§ 11.7 a.m.
§ Mr. John Golding (Newcastle-under-Lyme)
I beg to move Amendment No. 1, in page 1, line 8, leave out 'subject to rules of court'.
No. 2, in page 1, line 8, leave out
'on the taxation or other determination of those costs'.
§ No. 5, in page 1, line 18, leave out 'subject to rules of court,'.
§ No. 11, in page 1, line 18, leave out from 'allowed' to 'sums' in line 19.
§ Mr. Golding
I wish to declare an interest, in that I am an Assistant Secretary of the Post Office Engineering Union and the union, through one of its other Assistant Secretaries—Mr. Brind—has asked me to take particular interest in this Bill.
The reason for this interest is that the union is often involved in litigation and has been very concerned about two aspects of the law. It has been concerned, first, about the problem of litigants in person not getting their costs and, secondly—I shall deal with this later in more detail—with the rate at which legal fees have increased—they have now become exorbitant—the way in which lawyers appear to be developing restrictive practices, and the way in which lawyers by way of attaining political office have themselves absolutely prohibited all reform in the law.
In Committee I congratulated my right hon. Friend the Member for Middles brough (Mr. Bottomley) on introducing 1889 the Bill. The measure is characteristic of my right hon. Friend, who has spent his life in the public service looking always to the interests of ordinary people and the protection of the underdog. It is typical of him that, following his fortune in the Ballot, he has brought forward this Bill, which sides with the case of the little man, the underdog, against one of the great bastions of privilege, namely, the legal profession.
My right hon. Friend's only fault is that he lacks guile. In a sense, it is that lack of guile and, indeed, his too trusting nature to which I wish to refer. He put forward the idea, which had already been argued by the hon. Member for Horsham and Crawley (Mr. Hordern), that litigants in person should be able to get costs in addition to those they were receiving at present. The hon. Member for Horsham and Crawley is not a lawyer, although he committed a sin in Committee since he apologised for not being a lawyer. In a sense, that apology contained a defect, and perhaps one should explore that matter in the present Bill.
I emphasise that my right hon. Friend has been too trusting. I think that the defect in the Bill is that the drafting or wording has been left to the lawyers. The drafting as undertaken by parliamentary draftsmen, and the advice received was that of lawyers. The Ministers involved in the processing of the Bill are Law Officers of the Crown. I have the utmost respect for the three Law Officers. I have worked with them and respect them as men of integrity and great ability. But they are lawyers.
Lawyers have monopolised legal offices in the House. Whereas entry is open to most of the great Offices of State in the United Kingdom, the Law Officers have become the prerogative or monopoly of lawyers.
The position is that two Members of Parliament, who want to improve conditions, set forth with the simple idea of ensuring that people who handle cases for themselves in court, rather than employ the services of lawyers, should receive costs. I shall attempt to show that litigants cannot rely on lawyers at every turn to bring their desires and purposes to fruition. I believe that Lord Halifax once said that if walls had ears they would complain of the lawyers. 1890 Before the Bill becomes law I wish to complain about lawyers.
The Bill is not written in a clear form. It is not clear to anybody who is likely to be a litigant in person. The phrase "litigant in person" is an anachronism. For instance, in Scotland such a person is called the party litigant.
The purpose of this amendment is to probe the phrase "rules of court" and the scope of the courts. Why does not the Bill deal specifically with this point? Why does not the Bill say that if any person does without the services of a lawyer in court he will receive his full expenses and costs? Why are these terms used in the Bill? The answer is that the lawyers grasped that simple idea and decided categorically that, although they were forced to accept the principle, they would ensure that by its administration no harm would in consequence be done to the legal profession.
My right hon. Friend did not think of those words himself. Can anyone imagine him speaking in those terms in his constituency? I believe that my right hon. Friend, who always speaks in a courteous, direct, easy and understandable way, could not possibly have used these words.
Take the vague phrase "litigant in person". When I first read it I thought that it must be yet another of those sinecure appointments to which Government Whips are appointed. It means nothing to me. Only the lawyers would understand the terminology. These are lawyers' words. This is the oldest trap in the world—that set by lawyers for honest, law-abiding men.
§ Mr. Ted Leadbitter (Hartlepool)
Will my hon. Friend indicate, since he is dealing with this important matter, what are his views about the need for full explanatory notes?
§ Mr. Golding
I shall not be led away from my main theme, although I hope that one day legislation will be drafted in such a way that there will be no need for full explanatory notes. I hope that future Bills, whether or not amended in Standing Committee, will be readily understandable. The Bill is strange because some of the expressions used are 1891 unclear, yet it is intended to be understood by those who intend to do without the services of lawyers. That is a pointer to the way in which the lawyers in Parliament have always managed to protect their own professional interests.
I do not say that our laws do not hurt vested groups, because they do. The trade union movement has suffered on many occasions from repressive legislation, as have tenants. One group, however, never suffers from legislation which would adversely affect its occupational interests. One has only to experience the difficulty of getting through a moderate solicitor's (amendment) Bill to appreciate that fact. Of course, if it had been a barristers Bill there would have been no chance of reform.
§ Mr. John Ryman (Blyth)
In his usual eloquent and amusing way my hon. Friend is making a point, but I must remind him of one fact which I hope he will deal with in view of his general slur against the legal profession. The Monopolies Commission is at the moment investigating two references with respect to barristers, and the Senate of the Bar Council has made it abundantly clear that it is most anxious to co-operate with the commission in investigating any practices which might be considered contrary to public interest. Does my hon. Friend accept that perhaps his attack on the legal profession in general, while amply justified in respect of solicitors, has no foundation in respect of members of the Bar?
§ Mr. Golding
I simply recall the words of John Gay:I know how lawyers can with ease Twist words and meanings as they pleaseI might be impressed with my hon. Friend's argument when I have seen how lawyers in this place respond to any recommendation of the Monopolies Commission. I shall want to know first about the background of the advisers to the commission. I would certainly not accept my hon. Friend's example as illustrating the reforming zeal of barristers without further examination. It would be stretching people's imagination to ask them to believe that legislators in this House who are members of the legal profession would want to see a reform.
It is revealing that the Law Officers of the Crown are monopolised by barris- 1892 ters. I can see no reason why the offices of Attorney-General and Solicitor General should be held only by those who are members of the legal closed shop. In this way the legal profession can ensure that legislation affecting it does not harm it in any way.
I declared an interest earlier. That is a marginal and minimal interest compared with the interest of my hon. Friend the Parliamentary Secretary to the Law Officers' Department. It is minimal compared with that of the Attorney General and the Solicitor-General, who in their official capacities are the leading members of the Bar.
§ Mr. Golding
The brief I received from the Library certainly conveys that impression, but it could be wrong. I shall look at the point and verify the reference, but that is my advice.
The subject of the rules of court has become very important in this Bill. In Committee, which took only a morning, there was great confusion about precisely what would be the benefits of the Bill to the litigants in person. There were quite substantial differences of opinion among the legal members of the Committee about how those responsible would deal with claims. As I said in Committee, it is most important that we should know precisely what the situation is. We had to appeal to the Government very strongly in Committee to sort the situation out.
On that occasion my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) said that to make certain what the actual costs to be met were there should be informal discussions before Report. He said:May I suggest that in order to remove any doubt about this"․that is, concerning what rights the taxing master has and how he would behave․—because it is bad if Bills pass through Standing Committee leaving some doubt as to how they are to be interpreted if that doubt can he removed—it might be possible for the Parliamentary Secretary to consult the rule committee between now and Report, however brief that period may be, to ensure that they would interpret the provisions in the manner in which he understands it".At that stage the draftsman and advisers at the back of the room were 1893 shaking their heads like sheep in the wind, and that prompted my hon. Friend to continue:I see that the various legal luminaries in the room are all shaking their heads at the impropriety, I presume, of doing this. It cannot be a shortage of time, because telephones were invented a considerable time ago. I cannot see that there would be any impropriety in saying to the people who have to interpret the statute 'This is how we think you would interpret it, and this is how the Committee wants you to interpret it. Is this, in fact, how you would interpret it?'I have always understood that in English courts it is not proper for courts or other institutions to take account of what in diplomatic language are called the travaux préparatoires, namely, our discussions in deciding how words should be interpreted, that only the words themselves must be considered. But I do not see that that should stop the Minister consulting the rule committee between now and Report to make absolutely certain that this is the way that they would see themselves interpreting these provisions. If that is a change from previous practice, the House of Commons has on the whole improved things by changing and it is something that ought to be encouraged, not discouraged.11.30 a.m.
What has my hon. Friend done about that suggestion? What precisely has happened? Has the Rule Committee been consulted?
Following my hon. Friend the Member for Islington, South and Finsbury, I said:I am not happy to leave it to some later interpretation by the rule committee. If it is not clear—and that I am not sufficiently qualified to say—I want a clear indication put into the Bill itself."— [Official Report, Standing Committee C, 26th March 1975 cc. 17–18.)I am pleased to see that the Parliamentary Secretary is consulting his officials. If he has not yet consulted the Rule Committee, and. perhaps having authority now from his officials to do so, I would excuse him were he to rush out and use the telephone, as my hon. Friend the Member for Islington, South and Finsbury so judiciously advocated.
§ The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)
I should be quite happy to rush out, but I do not want to deprive myself of listening to my hon. Friend's speech. It would be impossible for me to do both. My preference at the moment is to stay and listen to my hon. Friend's remarks, which I find very interesting.
§ Mr. Golding
I hope that after I have concluded my remarks and a less non-learned Member speaks my hon. Friend will take that advantage. If he has not yet used the telephone, I hope he will use it to get on to the Rule committee to get an answer for my hon. Friend the Member for Finsbury, South and Islington, who was so disturbed about the matter in Committee. All was sweetness and light on that morning, because we thought that the Minister would leave the Committee Room at 16 minutes to twelve o'clock and use the telephone to institute the consultations which do not appear to have taken place.
I am being severe with my hon. Friend. My experience on several Bills on which I have worked with my hon. Friend is that he is hard-working and conscientious and deals with them well. Despite the fact that he is a lawyer, my experience has been that he could always be relied upon. But my suspicions were aroused when I read yet again the proceedings in Hansard on Second Reading of the Bill on 14th February 1975. Incidentally, on that day my hon. Friend, when introducing the Bill, thought it appropriate that it should be introduced on Valentine's Day—loving day. My hon. Friend should have realised that it was the Valentine's Day massacre—the massacre of the innocent man wanting to do good by the lawyers. But I will pass from that point.
This whole question of the stranglehold on expenses by the lawyers was passed over at the end of a long, detailed and excellent speech by the Parliamentary Secretary. He said:it is not possible for me to say that the Bill will allow the litigants in person to recover this, that, or any particular sum.My hon. Friend could not tell us what benefits would accrue to people from the Bill.
§ Mr. Speaker
Order. I have been very patient with the hon. Gentleman, but he is not entitled to make a Second Reading speech when moving an amendment on Report. If he would restrict himself to the amendment, we might get on.
§ Mr. Golding
You have been very patient, Mr. Speaker. This is on the point of the amendment. We want the principle of the Bill. We want people to 1895 be able to act in courts and to get their costs. It is an acceptance of the principle on our part. However, we do not like the lawyers controlling the way in which those costs are determined. I think that this is a Report stage point. The question is how the principle shall be applied, how it shall be controlled and who will decide what costs should be allowed. If I were discussing the principle of the Bill, I could see the force of the argument. But it was on a detailed Committee point that we gave notice to the Minister that we were not satisfied. We asked about the Rule Committee on a detailed amendment in Committee.
The Parliamentary Secretary said:The Bill introduces the principle that litigants in person may recover costs in respect of expenses incurred or work done in relation to proceedings.…The detailed working out of what the litigant in person will actually receive and the sums he will receive are left to be decided by rules of court, and I think that the House will agree that that is right."—[Official Report, 14th February 1975; Vol. 886, c. 817.]In Committee we said that it was not right. We pressed my hon. Friend on this matter. Is it right that the rules of court will decide? This could be a point of contention between us. We accept the principle of the Bill and support it very strongly, but we challenge the right of lawyers to have this stranglehold on the expenses of going to court. Lawyers have put a stranglehold on this House. It is intolerable that one profession, with its 108 Members of Parliament, its three Law Officers, and its Lord Chancellor in the Cabinet, can stop us from getting an improvement in the law. If we were dealing with restrictive practices—if there were any—among Post Office engineers the whole force of the House would be brought to bear against them and it would be left to my hon. Friend the Member for Westhoughton (Mr. Stott) and myself to stand up to the solid weight, as we have to do now, of 108 lawyer Members of Parliament with all their influence, the Law Officers and others. We think it is intolerable that the taxing master, or whoever he is—and I shall come to him in a moment—should determine what costs our members will get, because the decision will not be based on equity.
1896 The Parliamentary Secretary went on to say:In England and Wales it will have to be decided by the Supreme Court Rule Committee and the County Court Rule Committee. In Scotland and Northern Ireland the rulemaking authorities will also have to consider this question, and I am grateful to my right hon. and learned Friend the Lord Advocate for relieving me of possibly having to explain the Scottish position, which I should be totally incapable of doing in any case.The next paragraph shows the arrogance of the profession when dealing with non-learned members and members of the public. It shows the way in which members of the legal profession have on all occasions tended to get us to accept the payment of higher legal fees than should be paid. My hon. Friend said:The question of costs is, of course, highly technical.If someone does not want to blow the gaff, if he does not want members of the public to understand anything, if he does not want the mysteries to be brought into the light of day, if he wants to continue to line his own pocket, what does he do? If he presents a client with a bill and is asked "Can you tell me how this bill is made out?" the thing to do is to reply "This is too complicated", or "You would not understand it. It would take too long to explain, what with VAT and all that".
What does the Parliamentary Secretary, speaking in his capacity as an able assistant to those two leading members of the Bar, the Attorney-General and the Solicitor-General, say when we ask him what our members will get? His reply is:The question of costs is, of course, highly technical. I am sure that hon. Members will realise that in these rule-making authorities one has the necessary expertise and experience to decide these matters.Expertise? It is all about lolly, about pounds and pence, about who gets what, when and how. It is not a matter of expertise to determine whether a bloke will be paid if he has helped to prepare his case in leisure time. That is lolly. It is not a matter of expertise to work out the cost of travelling by bus from Newcastle-under-Lyme town centre to the Crown court at Hanley. That is not a technical matter. It may be a technical 1897 matter for the Minister, but if it were up to me I should ask a bus conductor.
I cannot see that the question of costs is technical. It is an argument of white wash. It is the witch-doctor technique, of keeping the mysteries of the craft. It is the masonry of the professional world. When dealing with these technical subjects, does the taxing master, wearing a long wig, sit before an IBM computer?
§ 11.45 a.m.
§ Mr. Golding
I am glad to hear that, and perhaps this is one subject on which I can be enlightened later.
The Minister went on to say:It is not possible, therefore, for me to say anything in respect of my right hon. Friend's comments on the work done in leisure time, other than that if the Bill becomes law this is a matter that the rule-making authorities will no doubt consider and that I am sure we shalldebate, probably at length—"—Now comes the most touching sentence of all—I have no doubt that if there are lawyers on the Committee,"—If there are lawyers on the Committee! For the first time in the recorded history of this House every lawyer Member was in attendance at that Committee by half-past ten. It was a world record of attendance by lawyers at a Committee of this House, but there it was. My hon. Friend said:I have no doubt that if there are lawyers on the Committee,"—and then he gave the game away—as there will be"—Surprise, surprise, they got the Whip—it will be at length—in Committee."—[Official Report, 14th February 1975; Vol. 886, cc. 817–88.]In fact, we did not have that debate at length, because the Government were not able to answer the questions that we put. We shall put the questions again this morning when we get to the point. It is of paramount importance to us, though it may not be to lawyers, to know what the Bill means in terms of costs for our members, what they are entitled to under it, and what they are not entitled to.
What we find intolerable is that we should pass a Bill which says that our members, our contituents, our electors 1898 and the public may have costs but these will be determined by a group of, I think—I do not know—lawyers, and there are, of course, others involved in the legal profession elsewhere. It is that aspect of the Bill which we resent and to which we are opposed.
Why is it that we are opposed to this provision? There was some confusion about this on our side of the Committee. My hon. Friend the Member for Bolsover (Mr. Skinner) thought that the consequence of leaving this to the Rule Committee would be that litigants in person would be more adequately recompensed than perhaps they would otherwise be. His argument was that the Rule Committee—if it is the Rule Committee that does this—would try to establish that the litigant in person was well paid and, indeed. to make certain that there was no cutting of the rate for the professional barrister.
My hon. Friend cited the analogy of the high television fees paid to some of my colleagues when they appear on television. The fees are high not because of the value of their performances, which are often questionable, but because others in the television world have decided that if they were to allow these talkative Members of Parliament to appear on the screen at five bob a time they would lose their employment prospects.
The argument put forward by my hon. Friend the Member for Bolsover․I an sorry that he is not here to put it himself․is that high fees would be that outcome if we allowed an internal committee of lawyers and those involved in the law to settle the costs. If that were so, it would be unfair to the person fighting the litigant in person. We must look at both sides of this question. Not only must we be fair to the litigant in person but we musst make certain that he does not get more than he is entitled to becausewhatever he gets will be paid by the person on the other side.
My view, however, has been contrary to that of my hon. Friend the Member for Bolsover. The view which I put in Committee was that if we left it to the Rule Committee, the members of the committee being lawyers, would act at once if they saw any growth in litigation by ordinary individuals. Let us talk in plain language. If people found that they could get better results in court by putting their own case properly instead of having it 1899 badly put by young lawyers, and they were encouraged by the knowledge that they stood to lose very little by it, or even stood to gain, the lawyers would soon act. They would say "Let us fix the rules so that it will not pay people to do that. Let us kill the principle of the Bill. The Bill says that people shall have their costs, but it is left to us to fix the details and technicalities. We are dishing out the lolly, and we can fix it". They are devious men, and they would at once start to reduce the level of expenses so that the word got round that litigation in person was not worth doing after all.
One thing has been quite certain right from the sixteenth century. I shall not give all the examples, but the evidence for the rapacity of lawyers is well known. From the sixteenth century, the legal profession has been seen as the paramount profession for greed in relation to its customers. Here is just one quotation from Barton Holyday, whom not everyone reads nowadays:A man may as well open an oyster without a knife as a lawyer's mouth without a fee".That is not a particularly apposite quotation nowadays, of course, because the only people who can afford oysters are lawyers.
There is ample evidence showing how lawyers, by their various practices, have ruled themselves out of court as people qualified to determine costs to be awarded in the courts themselves.
§ Mr. Sydney Bidwell (Ealing, Southall)
Before my hon. Friend comes to the second part of his speech—I do not want to put him off his planned approach to this matter—I must ask one question to have the matter clear. Perhaps I should say that I heard the beginning of his speech, and then I popped out to the Library to look up what "litigant" meant. I can tell my hon. Friend what it means later on, since he seemed a bit confused.
Was my hon. Friend arguing the trade union principle of the rate for the job? Does he say that it should be the rate for the job for the litigant conducting his own case and that he should have exactly the same fee as the lawyers have?
§ Mr. Golding
I am in difficulty on this argument. In my view, the litigant should 1900 be given a fair sum in relation to his case. It is difficult to determine what the rate for the job is in legal terms. In the first place, there is in the legal profession no straightforward rate for the job as those of us in the trade union movement know it. Whereas it is impossible for us, for example, to agree to do a job, not do it, and then get paid for it, lawyers have this buttoned up. They have one restrictive practice after another.
I asked the Library to give me a brief letter on the iniquities of lawyers, and I received a parcel by way of response. For instance, there was an article—I shall not read it because that would be improper—in the Sunday Times of 27th October 1968. It was headed "The Lawyers' Pound of Flesh". I see my hon. Friend the Member for Hartlepool (Mr. Lead bitter) nipping out of the Chamber, and I assume that he is rushing off to get it. It dealt with some of the problems, and these are the headings of the various sections․The fee for work not done.The fee for work not bargained for.The unqualified master of the fees".․who is the barrister's clerk.The counsel the client does not want.Work a barrister may not touch".The article deals with the iniquitious way in which legal people have carved out for themselves lucrative incomes not on the basis of the rate for the job but on the basis of how the customer can be exploited and how much can be extracted from him. That is the lawyers' principle.
I see that my hon. Friend the Deputy Chief Whip has come to harass me, but I must tell him that we have yet to draw attention to other reasons why the Rule Committee should not determine the costs, and why I shall wish to press my amendment to have those words deleted.
I draw the attention of my hon. Friend the Minister to an argument which took place on a Bill in relation to which he was very influential on the Standing Committee—the Fair Trading Bill. On 12th April 1973 my hon. Friend the Member for Swansea, West (Mr. Williams) made one of the finest speeches ever made in a Committee of the House, and I think that my hon. Friend the Minister was in attendance that day.
1901 My hon. Friend the Member for Swansea, West drew the attention of the Committee to an article by Robert Millar in the Daily Express of 29th January, and he quoted from it because, he said, it epitomised to some extent public feeling on this matter. This is the quotation:
I do not go all the way with Shakespeare when he said: 'The first thing we do, let's kill all the lawyers'.I agree that there must be no slaughter, no resort to physical violence. Robert Millar went on to say:But I must admit I am often sorely tempted. Over the past few years, I have read thousands of heartbreaking letters from ordinary people caught up in the clutches of our legal system. They convince me that in no other sphere of British life can the individual be treated with such timeless callous indifference…the legal profession is a giant monopoly determined at all times to take ruthless action against anyone trying to muscle in on its preserves."․[Official Report, Standing Committee B, 12th April 1973; e. 1321.]There can be no doubt about that.
My hon. Friend drew the attention of the Committee to a book called "Conduct and Etiquette at the Bar". Under the heading "The General Principles Governing Practice" it says:
It is the spirit and tradition of the Bar that counsel is separately instructed and separately remunerated by fees for each piece of work done, it is not permissible for counsel to undertake to represent any person, authority or corporation in all their Court work for a fixed annual salary.My hon. Friend, backed by the present Minister, said that if that was not a restrictive practice he had never come across one. The paragraph says that as a general rule:In so far as contentious business is concerned, neither before nor after litigation should a barrister act or advise without the intervention of a solicitorIf a boiler maker, with his chalk—
§ Mr. Speaker
Order. I have certain responsibilities under Standing Order No. 22 with regard to tedious repetition. The hon. Member has taken so far about 55 minutes. If that is not clear, let me remind him of what he once said when I commended him for making a short speech.
§ Mr. Golding
For the benefit of the House, I would explain that because the House may be curious. On that occasion 1902 I said that I was always capable of making a short speech if I knew what I was talking about. There is no exception in this case. However, it has been my experience that there is no Standing Order—thank God—that demands that a Member knows what he is talking about before he speaks; otherwise we should have a much shorter working day.
§ Mr. Speaker
Order. May I help the hon. Member? It is not a question of the hon. Member knowing what he is talking about; it is just a question of tedious repetition.
§ Mr. Golding
Can you advise me, Mr. Speaker, because I do not want to leave anything out of my speech, whether we are taking Amendments No. 4 and No. 7 with this group of amendments?
§ Mr. Golding
I shall, therefore, have the chance to deal with some of those topics later, because, obviously, Mr. Speaker, you want me to he as brief as possible.
Am I right or wrong in assuming that the Rule Committee consists of lawyers? You may have gathered, Mr. Speaker, that I have a certain prejudice against lawyers. It would certainly reassure me to be told that the Rule Committee does not consist of people with a financial interest in this matter.
I should like to know all the members of the Rule Committee, their experience, their professional standing and qualifications and the social class to which they and their fathers belong. How many of them are there? What particular area do they cover? In what way are technicalities involved? What are the difficulties of calculation?
§ Mr. Speaker
Order. We have had all this several times and I shall soon direct the hon. Member to conclude in moving his amendment.
§ Mr. Golding
What alternative arrangements could be made for the determination of costs? Could the Minister say what expenses witnesses will be allowed and whether expenses are likely to be increased at any time? Who is the taxing master and to whom is he responsible? Is there no hope of getting a change in this title, because it will deceive 1903 the ordinary layman, for whom the Bill is intended?
The amendment refers to thetaxation or other determination of those costs".This is a technical use of the word "taxation". Ordinary people understand the word "taxation" to mean the amount that the Chancellor of the Exchequer takes from them.
While you, Mr. Speaker, have been consulting the Chief Whip, I have turned from the amendment relating to rules of court to that relating to "taxation or other determination".
§ Mr. Speaker
Order. I am quite capable of talking to the Chief Whip and also hearing what the hon. Member says. I was listening to him.
§ Mr. Golding
I am just trying to be helpful, Mr. Speaker.
It is archaic and, in the eyes of ordinary people, misleading to use the word "taxation" in a technical sense in this context. They will not know that "taxation" is being used in the sense of "assessment". They will think—and here I am in danger of tedious repetition —that it relates to the sums taken from them by the Chancellor of the Exchequer.
Who appoints the taxing master? To whom is he responsible, and who pays his salary? How much does he receive, how is he paid, what are the terms of his office and how can he be removed? If he takes a decision that I do not like in relation to one of my constituents, what can I do about it? Can I report him to the Parliamentary Commissioner? I doubt it. If the answer is in the negative, perhaps the Minister will tell me why, as a Member of Parliament, I should approve a Bill giving the taxing master this power? Why should I endorse his power?
I did not intend to speak for so long, but I got carried away by the importance of the subject. I sit down hoping that the Minister has sound answers to my questions, and I hope that the House receives satisfaction.
§ Mr. Arthur Bottomley (Middlesbrough)
At the commencement of his speech my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding) 1904 made some generous references to myself, for which I thank him. However, he implied that because of my kindness and gentility I might lack guile. I suggest that the Bill perhaps shows that that is not so. I managed to get five lawyers to append their signatures to the Bill. At first sight it would appear as though they were doing something against the interests of their profession, but I was able to convince them that my Bill was designed to remove an injustice.
The injustice was that a lawyer could go to court on behalf of a client and, as a result of fighting his case, get expenses. If for some good reason a person decided that he did not want legal advice and went to court on his own to fight his case, he would not be able to claim expenses. The lawyers are co-operating, because my Bill will give laymen the same privileges that lawyers enjoy.
If the amendment were accepted, the layman would be put in a privileged position and would get terms superior to those which a solicitor or a barrister can get. For this reason, I have to resist the amendment.
My hon. Friend also said that the Bill clearly was not drafted by myself. I readily acknowledge that. Indeed, I am grateful to the Consumers' Association in particular, and its lawyer, David Tench, who gave me much assistance, and to the Lord Chancellor's Department for its assistance.
I want that kind of assistance and expertise. When I first became a junior Minister, I said, like my hon. Friend I do not want all this legal jargon. Why is not the Bill drafted in a form which a layman can understand? I will show you how to draft a Bill" I drafted a Bill on my own. When I took it along to the parliamentary draftsman, the lawyers and others who had to examine it were able to show me that there were so many pitfalls in it that people would never have accepted as just what it sought to do.
I therefore hope that my hon. Friend will bear with me and support the Bill as it is and not press the amendment.
§ Mr. Ryman
I strongly support the idea behind the Bill. I congratulate my right hon. Friend the Member for Middlesbrough (Mr. Bottomley) on introducing it.
1905 I shall deal shortly with some of the matters which were dealt with so charmingly and amusingly in the very able speech of my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding). He was right in saying that the language of lawyers is esoteric and not easily understood by laymen. I should welcome any move to remove much of the traditional waffle and mystique that surrounds some of the most absurd practices in the legal profession—and there are many.
On the other side of the coin, I must point out that the legal profession, particularly under the encouragement of previous Labour Governments, has already made enormous progress in this direction. It was Mr. Attlee's Labour Government between 1945 and 1951 that introduced the Crown Proceedings Act 1947 and the Legal Aid and Advice Act 1949. It was Lord Gardiner, when he was Lord Chancellor in the Labour Government of 1964, who introduced a whole host of measures in various departments of the law—the setting up of the Law Commission itself and the establishment of a large number of committees to make recommendations in many aspects of the law. That brought about the first huge comprehensive review of various legal subjects with the object of making the law more intelligible to ordinary people.
I want to deal with the vexed questionsubject to rules of court".My hon. Friend asked the Law Officers who are the members of the committee which produces the rules of court. I can tell him that they are all very distinguished lawyers themselves. He asked whether they have the traditional legal training. The answer is that they have. He then asked whether that meant that they had a built-in bias against those for whom they are, in effect, laying down rules.
I take the point. My answer to my hon. Friend is that experience has shown that rules of court are very complicated; they are the subject matter of much litigation, and it is quite impossible to expect Parliament to prescribe in advance precisely all the situations which might arise on a taxation.
The comments my hon. Friend made about the legal profession contained many half-truths. I can match any of 1906 his quotations. Dr. Johnson once said that hedid not care to speak ill of any man behind his back but he believed the gentleman was an attorney.There are many other such quotations.
One of the reasons why the legal profession is often in such odium is, I regret to say, the unsavoury practices of many members of the solicitors' branch of the profession with whom the ordinary members of the public first come into contact. There is a strong case for having a comprehensive inquiry into the solicitors' profession. I understand that there is legislation in the pipeline attacking, for example, the solicitors' monopoly in conveyancing matters, and that there are other ideas in the pipeline for reviewing the rights of audience by solicitors and members of the Bar before various courts.
The legal profession is conscious of these criticisms and has already done a good deal to put its own house in order. At a time of high inflation and continuing rises in wages in all walks of life, the Bar is the only profession which has voluntarily reduced its fees in the last few years by the abolition of the two-thirds rule and by the effective abolition of the circuit system, which means, in effect, that the necessity to have a junior from the circuit and the customary kite fee has gone out of the window.
Those were clearly restrictive practices, which could not be justified in the public interest. It is to the credit of the organisers of the Bar that they have recognised this and have voluntarily, with out any form of legislative interference, abolished those practices.
I recognise that there is a great deal more to be done. I should be interested to hear the Minister spell out the Government's ideas. Speaking as a new Member and as a back-bencher who before coming here spent many years at the Bar, my impression is that whenever we have a Labour administration there are abundant ideas and many excellent reforms in the doctrines of law, whether in personal injury law, criminal law, or anything else, but little—if any—reform takes place in the organisation of the legal profession, the judiciary, and the legal system in general, many aspects of which 1907 require substantial reform in the public interest.
I hope that this Lord Chancellor, like the one in the last Labour administration—Lord Gardiner—will make it a fundamental hallmark of his administration to encourage substantial law reform, particularly with regard to the organisation of the system and the profession.
Various scurrilous attacks were made by my hon. Friend the Member for Newcastle-under-Lyme on the integrity of taxing masters and other court officials. Those attacks were thoroughly unfair, and without justification. He asked various rhetorical questions—for instance: who are the taxing masters? The answer is that they are, without exception, highly experienced practitioners, appointed by the Lord Chancellor, on a fairly modest salary. My hon. Friend asked what is the power to remove them, and I suppose the answer would be that the Lord Chancellor can remove them if there is any question of misconduct or negligence.
Another question was: what remedy has a constituent against the decision of a taxing master? I suppose the answer is that there is a straight-forward right of appeal to another tribunal. Here my hon. Friend has made a good point, at last, because it seems to me that the question of costs is, in effect, unappealable effectively. Although the remedy exists, in practice experience has shown that it is well-nigh impossible for a dissatisfied litigant to appeal successfully on the question of costs, because he is always met in the Court of Appeal or the appeal tribunal by the argument "the matter of costs is one of discretion for the taxing master or the judge at first instance. We are not going to interfere with the judicial exercise of discretion, provided that it has not been unreasonably exercised."
I want to say a word about one of the comments of my hon. Friend on the question of the yardstick that is to be used in the assessment of costs in this or any other kind of litigation. He asks quite fairly and understandably on what principle, if any, is the time spent by a litigant in person to be assessed by a taxing master when it is decided what amount of money the litigant in person 1908 shall recover by way of costs. In my judgment, the question of yardstick here is very difficult. Practitioners are only too familiar with the individual idiosyncrasies and quirks of certain taxing masters. If one goes to one taxing master one receives a certain sum of money by way of costs. If one goes to another taxing master, who has done exactly the same amount of work, a different sum is awarded.
At long last my hon. Friend the Member for Newcastle-under-Lyme stumbled, almost by accident, on a good point and a valid criticism of the taxing system. I suggest that the Government should consider some form of prescribing uniformity of costs in those cases. By all means give the taxing master discretion, but that discretion should be based on some sort of scale. For example, in another field of law—road traffic offences—the Lord Chancellor and the Lord Chief Justice have recently approved a table of suggested penalties to be imposed by magistrates. It still allows them a discretion to fix penalties according to the facts of the case and the antecedents of the defendant, but it is some yardstick. I suggest that in this sort of situation it might be useful to make available a yardstick of that kind.
We on the Government side of the House, and, I am sure, all fair-minded people, would welcome any legislation to make the law fairer and to put the litigant in person in a comparable position to that of the person who is represented by a lawyer. I apprehend that over the years the number of litigants in person will increase and not decrease. Why is that? Why are there more litigants in person now than there were? I do not know whether there are any reliable statistics, but, looking around the courts from time to time, one cannot help noticing that there are many litigants in person, and it is absolutely fundamental that they should have the same rights before the law as do litigants represented by lawyers.
I believe that one of the reasons why there are more litigants in person is dissatisfaction with the legal profession. I think we have to recognise this fact. There is profound dissatisfaction with the legal profession, particularly with solicitors. In the last two or three years many actions for negligence against solicitors 1909 have been heard in the courts. Most of those cases reveal only the tip of the iceberg. No solicitor welcomes that sort of situation and, through his insurance company, will do his best to settle such a case long before it comes to the court.
One has the impression that there is a good deal of this type of litigation about, and from letters that one receives from constituents one knows that many people have had the most unfortunate experiences with solicitors. They may have been unlucky. The case that they have taken to the solicitor may have presented unusually difficult problems. But I get the impression—I have talked to other Members who have had the same impression—that there is considerable disillusionment among ordinary men and women at the ability and diligence of many firms of solicitors. I think this is a deplorable state of affairs, and I welcome the move by the Lord Chancellor and the present Government to introduce and expand the Neighbourhood Law Service, which has done—
§ Mr. Speaker
Order. I do not think we can deal with the Neighbourhood Law Service on this amendment.
§ Mr. Ryman
I am grateful, Mr. Speaker. I was giving that as an illustration of the healthy tendency, these days, to fill up the gap in the performances by solicitors.
I return to the amendment. The point is also made by my hon. Friend the Member for Newcastle-under-Lyme that the word "taxation" is confusing. He says—the point is easily demonstrated—that "taxation" has the sort of conventional meaning whereby a person thinks that he is going to have money taken away from him by the Chancellor of the Exchequer. I have considerable sympathy with my hon. Friend on that point. As I said before, I am in favour of cutting out the mumbo-jumbo and waffle that one finds in legal documents.
On the other hand, I want to protect as precisely as possible the rights and safeguards related to litigants in person. As the system stands at the moment, it is essential to retain those words in this provision, because without the words complained of by my hon. Friend the provision becomes meaningless. The remedy which we seek to give to liti- 1910 gants in person will not exist if we remove these words.
§ Mr. Golding
Has my hon. Friend noticed that the Parliamentary Secretary to the Law Officers' Department has taken my advice that when the speeches were less effective he should make his telephone call?
§ Mr. Ryman
I have noticed the Parliamentary Secretary's absence from the Chamber. However, that is not consistent only with him making a telephone call. It may be due to other circumstances. I remind my hon. Friend the Member for Newcastle-under-Lyme that the suggestion made in Committee, which he welcomed, about consultation between members of the Rule Committee and the Law Officers, was endorsed by myself during the Committee stage of this Bill, when I said:There is nothing to be lost, and possibly something to be gained by informal discussions with the rule committee, just as the Law Officers and the Lord Chancellor's Department frequently discuss proposals with senior judges before they are brought forward in legislation in order to gain the general views and reactions of the judiciary without in any way committing it.—[OFFICIAL REPORT, Standing Committee C. 26th March 1975; c 20.]I endorse his suggestion. I am all in favour of Law Officers using telephones, and I am all in favour of their speaking to the members of the Rule Committee generally.
My hon. Friend made a number of comments about the Law Officers. Years ago, if the biographies are right, distinguished lawyers sometimes became Members of Parliament at considerable financial sacrifice, and they were able to lend their legal experience to the House. The position today is often very different.
§ 12.30 p.m.
§ Dr. Keith Hampson (Ripon)
Is it in order, Mr. Deputy Speaker, for the hon. Gentleman to continue like this? Is his speech within the terms of the amendment? Many hon. Members are waiting for the next Bill to come before the House.
§ Mr. Deputy Speaker (Sir Meyer Galpern)
As the hon. Member will know, I have just taken the Chair. I gather that the hon. Member for Blyth 1911 (Mr. Ryman) was replying to a point raised by an hon. Gentleman who had already taken part in the debate. I shall have to wait and see what happens.
§ Mr. Ryman
I was answering points made at inordinate length by my hon. Friend the Member for Newcastle-under-Lyme who took over an hour to make them. I have been on my feet for about 15 minutes. I hope that the hon. Gentleman will forgive me if, in the space of 15 minutes, I have not yet had an opportunity to deal with points which took over an hour to make—points which to many Labour Members are extremely important to the public, even if they are not important to the hon. Gentleman. Nothing is more important than the fair administration of the law—the fair administration of justice—especially where unrepresented ordinary people are concerned.
§ Mr. Golding
The hon. Member for Burton (Mr. Lawrence) said in Committee:I am sorry that I appear not to have understood, by virtue of my youth, innocence and inexperience, that perhaps the best way of achieving my aim.…"—[0fficial Report, Standing Committee C, 26th March 1975 c. 4.]Does my hon. Friend agree that if we want to revise legislation we must intervene at the appropriate time, and that the failure of other hon. Members not to intervene at the appropriate time cannot be attributed to us?
§ Mr. Ryman
I agree with that broad proposition. This is a matter of fundamental importance which affects all ordinary men and women. We all come into contact with the law, whether we like it or not, at every stage in our lives. Lord Birkett, who, as Sir Norman Birkett, was one of the most distinguished members of the Bar and a Liberal Member of the House for a relatively short time, said that every ordinary man and woman came into contact with the law the moment he or she turned on a bathroom tap. Whether it is legislation to do with housing, health, rents or road traffic, we come into contact with the law long before we come into the realms of criminal or matrimonial law, or administrative law, or planning law. Therefore, ordinary working-class men and women will be vitally affected by the provisions of the Bill, and it is important to consider it in great detail.
1912 Before the intervention of the hon. Member for Ripon, I was speaking about the Law Officers, about whom my hon. Friend the Member for Newcastle-under-Lyme, spoke at length. My hon. Friend made a most serious allegation, saying that there was a built-in prejudice and bias in the legal profession, which sought, through its membership of the House, to preserve a closed shop and a vested interest in the enactment of new laws. That was a totally irresponsible and unfair slur upon the legal profession generally.
I take the point that there are individual black sheep in every profession, and that there are individual examples of culpable behaviour in the solicitors' profession and at the Bar, just as there are in the Church, the Services and other professions. However, to make such a general slur and to reinforce it by obscure articles from obscure newspapers such as the Sunday Times and the Daily Express is going too far. This is a serious subject. We have been treated to an entertaining but thoroughly frivolous and mischievous speech by my hon. Friend.
I wish to revert to the serious point raised in the Bill, because fundamental rights of ordinary people are involved. It is nonsense to make cheap forensic points about lawyers when such important issues are at stake.
If the amendment succeeds, the whole subsection becomes absolute nonsense. The purpose of the subsection is to ensure that a litigant in person will enjoy the same rights, financially, as a person who is not legally represented. It was once said that justice was open to all, like the Ritz Hotel—that there was one law for the rich and one law for the poor. Unfortunately, in many circumstances that dreadful anomaly has not been cured, although great credit is due to successive Labour Governments for introducing legal aid and advice legislation which has enabled legal aid to be given to ordinary working-class men and women who had not enjoyed it hitherto.
However, there is a great deal more to be done. The Bill is another step in a great tradition of law reform. I wholeheartedly support it, and oppose the amendments.
§ Mrs. Millie Miller (Ilford, North)
Interest in this subject has been building 1913 up for a considerable time. Because of my concern with the matter when I was a member of the Consumer Council I am anxious to join in the debate, partly to express my support for the intention behind the Bill, and partly to support the amendment.
I find myself in a difficult position in relation to my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding), because I am suspended somewhere between the hon. Members and the hon. and learned Members of the House. In relation to the administration of justice. as a justice of the peace, I might be said to be sitting on the fence, with one leg either side of it—a singularly uncomfortable position.
§ Mrs. Miller
I was speaking only of my gymnastic performance in relation to the points made in my hon. Friend's speech.
I am particularly concerned about the point which the amendment seeks to make about the way in which costs are determined when a litigant represents himself in the county court. As long ago as 1968 the Consumer Council carried out an important survey in seven county courts, as a result of which it published an interesting report entitled "Justice out of Reach". It presented a case for the small claims court.
Since then a great deal has happened. Legislation has moved on. The county courts have been reformed to a great extent, to make it easier for small claims to come before them and for people to represent themselves. In the view of those who carried out the survey on behalf of the Consumer Council, the greatest problem in pursuing these matters in the courts was expense. Difficulties arose because solicitors were unwilling to take up the small claim, as they could not see a successful financial outcome. Therefore, the opportunity arose for litigants to represent themselves in court.
However, it is plain to most lay people that the expenses which can be incurred are not always easily definable—perhaps not even as easily definable as those of members of the legal profession. A great deal of time can be expended by an individual in trying to find suitable backing
1914 for a case which he wishes to make in court and in doing research on his own account in order to put his case before legal luminaries. I remind hon. Members of the fear of most people about going into a court and speaking in support of their case and of the trouble to which they need go to ensure that they are able to present it effectively. Often they go to court to try to avoid a wrong being done to them financially or to claim financial redress for a wrong which has been done to them. For the lawyers to be able to make a decision about the value of their costs adds to their disadvantage.
There is great opportunity for a litigant to appear in court and present his case. I invoke my experience as a justice of the peace in saying that I had a great deal of sympathy with some of the remarks of my hon. Friend the Member for Newcastle-under-Lyme about the quality of representation in the courts which is sometimes available to a person. Often a junior law representative in the courts would make a better case. However, if a litigant wishes to speak on his own behalf, it is essential not only that he should have the protection of the law but that he should not be subject to such financial loss in making his case that even if he wins he is still seriously disadvantaged.
My purpose in speaking is to plead that serious consideration be given to the way in which costs are determined. I do not perhaps go as far as my hon. Friend for Newcastle-under-Lyme in suggesting that the vested interests of members of the legal profession are such that they will gang up on litigants and try to drive them out of bringing their actions. However, if it became widely known that people who had prepared their own cases and incurred considerable expense in the process found, even though they were successful, that they were still at a disadvantage and that it had cost them more to defend themselves than it would have done if they had employed lawyers, the whole system would be thrown into disarray.
The survey of seven county courts showed how few solicitors were prepared to take on small cases. This is a compelling argument which should commend itself to the Minister.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
My hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding) took over an hour in making all sorts of allegations against the legal profession apparently because, as he suggested, the words which his amendment sought to omit had been inserted in the Bill because the legal profession desired to protect its interests—an absolutely ridiculous suggestion.
My hon. Friend's speech was very amusing. Some of us could hardly contain ourselves with laughter. There were tears in the eyes of the Government Chief Whip. However, my hon. Friend's allegations against the legal profession were —and I use the word quite specifically—disgraceful. Members of the legal profession have been Members of Parliament for many years and they have contributed in no uncertain way to the services of the House. They have given those services loyally. They have contributed their expertise. My hon. Friend's disgraceful attack was utterly and completely wrong and it calls for a complete answer and denial.
I do not know why my hon. Friend made his allegations. Whether it was jealously of the legal profession—
§ 12.45 p.m.
§ Dr. Hampson
It may be that the hon. Member's allegations were false and should be refuted, but is it in order to refute them within the context of the amendment?
§ Mr. Deputy Speaker
As the allegations have been made, the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) should be allowed to refute them if he so wishes.
§ Mr. Deputy Speaker
I should imagine that the hon. and learned Member for Hackney, North and Stoke Newington is probably better qualified to do it.
§ Mr. Weitzman
One of the reasons for the amendment put forward by my hon. Friend the Member for Newcastle-under-Lyme was that he thought the legal profession wanted the words which he proposed to omit to be in the Bill for its own interests. That must be a point of 1916 the greatest importance and I want to refute it as strongly as I can.
I declare an interest. I am a member of the much maligned legal profession and I have been a Member of the House for many years. I do not desire my hon. Friend to attack me for the services I may have rendered to the House. I repeat that his was a most disgraceful allegation against hon. and learned Members and I hope that at some time he will withdraw it.
I wish to deal with the amendment to which so little attention was paid by my hon. Friend the Member for Newcastle-under-Lyme in moving it. He has entirely misconceived the effect of the words in the Bill. If, as he proposes, they were omitted, the question of costs would be left at large; there would be no way of determining them. They have not been inserted by lawyers to serve their interests; they are vital for protecting the interests of the litigants.
Does not my hon. Friend the Member for Newcastle-under-Lyme appreciate that, in order to determine costs, one must know what sort of costs will be allowed? The Rule Committee—an important body of judges and legal people—has set out criteria for judging the question of costs. As for taxation, we have taxing masters to whom a litigant may appeal and who deal with costs questions.
The points made by my hon. Friend the Member for Ilford, North (Mrs. Miller) are relevant, but they are not assisted by the amendments. The arguments she put forward are the subject matter of the Bill. My right hon. Friend the Member for Middlesborough (Mr. Bottomley) by the Bill is attempting to ensure that the litigant who acts in person shall he able to get the costs he has properly incurred, the expenses and, by a subsequent amendment, the loss he has suffered. My right hon. Friend is doing exactly what my hon. Friend the Member for Ilford, North wishes in this matter.
The amendments are entirely misconceived, and I hope that they will be rejected.
§ Mr. Leadbitter
I want to address myself specifically to the amendment before us, apart from making a few comments in an attempt to take the heat out of the 1917 dialogue. My hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding). in an admittedly long speech, expressed some reservations about the legal profession. It would be remiss of the House to interpret that purely as an expression of acrimony without acknowledging that the legal profession has an important role and that the lawyers in the House perform a useful and important function.
On 21st November 1968, in New Society, an interesting article appeared, one paragraph of which reads as follows:Barristers and solicitors have often, as has been shown, successfully opposed or diverted measures which have threatened their professional positions, and even the Legal Aid and Advice Act 1949 was made by lawyers for lawyers. There are still no laymen on the legal aid committees to administer legal aid in civil proceedings.That article shows that there is criticism, but that it is constructive criticism. The House has a function to examine the work of lawyers, but without detriment to their individual standing and integrity.
The amendment merely calls for an appraisal of the problem before us. There can be no argument about the House being anxious that the law shall be comprehensible. The law is often obscure and, in spite of the great care with which the House exercises its legislative powers, often confuses litigants, especially litigants in person. It is unarguable that the layman should be saved the hazards of unnecessary and oppressive legal operations I am sure that that proposition is acceptable to both sides of the House. It is also unarguable that no layman should have to go through the labyrinth of modern legal proceedings without professional advice, and that, if he cannot afford it, he should be assisted in obtaining that professional advice.
That is exactly what the Bill seeks to achieve. My right hon. Friend the Member for Middlesbrough (Mr. Bottomley) has once again made a valuable contribution by introducing the Bill which is aimed at securing that litigants in person shall be assisted. There is some doubt in our minds as to whether the Bill will do what it intends when it becomes an Act of Parliament.
§ Mr. Ryman
Before my hon. Friend develops his speech and moves on to his 1918 next argument, may I ask him to address his mind to one matter? He rightly spoke of the extension of legal aid. Does he appreciate that there are several types of action in civil courts for which a person is not eligible for legal aid? There fore, a person who cannot afford privately to employ expensive solicitors and barristers is still at a disadvantage and comes within the Bill as a litigant in person. It is more important than ever that people who cannot get legal aid for prosecuting an action for defamation, false imprisonment or malicious prosecution should come within the category of a litigant in person.
§ Mr. Leadbitter
Yes, I agree. My hon. Friend has explained exactly what the Bill does and there is no division of opinion. My right hon. Friend the Member for Middlesbrough is seeking, in his Bill, to crystallise the argument of my hon. Friend the Member for Blyth (Mr. Ryman), which I support.
I ask the Minister to give us some assistance on the difficulty of assessing what is meant by "work done". Perhaps a brief definition of that phrase could be given. Perhaps we can deal with the question of loss when we come to Amendment No. 3.
My hon. Friend the Member for New castle-under-Lyme spoke about the taxing master. The taxing master is appointed by the Lord Chancellor and, that being so, we are entitled, for the sake of clarity and not in a spirit of criticism, to ask how that appointment is made. Who makes the recommendation for the appointment and to what extent is that appointee subject to the practices which have caused genuine fears to arise in the mind of my hon. Friend the Member for Newcastle-under-Lyme?
I remind the House that the Lord Chancellor in practice but not as a matter of obligation is a lawyer and as a lawyer appoints the taxing master. We should like to know by what process that is done, if only to remove any fears we may have. I reiterate that I am in no way questioning the integrity either of the Lord Chancellor or of the taxing master. In dealing with an important subject like this hon. Members are entitled to know exactly what is involved so that any doubts we may have can be resolved.
§ Mr. Russell Kerr (Feltham and Heston)
I had not intended to intervene in this debate, partly because this is not a specialty of mine and partly because I had to be elsewhere earlier and could not attend the initial stages of the discussion.
I did not hear the speech of my hon. Friend the Member for Newcastle-under Lyme (Mr. Golding) and I am not aware of the course of the debate so far. However, I was sorry that my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman), who has given such long and respected service to the House over many years, got so upset about what had been said. If there were any unfair attacks in the remarks of my hon. Friend the Member for Newcastle-under-Lyme, I would regret them. However, I want to make a few comments about the legal profession, much as I respect the role of lawyers, such as my hon. and learned Friend the Member for Hackney, North and Stoke Newington, in the House and in the general working of the parliamentary institution. However, I do not want my hon. and learned Friend to feel that this appreciative view of lawyers is widely held by people in the community, particularly among the poorer sections for whom Labour Members speak.
My hon. Friend the Member for Ilford, North (Mrs. Miller) spoke about the legal aid service. Whatever may have been in the minds of those who set up that service many years ago, it must be said that at present it is a disgraceful shambles that does no credit to our democracy. We in this House are often complacent about the state to which the service has degenerated, and something should be done urgently to put the service right. So long as the service is left as it is, the people whom we are setting out to assist will not be helped.
§ Mr. Weitzman
I hope my hon. Friend will appreciate that over 50 years ago I attended regularly at sessions aimed at giving poor men's advice on law. Many of my colleagues have continued to carry out that process from that day to this. The legal profession has been persistent in its efforts in trying to help poor people and others and has given that legal advice voluntarily up to the present time.
§ Mr. Kerr
I yield to nobody in my respect for my hon. and learned Friend, and, indeed, I know a good deal about his activities on this score. I also know of the record of a number of other lawyers on both sides of the House who have given sterling service in these matters, but one cannot lump together the whole of that large and distinguished profession. There are some bad apples in the legal barrel. That is the section of the legal profession on which I wish to concentrate. My hon. Friend the Member for Blyth (Mr. Ryman) said that in all professions there were black sheep. One of the deficiencies in the legal aid service lies in the fact that often a third-class service is given to people who are most deserving of our help. If anybody doubts this, I invite him to come to my constituency. If I had my way, I would put a quarter of the solicitors in that constituency behind bars. I can think of at least two, and even three, people who have been incarcerated as a result of the neglect of their legal aid advisers. I can think of frequent cases where there has been dilatoriness or inefficiency in respect of people, often poor people, who have been defended. I do not want to delay this discussion, but I am simply making the point that this is not good enough.
§ Mr. Ryman
I share my hon. Friend's strong point about deficiencies in administration of the legal aid scheme. I also share his proper concern about the performance of individual solicitors who often neglect their duties. However, will my hon. Friend bear in mind that if ever he comes across any case such as he has outlined he has a simple remedy? The remedy is to report the individual solicitor immediately to the Law Society with a recommendation that the society's disciplinary committee should investigate the case and take action. I know that the Law Society welcomes such intervention and is anxious to deal strictly and quickly with solicitors who neglect their duties.
§ Mr. Kerr
I accept my hon. Friend's advice in the spirit in which it was offered. I have followed that course on several occasions. My hon. Friend will be aware that it is a time-consuming business, bearing in mind one's duties as a busy Member of Parliament. Nevertheless, I shall 1921 bear his advice in mind in any future cases which come to my attention.
I wish to counsel the legal profession against any complacency in this matter. There is a widespread fear among ordinary people, particularly the poor, that they are the victims of a very unfair system at the moment. It is up to all of us on both sides of the House to act as spokesmen for the people I am describing. This should be treated as a matter of urgency and not as a matter for commissions of inquiry or for learned research. The matter should be cleaned up before many more months pass us by.
§ Mr. Marcus Lipton (Lambeth. Central)
I, too, did not intend to take part in this debate. I have heard that opening gambit on many occasions, and I must confess that it does not impress me all that much. I am sorry that I denied myself the pleasure of hearing the remarks of my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding). By all accounts his speech was lengthy, and it certainly aroused the ire of my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman). I do not know why my hon. and learned Friend got so excited. He has been a Member of this House for a long time. That remark also applies to myself. I do not take exception to criticisms of the legal profession for I know that more often than not those criticisms are fully justified.
§ Mr. Weitzman
Does my hon. Friend appreciate that my ire was aroused by the fact that my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding) said that the inclusion of certain words in the Bill were in the interests of the legal profession?
§ Mr. Lipton
I must leave it to my hon. and learned Friend to fight out this battle on a later occasion, either inside or outside the House. I do not intend to become involved in a dispute between two hon. Friends.
It is true to say that lawyers have been the subject of criticism throughout the ages. They were certainly criticised in the Middle Ages and I cannot understand why my hon. and learned Friend should get so excited at criticisms of lawyers. He should devote his future activities in the House to more useful 1922 purposes than setting out to defend the whole of the legal profession against attacks.
I have only one criticism to make of the Bill. Certain people are litigious by temperament. When people feel that they have a jolly good case, they are often aggrieved and offended when told by the legal profession that their case is not strong. This Bill will encourage litigants to go to the courts and fight their case in the fond hope that they will get their costs. It may encourage certain people to go to law who would not otherwise do so. That is a risk that we must take. We must direct the litigants to decide whether they have a good case and whether, by conducting it in person, they will be able to win it. However, many litigants who appear in person may be lawyers.
§ Mr. Deputy Speaker
The hon. Member's speech would be more applicable to the Third Reading. We are now discussing a limited amendment. I hope that the hon. Member will address himself to that amendment and postpone his speech until the Third Reading.
§ Mr. Golding
On a point of order, Mr. Deputy Speaker. May I ask for your guidance? Would the speech be of more profit to the next set of amendments, dealing with costs and losses, when this point could probably be made?
§ Mr. Deputy Speaker
From what I heard, the hon. Member seems to be giving a general welcome to the Bill, which would be more appropriately expressed on Third Reading. However, if when we come to the next set of amendments his speech is in order, he may make his contribution.
§ Mr. Lipton
I accept your ruling, Mr. Deputy Speaker, without further demur. If I am in the House I hope that I shall have the opportunity of catching your eye at a later stage in the debate.
§ Mr. Arthur Davidson
First, I congratulate the hon. Member for East bourne (Mr. Gow). He has not yet spoken but, being a lawyer, he will 1923 doubtless make an effort to do so on what is, I believe, his first appearance on the Front Bench. However, I do not think that his presence will gratify my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding).
I congratulate my hon. Friend the Member for Newcastle-under-Lyme on moving the amendment, by his terms, briefly. Those who have heard his contributions in the past know that they are always amusing. This was by no means one of his lengthier speeches; it was one of his middle-grade speeches. It was very amusing and interesting. However, I received the impression that he was not over-fond of the legal profession. The allegations which he made were answered by my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) and by my hon. Friend the Member for Blyth (Mr. Ryman). Therefore, I do not think that it will be necessary for me to launch into another defence.
I am in an impossible position. If I replied in detail to all the allegations and points made by my hon. Friend the Member for Newcastle-under-Lyme, he would accuse me as a lawyer of being garrulous and of speaking overlong and of endeavouring to confuse him. However, if I speak briefly he will say that I am showing the usual arrogance and contempt that lawyers have for the ordinary layman. However, I shall deal with his points and I am sure that he will listen carefully. I am certain that he will exercise his right of reply.
My hon. Friend the Member for Blyth, my hon. and learned Friend the Member for Hackney, North and Stoke Newington and my right hon. Friend the Member for Middlesbrough (Mr. Bottomley) have all said these amendments were not acceptable. My right hon. Friend the Member for Middles brough said that, if passed, these amendments would destroy the whole concept of the Bill.
The Bill provides specifically for the extension of the rule-making power. My hon. Friend the Member for NewcastleUnder-Lyme must believe me when I say 1924 that "costs" is a word which in this context has a technical meaning. The Bill seeks to put the costs of the litigant in person on the same footing as the costs of a solicitor. A solicitor cannot charge anything he wishes, because both the type of work for which he can charge and the amount of that charge are regulated by rule. They are regulated by the Rule Committee, which my hon. Friend spent some time in decrying.
Will my hon. Friend deal with one aspect of this problem? Surely it is not right to say that a solicitor cannot charge what he likes, because it is subject to taxation, and there are strict rules about what can be claimed. Surely that proposition has been accurately stated by the Minister. Before we get to that stage a solicitor can present a bill to a client, unless the client insists on taxation. If the client is fool enough to pay the solicitors bill, he has no remedy afterwards. That is the distinction between the situation where a litigant insists on taxation and the situation where an applicant is faced with an enormous solicitor's bill which he might pay if he does not appreciate that he has freedom from taxation.
§ Mr. Davidson
I have no intention of defending high charges by solicitors or anyone else. The position which my hon. Friend has set out is accurate. I am dealing with the position in which the costs of the solicitor are being taxed. That is the position faced by the litigant in person when he presents his case to the courts.
§ Mr. Leadbitter
This is one of the most interesting parts for consideration. My hon. Friend said that the intention of the Bill was to have the costs of the litigant in person determined in the same way as the solicitor arrived at his costs. How can the litigant in person see that he can achieve those costs? What machinery is available to help him to achieve those costs?
§ Mr. Davidson
I shall deal with that point, together with the other point he raised in his interesting contribution.
As my right hon. Friend the Member for Middlesbrough said, and has said consistently, it is not the intention of the Bill to put the litigant in person in a 1925 better position than that of the solicitor in respect of remuneration for work done. The alternative to leaving a regulation of the amounts to the rule-making authorities would be for the Bill itself to prescribe in detail the amounts and the headings under which the litigant in person can recover. This is plainly impractical and would bring about ambiguities and the very sort of bad, vague legislation that I am sure my hon. Friend would want to avoid. That seemed to be the theme running through his speech.
It is self-evident that there are two sides in litigation—the paying side and the receiving side, the losing side and the winning side. They must both be considered. All the costs which the litigant in person will receive if this Bill becomes law, as I am sure the House hopes it will, will in most cases fall to be paid by his opponent who loses the case. If the type of work for which a litigant in person is to be remunerated and the amount are not to be prescribed in the Bill—I hope that I take my hon. Friend along with me in saying that that would be impractical—the person who loses may have to pay more to an unrepresented litigant than he would to one who had a solicitor or counsel appearing for him.
I am sure that it is not my hon. Friend's wish—it certainly is not the Government's view—that anyone should make a profit from litigation. I am sure that his wish is that the litigant should receive a sum to compensate him for the loss incurred in conducting the litigation. That is the purpose of the Bill. It is to be hoped—and this advice is always given—that no one embarks lightly upon litigation and that no one undertakes litigation except as a last resort. If, however, a person is forced into it and chooses to represent himself he should not be out of pocket if he is successful.
§ Mr. Golding
As I understand it, if a layman takes a case he cannot make a profit, and if this amendment is not made that will remain the situation. Is it not also the case that when a solicitor takes his own case he can get costs? Could he therefore not also make a profit? If that is so, what possible justification is there for it?
§ Mr. Davidson
One of the anomalies that the Bill specifically sets out to remove is that of the solicitor who represents himself being able to get costs. As I understand it, it was certainly never the case that the solicitor who appeared for himself could actually make a profit out of doing so. He would be allowed by the Rule Committee the necessary expenses that he would have got had he been representing someone else. I have no intention of embarking upon a defence of any practices in the legal profession which are against the public interest or not in the interests of the litigant. I am sure that my hon. Friend agrees that there must inevitably be some control over the amount that a litigant in person recovers, just as there is—my hon. Friend must take my word for this—over the amount that a solicitor recovers. It is only right and fair, and equitable, that the paying party is protected. In 99 cases out of 100, the paying party is a member of the public and is, like my hon. Friend, a layman.
If the sums that a litigant in person has to recover are to be costs they will and must be subject to the present rules of court. The sums must be costs, for technical reasons. It is possible that a litigant in person will have as his opponent someone who is legally aided. Section 13 of the Legal Aid Act 1974, with which my hon. Friend will be intimately familiar, permits costs to be paid out of the Legal Aid Fund in certain circumstances. Indeed, in Committee the Bill was amended by the Government to provide that the litigant in person should benefit from this provision. The only costs—I put this in as useful background for my hon. Friend—which at present can be recovered from the opposing party are those necessarily incurred in proving or defending a claim. In England and Wales the Rules of the Supreme Court at Order 62, rule 28(2), which I am sure my hon. Friend has read, provide that where costs are taxed on a party and party basisthere shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.This party and party basis of taxation is one to which every solicitor's bill must be subject to protect the paying party, and a litigant in person's bill must be subject to it as well.
1927 If one accepts, as I am sure my hon. Friend will, that the losing side must be protected, there must be rules about the type of work or expenses for which the litigant in person can claim. Of course, this will be to the assistance of the litigant in person as well, who may have no idea of the sort of claims it would be proper for him to make. That is why the expertise and experience of the rulemaking authorities are so important, and why the costs and expenses of the litigant in person have been specifically left to the Rule Committee in the Bill. At this stage, when the rule-making authorities have not met, it is difficult to indicate the form the rules will take, but it is reasonable to suppose that they will provide reasonable guidelines within which there will be an element of discretion for taxing officers.
My hon. Friend asks who the rule-making authorities are. In England and Wales they are the Supreme Court Rule Committee, the County Court Rule Committee and the Matrimonial Causes Rule Committee. In Scotland the position is different. The composition of the Supreme Court Rule Committee is fixed by Section 99 of the Supreme Court of Judicature (Amendment) Act 1925. It consists of the Lord Chancellor. the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, four other judges of the Supreme Court, two practising barristers, who must be members of the General Council of the Bar. and two practising solicitors, one of whom must be a member of the Council of the Law Society and the other a member of the Law Society and also of a provincial law society. I do not suppose that that list will give my hon. Friend very much satisfaction. However, they are all distinguished lawyers of the highest integrity and greatest possible experience.
§ 1.30 p.m.
§ Mr. Leadbitter
My hon. Friend is going a long way to try to be helpful. Before he leaves the provisions of Section 99 and the composition of the Supreme Court Rule Committee, will he confirm that such a committee does not work in separation when dealing with the advices which are brought to it? Is it the position that there must be some machinery through which those advices are brought to its notice?
§ Mr. Davidson
My noble Friend the Lord Chancellor is the head of that committee. My hon. Friend the Member for Newcastle-under-Lyme suggested that I should ring the Rule Committee. My telephone call today was not to the Rule Committee.
I turn now to the composition of the County Court Rule Committee.
§ Mr. Ryman
Before my hon. Friend leaves that tonic, will he deal specifically with the following point? I understand that in Committee an undertaking was given that consultations would take place between the Government and the Rule Committee to ascertain in advance the Rule Committee's reaction to these proposals. Have those consultations now taken place? If so, with what result? If not, why not?
§ Mr. Davidson
I am not aware that any such undertaking was given. Clearly, the Rule Committee, headed by the Lord Chancellor, will read very carefully what was said on Second Reading, what was said in Committee, and what is said here today. The views of the House will be transmitted to the Lord Chancellor and, through him, his advisers and officials, to those who comprise the Rule Committee. I should point out that the Rule Committee cannot possibly start to draw up the rules until it knows the final form of the legislation.
My hon. Friend the Member for Newcastle-under-Lyme also asked for the composition of the County Court Rule Committee. That consists of five circuit judges, two county court registrars, two practising members of the Bar and two practising solicitors. The Matrimonial Causes Rule Committee consists of my noble Friend the Lord Chancellor, the President of the Family Division, one High Court judge, two circuit judges, one principal registry registrar and one county court registrar—
§ Mr. Golding
Will the Minister speak a little more slowly, because it is very difficult to take down these facts at the rapid rate at which he is delivering them?
§ Mr. Davidson
I shall read out the list again very slowly, because I know that my hon. Friend is most anxious to take it down. The County Court Rule Committee consists of five circuit judges, two 1929 county court registrars, two practising members of the Bar and two practising solicitors. The composition of the Matrimonial Causes Rule Committee consists of the Lord Chancellor, the President of the Family Division, one High Court judge, two circuit judges, one principal registry registrar and one county court registrar, two barristers and two solicitors.
I am advised by my right hon. and learned Friend the Lord Advocate—who cannot be here today because he has a ministerial engagement in Scotland, but who was here on Second Reading and throughout the Committee stage—that the Rule Committee in Scotland does not consist entirely of lawyers, but members are usually connected with the legal system and the courts, as practising lawyers, members of the judiciary, or members of the permanent staff of the courts. I understand that members of the latter category are not usually legally qualified.
I turn now to the second leg of the amendments, because they are in two specific groups. The effect of leaving out the words,on the taxation or other determination of those costs",would be to remove the right of the court to consider the reasonableness of the bill of costs put in by the litigant in person. Clearly my hon. Friend's intention is that it should be linked to the previous amendment. However, the Bill states that there "may be allowed", and unless it contains some provision stating who is to make the allowance, both in general terms, for the guidance of all, and, within those guidelines, in a specific case, its interpretation will be far from clear. My hon. Friend wants the intention of the Bill to be as clearly stated as possible.
There will still be no compulsion in allowing a litigant in person his costs for expenses incurred or work done, and within the framework of the Bill it will be necessary to devise some way of determining what is to be allowed. It is better that the Bill should be clear and that the task of determining the proper amount that the paying party should have to pay to a litigant in person's costs should be left to the methods presently used by the court and to the experience of the court in determining the proper amounts.
1930 It is possible that my hon. Friend has not appreciated the importance of the words "or other determination". Although, when a case is fought out, the usual way of determining costs is for them to be taxed, they can be dealt with in other ways. That can be important when the judgment is obtained without a dispute, after only a formal hearing, or where the steps which have been taken in an action are simple and straightforward.
In England and Wales the rules provide for costs to be a fixed sum on some occasions and, on others, for them to be assessed within prescribed minima and maxima. In the High Court, under Order 14, which provides for summary judgment when a defendant has no arguable defence, a prescribed sum is allowed for the work involved in issuing the writ, serving it, taking out the summons and attending the court when judgment is obtained.
Similarly, in the county court, when a summons is issued claiming a sum of money, there is added to the amount that the defendant has to pay not only the court fee but a sum of costs. If the defendant pays on receipt of the summons, that fixed sum is the total amount of the costs.
At present, we are dealing with solicitors' costs, but the Bill, as drafted, would permit the rule-making authorities to consider similar fixed sums for litigants in person. As well as fixed costs, there are occasions on which the court will allow a lump sum. In a simple case in the county court the judge may, instead of ordering taxation, award a lump sum. This could also be valuable to the litigant in person, because drawing up a bill and having it taxed, though necessary in some cases, is unnecessary in simple cases where the amount of work involved is slight.
One example would be a case brought by a consumer in which the amount involved was about £150. If the dispute were simple and took only a short time in court, and there was little preparation, it would be in the interests of the successful litigant in person to claim assessed costs and save himself the trouble of a detailed bill and further time.
There are, however, cases in which taxation is inevitable. As I have said, 1931 one reason is that the paying party—the losing side—must also be protected. In a big case, where a substantial amount of work has been done, there is no alternative to the successful party submitting an account. In fixed and assessed costs the paying party is amply protected by the rules. On taxation it is the taxing officer who must determine the reasonableness, in relation to the work done, of the charge made.
The rule-making authorities will no doubt have it in mind that the litigant in person must not be required to produce anything too complex. It will be necessary for him to submit a statement only of what he has done and the losses and expenses that he has incurred. He will have the rules to help him, and if the Bill becomes law my noble Friend the Lord Chancellor will consider giving further help to a litigant in person in submitting his bill.
It may be that the most appropriate way of helping the layman to understand the position, would be to issue a booklet on the lines of the highly successful booklet "Small claims in the county court", but this needs further study and thought, and the Lord Chancellor is considering in what way the rights of a litigant in person to costs can be explained to him in the simplest language, and in language that will not give rise to confusion.
My hon. Friend asked who the taxing master was. The answer is that he is a solicitor of at least 10 years' standing, appointed by the Lord Chancellor. He is appointed Master of the Supreme Court Taxing Office, and he taxes under the High Court rules. In the county court, taxation is carried out by the registrar. I am told that in Scotland—I hope that my hon. Friend will not press me too far on this because I am not qualified to answer any detailed question about the position in Scotland, and I know that he has had conversations with the Lord Advocate—
§ Mr. Golding
My hon. Friend may like to know that in a letter that he has written to me the Lord Advocate has apologised for his absence. He would have liked to be here, but he has an important engagement in Scotland, which he must attend.
§ Mr. Davidson
I am told by those advising me and the Lord Advocate's Department that in Scotland there is no taxing master, as such. The question of expenses is essentially a matter for the court—that is, the judge—but to assist the judge there is an auditor of court who performs the day-to-day duties of processing claims for litigants' expenses. Questions of difficulty are referred to him to the court. He is not necessarily a lawyer, but, on the best information that I have, he is usually qualified in accountancy.
§ Mr. Davidson
I do not know whether that profession is any more popular with my hon. Friend.
My hon. Friend asked why costs are a technical matter. What we are dealing with—my hon. Friend must realise this—is the position in which costs have to be awarded after the determination of a legal dispute which itself has to be conducted according to certain rules. Some one has to determine whether what was done was necessary in the circumstances.
The Rule Committee will lay down the type of work for which remuneration can be allowed; for instance, the preparation of particulars of claim or defence. For relatively mechanical work it may prescribe fixed sums, but for more responsible work it may prescribe a maximum or a minimum, or it may leave the amount to be allowed wholly to the discretion of the taxing officer.
A good deal of expert knowledge is necessary to perform this task effectively, as I am sure my hon. Friend will agree. The general complaint against the Rule Committee and taxing officers—this may come as some comfort and joy to my hon. Friend—is that they are too mean to the legal profession. That is the complaint made by members of the profession.
I think that my hon. Friend made some reference to witnesses' expenses.
§ Mr. Davidson
I stand corrected. My hon. Friend asked specifically about witnesses' expenses. These are within the discretion of the taxing master in the 1933 High Court. In the county court, scales of witnesses' allowances are laid down, and these have recently been increased by the Rule Committee.
My hon. Friend the Member for Hartlepool (Mr. Leadbitter) referred specifically to legal aid and the fact that the committees were composed exclusively of members of the legal profession.
That is not strictly correct. Local legal aid committees are composed of members of the legal profession. They deal exclusively with points of law, with the question whether somebody applying for legal aid has a prima facie case. I am sure my hon. Friend will agree that lawyers are necessary to decide what is and what is not a point in law. But advisory committees have laymen on them, and their numbers have recently been increased.
I do not think that you, Mr. Speaker. would allow me to develop the matter of legal aid generally, but this issue was raised. The Lord Chancellor is aware of the imperfections of the system and is trying to improve the position. He has recently appointed an expert in his Department to look at the deficiencies and to see in what way legal aid can be strengthened. I am sure that the Lord Chancellor will take to heart the criticisms that have been made of the legal system. I know that he wants to do everything in his power to ensure that the maximum number of people have the advantage of legal aid.
I do not think that any other specific points were raised on the amendment. I understand why my hon. Friend wished to delete these words, but I must tell him that if the amendment were carried the result would be contrary to the interests of the litigant in person. I therefore ask the House to resist the amendment.
§ Mr. Golding
As this will probably be the last time that I shall speak for about six months, I must say that this has been a brief but interesting debate.
I do not know how it is that, having been described by Mr. Andrew Roth as mild, donnish and moderate, I should be so set upon and savaged by my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) and my hon. Friend the Mem- 1934 ber for Myth (Mr. Ryman). Perhaps that illustrates the importance of my remarks.
What I said was supported by two articles. One was published in New Society on 21st November 1968 and headedA Layman Over the Lawyersand the other was an interesting article in the Sunday Times of 10th November 1974 under the headingThe Huge Cost of Going to Law".Both articles included a summary of general indictments of the legal profession, and I should not want to alter the general tenor of my remarks.
I must, however, put it on record that during my time in the House I have received substantial assistance from each of the present Law Officers. When working on Committees they have been most assidious in their attendance. I have received a lot of help and encouragement from my hon. and learned Friend the Member for Hackney, North and Stoke Newington, and certainly he would never consciously be a party to what I have described. None the less, I still think that there is an unconscious element of self-defence in what is said in defence of the profession by those who practise it.
§ Mr. Ryman
Since my hon. Friend relies so much on the authority of the two newspaper articles to which he referred, one in the Sunday Times and the other in a more obscure publication, will he tell us who were the authors of those two articles, if we are to pay any attention to the propositions set out in them?
§ Mr. Golding
I do not wish to be led astray. The time has come for a conclusion on this matter. I shall pass the articles to my hon. Friend later on. One of them was written by Bruce Page and Phillip Knightley—
§ Mr. Golding
I will not be led astray by my hon. Friend. He is inexperienced in the ways of the House, and seems in capable of appreciating a victory when it has been won. I think it better to draw this debate to a close as swiftly as possible.
What the Minister said about the determination of costs justified virtually everything I said. It is a closed shop at least 1935 in England and Wales; lawyers dominate the determination of costs, and that is quite unsatisfactory. However, I realise that there are defects in my amendment, and I should not wish to put upon my right hon. Friend the Member for Middlesbrough (Mr. Bottomley) the responsibility of seeing that those defects were removed in another place.
I had intended to say at the outset of my opening speech that this was a probing amendment. I am not altogether satisfied with the replies I have received. but I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Bottomley
I beg to move Amendment No. 3, in page 1, line 10, after expenses ', insert ' and losses '.
I suggest, Mr. Speaker, that we consider at the same time Amendment No. 6, in page 1, line 20 after ' outlays ', insert ' and losses '.
These two amendments arise from the debate in Committee about the intended scope of the Bill. At the end of that debate I suggested that I should consult the Parliamentary Secretary to see whether it might be appropriate to change the wording on Report to meet some of the points made in Committee. I have had consultations with my hon. Friend the Parliamentary Secretary, and the outcome of them is seen in these two amendments. he amendments fall to be considered together because each makes, in effect, the same change.
Amendment No. 3 adds the word "losses" immediately after the words "any expenses" in that part of Clause 1 which deals with England, Wales and Northern Ireland. and Amendment No. 6 deals with the position in Scotland in similar terms. In both instances the intention is that the litigant in person who is successful in civil proceedings should be enabled to received as part of an award of costs payment in respect of losses which he may incur in the pursuit of justice. This is to be in addition to what he may be enabled to receive in respect of work done or other expenses incurred, which are covered by the existing working of the clause.
Hon. Members may ask why it is necessary to cover losses if work done and expenses incurred are already catered for. 1936 The reason is that it is agreed on all sides that one of the main items which the Bill is designed to allow to a successful litigant in person is a payment to compensate him for any loss of earnings which he may incur as a result of having to take time off from work to deal with his case. He may have to attend a hearing at court on a preliminary matter, such as a pre-trial review in the county court, or a summons for directions at the High Court, or he may have to take time off from work to go and see a potential witness. There are all sorts of things which he may have to do but which, in the nature of things, he can do only by taking time off from work.
The hours that a man puts in may well be such that he suffers a loss of earnings in so doing. Under the present law, that loss cannot be recovered from his opponent even if he wins the case. One of the main purposes of the Bill is to change that. The Bill already allows compensation for work done, so that if a litigant in person has to do some work —for instance, issue a summons, see a witness or attend a hearing—he will be able to get something for that. On the other hand, if in order to do the work he has to take time off from his job, what could be more natural than that the amount which he should be allowed under the rules for work done should be the earnings lost from his normal job?
I thought—and I believe that the Government and those advising them thought —that the Bill was drawn widely enough in the use of the expression "work done" to allow what was envisaged. However, I wanted to remove any doubt, and for that purpose I have put down these amendments.
The hon. Member for Burton (Mr. Lawrence), who is not present today, argued in Committee, with all his skill and persuasiveness, that "work done" did not cover loss of earnings, and asked why we should keep the words "work done" when we are adding "losses" to cover that point. I feel that I must part company with the hon. Gentleman, believing that the matter should be fully covered beyond doubt, since the prime purpose of the Bill is to allow a litigant in person to receive compensation from his unsuccessful opponent for the work which he does to prepare and fight his case.
1937 I urge, therefore, that the rules about costs should allow for these aspects loss of earnings through having to take time off from work, and payment of compensation for work done in preparing and fighting the case. It is my wish that the Bill should leave the House worded in such a fashion as to permit both sorts of payment to be recovered under an award of costs to a litigant in person.
I accept that it will be up to the various rule-making authorities dealing with our various civil court procedures in the different jurisdictions covered by the Bill to determine just what shall be allowed, to whom, and in what circumstances. It may well be that they will have more hesitation in allowing a successful litigant in person who has an award of costs something on this other aspect, but that will be up to them.
This is largely an enabling measure. The Rule Committee is not compelled to do anything. The Bill provides that costs may be allowed.
Secondly, I hope the Rule Committee will find it possible to look favourably on allowing payments for work done. I would ask for the support of other hon. Members so that this view can be reinforced.
There may be some problems about what a litigant in person should be allowed when he devotes his own time to preparing his case. If he is a wealthy person, should his time be rewarded at a higher rate than if he is a poor man? I think not, but I am content to leave the Rule Committee to work it out. Just because this is a difficult question to answer does not mean that it should not be answered. The courts and the Rule Committee are for ever wrestling with difficult questions, and I do not apologise for adding to them. I am sure that they will work something out, and I have confidence in their ability to make any necessary adjustments. At this stage we should give a wider rather than a narrow discretion to the Rule Committee, and we should not restrict its power to determine what may be covered by an award of costs to a successful litigant in person, any more than under the present law we restrict its power to determine what costs may be allowed to a represented litigant.
1938 2.0 p.m.
The hon. Member for Burton made the valid argument in Committee that a litigant who had a solicitor had to spend a good deal of time and effort dealing with matters connected with the case; for example, going to see his solicitor, sifting through documents and perhaps even talking to witnesses. He receives no allowance for costs of that kind. The hon. Member suggested that the Bill might have the unintended effect of putting the successful litigant in person in a better position than his counterpart who has a solicitor. If this is so, I would agree with him. However, I think he is wrong. Therefore, I hope that the hon. Member, who is absent, will acknowledge that these points have been considered, and I am glad that there will be no further presentation of that view.
The main object of these two amendments is to widen the power to decide what may be covered by an award of costs to a successful litigant in person and to remove doubt about how those powers will be operated under the present wording of the Bill.
§ Mr. Leadbitter
The subject of losses and expenses was discussed at some length in Standing Committee. I appreciate what was said there, but I still have some doubts about the extent to which there will be equity of treatment for a litigant in person and an assisted litigant.
My hon. and learned Friend has done exceptionally well to meet the problem, but my doubts still persist. It has already been said that the successful litigant in person may be in a more fortunate position than the litigant who is assisted. That anomaly should not be continued, but the Bill leaves discretion to the Rule Committee, and it is important to get some clarification.
If this problem is to be dealt with by the Rule Committee and not spelt out in detail in the Bill, the corollary is that variations in practice will exist. That must follow if we do not include in the Bill great detail. Expenses may be easily definable but that is not true of losses. If the intentions of the House are not conveyed to the courts, variation in practice may cause anomalies that will subsequently result in dissatisfaction.
There is anxiety about how losses are to be defined. Loss of earnings is clearly 1939 definable, but leisure losses and travelling losses and others are not. There is a lack of clarity about losses that does not apply to expenses. My hon. and learned Friend may say that because of that discretion will have to be exercised, and so be it, but that should be made clear now before the exercise of discretion without explanation produces a feeling of injustice.
§ Mr. Ryman
I shall refer briefly to one difficulty in this amendment. I support wholeheartedly the general principle of providing equality between litigants in person and represented litigants. However, I do not see the necessity for inserting the words "and losses", because any item of special damage or loss which a plaintiff proves to have been incurred as a result of the litigation would automatically be recovered in the judgment of the court before the subject of losses was considered.
Let us take the example of a simple case of personal injuries or breach of contract. The losses that the plaintiff has incurred as a result of that personal injury, accident, or breach of contract constitute part of his general damages, or special damages added to the general damages by the learned judge who delivers the judgment. I cannot see any point in adding the words "and losses".
Before the taxing master deals with the question of costs the judge will have dealt with the question of losses. I should be grateful to the Minister if he could explain the purpose of these additional words if they have already been covered by the judgment in the substantive action. How do these words clarify matters? What do they add? We have all been at pains to point out that we wish this legislation to be as simple as possible. The amendment would complicate it.
In Committee the hon. Member for Burton (Mr. Lawrence) produced one red herring after another and showed an abysmal lack of knowledge of elementary principles of procedures before taxing masters and of civil litigation generally. I do not understand how these additional words would help a taxing master in the award of costs. I believe that they would unnecessarily complicate the matter.
§ Mr. Arthur Davidson
As my right hon. Friend the Member for Middles- 1940 brough (Mr. Bottomley) said, the amendment arises from a discussion in Committee on whether a litigant in person would, as the Bill is presently drafted. recover in respect of his loss of earnings if he is obliged, as part of the preparation of his case, to take time off work.
The view I expressed then on behalf of the Government—the Government's view is still the same—was that the Bill did, by including the term "work done", enable the rules to provide for payment in respect of loss of earnings. However, there was a view expressed in Committee, notably by the hon. Member for Burton (Mr. Lawrence), that the term "work done" could not include work not done and that there was, therefore, some doubt about whether loss of earnings would be included.
As my right hon. Friend said, he undertook to the Committee to discuss with the Government whether any change in the Bill was necessary. The Government's view remains the same as that put to the Committee, that no additional words are necessary because "work done" would allow the rules to prescribe that a litigant in person can recover where he has lost earnings.
The misunderstanding seems to have arisen because a litigant in person will recover a sum for work done. He will not be paid his loss of earnings as such, but his loss of earnings will be an item which on taxation will be considered as a guide to the amount he should be allowed under the term "work done".
I well understand why my right hon. Friend has moved the amendment, and the Government intend to accent it. To add the words "and losses" makes it abundantly clear on the face of the Bill that loss of earnings, subject to rules of court, can be allowed.
I appreciate that there is a slight danger in including, out of an abundance of caution, words which may not be necessary in a statute. However, in this case if the words are included, and I think that the slight risk is worth taking to remove any possible doubts, it will ensure that the intentions of the Bill are carried out.
I strike a note of caution by saying that I do not think that it would be the intention of either my right hon. Friend or the House as a whole to ensure that all losses 1941 of earnings were automatically recovered. I do not think that anybody would agree that, for instance, a managing director of a very large company would of necessity get all his loss of earnings if he took time off work. That is why the Rule Committee is specifically provided for in the Bill and why, in the discretion and according to the experience of that committee, such a person recovers a just and equitable sum.
§ mendment agreed to.
§ Amendment made: No. 6, in page 1, line 20, after ' outlays' insert ' and losses '.— [Mr. Bottomley.]
§ Motion made, and Question proposed, That the Bill be now read the Third time.—[Mr.Bottomley.]
§ 2.15 p.m.
§ Mr. Ian Gow (Eastbourne)
May I first thank the Parliamentary Secretary for the kind welcome he extended to me when he first addressed the House today?
I declare an interest. I am a solicitor but, as a member of the junior rank of the profession, I am in one sense in the same category as the hon. Member for Newcastle-under-Lyme (Mr. Golding), because neither he nor I is eligible as the law stands for appointment either as Attorney-General or as Solicitor-General, and at least he and I have that in common.
The Second Reading debate on the Bill lasted for one hour and 40 minutes. The Report stage has already lasted for three hours and 10 minutes, but I do not intend to follow the hon. Member for Newcastle-under-Lyme in making a long speech. On the contrary, I intend to follow precisely that advice which he gave to himself but which he did not follow when he said "I can always make a short speech if I know what I am talking about".
The Opposition welcome the Bill. We congratulate the right hon. Member for Middlesbrough (Mr. Bottomley) on the skill and pertinacity which he has shown in piloting the Bill through to its Third Reading. The Bill will right a wrong which the litigant in person has suffered for too long. We commend the Bill to the House. We hope that it will soon reach the statute book.
§ 2.16 p.m.
§ Mr. Bottomley
The Bill is almost completely through the House on its way to the statute book. I want warmly to thank those who have contributed to making that possible.
I join in the congratulations which have been extended to the hon. Member for Eastbourne (Mr. Gow) and thank him for what he has said today.
The initiative for bringing the Bill before the House and the advice that I had in doing so lay with the Consumers' Association. Many people forget that the Consumers' Association publishes the magazine Which?.
I have been interested in the way in which the Bill has been considered not only in this country but in other parts of the world. British Columbia has a law reform commission which has been examining the subject covered by the Bill. Since Second Reading I have heard from the chairman of that body in Vancouver. The commission has investigated the matter.
I have before me a copy of the British Columbia law reform commission's working paper entitled "Costs of Successful Litigants in Person". The law of British Columbia is to all intents and purposes the same in this respect as the law in this country. Indeed, the working paper cites the decision of the Court of Appeal in this country in the case of Buckland and Watts in 1969 as being authority, under the law of British Columbia, for the proposition that a successful litigant in person is not entitled to any costs beyond his out-of-pocket expenses.
The report of the working paper of the British Columbia law reform commission concludes its deliberations with this conclusion:… we consider the law concerning the costs recoverable by a successful lay litigant to be in an unsatisfactory and unacceptable state, and have concluded that it should be changed.That is exactly what we are doing in the House.
Speaking as a former Commonwealth Secretary, I must say that it gives me great satisfaction to learn that a province of one of the founder members of the Commonwealth has had the good sense and initiative to set in train an inquiry that in due course will enable it to pass 1943 a Bill. I sincerely hope that the legislature of the province of British Columbia will in due course be able to do that, and I imagine that it will derive some value from reading what has been said in this debate.
Let no one be encouraged to embark on litigation on the strength of the enactment of this reform. Litigation will always, or should always, be a last resort. No kind of human conflict is desirable, and litigation is a form of conflict that is seldom a pleasure, often a pain, and always an expense. For those unfortunate few who become embroiled in litigation, it behoves Parliament to provide the fairest means possible of resolving their disputes, and this fairness must extend to every aspect of court rules and procedure. That includes the question of costs.
We trust that the Rule Committees whose job it will be to prepare the rules about costs will speedily apply themselves to preparing the rules of the various courts affected by this Bill, so that with the minimum of delay a litigant in person will start to be entitled to a fair deal when it comes to the costs of the case. We do not, I must finally emphasise, seek to place the litigant in person in a better position, but in a corresponding position, as near as may be, with the litigant who has a solicitor to act for him.
§ 2.21 p.m.
§ Mr. Arthur Davidson
I add my congratulations, on behalf of the Government, to my right hon. Friend the Member for Middlesbrough (Mr. Bottomley) on successfully piloting this Bill through the House.
I should like to add a personal note. As I said on Second Reading, it gives me a personal pleasure because I was one of the original sponsors of the Bill when it was in the hands of the hon. Member for Shoreham (Mr. Luce), and. secondly, because, as other hon. Members will have experienced, my right hon. Friend was among those who assisted me very much when I first came into the House. It is fitting that he should have introduced a Bill which will be of such considerable help to other people who have legitimate claims to pursue and who are at present penalised by an anomaly in the law.
1944 I do not think there is anything more that I can say, except that I am sure the House gives a general welcome to this useful legislation.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.