§ Order for Second Reading read.
§ 4.49 p.m.
§ The Solicitor-General (Sir Geoffrey Howe)
I beg to move, That the Bill be now read a Second time.
I understand, Mr. Speaker, that the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) is hoping to catch your eye to speak next in the debate. I hope that he and the House will forgive the absence of my right hon. and learned Friend the Lord Advocate who has to be in Scotland today and is unable to be here. I hope and believe that the differences between the Scottish and the English and Welsh provisions of the Bill are not so complex and sophisticated as to leave me entirely breathless. If that should happen, I shall have the benefit of the support, guidance and advice of my hon. Friend the Under-Secretary of State for Home Affairs and Agriculture, Scottish Office, who can guide me through any Scottish mazes that the hon. and learned Gentleman might discover.
The Bill was foreshadowed in the Gracious Speech from the Throne at the beginning of the parliamentary Session. It gives effect to the recommendations of the Lord Chancellor's Advisory Committee on Legal Aid in the Report which was published on behalf of that Committee in January, 1970, on the better provision of legal advice and assistance. I am sure the whole House will agree that it is right for me to take this opportunity of paying tribute to the members who continue to serve on that Committee, under the chairmanship of my hon. and noble Friend Baroness Emmet of Amberley, for the continuing surveillance they maintatin over the condition of the legal aid scheme.
The Bill has two Parts and two distinct objectives. First, it implements what has come to be universally known as the Law Society's £25 scheme, whereby solicitors may give, within the same financial limits as apply within the main legal aid 1590 scheme, legal advice and assistance, apart from help in litigation of the kind that has become known as legal aid. Secondly, it enables the two Law Societies within the terms of approved schemes under the relevant Statutes to employ solicitors in an advisory liaison service to local organisations that are concerned in the giving of advice or guidance, no doubt in the first instance to the Citizens Advice Bureaux, of which there are more than 500, and to other bodies run by organisations such as the Family Welfare Association, the Marriage Guidance Council, and so on. Secondly, the Law Societies are empowered by Part II of the Bill to provide, where they are required, centres of employed solicitors who may themselves give the advice and assistance offered under the £25 scheme or under the ordinary legal aid scheme.
The House will know, particularly those hon. Members who are present, that the need for legislation of this kind has for some years been identified as a proper and important one, principally on two grounds. First, the legal aid scheme concentrated too much on litigation and not enough on advice apart from litigation. It was not necessarily intended to, but that has been the effect. The second ground is that the legal services available under the existing scheme may not have been sufficiently well known, or sufficiently financially available so far as advice is concerned, to a large—generally the poorer—section of the community. The concentration on litigation and the lack of availability of wider services are the two factors which justify the changes.
It would not be helpful for me to trace the reasons why this situation has developed from the provisions of the 1949 Act. Suffice to say that Sections 5 and 7, which were designed to cover advise as opposed to legal aid, have not proved as effective as was hoped. This was because of the limitation of the matters in respect of which assistance could be given under Section 5, and the limited range of people whose income would qualify for assistance under Section 7.
In April, 1967 the Legal Aid Advisory Committee reported the request that it had made to the Law Society for an 1591 investigation to be made of the ways in which people could be encouraged—. .to seek legal advice under the scheme at the earliest stage and not, as appears to be the case now, only when proceedings are inevitable.In response to that request, within 12 months, in February 1968, the Law Society produced its first report, and it was then that the £25 scheme first saw the light of day.
Within 12 months of the publication of the first Law Society Report, the Conservative lawyers and the Society of Labour Lawyers in the same month produced reports of committees which had considered this problem amongst other things. The report of the Society of Conservative Lawyers was called "Rough Justice".
The Conservative lawyers' committee had the advantage of being presided over by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) and of including his neighbour my hon. Friend the Member for North Fylde (Mr. Clegg) and his near neighbour, now the Under-Secretary of State for the Home Department, my hon. and learned Friend the Member for Runcorn (Mr. Carlisle).
The Committee of the Society of Labour Lawyers, whose report was entitled "Justice for All", did not have the advantage of parliamentary participation but it was a distinguished committee presided over by someone whom elsewhere I regard as my learned friend, Mr. Morris Finer, Q.C.
Soon after those reports were on the table, in 1969 Justice with the characteristically energetic enthusiasm of Justice's Secretary, Mr. Tom Sargant, organised a get together of the authors of these three proposals, the Society of Labour Lawyers, the Conservative Lawyers and the Law Society. That gathering, along with other thought and deliberation, led to the production by the Law Society in July, 1969, of a second memorandum, which also went to the Legal Aid Advisory Committee. The former Lord Chancellor invited the Legal Aid Advisory Committee to consider the whole package of reports which had by then been generated and, by the beginning of 1970, the recommendations which form the subject of the Bill had been made by the Legal Aid Advisory Committee.
1592 The House may be so overcome by the lineage and antecedents of the proposals contained in the Bill as to feel it is scarcely necessary for me to embark on a detailed explanation of them. But I am sure it is right for me to offer a short exposition of how the legislative bones will uphold the distinguished all-party proposals to which I have referred.
The first part of the Bill implements the £25 scheme. My right hon. and noble Friend the Lord Chancellor, within days of the Government taking office, drew the attention of his colleagues in another place to his own enthusiasm for the £25 scheme. He said on 9th July that, of all the schemes which he had seen to fill an admitted gap it was that scheme which attracted him most, personally. He has not sought to conceal his continuing enthusiasm for the Bill which arrives in this place with his blessing.
The main purpose of the £25 scheme is to make legal advice and assistance available to the group of people to whom legal aid is now available on much the same terms. It is to make it available to those with a disposable income—that means income after having made the disregards with which the House will be familiar under the existing scheme—of less than £950 a year. That is stated in the Bill as amounting to an income of £20 per week or less. As a result of the Assessment of Resources Regulations, which the House considered last year, there is automatic provision for a disregard of £104 in addition to the £950 in the legal aid scheme. So the £20 a week, give or take the odd pound, produces the same base figure, and it is over the same ground that the Bill seeks to make advice and assistance available.
The nature of the advice and assistance which are covered is advice by solicitor or by counsel on the particular circumstances of a client's case; advice on any necessary action and the taking of action short of taking part in proceedings. In other words, before proceedings, solicitors will be able to write letters to the court or tribunal and, if it is necessary to go to the extent of proceedings, then the legal aid scheme will be available at that stage for those proceedings as well.
There is one important extension embodied in Clause 2(4) of the Bill based on a suggestion which was originated by 1593 a former member of the county court bench. It provides that in proceedings in magistrates' or county courts advice or assistance may be given, at the request of the court, by any solicitor present in the precincts of the court to any person who is taking part in, or about to take part, in proceedings before such a court. The effect of that provision will go some way towards meeting one of the suggestions made by the other Justice report, under the chairmanship of Mr. Rex Church, on litigants in person. It suggested that legal aid should be available to litigants in person at any stage before any court, if the court thought that it was a good idea. This proposal extends not to the High Court but to the county court or magistrates' court where a litigant is appearing in person and would benefit from advice and guidance from a qualified lawyer. By Clause 2(4) the court will be free to suggest that a lawyer then present should advise that person.
§ Mr. Clinton Davis (Hackney, Central)
In regard to Clause 2(3), which is in a sense connected with the hon. and learned Gentleman's present remarks, does he not feel that one of the most important points in criminal proceedings when an accused person should be represented is during his first attendance at court? Although an accused person can be represented at a police station or perhaps on an identification parade, under the provisions of the Bill he may not be represented at court unless the court directs that the accused person is in urgent need of representation. Is this not an anomaly which should be cured?
§ The Solicitor-General
The hon. Member is anticipating another point which I shall be making on the provisions of Clause 2(4). He has suggested two of the ways in which legal assistance can be available to somebody at the various stages to which he has referred, but the proposal which will automatically secure the availability of legal advice for somebody in custody at a magistrates' court is contained in another Justice report. The provision of legal representation for unrepresented people in magistrates' courts—the duty solicitor proposal—canvassed in the Society of Labour Lawyers' Report, applies in some ways to Scotland.
The provisions of Clause 2(4) at least go so far as to make it possible for a 1594 court, when confronted with a person coming before it, to suggest that he should seek and receive advice and assistance from a lawyer then present in the court precincts. I acknowledge that it does not go so far as the Scottish provisions in so far as they are available, but it goes some way to meet that point. It would enable a person who is given advice or assistance under Clause 2(4) to receive advice on how to plead and whether to make an application for bail on the question of whether he should ask for an adjournment and, in a civil case, on how to dispose of a particular argument. Perhaps one case which has caused trouble to both sides is in the matter of rent arrears where the difficulty has continued because one side or other has not been given any advice in the nature of the dispute. That kind of case is met to some extent, though I accept not fully met, by the Clause 2(4) provisions.
Clause 3 makes plain that assistance under the Bill cannot be made available beyond the sum of £25-worth of legal services, save that the area committee, which is the appropriate authority, may authorise additional expenditure; and save that in the territory covered by the legal aid scheme the client can always proceed to apply for a legal aid certificate—whether a limited or full certificate, as the case may be.
The nature of the contribution provided for in Clause 4 and in the First Schedule are parallel to those provided for in the legal aid scheme, save that in rough terms the obligations for £25-worth of legal advice and assistance tinder the Bill would not exceed two ordinary monthly contributions under a legal aid certificate.
If one takes as an example somebody earning £12 a week disposable income, he would pay no more than £1 contribution all-told.
Somebody with no more than £20 a week disposable income would pay no more than £12 all-told. This is a modest contribution compared with that payable under a certificate. The costs the solicitor does not recover by way of a contribution from somebody able to make such a contribution can be recovered so far as possible from any sums recovered from a third party under the ordinary legal aid scheme, and beyond 1595 that as to any unrecovered balance from the legal aid fund.
Clause 7 enables each of the Law Societies to employ solicitors to give advice and assistance, secondly to give legal aid, and thirdly to liaise with local organisations of the kind mentioned in Clause 7. If it is asked what is meant by the word "liaise", perhaps I should say that under Clause 7(2) this extends to the advising of organisations on how to cope with their problems; promoting contacts between those organisations and solicitors who work in their neighbourhood; choosing or recommending solicitors, such as writing notes of introduction to them, and, finally, giving oral advice to applicants to those organisations. That is the nature of the liaison services which can be carried out under this part of the Bill.
Perhaps I should say something about the financing of the Bill's proposals. It has been difficult to assess the cost of the £25 scheme under the Part I proposals. The House will remember many previous examples involving the 1965 Rent Act, the Race Relations Act and matters pertaining to the Criminal Injuries Compensation Board in which pre-estimating of the volume of services to be required has been extremely difficult. Generally people have tended to over-estimate the extent to which citizens would take advantage of that kind of scheme. With this qualification, the estimate is on the basis of 400,000 applicants per year under the Part I provisions, involving a figure of between £1.6 million and £2.65 million in a full year.
On Part II the position is even more at large, though on a more modest scale. There is no assessment in the Financial Memorandum of the cost of Part II. It is not immediately proposed to set up any employed solicitors until it is seen how the £25 scheme works towards filling the gap. I say this advisedly because of one important factor. The New Law Journal has taken a breathless interest in the proceedings on this Bill, complaining last week that the Bill was promised only shortly. I hope it was impressed by the fact that the Bill was introduced on the same day as that Journal appeared and that it is now being discussed here. I mean no dis- 1596 respect to the New Law Journal, because it is taking a close interest in this important topic. In commenting on the legal aid and legal advice centres, it said that the advent of the £25 scheme is seen by many of the working party on new centres to be likely to provide a substantial amount of money for the running of centres which will make them somewhat more viable than they appear to be at present. The availability of the £25 scheme will be an important new source of finance to existing centres of various kinds.
The need for a liaison service of solicitors employed by the Law Society may become apparent at an early stage. The estimated cost for a liaison officer, including his secretary and office, is put at about £7,000 per annum. If one considers the possible cost of a centre or unit at which the Law Society was employing people sufficient to give advice, advice and assistance, or even advice, assistance and legal aid, it might range between £13,500 and perhaps as much as £50,000 a year. But the figures can vary between those limits.
I hope that the House will feel that I have given a sufficient exposition of the purposes of the Bill. I do not think that anyone who is familiar with the way in which the subject has developed over the last 20 years or so will regard this or any other Bill as the last word on the reform and modernisation of our legal aid advice and assistance services. However, this represents a clear, firm and effective response to proposals which were agreed by all the parties concerned. It is a response which has been designed to meet a universally acknowledged need. It is on that basis that I commend the Bill.
§ 5.12 p.m.
§ Mr. Ronald King Murray (Edinburgh, Leith)
On behalf of the Opposition, I want to welcome the Bill and to associate my right hon. and hon. Friends with the tributes that the hon. and learned Gentleman has paid to the advisory committee and all others concerned. From the point of view of this side of the House, the Bill is more constructive than some of those to which the Solicitor-General has nut his hand recently.
In case the point is missed, my right hon. and learned Friend the Member 1597 for West Ham, South (Sir Elwyn Jones) announced to the House on 14th May, 1970, that the then Labour Government would have liked to implement the present £25 scheme for legal advice during the then parliamentary Session. Unfortunately, the reins of power slipped from his grasp before that undertaking to complete the matter in the following Session could be fulfilled. Therefore it is a matter of satisfaction to right hon. and hon. Members on this side of the House that the present Government have taken up the torch, albeit in their second legislative Session.
The fact that there has been early action on this matter may be connected, as the hon. and learned Gentleman hinted, with the identification generally of shortcomings in the existing legal advice schemes which are reflected in the all-party nature of the submissions made by the Society of Labour Lawyers and by the Committee of Conservative Lawyers. Obviously there was a good deal of common ground between the two reports and some common conclusions were reached. The report of the advisory committee paid tribute to both and also to the Law Society, whose memoranda ultimately were largely the basis of the Bill.
However, I want to take this opportunity to pay a further special tribute to the Society of Labour Lawyers. After all, it was its advocacy of neighbourhood law centres which originally met with an embattled resistance from the establishment of the legal profession and which appears now to have crumbled somewhat and opened the door rather favourably to the prospects of law reform in the future. I am happy that the Government are amongst the converts to the view that some form of neighbourhood legal service should be embodied in the Bill, and perhaps I can press the hon. and learned Gentleman to illuminate us a little further on this aspect.
It is common ground between the two sides that there is a vast unmet need for legal advice. The legal advice columns of popular newspapers and magazines bear witness to it. Every hon. Member who conducts a constituency surgery knows it to be the case that there is a vast untapped well of legal need which is not being met. Social workers, on whom society is increasingly dependent in 1598 welfare matters, stumble amongst a welter of minor legal problems which cry out for professional advice.
This problem of unmet legal need has a qualitative and a quantitative aspect. The qualitative aspect is expressed by the Society of Labour Lawyers as a combination of ignorance and fear on the part of those whose need at present is not met. The ignorance is often ignorance that the problem with which they are grappling is a legal problem or that there is a legal remedy to it. The fear is often an inarticulate fear of the professional lawyer as an indifferent and alien establishment figure.
One of the difficulties is that deprived families, unlike middle-class ones, have no background of experience of the family lawyer on which they can draw. In the absence of such a concept, it is essential to build up the image of a friendly neighbourhood lawyer who somehow can help them. That is the sort of picture that we have to create. It does not exist at the moment, and the background of experience from which it might emerge does not exist. We must not underestimate the importance of this, not only for welfare purposes, which are of vital importance, but also to maintain and extend democratic values in an increasingly complicated and centralised society.
The quantitative aspect of the unmet legal need is the fact that many of our urban housing schemes are unsolicitored deserts. There are no lawyers for miles around. Those in need of help have neither the opportunity, because of working hours, nor perhaps the self-confidence to make the necessary expedition to the nearest solicitor's office, which may be some distance away. It is here that the need for a neighbourhood law service is of special relevance.
I express doubt whether the problem of these unsolicitored deserts is adequately met by the proposals in Part II of the Bill. First, it may be said that under the Law Society such facilities will be too closely tied to the apron strings of the legal profession's establishment and not give the necessary independence to develop and adapt according to the needs of localities. Secondly, it may be said that existing centres such as citizens advice bureaux may not be much more accessible to those who live in legal deserts than solicitors' offices. That is 1599 one reason why I say that the proposals in Part II may be inadequate.
The Conservative lawyers, in their pamphlet "Rough Justice", suggested capital grants in an attempt to deal with this territorial aspect. That is a difficult concept, and perhaps it is not a very attractive one at present, although it appears to grapple more effectively with this problem of unsolicitored deserts, with which the present proposals do not cope.
I refer to one criticism which is often made of the idea of a neighbourhood law service. It is often said that it excludes choice and so excludes the development of a true solicitor-client relationship. That criticism shows a rather abysmal failure to grasp the full magnitude of the existing problem of unmet legal needs. Perhaps I might give the analogy of the elector's choice in a one-party state. He may be able to vote only for or against a single parliamentary candidate, but at least he has a choice. It may not be an advanced form of democracy, but it is better than no democracy at all.
In the legal sphere the substance of the position now is that those deprived people who live in unsolicitored deserts have no choice, so there is no possibility of setting up any kind of solicitor-client relationship. That serves to identify the magnitude of the problem. Let us therefore have some choice at the start.
The basic need is to bring the law to the people; to humanise the law and to bring the lawyer within the reach of the poor. In view of the widespread suspicion against lawyers both inside and outside the House, it is right to point out that this is a different matter from bringing the poor within the grasp of the lawyer. The financial arrangements must be seen to be generous to the needy rather than to the legal profession. The Bill seems to operate in that way in its financial arrangements.
I turn now to one or two aspects of the provisions of the Bill. First, I should like to refer to the financial point upon which I have touched. Are the provisions of Clause 1 realistic at present? The £25 advice scheme was first mooted, or the first rumblings were heard, in 1966, although it was 1967 when it was widely 1600 talked about. That is six years ago. Presumably £25 now is worth considerably less than it was six years ago. Therefore, is this figure of £25 realistic? For reasons which I have just mentioned, the figure should be realistic rather than overgenerous. I am glad that the Government have power under the Bill to raise the figure. This seems advisable. However, I wonder whether the initial figure is realistic.
This is even more important when dealing with disposable capital in Clause 1(b). I do not quarrel with the disposable income in Clause 1(a). However, I wonder whether £125 in Clause 1(b) is a realistic figure with which to start. The cutoff point at the moment for the regular, standard or ordinary legal aid is a disposable capital of £500. It would seem more realistic if the Bill started with the same figure. Perhaps the right hon. and learned Gentleman, if he is to wind up the debate, will explain why £125 has been chosen and the reasons, if any, for rejecting £500, which is the cut-off for ordinary legal aid.
The Solicitor-General rather indicated that the disregards under Clause 1 would be much the same as the disregards under the legal aid regulations. Will he confirm this or, if this is not the case, give us some indication of the kind of disregards which will operate? There has been some speculation that the disregards might be more generous under this Bill than under the present legal aid regulations. We on this side of the House hope that that is so.
I have seen an estimate that under the scheme proposed in the Bill 60 per cent. of applicants are expected to obtain legal advice free. Will the Government confirm that estimate? If so, will they go further and agree that in principle some percentage, such as 60 per cent.—certainly over 50 per cent. —of applicants for legal advice ought to receive free aid? This would be some guide about the cut-off figures which ought to operate.
Criticism has been aired about the provisions of Clause 2. The emphasis appears to be on the negotiating power; not on the power to represent a client. Advice and assistance can be given and negotiations can be undertaken on behalf of a client, but the help stops short of 1601 starting proceedings. That requires recourse to the ordinary legal aid scheme. There is force in the criticism that this deprives the legal advice scheme of teeth—the effective sanction of immediate proceedings. This is unfortunate. The Advisory Committee attached some importance to the possibility that the £25 legal advice scheme might offer hope of help with small claims in the consumer sphere. It seems obvious that there ought to he immediate sanctions, not the delayed sanctions which the ordinary legal aid scheme will bring after its application, and so on. In the consumer sphere such immediate sanction may be called for. The value of a claim may be small, so the amount of public expenditure involved in following up legal advice may also be small.
The present legal aid scheme provides that the advice authorised should be given by solicitors in ordinary practice. Is the same limitation to apply to proceedings under the Bill? If so, it would appear to be a limitation on the possible evolution of the neighbourhood law centre or the liaison service of solicitors employed by the Law Society. I hope that the Government will tell us what the position is in this regard.
Will Clause 2, which is drafted in fairly wide terms, but terms which are a little vague, extend, for example, to the kind of assistance that a solicitor might give in drafting a will for a client? On one view of the wording of the Clause, this might come within it. However, doubt has been expressed and it would be helpful to have that point clarified.
Clause 2(1)(a) makes explicit reference to the application of English law or of Scots law:…English law (where the advice is given in England or Wales) or of Scots law (where the advice is given in Scotland)".I can understand why express mention has been made of the two jurisdictions. However, it would be unfortunate if the clarification which the mention of English law, on the one hand, or of Scots law, on the other, were to operate to exclude a legal adviser under the £25 scheme giving an obvious piece of information about the law of the other jurisdiction or, to take a germane point, about the law of the Common Market, which we are to enter. On the face of it, it would be improper within the scheme for a Scots 1602 solicitor to give advice on English law or for an English solicitor to give advice on Scots law, although that would not create much of a practical obstacle. Is it intended to put up a new and artificial barrier where at present none exists?
Normally, there is no difficulty about a solicitor in England giving advice, which could be verified by his correspondent in Scotland, on the effect of something in Scotland, or vice versa. What is more acute and may be more important still is the question of advice to people about their rights after we enter the Common Market. Plainly somebody might want to know about his rights regarding the obtaining of work in another Common Market country. The question might be whether it is a matter for the domestic law of the United Kingdom or whether it extends beyond it. I hope that in Committee the Clause will be presented in a way which avoids this type of criticism.
Clause 2(3)(b) contains an obscure provision which touches on the point about which my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) so eloquently intervened. On one reading it brings into the operation of subsection (3), which deals with courts, tribunals or statutory inquiries, the provisions of subsection (4). On one reading of these two subsections it appears that it is possible that a solicitor might, at the request of a tribunal, to be asked to give legal advice or even represent a client within the provisions of subsection (4). This is a very important matter. If that is what these two subsections together do, it is a very important first step towards getting legal representation for clients at tribunals. The situation is far from clear about what is intended by the existing wording of the two subsections. I hope that we may have clarification about that.
§ The Solicitor-General
The hon. Gentleman will forgive me for interrupting him, but I should find it difficult to clarify the doubt if I did not understand what the doubt was. As it seems to me subsection (3) extends to permit the solicitor to give assistanceby taking on his behalf any step in the institution or conductin the ways set out from line 25 to line 30, and it is only in that respect that preliminary assistance in the way I have discussed—letter before action, and letter 1603 to the court—can be given in respect of a tribunal. Subsection (4) deals with the separate and self-contained thing of the extent to which representation can be provided on request by the court—the magistrates' court or the county court. There seem to be two distinct provisions and subsection (3) limits plainly the extent of the pre-litigation help to be given before tribunals. If the hon. and learned Member understands it differently, perhaps he could say why.
§ Mr. Murray
I am grateful to the hon. and learned Gentleman but disappointed with the answer. It is clear that in Committee the Opposition will have to press for tribunals to be expressly included. Certainly I had the impression that they were to be excluded from the benefits of subsection (4). But I am grateful for the clarification.
Regarding Clause 2(4), is it the Government's intention that the provisions of that subsection will cover bail applications as well as advice upon the right to bail? I hope that is so. Once again, it is subject to what I would regard as the rather unfortunate qualification that the request has to come from the court. If that is so, if it is to be applied to bail applications as well as to advice on the right to bail, why have the Government not seized this opportunity to provide legal assistance as well as legal advice to persons who have been refused bail and who may have good grounds to have the refusal of bail reviewed? That is a point which my hon. Friend the Member for Hackney, Central has raised previously. I think he raised it on a Private Member's Motion on 18th June, 1971. Together with the point he previously made to the Solicitor-General, this point requires an answer. Why have the Government not seized this opportunity to deal with what we in Scotland call bail appeals, to provide legal assistance and legal aid? Second, why have they not taken the opportunity of ensuring that persons appearing for the first time in criminal courts obtain representation? I warmly concur in my hon. Friend's observations on that point. It seems essential at that stage to ensure not only legal advice but also legal representation. It may be too late after that.
The Solicitor-General has made it quite clear that what is intended by Clause 1604 2(4) is something of the nature of the dock brief system. That is not adequate and will not meet the required need. He referred to the system of duty solicitors which exists in Scotland. I shall not take the House into any of the mazes of Scottish legal peculiarities. But in connection with that, I would point out that we have a long tradition in Scotland of voluntary legal aid for poor people. It has always been the case—this is generally known—that legal advice has never been withheld from the poor in Scotland because of lack of means. In modern times, with criminal legal aid in operation, that is part of a very effective system run by the solicitors themselves in the major sheriff courts in Scotland, for criminal and civil matters. On criminal matters there is a rota of legal aid practising solicitors, on a voluntary basis. This is operated in such a way that there is always a duty solicitor available for each sitting of the criminal courts, which means that even under the existing legal aid scheme it is very difficult for a person who deserves legal aid not to have advice, at least cursory advice, from the duty solicitor, or at least to be asked whether he wants to be represented, what the grounds are, and whether there is a prima facie case which will permit legal aid. I commend that system to the Government.
If Clause 2(4) does not allow or is not wide enough to allow that same system to operate in England and Wales, I hope that in Committee amendments will be made to enable that. Subsection (4) as it stands would operate reasonably well in Scotland in terms of the concept of the duty solicitor. But it would be more unfortunate if, because of a system which we have voluntarily in Scotland, this were to operate in a way more favourable to litigants than is the case in England and Wales.
I conclude my remarks on that point by saying that the criticism of the dock brief system does not apply in the Scottish scene. Being duty solicitors, there is always someone there. If the duty solicitor discovered that someone appearing before the court, an accused person in a criminal matter, needed immediate representation under the £25 scheme, it would be possible no doubt to inform the clerk of the court, and no doubt the court would then know 1605 that this was a case in which there was some merit, and the court may make the request. If this is the way it is to be done, that would help. The general criticism would be that the well-known failings of the dock brief system should not be perpetuated in this country by the £25 legal advice scheme. The object of the Bill should be to help the needy client rather than to help the court. That is the object in the dock brief; it is for the assistance of the court. The Solicitor-General made clear that that is the philosophy of the subsection. But the Bill's purpose, the real philosophy, is to assist the client.
§ Mr. Percy Grieve (Solihull)
Surely the hon. and learned Gentleman would agree that this provision assists not only the court but obviously the client, and the dock brief system has from time immemorial existed for the assistance of the client? The assistance given to the court is implicit in the situation.
§ Mr. Murray
I am obliged to the hon. and learned Member for that intervention. I did not mean to decry the dock brief system but merely to point out that it had failings and shortcomings. To underline the point, the point of commencement of the dock brief is a request by the court. It seems that the real philosophy of the Bill and of the recommendations of the two lawyers' committees, is that people in need ought to be at the forefront of the legal advice scheme. That is my only comment on it.
§ The Solicitor-General
It is right, is it not, that the duty solicitor scheme in Scotland—I do not say this in any captious or critical sense—extends only to the sheriff courts and not to borough and J.P. courts, so that it should be acknowledged that Clause 2(4) will be extending to that lower tier of Scottish Courts something not covered by the duty solicitor scheme? There is a gap in the Scottish provision, although it has many features which repay study more widely.
§ Mr. Murray
I entirely agree that that is the position and that there is an existing gap to be filled in regard to the magistrates' courts. But I would still make the qualification I have made. Although it meets the needs of the sheriff courts, when one considers what it would 1606 do for persons who have to appear before the burgh courts, which are much less busy courts than magistrates' courts in England, one can make the same criticism of the shortcomings of the subsection, and the fact that it is a dock brief and that it is for the magistrate to take the initiative. But I only too willingly acknowledge that this is a gap which will be covered afresh on the Scottish criminal scene.
On Clause 3, I have already suggested that the figure of £25 may not be realistic. How has it been arrived at? What prospect is there of this figure being in operation for any length of time before it would have to be increased? Some solicitors have expressed fears about collections of contributions. There is an impression, possibly stemming from the Report of the Advisory Committee, that solicitors will have to collect in person. Is that so?
There have been justifiable fears that, in a field where new ground is being broken, there is some doubt about whether it is wise or appropriate to include provisions, like the one in Clause 5(3), that charges and fees should constitute a first charge for the benefit of solicitors. It may be felt that such a provision is not appropriate or that it should be limited to claims in which the money value is not less than a stated limit, perhaps £50, so that no question would arise of a first charge for fees where the value of the claim was less than that.
Part II introduces the structure, or the bones, of a legal advice service. The Solicitor-General has made it clear that it is not the intention of Part II to limit assistance to citizens' advice bureaux or analogous organisations. But is it intended to provide a structure which could be used to amplify existing neighbourhood legal advice centres? Is it, for example, the intention that legal advisers employed by the Law Society might be permanently seconded to suitable existing neighbourhood law centres?
I hope that the limitation of such legal advisory personnel to the employment of the Law Society would not be used restrictively but rather in an exploratory way. Clearly, it is contemplated that legal advisers employed by the Law Society may become virtually members of the staff of citizens' advice bureaux. 1607 If it is going that far, and will also extend to the other bodies that the Solicitor-General mentioned, I hope that it is also contemplated that they may form the nucleus of neighbourhood law centres, either existing or proposed. There may be financial difficulties about this, but I hope that this power will be used as I have suggested.
In this connection, I hope that the work which such legal advisers do will not be unduly restrictive. There is some suggestion in the wording of Clause 7 that they may be restricted to giving legal advice on a legal aid basis, that they will not be able to operate on a wider front. Perhaps this is not the correct interpretation of Clause 7, but it is a possible interpretation, and I hope that the Solicitor-General can confirm that the intention is to allow solicitors employed by the Law Society to give advice not only under the existing scheme but also where at present there is no provision for legal advice being given under either scheme.
The Solicitor-General has pointed to one gap in the criminal field in Scotland. There will obviously still be a gap between what can be provided by the existing legal aid scheme and what can be provided by the new scheme. I hope that the legal advisers who are to be employed by the Law Society will not be restricted but will be able to give free advice to citizens' advice bureaux where that advice falls outwith the scheme—in other words, that they will be able to fill gaps and not be hidebound by the limitations of the Bill.
There has been some fear that the limited provisions under Part II may foreclose the natural evolution of the neighbourhood law centres. The third leader of The Guardian today echoes this hope, that bold and imaginative leadership will operate rather than a restrictive approach.
I have one fear. I notice that Clause 14(5) enables similar legislation to be enacted for Northern Ireland, but that otherwise Northern Ireland is not within the purview of the Bill. I accept that the question of whether similar provisions to the £25 legal advice scheme are introduced into Northern Ireland is a matter entirely for the Northern Ireland 1608 Government, but I hope that this Government will take active steps to encourage the Northern Ireland Government to introduce a parallel scheme, so that the United Kingdom citizens in Northern Ireland are not once again short of a civil liberty which operates in other parts of the country.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Would my hon. and learned Friend agree that the most urgent need in Northern Ireland at the moment is not for a legal aid scheme, but for freedom to provide a service to which it applies? Legal aid, for example, applies to the Brown Tribunal, but those who offer their service under this scheme are not able to appear and represent their clients.
§ Mr. Murray
I agree with that; it underlines my criticism about the Bill—that it may stop short of what is adequate to meet the present need. I hope that I am wrong about that and that the Government will approach this matter in a sympathetic vein and will feel bound by the degree of consensus that the two committees of lawyers in the two major parties have shown in their preliminary work. I hope that, in Committee, if flaws do appear and my fears turn out to have some foundation, they will be flexible and open to approaches which will lead to the Bill being amended in such a way as to make it really efficient. I am sure that both sides of the House desire that.
§ 5.48 p.m.
§ Mr. Ian Percival (Southport)
I apologise to my hon. and learned Friend the Solicitor-General for the fact that I did not hear the start of his speech. I also apologise in advance to him and to the House for the fact that I shall have to leave shortly after making my own. As the Standing Committee on the Criminal Justice Bill is also in session at the moment, I hope that I shall be forgiven.
I was glad to be able to hear part of my hon. and learned Friend's reference to the history of this matter. I was glad that he included it, first because what we are doing now is the result of the pooling of a good deal of thought by both political bodies of lawyers and others. It is an occasion on which there has been rather more pooling and 1609 thought than there sometimes is, and out of all that has come this very sensible little Measure.
It was also right to stress the historical side, because it stresses that all of this is a continuing process. The thinking which has resulted in what we are talking about today is part of a process which has been going on continuously, is going on continuously and must continue to go on continuously. Already, there is another report from the Conservative lawyers and for all I know there may be another one from the Society of Labour Lawyers. I do not know whether my hon. and learned Friend has yet seen the Conservative one. This report, which was produced just before this Measure, expressed the hope that a £25 scheme similar to this one would be introduced, but it went on to speak of other matters that should be considered if such a scheme was to work. It also spoke of factors which should receive consideration with a view to supplementing the limited advantages that might come from the scheme.
One such recommendation, to which reference has been made, was that in the criminal courts those who wished it should have the opportunity to be represented at the earliest possible stage. The report pointed out that they might have been in custody overnight, might be in an extremely upset state and, in addition to being among the less articulate members of society, might be in an unkempt condition because of having been in custody overnight.
People in this condition need advice and assistance at the earliest possible moment, and we must encourage the courts to think in these terms. We must also, of course, provide the facilities to enable this assistance and advice to be given, and the report recommended an extension of the rota solicitors' system operating in Scotland—something in the nature of a public defender—to ensure that someone is available in court at short notice to give that immediate advice which is of such importance.
I am wholly in favour of what is being done by this Measure, and if the rest of what I have to say seems to point to defects inherent in it, that is only because I am specially anxious to see that what we are doing will work; and 1610 if it is to work, we must look at the difficulties and dangers inherent in the Bill and do our best to meet them in advance.
The biggest danger lies in the fact that if it works, and the more it works, the more likely it is to overstretch the already much stretched resources at present available. The Law Society in England estimates that with the present amount of work, it will need another 5,000 qualified men and women and 9,000 legal executives. The Bar is equally stretched. It is vital that we increase the available resources as quickly as possible.
I hope that we can with speed resolve the problem of legal education, preferably in accordance with the recommendations of another sub-committee of the Conservative lawyers, the Percival Committee, which is about to publish its third report. I hope that it will not be long before we develop the means necessary to train the personnel we need.
We must be careful not to overstretch our resources in the worst possible way; that is, to the detriment of the people whom we are most trying to help. We must be careful not to divert too much of our limited resources to the most trivial work, which is a real danger because the smaller the work the more likely it is to come within the £25 limit.
Herein lies a difficulty because, as every lawyer knows, what to the outsider seems a particularly technical matter is to the lawyer and his client a very human one. Every dispute between parties, whether or not it goes to court—I leave out the big commercial disputes, which represent a tiny proportion of the whole—is of enormous personal importance to the lay clients concerned.
We must, therefore, keep a balance. On the one hand, we must recognise that this is not a dry, dull science but that we are dealing with human beings and their problems. We must not, because their problems seem small against the wider picture or against our ideas, necessarily regard them as trivial. On the other hand, the more we divert resources to the smaller matters, the less there will be available for the bigger ones. This is a danger that must be watched.
The hon. and learned Member for Edinburgh, Leith (Mr. Ronald King 1611 Murray) was right to say that there are many un-solicitored—his word—deserts. This is a problem to which the Committee which produced "Rough Justice" directed its attention, and I am sure that the authors of that document will wish to read the OFFICIAL REPORT of the hon. and learned Gentleman's remarks and will be obliged to him for his references to their suggestions.
This is a real and practical problem. Because it is in these un-solicitored deserts that we find a great many of the people whom we are trying to reach—those to whom the law is something strange and who do not realise that we are human beings and understand human problems and want to help them if we can—the danger is that if we increase the pressure on those who have their practices outside those deserts, we shall, all other things being equal, make it that much less likely that they will move out of the lusher pastures into those deserts.
I therefore hope that, within the professions and in Government circles, we will face up to this problem in advance. Do not let us allow it to happen and then say, "Oh dear. That is the opposite of what we wanted to do". Let us continue to try to meet it in advance. The difficulty, of course, is that we have the additional headache that there is much more risk of overstretching the resources that are available.
I commend to all concerned the proposals put forward in "Rough Justice" and also in the latest report of the Hatfull Committee for inducing qualified people to go to areas where their services are particularly needed. Only if we make a start at remedying the deficiency which we recognise exists—we have recognised it for some time—shall we make more certain that not only is what we are doing by this Measure not aggravating the situation but that it is likely to achieve exactly what we want to achieve.
Certainly we all want to bring the law closer to the people who need it but who cannot afford it. We also want to bring it to them at the earliest stage, before the damage is done. This is obvious when said, but is often not appreciated. We are operating in a sphere which is no different from that of, say, medicine. One hopes to go to the doctor before becoming hospitalised. Exactly the same should 1612 apply to the law. I stress this and no doubt others will do so. We lawyers have to get over to the lay public that we are not demons who terrify the life out of them when they come to see us and also that it is in their interests to come early. Then we may be able to provide some mild palliative instead of their being involved in difficult controversial matters later.
I have only one other point, which is a small one, to raise now. I do not think it is a Committee point, but it may be raised there and, as I hope not to be on the Standing Committee, and as it is a point of principle, I think I should raise it now. It arises under Clause 6(3). That Clause applies regulation-making provisions of other Acts to the provisions of this Bill. At the end of subsection (3) are the words:and those powers shall (without prejudice to their generality) be taken to include power to modify the preceding provisions of this Part of this Act in any manner for the purposes of the application of those provisions to advice or assistanceWithout going into technical details, that looks to me like power to amend the provisions of the Act in an unspecified way by a regulation made under regulation-making power. I do not know of any similar provision in other Measures. That does not mean that there are not any, but they are not common. Whether this is a first precedent or not, it is a substantial departure from what I have always thought a distinction between a regulation and an amendment. To be legal, a regulation must be intra vires and must not go outside the enabling provisions of the Act.
It appears that what is being done, here although the word, "amendment" is not used, is giving power by regulation to change the provisions, or the effect of the provisions, of the Act. I would very much hope that that would not be done and that at some stage the wording will be amended to make sure that the fear I have expressed is not a real one.
§ The Solicitor-General
Is it not right to take account of the fact that the words to which my hon. and learned Friend has referred are qualified by paragraphs (a) and (b), in other words, a modification of the main provisions of the Act can be made only for the purpose——
§ Mr. Deputy Speaker (Mr. E. L. Mallalieu)
Order. The Solicitor-General should not turn his back on the Chair.
§ The Solicitor-General
I apologise, Mr. Deputy Speaker. My hon. and learned Friend has been addressing words of wisdom from behind me and therefore I turned towards him.
The purpose for which the modification power can be used is that of applying it to applications by minors, or whatever the Scottish equivalent may be. That may set the mind of my hon. and learned Friend at rest.
§ Mr. Percival
It does not, and only my desire to conclude my speech so that other hon. Members may have an opportunity of taking part in the debate prevented me from going into more detail. It is true that this provision can only amend provisions of the Act so far as they are referred to in paragraphs (a) and (b), but that does not alter the fact that it is a power to amend provisions. Perhaps I may be able to pursue this point with my hon. and learned Friend between now and Committee stage.
I believe the hon. and learned Member for Leith referred to Clause 5(4). The effect of Sub-Clauses 3 and 4 is, I believe, that in the case of a small recovery the solicitor may get the lot. There could be a case under these provisions as they stand in which the amount in issue and recovered is so small that it would all go in legal costs.
Not only could resources in short supply be diverted to a trivial matter, but it would be possible for all that was recovered to go to the solicitor and the lay client may get nothing. That would be disastrous for the image of the profession and better relations between the profession and lay clients, better relations which we want to see developed. So I would hope that, although this would mean a departure from one of the fundamental principles which we have always observed in the Legal Aid and Advice Act so far, there would be some departure and that what was recovered would not all be gobbled up in costs.
§ 6.6 p.m.
§ Mr. Tom Driberg (Barking)
It is with some diffidence that anyone who is not a lawyer presumes to intervene in this 1614 debate, but I assure the House that I shall not stand for more than a few moments between hon. Members and further flows of legal wisdom.
I simply want to ask one or two questions as an innocent non-lawyer about a matter which came to my attention fairly recently as a result of constituency experience. It is a matter which is not, so far as I can see, strictly within the confines of the Bill but it is certainly, I think, within the general area which we are discussing. I refer to the kind of inquiry which can be ordered by a regional hospital board or, I suppose, by the Minister when there is a complaint by a patient about ill-treatment, accident or something like that in a hospital. There is here in practice an anomaly which I think should be cleared up. I hope very much that the Solicitor-General can say a word or two about it.
I learned about it because a constituent of mine had a very serious accident in a hospital. I need not name the hospital today because I shall be dealing with it more fully in a debate on the Adjournment fairly soon. The legal point arises in this way. My constituent originally consulted a solicitor and the solicitor took counsel's opinion and out of voluntary generosity did not charge anything to my constituent. But when eventually we got the regional hospital board to agree to setting up an inquiry under the chairmanship of an independent barrister, my constituent was very grievously handicapped on this precise question of legal representation and legal costs at the public expense. This seems a very strange position. The Minister could not give us any advice on legal representation for my constituent at the inquiry because that is a matter which is entirely within the discretion of the chairman of the inquiry and usually, apparently, he is not able or willing to give a ruling on that in advance.
Secondly and equally important, the question of the costs of legal representation at the inquiry being met from public funds is a matter which is at the discretion of the Minister and he does not give a ruling on it in advance of the inquiry. Obviously it was impossible for my constituent, who is a member of a family of working people of modest means, to risk employing her own legal advisers.
1615 When we came to the inquiry—I sat through it for the two days it took and I must say that the chairman was admirable in his impartiality, his friendliness, his informality and so on—along the other side of the table were ranged a number of eminent counsel who were representing the hospital, the doctors and the nurses involved in the incident which has led to the inquiry. But, of course, my constituent was not represented personally by a lawyer. The doctors for the most part did not have to bother to attend the inquiry because they were represented, as I have said, by lawyers who were paid for at public expense, presumably by the regional hospital board.
I must add in fairness that there was one counsel on our side of the table whom the regional hospital board's own legal adviser had engaged to, as it were, set the case before the chairman of the inquiry and his colleagues, to outline the whole case as impartially as he could, and that he was very helpful to us and from time to time accepted suggestions from my constituent and myself about questions that he might put to various witnesses. But he was not directly representing my constituent, and since he was in effect employed by the board I suppose that his first duty would be to the board if any clash of interest arose during the course of the inquiry.
I believe that a committee on the procedure of these inquiries has been sitting for some time. I do not know whether it would be possible before the end of the debate for the Solicitor-General to find out from the Department of Health and Social Security whether that committee has yet reported and whether the report deals with this point concerning legal representation and costs at such inquiries. If it does, I wonder whether the hon. and learned Gentleman would consider making a small, simple Amendment to the Bill to cover the point I have made. If the report recommends some such extension of the law, and if it were agreeable to the Government, I cannot see that it would take very much time or cause very much difficulty to do so. I am obliged to have had the opportunity of making this point.
§ 6.13 p.m.
§ Mr. Percy Grieve (Solihull)
I join in the general welcome which has been 1616 given to the Bill. I was happy to hear the contribution by the hon. Member for Barking (Mr. Driberg) because it was a contribution by a Member of the House who, as he himself said, was speaking not as a lawyer. It is a good thing that in the welcome to the Bill there should be heard some other voice than that of a practising member of the legal profession, because although, on the face of it, this might appear to be a comparatively narrow and legal matter, it is nevertheless, one of great public importance in national welfare.
It is all too easy sometimes for hon. Members and the public to say, "This is a legal matter and we will leave it to the lawyers." But this is an important extension of the Welfare State. Whereas when we are discussing medical matters hon. Members flock in to express their views because everyone recognises the vital importance to the general and individual well-being of health and, therefore, the National Health Service, it is not always so generally recognised how important it is for the common weal and the well-being of the individual that people should have ready access to legal advice to be able to obtain redress of their grievances.
I suppose that there is not a Member of the House who does not hold regular surgeries and advice bureaux in his constituency, and we all know full well what appalling damage can be done to people who can become obsessed with grievances when they do not have a means of remedying them. Sometimes the legal advice may only indicate that they have no grievance for which the law has a remedy; sometimes it will put them in a position to obtain redress for a genuine grievance. For that reason, the steps taken since the war and since the inception of the Legal Aid and Advice Scheme have been in their way as important as any of the steps which have been taken in welfare generally.
The Bill fulfills a most useful function in that it enables people who have not the means to consult a solicitor, or are frightened that they have not the means, nevertheless to consult one and to obtain ready access at the expense of the tax-payer if that is necessary for the redress of their grievances. In saying that, I pay tribute to the enormous work which 1617 has been done in filling this lacuna in our welfare services over many years by the legal aid centres which exist all over the country and where most important work has been done on a purely voluntary basis, usually by young lawyers setting out on their careers. My experience in this was with the Cambridge University centre at Cambridge House, the work of which is well known, and there are many other such centres in London—for example, the Mary Ward centre—and elsewhere. For many years they have done what is now proposed to be done by solicitors or, under Part II of the scheme, by the employment of solicitors by the Law Society.
I remember that when the legal advice scheme came into operation it was thought that there would possibly be no more room for organisations such as the "poor man's lawyers" at Cambridge House and elsewhere. We were disabused of that. They have continued to fulfil a most important function and to give invaluable aid and advice. I imagine that even when the Bill becomes law there may well still be work for these organisations and I hope very much that they will do the work as local organisations under Clause 7.
The other aspect of this matter which is of the greatest importance, and is the basis of my own work, is that constantly in my constituency when I have seen people who have legal problems—I am sure that this is the experience of all of us—I have said that there are really problems about which they should see a solicitor. But I have found that people are terrified sometimes of the possible costs of doing so. This important measure of reform should remove that fear from the minds of very many people.
I do not propose at this stage to take up any time with what I might call Committee points. I give the Bill a general welcome. The financial provisions and the financial limits for aid appear to me to be reasonable at this stage. Having regard to the aid to be given, short of obtaining a proper legal aid certificate, which would be the natural end of the process if a person received advice in a matter in which he thought he might have to litigate and proceeded to do so, the limits of £125 1618 on disposable capital and of £20 on income are reasonable. I am glad, however, that there are provisions in the Bill, and we welcome them, for increasing those limits if necessary and if the value of money changes.
Finally, I would like to think I welcome the Bill also as a Measure which implements a pledge which the Conservative Party gave when in opposition and on which, as my hon. and learned Friend the Member for Southport (Mr. Percival) has said, the Society of Conservative Lawyers did a great deal of work when we were in opposition. I should like to recall to the House that that work was really instigated by a speech made by my right hon Friend the Prime Minister to that society some years ago, before the Conservative Government were returned to power, and after which a great deal of research was done.
My right hon. Friend took a very great personal interest in this section of public and social welfare. I welcome the Bill, therefore, as one more example of the fact that the Conservative Party in government is fulfilling its pledges in the field of welfare, and I commend it to the House and welcome it as a substantial legal reform.
§ 6.20 p.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
This is by no means the first time in debates in this House that I have had the privilege of following the hon. and learned Member for Solihull (Mr. Grieve), and it is not the first time that I find it difficult to dissent from most of what he said. He will not expect me to endorse unreservedly his last paragraph. I will refrain from making some of the more obvious comments because this is not, in substance, a party political matter.
Like the hon. and learned Member, I begin by welcoming the Bill though no doubt the Solicitor-General will forgive me if my exuberance is not entirely unlimited. I was at first minded to say I welcomed the Bill rather as one might welcome the mace-bearer when one had expected the mayor, but perhaps that is unfair and I should say rather as one would welcome the mayor if one had expected him to bring the mayoress. The Solicitor-General said that the Bill was 1619 not the last word in solutions to the problems with which it attempts to deal. Certainly, so far as it goes I would seek to welcome it.
The House is very jealous of the rights of individuals. We spend countless hours discussing those rights, sometimes not as lengthily as some of us would wish; but we spend a great deal of time doing so. We spend relatively little time in making available to people the means of implementing such rights as they have already, and these moments when some of us can give voice to such matters are precious. Incidentally, I join the hon. and learned Member for Solihull in congratulating my hon. Friend the Member for Barking (Mr. Driberg) on venturing as a lay Member into what looked rather like a lawyers' picnic. I endorse what my hon. Friend said. It is a great pity that more of our lay colleagues do not take part in these debates. Perfectly properly, from time to time they criticise the service that the legal profession gives to their constituents. We would welcome it if on occasions like this they seized the opportunity to come in and make their contribution, pointing out where the shoe pinches.
I welcome the Bill as an important step forward in two respects. First, as the hon. and learned Member for Southport (Mr. Percival) has pointed out, it is sensible to have what we might call preventive medicine in the law, to make available legal advice to people before a situation has deteriorated into a major crisis, and particularly before they embark on litigation. Secondly, I welcome the Bill because those who have actually seen the existing legal aid scheme at work know that most ordinary litigants require legal assistance in actually completing an application for a legal advice certificate. One cannot pay too high a tribute to the enormous amount of work done by the solicitors' profession in assisting people to complete applications for legal aid certificates for which they themselves are not remunerated.
Further, I cannot resist adding my voice to those that have expressed delight that the court is enabled to request advice and assistance for litigants in person, as recommended by the committee presided over by Mr. Rex Church. I have no doubt that the Solicitor-General will in 1620 due course read the rest of the report. There is a great deal in it which requires implementation, as some of us will seize the opportunity to remind the hon. and learned Gentleman from time to time, but we must not be ungrateful to him that we afforded a little.
§ Mr. Clinton Davis
While welcoming that part of the Bill, may I ask whether my hon. and learned Friend thinks that there is not a great danger as the Bill is drawn that legal aid work will become the monopoly of one or two solicitors who practise in a particular court, and that that fact demonstrates the necessity for having a rota system rather than this?
§ Mr. Archer
As my hon. Friend would rather expect, I agree with him on this matter. For the moment, however, it does not look as though we are to be given a rota system, and it would be a pity if the best were the enemy of the good. Perhaps for the moment we should contain ourselves in patience. The Solicitor-General rather disarmed us on this point because he admitted quite readily that Clause 2(4) was not as wide as he had hoped it might have been. When one receives that kind of admission from the benches opposite, it makes it very difficult for us to be too critical, but the hon. and learned Gentleman cannot stop us wishing, or seeking to consider Amendments in Committee.
I rose principally to comment on three problems which the Bill still leaves untouched. The first is the extent of the purposes for which advice and aid will be available. Of course, this is not a Bill about legal representation, so one cannot carry too far the argument that it ought to have made provision for representation in certain tribunals. But certainly there is still a gap here, as my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) has mentioned. We have just had an example from my hon. Friend the Member for Barking. At a public inquiry in which a private individual may have a real and immediate interest, very often there is no provision by which he might have legal advice and assistance. All of us have at times taken part in public inquiries where the inquiry itself must have felt the need for that very keenly. Every day of the week there 1621 are rent tribunals, national insurance and other tribunals where rights of very great importance to the people who appear before them are decided and where legal advice and representation is not available to them.
Secondly, even in those areas where the financial barriers are removed, there is still a great deal of work to be done in removing psychological barriers. The Bill seeks to implement the precept "Seek and ye shall find", but not many people in a certain type of situation are in a position to seek. Very often people do not recognise a legal problem when they meet one, or at least do not recognise it as a legal problem.
Two or three years ago New Society published an article describing how 402 tenants in Islington had been interviewed, and 43 per cent. of them had never heard of the Rent Acts. So the beginning of this is the problem common to all the social services, the problem of non-take-up. But even those who recognise the need for legal assistance often find that it is just physically not there and that there is what others have called a legal desert. It is dealt with in the Conservative lawyers' document "Rough Justice", but it is also a matter on which we on this side have spent many hours of heartache.
I recollect my right hon. and learned Friend the Member for Liverpool, Edge Hill (Sir A. Irvine) addressing a conference called by the Society of Labour Lawyers and pointing out that so far as he was aware there was not one practising solicitor in the whole of his constituency. It may be said that all people have to do is hop on a bus and go to a different area. But so often it is much more difficult, because it is not merely a different area but a different world. People have to have a day off from work and they feel that they must put on their best clothes and learn to speak the language spoken by the middle class rather than the working class. They are not quite sure what it will cost them and what sort of reception they will get.
That was what lay behind the recommendation in the Society of Labour Lawyers' publication "Justice for All" that we might try to operate a scheme of local legal centres along the lines of the neighbourhood law firm, which in many areas of the United States performs such sterl- 1622 ing work. There people who come in will not find professional men wearing distinctive clothes. They will find people speaking substantially the same language, often people who live and operate and have their social life in the same community, and who do not appear to be going out of their way to erect a curtain between themselves and those who need their help.
That is possibly what the writer of The Guardian leader today meant when he referred to bold and imaginative leadership in the implementation of Part II of the Bill. Perhaps we shall have another opportunity to discuss this matter in a fortnight, when the Private Member's Bill of my hon. Friend the Member for Oldham, West (Mr. Meacher) is to be debated. But we should like to hear from the Government tonight that the problem has been appreciated.
On page 7 of the Advisory Committee's Report, to which I too, would pay tribute, it was suggested that those responsible for running the scheme should consult relevant local organisations. We hope that it might even go further. There are already some schemes running very effectively, like the Centre at Notting Hill. We hope it will not be taken over from those who are running it already and that the Law Society will be content to enable it to continue with its work. We hope that existing centres of the kind mentioned by the hon. and learned Member for Solihull will also be allowed to continue unhampered, perhaps with a little assistance of the kind of which they themselves feel in need.
The hon. and learned Gentleman referred to Cambridge House. My own experience lay with the Mary Ward Centre. I understand that Miss Pamela Liverman, who has for many years unselfishly and efficiently devoted so much time to the centre, is listening to the debate. I hope I may be forgiven for trespassing on the fringes of order, and paying tribute to the work she has done, which is appreciated by all who engage in this field. We hope that the legal aid secretaries referred to in the Law Society's memorandum as working closely with social workers in the area will come to learn the psychological and social needs.
We might go even further. So often it is difficult to distinguish between the need for legal advice and other kinds of need. I remember a lady who used to 1623 help as a clerk in such a legal advice centre, one of whose substantial contributions was to look after the pets of people who seemed likely to disappear into prison in the fairly near future. It was not legal advice she was giving but it was very important work.
I also remember the more sobering experience of a lady who came to me in the days when I used to offer legal advice at the Mary Ward Centre. She required legal advice in litigation in the county court against a neighbour. She won, and the legal problem was solved, but three weeks later she committed suicide. She was not merely seeking legal advice. Her request for it was really a cry for help. We hope that neighbourhood centres will not be merely places to which people can come for legal advice but will be places where they find a friendly atmosphere and the kind of help they need.
Even when legal aid is available, and the financial and psychological problems are broken down, so often the kind of people at whom the Bill is aimed go to a lawyer only to find that he cannot give them the advice they seek because the subject was not covered in his training. The kind of problem that burns up so many ordinary people, who cannot just pick up a telephone and ring their accountant, or who do not meet knowledgeable friends at cocktail parties, lies for example in the kind of situation in which they are entitled to unemployment pay. There is a whole field here that has not been included in legal education, because it has never been thought of as law at all. This is not a matter for a legal advice Bill; it is something we must examine in the whole context of the service offered by the legal profession. I should be out of order if I tried to develop that theme now. But no legal advice Bill will in itself fill the whole gap about which I have tried to speak.
There is a letter in today's edition of The Times from Mr. Nevil Johnson pointing out that one of the differences between the way in which we run our public administration and the way in which it is approached in some of the Continental countries is that we apply the ultra vires rule. We say that a public authority has no power to offer a particular service or take a particular decision unless it can be spelled directly 1624 out of the legal text, whereas on the Continent, on the whole, people take the view that a public authority can do whatever common sense seems to suggest is required in pursuit of the purpose for which it was set up. The ultra vires rule simply leads to the conclusion that before many tribunals people find themselves studying very closely a legal text. For example, it is often said that in a national insurance tribunal people do not need legal advice because it is only a personal kind of problem that is considered. But those who attend hear a vocabulary that must sound like Greek to them—references to regulation 7, sub-regulation 6, and so on.
§ Mr. Archer
It is indeed a lawyers' vocabulary, arising directly from the application of the ultra vires rule. People in this country require such help perhaps far more than many others. A complete revision of our system of education is needed.
I respectfully echo what the Solicitor-General said. The Bill is not the last word, but it is a very useful step forward in the direction in which many of us have been hoping the legal profession will go, that of directing its mind to meeting the actual needs of ordinary people in a complicated world.
§ 6.38 p.m.
§ Mr. John Loveridge (Hornchurch)
The hon. and learned Member for Rowley Regis and Tipton (Mr. Archer) said he would welcome lay Members speaking more often in such debates as this. I am happy to oblige him.
The Bill offers a most welcome extension to the service and help available to the public. We have heard that 400,000 people may take advantage of the opportunities it affords. I am glad to think that the burden of repayment will not be heavy upon them. Those earning only £11 a week will have to repay only £1, which cannot be said to be excessive.
I am, however, concerned about the limit on capital. The hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) said that the limit was £500 for ordinary legal aid. I very much hope that the Government will reconsider the £125 limit in the Bill in 1625 due course. It is so low that it must discourage elderly people, for example. They have no way to make up capital out of future income. Moreover, are we not tempting those who apply to make wrongful statements? Everybody knows how often statements not believed to be correct have been made in applications for ordinary legal aid certificates. We should not encourage people to do that by making the amount too low.
I hope that the Government will be able to implement Part II of the Bill as soon as possible.
The Bill does not go as far as one might have hoped with the idea of having a public defender available in every court. I was glad to hear my hon. and learned Friend the Solicitor-General say that this was not an end to the Government's ideas about legal aid. I trust that more thought will be given to the idea of extending it to cases coming before tribunals. Many of these are much more complex than the simple cases in the magistrates' courts. I appreciated it earlier when the Government extended the principle and applied legal aid to the National Industrial Court.
It is important that when the local organisations are set up and making introductions to solicitors under Clause 7(2)(b) they do not appear to be acting as introduction agents to solicitors to obtain more business. It is also important that when those introductions are made the local organisation should try to make it clear that there will not be any substantial extra private costs involved in any work that may come out of the introduction, otherwise people will find that they are paying costs to solicitors that they had not anticipated when they began the whole process. I hope that the oral advice will include help for applications for ordinary legal aid certificates and for bail.
It is especially important for bail. There is nothing more difficult than an application for bail by someone appearing before a court. People do not know what they are doing if they are unaided and often the court is not quick enough to pick up what is happening. The police may say that they do not wish the application to be granted and the easiest thing is for the court to follow that path. This aspect is even more important than the defence in simple cases where the truth is readily 1626 perceived by the court and judgment follows accordingly.
This is a splendid Bill. My constituents and people throughout the country will appreciate what has been done.
§ 6.43 p.m.
§ Mr. Clinton Davis (Hackney, Central)
I support virtually everything that the hon. Member for Hornchurch (Mr. Love-ridge) has said, particularly about bail. He spoke from his experience as a lay justice on what is, if I may say so, a progressive bench. I say it because my wife serves on that bench with him. I also share his views about the low capital limits and will wish to say something about that later, and about representations before tribunals, a point made not only by the hon. Member but by my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer). My hon. and learned Friend was eloquent in his testimony of the many difficulties experienced daily by ordinary folk in seeking legal redress to all sorts of problems which beset them.
I declare my interest as a practising solicitor operating in a working-class area, as does my hon. Friend the Member for Norwood (Mr. John Fraser). I congratulate the Government on having introduced this long-awaited Measure the architect of which has been the legal profession. It is important that the profession should at all times identify itself with such a social need as this. It has done this over a number of years and to some extent this need is met. Legal aid is now recognised as a vital part of the fabric of our social services but is still not sufficiently extensive or sufficiently recognised by members of the public.
The take-up is still relatively low as it is with many Social services. The legal profession has been concerned to extend the scope of legal aid and also to widen the knowledge of the public about legal aid provisions. That concern on the part of the profession is diametrically opposed to the widely-held public image of the profession. We often hear of the allegedly high conveyancing fees paid to solicitors but we rarely hear about work undertaken daily by many solicitors who practise in working-class areas. I do not think that any firm of solicitors will get very rich as a result of the operation of this Measure.
1627 Let me give a personal experience to show the kind of situation that can assail solicitors from time to time, when they are placed in the predicament of undertaking work for a client for no reward, possibly at a loss or just allowing the client to go his own way. There is a real dilemma. The solicitor has to make his practice pay and it would not be fair to expect him to undertake work without fees all day and every day. Some years ago on a Sunday morning I was telephoned and told that a lady who was a tenant in a house was being barricaded in by her landlord and it was essential that she should receive the protection of the courts there and then. There was a child in the house too. It was an appalling situation.
I had to go through all the wretched drill about getting an injunction, preparing affidavits and all the rest. I had to take the commissioner for oaths down to the house and because the lady was on the first floor and could not get out, we had to hoist the affidavits and the Bible up to her in a bucket raised by a rope. She swore it from the first floor window, the commissioner appearing rather like Romeo and she like Juliet. Then it was lowered down to the ground. Then we had to go off to Sussex to see the judge in chambers and back again to serve the order on the landlord.
That lady could not get legal aid on Sunday and there was no way of obtaining any costs from the Law Society because it had no power to make payment retrospectively. I do not regret having helped the lady but it is an impossible imposition to place on the legal profession as a whole and it is right that to some extent this position is now being remedied. In criminal cases it is abundantly plain that the really critical time for legal assistance is when a man is detained, perhaps even to attend an identification parade. Hitherto this assistance has not been available to the vast majority of people who could not afford to pay. I deeply regret that the Bill does not provide for a client to be represented at the first hearing, which is also a critical period of a trial. Perhaps the Government will give way on this in Committee.
The provision that a magistrates' court or county court can ask a solicitor to 1628 represent someone who is appearing before the court is in general terms to be welcomed, but I have certain qualifications. The allocation of legal aid work should be seen to be done fairly and not appear to encourage a monopoly by one local firm. There is a danger that the local "attorney-general" may find that he is being asked to undertake more and more work to the exclusion of other solicitors practising in the locality. I do not think there are many unscrupulous lawyers who would resort to this, but there is the risk that some lawyers would simply hang around waiting for the court to appoint their firm to undertake work on behalf of a client. In spite of those qualifications, the idea is a good one, and I support it. A rota system would eradicate these difficulties and be infinitely preferable.
I echo the words of my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) on the necessity for legal aid to be made available at tribunals. The lives and interests of people today revolve to a great extent around the decisions of quasi-judicial tribunals, yet no legal aid is available for representation before tribunals. For some time past there has been canvassed the idea that surveyors should be available to represent people before rent assessment panels. Before rent assessment panels representation by surveyors is more important than representation by lawyers. Tenants are at a great disadvantage compared with landlords, particularly powerful landlords, when appearing before tribunals. In the absence of legal aid, and for other reasons, tenants try to overcome their difficulties by binding together into associations: this is the only way in which they can resist the pressures.
Inquests make important decisions which can touch on civil claims, and legal aid should be extended to them. I do not know what impact the Brodrick Committee Report will have, but I can think of many people who have been prejudiced by not having legal representation at coroners' inquests.
It is a pity that the Bill does not encompass representation in libel actions. Libel is excluded from legal aid, yet individual reputations can be seriously injured if not shattered. A person with 1629 inadequate financial resources is prevented from obtaining redress, and I hope the Government will give thought to this.
§ Mr. John Fraser (Norwood)
Does my hon. Friend agree that people who are sued in defamation actions, for which they cannot obtain legal aid, may be put in considerable difficulty since although they have not initiated the proceedings they may successfully defend them and be considerably prejudiced?
§ Mr. Davis
I entirely endorse what my hon. Friend has said. I have certain reservations about slander actions but I think that libel should be included in the provision of legal aid.
Last night on television I saw the "Man Alive" programme about bail. I have certain reservations about the programme, but it showed, as I tried to do in our debate on 18th June, the serious deficiencies in the operation of legal aid for bail. The Courts Act has remedied some of them because now, once a committal has taken place, an accused person may make application for bail to the Crown Court, but he cannot do so before committal. He cannot do so on an ordinary remand at a magistrates' court, and the inarticulate and generally deprived person who appears before the court cannot formulate the necessary arguments. Some magistrates' courts look into this matter in considerable detail, but others give it scant attention.
My experience—and I think my hon. Friend the Member for Kensington, North (Mr. Douglas-Mann) would share this view—is that there are many serious deficiencies that could be cured by proper representation at the right time. This is not happening and, as a result, the nation is paying. It costs between £23 and £25 a week to keep a person in prison awaiting trial, often in degrading circumstances. I hope that this is not the Government's last word but that they will consider granting legal aid for bail.
The opinion has been expressed from both sides of the House that the capital limits are much too low. With respect to the Solicitor-General, he did not answer this point when it was put to him. The scheme could well founder because of this. The hon. Member for Hornchurch said that people would be tempted to make wrongful statements to get legal aid. Although one might say this situa- 1630 tion could arise in practice, I do not think it does. My experience in the main is that people making applications for legal aid are frank and are prepared to disclose truthfully their capital and income position. To limit this scheme to £125 when the full legal aid scheme works to a limit of £500 is completely illogical. We should be concerned to ensure that this advice scheme operates successfully and there is no point in introducing an advice scheme which has such a grave disadvantage from the outset.
The Bill should contain a provision to give the Law Society discretion in civil cases to waive payments to the Legal Aid Fund on compassionate grounds.
I recall a case involving a man who had undergone a serious accident in which he had sustained the most appalling injuries. He obtained legal aid to sue the defendants, his employers. The employers were not insured: they did not have to be insured by law in the circumstances of that case. It transpired after a very long time that the employers could not possibly pay any substantial damages to the man who had been injured beyond any sort of repair and who will suffer for the rest of his life. Had he been successful in the action, it is possible he would have recovered damages amounting to five figures or more. That man has lost his legal aid certificate because the Law Society says that the costs of the action will now be out of proportion having regard to what he was likely to recover, which is a miniscule sum because that is what the other side had offered.
The present position is that the damages they would pay would go into the Legal Aid Fund and be eaten up by costs. This is a monstrous situation which means that this man can obtain no legal redress at all. The only people who received any benefit from it are the lawyers who are to be paid—and properly paid—for the work they have done. In circumstances such as those I have outlined the Law Society should be given discretion to waive payment into the Legal Aid Fund.
Having voiced those criticisms, I must say that I feel the Bill will be widely welcomed by the public who must be made aware of its terms. It is important that full publicity should be given to 1631 this matter, or the whole advantage of the scheme will be lost. It will in the course of time enable neighbourhood law centres to be expanded, and this is all to the good. It will also demonstrate the proposition that in the main the legal profession, like other professions, is actuated by an ideal of service. This will bring help within the grasp of many more people in their hour of real need. It will bring oases to these unsolicited deserts about which so many people have spoken. It will indicate that the law is responding to the pressures imposed by modern society, and that is the function of the law.
§ 7.3 p.m.
§ Mr. Bruce Douglas-Mann (Kensington, North)
I wish to express my regret that, because of my attendance in the Standing Committee on the Housing Finance Bill, I have not been present throughout the whole of this debate. I should like to have heard the opening speeches on both sides of the House. I am at any rate glad that I heard the speech of my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis). Like my hon. Friend I. too, practise as a solicitor and we use the facilities of legal aid to a substantial extent for the purpose of proceedings, and we also take advantage of the provisions which enable us to give advice to people with little means.
There are few firms of solicitors who undertake this work. As the scale of remuneration stands at present, this work can only be done by a solicitor if he is willing to devote part of his time, energy and resources to a form of public service. Many solicitors are willing to give a certain amount of their energies in this way, but far too many have come to the conclusion that this work is so unremunerative and unsatisfactory that they are not willing to undertake it. Anybody who consults a Citizens Advice Bureau will find that this is so, and that in the central city areas, where overheads are high, there is a reluctance on the part of solicitors to undertake such work.
I welcome the Bill, though I had hoped that its provisions would have gone much further. I wish to endorse everything said by my hon. Friend the Member for Hackney, Central. I. too, have had a case involving an eviction, 1632 of which I learned on a Saturday afternoon. I spent the entire week-end shuffling backwards and forwards getting affidavits written out in longhand, finding a commissioner to swear them, and then driving down to Sussex to get an injunction from a judge. I then had to get those injunctions stamped on the Monday morning. Not a penny of that work was eligible for payment out of the legal aid fund.
Also, like my hon. Friend, I have a serious damages case for which we have a legal aid certificate. If the man were successful in that case, the damages would be likely to exceed £10,000. The liability in that case is 100 per cent. clear, and it occurred before there was compulsory insurance for employers. Therefore, it is probable that the maximum damages we shall be able to recover for this man will be measured in hundreds of pounds from an employer who is virtually insolvent. To recover even that sum, it has been necessary to sue an insolvent individual and an insolvent company. Inevitably the costs which will have been incurred will make immense inroads into the damages we recover. Therefore, I echo the plea for a waiver of the payment of costs into the Legal Aid Fund.
I should like the Solicitor-General to consider extending the scope of the Legal Aid Fund so that it should cover the cost of attendance at the first hearing in criminal courts. I recently had a case in which I was instructed on Sunday on behalf of somebody who had been arrested on a charge of assault and where it was obvious that the man was in urgent need of medical treatment rather than a criminal prosecution. I spent the entire Monday morning at Marlborough Street Magistrates' Court, and the defendant clearly was unfit to plead. This became apparent to the magistrate when the defendant came into the witness box, and he was granted legal aid on the spot. We then took statements from five witnesses, corresponded with the prison medical officer and arranged for the man to be seen by a psychiatrist. This entailed a further attendance at court. This involved virtually two days' work and the total allowed for that case was £35. Although a solicitor is willing to undertake these individual cases, in present circumstances it is most unlikely that the great majority of solicitors will be 1633 willing to apply the kind of energies necessary to deal with such problems when they arise, especially in the exceptional and difficult case, unless the remuneration is to be at a level which will not mean the solicitor concerned losing money.
Although solicitors are as willing as other members of the public to give a certain amount of public service in the form of charity, we shall not get an adequate scale of legal advice to the public if we rely on solicitors to do it. I hope that the Bill will be amended in Committee and extended thereafter so as to improve the facilities which can be provided by solicitors to the public at large. In view of the extremely high costs involved in operating a solicitor's firm, especially in central London, I hope that the scales of payment for the kind of work envisaged will be improved. I know from personal experience that it is extremely easy to find a solicitor's practice running into the red if one undertakes too much legally-aided work.
I am apprehensive that Clause 5 will result in solicitors' charges being assessed at the old county court levels. If they are, solicitors will not take advantage of the Bill's provisions. I hope very much that they will. However, in central city areas where overheads are so high, we shall not solve the immense problem of the unmet need for adequate legal services unless we have a great extension of the neighbourhood law office.
I am fortunate in that my constituency has the only neighbourhood law office in the country. I know the extent to which it has uncovered an immense need and helped to resolve it. I do not believe ultimately that private practice can provide the services intended by the Bill. It can contribute to their provision in a small degree. It cannot do very much more. Naturally, the great bulk of solicitors will spend most of their time on work which is more profitable. As I have said, a large number already refuse legal aid work, not only under the advice provisions but also work for litigation. That is regrettable, but one has to accept the facts of economic life. The services required will be provided efficiently in our central city areas only by a great extension of neighbourhood law services. I hope therefore that we shall see the 1634 implementation of Part II of the Bill as soon as possible.
Having said all that, like my hon. Friend the Member for Hackney, Central, I want to reiterate the extent to which I welcome the Bill, even though I should have liked it to have gone further.
§ 7.14 p.m.
§ Mr. Neville Sandelson (Hayes and Harlington)
I wish to raise one point which arises out of Part II, Clause 7, and to ask the Solicitor-General whether he will consider the possibility of using members of the Bar in this capacity. At the moment, the provision relates to solicitors only. However, we have a pool of legal ability, especially among younger members of the Bar, which should not be ignored in this connection. Members of the Bar may be able to make a contribution in the various neighbourhoods in which they live and possibly outside their own residential areas because of their interest in assisting the public generally, and because of possible connections with organisations of one kind or another. I feel that the inclusion of members of the Bar could make the Bill that much more viable in its operation. I have in mind, too, that a lumber of members of the Bar who have considerable experience might feel that this kind of work was worth while. By it, they could make a contribution to the operation of a Bill which has already been described by other hon. Members as a very well worthwhile Measure. As a Labour lawyer I welcome it, and I congratulate the Government on its introduction.
§ 7.15 p.m.
§ Mr. John Fraser (Norwood)
This has been a short debate, and I propose to deal with a number of the points which have been raised, including such germane matters as tribunals and one or two others which I hope that the Solicitor-General will bear in mind.
More than one hon. Member asked that the Law Society should have a discretion in remitting costs. I think that the legal aid system is brought into disrepute when a person is awarded a modest sum by way of damages only to find subsequently that the whole of it is absorbed in costs. I have known this happen. In one case, the story was run by the Daily Mirror. I did not altogether 1635 agree with it. However, it was the solicitor in that case who got the opprobrium, and not the legal aid system. But the system is brought into disrepute where there is no discretion to waive costs.
A number of hon. Members spoke about legal education. It is not directly concerned with the Bill. But there is a great need for practising lawyers to know more about matters like labour law, social security law, and so forth. I hope that the Bill's provisions concerning advice about proceedings before tribunals and advice on more general topics than matters of litigation will lead to those bodies which are responsible for the education of barristers and solicitors to include more of these subjects in their curricula. More of them should become examination subjects, in preference to such matters as settled land, which most lawyers hardly ever come across, especially if they practise in working-class neighbourhoods.
Every hon. Member who has spoken has welcomed the Bill. Like others, I ought to declare my interest, in that I am a practising solicitor. Perhaps I might also pick up a remark made by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) that there is something to be learned by the Government about the origins of the Bill. The last time that I debated with the Solicitor-General, we were discussing the Industrial Relations Bill. In that case, there was advice by a Royal Commission, from personnel officers and so forth. The Government chose to ignore advice from every other source, with the exception of Conservative lawyers. I am glad that on this occasion right hon. and hon. Gentlemen opposite have taken on board advice from different political sources and have tried to make the best of it. That is the right approach on such a subject as this, and it is a pity that this has not been the Government's approach to other subjects.
The Bill recognises that a modest amount of public expenditure can bring a great deal of public good. The expenditure under the Bill is estimated to be above £2.6 million in a year. The benefits can be quite enormous. Perhaps that same lesson should have been learned on 1636 matters like school milk and admission charges in respect of museums.
The Bill really implements the intentions laid down by Parliament in the Legal Aid and Advice Act, 1949. We on this side of the House are very proud of that legislation. It was part of the mammoth reconstruction of the social system undertaken between 1945 and 1951 by the first full-blooded Labour Government. It was part of that quiet revolution of social institutions which was intended to protect the ordinary man and woman from the rigours and pitfalls of everyday life against which there was no chance of their protecting themselves. Just as the National Health Service gave access to hospitals and medical facilities, so the Legal Aid and Advice Act, 1949, protected people against the rigours of litigation and protected them when they needed to take proceedings for damages, and so on.
I think that it will be agreed that Sections 5 and 7 of the 1949 Act were intended to extend to advice and assistance. It was a pity that those Sections were not implemented sooner. Indeed, I think that everyone would agree that there was a good deal of delay in implementing many of the provisions of the 1949 Act. At any rate, it had the purpose of ensuring that everybody had equality not only before the law, but when they got to court. That Act ensured that shortage of money and lack of means did not deprive people of the legal assistance which they needed. That Act and the subsequent legal aid system ensured that there was no difference in theory and practice on the principle that everybody was equal before the courts.
It is interesting to reflect how many controversial murder cases, even since the war, involved the payment to a solicitor of only £5 for legal representation under the old system. I recall the first case in which I appeared at the Old Bailey as a solicitor. For preparing the case I was paid £2—I was defending a man on a charge of robbery with violence—and I think that I incurred two guineas disbursements. I had a considerable argument with the taxing clerk at the Old Bailey whether I had been extravagant in the defence of that man. There have been many cases involving people in serious and controversial murder charges whose solicitors have been 1637 remunerated to the extent of about £5 under the old system. It is important that everybody should not only have civil liberties, but the means to enforce them when they come before the courts.
I hope that the Solicitor-General will indicate to the House when he proposes that Parts I and II of the Bill should come into operation. I was a little disappointed when he seemed to indicate that the implementation of Part II would come after the implementation of Part I. I hope that the right hon. and learned Gentleman did not mean that. I hope that we shall be given an indication when the different parts of the Bill, when it becomes an Act, will be brought into force. We do not want the same experience we had with the 1949 Act of sometimes waiting a decade before its provisions were made operative.
One point which has become clear from the debate is that the purpose of legal aid, especially the purpose of the Bill, is not to encourage litigation, but to encourage advice and assistance which will help to keep people out of the courts. I have always conceived it to be the lawyer's job—certainly the solicitor's job—to keep his client out of court, not to get him into court. I understand that Lloyd George made his reputation by taking only winners in his court cases. He was very wise. I recall being reminded that, compared with litigation, roulette can sometimes be a game of skill. That is the advice solicitors often give to their clients, because it is their job to keep their clients out of trouble and out of court. I welcome the Bill because it concentrates on the preventative as well as the gladiatorial aspects of legal advice.
I hope that the Solicitor-General will assure us that the following kinds of situations are covered by the Bill. I am thinking particularly of matrimonial cases where it is much better to try to draft a separation or maintenance agreement with details about custody, access to the children, and so on, as that avoids the bitterness and recriminations which so often arise when parties fight the matter out in the magistrates' court. I am not sure whether the wording of Clause 2 covers this kind of situation. I hope that we shall have an assurance that it covers matters like the drafting of separation and maintenance agreements where 1638 that prevents the parties having to go to court.
Likewise, I hope that advice and assistance will be available for negotiating accident claims with insurance companies for the purpose of trying to get such matters concluded quickly to the advantage of persons who have been injured. This would save the parties time, worry, and a lot of money, because they get their accident damages soon after the claim is made and not, when the matter has to go to court, perhaps two or three years later.
I welcome the Bill because it provides these preventative services and the advice and assistance which will help to keep people out of the courts.
I hope that the provisions of the Bill are also intended to cover matters where litigation is not contemplated, but where the right kind of advice could avoid a dispute many years hence. I am thinking of the drafting of wills. There are often situations where family relationships are so complicated that, unless somebody makes a will with a clear statement of what is to happen to his property on his death and the reasons for his making such provisions, there is likely to be litigation and a great deal of bitterness among relatives, and so on. That kind of problem can be solved if people can receive advice and assistance. I hope that, even where a person's means are modest, it will be possible for him to get help with the drafting of his will under this Bill.
Many other problems are brought to solicitors almost every day which do not involve disputes. Sometimes people need advice about where to put a washing line, a dustbin or a fence. Solicitors spend a great deal of time dealing with disputes which follow from making the wrong decision even about what appear to be fairly trivial issues.
I hope that there will be a good deal of publicity about the purpose of the Bill. The lawyer is not a gladiator, but a prevention officer. The lawyer's job ought to be seen by the public in the context of a fire officer whose job is to prevent fires taking place. The extent that he has to put out fires is, in a sense, a reflection upon the inadequacy of his efforts. Likewise, lawyers like to be seen as prevention officers.
1639 I turn now to some of the detailed provisions of the Bill. I will try not to repeat many of the points which have been made by other contributors to the debate. There has been an almost unanimous view from all who have taken part in the debate that the capital limit of £125 is far too small. I understand that the proposal to keep the disposable capital limit at £125 was not in the report of the Advisory Committee. It has somehow crept in without knowing its author.
For example, it may be that somebody has £125 in the bank because he is about to go on holiday. Having paid his deposit on a holiday for himself, his wife and two children, a dispute may arise between himself and the travel company. That man may have had to save for a long time for that holiday. The disposable capital limit of £125 means that he would have to spend part of his holiday money to resolve the dispute. I hope that the view of most hon. Members who have spoken in the debate, that the limit is too low, will be taken into account and that we shall see it increased to at least £300, which is the comparable social security capital disregard, and as high as £500 to bring it into line with the Legal Aid and Advice Scheme. The disposable capital limit in the 1949 Act was £75 at a time when the average income was £6.50 per week. So, even on the basis of upping it from the levels of income and capital in 1949, it would be fair to bring it up to a figure of about £500.
I understand that Clause 2 covers such matters as the preparation of a written case for a tribunal and the drafting of documents, although it excludes instituting proceedings or steps in proceedings except for the purpose of settlement. The wording of the Clause does not make this absolutely clear. It should be made clear that a solicitor who undertakes work under the £25 scheme can draft documents, deal with matters like wills, try to prepare agreements, and go rather further than advice and assistance. I am thinking particularly of the proviso which follows paragraph (b) at the top of page 2:and applies to any assistance given by a solicitor or, if and so far as may be necessary, by counsel to any person in taking any such 1640 steps as are mentioned in paragraph (b) of this subsection.Paragraph (b) relates to the taking and bringing of proceedings. I cannot understand why that extension to assistance does not apply to paragraph (a) which covers only general advice where no litigation is contemplated. I understand from the Law Society that it is the intention that the wording of the Bill should cover the drafting of documents and rather more than mere advice, whether that be oral or written. I hope that that can be made absolutely clear.
I welcome the arrangements for the court to invite a solicitor before it to defend someone, as a sort of instant lawyer. The £25 scheme ought to extend to emergency cases, which often involve injunctions, so that if someone consults a solicitor and the case is on the following morning, the solicitor can, on his own initiative, spend up to £25 in representing that person in urgent and imminent proceedings, instead of sending the client to the court and saying, "Tell the judge that I am waiting in the precincts. If the judge requests me to appear I can, but unless he requests me to do so there is nothing I can do under the aid scheme." That is a little ludicrous. I hope that the £25 scheme can cover emergency situations, such as those that have been described in the debate.
Part II of the Bill enables the Law Society to employ solicitors to assist advice bureaux. I do not see why barristers could not be employed by the Law Society to fulfil this function as well. There is a gap between barristers and the public in that barristers—this is no reflection on them—tend to be drawn from a higher social strata than solicitors. In their first year at the Bar, during which there has to be pupilage and it takes time to pick up briefs, barristers without any form of private income, find it difficult to succeed. I do not see why there should not be an extension of these opportunities of employment in advice bureaux for young barristers, thereby perhaps helping working-class barristers. In general, I hope that in future there will be much more interchange between the two professions than is the case with the artificial barriers which exist at present.
Part II is intended to meet the gap that exists in legal assistance in many 1641 areas. The evidence of this gap is well documented in "Justice For All" and in "Rough Justice". Although we have one solicitor per 2,275 of the population, there are areas in London, such as Bethnal Green, which has only two firms for a population of 46,000, and Poplar, which has only one firm for a population of 68,000, where that gap is serious.
Second, a gap exists because people do not always consult a solicitor, simply because they do not even perceive that they have a problem. My hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) mentioned some of the evidence from the Milner Holland Report. Of tenants actually involved in cases of illegal or unorthodox eviction, 68 per cent. had taken no legal advice. These were not theoretical matters; they were affected by unorthodox and illegal methods. Of tenants of unfurnished accommodation questioned in North London, 60 per cent. had never heard of the rent officer. I should have thought it absolutely essential that we try to bridge this gap. That is why we welcome the Bill.
Another gap which is, perhaps, more imaginary than real is that between ordinary working people and professional men. It is what one could call a gap in the classes. I think it is imaginary because very often when a person goes to the local town hall, church hall or advice bureau, he will be seen by a solicitor or barrister. But somehow he is strange and alien, and there is a class feeling about him, when he is in his office, yet he is regarded as someone friendly and helpful at the local advice bureau. It is often an illusory gap but nevertheless it exists. That is why my hon. Friends and I are so keen to see help given to the neighbourhood law centres as well as the £25 scheme and the liaison officers. People very often prefer to go to a church hall or to their local, known community centre rather than to a lawyer's office. Also, their problem may not be only a legal problem. It may be a problem about social security which it is only afterwards perceived also has something to do with the law.
There is a class distinction between a section of the public and lawyers. It is an imagined fear that one is dealing with someone different who will make one nervous, and one will be deferential and 1642 feel out of one's depth. This feeling undoubtedly exists but it could be overcome partly by publicity. Certainly television programmes such as "The Main Chance" have gone some way to alter the public image of the lawyer.
I make a specific suggestion about this difference, this feeling of alienation. It is a great pity that barristers still wear wigs and growns in court. An ordinary member of the public going to the court for the first time and seeing his barrister sees that he is dealing with someone dressed up in wig and gown. If doctors held their surgeries dressed like apothecaries of the 17th century people could be put off visiting them. It is seen at its most ludicrous during House of Lords appeals, where the most distinguished judges in the world enter, like kindly uncles, in lounge suits and the barristers, especially leading counsel, dress like people from a Restoration comedy. This creates a problem in the mind of the public. Why do they dress up like that? It is not necessary. Many barristers regard it as uncomfortable. I mean no disrespect to Mr. Speaker, of course. But perhaps if we did away with wigs and growns it may do just that little something to remove the gap which seems to exist in the minds of some people between the legal profession and the public.
Regarding liaison officers we welcome the proposals that liaison officers he employed by the Law Society, but that does not go far enough. There is still a need for a local legal centre. It is no good having liaison officers for one of those vast areas where there are no solicitors or advisers and where there is no one to liaise with. We should encourage local aid centres, and not regard the £25 scheme as an alternative to encouraging local legal centres. I know the difficulties put forward, such as who is to pay for these schemes. There are problems, but they could be put forward on an experimental basis. Perhaps all sorts of fields of public enterprise and community effort could be involved. Perhaps we have too much armchair theory and not enough experiment. Until we experiment we do not know whether something will work. That is why we have experimentation in the Criminal Justice Bill. We ought to experiment with the local advice centres, which will be integrated with advice on other aspects of social policy, 1643 for instance, advice on housing, hospitals and social security.
Perhaps all local legal centres cannot be paid for by the Law Society or by funds provided under the Bill. It may be that some money ought to be found for these centres for their non-legal work under the Urban Aid Scheme or some other provision. I hope that experiments in providing and sustaining the existing neighbourhood law centres can go forward.
I pay tribute to all those that have met the unmet demand and spent a great deal of their time advising the public who visit the citizens' advice bureaux and places like Cambridge House, the Mary Ward settlement, town halls and so on, for no reward. I pay tribute to the lawyers who do a great deal of unpaid legal work in their offices, taking on unremunerative cases and spending a great deal of their time advising on a non-payment basis or visiting the advice bureaux. The trade unions also play an important part in providing legal advice. The only trouble about all these efforts is that they are unevenly spread between members of one profession and in terms of area. That is why we badly need the Bill.
I now want to turn to the things which are not in the Bill but which we would like to see added to it. I start with this quotation:I regret that legal aid is not at present to be available before tribunals, which are numerous and varied in character and have a very great bearing on the life of the ordinary individual."—[OFFICIAL REPORT, 25th May, 1949; Vol. 465, c. 1372.]We all agree wholeheartedly with that statement, which was made by Mr. Manningham-Buller, as he then was. It is almost a quarter of a century since those words were spoken by the proponents of the Legal Aid Bill in 1949, and that advice about the legal aid system has not yet been taken.
The proposition that legal aid should be available before tribunals can be argued even more powerfully today than in 1949. Some examples have been given today—hospital tribunals and so on. Or someone may go before an industrial tribunal to obtain redundancy pay or damages for unfair dismissal under the Industrial Relations Act. The amount 1644 involved in the latter case could be up to £4,160. It is ludicrous, especially if a question of law is involved, that legal aid will not be available then although it is available to someone claiming £30 or £40 in the county court. There is no rhyme or reason for this distinction. A great deal of money is involved also in public inquiries under Part III of the Housing Act of 1957, which may involve a great deal of money for a house-owner or even the typical widow landlord of a slum house.
I know that the Law Society has objected to a legal aid scheme covering tribunals and I understand the problem, that if all tribunal cases were covered the work of the Law Society would be weighed down. There are difficulties in blanket provision, but at least we could say that the £25 scheme should cover representation at the tribunal as well as preparing for it. If a solicitor were willing not only to prepare the case but to appear for his client within the limits of the £25, I do not see why this should not be allowed.
Then, perhaps, an application could be made for a formal legal aid certificate to the Law Society when there was a case before a tribunal involving a difficult point of law or in which the applicant was likely to be at considerable difficulty because there would be cross-examination or he was himself a disadvantaged person. I hope that we can give a lot more consideration to the almost unanimous view of hon. Members today that this should extend to tribunals.
I also hope that legal aid can be extended to dealing with bail applications to a judge in chambers. There is far too uneven a record in bail applications before magistrates. If they could be reviewed more often by judges, there might not be so much inconsistency.
I endorse what some of my hon. Friends have said, that the £25 scheme and the court solicitors' scheme should be readily available to deal with bail applications and that the inviting of the solicitor to make the application should be not only at the request of the court but also at the request of the person detained. His liberty is at stake and he should have legal aid, if only to deal with the question of a remand.
I am also sorry that the Bill does not deal with the granting of legal aid in 1645 criminal cases. My hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) raised this point in a debate on 18th June, 1971, and figures have also been given by my hon. and learned Friend the Member for Rowley Regis and Tipton. For instance, in West Midlands towns, there was a variation of refusals from 63 per cent. in one magistrates court to 3 per cent. in another. In London, it varies from Marlborough Street, which refuses 63 per cent. of applications, to Hampstead, which refuses 4 per cent. This is a quite unjustifiable difference of performance between one court and another.
That debate was six months ago. Having made some inquiries recently, I understand that there is still grave dissatisfaction at the way in which legal aid applications are dealt with by the magistrates' courts. What happens in some courts is that, although a person risks a custodial sentence and is absolutely without means, the court keeps telling him to apply again. I understand that this happens in Camberwell Court. It is not good enough that a person should have to keep going back to the court to make his legal aid application, especially if it is ultimately granted. There is far too uneven a performance between one court and another; something should be done to create more fair, just and consistent attitudes.
Every hon. Member has said that the Bill is welcome. It implements the intentions of Parliament in 1949 and I hope that it will, after receiving the Royal Assent, be put into force as quickly as possible. We hope that it will go a long way to meet the present unmet need for legal aid, although we must be constantly vigilant to see how well it does and to consider whether there are any other ways in which we can solve the problems of unmet legal advice, and even to discover new ways to discover problems.
The Bill deals with procedural law, but the use that we make of legal aid, advice and assistance could apply to changes in the substantive law as well. This has been the experience in the United States, where the neighbourhood law firm is much more popular because it not only seeks to remedy existing grievances but tries to change the law itself. The difference between this country and the United 1646 States is that, by going to the Supreme Court, one can get really liberal law making. This is not the process in this country, which accounts for some of the differences in attitude.
Already, things like legal aid advice centres in North Kensington have not only pointed to an unmet need for procedural help but have also pointed to defects in our substantive law. Perhaps we should first concentrate in some cases not on giving legal advice about existing problems but on changing the nature of our substantive law, so that the problems do not arise.
For instance, by giving security of tenure to furnished tenants, we would remove the need for many people ever to go to a solicitor in the first place. Second, we discovered from giving legal advice that there was a need to change the substantive law and to make employers insure against accidents to their employees. We must therefore monitor our legal advice schemes and see whether they point to any need for a change.
The Bill is to ensure equality before the law, but we must also be vigilant to see that the law provides for the individual equality in society. We welcome the Bill and we hope that it has a speedy passage and will be speedily implemented.
§ 7.50 p.m.
§ The Solicitor-General
With the leave of the House, I will reply to the debate.
I begin by thanking all hon. Members who have taken part for the general welcome they have given to the Bill. The hon. Member for Norwood (Mr. John Fraser) became a trifle tendentious in the opening of his speech, and if he would give me an undertaking that every Bill contained in the future programme of any future Labour Government, if any, will be acceptable to the society of Conservative lawyers I might be prepared to go along with some of his suggestions. However, this is a generally supported and generally welcomed Bill.
One can say that almost nothing that has been said from either side of the House does not deserve careful study by everyone concerned with the working of our legal aid and advice system and the whole functioning of the legal profession and the courts.
1647 It is right that we should join in paying tribute to the lawyers, who have to some extent been the progenitors of the Measure, and I join in paying tribute to the many unpaid citizens who work in the agencies and bureaux of which we have been speaking. Many thousands of people ascertain advice made available by those agencies. Those who become involved in the tendering of that advice help to make more widely available the whole legal advice service.
The hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) tended to imply, I am sure inadvertently, that the provision of an unpaid legal service, which the profession in this country has generally followed, had been more faithfully provided north of the Border than south of it. If he were in his place I am sure he would agree that over the centuries lawyers throughout the country have given their services either free of charge or for very little reward, certainly until recently; and the criminal legal aid system which the hon. Member for Norwood mentioned is only one example of that.
Before dealing with some of the more general points that have been raised in the debate perhaps I should correct an impression which I may have given in my intervention in the speech of the hon. and learned Member for Leith. I may have given the impression that after the Bill is implemented, in Scottish magisstrates' courts not only will legal advice be available under Clause 2 (4) but legal assistance will also be available. The position is that that will not follow from the Bill in Scottish magistrates' courts although it will follow in Scottish sheriff courts.
The reason is that legal aid is not yet available in Scottish magistrates' courts, which deal with a much more humble and restrictive class of case than those dealt with in magistrates' courts south of the Border. I hope I have made it clear that the extension is to make advice and assistance available in sheriff courts and advice only available in Scottish magistrates' courts. This is in line with the existing state of the Scottish legal aid system.
The hon. Member for Hayes and Harlington (Mr. Sandelson) and the hon. Member for Norwood asked whether members of the Bar might not be 1648 involved in the provision of the services under Clause 7. As several hon. Members have acknowledged, members of the Bar have for many years taken part by, for example, attending at the Mary Ward and Cambridge House advice centres, at citizens advice bureaux and elsewhere. I cannot say anything more on this subject at present. I have no doubt that it will be considered by both professional bodies and that any further thought and response would need further consideration by others beyond the Bar Council and Law Society. I therefore simply note the proposal that was put forward in this connection.
I pay tribute to the thoughtful contributions of my hon. and learned Friend the Member for Southport (Mr. Percival) and my hon. and learned Friend the Member for Solihull (Mr. Grieve). The speech of my right hon. Friend the Prime Minister to which my hon. and learned Friend the Member for Solihull referred was made to the society of Conservative lawyers on 7th July, 1967.
My hon. and learned Friend the Member for Southport was right to stress the points made by a number of hon. Members about the desirability of considering possible extensions of the coverage of the legal aid and assistance scheme. He was right also to stress the importance of not over-stretching the limited resources of the legal professions, however one adjusts or expands the way in which they do their work.
Several hon. Members mentioned the need for a more modern pattern of legal education. I do not want to comment on any particular set of remarks made by hon. Members on this subject because this has been a favourite hobby-horse of mine for a number of years. I am looking forward to reading the recommendations of the Percival Committee, points about which were trailed before the House by my hon. and learned Friend in his excellent contribution.
Everyone is agreed on the need to tackle and prevent the impact of what have been called legal deserts. It should be remembered, though, that some of the legal deserts are in many ways deserts in other social senses as well. Some areas which lack the availability of solicitors or legal advice are often the same areas as those which lack the availability of adequate play space, preschool playgroups and so on—areas 1649 which, for example, as a result sometimes of advertent and sometimes of inadvertent social policies are single-class communities living in single type accommodation, largely municipal-owned, either presently or prospectively. When we speak of the necessity to ensure the proper distribution of legal services, we should also speak of the need to ensure that we are examining the much wider problem.
There are no lawyers living in Tower Hamlets. Nor are there any doctors, teachers or dentists. If there are, there are only a few of them. There are, however, priests of all denominations. This is the problem of the community without the kind of leadership which comes from being a mixed community and these factors must be borne in mind if it is to be looked at on a wider front and not only in the context of legal aid.
That is the sort of point to which I am sure all hon. Members will respond, just as they will welcome the fact that we have had two lay speakers in this debate, because the law is everybody's business and it is important that lay Members of the House and of other places put their points of view.
The hon. Member for Barking (Mr. Driberg) raised the important point of the availability of legal aid and assistance in respect of particular kinds of tribunal, and particularly the multiplicity of ways in which this point arises in connection with the hospital service. I am well aware of this sort of problem, having taken part in a number of such inquiries and tribunals. It is right that the hon. Gentleman should have drawn attention to this matter in a debate of this kind.
The hon. Member for Barking then referred to the committee which was appointed by my right hon. Friend the Secretary of State for Social Services to look into the question of complaints arising within the National Health Service. That committee is sitting under the chairmanship of my learned friend Mr. Michael Davies, Q.C. It has not yet reported. Whether or not the subject of legal aid and assistance at complaint bodies in the Health Service are within its terms of reference, I will see that the points raised by the hon. Gentleman are brought to its attention.
In the wider context of the availability or non-availability of legal aid for tri- 1650 bunals generally, a number of hon. Members argued the case for an extension of legal aid to a wide range of such tribunals. One is entitled to say that some of them need not be considered further now; for example on libel proceedings.
The original recommendations of the Ruschcliffe Committee were against the availability of legal aid in such cases. That view was affirmed by the Lord Chancellor's Advisory Committee in its 17th Report and the question is being considered by a committee under the chairmanship of Mr. Justice Faulks. It is looking at the question of libel proceedings and we await its conclusions.
Looking at the question of tribunals more generally, they have of course, become increasingly important in the sense of covering a wider range of topics, whether one looks at town planning, slum clearance inquiries or supplementary benefit appeal tribunals.
The interesting thing is that there is a very substantial body of opinion, I should have thought growing rather than diminishing, which does not see a useful way forward in providing legal representation and legal aid in the traditional sense for such tribunals. The Lord Chancellor's Advisory Committee did not accept the case for legal representation before tribunals, except in the case of the Lands Tribunal, which it considered at the time of its 17th Report. The Bar Council argued this and, as the hon. Member for Norwood pointed out, the Law Society has advanced some arguments against it. Even the Francis Committee on the Rent Acts also said that there were substantial disadvantages about legal representation which one can summarise by saying that it would involve delay.
It would not be for a lawyer to say "Hear, hear" to that, but it would militate strongly against the informality of proceedings. The committee acknowledged that the non-represented tenant needs assistance, but that kind of assistance comes from the tribunal itself. I think the House must acknowledge that although one is concerned about this and particular aspects of cases before tribunals, there is a respectable body of opinion which takes the opposite view.
§ Mr. Peter Archer
Would not the Solicitor-General accept that some kinds 1651 of tribunal, particularly those dealing with national insurance, deal with matters which are highly technical? People who appear before them appreciate that on the other side there is a representative of the national insurance officer, usually with a very involved looking textbook, while on their side there is no one speaking for them who understands what is in issue.
§ The Solicitor-General
I appreciate that point which has been canvassed. The point I am making is that there are different kinds of tribunal dealing with a whole range of circumstances. The question of representation with legal aid before tribunals was considered by the advisory committee not very long ago. The committee looked at this question case by case and last year I believe this House passed the last set of regulations applying legal aid to the whole area in respect of which the advisory committee recommended it. This does not mean that there should not be continuous consideration of this matter, but there are arguments the other way.
§ Mr. John Fraser
Would the Solicitor-General agree that where a tribunal is dealing only with a point of law—for instance, some tribunals operating under social security provisions—legal aid should be available if the only point at issue is one of law?
§ The Solicitor-General
I know that point can be advanced but I do not think that it was accepted by the committee. The question has been canvassed in so many places and on so many occasions that no one concerned could feel that he could disregard it for long. I cannot say more about it now save that the advice and assistance with which the Bill deals will enable anyone appearing before any of the tribunals we have been talking about to get such advice about how to present his case, how to send a letter to the tribunal and so on, which in a practical way he would not previously have been able to get. We are, therefore, advancing along the right road.
There may be some possible misunderstanding about the capital limit of £125 and the £500 capital limit in the ordinary Legal Aid and Advice Scheme. The capital limits in the scheme generally were considered by the advisory commit- 1652 tee and reported on in April last year. The committee pointed out—this should not be overlooked—that in the ordinary legal aid scheme an assisted person contributes all his disposable capital above £125 and it may be that he is refused legal aid altogether if it is more than £500 and he can proceed without legal aid. The £125 in this scheme is not very different from the £125 limit in the other scheme because in this scheme the maximum contribution is of the amount I have indicated, £12. It is simply a question of whether someone with more than £125 should or should not be allowed to contribute £125 under this scheme. He cannot be required under this scheme to pay the entire cost of litigation. It is right to say that the advisory committee is now reviewing the capital limits generally. So this part of the scheme, as also the general legal aid scheme, will be considered by the committee.
Disregards under this scheme are the same as those under the ordinary legal aid scheme, save that the test will be administered by a solicitor in his office and will generally be on a rather simpler basis, but the result should be the same. The hon. and learned Member for Leith asked whether it was right that 60 per cent. of applicants for advice and assistance should get that help free. One cannot give a definite answer to this. The number of those who get free legal aid is about 50 per cent. and there is no reason to suppose that it would not be the same here. Also in answer to the hon. and learned Member, there is no reason to suppose that Clause 2 provisions apply only to solicitors in private practice.
In answer to questions asked by a number of hon. Members, the provisions cover advice with reference to the making of separation agreements and the negotiations of settlements are subject to any regulations made under the Bill and this would also cover advice on the making of wills. I say that because one can visualise circumstances in which complication could arise if this were quite general. Of course, they do not cover appeals about bail but they cover the availability of advice in respect of such appeals. I have noted the number of hon. Members on both sides of the House who have referred to the importance of that topic.
1653 One hon. Member asked whether Law Society solicitors can be permanently attached to the staff of law centres. I believe that the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) asked whether the Mary Ward and Cambridge House centres would be taken over by the Law Society. There is certainly no prospect of taking over existing going concerns. As a matter of theory, a liaison officer of the Law Society could be attached to them but that would not be usual in practice because of dual control. That is why one envisages a Law Society centre with Law Society liaison officers under the existing £25 scheme.
The hon. and learned Member for Leith asked if it were the case that solicitors would be expected to collect contributions up to the limit. The answer is "Yes"; that is so. They would collect up to the limit just as at present they would collect a contribution from a private client in private practice to the extent of their charge and then collect the balance either from the opposing party, if there is one, or from the legal aid office. The particular point raised by the hon. and learned Member was whether that was acceptable as a system, and the matter has also been raised by the Law Society of Scotland. My right hon. and learned Friend the Lord Advocate wrote on 1st February to the Scottish Law Society in these terms:Where a contribution is payable … we consider it reasonable to ask the solicitor to claim the appropriate amount from his client, in the same way as he would claim his fee if the client's means took him outside the scope of the scheme.He went on to argue that up to that point it is not unreasonable.
Hon. Members have pointed out that under Clause 4(3) the charge on moneys recovered could result in a situation in which all the moneys recovered went on paying legal expenses and none went to the person on whose behalf the claim was made. Several hon. Members gave examples of hardship where that could arise. I can only say on this point that it has been a familiar part of the legal aid scheme up to the present. Some solutions that were adopted—for example, under the Criminal Injuries Compensation Scheme, of excluding claims of less than a certain figure altogether so as 1654 to prevent the possibility of small claims being recovered and then taken in costs—would not apply in the ordinary legal aid scheme. I do not think that I can offer hope of any ready or immediate solution to that problem.
My hon. and learned Friend the Member for Southport, with his extensive experience of the Select Committee on Statutory Instruments and the Joint Consolidation Committee, drew attention to Clause 6(3) and queried whether it was proper for the power of modification of the Statute itself to be taken in the provision. We shall not have the advantage of his continued surveillance of us on this point in Standing Committee if those who make the decisions about these things have heard his plea, but a modification power for the application of the provisions to particular circumstances of that kind is by no means without precedent. I would not like to say without checking how frequently it is used, but if my hon. and learned Friend looks at Section 12(3) of the Legal Aid and Advice Act, 1949, he will find there readily enough an example to reassure him that this is not a violently revolutionary power.
I close on a point which many hon. Members touched upon—the need for everyone to promote amongst lay people far more than amongst lawyers an awareness of what the Bill is doing. We must ensure as far as we can that there is a proper response and that we make known as far as possible, in accordance with the advice given by the advisory committee, the availability of this new legal advice and assistance service, because it truly is a system for using lawyers as prevention or conciliation officers rather than as people one calls in when the situation has deteriorated much too far.
Some hon. Members have tended to argue that there is a gulf of class between most lawyers and most clients in the legal desert which is at the heart of the difficulty of making legal services available there. I would not deny that in all situations lack of familiarity between the mores of people of different classes can sometimes create misunderstanding, but I think that the problem with the law is more related to the apparent aloofness and remoteness of the kind of work we do. It is as possible for an aggressively working-class solicitor to be remote and 1655 aloof as it is for an aggressively working-class doctor or surgeon. The main thing to remember is that, whether we sit in a white coat in an out-patients' department or don a wig in a county court robing room, we are dealing with people who come to these places as infrequently as they can and are in any event frightened to do so. We should try to represent as far as we can the humanity of service and overcome the gap which exists.
My feeling is that advertising of an institutional kind, saying "If you want to get ahead get a lawyer", and so on, is not as effective as advertising of an institutional kind coupled with identification of the places where a person can get this service. I would like to see an extension not of appearances by lawyers on television but of advertisements in local newspapers to which people could refer when they have to say, "I want a lawyer. Where can I find one?" It is along these lines that the provisions of this widely-welcomed Bill will fulfil the proper service of helping citizens to get the rights to which they are entitled from an effective and modern legal system.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).