§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. John Ellis.]
§ 2.32 a.m.
§ Mr. Leo Abse (Pontypool)I declare my interest as a practising solicitor, and I speak, hut, I hope, not pretentiously, as one of the architects of our reformed divorce law.
The fundamental principle of the reformed divorce laws of this country was the assurance that, when a marriage had irretrievably broken down, it could be ended with the maximum fairness and the minimum bitterness, distress, and humiliation. The changed law had an overriding aim: it was to guarantee that the sad separation of a husband and wife could take place with dignity and understanding, as free as possible from the recriminations, scavenging of motives, and cruel distancing of parties that were activated by our old punitive laws, so lacking in insight. Within the new framework, the parties at last have been able to be guided to deal fairly and reasonably over matters concerning maintenance, over the matrimonial home and above all, to come together—not at arm's length—to mitigate the consequences to the real victims of marriage breakdown, the children, who now no longer can easily be used as weapons in a battle of the sexes that was inflamed, not contained, by our old divorce laws. No one denies that very substantially, although, of course, not perfectly, the new divorce laws have worked reasonably well.
In future, however, if this House and the country permit the Lord Chancellor's shabby announcement of intention that legal aid, except in a derisory attenuated form, will not be granted for divorce, ultimately the benefits of our reformed divorce laws will be confined to the rich.
1126 The poor and less-well-off, particularly the deserted or badly treated wives and their children at the most vulnerable moment in their lives, will find themselves bewildered and lost, in a no-man's land with naught for their comfort and aid but bewildering forms and impersonal, anonymous, undertrained court officials.
Legal aid is granted to four out of five of the 90,000 wives who annually file divorce petitions, the vast majority mothers with young children. These are the people who will find themselves, in future, in a cruel limbo.
The announcement of the Lord Chancellor withdrawing legal aid is no slight administrative change occasioned by Treasury pressure; it is a fundamental assault, albeit elliptically, in the rationale behind our reformed divorce law, which was established upon the firm base of a well-tried and efficient legal aid mechanism. The new divorce law was, with intent, enmeshed with our legal aid scheme. The law declared that conciliation was the desirable objective; the legal aid scheme was the means to bring the conciliation about. The very small number of divorces which today are fought, and the very small number of disputes about the custody of the children, are tributes to the comparative efficiency of the system.
Today, unlike yesteryear, the overwhelming majority of matrimonial disputes are settled by negotiation. Legal aid has shown itself to be aid to agree, not aid to fight.
If, as now appears to be intended, legal aid is to be granted only in defended cases, the Lord Chancellor's announcement is a veritable incitement to a recrudescence of the old battles that disgraced our divorce courts and wreaked such havoc upon the children of the warring parties. One of the main benefits of the existing legal aid scheme is that the parties receive advice that prevents entrenched positions being taken up. The parties have a catharsis as they initially pour out their difficulties to a solicitor and then realistically have to face up to the consequences that flow from the breakdown of the marriage.
In the overwhelming majority of cases, when the client comes to a solicitor, she 1127 is aware that her marriage has irretrievably broken down. Her main concerns, the matters upon which she needs and demands guidance, are related to the children, the home and the future finances of the soon-to-be-broken family unit. These are the matters that must be resolved initially—not subsequently—before the divorce proceeds.
The good family lawyers—and they are not found in the large commercial practices in the City or the West End—who do the bulk of legal aid matrimonial work in the cities and large towns, usually specialise in and follow the practice, encouraged by the courts, of striving hard for agreement between the parties on the issues of children and money. A new skill—welfare benefit planning—has consequently emerged. Provided, and only provided, the parties co-operate, it is possible to raise the incomes of both the parties to a divorce suit by judicious use of the taxation rules and available welfare benefits.
The people who gain most from this are smack in the existing legal aid bracket. The more agreement there is between them, the less will be the need for litigation and the more likely it is that the children will be left in better economic circumstances with two participating parents. The collapse of legal aid will sabotage all these efforts.
The defence in the Lords and in The Times, by the Lord Chancellor, for this dismantling of divorce legal aid fell far short of his usual formidable forensic skill, no doubt because he is too sensitive and compassionate a man to operate with enthusiasm such butchery on behalf of the Treasury. As I understand the Lord Chancellor, he pleads first, that in any event too high a proportion of the amount spent on legal aid goes into divorce proceedings. That is a droll argument. It is no doubt chastening, but it is a fact, that more than 100,000 petitioners and respondents, mostly mothers, are annually given legal aid in divorce. They are given it because they are eligible and desperately need it. We do not abolish matrimonial distress among the less-well-off by pontificating that too much of it exists and then, in the manner of Pontius Pilate, refuse legal aid. That will not end matri- 1128 monial breakdown—it will hugely increase the distress associated with it.
I hope that the Solicitor-General will not be so jejune as to adopt that quaint Victorian argument. If the proposition put forward was that we rationalise the procedure and save costs in these dire times by ending the necessity for the simple case to be conducted in open court, with counsel, thus saving perhaps £30 to £40 per case, few would dissent. To achieve that object, if justice is to be done, there must be available the preliminary legal aid and advice that I have catalogued to ensure that the divorce degree granted in a private office—as is now proposed in cases where there are children, or where wives have suffered—brings no unnecessary hardship and injustice to the family.
Secondly, the Lord Chancellor pleads that in any event he will make available the so-called "green form" scheme for divorce advice. This is indeed a dusty answer to the anguish of a bewildered, deserted wife. This scheme gives a client, if he or she is eligible after being means-tested by the solicitor, as the rule provides, the right to a little advice—no more. The disposable income and capital rules of the scheme are such that, apart from such cases as when the woman is in receipt of supplementary benefit, she is officially required to make payment by way of contributions. In parctice, the solicitor knows that the woman often has not got a penny with her and, if asked for a contribution, would go away, abandoned.
Many solicitors, as I well know, waive the contribution, not wishing to extort money where so little exists, and get back what money they can from the legal aid fund. With the maximum ceiling in existence, given the time taken by a solicitor required to do the means-testing and the administrative work in claiming the amount, and given present inflation and overheads, I would be surprised if, on average, a solicitor can today make more net profit—before tax —than £5 using the green form scheme.
It is blatantly obvious that the time that would in these circumstances be given to considering the welfare and future of the children, the matrimonial home and the maintenance of a wife and children, would be utterly inade- 1129 quate. Even after perfunctory consideration and advice had been given the wife would have to go out from the solicitor's office to the street to begin her trek to the court office to obtain the forms and seek to recollect, in an emotional and often traumatic condition, some of the advice that she had received before attempting to fill in the forms and affidavits and hand the botched-up information, which could so adversely affect her, to harassed court clerks.
I do not know what world the Treasury officials demanding this pound of flesh live in, but it is a world miles apart from the waiting room of any legal aid solicitor or the surgeries of Members of Parliament. I hope that the Solicitor-General will not have the insouciance to suggest that the green form scheme mitigates the shameful suggestion that in future the legal profession is to be substantially excluded from giving aid in divorce proceedings except to the comfortably-off. I hope, too, that we shall be spared the innuendo that some time. somewhere, saving money in this way will lead to opening up legal advice centres in working-class areas. If that has to be done on the backs of one-parent families, it is best not attempted.
Nor, I trust, shall we be treated to the argument that there is no alternative way of saving public money, as must be done these days, within our legal services. The Lord Chancellor would be well advised to demand that the Home Office implement in full the James Report, which recommends the redistribution of criminal business from the Crown courts to the magistrates' courts. Less criminal work in the Crown courts would save much legal aid expenditure, and excessive sensitivity to the right of a jury for those charged with criminal offences at a time of national economic travail is an indulgence that we cannot permit when it is done at the expense of denying legal aid to wives and children embroiled in a family breakdown.
Many familiar with this field, such as the former Lord Chancellor, Lord Hailsham, who spoke wisely and with considerable weight against the proposal in another place, share my doubts that at the end of the day this ill-thought-out proposal, unless substantially modified, will not lead to any significant reduction in legal aid expenditure. Petitions, 1130 inevitably badly drafted in this do-it-yourself proposal, will be so frail that a respondent will be advised to defend, and this is bound to lead to legal aid being given to redraft and amend the original petition.
It will provoke more defended cases. It will provoke legally-aided disputes, which will unnecessarily arise after the decree in respect of ancillary proceedings, because it will not have been possible for the preventive action to be taken in the first place. It will mean setting up a new bureaucratic system to determine who will and who will not have to pay the court fee of £16 for a petition, the £1 fee for affidavits—and similarly, since people so frequently lose their marriage certificates, the fee of £4.50 for a copy, to devise a system in which they may be obtained for some freely.
It will mean, inevitably, as the registrars, deprived of solicitors appearing before them rendering assistance, find themselves acting more in an investigatory than an adjudication capacity, that the appointment of more registrars will be required. It will mean, of course, the appointment of a host of new court officials and, until then, unconscionable delays. It will undoubtedly mean that, lacking the probing skills of petitioners' solicitors, orders not really truly representative of the means of the parties will be made, and consequently far greater sums will fall on the Department of Health and Social Security.
I fought for many years to reform the divorce laws of this land. I did not fight to reform them for the wealthy alone. I fought particularly to reform them for the benefit of the children of broken marriages. The Lord Chancellor would be well advised to inform the Treasury now that if the proposal that legal aid is to be withdrawn from any deserted or ill-treated mother of children under 16 is persisted in, it will meet with unremitting hostility in and out of this House.
I hope that the consultations that the Lord Chancellor is presently having, and the reply that the Solicitor-General will give me, will be the precursors to a complete reappraisal of a proposal that falls wholly into the category of panic economic measures, rightly condemned both by the Prime Minister and the Chancellor of the Exchequer.
§ 2.45 a.m.
§ The Solicitor-General (Mr. Peter Archer)While I do not accept all that my hon. Friend the Member for Pontypool (Mr. Abse) has said in somewhat dramatic terms, I think that the House will be grateful to have had the opportunity of airing the matter at an early stage, even though we shall be discussing it at greater length before the proposals are implemented.
I begin by saying that individuals do not suffer a sea change when entering Government. It is not true that people like my noble and learned Friend the Lord Chancellor, my right hon. and learned Friend the Attorney-General and I, who for years have campaigned for an extension of legal services, suddenly, on taking office, experience an aversion to them and take a compulsive delight in reducing them.
In order to approach this matter rationally we have to assess the alternative courses of action which would be open to my noble and learned Friend, and their probable consequences. I therefore propose, in the very brief time available to me, to set out my view of the problem confronting my noble and learned Friend, of the solution that he proposes, and of its likely consequence.
Let me make it clear that my noble and learned Friend is not proposing to act without consultation. These proposals are not intended to take effect until some time in 1977. My noble and learned Friend made an early announcement precisely so that they can be discussed.
I turn first to the problem. We have to state it in the whole context of the need to contain public expenditure. The Government take the view that if we fail to do that the consequences for all of us and for our children's children will be bleak indeed. I appreciate that there are those who dispute that thesis. We cannot discuss that within the confines of this debate, but wiser heads than mine have explained the Government's reasons.
I say only that I wish, as my noble and learned Friend wishes, that legal services could be exempted from that policy, but my noble and learned Friend could hardly say to the Chancellor of the Exchequer "Not legal services. Let their share fall on the education budget, on the hospital building programme and on 1132 social services." We have to work within the world as it is.
But the problem goes beyond that. My noble and learned Friend has made clear since he assumed office that there are improvements that he wishes to make to legal services, in particular by raising the limits of financial eligibility for legal aid. That is still his wish. I would like to eliminate some misunderstandings about this. We are discussing not only the upper financial limits on legal aid, but a whole range of matters related to financial arrangements for legal aid, and in this context the expression "legal aid" is intended to include legal advice and assistance.
Further, my noble and learned Friend wishes, as he has always wished, to extend the provision of law centres to areas of greatest need.
If there is to be any hope for all that we must take some clear decisions about priorities.
In fact, expenditure on civil legal aid has risen sharply in recent years. In the year 1971–72, this head of expenditure amounted to £11.5 million. In the current year, 1976–77. it is estimated that it will amount to £34.5 million. That, on any showing. is a very substantial increase, even allowing for the effect of inflation. That is not a quaint Victorian argument, but a hard fact. The Government's expenditure plans to 1979–80 require that after this year's expenditure, civil legal aid should remain reasonably constant in real terms, so the purpose of the changes is not to produce an absolute cut in expenditure but to contain expenditure at its present level. In fact, if we take civil and criminal legal aid together. a total expenditure that has doubled, in real terms, over the last five years is expected to incease again by nearly 25 per cent.
The proposals that we are considering are not even the running that we do to stay in the same place; they represent the running that is necessary to prevent ourselves travelling backwards even faster.
I therefore want to make it crystal clear that if the proposals for limiting legal aid for divorce are rejected, the saving will have to be found elsewhere within the civil legal aid budget. There are no easy options.
1133 My noble and learned Friend has to decide where and how economies can best be made with a minimum of hardship. He proposes to reduce the need for representation in undefended divorce proceedings, thus making legal aid unnecessary. His procedural proposals will entail decisions that belong to the Matrimonial Causes Rule Committee, and he will be laying his proposals before the committee.
These proposals are a logical extension of the major innovations that have already taken place since I used to spend mornings doing undefended divorces. The first of these was the extension of divorce jurisdiction to the county court. The second was the radical alteration in our substantive law of divorce, which was effected by the Divorce Reform Act 1969. to which my hon. Friend has referred and with which he was closely associated. The third of these was the introduction, at the instance of Lord Hailsham, the Lord Chancellor in the former Conservative Government, of what is called the "special procedure".
It may be worth pausing a moment to make that procedure clear. Where the respondent indicates an intention not to defend, the petitioner is required to complete an affidavit on a form that is available in the court office, to swear it, and to file it with the court. The affidavit provides the evidence to support the allegations in the petition, and normally that will be the whole of the evidence.
The petition, affidavit, and any other papers there may be, are then considered by the registrar of the court without the attendance of the parties. If the registrar is satisfied, he gives a certificate to that effect and a decree nisi is pronounced by the judge in open court without the attendance of either of the parties and without any hearing. So the question of representation does not arise. There is no hearing where anyone can be represented.
If the registrar, when he reads the papers, is not satisfied, he may ask for further information before giving his certificate, or order that the case may be heard by the judge in open court, and in that situation I would expect legal aid to be available, as I shall explain later.
1134 At present this procedure applies to all undefended divorce cases where there are no children under 16, except for cases based on allegations of unreasonable behaviour. This is an arrangement that combines economy with humanity. It has rendered it unnecessary for thousands of people to appear in court and join publicly in the dissection of their dead marriage. It has also reduced the cost of proceedings in a major field of litigation, whether the cost is met by legal aid or by private funds.
My noble and learned Friend proposes to extend that special procedure to all undefended cases. Where there are children, the judge, where he feels it appropriate, will still be able to ask the petitioner to attend court to discuss the arrangements for them. Normally, where he does so he will be likely to deal with the matter in his private room.
It follows that legal aid will not be needed for representation on the hearing of the divorce itself, for the very good reason that there will not be a hearing. Legal advice and assistance will still be available under the green form scheme, and I appreciate that it is about this that my hon. Friend is chiefly concerned. If to point that out is insouciance, I plead guilty to insouciance.
I should like to confirm, as clearly as I can, that the scheme will include advice on the petition itself, assistance in preparing the petition, assistance in preparing the affidavit, and conciliation and negotiations with a view to the settlement of such matters as maintenance, family property and the custody of the children —matters that my hon. Friend described.
§ The Solicitor-GeneralPerhaps I should also make clear what is sometimes a source of confusion. From my hon. Friend's intervention I suspect that there is confusion even in his mind.
The green form scheme is sometimes known as the £25 scheme. I think that that expression is misleading. This figure relates to the fact that although there is no limit on the amount of work that a solicitor may do under it, he must obtain authority from the Law Society where his costs are likely to exceed £25, and, of course, under the new arrangements there are likely to be more cases where solicitors provide advice and assistance in 1135 excess of this figure. But I can reassure them that, provided they obtain authority from the Law Society, they will be paid for all the work which is required, which was described in some detail by my hon. Friend.
The saving, therefore, will be in relation to representation. The occasion for it will not normally arise on divorce, but, of course, it will be available in special cases. It is difficult, particularly at this stage, to list in detail what those special cases might be, but they will probably include situations where the hearing has been directed in open court; for example, if the registrar feels that there is a difficulty about jurisdiction, or where the petitioner suffers from serious illness or incapacity.
But, of course, legal aid will continue in any event to be available for particular parts of the proceedings. Again, it is too early to list them in detail, but I would expect it to be available in the following cases: where the petitioner seeks to present a petition for divorce before the expiration of three years from the date of the marriage; where there is an application for an injunction, including an interim injunction; where a claim for ancillary relief requires some issue to be resolved; or where there is a dispute about the children.
It remains to consider the adequacy of the limits applying to the green form scheme. My hon. Friend expressed concern that some people who are now within the legal aid limits will not be eligible for aid and advice because those limits are different. Of course, that is an important matter, but the estimates available to my noble and learned Friend suggest that of those who currently obtain legal aid for divorce not more than 10 per cent. are out of scope for advice and assistance under the green form. This 10 per cent. represent the top 10 per cent. who are only eligible for legal aid on payment of a relatively substantial contribution, which may often exceed the cost of the necessary advice and assistance under the new arrangements. But I should add that this is one of the matters which my noble and learned Friend will be keeping under close consideration in preparing to implement his proposals.
Let me now say a word on the use that may be made of the savings. Of course, 1136 the first call on these savings will be our commitment to contain public expenditure. During the first two years after the introduction of the change this will not be easy, bearing in mind that the legal aid fund will still be meeting bills on cases completed before the change at a time when the income from contributions will have stopped. But, after this initial period, it is hoped that the savings will be sufficient to make real improvements in our financial arrangements for legal aid and for legal advice and assistance and to extend the provision of law centres in areas of greatest need. Of course, there can be no promise as to when and how much my noble and learned Friend will do, but he will do as much as possible as soon as possible. Those who know him will appreciate that he will do it with a glad heart.
Let me add that I am mindful of the concern among certain sections of the legal profession about the effect of the proposals on the income of those who practise in this field.
That is a legitimate concern. Any professional body, like any trade union, is entitled to point out that the livelihood of its members is a factor to bear in mind when proposals are considered. Certainly I should not lightly dismiss that. Legal aid for divorce was once an important element in my own income.
I must not anticipate what may be said either to or by the Royal Commission on Legal Services, but I believe that both branches of the legal profession have survived more disturbing vicissitudes. I have already explained that the legal profession may look forward to a period when the total legal aid bill is expected to increase substantially, and I believe that the future for the Bar holds more promise than when I was called. There is no danger that the demands for the services of the legal profession will be reduced. I know that the major concern of the professional bodies is that matters should be so organised that the need for advice among ordinary bewildered people in an increasingly complicated world should be fulfilled as effectively as possible. That is the purpose of these proposals.
§ Question put and agreed to.
§ Adjourned accordingly at three minutes to Three o'clock a.m.