FINANCIAL LIMIT ON PROSPECTIVE COST OF ADVICE AND ASSISTANCE (Hansard, 18 May 1972)

§ Mr. Clinton Davis
I beg to move Amendment No. 14, in page 3, line 39, after 'to', insert: 'exclude the first £15 of, but otherwise to After we had put down this Amendment it became evident that there was a drafting defect in that it also took in paragraph (b) which was not intended. The Amendment is intended to relate only to the first part of the Clause.
The object of the Amendment is to exclude the first £15 which may be incurred in respect of disbursements. As the Lord Advocate will recall, this argument was canvassed in Committee. The principal argument we adduced then and which we adduce now is that the £25 scheme, as against when it was first enunciated in 1968, has already been eroded by inflation. The Amendment represents one way of mitigating the difficulties that are necessarily experienced as soon as we embark upon the scheme.
My hon. Friend the Member for Norwood (Mr. John Fraser) and I argued in Committee that there were many cases when it was essential to obtain expert advice, thereby incurring expenses almost at the outset of a case before it was litigated upon, possibly with the object of obtaining legal aid or, secondly, with the object of negotiating a settlement. The sort of expenses we had in mind were those relating to a doctor's report. One knows that some years ago on 1968, when the scheme was first adumbrated, doctors quite rightly did not charge for reports what they are charging today. One now finds that a general practitioner's report in an accident case rarely costs less than £5.25, or five guineas as we still like to call it. Often, and quite justifiably so, it may be as much as £10.
It is also necessary to obtain at an early stage—this does not always happen and it is regrettable that it does not—in a factory accident case, for example, the opinion of an engineering consultant. Generally speaking the fees are quite high, but I think many engineering consultants would be prepared to recognise that they were working within a £25 legal 821 advice scheme and would adjust their fees accordingly.
In many instances it is necessary to obtain those reports not only to obtain legal aid but also to ensure that a preliminary view is taken before an employer, in some instances for perfectly good reasons or in other instances for devious reasons, begins to interfere with or remove the machine which has been the subject matter of the accident. One knows from ordinary practice that most litigants, working people, are simply unable to afford those expenses.
There is always a delay before one gets legal aid. It may be three or six months, or even longer. Therefore, one necessarily runs the appalling risk that the subject matter of the litigation which ultimately ensues is no longer there or has been interfered with. That causes considerable prejudice to the position of the proposed plaintiff. Therefore, there is a strong reason for being able to incur limited disbursements of this character. It is also essential if one is to negotiate meaningfully to try to obtain a settlement. As I said earlier this evening, this is what the scheme is all about. It is not to encourage litigation it is to avoid it. It is to encourage settlements. Any measures which deter solicitors from embarking upon that course should be rejected.
In Committee the Lord Advocate advanced a number of arguments against these propositions. My hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) and I had a little game in Committee defining the kind of arguments that the Lord Advocate advanced from time to time. It is not only the Lord Advocate, but successive Law Officers and, indeed, all representatives of Governments—I am not seeking to make a party point—who seek to adduce such arguments.
My hon. and learned Friend. referred to the "time is not yet" argument and the Godot argument. I suppose that it what this is all about. Then there was the floodgates argument—the sewage argument as my hon. and learned Friend defined it. We had the vehicle argument—that it ought to be done in a different Bill. I do not suppose that that will be argued today. There was then the argument that because this was called the 822 £25 scheme—I do not think the right hon. and learned Gentleman seriously suggested this—it would be folly to encourage anything which might make it a £35 or a £40 scheme. That I defined as the nomenclature argument.

§ Mr. Peter Archer (Rowley Regis and Tipton)
The Scrooge argument.

§ Mr. Davis
I am sorry. The Scrooge argument. That argument has no basis at all.
It is important that we should seek to operate the scheme from the beginning in a way which is to the advantage of the proposed litigant regarding the possibility of a settlement and of his applying successfully for legal aid.
I cannot believe that to accept the Amendment will invalidate the scheme or that it will impose an absurd burden upon the Exchequer. Nothing of the kind will occur. If the Lord Advocate accepts the Amendment it will make the scheme meaningful, it will make it work. and it will lessen the risk. which would necessarily arise if we accept the scheme as it is, of its breaking down and the Government having to do something. They will probably say "We will do something about it at that stage." That is not the right approach.
I think the Lord Advocate will turn us down again, because he has his head down in his notes, and that is always an ominous sign. However, I hope—I have said this three times and been unsuccessful on each occasion—the right hon. and learned Gentleman will be a little less rigid tonight.

§ The Lord Advocate
I was not looking at my notes at that moment. I was reading what had been said in Committee.
The Amendment, ingenious as it is, is in substance an argument which was adduced at an earlier stage in our proceedings. In effect, the hon. Member for Hackney, Central (Mr. Clinton Davis) wants to increase the scope of the scheme from £25 to £40. When that specific Amendment was moved in Committee I said that the hon. Gentleman might be right that it might be that the scheme, to operate satisfactorily, would have to be at a figure of £40, £45, or perhaps £35. We just do not know. I said that this 823 was the scheme which had been recommended. When the figure of £25 was suggested by the advisory committee, it was purely speculative. The figure of £40 is also purely speculative. We want to find out from experience what figure is most appropriate to the operation of this advice and assistance scheme. We have power to make changes by regulation when that figure has been assessed in the light of experience.
In Committee, on this point, I said: We just do not know what the operation of the scheme will cost, and we do not know what the appropriate figure will be"—

§ Mr. S. C. Silkin
We do not apologise for returning to this matter, since we regard it as of great importance. As my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) said, the Amendment is defective, but what we seek to do is to ensure that, in addition to the £25 limit, there shall be a right to spend up to £15 in disbursements. In other words, it is not an automatic increase to £40, but an increase only where disbursements are incurred. Unhappily, the Amendment does not have that effect in terms, but that is the 824 spirit in which we invite the Lord Advocate to consider it.
There are two ways of approach which ought to be explored here. The Lord Advocate has given his undertaking in perfectly good faith, to see how the £25 limit goes and to review it if necessary, but there are indications already that the £25 will not be enough. My first approach to the matter is to turn to the report of the advisory committee, which proposed the £25 limit. In Appendix A one sees set out the limited amount of work to which that £25 limit was to apply. In paragraph 1(b), The assistance he will be able to give will include:—preparing an application for legal aid; writing letters and negotiating on behalf of his clients; obtaining the opinion of counsel; drawing agreements for maintenance. In subparagraph (c) it is said that the solicitor would be able to do certain other work, Drawing other legal documents; work involving charges in excess of £25"— but only with the prior approval of the area office in either case.
It is clear from the terms in which the Bill is now drawn that what will be permitted under the scheme goes far wider than the work referred to in subparagraph (b); it goes much more into the realm of sub-paragraph (c), and in some respects even beyond that, because all that is referred to in Appendix A appears to be the drawing up of documents and the giving of advice. This is a much wider matter, even under Clause 2(1), subject to the resolution of the ambiguity to which I drew attention earlier. But we have gone even further beyond the scope contemplated by the advisory committee because under subsection (4) the magistrate or judge may invite a solicitor to represent a litigant in proceedings before the court. That is one respect in which it is probable that the £25 contemplated by the advisory committee will not be enough.
The other factor is the change in the value of money since the advisory committee made its recommendations and particularly since the Law Society made the recommendation on which its report was founded. Earlier I asked whether the figures on page 14 of the appendix to the advisory committee's report, such as the figures for net weekly income and the figure at which no contribution should 825 be payable, had been up-rated because of the rise in the cost of living since the report was published. The Lord Advocate said that they had. He told us that certain figures which now apply to the legal aid scheme should be considerably up-rated—by as much as 50 per cent. in the case of capital. In addition there is the question of the effect of value added tax. Whether the £25 is intended to be net or gross of that tax I do not know. Perhaps the Lord Advocate does not know either, but if he does he will tell us.
All these factors make it clear that £25 in terms of the Bill will be quite different from £25 in terms of the recommendation of the Law Society or of the advisory committee. It does not make sense to say "We will stick to this figure in the Bill and then within a few months we will increase it by regulation." Surely it is far better to take stock of the situation now. It can be done between now and the time when the Bill is considered in another place, and if it is found, as I believe it will be, that £25 does not represent the expectation and understanding of those who put forward the scheme, the proper course will be to make the Amendment in the Bill rather than wait for regulations. I hope that the Lord Advocate will give an undertaking to consider that suggestion seriously and will not rest, as he has rested up to now, simply on the power to alter by regulation.