§ 11.26 p.m.
§ Mr. Greville Janner (Leicester, West)
I am pleased to have this opportunity to raise the problems of those people who appear before industrial and other tribunals without the benefit of legal aid.
This is a matter which my hon. and learned Friend the Solicitor-General had been known to raise before he achieved his present high office. I am delighted that he is to reply to this debate because, along with the Lord Chancellor, he was a leading campaigner in the battle to achieve fairness for people appearing before industrial and other tribunals. I know that, in donning the robes of office, they have not changed the views they held then. I pay tribute to my hon. and learned Friends for their efforts to achieve legal aid for people appearing at these tribunals, but now they have the power not merely to express their views, but to put them into effect. I trust that in his reply my hon. and learned Friend will indicate that we shall soon get results and not just hopes.
I will make the case again, though not with the brilliance and elegance with which it has been made in Fabian pamphlets and elsewhere. Tribunals have new and enormous powers. They began with redundancy payments in 1965 and their power has been extended since then. They can now give up to £5,200 in compensation for unfair dismissal, and in December they will have powers in issues of equal pay and sex discrimination. In addition, the race discrimination proposals, which have been mooted in a White Paper and which we expect to hear in the Queen's Speech, will involve these tribunals.
Yesterday, we completed our consideration of the Employment Protection Bill under which huge powers have been given to industrial tribunals where people can claim re-instatement in their jobs, get awards of up to a year's pay in some circumstances or claim up to three 1937 months' pay on top of redundancy pay for not having been given sufficient notice of impending redundancies.
The hard-working tribunals have a legally qualified chairman and two lay members. It is totally wrong that the chairman often has to act both as adjudicator and advocate for one side. He has to place before himself the facts and the law on behalf of one side, while the other side's case is argued by a lawyer. Time after time, one sees employers represented by skilled, experienced advocates who are prepared to present the facts in the best light and to argue the law on behalf of their clients.
Even with the change in the burden of proof introduced in the Trade Union and Labour Relations Act, a Written Answer I received a week ago indicates that two-thirds of the cases brought before tribunals fail. It is a rate which has dropped from 70 per cent. to over 60 per cent. as a result of the changes which have been brought about by the Government, changes for which we must thank my right hon. Friend the Secretary of State for Employment and his team. But a failure rate of nearly two-thirds indicates that there is something wrong in the procedures of the tribunals. That does not mean that a lawyer is needed in every case or that we do not appreciate the simplicity of the procedures. It means that where there is a case involving complicated questions of fact or law and, potentially, vast sums of money the case is not being properly put.
Even in those cases which are won the amounts of compensation which have been awarded tend to be pathetic. The majority get about £100, some two-thirds get less than £250, and there have been perhaps only half-a-dozen cases where people have got the two-year cushion provided for by this House in one of those rare occasions of unanimity between the two sides. There is no two-year cushion in practice. People do not know how to claim the adjournment so as to prove their greater loss or damage. They are not legally represented.
I pay tribute to the trade unions and their efforts on behalf of their members before tribunals. Sometimes it is done by skilled officials of the unions and at other times by courageous shop stewards. I know of such a shop steward in the footwear industry in my constituency. This 1938 lady has been active in the Labour Party for many years. She came to see me one night in a state of terror saying that she had to appear the following morning to represent one of her members. As well as being a shop steward and a skilled footwear worker, she is also a grandmother. She appeared before the tribunal the following day. Her feelings were those that my right hon. and learned Friend and I may have experienced when appearing before other courts. She did her best. But that is not the way in which people should be represented. People should have the right to representation by lawyers.
Whenever a lawyer in this House says that there should be more legal aid he is usually greeted with catcalls and cries of "Feathering your own nest". No one ever says that when a doctor says that people need more medicine. There are worthy doctors in this House who are cheered when they say that the health service should be strengthened. I can deny any interest of that sort in this matter. I have not appeared before an industrial tribunal for many years. Queen's counsel do not and never will get there, and therefore I feel free to say that it is just as important for people to have legal aid before a tribunal as it is to have a doctor when they are ill.
Such people need help. That should be part of the family system, the Welfare State of which we are so proud. It is a person's right and privilege in this country that he should have help when he is ill and when he needs a lawyer. Very often a person will get that help in major cases in the High Court and in less important cases in the county court as well as in criminal cases. He gets help in minor cases, but when he is a potential claimant of over £10,000, appearing before an industrial tribunal, he cannot get legal aid.
He can get up to £25 of legal advice and help if he has no money to prepare his case under the legal aid and advice scheme, but when he gets to the tribunal he has to fight it on his own, or with the help of his union if he has one, and with the help of the union official if that representative is able and willing to assist him.
Our resources are limited, and we are not in a position to spend vast sums on improving the system under which we help people. I know that we are in the 1939 middle of a recession. However, we must adjust certain priorities. I am sure that my hon. and learned Friend will have seen, as I have, grave hardship caused to people who have not been able to obtain the legal representation which they require.
While I have dealt with industrial tribunals, because they constitute an area about which I happen to know most, what I have said applies with equal force to many other tribunals. I have appeared on behalf of constituents before, for example, the General Commissioners of National Insurance. It was only a matter of fortune that my constituents had a Member of Parliament who was a lawyer. Otherwise, they could not have had a lawyer to argue complicated points of law. There are many tribunals where no legal aid is available, and where people's homes, futures, health and financial security are at stake.
In extending to my hon. and learned Friend my congratulations on having the good fortune to reply to a debate in which the case has been advanced in words of which he himself would no doubt have been proud, I ask him to give me a reply which I want to hear, and, much more important, a reply which will benefit those who need help.
I was pleased to note that in another place last week my noble Friend the Lord Chancellor said that a review was under way. I hope that my hon. and learned Friend can give an indication that the review will be completed swiftly, and that we shall not have long to wait before its results are placed before my noble Friend. I hope that those results will then be made available to the public, and that steps will be taken hot foot upon publication.
In the hope that my hon. and learned Friend will provide such a happy answer at this hour of night, I gladly surrender the Floor to him.
§ 11.37 p.m.
§ The Solicitor-General (Mr. Peter Archer)
It will not surprise my hon. and learned Friend that, not for the first time in our careers, I agree with 90 per cent. of what he says—[Interruption.] The other 10 per cent. we shall deal with in a moment.
1940 The case which I attempted to make in a previous incarnation, and to which my hon. and learned Friend referred so kindly, was wholly consistent with what my hon. and learned Friend said tonight. Being in Government has a tendency to modify one's views, but mine have not been modified in that respect. Equally, the views of my noble Friend the Lord Chancellor and my right hon. and learned Friend the Attorney-General have not been modified either. We should all like to see legal aid extended to tribunals, which, as my hon. and learned Friend says, play an increasingly important part in the lives of ordinary people.
It has been argued on occasion that legal representation is not always desirable and evidence was given to the Adivsory Committee to that effect. It was pointed out that tribunals were intended to be informal, and that one should not encourage undue legalism. It is true that in many tribunals one has a helpful chairman, who tries to assist the litigant in person to put his case. Perhaps most important is the point my hon. and learned Friend made that often help is readily available from people who are not qualified lawyers, the class of people who have come to be called the Mackenziemen.
The litigant may take a friend to the tribunal. The Citizens' Advice Bureaux often lend substantial help in this direction, and, perhaps most important, the trade unions have provided help on a large scale, with conspicuous success.
There is no question of my or my right hon. and learned Friend's discouraging such help. As I said elsewhere a few weeks ago, the unmet need is so vast that in the foreseeable future we should encourage every source of meeting it. I also believe that such help fulfils an important function in its own right. I go so far as to say that in some kinds of case a trade union official could do a better job than a lawyer.
So I would not want to suggest that every tribunal case ought to be argued by a lawyer. Recently the Child Poverty Action Group declared that possibly it was less important at the moment to provide legal assistance in tribunals than to reform some of the procedures of the tribunals themselves. But the fact remains that there is a very strong argument in 1941 many cases for providing the services of a lawyer.
While we retain the ultra vires rule in our public administration—and I have not heard any arguments for changing it—there will be cases where a tribunal is confronted with the question whether certain statutory conditions have been fulfilled, and that may entail a minute consideration of a subsection of an Act or a sub-paragraph of regulations, and of the rules of construction evolved by the courts.
Those questions in many cases can be argued adequately only by a trained lawyer, and if the ordinary claimant appears without trained legal representation, even with skilled lay representation, he may find himself in difficulties.
I believe, as does my noble Friend, that we should make provision for that kind of situation, and the Lord Chancellor's Advisory Committee, in its 24th Annual Report, reached the same conclusion.
I would only add that the incidence of cases of that kind varies from tribunal to tribunal. No doubt such cases arise fairly frequently before industrial tribunals, and it is true, as my hon. and learned Friend said, that there has been an increase in the number of functions of industrial tribunals. They play a very important part in the lives of ordinary people. But we may find ourselves in difficulties if we try to compare the figures for various kinds of tribunals, if only because figures of this kind depend to a great extent on the definition of what we are looking for.
The Advisory Committee said:We do not suggest any order of priority as between different tribunals since we consider that such an approach would be unsound.I rather share that view.
I should like to mention two other matters about industrial tribunals. The first is that they have legally qualified chairmen, and it is right to echo the tribute that my hon. and learned Friend paid to them. They assist the litigants in person as far as they can, and very often that assistance is very substantial. And it is particularly in relation to industrial tribunals that we are most likely to find trade union assistance available. But, having said that, I fully take his point.
1942 With regard to what my hon. and learned Friend said about the availability not of representation but of advice, it is true that, although representation is not at present available, advice is available under the green form scheme. To correct what he said, if I may, it is not advice only up to £25. It is without limit. Application can always be made for an extension of the £25, and very often it is readily available. We ought to make that as widely known as possible among those who have occasion to go before tribunals.
Often one can marry the lay representation scheme with the green form scheme. A litigant takes along his trade union official or friend and they put the case to the solicitor. The solicitor advises them on the points of law which are likely to arise and the official or friend goes to represent the litigant. It is not as satisfactory as representation. One cannot always foresee what will arise in a case, and a layman may not argue the points of law as skilfully as a lawyer. But at least at the moment this is available, and the more widely it is known the better.
My hon. and learned Friend indicated where our immediate difficulties lie. It has not escaped his attention that at present public spending is severely restricted. It is superfluous for me to argue the importance of winning the battle against inflation. That has already been done by others better qualified. But I add that it is important for the very people whom my hon. and learned Friend has in mind tonight—those facing redundancy, those on short time, those in receipt of unemployment benefit. I am sure that they will readily appreciate the problems that we have in winning what, for them, may be an even bigger battle than their tribunal case.
No member of any Government wants to enter into a wrangle with his colleagues in other Departments about whether it is more important for someone to have medical advice or legal advice, or about which is more conducive to the sum of human happiness. I should not like it to be thought that the kind of assistance for which my hon. and learned Friend has argued is less important than any of these other matters, and certainly my noble Friend, my right hon and learned Friend the Attorney-General and I try to put this case when the occasion arises. Equally, 1943 I should find it difficult to tell my constituents that they could not have a new wing to the local hospital because we had persuaded the Treasury, instead, to spend more money on legal aid.
For the moment, we must look to rearrangements within the budget if we want to rearrange our order of priorities. There are a number of improvements in the legal services for which we have all argued at one period and which to some extent now compete for the available resources.
First, there is a strong case for raising the limits for existing legal aid to bring a greater proportion of the people within them. Twice in the lifetime of this Government the limits have been increased. However, I do not want to take a false point. We have increased them in order to keep pace with inflation. Our running has been to stay in the same place.
Equally, there is a strong argument that there should be an increase in the number of law centres, with at least some kind of subsidy from central Government. Many people regard that as an important part of the legal services which we hope to see in the future. The problem at the moment is the converse one. It is to ensure that the number of law centres is not reduced for economic reasons. This year, my noble Friend allocated £100,000 from the Vote to keep some of the existing law centres in existence.
What place does my hon. and learned Friend's requirement have in this scale? It is a difficult decision. For those who have argued for all these extensions, it is a heartrending one. It is important that we get the answers right and, for that purpose, we need all the information that we can get.
As my hon. and learned Friend said, my noble Friend the Lord Chancellor has commissioned a full inquiry by Mr. Richard White into the unmet need for legal services. My hon. and learned Friend asked what I could say about that. I can tell him that the report will be in the hands of my noble Friend by the beginning of the next parliamentary Session, so we have not long to wait. When it is in his hands, we can consider all these matters. But I hope that my 1944 hon. and learned Friend will accept that it would be a mistake to take these decisions in advance of that report.
§ Mr. Greville Janner
Will my hon. and learned Friend indicate what happens after the report gets into the hands of our noble Friend the Lord Chancellor?
§ Mr. Archer
In the first instance, obviously my noble Friend will consider it. What happens next will depend to some extent on what is in it. I cannot say more precisely whether it will be published in the form in which it reaches the table of my noble Friend, or in what form the discussion will proceed, but I hope that decisions will be taken in consequence of it in the very near future. I am sure that my hon. and learned Friend will accept that I am as anxious as he is to see that that is done.
One further aspect of this is that even when legal aid is available, not all practising lawyers are skilled in this kind of work. Until recently, matters like redundancy payments did not figure largely in a lawyer's training. It was not the fault of the lawyers. It did not often occur to members of the public to consult them. Perhaps we have to revise our concept of what is included in the term "law".
We are making progress on two fronts. A larger number of universities are running courses on welfare law, and in order to draw attention to solicitors with this kind of expertise the Law Society is arranging for referral lists to be available in every district throughout the country. Those who want the services of a solicitor will be able to look at the list and see which solicitors are available for which kind of service.
This is very important to those looking for this kind of advice, and it is being done very much with the Lord Chancellor's encouragement. At the end of the day, these problems are not easily separable one from the other. It is our aim to provide the public with the best legal services that the country—which means the public—can afford, and all these elements will be part of those services.
I am grateful to my and learned Friend for raising this question. It is a matter which requires to be debated, and 1945 the more frequently it is debated the better. I should like to see debates of this kind in which not only lawyers take part. Not only lawyers are qualified to take part. It is helpful to know from the lay public the views emerging from their experience. Perhaps we should remind our colleagues in the House that debates 1946 on such matters are for the benefit not of the lawyers but of those they exist to serve.
§ Question put and agreed to.
§ Adjourned accordingly at nine minutes to Twelve o'clock.