Legal Aid (Hansard, 8 February 1982)

§ Mr. John Ryman (Blyth)

I declare an interest in a professional sense in the provision of legal aid. My purpose in raising the subject is to ask the Government to express their views on a number of topics arising from the administration of legal aid.

With the recent publication of the 31st annual report of the Law Society and of the Lord Chancellor's advisory committee it is perhaps an appropriate time to remind the Government of the serious anxiety felt by many people about deficiencies in the legal aid system. I am sure that the Solicitor-General will give helpful consideration to the points of which I gave him notice informally before tonight's debate. I believe that there is not much disagreement between the Government and myself upon this matter. The question is: how are they to be dealt with by the Government?

Despite our natural pride in the administration of legal aid—which is very fine; and many hardworking men and women work for the system successfully, both in civil and criminal legal—there are serious shortcomings and deficiencies of which the Government are well aware. The Government have been considering them for several years.

What specific decisions are being made? It is universally acknowledged by all parties that serious hardship exists. Before the Attorney-General leaves the Chamber and I address my remarks to the Solicitor-General, I should like to ask him to deal with some specific points. In such a short debate there is insufficient time to deal with all the problems. Perhaps he can express the Government's view about some specific subjects of which I have given him notice.

Have the Government reached a conclusion on the provision of legal aid for parents in care proceedings? The Government are aware of the problems. The existing position is extraordinary. In proceedings by local authorities in respect of a child— these are obviously heartbreaking and serious proceedings involving the future of the child—the child may be granted legal aid under the regulations for legal representation, but neither of the parents may be granted legal aid. That seems extraordinary. It involves necessarily a dispute between the local authorities and the parents. Solicitors can be instructed on behalf of the child, which in practice means being instructed by the parents to represent the child's interests, but the parents can have no separate legal representation through legal aid.

If the parents cannot afford legal representation, they are unrepresented. This provides acute problems for the instructing solicitor, as he may find that there is a conflict of interest between the child and the parents. For example, the very reason why a local authority may be taking steps to remove the child from the parents' custody may be an allegation of cruelty against the parents. I appreciate that guidelines have been issued to solicitors where a conflict of interest arises, and no doubt solicitors will pay careful attention to these, but it seems supremely unsatisfactory that in something as painful and important as proceedings between a local authority and parents the parents have not in law a right to avail themselves of the legal aid system.

834 I apprehend that the Government will not disagree that there is a need to cure this defect. The cost of curing it is something that the Law Society has considered in some detail. I understand that about £1 million has been mentioned as necessary to make legal aid available to the parents. That may be only an approximate figure because we do not know how many additional proceedings might be taken if parents were legally aided, or how many proceedings would be defended which have not been defended because of the absence of legal aid. However, I mention that approximate figure to give the Government some idea of the cost involved.

The next type of proceeding in respect of which there is no legal aid—it seems extraordinary that there is not—is that which takes place before mental health review tribunals. There is a Bill passing through Parliament—the Mental Health (Amendment) Bill—which will do nothing but good and which is to be wholly welcomed. It will increase the work of the tribunals and provide greater safeguards for those whose cases are considered by the tribunals. The future augurs that more proceedings will take place before the tribunals as a result of the legislation that is in the pipeline.

Although excellent legal advice can be given under the green form scheme, anybody appearing before a mental health review tribunal has not in law a legal right to legal aid. That is a terrible state of affairs because one cannot envisage circumstances involving the liberty of the subject at which there is no right to legal aid. Therefore, the person whose case is being considered does not have the opportunity of making representations through legal representations to the tribunal. We must be realistic about the sort of people who appear before the tribunals. They would not appear before them unless they were not in a disadvantaged position.

A layman might be able to argue a case before an industrial tribunal, but these people are especially in need of legal representation. By the very nature of the proceedings, these people are incapable of conducting legal argument. Legal aid for such proceedings should be provided urgently. The Law Society has again supplied me with the costing. A modest £60,000 per annum would provide the legal aid in these cases.

The third point is the absence of legal aid for bail application to the Crown court before committal proceedings are completed. It is possible to get legal aid to apply to a judge in chambers—for example, on a long remand where the magistrates have refused bail. But no legal aid is available where a defendant has been refused bail by the magistrates and wishes to apply to the Crown court, which is the court to which the prosecution is seeking committal. The Law Society tells me that if legal aid was available for such applications great savings could be made. No affidavit would have to be sworn and no documents prepared for such an application.

The Government will be concerned about the cost and where to find the money. But for some time the Law Society has made representations to the Government about how huge sums can be saved in the administration of legal aid. I cannot identify all the ways in which that can be done, but I shall give two specific cases.

The first is the way that people are assessed for legal aid. The procedure is complicated. The Department of Health and Social Security investigates the means of an applicant. Frequently the applicant is interviewed. It costs about £4 million per annum to decide whether applicant 835 for civil legal aid is entitled to such aid. The authorities then decide the amount of the applicant's contribution, if any. It is a thorough but cumbersome system. It would be simpler if the applicant filled in a form, backed with penalties for not supplying truthful information. A committee of the Law Society in each region could make the decision. If there was uncertainty, the applicant could then be interviewed and the merits of his case considered. This would allow for discretion in borderline cases.

I am asking the Government to abolish the existing cumbersome and expensive machinery for assessing legal aid and to replace it with a greatly simplified form of assessment involving self-assessment by the applicant, subject to the right to scrutinise every application and, if necessary, to interview the applicant. If, prima facie, a person is not entitled to legal aid, that will be dealt with straight away. If further information is required, it can be requested from him. The present cumbersome machinery is not only expensive and time-consuming. It is slow, because, unless there is an emergency of some kind, inevitably decisions cannot be made sufficiently quickly, The person may not seek legal aid sufficiently early and only at the last moment when he is served with the documents by the other side does he go to a solicitor who advises him to apply for legal aid at once.

My other suggestion is that the Government should consider the whole subject of committal proceedings and whether legal aid money is wasted on purely formal proceedings. Under the existing system there are many formal attendances and a huge sum is wasted when solicitors instructed on behalf of defendants have to appear, knowing full well in advance that nothing contentious will be said and that there is really no reason why they should appear. If the system were simplified, it could be made clear in advance that a person would appear at a particular magistrates' court on a particular day and would then be remanded until another day . The defendant's interests would thus be safeguarded and it would be unnecessary for his solicitor to attend at all.

I am conscious of the time, and I wish to give the Solicitor-General sufficient time to reply to these points. I have raised three particular subjects and made two specific suggestions as to where savings could be achieved. I should have liked to develop all those themes more fully, but there is insufficient time to do so. I therefore conclude by simply asking a question.

I apprehend that the Government are sympathetic to all these points and that they have been considering them for some time. Can the Solicitor-General tell us when the Government propose to make decisions about these matters? In their annual reports this year, the Law Society and the Lord Chancellor's advisory committee were distinctly critical of the pace of reforms. Both are responsible and knowledgeable bodies which do not make criticisms lightly. In the light of those criticsms, will the hon. and learned Gentleman tell us what the Government's intentions are?

§ The Solicitor-General (Sir Ian Percival)

The hon. Member for Blyth (Mr. Ryman) very courteously informed me in advance of the specific subjects that he wished to raise, and I shall do my best to reply specifically to them.

First, however, I make one or two general observations. The hon. Gentleman very courteously assumed that the 836 Government shared the anxieties and objectives behind what he said; and I confirm that that is so. He also rightly referred to the natural pride that we can and should take in our legal aid scheme. It is a fine scheme—I doubt whether there is any better in the world—but that does not mean that we should not continually try to build on it. It is right that the many claims for improvement are frequently referred to in the House. The problem lies in deciding which of the many areas which invite our attention can receive the money necessary to extend legal aid to them. The hon. Gentleman has referred to three, which were also referred to in the Law Society report and which excite considerable interest among many people.

The first issue was the question of providing legal aid for parents in care proceedings. I say without hesitation that the Government recognise the desirability of parents being eligible to receive legal aid to cover the cost of being legally represented in such proceedings. I have no better figure of the cost involved than the hon. Gentleman's estimate of £1 million. It does not sound much, but it is a not insignificant sum when included in the list of improvements that we should all like to make. That extra £1 million is not the highest priority, but more money is being spent on legal aid and the £1 million will have a high priority when extra funds become available.

The hon. Gentleman will appreciate that there are many things that the Government are doing, not least in the Legal Aid Bill which is before the House, to make savings on the existing expenditure, 'which has become enormous, so that the money may be put to what we would all consider better uses, including the three purposes to which the hon. Gentleman has referred.

The hon. Gentleman said that legal aid was available for the child. It may seem surprising that it is available to parents in some cases only, but I think that the hon. Gentleman will agree that, when it is not possible to make aid available to the child and the parent in case, it is right that priority should be given to ensuring that there is representation of the child's interests.

There are statutory provisions which, when fully implemented, will enable courts to make legal aid available to parents as well as to the child in proceedings where the court considers that there is a conflict between the interests of the child and those of the parent. Those provisions have been partially implemented so that in a Maria Colwell-type case, where the local authority does not oppose an application to discharge a care order, the separate representation of child and parent under legal aid is already catered for.

The hon. Gentleman will know that parents have always been entitled to green form advice and assistance. I know that it stops short of representation, but it is right that I should summarise what is available to parents. 'The green form advice and assistance is always available, subject to means, and in the cases to which I have referred legal aid may be available to parents as well as to children. When the whole of the statutory provisions have been implemented, aid will be available to parents in even more cases.

I cannot promise the hon. Gentleman an early change in the present situation, but I repeat, so that it is clear, that the Government accept in principle the desirability, when circumstances allow, of extending legal aid to parents involved in care proceedings.

The hon. Gentleman also raised the question of legal aid for applicants at mental health review tribunals. I 837 accept at once the force of the point that he made about the nature of the disabilities of applicants in such cases. The Government recognise the desirability in principle of extending legal aid or assistance by way of representation, which is a new form of legal aid introduced by this Government. It goes under the phrase "assistance by way of representation" which meets one of the tests that the hon. Gentleman has postulated. It is given without all the formalities that have to be gone through in many civil legal aid applications. The investigation of means is infinitely simple—more simple even than the proposal that the hon. Gentleman put before the House. The solicitor fills in the same details that would appear on the green form application and decides himself whether legal aid can be given.

The cost of the extension and the availability of funds are kept under constant review. The hon. Gentleman quoted a figure. One difficulty in deciding what would be the cost of the extension is that legislation is before Parliament in the form of the Mental Health (Amendment) Bill that would materially increase the opportunity of access to the tribunal by patients. The hon. Gentleman will, I think, share the Government's view that it is desirable that there should be such increased access. This means that the number of applicants to tribunals would almost ex hypothesi be greater and, perhaps, substantially greater. It is therefore difficult to assess the likely cost.

The Government accept in principle the desirability of doing what the hon. Gentleman wishes. I can say only that it is one of the numerous matters that are high on the list of the improvements that we want to make in this sphere as and when the money is available. I wish to thank the voluntary arganisations that do so much to assist applicants in these circumstances.

I wish to say, before my speech is cut off in full flight, that I wish I had chance to deal with every point. There are remarks that I would have liked to make to balance the picture, but the time is not available. I hope that the hon. Gentleman will come and talk to me about the pearls of wisdom that lie beyond the time barrier of this debate.

On the question of the Bail Act, the hon. Gentleman has, I believe, got the situation wrong. The question that 838 arises is not giving legal aid for applications that can now be made to the Crown court. If I am right—it can be checked in the morning—a person in the situation to which the hon. Gentleman referred, namely, a person before the magistrates before committal, has no right to go to the Crown court to make an application for bail. In order to bring about the situation that the hon. Gentleman would like to see, one would have in effect to establish an appeal procedure from the magistrates' court to the Crown court and then grant legal aid for that appeal procedure.

Once a man has been committed for trial, he may then apply to the Crown court. If he has legal aid, that aid will cover his application for bail to the Crown court. It is not simply a question of providing legal aid for an existing right of appeal to the Crown court. He would also have the right of appeal. Although my noble and learned Friend the Lord Chancellor accepted in principle in Committee on the Supreme Court Act that defendants in custody should be enabled to apply for bail to the Crown court, this case is perhaps not so strong as the two previous ones. There are already two procedures by which such a person may apply for bail in the High Court. One is what is known as the Crown Office procedure. The other is an application made by the Official Solicitor on behalf of the applicant.

The number of cases being dealt with under the Crown Office procedure is increasing and the number by the Official Solicitor going down. The former qualifies for legal aid. It consists of an oral hearing for which legal aid can be obtained. The procedure whereby the application is made by the Official Solicitor has no oral hearing. The best development for applicants wishing to obtain bail is perhaps the Crown Office procedure with its twin advantages of an oral hearing as distinct from affidavits and the benefit of legal aid.

The hon. Gentleman has referred to two suggestions made by the Law Society for simplifying the procedure. I should like to draw attention to the simplification already achieved through the process introduced by the Legal Aid Act 1979—