LEGAL AID (Hansard, 1 July 1969)

§ The Solicitor-General (Sir Arthur Irvine)
I beg to move, That the Legal Aid (Extension of Proceedings) Regulations 1969, a copy of which was laid before this House on 16th June, be approved. It may be convenient to the House—if it is agreeable to you, Mr. Deputy Speaker—if I speak to these Regulations and to those following, that is, the Legal Aid (Extension of Proceedings) (Scotland) Regulations.

§ Mr. Deputy Speaker (Mr. Sydney Irving)
With the leave of the House they may be taken together.

§ The Solicitor-General
I am obliged, Mr. Deputy Speaker. These Legal Aid (Extension of Proceedings) Regulations implement the recommendation of the Lord Chancellor's Advisory Committee on Legal Aid that legal aid should be extended to certain proceedings in the magistrates' court and to proceedings partly for defamation. The relevant paragraphs in the 17th Report of the Advisory Committee are paragraphs 5 to 11 inclusive and paragraph 47.
The Regulations also re-enact the provisions of Regulation 1A of the Legal Aid (General) Regulations which are the proceedings referred to in paragraph 1 of the Schedule to the Regulations for which I am now asking approval, and proceedings under Section 3 of the Children and Young Persons Act, 1963, referred to in paragraph 2. These proceedings are "care and protection proceedings."
This part of the Regulations is a matter of convenience. It is thought to be more convenient to be able to find the proceedings to which legal aid has been extended in separate Extension of Proceedings Regulations, rather than in the Legal Aid General (Regulations) which cover a wide variety of general matters connected with legal aid. The proceedings to which legal aid is being extended by these Regulations are contained in Regulation 2 and paragraphs 2 and 3 of the Schedule.
344 First, in relation to certain proceedings which are partly in respect of defamation, paragraph 1 of Part II of the First Schedule to the Legal Aid and Advice Act, 1949, excludes proceedings wholly or partly in respect of defamation from the proceedings for which legal aid may be given. These proceedings were excluded because it was feared that there would be a flood of unmeritorious applications arising out of petty disputes.
However, this meant that in the occasional case where legal aid was given to a plaintiff claiming damages, for example, for wrongful dismissal and the defendant alleged that the plaintiff was dismissed because he libelled him and counterclaimed for damages for libel, the plaintiff's legal aid could not be continued, as the proceedings became, in that hypothesis, "partly in respect of defamation". Regulation 2 saves the plaintiff's legal aid and makes it possible for it to be extended in an appropriate case to cover the defence to the counter-claim.
In recommending this extension, the Advisory Committee accepted the unanimous recommendation of a Joint Committee of the Council of the Law Society and General Council of the Bar. That Committee also recommended, with one dissentient, that legal aid should become available for proceedings wholly in respect of libel or slander. The reference to that recommendation will be found in paragraph 10 at page 53 of the Report. But the Advisory Committee felt that the risk of unmeritorious applications, which had led to the original exclusion of proceedings for defamation, to be a very real one. Accordingly, the Committee, having regard to the consequences, financial and otherwise, of the proposed extension, decided not to "recommend this proposal among those meriting consideration at the present time". The Government accept this view.
Secondly, the Regulations extend legal aid in respect of proceedings in a magistrates' court under Sections 2 and 4 of the Children Act 1948. Section 2 of that Act empowers a local authority to pass a resolution vesting in itself parental rights over a child. Until now a parent or guardian who wishes to oppose such a resolution before a magistrates' court has 345 not been able to obtain legal aid to do so. These Regulations make it available.
They also make it available for proceedings under Section 4 of the Children Act to rescind or vary such a Resolution. This is a consequential extension of the Advisory Committee's recommendation that legal aid should be available for proceedings under Section 2.
Thirdly, the Regulations extend legal aid in respect of proceedings under Section 22 of the Maintenance Orders Act, 1950, or Section 4 of the Maintenance Orders Act, 1958, to vary a maintenance order registered in a magistrates' court. Legal aid is available at present for obtaining or enforcing maintenance orders. It is not available for their subsequent variation where they are either made in the High Court but registered in a magistrates' court, or originate in a Scottish or Northern Irish court, but are registered in an English magistrates' court. These Regulations make it available.
Section 22 of the Maintenance Orders Act, 1950, relates to proceedings to vary a registered Northern Irish or Scottish order, and Section 4 of the Maintenance Orders Act, 1958, relates to registered High Court orders.
Fourthly, the Regulations extend legal aid in respect of proceedings under Section 23 of the Ministry of Social Security Act, 1966, and Section 43 of the National Assistance Act, 1948. The Supplementary Benefits Commission can bring proceedings under Section 23 of the 1966 Act against persons who fail to maintain their dependants and those dependants have claimed or been paid benefit by the Commission. Similarly, a local authority which has provided accommodation for a person's dependants can bring proceedings against that person to recover the cost of having done so. Although these proceedings are closely analagous to maintenance proceedings, legal aid is not available in respect of them at present. These Regulations remedy this by making it available to those against whom these proceedings are brought.
Fifthly and finally, in relation to opposed adoption proceedings in a magistrates' court—this refers to paragraph 3 of the Schedule—at present legal aid is available in respect of adoption proceedings in the High Court and the county court but not in a magistrates' court. 346 Although the proceedings in a magistrates' court are so simple that legal aid may be unnecessary, there are circumstances where it should be available. These are where a parent or guardian wishes to contest an adoption order and the court is invited to dispense with that person's consent. These Regulations make legal aid available to both parties where the court is asked to dispense with consent under section 5 of the Adoption Act. 1958.
The cost of these extensions is very little. The total cost is estimated to be in the region of £2,670 a year. The most expensive item is the provision for legal aid for the variation of maintenance orders, which is £1,300 a year. The slight cost of these extensions is, of course, due to the fact that only a few people will benefit from the extensions and receive legal aid for these proceedings. Nevertheless, such cases will be of great importance to those people concerned and the House may well think that this small addition to the ambit of the Legal Aid Scheme should be approved, and I commend it.
As we are taking also the Scottish Regulations, may I, greatly daring, be allowed to say a word about them. They seek to achieve objectives which are more limited than those of the corresponding Regulations for England and Wales. Their purpose is to vary the proceedings in connection with which legal aid may be given to make legal aid available in certain proceedings in respect of defamation or verbal injury. Such proceedings are at present excluded from the Legal Aid Scheme in terms of Part II of Schedule 1 to the Legal Aid (Scotland) Act, 1967.
It is intended that this extension of the Legal Aid Scheme, as is also provided by Regulation 2 of the corresponding Regulations for England and Wales, relate only to proceedings in which the defender has entered a counter-claim for defamation or verbal injury. The Schedule to the corresponding Regulations for England and Wales includes provisions for an extension of legal aid to other civil proceedings. I understand that there is no necessity for similar provision to be made in the Scottish Regulations since proceedings of this type are taken in the sheriffs' court and therefore, I am told, they already qualify for legal aid. My 347 right hon. Friend the Secretary of State for Scotland has consulted the Law Society of Scotland which has agreed that it is desirable that this minor extension of the Legal Aid Scheme in Scotland should be made.

§ Sir David Renton (Huntingdonshire)
Although I would not dare to have the temerity of the Solicitor-General to meddle in Scottish affairs—I shall leave it to my hon and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie)—I should like to thank the Solicitor-General for his full, courteous, and apparently accurate description of the contents of these Regulations which I am sure gave satisfaction and pleasure to every hon. Member of the House who heard him. I have no intention to press him for further and better particulars.
I should like to make one or two brief comments. The House should take note of the fact that by applying legal aid to proceedings which are partly in respect of defamation, the Regulations vary the Legal Aid and Advice Act 1949—a matter which we should not by Statutory Instrument undertake lightly and without full consideration. It was, however, envisaged that the Statute could be varied by Statutory Instrument, and it seems to be right to do that on this occasion.
My only other comment is that when I heard the Solicitor-General say that the cost would be very little, I thought that those were, perhaps, the famous last words of any Minister who might one day have to come before the House for a Supplementary Estimate. However, I wish the hon. and learned Gentleman well. I hope that he does not have to do so, although the sum that he named seemed to me to be not only small, but trivial.
Bearing in mind that maintenance order proceedings and opposed adoption proceedings are to be made available under the Legal Aid Scheme, it would be remarkable if the total sum were kept within the figure given by the Solicitor-General. Let us hope, however, that he is right. I am sure that we are grateful to the Advisory Committee for recommending this further extention of legal aid. We naturally give it our blessing.

§ Mr. N. R. Wylie (Edinburgh, Pentlands)
I intervene only briefly to welcome the Scottish Regulations. The Solicitor-General put the position very clearly. There is no requirement in Scotland for the further provisions contained in the English Regulations because legal aid already applies extensively in the sheriff court.
The situation which at present arises, although only occasionally, is rather illogical, that a pursuer can come into court with the benefit in an action of legal aid. He is faced with a counterclaim involving issues of verbal injury. I will not go into the technical distinctions between the two; they are rather fine. In respect of the counterclaim he is deprived of legal aid to defend himself. That, I think, was an oversight in the earlier Regulations. This is clearly something which should be put right.
I understand, that as the Solicitor-General said, the Law Society of Scotland entirely agrees with these proposals, and I generally welcome them. The only other thing that I would say is that, like my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), I am rather surprised at the estimate of costs involved. I should have thought that as soon as questions of defamation arise, judicial expenses might be quite considerable. That, however, is not a matter for me to concern myself with at the moment.

§ Mr. Michael Clark Hutchison (Edinburgh, South)
I should like to know from the Government Front Bench whether the Faculty of Advocates has recommended this alteration as regards Scotland and whether there have been any representations from the judges. Legal aid is becoming ever more expensive. I submit that perhaps it is not wise to have this extension. If the pursuer in Scotland can get legal aid in questions of defamation and the defendant cannot, might it not be better to put them both in the same category so that the pursuer does not get it to start with?

§ The Under-Secretary of State for Scotland (Mr. Norman Buchan)
I rise basically to acknowledge the welcome which has been given to the Regulations from 349 almost every source. In a curious sense, this is the second speech which I have made on this subject this evening.
In reply to the particular question which has been raised, the main subject of discussion on this matter was with the Law Society, which has welcomed this proposal. I understand that the Faculty of Advocates has not expressed an opinion, nor have the judges.
I do not think that the extension of legal aid will necessarily be seen quite so widely as has been suggested. The purpose of the Regulations is to close this loophole. In Scotland the verbal injury difference is a rather interesting one. One of the points on which it might arise is when a building is built on insecure foundations. That may interest the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie).
With those brief comments, I again welcome the support which has been generally given to the Regulations.

§ Mr. James Dempsey (Coatbridge and Airdrie)
I wish to raise two points in connection with the statement by my hon. and learned Friend the Solicitor-General. I got the impression that my hon. and learned Friend said that, for the first time, legal aid might be available to persons who were contesting issues with the Ministry of Social Security concerning supplementary payments.
If that is so, I am anxious to be clear about the following. Does it mean that in a case where the Department of Health and Social Security legitimately seeks to recover certain moneys which have been overdrawn legal aid will be available for the person who is alleged to have overdrawn such moneys? This kind of thing happens week after week, and I am not too clear whether the Solicitor-General's statement means that such an individual will qualify for legal aid. This situation has arisen on a number of occasions, and it appears to me, having knowledge of the individuals involved, that if what the Solicitor-General has said means an extension of legal aid, it will be an abuse of the whole principle of the system.
I should like the Solicitor-General to explain whether the same principle will apply when a local authority attempts to recover money from tenants who have underpaid rents, and so on, or who have 350 overdrawn certain welfare allowances. Not being a legally-minded person, I am not clear on these issues, and I hope that the Solicitor-General will deal with the matters I have raised.
Turning now to the Scottish Regulations may I ask whether the Committee considered the possibility of extending legal aid not only to those who suffer verbal abuse but to those who suffer physical abuse as a result of assaults, which the moment could be dealt with in a magistrates' court where the legal aid scheme does not apply—

§ Mr. Deputy Speaker
Order. The hon. Member cannot on this Motion consider other extensions which are not included in the Regulations.

§ Mr. Dempsey
May I ask the Solicitor-General whether the Committee considered extending the legal aid scheme, or whether it restricted it to this narrow sphere? Did the Committee provide any advice, any report or any documentary evidence which will influence the Solicitor-General in considering a more generous extension of the scheme? My hon. and learned Friend has been at great pains to say that this applies to magistrates' courts in England. He has not said whether it will apply to magistrates' courts in Scotland.
That is the aspect in which I am keenly interested, because it is an important problem for Scotland at the moment. I should be grateful if the Solicitor-General would advise me whether he is recommending the advice of the Committee in full, or whether he is recommending only that part of it which is acceptable to his Department.

§ Mr. Deputy Speaker
Order. The hon. Member is finding another ingenious device for doing what I have already ruled out of order.

§ Mr. Dempsey
I am a modest type of chap. I never thought that I was ingenuous, and I am grateful to you, Mr. Deputy Speaker, for that compliment.

§ Mr. Deputy Speaker
Order. The compliment paid to the hon. Member was that he was ingenious.

§ Mr. Dempsey
Many a war has resulted from the definition of a word. We have a saying in Scotland that. 351 "We'll let that flea stick to the wall meantime".
I should like the Solicitor-General to clear up those matters, because they are being raised in other aspects of our Parliamentary activities and it would be extremely helpful if my hon. and learned Friend could advise me on this issue. He may, as a result, save his other colleagues from some additional vociferation on this subject in the near future.

§ Mr. Buchan
I apologise to my hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey). Had I realised that he wished to speak, I should have waited until he had done so.
The Solicitor-General referred to a change in England and Wales. It does not apply to Scotland, because provision already exists there for anything which comes within the ambit of the sheriff court. There is therefore no change in that respect. If the matter could have been dealt with in this way, it will continue so to be.
My hon. Friend also asked to what extent the Solicitor-General took and considered advice on this matter. As this affects England and Wales, I advise my hon. Friend to look at the Seventeenth Report of the Lord Chancellor's Legal Aid Advisory Committee. In that report, the committee examines different points to see in which it should recommend an extension of legal aid. The Government have not accepted all its recommendations, one reason being the financial one. Finally, my hon. Friend mentioned an extension to the borough and J.P. courts. This was covered by the 1967 Act, but we have not yet implemented it by Order.

§ Mr. Dempsey
Would the Solicitor-General—

§ Mr. Deputy Speaker
Order. The hon. Gentleman cannot speak a second time.

§ Mr. Dempsey
Am I allowed to ask the Solicitor-General whether he will—

§ Mr. Deputy Speaker
Order. The hon. Gentleman cannot speak a second time.

§ Mr. Dempsey
On a point of order, Mr. Deputy Speaker. I asked the Solicitor-General some questions about supplementary payments and have had no 352 reply. May I ask him to give me a reply?

§ Mr. Deputy Speaker
That is not a point of order.

§ Sir Eric Errington (Aldershot)
I did not have the pleasure of hearing the whole of the Solicitor-General's speech, but I wonder whether he gave any reason for this Statutory Instrument being, first, in the form of Regulations, and, second, followed by a schedule. My objection is that this is one of a series. Legal aid, particularly in criminal cases, is very complicated, and it is difficult for anyone to be certain that he has found all the Regulations which cover a particular point.
Although I do not object to this Measure as such, I should like these various Regulations, of which there are nearly a dozen, collated and fitted in with the Legal Aid and Advice Act, 1949. Otherwise, there is a grave risk, as I know from experience, of some Regulation being missed. The system by which these matters must be brought before magistrates, who are not experienced legal people, requires much more attention. I hope that an effort will be made to ensure that these Regulations are simpler and fewer, so that those who run may read.

§ The Solicitor-General
If I may speak again, by leave of the House, I agree with the hon. Member for Aldershot (Sir E. Errington). It is important that, so far as is practicable, these complex rules affecting legal aid should be available in a form which can be conveniently and compendiously consulted. This is precisely the objective with which this Measure deals in the first paragraph of the schedule.
As I explained, that paragraph does not deal with any new extension of legal aid created by this Instrument, but is set out for the purposes which the hon. Gentleman has in mind; that there is an advantage in collecting in one Instrument all the existing extensions made to legal aid since the 1949 Act. Thus, the answer to the hon. Member for Aldershot is that not only do we bear this sort of representation in mind, but we are implementing it in the Regulations.
My hon. Friend the Member for Coat-bridge and Airdrie (Mr. Dempsey) asked 353 about supplementary benefits. The position in Scotland, as affecting legal aid under this head, is not affected by this Instrument, which seeks for England the position that proceedings under Section 23 of the Ministry of Social Security Act against persons who are alleged to have failed to maintain their dependants, where the dependants have claimed or have been paid benefit by the Commission, shall be eligible for aid. That is the objective which this Instrument has and which, by its language, it achieves.