HC Deb 15 February 1978 vol 944 cc628-38

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Coleman.]

12.30 a.m.

Mr. Peter Walker (Worcester)

May I first express my appreciation to the Solicitor-General for being here at this late hour of night, and my apologies and regrets that he should have had to wait so long? I am confident that even at this late hour he will bring good tidings at the end of the debate and announce a change in the provision of legal aid which will help a certain group of people.

The reason for my particular interest in this topic stems from a case of one of my constituents which I took up, the parents of a mongol child who had problems in obtaining a mobility allowance. The child had originally been granted an allowance, but then the Department of Health and Social Security perfectly reasonably appealed against that decision. The normal procedures were gone through until the matter came before the national insurance commissioner, who decided in favour of my constituent. My constituent fortunately received a substantial sum of money before Christmas, back-dated, as a result of his winning that case.

As a result of the fighting of that case the Secretary of State for Social Services has recently made some changes in regulations which will affect a substantial number of parents and children in that position. But it is important to reflect upon the fact that that case would never have gone to the ultimate appeal if a solicitor in my constituency had not decided to give his advice totally free of charge. The total legal costs of those who took part in the various appeals, as can best be assessed, was between £550 and £600.

The parents could not possibly have found that sum from their own resources. Therefore, they would have given up at an early stage. If they had given up the case would not have gone to the highest level of appeal, and if that had not happened the regulations would not have been changed. Therefore, this is a perfect illustration of the dangers of having a system in which legal aid is not available for such categories of people.

In reply to Questions I have been told that there are about 3,000 to 3,500 people in the categories with which I am concerned, and that the cost of giving them legal aid would be £1 million. If they all obtained legal aid the cost would be about £300 a case. As some of them would not receive legal aid, it is clear that, in the Government's view, the average amount of legal aid that would have to be provided would probably be £400 to £600 per case. Those are sums that are beyond the means of most of the people involved in appeals to a medical tribunal or the national insurance commissioner.

Therefore, I believe that this is a very high priority. That is not my view alone. On the Order Paper is a motion in my name and signed by 91 other hon. Members. Among the early signatories were the Chairman of the Parliamentary Labour Party and the Chairman of the 1922 Committee. The majority of Liberal Members have signed. Therefore, it can be seen that there is total agreement in all parts of the House that this is a move that should be made. That is also the view of those primarily informed about, and concerned with, this topic. I refer to the report of the Lord Chancellor's Advisory Committee on Legal Aid for 1973–74. In that report, on the question of legal aid for tribunals it was said: During the year under review, the problems surrounding the extensions of the Scheme to tribunals have occupied the Council and they have submitted a Memorandum on this subject to your Advisory Committee which is understood to be in process of preparing a report based on representations received from many quarters. The issue is a crucial one because no effective expansion into the field of administrative and welfare law can be achieved in the absence of representation in tribunals dealing with matters likely to affect those eligible for legal aid and, in particular, the very poor. It lies with the Government to remove that reproach and the Council urge that this be given high priority. That was in 1973–74. It was the report of the Law Society Council and the Lord Chancellor's Advisory Committee. The Advisory Committee accepted that advice and recommended to the Lord Chancellor that legal aid should be extended to these tribunals.

In reply to a recent question the Lord Chancellor said that he was in favour of this extension. He said that the Government's public expenditure commitments might result in some delay taking place but he personally expressed his approval of the principle concerned.

In terms of public expenditure the latest report on legal aid shows that £21 million is spent on legal aid in matrimonial cases. If we are willing to pay £21 million in legal aid in matrimonial cases, it is incredible that we should decline to spend £1 million to help people who are definitely associated with mental or physical handicaps of one type or another—people who are likely to be amongst the poorest of the poor people in our society.

At present legal aid looks after nearly 200,000 cases a year, and to extend that by a further 2,000 cases in this category of person is not, in my judgment, an unreasonable demand. But we have just received the 27th annual reports of the Law Society and the Lord Chancellor's Advisory Committee, and there are some disturbing factors as well as some pleasing ones in those reports. I find the most disturbing factor on page 73, in paragraph 48, on legal aid for tribunals. It reads: The extension of legal aid to tribunals in the way we proposed in our 24th Report (that is, by adapting the advice and assistance scheme) would require amendments to the 1974 Act. We have, in any case, not yet embarked upon the necessary study and consultations to enable us to draw up an order of priority as between the various tribunals. However, as we said in our memorandum to the Royal Commission, our present view is that Industrial Tribunals are among the most pressing candidates for some form of legal aid. We know that this view is widely shared by those concerned with legal services although there may be other tribunals to which high priority should be given. We hope to go into these matters more closely wtih further assistance from the Council on Tribunals during the coming year. This illustrates a remarkable lethargy, considering that the recommendation to proceed was made three years earlier. Nevertheless, we finally have a clear statement of policy, to the effect that it is important that legal aid to tribunals should be made available. This appears on page 93 of the reports, in which is stated categorically a whole range of very important reasons why legal aid should be given in this case. I want to read some of the points made.

The report states: What is needed is a reliable system to ensure that an applicant to a tribunal can obtain:

  1. (i) preliminary advice as to his rights, as to the advisability of appealing, and as to the consequences which will follow if he decides to do so;
  2. (ii) guidance as to how the tribunal will be constituted, the powers that it will be entitled to exercise and the procedure which will apply at the hearing;
  3. (iii) frequently assistance in gathering information and preparing his case;
  4. (iv) in many cases, preparation of a written statement for the tribunal, clearly setting out the relevant facts and any law which may be applicable; and
  5. (v) in a limited number of cases, representation at the hearing and advice thereafter."
I do not suggest that a member of the legal profession should appear at every one of these hearings. I believe that a procedure would be necessary to determine when legal aid for putting in an appearance at the tribunal was necessary and advisable. In the case of my constituent it was certainly advisable. I do not believe that the result achieved would have been achieved without that legal representation. In other cases, more minor, less important, less involved with matters of major principle, it may well be that no legal representation at the hearing is necessary. I believe that a screening process would be required.

What I am certain of is that for a very small sum of public expenditure a great deal of justice can go to a large number of people who have fundamental and basic problems. I recognise all the restraints upon Government spending. I have occupied positions at two major spending Ministries and know about the pressures that come from the Treasury. But I suggest that if we continue with this principle and delay matters further, with no action being taken for several years, waiting for the economic climate to be right, we shall wait for many months and years during which time 300 people a month will not be represented in the way they should be. During that time a lot of people, mentally or physically handicapped, will perhaps be deprived of benefits which they would otherwise enjoy.

It is for that reason that I hope that the Minister will take note of the feeling in all parts of the House, of the advice which the Lord Chancellor is receiving, and of the principle to which the Lord Chancellor has given verbal support, and will give some indication that the Government will act in the near future.

12.42 a.m.

The Solicitor-General (Mr. Peter Archer)

I am well aware of the concern which the right hon. Member for Worcester (Mr. Walker) has manifested for his constituents in this case, and I think he knows that the story of Robert Edmunds and his parents is not unknown to me. I was made aware of them through my personal concern with mental handicap in the West Midlands and I was pleased to see that, through the generosity of members of the legal profession, the family was ably represented before the national insurance commissioner.

The right hon. Member points very properly to the general implications of the story. He cites it as an example of the need for legal representation to be available in instances where it is not at present available under the legal aid scheme. If I were to dissent from the proposition in that form I would be guilty of denying in government what I have frequently asserted in opposition. I have concluded speeches very much along the lines of the conclusion of the speech by the right hon. Gentleman. But he appreciates that this matter raises at least two questions which any Government would have to face.

The first is, in what circumstances is legal aid required for proceedings before tribunals or before officers exercising judicial or quasi-judicial functions outside the courts? It is a question to which, as the right hon. Member says, a great deal of thought has been given over the years. He mentioned the Lord Chancellor's Advisory Committee on Legal Aid which, in its 24th annual report, recommended that legal aid should be extended to all administrative tribunals under the supervision of the Council on Tribunals. But it is not true that no further thought has been given to the matter since that report.

It is now clear that not everyone would express the principle in such wide terms. As the right hon. Member realises, there must be qualifications. There are those who say that some tribunals and procedures are essentially informal, that they are there to decide questions best decided by the application of experience in the field and by common sense. People need assistance, it is said. But in those matters it is argued that there are those without legal qualifications who are sometimes better able than lawyers to say what an ordinary person wants to say, and there is an additional advantage that such persons can provide assistance at a lower cost.

This was the view expressed by the Trades Union Congress in its evidence to the Royal Commission on Legal Services. But I know that the TUC would agree that there are cases where the issue to be decided is a technical one, where questions of statutory interpretation or the application of precedent are likely to arise, and where a litigant can be sure of receiving justice only if he has the help of a qualified lawyer. The problem is to decide how we define the circumstances—depending on the tribunal, the procedures, the issues—where the help of a lawyer should be available. The right hon. Gentleman very fairly recognised that problem. Something may turn on whether it is an adversary procedure, but I would not regard that as conclusive.

Appended to the evidence of the TUC to which I have just referred is a joint statement by the TUC and the Labour Party which includes this passage: Improvements in the provision of tribunal representation should maintain the present emphasis on lay representatives and encourage the accessibility, speed, cheapness and informality of proceedings. The special expertise of lawyers is only needed in a small number of cases". There is room for disagreement as to the size of that proportion, but I doubt whether many would dispute that some cases require lawyers and others do not. The difficulty is how we decide between the two sets of cases.

There is a project in Wolverhampton at present, sponsored by the National Association of Citizens' Advice Bureaux, and financed by the European Economic Community Social Fund, to see how people can best be advised and represented in certain kinds of tribunal proceedings.

A great deal of thinking and research are going on at this moment, and I hope that within a measurable time we shall have the report of the Royal Commission on Legal Services. I doubt whether decisions about where lawyers are most needed, where they are needed less urgently, and where they are not needed at all can be taken except in the context of recommendations about legal services generally.

I hope that the right hon. Gentleman will accept that the particular category of cases to which he referred is not unique, and the figure which he quoted of £1 million, for example, relates to one category of cases—cases before medical appeal tribunals and proceedings before the national insurance commissioner. There is no obvious reason why they should be singled out at once to the exclusion of all other proceedings. I think that they have to be considered in the context of legal aid for tribunal proceedings, otherwise tomorrow another hon. Member, one of whose constituents has to litigate before a different tribunal, will complain that his problem should have been dealt with in advance.

Let me add—because the right hon. Gentleman adverted to it—that there is a distinction between the need for legal aid so that people can be represented, and the need for legal advice and assistance so that they may consult a lawyer and receive advice on whether to appeal to a tribunal, on what the essentials of the case are, what evidence to call and what arguments to adduce. That kind of advice may be needed in many cases where there is less need for representation, or perhaps no need at all. Provision for that exists already.

The right hon. Gentleman read from the most recent report of the committee, and he read the various types of help which the committee said were urgently needed. With the exception of the last category, they are all available already under the green form scheme, and it is widely used. Sometimes, even where an applicant is represented by a lay person, they go together to the applicant's solicitor under the green form scheme and discuss the legal aspects of the case.

The Law Society, which administers the scheme, has estimated that the net annual cost at present of assistance under that scheme for tribunal matters is about £112,000. I would not wish the right hon. Gentleman to misunderstand me. He recognises, I think, that that kind of assistance is available. I would not suggest that legal advice and assistance of that kind are a substitute for legal representation where that is necessary. Obviously they are not. But equally it would be misleading to discuss the question as though that kind of advice and assistance were not available.

That brings me to the other aspect of the problem which faces us, as the right hon. Gentleman very fairly accepted. Whether we are discussing legal aid for representation or legal advice and assistance, they are not available at present to enough people. I do not think that I can improve on what was said by the Legal Aid Advisory Committee in its most recent report. I quote from paragraph 40. It is a slightly lengthier quotation than I normally give, but I hope that the House will bear with me because it puts the case so much better than I can. It says: In our view adequate legal services can in the foreseeable future be based only on the present system of legal aid. We believe that steps must be taken to enable that system to achieve its full potential as the principal means of making legal aid, advice and assistance available to people who are, in the words of the Act that established legal aid, of 'small or moderate means'. Financial conditions have not been adjusted to take account of a situation where rising incomes have made many ineligible for legal aid while increased costs have prevented them from carrying on litigation unaided. In addition many of those who remain eligible for legal aid are unable to take advantage of it because of the level of contribution asked of them. This together with restrictions on expenditure has meant that legal aid, advice and assistance are no longer available to a high proportion of those for whom they were intended by Parliament. As we remarked earlier, although the decline in eligibility seems to have been arrested since 1974 by linking income limits to increases in supplementary benefits, the substantial decline which had already taken place has not been made good. The most important step pending the Report of the Royal Commission is to improve financial conditions at least to the extent that those people of small or moderate means who have been forced outside the scheme are brought back within it. It concludes: This must be the first priority for any resources which become available. I can only respectfully echo that. I believe that it should be the first priority. We have arrested the decline, as the committee says, but we have not made up the ground which preceded that decline. There is little point in widening the scheme until it is available for those for whom it was intended by Parliament. As I see it, there is no point in adding another seat to the vehicle so long as the engine is not powerful enough to move it.

Mr. Peter Walker

But surely it is not right, if, three or four years ago, the commttee said, "We feel that it is desperately important to extend legal aid to a particular section", to rest on the fact that the original Act failed to meet this problem, and that therefore that group gets only second priority to improving the conditions. The people I have spoken about—the mentally handicapped, the physically handicapped—are amongst the poorest in our community. If they were not included, the original intention of the Act was wrong, and they should have been included. Their inclusion is surely as strong a priority as raising the financial limits of the scheme.

The Solicitor-General

That is a point of view, but it is not the point of view of the committee. It could be strongly argued that to widen the scope of the scheme is rather pointless until it reaches all the categories and income groups for whom it was intended. Unhappily it is a question of priority, as the right hon. Gentleman fairly observed.

The Lord Chancellor and I have had occasion many times to speak of the limits on resources, which gives us no source of pleasure. My noble Friend could hardly ask, when all public expenditure was being contained, that a special exception should be made for legal aid.

The right hon. Gentleman spoke of the money spent on matrimonial cases. There will now be some saving there. From the extension of the special procedure to all undefended divorces, it is hoped that there will later be some saving. When it is available, there will be many worthwhile calls on that budget. I should be less than honest if I pretended that the proposals made by the right hon. Gentleman necessarily came first in the order of priority, but, of course, the point he has made will be considered and I shall invite my noble Friend to consider what has been said.

The right hon. Gentleman knows from his own experience that it is sometimes the duty of Ministers to point to all the problems and competing claims. That is not to say that because we have to work out the priorities I am seeking to deny that there is a problem. I hope that no one will infer that I am happy with a situation in which Mr. and Mrs. Edmunds felt that they had to rely on the generosity of solicitors and counsel.

The right hon. Gentleman's point has been taken. He said that he hoped that I would bring good news. He may not think that the fact that the matter is being considered carefully is quite the good news for which he had hoped But I am grateful to him for the opportunity to indicate my noble Friend's thinking on the matter, and I assure him that we are not indifferent.

Question put and agreed to.

Adjourned accordingly at four minutes to One o'clock.