LEGAL AID AND ADVICE

HC Deb 13 March 1973 vol 852 cc1243-53

10.0 p.m.

The Solicitor-General (Sir Michael Havers)

I beg to move,

That the Legal Advice and Assistance (Financial Conditions) Regulations 1973, a copy of which was laid before this House on 7th March, be approved.

Mr. Speaker

Does the House agree to take at the same time the second Motion.

That the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations 1973, a copy of which was laid before this House on 7th March, be approved.

The Solicitor-General

That would be convenient, Mr. Speaker.

These two sets of regulations increase the disposable capital limit for the availability of legal advice and assistance from £125 to £250. The 1972 Act provides that advice and assistance should be available for any person if his disposable capital does not exceed £125 or any such larger sum as may be prescribed by regulations made under the Act. The regulations must be approved by resolution of each House. That is the reason for the time of the House being taken up tonight. One set of regulations covers England and Wales and the second covers Scotland. My hon. Friend the Under-Secretary of State for Home Affairs and Agriculture, Scottish Office, is present to deal with any matters that I cannot answer arising from Scotland.

The object of these measures is to raise the capital limit. The scheme is intended, broadly speaking, to enable those who would be entitled to legal aid on payment of the contribution from income without payment of the contribution from capital to be eligible for advice and assistance. The capital limit originally was £125 and it has become apparent that the sum should be raised. It is being raised in conformity with the increase in the capital sum limit under the legal aid scheme when that was raised in November last year to £250. The two now become parallel.

The regulations come into operation on 2nd April, the same day as Parts I and III of the Legal Advice and Assistance Act, which come into operation by reason of the commencement orders made by the Lord Chancellor. From that time onwards we hope that the scheme, which is known as the £25 scheme, will enable people to obtain legal advice and assistance immediately without any complicated red tape. They will be able to go to a solicitor. It will be the solicitor who will ensure that the form is completed and advise the applicant how to make his application. It will be for the solicitor to assess whether the case falls within the scheme. If the service that should be provided exceeds a cost of £25, the solicitor can apply to an appropriate committee of the Law Society for authority to incur further costs. No prior authority will be needed if the excess cost is merely that which arises out of the imposition of value added tax.

There is no limitation on the type of advice and assistance that a solicitor can give. He will be able—and I hope he will do so in any event—to treat his client in every way as if he is a paying client. The entire range of the solicitor's services will be open to him, except that in the ordinary course of events the solicitor will not be able to undertake appearances in court because that would come under the other legal aid provisions.

It is intended that the new scheme shall be well advertised and that a campaign shall be directed not only at those likely to benefit from the new scheme but also at persuading those who might be in a position to advise people in need of advice and assistance to lend their services. There will be advertisements on television, in the Press and on posters. Simple explanatory leaflets will be available in post offices and elsewhere. Those who will be in contact with people who might need such assistance—such as citizens' advice bureaux, hospitals, local authorities and others—will receive detailed pamphlets explaining how the system will work.

We are grateful to the Law Society, which is undertaking a great deal of persuasion to ensure that solicitors are willing to join the scheme and to make it work. Meetings are being held with solicitors throughout the country during the coming month so that they can play the part which is essential in making the scheme a success.

10.5 p.m.

Sir Elwyn Jones (West Ham, South)

These regulations constitute yet another timid and tentative step towards remedying the continuing failure of our legal and social arrangements to ensure that those in our community who need legal advice and help get it. The regulations are based on the Legal Advice and Assistance Act 1972 the purpose of which,was to give effect to the recommendations of the Legal Aid Advisory Committee's report.

That report highlighted the problem that: 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 advisory committee set out five reasons for that unhappy state of affairs. The first was defects in the existing legal advice scheme, the second insufficient publicity, the third lack of solicitors in the areas concerned, the fourth a reluctance to consult solicitors and the final point was a failure to recognise that legal remedies might be available. The report concludes: We agree that people fail to get the legal help they need for one or more of these reasons. I am glad to hear what the Solicitor-General has said about the publicity that is to be given to the legal advice scheme and to the legal aid scheme generally. There is no doubt that there is a great need for this. I can only hope that the extent of the publicity campaign will encourage those who need the facilities now being provided to make use of them.

The regulations go some way to meet the defects in the existing legal advice scheme and to that extent they are welcome on this side of the House. In my submission they do not go far enough and I do not suppose that those on the Treasury Bench will be surprised to hear me say so. I venture to think that if the position was reversed and they were sitting on this side they would be saying precisely the same thing. Did the advisory committee recommend a figure in respect of the capital limit for the availability of legal advice and assistance? In Committee on the Legal Aid and Advice Bill we proposed an amendment to the effect that the figure should be £500. We felt that this would be more realistic particularly in these inflationary times. It was dis- appointing that the Government felt unable to accept that amendment, which was defeated on a Division.

I hope that the Government will feel able in this whole subject of legal aid to adopt a suggestion which I made at Question Time to the Attorney-General and which he seemed to accept, or at least to view with some sympathy, namely, that there should be built into the scales and limits some provision to allow for the continuing rate of inflation so that it would not be necessary for us to keep on trying to catch up with the inevitable consequences of inflation. However, we have the regulations. They are better than nothing. To the extent that they are better than nothing, we on this side of the House welcome these two sets of regulations.

If it was expected that I should say something arcane or esoteric about the Legal Aid and Advice (Scotland) Regulations, I must disappoint the Under-Secretary of State for Home Affairs and Agriculture, Scottish Office, whose presence we welcome even at this late hour.

10.10 p.m.

Mr. David Waddington (Nelson and Colne)

I am a little disappointed that the disposable capital limit should have been increased to only £250. I remind my hon. and learned Friend the Solicitor-General that in the Housing Finance Act 1972, Schedule 3, it was decided that the income of a tenant and his spouse should be increased notionally by only 0.1 per cent. of the excess over £800. Bearing in mind that provision, it seems extraordinary that a person with as little disposable capital as £250 should find himself unable to obtain considerable help by way of legal aid.

I invite the Government to bear in mind in future, if not now, that apart from present-day inflation it is not realistic to look upon a person with £250 disposable capital as someone who can afford to pay any substantial sum towards the costs of legal aid.

10.11 p.m.

Mr. Gordon Oakes (Widnes)

I rise briefly to agree entirely with the hon. and learned Member for Nelson and Colne (Mr. Waddington) and my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones).

It is nonsense today to suggest that a person with a disposable capital of £250 can afford the sometimes massive costs of a legal action. Indeed, by increasing the limit of disposable capital from £125 to £250 the Government—I do not know whether they realise it—are penalising thrift. They are penalising the person who has put away a few pounds in the bank.

In 1947 it was not envisaged that the legal aid service should benefit only those who were on supplementary benefit. Fhe idea was that it should be widespread to help litigants in need of legal assistance on both income and capital grounds.

I should declare my interest as a practising solicitor. Time and again I find that people, more on income than on capital grounds, are denied legal aid. Unless a person is at the lower end of the income scale he must meet the whole of the legal costs of an action, whether it be for divorce, an accident or any one of the many civil actions which take place.

My right hon. and learned Friend welcomed the increase from £125 to £250. I think that the Government have been mean and niggardly. The figure should be at least £500, which is no considerable sum of disposable capital for any person to have today. There ought to be built-in safeguards against inflation. Otherwise in two or three years £250 will be worth the same as £125 today. People ought to be entitled to legal aid to pursue their cases. However, if they have what amounts to only a few pounds in the bank they are denied legal aid.

The Government should have thought much wider in their concept of the amount of the disposable capital that a person may have. I admit that it is disposable, not naked, capital in the bank and that certain considerations are taken into account when deciding on that capital; but it is still far too low a figure.

10.15 p.m.

Mr. Ivor Stanbrook (Orpington)

I also have a reservation about the figures specified in the regulations. We are attacking the problem of the need for legal advice by these provisions. It is all very well to increase the limit from £125 to £250, but for how much longer will we go on setting limits of this kind? Presumably this revision is due not solely to the fall in the value of money but also to the Government's attempt to cover a broader band of need.

The question is whether need is properly measured in terms of income and capital limits alone. No doubt many other hon. Members have been confronted at their weekly advice bureaux by people who want advice about where to get legal aid. Very often the question comes from elderly people, often retired, who have managed to accumulate the asset of their own home but who have little else to live on beyond their pension. To their credit, some have saved a little capital which, being elderly, they do not want to touch. They must consider the future and the fact that the retirement pension has never been adequate to live on and perhaps never will be completely.

As a result, those who have been wise enough to save and have put money by will naturally want to regard it as savings for their old age, for a rainy day. Who knows how long they will need capital for this purpose?

We are wrong to draw the limit so low as to present such elderly people with the dilemma of whether, if their disposable capital is above the limit, they should start on a legal problem which may cost them a great deal, taking most of their saved capital. Often, however, the elderly are the very people who suffer most injustice through legal problems of this kind. No doubt other hon. Members have had to advise elderly constituents to go to a solicitor. Usually, he tells them that because their capital is over the limit neither the old limit nor the new one is at all realistic—unless they can afford to finance the action out of their own pockets they should not go ahead with a questionable case, and certainly they would not receive legal aid. This is quite undesirable.

We should examine the whole principle of drawing a line at all. The £250 limit means that many people, especially the elderly, with small savings will be excluded from these benefits. They should be reassured in their closing years that if they need advice—and these instruments concern advice rather than court action—they can get it without having to dip so deeply into their pockets

The right hon. and learned Member for West Ham, South (Sir Elwyn Jones) referred to the need for publicity for the new limits. There should be equal publicity for the legal advice service itself. So far it is abysmal. It has had to contend with the general distrust of solicitors, with the result that very few people are willing to go to solicitors for advice. We are, perhaps, giving an inducement to those who can bring themselves within the limits by saying that it will not cost them anything and that they can even spend up to £25 without incurring further obligation. But how many people find that that enables them to overcome their reluctance to get into the hands of solicitors? Solicitors themselves ought to put their house in order and do something about making their profession more open and generally more respected by the public.

I have seen some publicity recently given to a graph or scale, at the top of which in terms of public esteem were solicitors. At the bottom of the scale came estate agents and politicians. I wonder whether that scale is entirely accurate when judged by the measure of distrust concerning the profession.

There is a great deal of distrust against solicitors. Much more could be done by the profession as a whole and by the Law Society in particular to redress this grievance. It can be done through instruments such as these, especially if the Government would only see to it that people in need, not measured in terms of money, were able freely to obtain advice whenever they needed it.

Mr. Michael Cocks (Bristol, South)

The hon. Member for Orpington (Mr. Stanbrook) has referred to the recent revelations concerning Members of Parliament and estate agents. I wonder whether he would agree with me that it is rather a coincidence that that poll appeared shortly after a certain meeting. Perhaps a more representative sample could have been obtained if those who were canvassed had had immediate contact with solicitors rather than taking merely the general public.

I am glad to join with hon. Members on both sides of the House in saying what a pity it is that once again we seem to be penalising old people who have throughout their lives practised thrift. Time and again elderly people ask me whether it has been worth while throughout their lifetime to try to put by a little sum for a rainy day. The hon. Member for Orpington mentioned a rainy day. A number of my constituents are living in an area which is liable to heavy flooding after excessive rainfall until a substantial drainage scheme is completed. They are independent, practical people who pride themselves on the fact that they keep back a nest egg to which to turn if disaster should overtake their homes, so that they can put things right very quickly from their own resources.

It is scandalous that a figure of £250 should be set, because these people who by their own efforts are trying to relieve society of burdens are being penalised. Even though the debate is taking place in a sparsely attended House and at a late hour, I hope that the Solicitor-General has listened to the representations which have been made from both sides.

The Solicitor-General

The timid and tentative step, as it has been described by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), is a doubling of the previous figure. We must remember that when we talk of disposable capital of £250, that does not mean simply that a person has savings and other possessions worth £250.

In order to reach the disposable capital figure, the value of the household furniture and effects, articles of personal clothing and tools and implements of trade should be left out of account. As regards an applicant's house, half of tile amount of the value of the dwelling in which he resides or has an interest—after deducting any mortgage or other charge—as long as it does not exceed £6,000, is not attributable when calculating disposable capital. There is discretion for the solicitor not to take into account any sum in respect of the value of the dwelling if it appears to him to be inequitable or impracticable so to do. An applicant does not have simply £250. He has that figure after those other deductions have been made.

The right hon. and learned Gentleman asked me what figure was recommended by the advisory committee. I suspect that he knew when he asked because of the confidence he showed. It was £325, in the same way as a different figure was recommended for the disposable income.

It is right that we should see how these provisions operate. The scheme is not even in effect yet. It does not start until 2nd April. I suggest that it is right to leave it for, say, six months or so to see what happens, how successful it is and how many people, if it is a large number, are being excluded from the scheme by the present limits not only upon capital but upon income.

The hon. Member for Widnes (Mr. Oakes) talked about the massive costs of legal actions. I emphasise yet again that we are not dealing with legal aid for legal actions. That arises under an entirely different situation. The regulations seek to provide advice and assistance up to £25 for those who need it. If they seek legal aid for the purpose of conducting or defending proceedings in court, that comes under entirely different provisions, the assessments are made by a different authority and different principles apply.

Sir Elwyn Jones

Will the hon. and learned Gentleman say on what principle the Government rejected the advice of the Legal Aid Advisory Committee that the figure ought to be £325? After all, the committee was set up to advise the Government and, if I am right in my recollection, Governments normally act upon the advice. What was the principle which led to the cheeseparing decision to reject £325 and to come down on the side of this miserable figure of £250?

The Solicitor-General

It was almost exactly 12 hours ago that I was upstairs answering questions put in exactly the same manner by the right hon. and learned Gentleman with that faintly questioning air that he has, forgetting when he talks about timid, tentative and cheeseparing attitudes that this is a 100 per cent. increase on the 1972 Act and an increase which comes within £75 of the figure recommended by the advisory committee in respect of a scheme which is not yet in operation. It is not unreasonable for any Government to say "Let us see what happens."

I emphasise that the regulations relate to advice and assistance and not the conduct of proceedings in court. It is advice and assistance calculated or estimated to be usually within the range of £25. This is not a fixed figure for all time. Just as the income limits will, no doubt, be reviewed after the scheme has been in force, so will the figure of £250 be under constant attention.

When one hears my hon. Friend the Member for Orpington (Mr. Stanbrook) saying to the solicitors that they must put their house in order, I welcome the assistance to the scheme that has been given by the solicitors. They have gone to a great deal of trouble in preparing for the scheme on 2nd April. Special signs will be made available outside solicitors' offices to indicate to the public that those solicitors are prepared to operate the scheme. They are drawing up forms, training solicitors and going to great lengths generally about the scheme. I regret my hon. Friend's allegation that they have not got their house in order. I suspect that my hon. Friend does not really know just how much the solicitors have done. For my part, I wish to say how grateful we are for all that they have done in anticipation of the scheme to make it work, as I am sure it will.

All that we are discussing tonight is what should be the figure for the disposable capital sum. It is double the previous limit. If it proves to be inadequate, I have no doubt that we shall come back to the House and ask for it to be increased.

Question put and agreed to.

Resolved,

That the Legal Advice and Assistance (Financial Conditions) Regulations 1973, a copy of which was laid before this House on 7th March, be approved.

c1252
1. LEGAL AID AND ADVICE (SCOTLAND) 26 words
c1253
2. ANTI-DISCRIMINATION (No. 2) [MONEY] 81 words
c1253
3. ADJOURNMENT 13 words