§ Mr. Archer
I beg to move amendment No. 1, in page 4, line 7 leave out 'may' and insert 'shall'.
This is a narrow amendment which proposes an obligation in the Bill to do what the Lord Chancellor and the Solicitor-General assured us they wished to do in any event.
In another place, my noble Friends raised the question of the vast variations in the refusal rate of applications for legal aid orders between one magistrates' court and another. That matter was raised again on Second Reading and in Committee.
For the record, let me repeat what I said in Committee. In the Official Report of the Second Reading debate I am recorded as saying that according to the criminal statistics for 1980 the national average rate for refusal was 23 per cent. I accept that the fault was probably mine. The real figure was very much in my mind at the time. Whether the fault lay in my natural confusion or, as I suspect, in my natural inaudibility, the figure is 14 per cent. However, the refusal rate for Uxbridge is 36 per cent. and for Highgate 33 per cent., while for Hampstead next door it is only 4 per cent.
I find it hard to believe that any local factor could account for that difference. On Second Reading and in Committee I mentioned that Warley, in my constituency, had a refusal rate of 23 per cent. and that that was 836 particularly disturbing in a busy court with no duty solicitor scheme. I said that I had written to the clerk to the justices. I have since received from him a very careful and courteous reply attempting to identify some of the possible reasons and pointing out that the court sought to comply with the Lord Chancellor's circular LCD 81(3) of 27 March 1981 enjoining the courts not to exceed the Widgery criteria.
One happy consequence of the correspondence, of which I am delighted to tell the House, is that there is shortly to be a meeting with those concerned in the borough of Sandwell to explore the prospect of establishing a duty solicitor scheme in both petty sessional divisions in the borough. The Solicitor-General responded to our concern by moving a new clause in Committee to introduce what now appears in the Bill as clause 6. It gives wide powers to the Lord Chancellor to provide recourse to an applicant who has been refused a criminal legal aid order by a magistrates' court.
I accept, of course, that the Lord Chancellor proposes, in good faith, to make provision, but we should like to know a little more about how he proposes to exercise that power. Of course I understand the need for him to hold consultations, but I hope that by now some of those consultations will have taken place and that the hon. and learned Gentleman can give us a little more information. We had intended to introduce some form of parliamentary control over the regulations and we tabled amendment No. 3 for that purpose. However, I am told that it is unnecessary since that control would exist anyway.
I note that the Solicitor-General has tabled amendment No. 2 to that same clause and that may be its purport. No doubt the hon. and learned Gentleman will be able at least to allay our curiosity, if not to satisfy it, concerning what the Lord Chancellor proposes to do. I do not propose to develop the argument further, as it has been developed frequently before. If I sit down now, the Solicitor-General may be enabled to pursue that course.
§ The Solicitor-General
I understand the reasoning behind the questions that have been put to me. I shall do my best to allay any fears. Nothing is quite as simple as it seems at first sight, and the amendment would create substantial difficulties.
The main reason is that although clause 6(2) allows different provisions to be made for different cases, the insertion of a requirement such as that envisaged in the amendment would make it obligatory for regulations to be made governing ad cases. There are many cases for which it would not be sensible to institute a right of recourse. For example, more than 1 million minor traffic offences are dealt with in the magistrates' courts each year and, although I am not sure that the amendment's proposers intend this effect, the insertion of a requirement in subsection 6(1) would oblige the Lord Chancellor to make regulations covering all of them. That would clearly be a waste of resources.
It is not necessarily intended to confine the further right of application to "either way" cases, but the need for a right of recourse is probably strongest in that area and it may be desirable, at least initially, to make regulations dealing only with those offences. If it later became appropriate to extend the right of further application to some other offences, under the flexible arrangements contained in clause 6 as it now stands no further primary legislation would be required.
837 There is a second reason why I must resist the amendment. Clause 6(3) requires that regulations should be made with the concurrence of the Treasury. A requirement on the Lord Chancellor to make regulations would be inconsistent with that requirement.
I should like to make it clear that I object to the amendment on practical grounds. I am at one with its proposers on the principle of introducing a right of further application as soon as practicable. I am advised that consultation is taking place with, among others, the Law Society and the Justices Clerks Society, about the court or body most suitable to hear applications by refused persons. That is the first thing that we have to decide, and I was grateful to the hon. Member for Norwood (Mr. Fraser) for his suggestion, which has been put to those whom we are consulting.
It is still our view that the Law Society's legal aid committee may be the best option, but one has to keep an open mind and listen carefully to the views of others. Whatever final decision is taken, it is essential to bear in mind that two of the most important features of any arrangement made should be that applications are dealt with promptly, so that there is no delay to proceedings, and that the body chosen should be able to obtain sufficient information from the applicant to make a fully informed decision.
The flexibility given by the clause in its present form will contribute to the fulfilment of those objectives, and it might be hampered by substituting for that flexibility the fixed requirement which would result if the amendment were carried. I hope that the House will not accept it.
§ Mr. Ronald W. Brown (Hackney, South and Shoreditch)
I am unhappy about the Solicitor-General's response. We have heard this story so often before. We say that we shall see how it goes and re-adjust it if necessary. That is exactly what happens with legal aid in other circumstances.
The Solicitor-General will be aware of the constant rows that I have in the House when I raise constituency matters on this subject. My constituency is in one of those areas that is reluctant to give legal aid. We have continual difficulties with Highbury and Old Street magistrates' courts. They will no doubt be delighted by the Solicitor-General's arguments. The system is flexible, but they need not carry it out if they do not wish to do so. I have talked to the Solicitor-General's Department about the problem.
I give an example in another sphere. Day after day people fall over and hurt themselves but cannot get legal aid to make a claim for damages under the Highways (Miscellaneous Provisions) Act 1961. I have taken that problem to every Lord Chancellor of all parties since 1964, and each one has explained to me that the 1968 decision in Meggs v Liverpool Corporation is only a guide to legal aid committees, but they take it as gospel, and none of my constituents can obtain help from the legal aid committee, which interprets the law in its own way.
I believe that here we have a chance to do something positive. I do not understand the Solicitor-General's argument that if "may" is changed to "shall" that will destroy the intention behind the clause. It would read:Provision shall be made by regulations".It would be a positive, not a negative, measure. The Solicitor-General argues that the provision should be left 838 woolly—that is what he calls flexibility, which is a legal term for woolliness—so that one can talk and argue wound the point for hours.
Those of us who represent areas where legal aid is a lifeline to those who find themselves in difficulties and having to face the courts do not want this great flexibility. People want their rights. The Solicitor-General no doubt represents a constituency where he can go home at night and lay his head on his pillow and go to sleep. If he were to represent my constituency he would get a telephone call at about half-past Twelve at night and have to go to the local police station to see the wives and families of men who had been taken in and to try to find a friendly solicitor who will obtain legal aid for the man. Hours and hours of one's life are spent, day in and day out, week in and week out in that way. Do not talk to me about flexibility. I have it every day of the week. This is another occasion on which we are deciding new law and making sure that it will not treat people properly.
I hope that the House will not accept the Solicitor-General's assurance that flexibility will mean that everyone will be dealt with justly. I do not believe that. My experience of the courts in the area that I represent suggests that there is enough flexibiliy to result in some people being treated unjustly. Whenever Members of Parliament raise these matters with the Law Officers Department and the Lord Chancellor, their response is "This is a matter of judgment or local magistrates and we cannot interfere." That is true, but I am concerned about the quality of their judgment on occasions. It seems that if there is flexibility there will in some instances be injustice. I do not accept the Solicitor-General's assurance, and I support the amendment.
§ Mr. Archer
I seek the leave of the House to speak again. I share some of the concern of the hon. Member for Hackney, South and Shoreditch (Mr. Brown). It is true that "flexibility" is another word for imprecision. Although I do not normally fly to the Government's defence, I recognise two of the arguments which the Solicitor-General advanced. It is true that there is a need for consultation and I am pleased to know that consultations are taking place.
It is fair to say that the amendment as it is framed may impose an obligation to make regulations that may prove to be unnecessary. The Opposition Front Bench does not propose to press the amendment. However, we shall watch with interest what becomes of the provision that we are discussing. I hope that the hon. Member for Hackney, South and Shoreditch will share our concern.
§ The Solicitor-General
I, too, seek the leave of the House to speak again. With respect, I think that the hon. Member for Hackney, South and Shoreditch (Mr. Brown) has misunderstood the purpose of the Bill. For example, he spoke of the unhappy person who needs assistance in court in a hurry. The first part of the Bill is designed to ensure that there will be a better system of duty solicitors, who will be paid to deal with the situation that the hon. Gentleman has in mind.
My objections to the amendment are purely practical. I am obliged to the right hon. and learned Member for Warley, West (Mr. Archer) for his support. If we made "may" into "shall", regulations would have to be introduced to cover every case. That could well have the 839 effect of gumming up the system. We want to concentrate on the areas where the action that the hon. Gentleman wants is most needed. I assure him that we have every intention of making progress.
§ Amendment negatived.
§ The Solicitor-General
I beg to move amendment No. 2, in page 4, line 19, at end insert—'(4) Where a legal aid order is made by virtue of regulations made for the purposes of this section, the provisions of this Act relating to legal aid contribution orders shall have effect with such modifications as may be specified in the regulations.'.The amendment fills a gap in clause 6, which was added to the Bill in Committee. It provides that where a court or body exercising the power in clause 6—that is, allowing an appeal—makes a legal aid order after further application for a person who was refused legal aid by a magistrates' court, the assisted person shall contribute in the same way as if he has been granted legal aid by the magistrates' court. This seems entirely logical and I commend the amendment to the House.
§ Amendment agreed to.