HC Deb 18 May 1972 vol 837 cc808-19
Mr. Clinton Davis

I beg to move Amendment No. 6, in page 1, line 19, leave out from "on" to "any" in line 1, page 2, and insert: the law relating to or the legal implications of".

Mr. Deputy Speaker

With this Amendment we are to take Amendment No. 7, in page 2, line 9, leave out from "to" to "those" in line 10.

Mr. Davis

In Committee the Lord Advocate intimated that he would be looking at this matter afresh in the light of argument which we adduced then. The burden of our argument was that the Bill was unnecessarily restrictive in that it enabled assistance and advice to be provided only in so far as English or Scots law was concerned where in the latter case the advice was given in Scotland. It seemed to us that many instances could arise in general practice when it would be necessary to extend this provision.

Reference was made in Committee to the absurdity of the situation which would arise if advise were sought from a solicitor in Carlisle and it was impossible for him to give any advice, or, indeed, to seek any from a Scottish lawyer, relating to Scots law. Equally, if he were to go over the border the client would find that the Scottish lawyer would Le similarly placed. That is obviously an absurdity.

9.15 p.m.

This seemed to me to be a matter of considerable importance affecting many people, and particularly those who come from the West Indies, India or Pakistan and want to receive advice on matters affecting the law in their countries, for this would be one way by which advice given at an early stage could obviate litigation later.

I argued in Committee that there had been numerous instances which I had experienced where, for example, a West Indian client had sought advice about a probate matter or land problem in his country and where it was perfectly compatible within the terms of this scheme for a solicitor to be able to instruct a lawyer in, say, Jamaica to advise in a limited way and possibly, as a result, avoid litigation later, and certainly avoid a good deal of anxiety on the part of the client. I suggest that this is the experience of many solicitors, particularly those working in large immigrant communities, and the advice that is obtainable from lawyers abroad need not be expensive.

There is no suggestion here that an English lawyer should advise on foreign law or even on Scots law. It would be absurd if an English lawyer were to take it upon himself to go outside his own knowledge and advise a client on matters about which he knew very little. He would, of course, be opening himself up to actions for negligence were he to do so, and as a matter of practicability that situation would not arise.

If a client came into one's office with the sort of problem to which I have referred the English solicitor would be able to refer the matter to a lawyer in the foreign country concerned. He would be able to advise him that his client was operating within the limits of the legal advice scheme, and I am certain that the foreign lawyer would recognise the financial implications involved and charge a smaller fee than would otherwise be the case.

This is, therefore, an important Amendment which could affect a large number of people. The present restrictive character of the Bill in this context seems to run counter to the report of the advisory committee, which has throughout urged that litigation should be avoided and that advice should be taken at an early stage. The Amendment is, therefore, very much in line with that thinking.

The Lord Advocate said in Committee that the £25 scheme was not intended to cover highly special cases. I think he misunderstood—later he seemed to recognise that he had misunderstood—what we were seeking to do, which was to deal not with highly special cases but with ordinary issues affecting ordinary people, and we pointed out that they could be dealt with easily by advice from a foreign lawyer at an early stage.

As the Lord Advocate said in Committee that he would investigate this matter afresh, we are disappointed that he has not thought it appropriate to table any Amendments of his own on this matter. I hope that that does not mean that this is the last word as far as he is concerned on this subject. I hope that he has been impressed by any research that he may have done or by advice that he may have taken from the Law Society. Indeed, I would be interested to know what advice he has received from the Law Society of England and perhaps from the Law Society of Scotland on this issue. What I can tell him is that, from discussions I have had with them, many other practitioners are very much persuaded by the view we have expressed in Committee and which I am expressing tonight on behalf of the Opposition.

Mr. Hooson

I support the Amendment on a very simple ground. Nothing that we do by way of Amendment or otherwise in the list of Amendments before us can possibly change the scheme from being a simple £25 scheme. That is what we are talking about. Unless the Government have a substantial intention of being restrictive in this matter, the words in the Clause are unnecessarily restrictive. I do not think that they will affect adversely a large number of people, as was suggested by the hon. Member for Hackney, Central (Mr. Clinton Davis). What they may do—it is unnecessary for them to do so—is to affect a relatively small number of people, but unfairly.

There are members of the Bar in this country, including a couple in my chambers, and solicitors who have qualified in other countries as well, and they are able and willing to give advice on simple matters coming within the ambit of the scheme. That advice should be available.

The form of words suggested by the hon. Member for Hackney, Central would give much greater scope to the Bill. For the purposes of the Bill, it is unnecessary to have any restrictive words. If it is unnecessary to have restrictive words, why have them?

The Lord Advocate

The hon. Member for Hackney, Central (Mr. Clinton Davis) was very persuasive in the course of the debate on this matter in Committee, as he was in all the debates in which he took part. I undertook to look at this matter and I did so. What impressed me at the time was that I understood the hon. Gentleman to say that this is the kind of thing which could easily be done within the £25 scheme. He was speaking from some experience. I have read what he said and he was rather more cagey than I thought he was at the time.

In Committee I paid the hon. Gentleman a compliment by saying It is helpful to have on the Committee a practising solicitor with experience in these matters. I asked the hon. Gentleman: Is it his experience that that advice is obtained within the limit of £25? I thought he gave an affirmative answer at the time, but what he said was It could be. I have in my mind cases touching the matters to which I have alluded, and land problems in the West Indies. Later the hon. Gentleman said: One can get an opinion at relatively small cost, well within, I believe, the limit of the £25 scheme. That is the whole point. If one were to accept an Amendment of this kind, it would have to be on the basis that the advice on the kind of problems which arise could readily be obtained within the ambit of the scheme. As the hon. Member rightly pointed out, no solicitor would wisely express a view on foreign law. From that point of view, Scottish law to an English lawyer is foreign law, as English law is foreign to me. No one would readily give advice on those matters. I should have thought that he would be rather ill advised to do so. What would inevitably be involved would be an application to a qualified lawyer in the country the law of which was in question. The solicitor would have to get in touch with a lawyer of the country concerned, and agree, presumably, to pay his fee, and would have to pass on, as it were, the advice he received.

My advice on this matter is that this is an expensive operation. The hon. Member for Hackney, Central, who made this kind of point more than once in Committee, would agree that the legal charges of this country compare very favourably with those in many other countries, particularly the United States and certain European countries. My information is that one could not expect this kind of service to be performed within the ambit of the £25 scheme.

There is a deeper objection than that. As appears from c. 61 of the OFFICIAL REPORT of the Standing Committee proceedings, I indicated that although I agreed to examine the question I had serious doubts about it. I said: I give that undertaking, though I would not like it to be thought that I am giving any undertaking to make a change because, on the advice given to me, my feeling is that it would go beyond the scope of the scheme."—[OFFICIAL REPORT, Standing Committee A, 25th April, 1972; c. 60–1.] It would go far beyond the scope of this scheme and of the legal aid scheme.

The advice which is contemplated here is advice on the law in England and Wales or in Scotland, as the case may be, on the day-to-day problems that arise, not problems arising on land tenure in the West Indies or elsewhere, although I accept that in this day and age there may be more of those problems arising than perhaps there were 20 or 25 years ago. The whole purpose of the scheme is to give advice on English law or Scottish law, as the case may be, on the day-to-day problems that arise.

I have considered this and thought about it. I cannot advise the House to accept the Amendment because, apart from the practicalities and the question of the extent to which a £25 scheme could bite on a problem of this nature, this would go far beyond what the principal scheme ever envisaged and certainly beyond what this scheme envisages. I do not think there was any suggestion in the report of the Legal Aid Advisory Committee that this was the kind of problem envisaged. For these reasons, I must advise the House not to accept the Amendment.

Mr. Clinton Davis

I have three questions for the Lord Advocate. First, following up the point raised by the hon. and learned Member for Montgomery (Mr. Hooson), is not the Lord Advocate aware that there are lawyers practising here who are qualified in a foreign country as well and who would, therefore, be able to give advice under the scheme?

Second, does not the Lord Advocate recognise that when it comes to the question whether advice is likely to be expensive, every lawyer wishing to secure such advice writes to a firm of solicitors abroad saying "This is the nature of the advice we want. How much is it likely to cost?" Therefore, the firm of solicitors will know whether the advice is likely to come within the £25 scheme and the burden would be on the solicitor to justify the position. Does not that invalidate the Lord Advocate's argument?

Third, on the Lord Advocate's argument about day-to-day problems, does he not recognise that matrimonial problems and questions of custody are day-to-day problems and can impinge upon elements of foreign law? Should not these matters be seriously taken into consideration?

The Lord Advocate

I have considered this from all angles. I accept that there probably are a number of solicitors practising in London who are qualified lawyers in a jurisdiction other than our own. In the light of the discussion I have had and the consideration that has been given to this matter, I cannot advise the House to accept the Amendment, although I should have been very willing to have advised the House to the contrary if I had felt that there was something in it.

Mr. S. C. Silkin

In the course of the discussions which the Lord Advocate has had, has he given consideration in particular to the provisions of the Civil Evidence Bill which is now going through Parliament and which is designed, amongst other things, to simplify the whole procedure of obtaining evidence in foreign law and to make it a great deal cheaper? Does not that affect what the Lord Advocate has said?

The Lord Advocate

If it is a question of evidence about foreign law, where proceedings in this country are concerned the legal aid scheme covers that and would embrace the obtaining of evidence abroad in that context.

9.30 p.m.

Mr. Silkin

As I understand it, the whole basis of the new procedure which will operate if the Civil Evidence Bill becomes law is that it will not be necessary, as it has been in the past, to go to a lawyer practising in the country concerned. It will be sufficient to take the advice of a lawyer whom the court regards as qualified. That will inevitably mean that when one seeks initial advice for the purposes of deciding whether one has a case, for example, on questions of the marriage law of the country in which one's client was married; this is very often a vital factor in the question of advice—one will be able to go to someone who is not a practising lawyer in the country concerned to get that initial advice just as one would be able to make use of somebody of the same kind to give evidence in court, and that sort of person would not charge the kind of fees that practising lawyers from the country concerned would charge.

It seems now that the point the Lord Advocate was making earlier about higher charges in other countries is not necessarily valid. One would have thought that it becomes even less valid when one realises, as the right hon. and learned Gentleman himself said in Committee, that the incorporation of Community law into the law of both England and Scotland will mean that within the compass of the £25 scheme will come the whole of Community law. If his point is that one is unlikely to be able to get advice within the £25 scheme on matters of foreign law, one would certainly have thought that it applied with very much greater force to matters of Community law.

The Lord Advocate

Surely that cannot be right, because Community law is a code of law with which lawyers in this country will become increasingly familiar, as the hon. and learned Gentleman would agree.

Amendment negatived.

The Lord Advocate

I beg to move Amendment No. 8, in page 2, line 13, at end insert: 'whether the assistance is given by taking any such steps on his behalf or by assisting him in taking them on his own behalf'. During the Committee stage I undertook to give careful consideration to Clause 2(1)(a) and (b), particularly in response to invitations from the hon. and learned Member for Dulwich (Mr. S. C. Silkin), and if necessary to amend the subsection to spell out the wide application that was intended. I think that was covered by what is reported at column 123 of the OFFICIAL REPORT. The Amendment which I now move is intended to make perfectly clear the wide effect of these statutory provisions. I think they are self-explanatory. Unless the hon. and learned Member or his hon. Friend the Member for Norwood (Mr. John Fraser) wishes otherwise, I shall confine myself simply to moving the Amendment. It is intended to clarify the effect of Clause 2.

Mr. S. C. Silkin

I am most grateful to the Lord Advocate for responding to the invitation that we gave him in Committee to clarify wording we found obscure. We ought not to look a gift horse in the mouth, but at the moment I am not relieved of the obscurity which I found on that occasion.

I would refer the Lord Advocate to his explanation at column 78 of what was meant by the wording in subsection (1)(b) when he was dealing with Amendment No. 8. The Amendment sought to insert into the subsection the words Submission, application, appeal or presentation of evidence in pending or contemplated", and so on, in order to clarify what was meant by the paragraph. Paragraph (b) is the paragraph under which not only oral or written advice but also assistance can be given. The Lord Advocate said that the Amendment was unnecessary because all the items contained in it relate to steps which that person might appropriately take by way of bringing or defending any proceedings. That is precisely what Clause 2(I)(b) relates to. He then read the wording of paragraph (b) and said: One could set out about two pages of examples of what would be covered in this way, but one always seeks to proceed by general propositions,… Clearly, he was telling the Committee that bringing or defending any proceedings as not to be narrowly interpreted but meant all the various things we had referred to in our Amendment and many more. Then I asked him: In view of what the Lord Advocate has said, is it the Government's intention that paragraph (b) should cover the circumstances which obtain when proceedings are contemplated and, if so, do the Government consider that the form of words used covers that situation? He replied: The form of words used is deliberately very wide. That is the significance of the words or otherwise' in line 4.… With the two exceptions I have mentioned, the line is drawn at the borderline of the solicitor himself taking steps as distinct from giving advice or assistance on the steps that can be taken."—[OFFICIAL REPORT, Standing Committee A, 25th April, 1972; c. 78–9.] Now, with this Amendment, which applies to paragraph (b), we have the insertion of the words by way of definition of the term 'assistance' whether the assistance is given by taking any such steps on his behalf or by assisting him in taking them on his own behalf so the borderline to which the Lord Advocate referred would appear on the face of it to have gone.

But then we come to subsection (3). which provides that Clause 1 does not apply to any assistance given to a person by taking on his behalf any step in the institution or conduct of any proceedings before a court or tribunal The phrase …any step in the institution or conduct of any proceedings would seem to cover the examples which the Lord Advocate gave the Committee when he was defining what was meant in paragraph (b) by as to any steps which that person might appropriately take by amongst other things, bringing or defending any proceedings. It does not apply—I return to subsection (3)—to any assistance given to a person by taking on his behalf any step in the institution or conduct of any proceedings before a court or tribunal and so on, except in the case of civil proceedings before a court or tribunal, any step which consists only of negotiating on his behalf with a view to a settlement of a claim. Then paragraph (b) does not affect this matter.

Therefore, certainly on a quick look at the right hon. and learned Gentleman's Amendment, it would seem that it is giving under subsection (1) what is then taken away under subsection (3), and the borderline to which the right hon. and learned Gentleman referred in Committee now finds a place somewhere in the vacuum, the exact position of which I am no longer able to ascertain.

It would be helpful if the right hon. and learned Gentleman would explain how these various parts of the Clause are now to be related to one another, and even more helpful if he would tell the House what precisely a solicitor and counsel will now be able to do, having regard to the joint effect of his Amendment and subsection (3).

The Lord Advocate

I am sorry the hon. and learned Gentleman still feels confused, because one would want an eminent Queen's Counsel of his standing to be clear on what Parliament is seeking to enact.

I said at a later stage of the Committee proceedings: I have already made the point that the subsection, and particularly paragraph (b), is intended to be in the widest possible terms, subject to the limit of the assistance which can he given—the limit of £25, with certain exceptions. But when we come to contentious business, to proceedings, the scope of the scheme is drastically cut down."—[OFFICIAL REPORT, Standing Committee A, 2nd May, 1972; c. 144.] As I look at the structure of the Clause, with its three subsections, I read subsection (1) as setting out a general and very wide proposition relating to advice and assistance. It is in the widest possible terms, and to avoid any doubt the Amendment emphasises the width of the scope of the subsection.

When we come to subsection (2) we find that the scope of the Clause is cut down in this respect, that subsection (1), wide as it is, does not apply to advice or assistance given in circumstances where legal aid is in force. In other words, there should be no overlap between the two schemes. Once a legal aid certificate has been obtained, the assisted person proceeds under legal aid.

Subsection (3) cuts down the scope of the Clause by saying that it does not apply to any assistance given to a person by taking on his behalf any step in the institution or conduct of any proceedings before a court or tribunal, or of any proceedings in connection with a statutory inquiry". Then we come to two exceptions to that general proposition. Negotiating a settlement would, I suppose, be regarded as a step taken on behalf of someone in the course of proceedings.

Subsection (4) relates to rather special circumstances. The subsection contains a specific provision for representation in circumstances set out in it.

The hon. and learned Gentleman said that he had not had time to consider this matter fully. If he is still worried about the structure of the Clause—it is a crucial Clause and must be right—I would be grateful if he would get in touch with me after these proceedings and we will have another look at it. I am advised that it clarifies the situation, but if he is still in doubt I would not like the Bill to pass through the House without the matter being cleared up beyond all doubt. Perhaps on that basis he might be prepared to accept the Amendment with the caveat that we may have to look at it again.

9.45 p.m.

Mr. S. C. Silkin

I am grateful for that invitation. I am always delighted to have a chat with the Lord Advocate, whether behind the Speaker's Chair or elsewhere. My difficulty concerning the words he emphasised in subsection (3): does not apply to any assistance given to a person by taking on his behalf any step"— and the words added in his Amendment: whether the assistance is given by taking any such steps on his behalf". At the moment I do not follow how they tie up with one another but I hope the right hon. and learned Gentleman will be able to explain that to me either behind the Chair or in some more salubrious place.

Amendment agreed to.

The Lord Advocate

I beg to move Amendment No. 11, in page 2, line 43 leave out 'and' and insert: 'or given in accordance with a proposal which is made by the solicitor and approved by the court and which (in either case)'. This, too, is an Amendment which seeks to implement an undertaking given during the fourth sitting of the Standing Committee. The Committee considered an Amendment in similar terms, and I said then: Since I first saw Amendment No. 21, I thought there was something in it, and I should like the opportunity to go into the necessary detail and discussion about it."—[OFFICIAL REPORT, Standing Committee A, 2nd May, 1972; c. 162.] The effect of this Amendment makes it clear that a solicitor himself can propose to the court that he should represent a party to the proceedings before a magistrates' court or a county court and seek the court's approval for his doing so. As the Bill stands, an invitation to him to do so would have to come from the court and on consideration we thought that it might assist the court in certain circumstances if the application could come from the solicitor himself. I am grateful to the Opposition for this suggestion in Committee, and I believe that the Amendment fulfils the undertaking I gave.

Mr. S. C. Silkin

On this occasion we are delighted to look the gift horse in the mouth, and it seems a healthy horse with a healthy mouth.

The purpose of our proposal, which has now been given effect to in rather shorter and simpler language than our Amendment in Committee, was in particular to give assistance to the growing number of local legal centres, to which people in areas which are in particular bereft of solicitors are turning more and more frequently. It was to enable the solicitors who will be working at the centres to go to court with the litigant, whether it be magistrate's court or county court, and inform the court that the litigant is represented by a solicitor from the centre and suggest that the right of representation under this Clause should be given to him.

The Amendment will fill a gap which it was necessary to enable these centres most effectively to fill. We are extremely glad that the Government have, in this way at any rate, accepted the value of the centres and what they are doing and are giving them this assistance. But we may have to come later to other aspects of the work of the centres.

Amendment agreed to.

Amendments made: No. 12, in page 2, line 44, after 'made', insert 'or approved'.

No. 13, in page 3, line 1, after 'made', insert 'or approved'.—[The Lord Advocate.]

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