HC Deb 18 May 1972 vol 837 cc831-43
Mr. Peter Archer

I beg to move Amendment No. 20, in page 7, line 37 at end insert— (d) of furnishing legal assistance to persons appearing before such tribunals as regulations provide. My hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) whispered a few moments ago that in the course of this evening's debate I had preserved more than my customary taciturnity. I hasten to assure the House that that does not reflect an absence of interest in these debates, but simply a hope that I might thereby assist the House in expediting its deliberations.

The Amendment—or at least the principle of it—was discussed at same length in Committee. We discussed the importance of assisted representation before tribunals and such related questions as whether it is normally desirable—quite apart from legal aid—to permit representations before tribunals, and the House may be relieved to hear that I do not propose to repeat those arguments.

I rehearsed at c. 88 of the Committee proceedings what seemed to me to be the principal arguments, and they were elaborated by some of my hon. Friends. I was somewhat surprised on reading the OFFICIAL REPORT afterwards to find that what had seemed to me when I was making it to be a brief and pithy speech had somehow extended when reported into several pages. It is an experience that has happened to me before. I do not propose to repeat the arguments, because I am certain that the Lord Advocate is capable of assimilating them on first hearing, and I have never been impressed by the criterion of the Bellman; "If I say it three times, it is true".

I do not think that I can be more persuasive tonight than previously on this aspect of the argument, but the Amendment embodies a rather narrower principle than the one discussed in Committee. It invites the Government to include the furnishing of representation before tribunals among the services provided through local legal organisations under Part II of the Bill, and it may be that this is a most promising beginning to representation before tribunals. If we cannot have a crisp fresh loaf, we may have to settle for several slices.

We discussed in Committee the problem of a dearth of lawyers who were qualified to give the kind of advice which is in question before many of the tribunals that we had in mind, particularly in poverty law, because this subject is not included in many legal courses. And when it is, it is frequently an optional subject which does not often commend itself to students. There is a ready reason for that. The people who are most likely to avail themselves of this kind of expertise are the very people who are not in a position to pay for it, and clearly there is no incentive, in the absence of legal aid, for anyone to acquire this kind of learning as a method of earning a living.

It has been a revelation to me since that debate to discover how many people there are in the legal profession who, for a moderate remuneration, are prepared to serve in local legal advice centres. I have had a number of young solicitors who have either just qualified or are about to qualify, writing and asking where they can find employment in a local advice centre. Perhaps it is time that someone said that there is a real degree of altruism amongst certain sections of the legal profession, which is often unnoticed and unsung, perhaps because the legal profession is notoriously bad at arguing its own case.

If it is suggested that legal aid has expanded into all the fields where there is a need, one look at what is going on in many local advice centres will quickly disabuse anyone of that impression. There would not be any local advice centres if that were true, and certainly the fact that they are as busy as they are proves the converse. That is due partly to the reasons which we discussed earlier this evening, that the financial limits of the service are too narrow, partly because of the psychological barriers which we discussed on Second Reading, but partly, too, because there are spheres in which advice is clearly needed but is not being provided within the scheme. There is growing up, however, a body of lawyers who are prepared and qualified to give advice of this kind.

It is not a reflection on any tribunal to say that it would find a difficulty within the confines of the adversary system in taking instructions from one party during a hearing and, as it were, descend into the arena and argue the case for that party. And it is difficult within the confines of a heavy case list to sort out all the relevant facts where the inarticulate appear for themselves. This particularly true among one group of tribunals.

There has been supplied to some hon. Members who took part in the Committee deliberations an excellent memorandum from the Citizen's Advice Office, and this memorandum comments particularly on some of the supplementary benefit appeals tribunals. Often the tribunal does not have the advantage of a legally qualified chairman and must therefore rely for such advice as it can command on either the Commissioners' own officer, who is bound to be seen in some cases by the litigant as being on the other side, or by the clerk employed by the Department of Social Services, who is under instructions not to participate in the hearing. The memorandum indicates occasions when these officials, for understandable reasons and within the limitations of their position, have given legal advice which, to put it at its lowest, has been questionable.

It is perhaps not without significance that whereas the national average for successful appeals to the tribunal is 20 per cent., the average of successful appeals for those represented by the Citizens' Advice Office is 70 per cent. Partly no doubt that arises because the Citizens' Advice Office can assist the tribunal by weeding out the non-starters, but it must reflect a degree of failure to present a case when 80 per cent. of those who appear unrepresented go away having lost their cases.

I have come across an example in my constituency in the last week. There is at the moment in a substantial factory in my area a strike, and last weekend I was discussing with some members of the strike committee the experience of strikers when presenting themselves for supplementary benefit. The merits of the strike or of the claim for benefit are not relevant to this debate and I shall not pursue them, if only because I am at present instituting inquiries into what I have been told about this matter and those inquiries have not yet been concluded.

One thing is incontrovertible from the experience of these men. It is that when many of them presented themselves for benefit, they were sent away empty handed, but when they returned shortly afterwards with a spokesman from the Citizens' Advice Office or the Claimants' Union, their claims were met. This is at national insurance officer level. It is therefore clear that a number of claims are being met when someone from the Citizens' Advice Office or the Claimants' Union is available to articulate the matter and argue the case, but are not being met when the layman is confronted with a mass of regulations through which he cannot hope to find his way unaided and when he is left to his own devices.

Unhappily, the Citizens' Advice Office and the Claimants' Union do not have the resources to provide assistance in all the cases where they are required. We are simply inviting the Lord Advocate tonight to consider making such assistance available under this scheme.

What is suggested here is that the Lord Chancellor should have power to consider when and whether this kind of assistance should be provided and that he should have power to decide for which tribunal it should be provided. We are not asking for any firm undertakings about this being universally implemented or even implemented to any specified degree.

The Opposition are merely offering the Government an opportunity to take this power. They make it not only without our opposition but with our blessing. That is an unusual situation these days. We simply ask that the Lord Advocate accept this power and enable the legal profession to give a service which many members of the profession want to give.

10.30 p.m.

The Lord Advocate

The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) has returned to a theme which he developed with skill and conviction in Committee. At that stage he was on a much broader base and was seeking a much wider application of this scheme to cover representation before tribunals. The Amendment is modestly drawn and certainly, I respectfully add, skilfully argued. But it comes down to this. I quote the words as I noted them from the hon. and learned Gentleman. He would regard this as "a promising beginning for representation before tribunals." This is the difficulty about the Amendment, or any Amendment framed on these lines, because it runs contrary to the provisions of Clause 2(3). Subsection (3) specifically excludes tribunals from the ambit of assistance. The subsection applies equally to employed solicitors as it does to solicitors in ordinary practice. So what the hon. and learned Member is seeking to do, in a rather ingenious way, is to broaden the scope of the scheme.

Of course, it is only a power that we are being asked to take. We do not have to use it. But I presume that by giving us the power, the hon. and learned Gentleman would expect it to be used. There would be no point in offering it if it were not anticipated that it would be used. To use it would go beyond the scope of this scheme and would, for that matter, go beyond the scope of the principal scheme.

Clause 2 enables solicitors—those private practices operating the scheme or solicitors employed under this part of the Bill—to assist a client in proceedings before a tribunal so long as they do not themselves appear. The hon. and learned Member is seeking to edge that little bit further forward—a short but significant step—to permitting employed solicitors to represent clients.

In conclusion, I refer to a passage in Appendix A of the Report of the Advisory Committee on the better provision of Legal Advice and Assistance to which I referred in Committee. The House ought to be aware of this. The whole question of representation before tribunals was considered by the Advisory Committee and it came out very firmly against it. The Committee said: We have also considered whether assistance should extend to representation outside the compass of the Legal Aid Scheme. We do not think it should extend to representation before tribunals pending the further research we invited in our Seventeenth Report. The report continues with the significant addition: Assistance can, of course, include advising the client on how he should proceed to bring the matter before a tribunal and briefing him on the facts or law of evidence which are relevant. We believe that this will be of considerable assistance to those appearing before tribunals and the experience gained in this work will eventually be of assistance in deciding to what tribunals full legal aid should be extended. The hon. and learned Gentleman knows my personal view on this problem generally because I have stated it fairly clearly. But, at the risk of drawing modest protest from the Opposition benches, I am bound to say that this is not the moment to extend the scheme in this way. If it is to be done, the proper way to do it is by operation of the legal aid scheme—in any event, certainly not to extend the scope of this scheme until further experience has been gained by advice and assistance which is competent, albeit behind the scenes, within the provisions of the Bill.

Mr. John Fraser

The Lord Advocate knows in advance that we find that answer disappointing. We recognise the problems of extending legal aid to all tribunals. The manpower may not exist. Some tribunals may be better off without lawyers because with them they may lose informality. We cannot lay down as a general rule that there should be legal aid for people appearing before tribunals. All that we seek to do is to give the Government the power to act when the need arises.

To deal briefly with the principle, we are advocating a concept which has had its supporters in the House since 1949. A number of quotations were made in Committee, and I made one on Second Reading, from what Mr. Manningham-Buller, as he then was, said in 1949. He said that it was a great pity that the 1949 scheme did not extend to tribunals. In 1949, when the scheme was initiated, the importance which tribunals would assume could not have been foreseen.

I repeat the outstanding example that, whereas legal aid is available for a man who wants to recover a £20 debt in the county court, it is not available for a man who is claiming up to £4,160 compensation before the industrial tribunal and who may be faced with a problem which affects his livelihood and his reputation and which may result from the most important and disastrous thing which has ever happened to him.

The difficulty is that, unless the scheme is extended to representation before tribunals, the citizen will be trying to enforce a right, often against the State, with one arm tied against his back. I will give two brief examples. I have here details of an industrial injuries tribunal case. It runs to page after page after page. It is not just a matter of law. It is a matter of reading the papers, understanding them, and marshalling the facts. Assessing the medical evidence and reading the correspondence is a very considerable task for a layman. It needs not only legal advice but legal training in the marshalling of facts.

The Lord Advocate

The claimant can get advice on how to present his case. The Bill gives him assistance which he does not have at present.

Mr. Fraser

I know that. I have spent time as a Member of Parliament coaching people on how to present their case before tribunals. A fit of nerves to which they may be subject and their lack of training and confidence means that they cannot conduct the case properly.

A constituent came to me last Friday bringing to me details of her claim for sickness benefit. She must read passages such as this: It follows that sickness benefit is not payable for the period under consideration. The claimant was not incapable of work in terms of Section 20(1)(a)(ii) (compare Decision R(S) 11/51). Faced with such jargon a lay person is totally unable adequately to represent himself. These cases are often important and difficult cases in which justice will not be done unless there is legal aid and representation.

Mr. Clinton Davis

I was sorry to hear the Lord Advocate roll out the old argument, which he rolled out somewhat successfully in terms of votes but unsuccessfully in terms of persuasion in Committee, that people who go before tribunals can receive advice. What the Lord Advocate fails to recognise, and what the Advisory Committee failed to recognise, is the nature of the people who go before tribunals. Each of us at our surgery tries to advise such people. Those of us who are in local solicitors' practices try to help these people along these lines.

Most of them are inarticulate and nervous and feel intimidated, whether rightly or wrongly. When they appear before rent assessment panels, for example, they face the whole panoply of a landlord's power when they are fighting a large landlord.

It is not good enough to say that somebody can advise them on how to present their case. When they turn up before a tribunal, they face what for them is a court. They are frequently intimidated. They find it impossible to deal with the arguments which are frequently adduced by trained lawyers, surveyors, and even accountants.

How can they deal with these matters successfully? Groups of tenants who form associations find themselves able to fight landlords with great success before rent tribunals and rent assessment panels, but individual tenants are almost powerless. Statistical information suggests very clearly that unrepresented tenants are at a considerable disadvantage. I cannot feel that the Lord Advocate has assimilated these arguments properly. He says that the Advisory Committee is against representation before tribunals. But the Franks Committee supported it. Mr. Manningham-Buller, as he then was, supported it and the national organisation of the Citizen's Advice Bureaux came out very strongly in favour of it. particularly before rent tribunals and rent assessment panels.

For my part I am persuaded by those organisations, such as the Citizen's Advice Bureaux, which deal with these matters, and whose experiences are similar to those of myself and many of my hon. Friends. I hope in the due course that the Lord Advocate and the Government will recognise that there is a force in these arguments and that experience will cause them to change their ways.

Amendment negatived.

Motion made, and Question proposed, That the Bill be now read the Third time.—[The Lord Advocate.]

10.43 p.m.

Mr. S. C. Silkin

I would not wish to detain the House long at this stage of the evening, but it is desirable that we take stock and look at the Bill as it now is. at any rate for a short time. The explanatory memorandum of the Bill begins by saying that its purpose is to give effect to the recommendations of the Legal Aid Advisory Committee's report (Cmnd. 4249) and it was that to which we had to have regard through all our detailed and technical discussion. The test we must apply is whether it fulfils the aims of the report.

The report sets out the problem which the Advisory Committee was seeking to solve. It did so on page 3 when it said—and I emphasise this because it is not a party matter, as the report made clear, and it was a point upon which lawyers in both main political parties were agreed: All those who have considered the matter agree that there are people who would benefit by going to a solicitor but who do not do so. The reasons why they do not do so are generally thought to be —and then it sets out five reasons. They are defects in the existing Legal Advice Scheme; insufficient publicity; lack of solicitors in the areas concerned; reluctance to consult a solicitor; and failure to recognise that legal remedies may be available. The report says: We agree that people fail to get the legal help they need for one or more of these reasons. The report of the Society of Labour Lawyers, "Justice for All", which was extensively referred to in the report of the Advisory Committee, states this in more dramatic terms. It says: In our view, poverty, ignorance, fatalism and fear, in combination with the present structure of the legal profession, result in the denial of legal services to many, especially to working class residents, in the largest conurbations of this country. We do not wish to suggest that the problem affects only the poorest section of the community; in some respects it affects consumers generally. There was a footnote on that page quoting Mr. Seton Pollock of the Law Society who made the remarkable statement at a conference of the Society of Labour Lawyers in 1968 that When we —the Law Society— received approval for advice posters to be put up in only some of the Post Offices of the country for only one month, about 18 months ago, the result was an immediate 34 per cent increase in the volume of advice given. As one might expect, in the ensuing six months the figures gradually dropped away until they reached almost the same position as before. The Bill is intended to solve the problem of a need which is not met, of people who require assistance with legal problems which in many cases they do not even recognise as legal problems and which the Advisory Committee Report rightly says are in any event so often only part of the social problem. The report rightly says on page 8: Legal assistance is a particular form of social service. The flow should be from the social services directing legal problems to the lawyers and not from the legal service to the social services. We must ask ourselves how far the Bill deals with that problem. Of course, it makes some small contribution, but, notwithstanding some measure of expansion which has taken place as a result of our pressure in Committee and in the House. its contribution is very small.

Mr. Peter Archer

I seek to intervene at this stage only to spare the House a speech later. The Government should receive credit for having listened to one debate in Committee, when some of us pressed that consideration should be given to extending the scheme to Northern Ireland. I heard today that the authorities responsible are beginning consultations with that in view. I thought it only right that those responsible should be told that many people are very grateful for that.

Mr. Silkin

I am obliged to my hon. and learned Friend. That is at least a step forward. But the contribution the Bill makes to solving the problems so clearly set out in the Advisory Committee's Report is very minor. The Government have been timid to a degree in moving along the path towards solving those problems. The £25 scheme will help a little, but, broadly speaking, the help that it will give will not be to persuade people who are reluctant to consult a solicitor to do so. It will not be to help people who fail to recognise that legal remedies may be available to recognise that they are available. I do not believe that it will be to induce solicitors who are not in areas where they are needed by the disadvantaged and the poor to enter those areas. It requires something far more than a £25 scheme to help in that direction.

What it will do—and this is, I think, conceded in our debates—is to give a sort of entry to the Legal Aid Scheme, perhaps in some way a simpler entry than exists at the moment, and no doubt it will be convenient for that reason in the case of people who in any event are going to consult solicitors. They will be able to get their advice more quickly than they otherwise would. To a large extent what Part I of the Bill at any rate will be doing is to remove from the ambit of the existing Legal Aid Scheme those steps which would otherwise have been the initial steps which would have been taken under that scheme. That is going nowhere near to solving the problems to which the Advisory Committee referred.

The only part of the Bill which could go a major way towards solving these problems is Part II. Yet it is Part II in respect of which the Government say, "We are not going to operate it now; we are going to wait and see." The Solicitor-General, in the absence of the Lord Advocate in Committee, made it clear that the Government had no intention of operating Part II at this stage.

I will tell the Government what is happening and will happen as a result. What is happening and what will happen is that, instead of the Government spending money on making advice and assistance and legal aid available through the machinery of the Law Society's local centres, as provided for in Part II, the same centres will be set up, in some cases are being set up, through the use of private funds and will exist in a precarious way trying to do a job, and trying to do it by the help of those young idealistic lawyers to whom my hon. and learned Friend the Member for Rowley Regis and Tipton referred, but unable to do all the things they would like to do through lack of means.

In addition to that, and more important—we see it happening both in London and elsewhere—because of the gap the Government have left, we see that the local authorities are setting up and will set up the sort of organisations which are provided for in the Bill, because they realise the need which exists and accept very fully, particularly with the development of the social services, what the report of the Advisory Committee says—that legal assistance is after all only a particular form of social service, and one which, in the case of the poor and the disadvantaged, must be closely linked with the social services.

We are, therefore, most disappointed that the Government have not seen lit to say that they will operate Part II of the Bill rapidly or, in default of that, that they will give assistance to those bodies that are prepared to do the same thing in a private capacity or through a local authority and so on. I have no doubt that unless and until we reach the point at which we are setting up, in the areas where the disadvantaged sections of our community live, centres closely connected with the social services, where people can go for advice both on legal matters and on social problems—very often the same question involving both together—in large numbers throughout the country, the problems which the report highlighted will not be solved, and this Bill will go only a very little way towards solving those problems, which are of such great importance to so large a section of the community.

10.55 p.m.

The Lord Advocate

The hon. and learned Member for Dulwich (Mr. S. C. Silkin) is rather pessimistic in his account of the effect which the Bill will undoubtedly have in solving the problems which right hon. and hon. Members on both sides of the House recognise. No one suggests that a Bill or proposals of this nature will solve the deep-rooted problems, to some of which the hon. and learned Gentleman referred.

Some of the problems are inducing or enabling people to recognise that they have a legal problem and to realise that they can and should consult a solicitor before more serious developments take place.

I do not criticise the Opposition for seeking throughout the whole course of the debates in Committee and in the House today to extend the scope of the scheme to encourage and demand that the Government should spend more money and do more than they are doing. This is the prerogative of all Oppositions. All Oppositions complain that the Government are not doing enough.

I submit that the Bill is a major step forward in filling a gap which has existed since legal aid was introduced in 1949. It is a measure which will have a major impact in the area to which it is directed.

I should like to thank all right hon. and hon. Members on both sides of the House who have made such valuable contributions to our debates on the Bill and for their courtesy to me.

Question put and agreed to.

Bill accordingly read the Third time and passed.

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