any objections on these rules, because they will mean that much more will be done by county court judges and county court registrars for they are men who have had greater experience, certainly in the provinces, in dealing with divorce cases than many High Court judges. It seems sad that the Attorney-General once again has to come here on the defence, having successfully aroused, as I prophesied he would, the ire of the whole of the legal professions. I recall the rough words he used against me, doubtless imagining that I was exaggerating the position, when I warned him that he was moving forward to a complete confrontation with the solicitors' profession.
The situation now is that when we come to these rules we find the solicitors, who are honourable men, found it quite impossible through their representatives, or at least those who spoke for them on the Rule Committee, to put their signatures to the basic rules we are discussing 982 tonight. How could they? Of course, they knew quite well the history of this matter. They know quite well that the real reason behind the Bill was not, I regret to say, a new zeal and passion for reform which inspires much of this Government's legislation. It was only because the Government had come to the conclusion that the burden of divorce on the Legal Aid Fund was unfortunately very high.
I appreciate their concern; it is concern over a social question, but of course the increased burden was certainly not due to the fact that the Legal Aid Scheme was uneconomically administered. It was not due to the fact that it was ill-administered. Nor could it have been said in any way that there was a waste of public money. It could not be said that it was due to a mercenary attitude, or cupidity on the part of the legal profession. It never has been said that this is due to any of these matters. It could not have been said that here was another of those scandals which should have been referred to the Public Accounts Committee. There was no suggestion of that kind.
There is a simple reason why there is this burden on the Legal Aid Fund. The burden is there, of course, because we have given, and we must take pride in giving, the same facilities to those who are without much means as to those who are wealthy to be able, if they wish, to go into the courts. So it is that in 1956 there were some 27,000 petitions for divorce and in respect of those 13,000 were legally aided, 10 years later, in 1966, the total number of petitions filed had risen to about 45,000 of which some 31,000 had legal aid certificates granted.
The fact is that the reason for this burden which this Government have decided they want to deal with is that many more people are in a position to take advantage of the Legal Aid Scheme and wish to take advantage of it. If that is the position and if the Government find it intolerable, they could at least say to the House, "We find it intolerable and we have decided, because we are really prompted only by financial matters, that we are not going to permit people with incomes as high as at present to take advantage of the Legal Aid Scheme". They could have said that, 983 but of course it would have been highly inequitable. It would have meant that they would be savaging all their Socialist principles, but at least they could have said that.
They could have taken up another attitude and decided that so pressing, apparently, was the need to save what they claim can be saved, £300,000 or £400,000, that they were so desperate, that they would insist on having a new permissive divorce law. They could have said, "We will permit divorce by consent. We regard these questions as so important, to save £300,000 or £400,000, that we shall radically alter the substantive law and take the initiative to allow people to divorce more easily." If that is to inform and inspire divorce Bills in future, if that were the attitude of mind of the Government because they wish understandably to reduce costs, they could have done so. On the other hand, if they wanted to make divorce more difficult they could have done that and it would deter people and reduce the number of petitions. But they did not do any of these things.
They say they are determined to reduce costs. They say to solicitors, particularly those who, unfortunately, have comparatively small practices and do a limited amount of divorce work in the provinces, "In a period of rising costs we shall reduce these fees, even though the matter has been referred to the Prices and Incomes Board and the Prices and Incomes Board who with complete detachment, having made a complete assessment of the position has come to the conclusion that the existing scales which we are imposing on you are something like 55 per cent. less than they should be." Is it surprising that solicitors, who certainly are not the most radical of people as a profession, who certainly are not the sort of people who lightly invite confrontation with any Government, had reached their limits and found it necessary to protest, as they are protesting, against the imposition of rules which in any event are so totally premature?
§ Mr. James Dempsey (Coatbridge and Airdrie)
Would my hon. Friend like to comment on the opinion that the rates of remuneration paid to solicitors and other legal personnel in legal aid cases 984 are rather generous? Would he like to express a point of view on that?
§ Mr. Abse
It is not for those of us involved in the matter to make an assessment. It is fortunate for the legal profession that the Prices and Incomes Board has on the matter we are discussing made its assessment and come to the conclusion that in this particular respect they are receiving 55 per cent. less than they should be having if they are to get a fair remuneration held out by the Attorney-General in Committee.
It is extraordinary that these Rules are introduced by a Government who could normally have pointed to their reforming zeal and who could have got all the kudos, as they are entitled to get, from the establishment of the Law Commissions and for their elasticity. After three years in power, with this great record behind them, the Government choose to opt for the miserable picture of a direct confrontation with the whole legal profession. It is sad. It is impolitic. The implications of it have not been considered by the Government. Solicitors are part of the opinion forming process. Their views are still respected. They are very articulate, as my right hon. and learned Friend the Attorney-General knows to his sorrow.
§ Mr. Abse
I am glad that my right hon. and learned Friend so praises my own articulate plea for the profession. He should not under-estimate, as I fear the Lord Chancellor did in another place, the amount of work which has to go into the preparation of a divorce case. I understand, though, how easily my right hon. and learned Friend could have been misled. There were other days when he was gracious enough to accept briefs from me. On those occasions the most succinct of briefs were presented to him. He will agree that they were short and pert, but that they always masked the great deal of work which had to be done so that the matter could be presented with great clarity to my right hon. and learned Friend, who, taking full advantage of such briefs, with his inimitable charm and profound knowledge of the law invariably made all our clients extraordinary happy.
985 However, my right hon. and learned Friend should not be misled by such experiences. The fact that he was presented with such briefs, not only by myself but also by many other solicitors, does not mean that a solicitor's work can be assessed by the amount of time that a case takes in court. It is unfortunate that the practice followed by so many of us of subsidising litigation—by in some respects playing Robin Hoods—should be perpetuated by these rules. A considerable number of smaller firms—and, indeed, larger firms—will undoubtedly be driven into the position of refusing, because it will not pay them—in fact, because they will lose money—to take on work which they should take on. It is natural that they will be attracted to the work which will give them a fair living. It is equally natural that when they find they are making a loss upon such work they will turn from it.
I understand that in a similar debate in another place the Lord Chancellor pointed out that solicitors have been told in the Report from the National Board for Prices and Incomes that conveyancing charges need readjusting. That is relevant to this matter, because it is logical to argue that in answer to one's plea that one is hard done by in county court costs one is told to make adjustments in conveyancing costs, as the National Board said in a very careful and fair Report.
In another place the Lord Chancellor advanced an argument which I hope that my right hon. and learned Friend will not adopt. The Lord Chancellor said that he is now waiting for the Law Society to make its comments upon the Report of the National Board and that, on receipt of the Law Society's comments, the Government will consider them. That is not the way to proceed. As the National Board has made this Report, the bodies concerned should be given fair opportunity and fair time to collect the opinions of the profession and to present their report. In the light of that, the Government should concern themselves with these rules.
Many weighty arguments have been presented for the postponement of these rules. There is now an additional argument, in the light of the Report of the National Board. Solicitors should be 986 given full opportunity to decide what they wish to do or what they suggest should be done so that they can readjust their conveyancing fees, as a consequence of the Report of the National Board. To put the cart before the horse in this way is an additional reason for solicitors to think that an affront is being committed by the passing of these rules.
I very much regret that the Government have, from the beginning, taken such a short-sighted attitude. They will not save the amount of money they have in mind. That saving is illusory. The Government have over-stated the amount which can be saved. At the end of the day they will find that they have gone through unnecessary opprobrium, all to no purpose. This is becoming a habit of theirs. This, presumably, is a precursor of the general prices and incomes policy and the legislation that is to come. Although I recognise that Governments have to take unpopular decisions and have to be bold, I do not understand why the Government so gratuitously must invite so much bad feeling from the whole legal profession. I join other hon. Members in expressing the hope that these unfortunate rules will be postponed.
§ 8.17 p.m.
§ Mr. Ian Percival (Southport)
I support my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) on both Prayers. I propose to confine myself mainly to the question of solicitors' remuneration, but I support my right hon. and learned Friend's plea on the main rules to this extent. There may be substantial arguments both ways as to what matters and ancillary matters should be left entirely to the county court judge and in respect of which ones the parties should have a discretion. If the Rule Committee had discussed this question and had reached a corporate decision on the matters which the House clearly left to that Committee, the House could not complain.
The aspect upon which the whole House—there is nothing party about this—looks to the Attorney-General and, in his absence, to the Solicitor-General to help it is the question which was raised by my right hon. and learned Friend. Can it be right for the Government to say to the House, "We will leave those matters for a Rule Committee, consisting of a 987 panel of experts, to discuss and decide" and for there then to be a situation, that discretion and those functions having been given to that Committee, in which the Committee did not discuss those matters as matters at large and as matters on which its views were welcome?
I repeat my right hon. and learned Friend's request. I hope that we shall hear a little more from the Attorney-General about what happened in the deliberations of the Rule Committee. Were the members of that Committee invited to express their opinions as to whether there should be a right in any particular case for the parties to choose the High Court; or was the whole matter pre-empted, as the talk which is going round leaves one to believe? Was it not made clear that the Committee's views on this question were not really wanted, that the matter had been decided and included in the draft rules?
No doubt, the draft rules were laid before the Committee. I make no complaint about that, provided that they were laid before the Committee as a subject for discussion, if, on the other hand—as there seems some reason to believe—they were laid before the Committee not as a subject for discussion, not as containing matter upon which the views of the Committee were desired but as something which had already been pre-empted, a serious question of principle is raised. It is not right for this House to be persuaded to leave a discretion to a Committee of this kind if thereafter the Committee will not be invited or allowed to exercise that discretion.
There are only two people who can help the House in this matter, the Law Officers. I am sure that both of them take the view that, as Law Officers, they are the servants of the House. Here is an opportunity for them to render a service to the House, irrespective of party. Let them tell us what happened. If what we believe may have happened has happened in fact, let us have it out in the open so that we may make sure—I am certain that they personally would wish it—that such a situation does not arise again. If the Government intend that they should have the power to say what the rules are, let them take responsibility in this House and write the provisions 988 they want into the Act itself so that we may discuss them here.
I come now to the question of solicitors' remuneration. It is always difficult for anyone to get excited about someone else's pay. I think it unlikely that I shall hold any briefs in undefended divorce cases in the county court, so I can fairly say that the provisions of these rules are of no financial interest to me as an individual. If this were a matter simply of solicitors' income or profits, I might be less interested and say that it was no affair of mine. But there is far more in this matter than the mere question of how much solicitors should earn. It involves matters of wide public importance.
The question of solicitors' remuneration affects our whole system for the administration of justice. It is not possible to exaggerate the importance for every man, woman and child in the country of having an efficient system for the administration of justice. The administration of justice touches all of us in almost every aspect of our lives, not least those aspects in which we British claim to have a great interest, namely, our individual liberties, the liberties of our fellow subjects, and the preservation of those liberties against the depredations of the State. There is nothing which can assist the subject in these matters save the law.
Because we pay lip-service to the idea that the administration of justice is important, we have one Committee after another sitting on the matter. We had the Streatfeild Committee a few years ago, and now we have the Beeching Commission, which we hope will report soon. It ought never to be forgotten that it does not matter how well we organise our system unless we have the right people, and the right number of people, to work it. Furthermore, in view of what has been said and done about these costs, it is necessary to add the reminder in certain quarters that the solicitor's profession is a vital link in the administration of justice. That is where it all starts. Some of it is dealt with entirely by solicitors. Under this Act, more will be dealt with by solicitors. But, even if solicitors do not do it all themselves and they go to counsel, it all starts with them.
I do not doubt the Government's desire to reform the law, by which I mean not just change it but improve it—the two are sometimes a little confused—but they 989 are in danger of producing a result very different from what they desire by putting too heavy a burden upon practitioners and causing a breakdown in the very system which they desire to improve. In the past three years, we have had a large burden of complicated legislation, legislation which taxes the skill and experience of any practitioner on either side of the House. It is very time-consuming. It means that the citizen has to seek advice more often because he cannot understand the law. The solicitor, even if he is lucky enough to understand some of it, has to spend much longer in explaining it. In many more cases, he has to admit that he cannot understand it, he goes to counsel, who in turn says that he does not understand it, and then the wretched lay client says, "What an ass the law is". The whole system is in danger.
A great many more people are needed to work these changes in the law if they are to be worked at all. Are we getting them?
In his speech in another place last Thursday the Lord Chancellor said that it is estimated that the solicitors' profession is already 5,000 under strength. I think that that means that a 25 per cent. increase is needed to get it up to the number which can provide the service the citizen needs. The shortage is not only in private practice. Hon. Members who are in the profession will no doubt correct me if I am wrong, but I understand that that reference was to a shortage of 5,000 in the practising profession of solicitors, and does not allow for the shortage of lawyers in other fields, not least in Government Departments.
All of this is of direct relevance now. I am not thinking only of the question of an individual solicitor's pocket but of whether we shall have enough solicitors to provide the service that people reed. Hon. Members opposite with great experience of this matter have given instances of why the remuneration is too low and why it cannot cover increased costs and so on. The strength of their case is that this does not need any proof from their side. Everybody from the Lord Chancellor down agrees that the scale of remuneration now proposed is wholly inadequate. The noble and learned Lord said on Thursday: 990One thing that is quite plain is that county court fees—and this applies to both barristers and solicitors—could not possibly be right, …"—[OFFICIAL REPORT, House of Lords, 4th April, 1968; Vol. 290, c. 1451.]And yet that is the scale which the Government propose, and indeed up to now are providing, for the remuneration of a body which has a public service to perform. The Government are providing for a scale which, in the Lord Chancellor's own words, could not possibly be right.
In addition to those already raised by other hon. Members, there are three serious objections to it. First, there is a question of principle. No matter whose remuneration it is talking about, it is quite wrong for the House when it has the duty of prescribing remuneration, to lay down a scale which, on its own admission, could not possibly be right. How can that make sense? How can it be sensible as a question of principle?
§ Mr. Ted Leadbitter (The Hartlepools)
I have followed the debate with interest and agree with everything that has been said about solicitors' status, their work and the Report of the Prices and Incomes Board, which recommended a 55 per cent. increase in county court costs. But is the hon. and learned Gentleman really saying that the very year in which every other worker in the country must accept a certain level of remuneration across the board is the right one in which to apply what he suggests?
§ Mr. Percival
I am glad that some non-lawyers are intervening, because it gives the opportunity of clearing up questions which might otherwise go by default. If the matter were approached as the hon. Gentleman suggests, he might have a point. But this question is based on a misconception of what is happening. This is not a matter of limiting solicitors to what they are already earning. The Prices and Incomes Board, curiously enough, says that that is not enough and that it must be increased—and soon—even having regard to all the economic circumstances. It is not a question even of keeping remuneration where it is. These rules provide for a lower rate of remuneration for what is, broadly speaking, the same work done in a different place. I do not know of any other profession or occupation in which anybody has yet been asked to 991 do more than to hold his horses, or to keep his increases to what is called the norm. I do not know of any case in which people have been asked to take a cut in the pounds, shillings and pence in addition to the cut which results from the steadily rising costs they must suffer.
§ Mr. Leadbitter
There is no difference between us here. It is a question of clearing up a small point. I think that the hon. and learned Gentleman has adequately answered my question except in this: does not he agree that the Budget proposals require a 1 per cent. reduction in the standard of living of all our people, and will he accept, therefore, that this is the wrong time of the year in which to put the proposal he makes?
§ Mr. Percival
Again I am glad if there is one point outstanding and the hon. Gentleman gives me a chance to deal with it. I think that he is a little optimistic about the figure of 1 per cent. I would think that the Budget proposals will result in considerably more than a 1 per cent. reduction in the standard of living, but I suggest to him that there is no connection between that and the point about which we are arguing.
All of us, whatever our remuneration, will have to suffer the consequences of the Budget—namely, that our remuneration will be worth 1 per cent. or 5 per cent. less. But what is asked of the solicitors' profession is that, on top of this, they should suffer an additional cut which no one else has yet been asked to suffer, as far as I know, by having not only to put up with the fact that the value of what they are getting will become less but with taking less in terms of £s, shillings and pence than they are already receiving, which of itself is based on a scale fixed many years ago and already patently out of date.
§ Mr. Hugh Rossi (Hornsey)
Pursuing that point, would not my hon. and learned Friend agree that the new cost rules proposed mean that the fixed remuneration for a solicitor could be between £40 and £43 for undefended divorces, which is what a solicitor was earning in 1939 for an undefended divorce? Could he state what other section of the community would be prepared, in the interests of the national economy, to go back 992 to what they were earning £ for £ in 1939 in their job, forgetting entirely the devaluation in the purchasing power of the £ since 1939?
§ Mr. Percival
I do not want to get involved in too much detail here. I am a member of the other profession. I prefer to express what I think to be a disinterested view of these scales, which I hold as someone who is concerned about the efficient administration of justice. I suppose that, if everyone's situation got to the stage—as perhaps it may before long—when they were asked to take a cut in net earnings, so be it, but that is not being asked here. It is not a question of being asked to do anything. The solicitors are having forced down their throats a scale which, by common consent, cannot be right and which has the consequence of paying them less than they have been paid for doing similar work until recently, which scale itself is perhaps 20 or more years out of date.
I return to my point of principle. I urge upon the House that it cannot be right, it is a misuse of the trust and power reposed in this House, for this House, when it has the power to prescribe what someone shall be paid, to prescribe that remuneration at rates which everyone from the Lord Chancellor down, agrees cannot possibly be right. We ought not to do it in any circumstances.
It is even more serious—and this raises another question of principle on which I hope we shall have the assistance of the Law Officers—and is even worse when it follows an assurance given by the right hon. and learned Attorney-General in these terms when the question of fair and reasonable remuneration was discussed:The Rule Committee is not specifically required to have regard to the principle of allowing fair remuneration … it is unnecessary to require it to have regard to that principle…As the fixed costs will be related to the amounts which might be expected to be allowed if the costs were taxed, regard will in effect be paid to the principle of fair remuneration …"—[OFFICIAL REPORT, Standing Committee F, 22nd June, 1967; c. 70.]There is nothing critical of the right hon. and learned Gentleman in what I am saying. I have no doubt that, when he gave that assurance, he did so in the belief that it would be honoured, as any hon. Member with any experience of the law would fully have expected, because I 993 do not think that any hon. Member, even without the assurance of the Attorney-General, could posibly have foreseen that the Government would fix remuneration at anything less than was fair and reasonable. Here we have a case where we have that specific assurance from the right hon. and learned Attorney-General which I have no doubt he gave only because he genuinely believed that it would be adhered to but which has been set at naught by the manner in which this has been dealt with. These rates are by common consent not fair or reasonable and have been forced upon the Rules Committee by the Government after that assurance given in the House by the Government. I hope that the Attorney-General will feel the same about that as the rest of the House feels—that it is singularly unfortunate that such an assurance cannot be honoured.
In a speech which I have read with the greatest care, the Lord Chancellor appeared to lay all the blame at the door of the Prices and Incomes Board. I was somewhat surprised, as hon. Members opposite may have been, by the sort of criteria which the Board thought suitable `or determining what was reasonable remuneration. However, be that as it may, the Board cannot be blamed for this, because, as was pointed out by the hon. Member for Bolton, West (Mr. Oakes), the Board itself says that the determination of the charges for divorce work in the county courts, which have et to be fixed, should be consistent with its recommendation for an increase in the level of county court income. It could not be more specific. It expected the Rules Committee to fix the new costs in accordance with the views expressed by the Board, and that is just what the Mules Committee, or the Government, has not done.
I read the Lord Chancellor's speech with great care several times. The Prices and Incomes Board has expressed the view that county court costs are too low and ought to be increased by an average of 55 per cent., but that some other costs are too high. The Lord Chancellor has apparently accepted that view and said, "We must now negotiate the new scales of costs". What he has done is to fix the fees for this very important work at levels which he himself has said are not enough to cover even the cost, 994 while at the same time saying, "Now we will negotiate about an increase, but at the same time you will have to accept some decreases in your other fees".
I hope that we shall hear from the Law Officers about this. No doubt taking this course will strengthen the hand of the Lord Chancellor in those negotiations. He dealt himself a few more trumps by including in the costs which have to go up these new divorce costs. His position will now be very strong in the negotiations in which, as he made it clear, he considers that the solicitors will have to give ground on their other fees. I question as a method of fixing remuneration for an entirely new branch of work such as this, in which the principle should be that those who do it should have fair and reasonable remuneration from the start.
I hope that the Government will think again. It could just be that a course of action which has attracted such universal criticism from within the profession is wrong. I hope that we shall not hear, "We must look at this in the broad context", and, "All the speeches have been in support of a narrow self-interest". I do not believe that. There is at stake a matter of wide and great importance, because unless we establish, accept and abide by the principle that all those who are expected to play a part in that most important of services, the administration of justice, should receive fair and reasonable remuneration for doing so, the system of justice which we profess to love and admire, and which is certainly the envy of the rest of the world, will no longer retain that position. If it is allowed to slip back from that position, we shall be doing this country just about the greatest disservice we can do it.
§ 8.45 p.m.
§ Sir Barnett Janner (Leicester, North-West)
We have all listened with considerable interest to the speeches which have been made, and I hope that my right hon. and learned Friend the Attorney-General will have listened with equal interest to the points which have been raised during the debate. I make an appeal to my right hon. and learned Friend because, as my hon. Friend the Member for Pontypool (Mr. Abse) has said, he knows what is at stake.
I should; of course, declare my interest. I am a solicitor. From a varied and 995 interesting practice, my right hon. and learned Friend could, I am sure, make a speech emphasising the points which have been made even much better than those who have, nevertheless, done so well during their speeches. My right hon. and learned Friend knows that this is a matter which affects a large section of the community who will now seek remedies in the people's court—the county court—which has been accustomed, year in and year out, to deal with problems and cases relating to the so called man in the street.
We are discussing an extension of the activities of a court which, throughout the whole of one's experience, has never paid solicitors adequately, unless they have been so engaged with county court work that they had nothing else to think about—in other words, coming into court with case after case and devoting practically the whole of their time to that kind of practice.
That situation cannot prevail for cases which are as widespread as the kind which we are now discussing. The county courts are to deal with matters which have exercised the minds of High Court judges and frequently of eminent counsel, as well as eminent solicitors. I do not think that the nation as a whole understands what is involved. Those who come with their cases to a solicitor's office begin to realise what it is about because the time that is taken to get at the salient facts in a case certainly, as my hon. Friend the Member for Pontypool has said, cannot possibly be measured by the words of the brief which hitherto has been produced for counsel.
Apart from professional people, how many—including, I venture to suggest, counsel, who have never had experience of being in a solicitor's office—know what is involved? It is not what is ultimately produced in the way of the brief, as I have said, that is the test of the work involved It consists partly in eliminating material which is irrelevant, but to the person who is involved in the case very relevant until and unless he realises what is legally at issue.
A person goes into a solicitor's office and gives his version of the matter. It takes a very long time for an experienced person to investigate which part of that 996 material is of importance to the case. This procedure applies in divorce cases to no less an extent than it applies in other very involved cases. This means that an experienced man or woman in the office, perhaps a principal, perhaps a managing clerk, has to spend hours sorting out what is important. The client often returns time after time until ultimately the material has been so sifted out that it is ready to present to a court. The witnesses concerned think that everything they have to say is relevant, and they have to be extremely carefully handled so that they do not feel that an injustice is being done to them if material they produce is not used.
It may sound very mundane to put the matter in this way in the House, but the individuals who prepare the case have to be paid, the rent of the office has to be paid and the secretaries have to be paid. The payment for these services is not the same as it was in 1955, yet as the House realises, solicitors have received no increase in the place of fees since that time.
I am sorry that my hon. Friend, who asked why solicitors should not take lower fees as do others, has left the Chamber. He asked why solicitors should not reduce their present fees. Solicitors have rendered a very big service to the country in legally aided cases. Instead of taking the full fee, they have taken a cut fee on taxed costs, a fee which has been at the same rate for some 13 years.
These are matters that should be known to the public. Many silly remarks are made about the solicitors' profession, which would not be made if people understood the work they do. If they understood, instead of denigrating the work they would realise it is extremely important in the administration of justice. The Prices and Incomes Board, which has investigated every detail of solicitors' activities, is made up of independent persons who are not solicitors. They investigated whether the income or the price charged is a reasonable one. They came to the conclusion that a solicitor doing only county court work would not be able to exist because his fees are 55 per cent. less than he ought to be charging to enable him to live.
Over the years thousands of cases have been taken on by solicitors without any 997 remuneration at all, in the same way as medical practitioners treat some patients for no fee. Do hon. Members think that every case which comes into a solicitor's office is regarded as one in which payment is expected? I am sure that no one can name any other profession or trade which would be prepared to be paid 55 per cent. less than what is reasonable. I appeal to the Attorney-General to take that into account and deal with the matter on that basis.
As it is entitled to do, the Law Society watches the interests of its members, but it also watches the interests of the community as a whole, as shown by its disciplinary rules, and so on.
§ Mr. Grieve
It is not only in consequence of its disciplinary rules, but by reason of the fact that the country has entrusted the Law Society with the administration of the Legal Aid Scheme that it looks after the interests of the community.
§ Sir B. Janner
I am obliged to the hon. and learned Gentleman. It is not often that that kind of compliment is paid here to the profession, but when it is, we are grateful to those who appreciate what is being done.
The Law Society has inquired into the matter. It has not done so lightly, and the results of its inquiry have been submitted to the Lord Chancellor and to the Law Officers. Why have they not accepted what is an eminently reasonable case? The Law Society points out that the fixed costs, and the scale of tax costs, passed by the Rule Committee were based on Section 4 of the County. Court scales of costs which were formulated in 1955 and came into force o a 1st January, 1956. This means that the position has remained unaltered for more than twelve years. Can any hon. Member tell me of any other example of remuneration remaining the same for the last twelve years?
County courts are now being asked to do the work which used to be done in the High Court, and solicitors are being called upon to do what counsel used to do. It might interest the House to know that a solicitor will receive about 15 per cent. to 18 per cent. less than he would have done had he prepared the same case before, when he did not have the responsibility of presenting it to the court. 998 Hitherto, a solicitor prepared a case, and counsel took the responsibility for any slip that was made in its presentation.
We must get the new situation into its proper perspective. Previously a solicitor was able to rely on counsel to a certain extent. Now he will have to depend upon himself, unless he is able to get counsel to take a case in a county court, and I am not sure that many counsel will be prepared to take such cases, bearing in mind the scales of remuneration that are being suggested. I do not know whether any of the hon. and learned Gentlemen opposite will see fit to go into a county court, in view of some of the scales that are being allowed.
This is an extremely important matter from the point of view of the community. I do not wish to reiterate what has already been said, but we must get the question of this payment into its proper perspective. We want the work done properly, and we must remember that a solicitor cannot afford to lose money, any more than anybody else can. He cannot carry on a practice if his overheads are not covered. He certainly cannot live unless an additional payment is made to him. He has to study for a long time before qualifying and he has large responsibilities when in practice. In those circumstances I appeal to my right hon. and learned Friend to do something about the situation and not to allow an unfortunate position to arise, which will make it impossible for a solicitor to carry on his work.
The idea that, because some other kind of work done by a solicitor is more remunerative than some people think it should be, the litigation department of a solicitor's office should be run at a loss is ludicrous. How can a solicitor employ a managing clerk and a staff—especially if his firm is a small one—and be expected to run a litigation department if it is not paying albeit in some small measure? That is what will happen in the present contemplated situation.
In the circumstances it is likely that in future those interested in advocacy and others who would like litigation work will not be persuaded to enter the profession. We shall not obtain the necessary executive and all other kinds of staff who are required in this kind of work. In the long run this will deal a severe blow to 999 people who are seeking redress of their grievances in the courts.
That situation is not to be desired. It has already been stated that the profession is 5,000 short of its required numbers. We certainly do not want to take a step which will make it even less desirable to enter the profession simply because people will not be able to make a likelihood at it. It is an honourable, important and responsible profession. It is necessary for the country and for the people, and it is in that sense that I appeal to my right hon. and learned Friend to revise his ideas on this matter.
§ 9.9 p.m.
§ Mr. J. T. Price (Westhoughton)
On a point of order. The Chair has already called seven or eight hon. and right hon. Gentlemen. It is obvious that at the moment the House is almost completely occupied by professionally qualified lawyers, who have a personal interest in this matter. I submit that it is about time that we had a speech from a lay Member who was representative of the public interest and who could put the opposite point of view, regardless of which side of the House he came from. The lawyers are all ganged up together.
§ Mr. Deputy Speaker (Mr. Sydney Irving)
The Chair is conscious of the difficulties of a situation like this, but it would be proper if hon. Members were to leave the selection of speakers to the Chair.
§ Mr. Carlisle
I am sure that, if the hon. Gentleman tries to catch your eye later, Mr. Deputy Speaker, he will probably be successful, but if he had been in the House earlier, he would have heard one non-lawyer, his hon. Friend the Member for The Hartlepools (Mr. Leadbitter) say that as a layman he sympathised with the arguments advanced from both sides.
This is an extraordinary place. I came here intending to speak on crime and would probably have made that speech at this very moment. At least it is an ill wind that blows no one any good, because, as the previous business fell, we have had a good deal of time to consider these important rules.
Many hon. Gentlemen have mentioned solicitors' costs, but, although I sympa- 1000 thise, I want to come back to the question of how the rules were passed. Some people, including, we understand, the Rule Committee, feel that it could not consider the type of rules which some of its members considered within its jurisdiction. Section 1(3) of the Act says:Every matrimonial cause shall be commenced in a divorce county court, but rules of court … may provide for the transfer to that court of matrimonial causes which remain undefended.Subsection (5) says:Rules of court shall define the circumstances in which any matrimonial cause is to be treated for the purposes of this Act as undefended …A reasonable interpretation was that the Rule Committee could lay down rules stating in what circumstances a case was deemed to be defended or undefended.
This was to some extent substantiated by the Attorney-General when he said in Committee:The Bill requires rules to provide for the transfer to the High Court of proceedings relating to the children where the transfer appears to the county court to be desirable. It also enables rules to be made so to provide in such other cases as may be specified in the rules."—[OFFICIAL REPORT, Standing Committee F, 15th June, 1967; c. 35.]One understands from memoranda received from hon. Members that it was clearly indicated to the Rule Committee that it had no right to consider this matter and that a decision on whether a case should be treated as undefended had been decided by Parliament without reference to the Committee.
I hope that we may hear whether this matter was raised and some members of the Committee signed the rules with a protest, and why the right hon. and learned Gentleman does not consider that it was within the Committee's competence to decide this question. There is no doubt that to a large extent these rules produce a complete absurdity in the present jurisdiction of the county court. In normal matters the county court judges have jurisdiction to decide actions relating to sums of up to £500. Yet, taken at its very lowest, their jurisdiction in the county courts on divorce would enable them to decide ancillary matters amounting not to £500 overall but to £500 a year in maintenance, perhaps continuing for 20, 30 or even 40 years. It cannot be outside the knowledge 1001 of the Attorney-General and the Solicitor-General that many cases are settled in the courts in which maintenance of £1,000 is commonplace. Whereas we limit the jurisdiction of a county court judge to £500 in a straightforward action, by these rules we are giving him jurisdiction to decide cases which may run into tens of thousands of pounds, without Parliament having expressed a view whether such jurisdiction is suitable in the county court.
As most of my practising time as a barrister is spent on the northern circuit, I am mindful of the argument which says that divorce cases in the High Court have normally been carried out by county court judges and that, unlike in London, they have jurisdiction in matters over children and in substantial matters of maintenance. But the Government's argument justifying the introduction of the Act was to do away with what they called the absurdity of High Court jurisdiction when the work was being carried out by county court judges. As a result of these rules, they have made the service very much the worse, because by giving the county courts jurisdiction in divorce they have at the same time given them jurisdiction in ancillary maters far outside their normal limit.
Previously it could be argued that those who served the High Court as commissioners were often county court judges, but at least their jurisdiction arose from the fact that they were sitting in the High Court. Now they are taking back into the county court jurisdiction which previously existed only in the High Court. The anomaly therefore continues. Indeed, it continues still further, because it follows from the logic of these rules that an undefended case should be tried by a county court judge but that if defended, whether short or long defended, it is a matter for the High Court. Will the Attorney-General deal with that point? If that is so, are we to understand that under these rules High Court judges will in future try defended actions? That is an obvious corollary of the provision that undefended cases are to be tried by county court judges.
I understand that the Government propose to continue the practice of inviting county court judges to sit as commissioners to try the defended lists on circuit. If that is so, they are not only perpetuat- 1002 ing the anomaly but are extending it, since presumably county court judges will be trying long defended cases as well. I should have thought that this proved the nonsense of introducing these rules at this time; that is, at this time when it is clear that the courts are not prepared for it, when the whole of the divorce law is under change as a result of the Private Member's Bill introduced by hon. Gentlemen opposite and when the Law Commission is considering the whole question of family law.
There is no doubt that solicitors have a justifiable grievance. On 31st January the Prices and Incomes Board, on which the present Government rely so heavily, recommended that solicitors' costs for county court work should be increased by 55 per cent. because, the Board said, the work was hopelessly unremunerative. After that, these rules were laid down, with costs for divorce work in the county court based on the same scale of costs as that which the Board had said was 55 per cent. under value.
Members of both sides of the legal profession are often under attack in this House. Would any hon. Member seriously believe that chaos would not be caused if a recommendation of the Prices and Incomes Board for an increase in costs of 55 per cent. was ignored by the Government, the matter having been referred by the Government to the Board? Alternatively, would any hon. Member suggest that if the Board had recommended that no increase should take place, the Government would not accept that recommendation? Equally, if a substantial increase has been recommended, it should not be ignored.
We see that there is a considerable hardship to the solicitors' part of the profession. This must mean a loss of £30 or £40 per undefended case, although the work that solicitors are doing is exactly the same as that performed before this Act. Such a loss cannot be justified, despite the Lord Chancellor pointing out in another place that the reason for the reduction in costs was the fact that much of this work was now being done in the county courts rather than in the High Court; so that, by moving the work from one to the other, costs should come down. However, although divorce work may have been removed to the county court, it has meant only the removal of what 1003 would otherwise have come within the High Court jurisdiction from the point of view of money and ancillary matters.
Perhaps I have spoken for too long on this issue, but had I been called to speak on the subject of crime I could have spoken for longer, although I appreciate that to do so now would put me out of order.
§ Mr. Carlisle
I said earlier, Mr. Speaker, that I would try not to be tempted.
I ask the Attorney-General to consider again the timing of these rules, the constitutional basis on which the Rule Committee acted, and the considerable unfairness, of which one could give individual examples, that the Government are perpetrating on part of our profession by asking solicitors to accept remuneration so much below that which they were already receiving for other work.
§ 9.20 p.m.
§ Mr. J. T. Price (Westhoughton)
If it is not indecent for a lay Member of the House to intervene in a debate that has so far been completely dominated by our legal friends on both sides, I propose to speak briefly and without entering into the technical arguments that have been so eloquently put forward.
I have listened to some, but not to all, of the speeches. A good many hon. Members have already said, speaking from various angles as professional operators in the law courts, that we are here dealing with a matter of principle. I deny that to be the case. It is fundamentally a debate about money—filthy lucre—
§ Mr. Speaker
Order. It is a debate about two Statutory Instruments which have to do with matrimonial causes: money enters into it a little bit.
§ Mr. Price
I would not for one moment get at cross purposes with the Chair on such a matter. I need not use too much illustration of what I mean. I mean that Statutory Instruments 281 and 219—both of which, incidentally, I have read—concern the procedure by which matrimonial causes are to be conducted and the conditions under which the solicitors are to be paid. My justification for using the words "filthy lucre" is that I believe in calling 1004 a thing by its proper name. It sometimes irritates me when lawyers who are so skilled in advocacy speak in the House—without always declaring an interest in a matter—and succeed in injecting an atmosphere favourable to their profession, something that I regard as an abuse of their position here.
This is an occasion when, if I had been professionally interested, I would never have crossed the Bar of the House—I should have been too shy to say anything. I am not professionally interested, but I do not speak entirely as one who does not know anything about what happens in the legal profession. As my hon. Friend the Member for Leicester, North-West (Sir B. Janner) knows, in a previous incarnation I had a good deal to do with his profession and its affairs—
§ Sir B. Janner
I have no knowledge of any previous incarnation of my hon. Friend the hon. Member for Westhoughton (Mr. J. T. Price). I am sure that it must have been a very pleasant one, whatever it was.
§ Mr. Price
My hon. Friend would be kicking into his own goal if he agreed with me there, but I am grateful for what he has said.
The real gravamen of the complaint of those hon. Members who are barristers or solicitors is that a great deal of the business that used to be conducted in the High Court and was paid for on High Court scales has been transferred to the county court where it is remunerated on a much lower scale. The scale at one time used to be called the Liverpool Court of Passage fees. The name was altered later, but that was the sort of rate fixing trade union basis. Just as the engineers have a basic rate fixed by a 1939 agreement which is always quoted, so the lawyers always quoted the Liverpool Court of Passage fees as the basis of their remuneration.
This has all been altered by two factors. The Government, rightly or wrongly, have decided—I believe rightly—that there are so many petitions filed for divorce in these days that a great deal of the business has been blocking the High Courts to the exclusion of more important common law and criminal actions which could occupy the time of learned judges and it is common sense to channel some of the divorce work into 1005 the county courts where it can be done much more cheaply.
You Mr. Speaker, have been in this House, as I have, for a good many years. You know that on all sorts of occasions hon. Members on the back benches, and sometimes those on the Front Benches, complain about the inordinate amount of influence which professional lawyers have on the affairs of this House. They not only operate the laws we make, but they take part in making them. In many Erections they make them more complicated than they need be, because it needs professional assistance—
§ Mr. Speaker
Order. Whether they do or not, we are discussing two Orders, one the Matrimonial Causes Rules Order and one the Matrimonial Causes (Costs) Rules Order.
§ Mr. Price
I am sorry if I have got out of order. I have made the point and will not press it.
The second thing which has caused a change of front on the part of the Government is that some years ago this House, with my support, placed on the Statute Book the Legal Aid and Assistance Act. That was a humane piece of legislation which was designed to enable people of poor means to obtain qualified professional assistance if they needed to go to law. I happen to believe that the law is better left alone; it is better not to go into court, particularly if some kind of civil dispute is concerned. Be that as it may, since we placed the reforming Legal Aid and Assistance Act, with subsequent Amendments, on the Statute Book, there has been an enormous increase in the number of persons seeking legal aid certificates. Strangely enough, the vast majority of the applications made for legal aid have been in respect of divorce.
I should be entirely out of order if I tried to make any kind of moral or ethical speech concerning divorce. That is not within our terms of reference. We are concerned with money which the lawyers get for operating or performing as advocates in the law courts for clients who have obtained legal aid certificates or otherwise. My hon. Friend the Member for Pontypool (Mr. Abse), who at the moment is not in the Chamber, has great experience of these matters as a practising solicitor with a large practice in 1006 South Wales. No doubt he is a very good lawyer. In his speech he strongly criticised the Attorney-General. I am not reporting what he said, because he will be able to read it in HANSARD.
He took the line that the Government were wrong. He said that on the latest available figures the number of divorce petitions in this country had risen from the relatively low figure which existed as a norm before legal aid, to 47,000 last year and of those petitions 31,000 were supported financially by Her Majesty's Exchequer, by Government grant of an unlimited amount in some cases. This is serious, because we are entitled to ask whether the vast increase in divorce productivity arises from a vastly increased level of infidelity between married couples or whether it arises because those who were previously prepared to live in sin, once the Government could give them a clean bill of health, were able to obtain divorces with the Government paying the costs of both sides, party and party.
§ Mr. Price
I will have to leave it as a matter of reflection for hon. Members who are better qualified to answer it than I am to ask it. I have often been critical of things the Government have done. Tonight I am critical of the lawyers. The hon. Member for Runcorn (Mr. Carlisle) said that solicitors have a justifiable grievance because of the new scale of fees prescribed in Statutory Instrument No. 281. I would not deny any professional body or any other group of workers proper remuneration for work done, but I am not convinced from the speeches which have been made that a case has been made against these rules. I am not convinced, because solicitors' practices in the main are not confined to divorce work. They are concerned with trust, wills, and all the other things.
§ Mr. Price
With great respect, Sir, they do. If I were convinced that there was any danger of practising solicitors going to the workhouse or becoming applicants for public assistance as a result of some 1007 wicked action taken by the Attorney-General, I should become the most humane advocate solicitors ever had in the House. I am not so convinced, because solicitors' practices are geared to property, and the inflating values of property have made millionaires of many solicitors. [Laughter.] Those who disagree with me should fight this out with the editor of the Observer who recently published an article showing that 17 of the last 21 millionaires in Britain were solicitors whose activities are geared to the inflated value of property.
§ Mr. Oakes
My hon. Friend's assertion is based on the theory that all solicitors' practices are concerned with all kinds of legal work. This is not so. The solicitors he is talking about—those who make the fortunes—would not take on a divorce case or a legal aid case. They deal exclusively with very expensive property transactions. This is why my hon. Friend's reasoning is so unfair.
§ Mr. Price
I shall give way in a moment. I do not want to speak too long, but I shall not sit down yet. [Interruption.] So long as I am in order, I am prepared to speak for a long time, and so I shall if I have many more interruptions. I do not want to bore anybody, but I shall have no difficulty in carrying on with my speech.
I do not want to listen to professional "blah". I am looking at the realities of the situation. When I am told that these rules will inflict hardship on solicitors. I want that allegation proved. There is a learned society, the Haldane Society, of which I am not a member but of which my right hon. and learned Friend the Attorney-General will know. The Haldane Society has many solicitors and barristers in its membership, and it has said that the Legal Aid and Advice Act has not been what this House intended it to be but has become, in practice, the lawyers' aid and assistance Act.
§ Mr. Speaker
Order. We are not discussing the Haldane Society or the legal profession in general. We are discussing two Instruments, which the hon. Gentleman has read. He knows the position perfectly well.
§ Mr. Price
I am sorry if I have transgressed in mentioning the Haldane Society, Mr. Speaker, but, if hon. Members who have been speaking from a purely professional and vested point of view tell us that the Law Society, the Bar Council or some other professional body supports what they say, I feel that I am entitled to give the view of a society which has many lawyers in its membership and has expressed a contrary opinion.
I do not want to bore the House by continuing the debate longer than necessary, but I must say a word now to my hon. Friend the Member for Leicester, North-West. He said that solicitors would have not only to prepare the briefs but would have to go into court and deal with them in the county court because solicitors are not allowed to appear as advocates in the High Court. I am old enough to remember the days when W. H. Thompson, one of the most famous solicitors in the country, had his practice in Chancery Lane, an enormous practice. The family still have that practice, I understand. He used to go into the county court every week of his life, and he was rebuked by learned judges for going into court wearing a blue collar when he should have worn a white one. I am a little sceptical about what is said today. If solicitors are men of parts, competent men, and they do not want to go into court, they will hand the briefs, when prepared, to a suitable barrister. There are many briefless barristers looking for work from such genial, friendly and humane people as my hon. Friend the Member for Leicester, North-West. So that argument is a non-runner, a complete non sequitur.
In many ways, this debate is a non-runner. On the surface, it may appear that solicitors will be required to take lower fees for divorce work, but there is far more divorce now than ever before in our history. Divorce cases have blocked all the channels in the High Court and they are now to go to the county court, to the second division, as 1009 it were. I am all in favour of that. We are not a corporate State yet. We are a democracy. If there is a far greater amount of work being channelled into solicitors' offices, any solicitor who does not want it because it is unremunerative will find that there are plenty of solicitors prepared to take it on. They will not be black-legging on their trade union if they do, a very powerful trade union, as we all know.
I have taken longer than I intended, but I have spoken at some length because there are occasions when this House seems to be a monopoly assembly for members of the legal profession. On other occasions hon. Members on both sides of the House who are not present tonight do not tire of saying, "Lawyers again!". You know what I mean, Mr. Speaker—that everything is set up for the advantage of lawyers, like the last two years' income which was allowed to go tax-free—
§ Mr. Speaker
Order. The hon. Gentleman must not pray Mr. Speaker in aid, and he must keep to the two Instruments we are discussing.
§ Mr. Price
With great respect, Mr. Speaker, I am trying under great difficulties to do just that. I am trying to keep in order. I am behind the red line, and I want to stay behind it. But I pray in aid of perhaps a few transgressions that, in view of the totality of the income and remuneration a solicitor of reasonable competence can earn in the present sort of set-up existing in the courts and elsewhere, we have no need to apologise to anybody, including my right hon. and learned Friends the Attorney-General or the Solicitor-General, who deal with these matters on our behalf. They will find me 100 per cent. behind them, for the first time since I have been here on a matter like this. I think that they are right, and I shall give them my vote if there is a Division.
§ 9.41 p.m.
§ Mr. Daniel Awdry (Chippenham)
We enjoyed the speech of the hon. Member for Westhoughton (Mr. J. T. Price), but I shall not take up his points in detail. I do not think that he had really done his homework. I do not think that he really knew the details of what he was discussing, and I am sorry that he missed the earlier part of the debate.
1010 It is a pity that so many lawyers are having to take part in the debate. I start by declaring my interest. I am a solicitor, though I do not practise very much in court, nor do I do a great deal of divorce work. I do not, however, approach the debate on the narrow basis of arguing the case on behalf of solicitors. I believe that the public interest is involved, for I am convinced that if proper remuneration is not paid to solicitors the public will certainly suffer in the end. It is purely in that spirit that I speak.
What are the short and simple facts behind the debate? I was a member of the Standing Committee on the Act. On 22nd June we had a debate on solicitors' remuneration and when I asked the Attorney-General certain questions and he replied:The Rule Committee is not specifically required to have regard to the principle of allowing fair remuneration in prescribing a scale and, in my submission, it is unnecessary to require it to have regard to that principle in prescribing the fixed costs to be allowed in undefended matrimonial causes. As the fixed costs will be related to the amounts which might be expected to be allowed if the costs were taxed,"—then there are these important words—regard will in effect be paid to the principle of fair remuneration, but I do submit that it would not be appropriate that a Rule Committee should be told to have regard to this principle. I am quite confident that in practice it will have due regard to it. Accordingly, I hope that the hon. Gentleman opposite will not be disposed to press his Amendment."—[OFFICIAL REPORT, Standing Committee F, 22nd June, 1967; c. 70–1.]We have the position clearly stated there by the Attorney-General, that the Rule Committee would pay proper regard to the principle of fair remuneration. We now see that the Rule Committee has had no such regard to that principle. At present the average amount of profit costs paid to a solicitor for handling a simple divorce case from beginning to end is £70. I do not regard that as a high figure, and I very much doubt if any other hon. Member does either, bearing in mind the amount of work involved. The hon. Member for Westhoughton talked about advocacy, but he forgot that the solicitor's task is not advocacy but rather the handling of the whole case from the moment the client first walks into his office to the end of the case and the decree absolute.
1011 My experience is that solicitors do not handle divorce business to make money. The hon. Gentleman referred to some solicitors who had vast practices in commercial work. That may well be so, but the hon. Gentleman was well answered by his hon. Friend the Member for Bolton, West (Mr. Oakes) who pointed out that the solicitors about whom we are mainly talking tonight are those in small provincial towns who feel that in handling a divorce case they are also rendering a service. I do not think that anyone here really disputes that contention. If solicitors simply wanted to make money, they would go into another profession.
The point has been well made in another place. Lord Granville West said:I think it can be said that in the Provinces much work is done by solicitors without thought of remuneration. But, of course, conditions in these days are different from what they were in the early days. As has been stated, rents and rates have increased, salaries have gone up, and it is indeed a very difficult time for provincial solicitors."—[OFFICIAL REPORT, House of Lords, 4th April, 1968; Vol. 290, c. 1439.]I remind the right hon. and learned Attorney-General also of what the Lord Chancellor said and I hope that he himself will deal with the point in replying to the debate. The Lord Chancellor said:… I agree—and I have said this publicly for the last two years—that solicitors are having a difficult time. They are overworked. There is a great shortage of solicitors. The Law Society themselves reckon that they are short of 5,000 solicitors—about 25 per cent. There are 30 jobs for every newly qualified solicitor now. They cannot get staff. Their overheads go up all the time, and they are subject to S.E.T.One thing that is quite plain is that county court fees—and this applies to both barristers and solicitors—could not possibly be right, because they have not been increased for 12 years.The Lord Chancellor himself said that, and all of us practising as solicitors know that it is true. Solicitors are having a difficult time and to be fair I accept that some members of the Bar are having a difficult time as well.
As I have said, the present profit costs amount in a simple case to about £70. Under the rules we are discussing, a solicitor will now receive £45 for doing precisely the same amount of work. This is a reduction of 35 per cent. It is totally unacceptable and unfair. Of course I realise that, in future, these cases will be 1012 dealt with in the county courts instead of in the High Court, and I will deal with that point.
The hon. Member for Westhoughton has already left the Chamber, having arrived late. He seemed to suggest that, because cases are to be dealt with in future in the county courts, there should be lower remuneration. I hope that the Attorney-General will deal with this specific point. I imagine that he will argue that solicitors are expected to show exactly the same high standard of work and care in the future as in the past. Surely no one suggests that because we are transferring jurisdiction to the county courts, any less standard will be expected from solicitors in the work they do. On this point the Lord Chancellor raised another argument. He said:There are two other points that I should like to mention. It is not accurate to say that solicitors who work in the High Court and who used to have an average of £65 a case are now getting less for doing exactly the same work. It will not be exactly the same work for this reason: that in some dozen different ways we have simplified the new Rules. We have taken out steps which used to have to be taken, like an affadavit to support a petition, like the solicitors having to find the petitioner and serve him. The court is now going to do the serving, so it will not be exactly the same. Solicitors will not have as much work as before."—[OFFICIAL REPORT, House of Lords, 4th April, 1968, Vol. 290, c. 1450 and 1453.]That really is not a very good point because the new rules being prepared will make only a marginal difference to the work solicitors have to do. I hope that the right hon. and learned Gentleman will also deal with this in his reply because, basically, the true fact is that solicitors will be expected to do almost exactly the same amount of work as they are doing today for a very much smaller remuneration.
I think I know why the Government have gone wrong in their approach to this matter. The Lord Chancellor emphasised the rising cost of legal aid and we are conscious of the fact. He said that the total has risen to about £6 million a year. The reason for the rise in the cost of legal aid is not the rise in solicitors' remuneration. It has already been said that in 1956 27,753 petitions were filed, of which 12,981 were legal aid cases. In 1966, the figure rose to 45,610 petitions, and 31,188 legal aid certificates were granted. The cost of legal aid has 1013 risen because of the tremendous rise in the number of cases which are heard. The Government have created the difficulty for themselves by starting off by saying that it is their intention to cut the cost by a given figure, of £400,000. They are now trying to implement their intention at the expense of the solicitors, and it is this fact which solicitors resent so deeply.
This is entirely unfair and utterly wrong. If the Government accept the principle of fair remuneration, they should keep to that principle. What they are doing is trying to make a savage cut at the expense of solicitors on whose shoulders so much depends for ensuring that we have a just society and also for ensuring that difficult and important cases are handled with that high standard of care and attention which solicitors throughout the years have always been prepared to give.
§ 9.51 p.m.
§ Mr. W. O. J. Robinson (Walthamstow, East)
It is fortunate that my hon. Friend the Member for Westhoughton (Mr. J. T. Price) has left the Chamber and saved me the task of apologising to him for another solicitor entering the debate. I ought to make that confession—apparently it is a matter of confession—but also to say that I have never undertaken county court work, and I hope that I shall never appear in the county court in future as an advocate and certainly not as a respondent.
Many criticisms were made by my hon. Friend the Member for Westhoughton about the failings and not the virtues of members of the legal profession, but I have always thought that one of their virtues was the ability to see both sides of a question. It may be a disappointment to my colleagues in the legal profession, but I shall approach this matter from a somewhat different angle.
Hitherto I have very properly followed the Government's attitude towards the prices and incomes policy. I have read all of the Reports of the Prices and Incomes Board and have thought it right to accept them. For that reason I approach these two orders in the light of the Board's comment on the remuneration of solicitors in the Board's Report, Command 3529, of February this year. There are two ways in which that Report can b; applies to these rules. I find the two 1014 conflicting to some extent, but I should like to quote those parts of the Report which have a direct bearing on the rules and my approach to them.
Paragraph 63 says:We have shown that in general county court business is unremunerativeThat will not be denied by anybody and it obviously goes a long way to fortify the arguments against the rules. Paragraph 65 says:… we conclude that an increase in charges for county court work would be justified. The question is how large the increase should be.That too strongly fortifies the arguments against the rules.
On that same page, the Report gives the Board's conclusion about increases in remuneration for county court work as a whole. This means that an increase of some 55 per cent. would be appropriate and hon. Members have argued that that should be the yardstick to be used in applying these rules. The Report refers specifically to the possibility of these rules coming before the House. It refers to the fact that divorce court work is to be transferred from the High Court to the county court and goes on to refer to the fees which should be fixed for this purpose, saying:The determination of the charges for divorce work in the county courts, which have yet to be fixed"—and which are fixed by the rules—should be consistent with our recommendation for an increase in the level of county court income.This is a very strong argument and has been used as such by hon. Members who have said that the rules set fees at far too low a level. But we ought not to stop there. We ought to pursue the other points which the Board makes. This is the point which we should have in mind when discussing the rules.
The Prices and Incomes Board states quite clearly in paragraph 68:We have made it clear that no increase in the total income of solicitors is at present called for".
§ Mr. Reginald Eyre (Birmingham, Hall Green)
In reading that extract and making that observation, has the hon. Member borne in mind that Selective Employment Tax deprived solicitors of £3 million in the previous year and will 1015 deprive them of half as much again in the next year?
§ Mr. Robinson
I accept that. I do not think that it invalidates the spirit of the argument which I am endeavouring to put. The Prices and Incomes Board states clearly—and the question of S.E.T. would have been present in any case—but certain forms of income should be reduced while others are increased".It cannot be denied that the Board is saying that if there is to be an. increase in fees in one direction, there must correspondingly be a reduction in other directions. That is a material point in considering our approach to the rules.
If, as hon. Members would require, the fees should be increased by 55 per cent., they must surely be ready to concede that in another direction there should be a corresponding reduction.
§ Mr. Speaker
Order. The argument is sound but it cannot be advanced on this occasion. No hon. Member would be in order if he suggested where fees should be reduced elsewhere.
§ Mr. Robinson
I am sorry, Mr. Speaker, for transgressing.
If I may continue with the report of the Prices and Incomes Board, which is material to the question, it states:It is a matter for the County Court Rule Committee to consider how to adjust individual fees so that in total an increase of about 55 per cent. in income results for the present level of work.Again, there are two cogent arguments. On the one side there is the argument that if there is to be an increase in fees, it must be offset.
I was very much impressed, against my will—because I have been strongly impressed by the arguments advanced by the Law Society against the rules—by the argument advanced by the Lord Chancellor in another place when he described this as a package deal. I hate to hear that expression used again so quickly. The Lord Chancellor said, however, that it was a package deal. It could well be argued that in those circumstances, the orders should not be interfered with unless and until the profession, in consultation with the Government, is able to present a picture which will entail the overall balance of fees that the Prices and Incomes Board suggested.
1016 There is, therefore, a strong argument, reluctant though I am to say so, for the Government to say that the Statutory Instruments should either stand as they are or that, alternatively, as I should prefer, their application should be deferred until the negotiations inherent in the Report of the Prices and Incomes Board have been completed. I say reluctantly, but because I think it is right, that we should apply the same standards to the legal profession as have been applied to every other trade union and every sector of industry. We should not defeat the rules.
I appeal to my right hon. and learned Friend the Attorney-General to undertake, if he is able to do so, that the rules will be withdrawn and others substituted immediately the desirable results suggested by the Prices and Incomes Board can be achieved.
§ 9.58 p.m.
§ Mr. Percy Grieve (Solihull)
All too often when one rises to speak in debates in the House of Commons, one does so very much in the spirit of the long-distance runner who has to cover a great deal of ground in a very short time. When today's debate on the rules began at an altogether unwontedly early hour, I wondered whether, on this occasion, one might not approach them in a rather fuller spirit and develop one's arguments at greater length.
Indeed, it seemed to me when we set out on this debate some time before 7 o'clock this evening that far from being a running course that we had to traverse, there was a desert of time before us in which we should need a good deal of the water of good argument. So it has been. We have been fortified in crossing the desert by pellucid and clear water, water of good argument, on both sides of the House, and I hope that when we listen to the right hon. and learned Gentleman the Attorney-General winding up we shall find he has drunk of that water.
§ Mr. Grieve
I am delighted to return to that oasis and to set forth the few observations which remain for me to make at this stage of the debate this evening.
1017 I shall not go over all the arguments which have been advanced against the Instrument dealing with costs. I shall refer to them in a few minutes very briefly. It would give altogether the wrong impression to the outside world were it thought that we in this House were principally concerned with that matter, important though it is, and important though it is that the solicitors who will be called upon to do the work of divorce now in the county courts shall be properly remunerated for the work they do. Rather, I want to concentrate on the Matrimonial Causes Rules dealing with those matters which now shall be dealt with in the county court.
I share the view, so well expressed by my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) and my right hon. and learned Friend the Member for Huntingdon (Sir D. Renton) among others, that that is the matter we should concentrate on in this House, and that, for reasons of public policy, for reasons of humanity and for reasons of the great importance of the issues involved, certain matters should not be forced into the county court straitjacket.
In my submission to the House it is, for instance, wholly wrong for the question of maintenance, which may involve thousands of pounds, to be brought within the purview of a jurisdiction, which on grounds of public policy and others, however strong the judges who may sit there, is limited to £500.
I have here a letter which I have re-received from a country solicitor, which says:Maintenance awards following decrees absolute have in my own experience varied from £200 a year to £3,000 a year.This is in the country. It would be within the experience of many people in this House that maintenance awards may e 'weed that figure. I ask the right hon. and learned Gentleman the Attorney-General, is it right that matters of that magnitude should be left by this House in the hands of a court the upper limit of whose juridiction is £500?
I turn, now to other ancillary matters, the question of the custody of children and the maintenance of children. If there is any matter in this country which 1018 should be within the High Court's jurisdiction if the parties so desire, it is surely matters affecting the welfare of children following upon a decree of divorce. It simply is not good enough to say that we are making a blanket arrangement whereby not only divorce but all the vitally important matters that follow it should be put within the jurisdiction of the county court judge. For that reason, I urge upon the Attorney-General that these rules should be reconsidered.
When my right hon. and learned Friend the Member for Huntingdon was addressing you, Sir, earlier this evening, I intervened to draw his attention to the fact that the various settlements and wives' property settlement orders are all among and ancillary matters coming within the scope of these rules. These rules are effecting a revolution in our law, and we should approach this revolution with great care, with great circumspection, and with great hesitation. For those, among many other reasons which have been urged by my right hon. and hon. Friends, I support my right hon. Friend the Member for Epsom in praying against the Matrimonial Causes Rules.
With regard to the rules about costs, the hon. Member for Westhoughton (Mr. J. T. Price) suggested that this was a gathering of lawyers all bent on defending their own interests. I draw the attention of the House to the fact that very little has been said during the debate about the Bar. Members of the Bar in this House have spoken almost with one voice against the imposition of this straitjacket of costs on the other branch of the legal profession. This does not always happen. Perhaps the severest critics of the barristers are those of the other branch of the profession, and perhaps the severest critics of solicitors are members of the Bar, but on this occasion members of the legal profession have spoken with one voice, because they realise what is involved.
Hon. Members on both sides have referred to the recommendation of the Prices and Incomes Board. It is extraordinary that in the light of this recommendation the House is considering proposals which are designed to cut down the remuneration of solicitors in a very important branch of their work. One cannot 1019 shut one's eyes to the fact that, particularly in the country, on circuit, a large part of the bread and butter of a solicitor's profession is the preparation of divorce work. These rules will make a substantial difference to their real income at a time when, as has been said, they have been adversely affected by the S.E.T. I intervened in the speech of the hon. Member for Bolton, West (Mr. Oakes), to point out that under these rules the payment to a solicitor for doing the necessary preparatory work when counsel is retained is unlikely to be more than £40 or £43. I am told by some solicitors who have written to me that that is below the figure which prevailed in 1939, let alone 1020 1955. The remuneration for similar work then was about £46.
It is no use the hon. Member for Westhoughton saying that solicitors are getting too much anyway, that their remuneration must be cut down. We cannot expect an honourable profession to do work—which I concede has increased to a large measure because of the passing of the Legal Aid Act—for a remuneration which is being diminished to a degree which would be regarded as intolerable by any other profession or occupation in the country.
The ground has been gone over thoroughly by my right hon. and hon. Friends, and I trust that I have not taken too long. I ask the House to join me in refusing to allow these rules to proceed any further.
§ 10.10 p.m.
§ The Attorney-General (Sir Elwyn Jones)
When he spoke in this debate my hon. Friend the Member for Pontypool (Mr. Abse) described me as a stag at bay. I notice that he has not remained to the end of the chase. I remain free and uncaptured by the blandishments of hon. and right hon. Gentlemen who have opposed the proposals of the Government. The only refreshment offered to this stag at bay being some pellucid water, you will not be surprised, Mr. Speaker, if I find it necessary to reject that invitation.
At the beginning of the debate the right hon. and learned Member for Epsom (Sir P. Rawlinson) and other hon. Members invited the Government to suspend the operation of the Matrimonial Causes Act and of these rules because of the existence in the proceedings of the House at the moment of the Divorce Reform Bill and because of the possibility that family courts may be introduced in the future.
When I presented the Matrimonial Causes Bill to the House I ventured to submit that it was not merely introduced in the expectation of reducing the heavy cost of legal aid which, in divorce matters, amounted last year to over £2½ million—which is no insubstantial sum. I also submitted that the Bill, which is now an Act of Parliament, was a valuable Measure for tidying up the administration of justice in this field and for introducing useful procedural changes.
I adhere to that view about the virtues of the Act and think that it would be quite wrong to hold up its implementation pending a major Bill rationalising the substantive divorce law. The Divorce Reform Bill is a Private Member's Bill and it is not certain that it will pass in its present form. Even if it does, it is unlikely that it will come into force before next year. The Matrimonial Causes Act, on the basis of which the rules that we are now debating have been formulated, was passed as long ago as 21st July of last year, and I submit there is no justification for postponing its operation for a further year or so.
The necessary rules have been made and great care has been given to their preparation. I submit that it is desirable that the courts and the legal profession should become accustomed to the transfer 1022 of jurisdiction in undefended cases to the county courts before having to assimilate more changes.
As to family courts, I fear that the coming into being of those courts is very much a matter for the future. The jurisdiction of the courts in family matters was in the first programme of the Law Commission. The Commission has been in touch with the Royal Commission on Assizes and Quarter Sessions that has otherwise been unable to give time to this matter, and I fear that there is no immediate prospect of legislation in respect of family courts of that kind being a ground for postponing the operation of an Act of Parliament passed nearly eight months ago.
The second main matter mentioned by the right hon. and learned Member for Epsom involved his anxiety as to the ability of county court judges to deal with ancillary matters, such as custody and maintenance disputes where large sums of money are involved. Last year, 38,500 undefended cases were heard in the courts, of which 34,000 were tried by county court judges. It is true that they were dressed as High Court judges, but they were county court judges and I have had no evidence that they failed to try issues of custody and maintenance reasonably competently.
For years, county court judges have been dealing with adoption, which entails particularly difficult matters, and for 20 years they have, in practice, as High Court judges, been dealing with custody and maintenance. Of course, they have, as judges, to deal with far more difficult issues than a mere undefended divorce case, which lasts about ten or 12 minutes and the remuneration is not inadequate. The solicitor conducting the case himself will get about £60 a case and he can do about half-a-dozen in a morning, which is not bad going. Of course, I do not want to mislead the House into thinking that that 12 minutes' work is the main part of the time taken by the solicitor or the effort given to the case—
§ Mr. Graham Page (Crosby)
Would the right hon. and learned Gentleman withdraw that comment, which would lead the public to think that solicitors can earn six times £60 in one day, which is ridiculous nonsense?
§ The Attorney-General
I did not say anything of the kind. I said that a solicitor could, if he had the good fortune to have so many undefended cases, which he will, hereafter, be entitled to do himself, each of them taking about 12 minutes, be able to complete half-a-dozen in a morning—
§ The Attorney-General
I have said twice and I will say a third time, if it gives any comfort to those hon. Members who are solicitors, that the actual time taken in court and the skill and effort involved in the presentation of the case is not the solicitor's major contribution when he does the case himself. Obviously, it is the climax of a substantial volume of work. I was trying to say that undefended cases in a county court generally do not involve profound problems either of intellect or of law. This is, therefore, well within the competence of county court judges and they have been coping with these matters for 20 years with a good deal of skill to the satisfaction of the parties.
A good deal of the debate has turned on the complaint that the rules which we are debating have not provided for the transfer of ancillary proceedings to the High Court, and it has been suggested that there has been some "rough roading" of the Rule Committee. Section 2(2) of the Act of 1967 requires rules to provide for the transfer to the High Court of any ancillary proceedings pending in a county court where the transfer appears to the county court to be desirable, and may so provide in such other cases as may be specified in the rules. Rule 80(1) provides that where an application for ancillary relief is pending in a divorce county court, a judge may, if it appears to him to be desirable, order that the application be transferred to the High Court. In difficult or exceptional cases dealing with ancillary matters, the county court judge may order the transfer of the application to the High Court. I hope that that 1024 reassures the right hon. and learned Gentleman about the difficulties which may arise in the exceptional case. The rules fulfil the requirements in the first part of Section 2(2) which I have mentioned.
It has been contended that it should have been free to the Rule Committee to exercise the power conferred by the second part of the subsection by providing for the transfer to the High Court of contested ancillary proceedings. But to do so would be contrary to the intention expressed in the debates on the Bill—and there were substantial debates on the Bill—that where a case is undefended any issue arising in it should normally be dealt with by the county court.
I pointed out in Committee that the Committee presided over by Lord Denning and other Committees have said that the judge who deals with the substantive issues should as far as is practicable also deal with ancillary matters. An Amendment requiring any issues in respect of the custody of a child to be determined by the High Court was rejected in Committe as, too, was a proposed new Clause giving a right of appeal to the High Court where a maintenance order was made in the payment of more than £500 a year. On Report, an Amendment to require rules to provide for the transfer to the High Court of an application for maintenance where more than £500 a year, or a lump sum of £2,000, was likely to be awarded, was negatived. It was negatived after I had pointed out that for many years an unlimited jurisdiction had been exercised by county court judges and registrars in their respective capacities of commissioners of the High Court and as district registrars.
§ Sir P. Rawlinson
Section 2(2) provided that there should be transfer when the county court thought it desirable and "in such other cases". The Attorney-General told the Committee that there would be other cases as might be specified in the rules. Will he tell us what are the other cases, since it was the impression that other cases would be those such as the custody of children and such like matters?
§ The Attorney-General
The rules were required to provide for the transfer of 1025 ancillary proceedings to the High Court where the transfer appeared to the High Court to be desirable. In my submission that has been provided for in the rules and it would not, in my view, be right to fetter the county court judges' discretion by requiring the transfer of proceedings where the amount of any order was liable to exceed a particular sum.
Reference has been made to Section 2(2) of the Act and, in fact, the Rule Committee has exercised that power. The object of conferring the power in the second part of Section 2(2) was to enable the rules to provide, as has been done, for the transfer to the High Court of an application under Section 22 of the Matrimonial Causes Act, 1965, for maintenance on the ground of wilful neglect to maintain where the respondent denies liability on a ground which implies misconduct by his wife or a denial of the jurisdiction of the court. Rule 99(1) requires the judge in such a case to order an application to be transferred to the High Court, and that is the exercise of the power given to the Rule Committee by the second part of Section 2(2). The decision of the Rule Committee was in furtherance of the power given to it by virtue of that Section.
The main debate, however, has turned on the question of the fees and the proposed level of remuneration set out in the rules. When the Measure was introduced, one of the objects was to seek to relieve the burden on the Legal Aid Fund. As I have said, in 1966–67 the total of legal aid for civil cases was nearly £6 million, and of that nearly £2½ million was attributable to matrimonial causes. Over and above that, the taxpayer had to face a considerable bill for legal aid in criminal cases.
When the Measure was conceived it was estimated that the transfer of undefendeds to the county court would save about £400,000 a year. When this aspect of the Measure was debated it was made perfectly clear—I certainly sought to make it clear—that although the solicitor must be adequately remunerated for his work, the costs he will hereafter get must be costs on the county court level. The scale costs would be on the county court scale, amended in appropriate cases, and the proposed fixed costs which the solicitor would be free to accept or reject—if he did not like them he could go by 1026 way of taxation for his costs—were based on the amount which would be allowed on the county court scale in a straightforward undefended case, taking into account the saving in the costs of taxation and the likelihood of procedural simplification under the new rules.
The average figure for solicitors' costs in the High Court was £65. The proposed fixed costs would give the solicitor, on average, £59 if he conducted the case without counsel, and £49 if counsel was briefed. There would be special allowances for discretion cases, for consent orders and for maintenance and legally-aided petitions. Those figures were put forward by the Lord Chancellor as affording reasonable remuneration; and it would be for the solicitor to say whether he elected to accept them or chose to go by way of taxation.
I ventured also to point out in respect of counsels' fees that in the case of petition founded on adultery or desertion the total would be £16 10s. compared with the average £18 12s. 4d. allowed in the High Court after making the statutory 10 per cent, deduction in legal aid cases. Later there was consideration by the Rule Committee of the fees payable to counsel for settling petitions and for advice on evidence which increased the fees payable to counsel for their work in the county court to a figure almost the same as they now get in the High Court.
§ Mr. Eyre
In referring to the debate in Standing Committee on the Matrimonial Causes Bill, is the right hon. and learned Gentleman aware that since that date there has been the Report of the Prices and Incomes Board on the Remuneration of Solicitors? In his argument so far he has been flying in the face of paragraph 55 of that Report and also ignoring the increasing burden of Selective Employment Tax. Will he deal with this in detail, because it causes resentment?
§ The Attorney-General
Yes, I will, in much detail because obviously this is quite crucial. [HON. MEMBERS: "Oh!"] I am sorry that that has been greeted by groans, but, owing to the unexpected course of events, some of us have been waiting here for four hours to have the privilege of addressing the House on this matter. This is an important matter both for the taxpayer and the solicitor. I will 1027 endeavour to deal with it, I hope at not excessive length.
I was dealing with the scale that is provided for in the rules. Rule 5 provides that the costs of matrimonial proceedings in a divorce county court shall be on scale 4. Scale 4 is the highest of the county court scales. The modifications which are proposed take account of the special features of divorce proceedings and in particular of the fact that an application for ancillary relief may frequently involve more work and responsibility than the substantive proceedings. Scale 4 divorce enables an ancillary application to be treated as a separate proceeding for attendance for a trial, for attendance at an adjourned hearing, taxation brief on hearing and refreshers. So there is room in respect of those items for special fees to be paid.
Rule 7 of the costs rules prescribes the amount which may be allowed where the solicitor elects to have his costs fixed instead of taxed. In addition to the fees that are proposed, I have already said that additional allowances were provided as a result of the deliberation of the Rule Committee for discretion cases and for additions to counsel's fees for settling petition and for advice on evidence.
It is not accurate to say that the Rule Committee was asked to pass a costs rule without discussion. Although the Lord Chancellor indicated that he could not agree to treating undefended divorce as other than county court work, or to anticipate the recommendations of the Prices and Incomes Board, a number of points of detail were discussed and a number of alterations made in the approved provisions submitted to the Rule Committee. I have illustrated these in the alterations in the fixed costs I have referred to. It is quite right, however, that I should tell the House that the solicitor members of the Rule Committee were not prepared to agree to the provisions in regard to costs. It is no secret that the view expressed by the right hon. and learned Member for Epsom reflects the point of view that was argued by the barrister members of the Rule Committee.
It was contended, as it has been contended during the debate, that in accordance with the recommendation of the National Board for Prices and Incomes 1028 there should be an immediate increase of 55 per cent. in the figures proposed by my noble Friend the Lord Chancellor. The relevant recommendation appears in paragraph 66 of the Board's Report:It is a matter for the County Court Rule Committee to consider how to adjust individual fees so that in total an increase of about 55 per cent. in income results for the present level of work. Major changes in the work of the county courts—e.g., an extension of county court jurisdiction—will increase the amount of income accruing from any given change in charges though it may adversely affect solicitors' income from High Court work. We have noted the intention, as from this year, to start all matrimonial causes in the county courts, and to transfer to the High Court those which are defended. Formerly all divorce work was within the jurisdiction of the High Court. The determination of the charges for divorce work in the county courts, which have yet to be fixed, should be consistent with our recommendation for an increase in the level of county court income.The information that appeared in that last sentence did not seem to be entirely clear and further information was sought from the Secretary to the Board, who wrote as follows to the Lord Chancellor's office:The Board's intention was that this recommendation for an increase of £2.4 million …I remind the House that the National Board's recommendation in regard to solicitors was that, broadly speaking, the remuneration of solicitors was satisfactory, that it had kept pace with the increase in the remuneration of those receiving wages and salaries, that solicitors had bettered the history of dentists' salaries and had not done quite as well as the doctors; but that as to part of solicitors' work, and in particular that in the county court, remuneration was inadequate and that an additional sum of £2.4 million should be made available to solicitors for that work. Two other elements were added providing for an increase in solicitors' remuneration, but, to counter the increase in those partials of solicitors' work, there was the recommendation that there should be a reduction in the fees paid to solicitors for the work of conveyancing; so it was indeed a package deal.
§ Mr. Graham Page
The Attorney-General seems to be referring to some letter which contradicts the Report of the National Board for Prices and Incomes to the Government. If the right hon. and learned Gentleman is referring 1029 to a letter, ought he not to produce it to the House and lay it on the Table?
§ The Attorney-General
If it is desired to know the full history of the prices end incomes matter, as I am asked to inform the House about it and think it proper to do so by referring to this letter, I will certainly see that the letter is put in the Library.
§ The Attorney-General
All in the Lord's and Mr. Deputy Speaker's good t me. I was dealing with the explanation by the Board of its proposals. It said:To make charges for divorce work consistent with the rest … will mean the application, with such variations as may be necessary, of the appropriate scale, either in its present form so long as that remains in use, or in its revised form when that is settled by the Rule Committee.Having regard to the views of the Prices and Incomes Board, my noble Friend was of opinion that, until the Board's Report has been accepted and the County Court Rule Committee had amended the ordinary scales of costs to give effect to the Board's recommendations, the costs of divorce proceedings must necessarily be based on the existing county court scale. The Law Society asked for an opportunity to consider and make representations on the Board's Report. That opportunity has been granted, and my noble Friend is awaiting receipt of the Law Society's representations. When these have been received, it will be for the Government to decide whether to accept them and to accept the Prices and Incomes Board's recommendation, and in due course for the County Court Rule Committee to consider how to adjust individual fees so as to produce a total increase of 55 per cent.
It may well be that the Rule Committee will prescribe a larger increase than 55 per cent. for debt collecting work and for mechanical items such as attendances at the court office and a smaller per- 1030 centage for discretionary items such as preparing for trial. If this principle were applied to the costs in matrimonial cases, the increases in solicitors' remuneration for that class of work might prove to be nearer 30 per cent. than 55 per cent. As consideration of the Board's Report inevitably has taken and is taking some time, and it is undesirable to hold up the transfer of divorce jurisdiction for so long, the only course consistent with the assurances given in Parliament was to proceed on the basis of the costs as at present allowed. In my submission, it would have been quite wrong to make an immediate increase of 55 per cent. in the proposed costs, as the solicitor members of the Rule Committee suggested.
The existence of the Government's prices and incomes policy prevents any increase in the remuneration of a profession which is governed by statutory scales of costs unless and until the Prices and Incomes Board approves in principle an overall increase, and, second, its recommendations are accepted by the Government. Until that time, the costs for any new block of work like undefended divorce business which is given to the county court must be regulated by the appropriate scale, and under this scale they will be regulated by the highest scale available. That is embodied in the rules which I now ask the House to approve
May I make a final reference to what the Board has in mind in the matter? This is a letter published in the Law Journal of 21st March, 1968, of which, I know, the hon. Member for Crosby (Mr. Graham Page) is an avid and regular reader, so that it will not take him by surprise. The letter from the Board said:What the Board intended was that charges for divorce work in the county courts based on whichever of the existing county court scales of costs was thought appropriate, should be increased if and when the scales are revised in order to secure the total increase of about 55 per cent. in the profession's income from county court work which the Board have recommended. The Board did not expect that the Rule Committee could take account of the Board's recommendation in relation to divorce work alone before any of the other recommendations had been accepted.That is the state of the matter, and we are now awaiting the recommendations and suggestions of the Law Society.
§ Mr. Tom Boardman (Leicester, South-West)
Would the Attorney-General agree that under these rules solicitors will be required to do more work for less money?
§ The Attorney-General
I am glad to assure the House that the exact opposite is the case, and that solicitors will be required to do less work by reason of a large number of simplifications in that procedure embodied in the rules. The House has been so patient with me that to read out all 12 or 13 would exceed that patience, but I will merely refer to them by number, since a prescribed form of petition is provided instead of setting out in the rules the main matters to be dealt with. They are Rules 12 and 14, Rule 13, Rule 33, Rules 33 and 34, Rules 39 and 40, Rule 65, Rule 59, Rules 58, 59 and 65, Rule 68, Rule 73, Rule 82 and 86. An examination of these rules will show that there will be great simplification and a lesser burden on solicitors. I have an excellent brief here in which I have even more confidence than some of those which I receive from my hon. Friends, if that were possible.
I was asked about the impact of S.E.T. The Prices and Incomes Board said in Paragraph 76 of its Report:We referred in the previous chapter to certain factors which might diminish the profession's income over the next year or two. One of the most important is the Selective Employment Tax. Though our statistics largely relate to that period before this tax was in full operation, we estimate that in a full year it might amount to more than £3 million over and above what we have included in our figures. There may be offsetting factors, partly operating from outside the profession—e.g the possibility of rising prices of houses and hence of conveyancing charges—and partly operating within the profession—e.g. the scope for increasing charges to clients in certain fields. The net effect of these movements cannot be forecast, and this has prevented us from taking them into account in the changes we have recommended in the previous chapter.In the next paragraph, the Board said:… we feel that the position of the profession may have to be reassessed in the fairly near future, in the light of up-to-date statistical information … We consider this to be an additional reason for the Government's making a standing reference"—of solicitors' incomes—which would enable us to exercise a continuous check and to judge the moment when a review was likely to yield useful results.1032 The Government will no doubt consider that recommendation in due time.
I was also asked whether the county court judges will continue to act as special commissioners. They will, for the time being, to try short undefended cases in the provinces until there are enough High Court judges for the purpose, but they will not try long defended cases.
I was asked about a change in the rules which provide for a woman with whom adultery is alleged to have been committed to be made a respondent instead of being entitled to intervene. This has been done to simplify the procedure. It was the unanimous recommendation of the Rule Committee, and it is thought that it will simplify the proceedings in the divorce court by doing away with the separate class of "woman named".
Complaint was made about the letter I read. It was before the Rule Committee and considered by it. [HON. MEMBERS: It was not before the House."] That point has been raised and I dealt with it. For the reasons I have given, I ask the House to reject both these Motions.
§ 10.50 p.m.
§ Sir P. Rawlinson
This has been a longer debate than was expected and I do not think that anyone who has sat throughout it can be very impressed by the reply of the right hon. and learned Gentleman the Attorney-General. He has answered a lot of questions which were quite irrelevant and to which no one attached importance. He has failed to answer the major questions put to him. He has made it clear that he supports what will be an unfair remuneration.
The Prices and Incomes Board has said that there should be a better remuneration for solicitors in this court. The right hon. and learned Gentleman has not answered the question of whether the Measure left the House with power for the Rule Committee to decide whether the children of divorced people should be dealt with by the High Court judges or by the county court judges. He referred to Section 22, which is not relevant. It has nothing to do with Section 2 of the Matrimonial Causes Act, 1967, which refers to ancillary matters.
The Bar Council and other have interpreted the 1967 Act as giving to the Rule 1033 Committee power to deal with these vital matters and we have not been told whether a Ministerial veto was imposed. If such a veto was imposed, it is a serious matter that, when this House gives to a representative committee power to deal with a matter, a Minister should take it upon himself to say that that Committe may not deal with it. We have not heard the answer to that question, and so we must draw our own conclusions.
§ Finally, I repeat what I said four hours ago. This really is a cockeyed way of doing law reform. Here we are dealing with the problem of the present law when upstairs at present there is a Committee of the House changing the whole substance of the law. For this and many other reasons, I ask my right hon. and hon. Friends to vote for the Motion.
§ Question put:—
§ The House divided: Ayes 124, Noes 177.1035
|Division No. 113.]||AYES||[10.55 p.m.|
|Allason, James (Hemel Hempstead)||Grant, Anthony||Onslow, Cranley|
|Awdry, Daniel||Grant-Ferris, R.||Page, Graham (Crosby)|
|Baker, Kenneth (Acton)||Gresham Cooke, R.||Peel, John|
|Baker, W. H. K. (Banff)||Grieve, Percy||Percival, Ian|
|Bennett, Dr. Reginald (Gos. & Fhm)||Grimond, Rt. Hn. J.||Pink, R. Bonner|
|Berry, Hn. Anthony||Gurden, Harold||Powell, Rt. Hn. J. Enoch|
|Biffen, John||Hall, John (Wycombe)||Prior, J. M. L.|
|Biggs-Davison, John||Hawkins, Paul||Pym, Francis|
|Birch, Rt. Hn. Nigel||Hay, John||Ramsden, Rt. Hn. James|
|Boardman, Tom||Heald, Rt. Hn. Sir Lionel||Rawlinson, Rt. Hn. Sir Peter|
|Boyle, Rt. Hn. Sir Edward||Hiley, Joseph||Renton, Rt. Hn. Sir David|
|Brewis, John||Hill, J. E. B.||Rhys Williams, Sir Brandon|
|Clinton, Sir Tatton||Holland, Philip||Ridley, Hn. Nicholas|
|Bruce-Gardyne, J.||Hordern, Peter||Rossi, Hugh (Hornsey)|
|Buck, Antony (Colchester)||Hornby, Richard||Royle, Anthony|
|Carlisle, Mark||Hunt, John||Russell, Sir Ronald|
|Cary, Sir Robert||Iremonger, T. L.||Scott, Nicholas|
|Clark, Henry||Irvine, Bryant Godman (Rye)||Sharples, Richard|
|Clegg, Walter||Johnson Smith, G. (E. Grinstead)||Silvester, Frederick|
|Cooke, Robert||Jopling, Michael||Smith Dudley (W'wick & L'mington)|
|Cooper-Key, Sir Neill||Kaberry, Sir Donald||Steel, David (Roxburgh)|
|Corfield, F. V.||King, Evelyn (Dorset, S.)||Stodart, Anthony|
|Crosthwaite-Eyre, Sir Oliver||Knight, Mrs. Jill||Stoddart-Scott, Col. Sir M. (Ripon)|
|Crouch, David||Lamboton, Viscount||Taylor, Frank (Moss Side)|
|Dalkeith, Earl of||Langford-Holt, Sir John||Thatcher, Mrs. Margaret|
|Dance, James||Lewis, Kenneth (Rutland)||van Straubenzee, W. R.|
|Dean, Paul (Somerset, N.)||Longden, Gilbert||Wainwright, Richard (Colne Valley)|
|Deedes, Rt. Hn. W. F. (Ashford)||Loveys, W. H.||Walker, Peter (Worcester)|
|Dodds-Parker, Douglas||Lubbock, Eric||Walters, Dennis|
|Doughty, Charles||McAdden, Sir Stephen||Ward, Dame Irene|
|du Cann, Rt. Hn. Edward||MacArthur, Ian||Weatherill, Bernard|
|Eden, Sir John||McMaster, Stanley||Whitelaw, Rt. Hn. William|
|Elliot, Capt. Walter (Carshalton)||Marten, Neil||Williams, Donald (Dudley)|
|Eyre, Reginald||Mawby, Ray||Wills, Sir Gerald (Bridgwater)|
|Fletcher-Cooke, Charles||Maxwell-Hyslop, R. J.||Wilson, Geoffrey (Truro)|
|Fortescue, Tim||Maydon, Lt.-Cmdr. S. L. C.||Winstanley, Dr. M. P.|
|Foster, Sir John||Mills, Peter (Torrington)||Wolrige-Gordon, Patrick|
|Gibson-Watt, David||More, Jasper||Worsley, Marcus|
|Gilmour, Ian (Norfolk, C.)||Morrison, Charles (Devizes)|
|Gilmour, Sir John (Fife, E.)||Mott-Radclyffe, Sir Charles||TELLERS FOR THE AYES:|
|Godber, Rt. Hn. J. B.||Munro-Lucas-Tooth, Sir Hugh||Mr. Hector Munro and|
|Goodhew, Victor||Murton, Oscar||Mr. Humphrey Atkins.|
|Gower, Raymond||Noble, Rt. Hn. Michael|
|Allaun, Frank (Salford, E.)||Boyden, James||Davies, Dr. Ernest (Stretford)|
|Alldritt, Walter||Braddock, Mrs. E. M.||Davies, Harold (Leek)|
|Anderson, Donald||Bradley, Tom||de Freitas, Rt. Hn. Sir Geoffrey|
|Archer, Peter||Bray, Dr. Jeremy||Delargy, Hugh|
|Armstrong, Ernest||Brooks, Edwin||Dell, Edmund|
|Atkins, Ronald (Preston, N.)||Broughton, Dr. A. D. D.||Dempsey, James|
|Atkinson, Norman (Tottenham)||Brown, Hugh D. (G'gow, Provan)||Dewar, Donald|
|Bacon, Rt. Hn. Alice||Brown, Bob (N'c'tle-upon-Tyne, W.)||Dickens, James|
|Bagier, Gordon A. T.||Buchan, Norman||Dobson, Ray|
|Barnes, Michael||Butler, Mrs. Joyce (Wood Green)||Doig, Peter|
|Baxter, William||Carter-Jones, Lewis||Dunwoody, Mrs. Gwyneth (Exeter)|
|Beaney, Alan||Coe, Denis||Dunwoody, Dr. John (F'th&C'b'e)|
|Bennett, James (G'gow, Bridgeton)||Coleman, Donald||Eadie, Alex|
|Bidwell, Sydney||Craddock, George (Bradford, S.)||Edelman, Maurice|
|Binns, John||Crawshaw, Richard||Ellis, John|
|Bishop, E. S.||Cullen, Mrs. Alice||English, Michael|
|Blackburn, F.||Davidson, Arthur (Accrington)||Ennals, David|
|Ensor, David||Lewis, Ron (Carlisle)||Pentland, Norman|
|Fernyhough, E.||Lomas, Kenneth||Perry, Ernest G. (Battersea, S.)|
|Finch, Harold||Loughlin, Charles||Perry, George H. (Nottingham, S.)|
|Fitch, Alan (Wigan)||Lyon, Alexander W. (York)||Price, Christopher (Perry Barr)|
|Fletcher, Ted (Darlington)||Lyons, Edward (Bradford, E.)||Price, Thomas (Westhoughton)|
|Foot, Rt. Hn. Sir Dingle (Ipswich)||McBride, Neil||Price, William (Rugby)|
|Fraser, John (Norwood)||McCann, John||Rhodes, Geoffrey|
|Galpern, Sir Myer||MacColl, James||Richard, Ivor|
|Garrett, W. E.||McGuire, Michael||Roberts, Albert (Normanton)|
|Ginsburg, David||Mackenzie, Gregor (Rutherglen)||Roberts, Gwilym (Bedfordshire, S.)|
|Gourlay, Harry||Mackie, John||Robertson, John (Paisley)|
|Cray, Dr. Hugh (Yarmouth)||Maclennan, Robert||Robinson, W. O. J. (Walth'stow, E.)|
|Grey, Charles (Durham)||McMillan, Tom (Glasgow, C.)||Rodgers, William (Stockton)|
|Griffiths, David (Rother Valley)||McNamara, J. Kevin||Rose, Paul|
|Hamilton, James (Bothwell)||MacPherson, Malcolm||Rowlands, E. (Cardiff, N.)|
|Hamling, William||Mahon, Peter (Preston, S.)||Shaw, Arnold (Ilford, S.)|
|Hannan, William||Mahon, Simon (Bootle)||Short, Rt.Hn.Edward (N'c'tle-u-Tyne)|
|Harper, Joseph||Mallalieu, E. L. (Brigg)||Silkin, Rt. Hn. John (Deptford)|
|Harrison, Walter (Wakefield)||Mallalieu.J.P.W.(Huddersfield, E.)||Silverman, Julius (Aston)|
|Hart, Rt. Hn. Judith||Manuel, Archie||Small, William|
|Haseldine, Norman||Mapp, Charles||Snow, Julian|
|Hazell, Bert||Marks, Kenneth||Spriggs, Leslie|
|Heffer, Eric S.||Mendelson, J. J.||Summerskill, Hn. Dr. Shirley|
|Herbison, Rt. Hn. Margaret||Millan, Bruce||Swain, Thomas|
|Hooley, Frank||Miller, Dr. M. S.||Swingler, Stephen|
|Houghton, Rt. Hn. Douglas||Milne, Edward (Blyth)||Thomas, George (Cardiff, W.)|
|Howarth, Robert (Bolton, E.)||Mitchell, R. C. (S'th'pton, Test)||Tinn, James|
|Howell, Denis (Small Heath)||Moonman, Eric||Urwin, T. W.|
|Howie, W.||Morris, Alfred (Wythenshawe)||Wainwright, Edwin (Dearne Valley)|
|Hoy, James||Morris, Charles R. (Openshaw)||Walker, Harold (Doncaster)|
|Hughes, Hector (Aberdeen, N.)||Moyle, Roland||Wallace, George|
|Hynd, John||Mulley, Rt. Hn. Frederick||Watkins, David (Consett)|
|Irvine, Sir Arthur||Murray, Albert||Wellbeloved, James|
|Jackson, Colin (B'h'se & Spenb'gh)||Newens, Stan||Whitlock, William|
|Johnson, James (K'ston-on-Hull, W.)||Noel-Baker, Francis (Swindon)||Wilkins, W. A.|
|Jones, Dan (Burnley)||Noel-Baker, Rt.Hn. Philip (Derby, S.)||Williams, Alan Lee (Hornchurch)|
|Jones, Rt.Hn.Sir Elwyn (W.Ham, S.)||Norwood, Christopher||Willis, Rt. Hn. George|
|Jones, J. Idwal (Wrexham)||O'Malley, Brian||Wilson, William (Coventry, S.)|
|Jones, T. Alec (Rhondda, West)||Orbach, Maurice||Woof, Robert|
|Judd, Frank||Orme, Stanley||Yates, Victor|
|Lawson, George||Pannell, Rt. Hn. Charles|
|Leadbitter, Ted||Pavitt, Laurence||TELLERS FOR THE NOES:|
|Lector, Miss Joan||Peart, Rt. Hn. Fred||Mr. Ioan L. Evans and|
|Mr. Eric G. Varley.|