Legal Aid (Hansard, 21 May 1984)

§ 24. Mr. Dubs
asked the Attorney-General if he has any proposals to change the method of assessing the eligibility of applicants for civil legal aid.

§ 27. Mr. Parry
asked the Attorney-General what plans he has to change the method of considering the eligibility of applications for civil legal aid.

§ 23. Ms. Harman
asked the Attorney-General if he has any plans to change the method of determining eligibility for civil legal aid.

§ The Attorney-General (Sir Michael Havers)
Assessment of financial eligibility for civil legal aid is the responsibility of my right hon. Friend the Secretary of State for Social Services. He and the Lord Chancellor are considering the recent Rayner scrutiny report, but no decisions on the main recommendations have yet been reached.

§ Mr. Dubs
Is the Attorney-General aware of the widespread concern that confidential information given by applicants for legal aid is being used by the DHSS for other purposes, that that appears to be in accordance with confidential DHSS guidance to staff and that staff are probably acting in breach of the Legal Aid Act 1974? Will the Attorney-General look into that matter?

§ The Attorney-General
The case of Whipman v. Whipman has recently been drawn to my attention. I am considering it urgently and intend to advise my right hon. Friend the Secretary of State for Social Services as soon as possible.

§ Mr. Nicholls
Does my right hon. and learned Friend agree that there is an element of artificiality about this, in 675 that page 6 of a legal aid application contains a direction to the effect that financial information will be supplied to the Department of Health and Social Security? Is not the effect of that that the Department is supposed to read the information for computing legal aid and to turn a blind eye if a possible case of fraud is suspected?

§ The Attorney-General
That problem becomes particularly acute when, in a remote district, the same official may deal with both supplementary benefit and legal aid applications.
One of the problems results from the purposes for which the confidentiality was imposed. I understand—although I have not read it—that Hansard of the day was clearly reviewed by the learned judge who tried the Whipman v. Whipman case, in which, referring to the purpose of the confidentiality, he said that the party applying for a certificate has to set out his case, as a defendant, or, if he is a plaintiff, what his case would be, and the witnesses he proposes to put before the court. It would be quite wrong if that information were passed to anyone other than the person's own legal advisers.

§ Mr. Merlyn Rees
In view of the Lord Chancellor's responsibility for these matters, and since the right hon. and learned Gentleman is prepared to talk about the problem and answer questions here, is this a matter that should be discussed by the Select Committee on Home Affairs, as it needs detailed investigation?

§ The Attorney-General
It is not for me to say what matters should be discussed by the Home Affairs Committee. The consequences of the Whipman decision are serious. If an errant husband cannot be traced and the wife is compelled to apply for supplementary benefit, which may be well below the sum ordered by the court, and that husband applies for legal aid, his name and address will be known to the DHSS. However, if the decision is right, that cannot be used to provide the remedy which the wife so badly needs.

§ Mr. Lawrence
If there is any doubt about the law, and if there is any doubt arising from the case mentioned, have not successive Labour Governments for 11 years also made the same mistake? Is it not time that the law was changed? Do not most people want applications for legal aid to be checked for fraud?

§ The Attorney-General
The case occurred in 1951. The L code, as the legal aid code is called, is applied by the DHSS. It used to be applied by the National Assistance Board and then the Supplementary Benefits Commission. The code has been in existence for 30 years, which covers the lifetime of a number of Governments of both political complexions.

§ Mr. John Morris
Was the Attorney-General consulted by the DHSS before its spokesman said that the DHSS had been legally advised that the code did not contravene the law? Was the DHSS aware of the comments of Commissioner Grazebrook in the case of Whipman v. Whipman? Can the Attorney-General confirm that the Lord Chancellor believes that it is important that people should not be inhibited from applying for legal aid because of the fear of disclosure of information?
As the Attorney-General has a responsibility to authorise prosecutions under section 22 of the Legal Aid 676 Act 1974, will he refer any breaches of the law to the Director of Public Prosecutions so that he may consider taking action?

§ The Attorney-General
I congratulate the right hon. and learned Gentleman on his industry and diligence in finding the case—a fact which, unfortunately, I learnt from the newspapers this weekend rather than direct from the right hon. and learned Gentleman.
The matter is under urgent consideration. However, it would be difficult to prosecute officials who had been given instructions—if the L code does so—for committing a criminal offence when, in fact, they were obeying those instructions. The whole matter is being given the most urgent consideration.

§ 25. Mr. Anderson
asked the Attorney-General what further progress has been made in seeking to reduce the disparities in the grant of legal aid between different magistrates' courts.

§ The Solicitor-General (Mr. Patrick Mayhew)
The Lord Chancellor has a number of measures in hand to promote greater consistency in the grant of legal aid for the magistrates' courts. The most important of these is the introduction from 1 March 1984 of a right of recourse from the refusal of legal aid by the courts in certain cases.

§ Mr. Anderson
Is the Solicitor-General not aware of the wide variations in the refusal rates among magistrates' courts? For example, the rate in Cardiff in 1982 was 7.5 per cent., in Swansea 15 per cent. and in Lower Rhymney 34 per cent.
We welcome the new right of recourse. What steps will the Government take to monitor the effectiveness of the new right? How will they publicise the right to solicitors and potential appellants?

§ The Solicitor-General
I am grateful to the hon. Gentleman for his welcome for the new regulations introduced in March, which provide for recourse in certain circumstances. There is an unacceptable degree of inconsistency, and my noble Friend the Lord Chancellor recognises that. The existence of the regulations is well known. They are referred to in the form of refusal which a justice's clerk hands to a disappointed applicant for legal aid.
In addition, the Lord Chancellor has asked the advisory committee to determine whether the Widgery criteria, as they are known, for the grant of legal aid in criminal cases should be improved. He expects a report in the autumn. He has already arranged for the collection of statistics from courts to be improved to provide a clearer and more reliable picture. He is anxiously considering the matter and intends to take whatever steps are open to him.

§ Mr. Loyden
Is consideration being given not only to the personal approach but to the general public interest in certain cases where the criteria should be waived? Is the Solicitor-General aware of the case of one of my constituents, Mrs. Doreen Wardle, whose son died from glue sniffing? She is inhibited from proceeding with an investigation of that case because of the high costs involved.

§ The Solicitor-General
The criteria are under consideration by the Lord Chancellor and the Legal Aid Advisory Committee. I note the point that the hon. Gentleman makes. If he cares to write to the Lord Chancellor about the particular circumstances, I know that 677 he will receive a carefully considered reply. It is now for the advisory committee to make its report to the Lord Chancellor, who will then consider what changes, if any, need to be made.

§ 26. Mr. John Fraser
asked the Attorney-General if he will now publish the Rayner report on legal aid assessments.

§ The Attorney-General
I refer the hon. Gentleman to the reply that I gave to the hon. Member for Peckham (Ms. Harman) on 9 May.

§ Mr. Fraser
What is the right hon. and learned Gentleman's reaction to the proposal by the Rayner committee to transfer the business of assessment from the DHSS to the Lord Chancellor's Department? Before taking any steps in that direction, will the Attorney-General consult legal aid practitioners so that the money saved will not be at the expense of the legal aid service?

§ The Attorney-General
The decision whether to transfer is a major part of the recommendation, and it is a matter which no doubt my noble Friend will discuss with my right hon. Friend the Secretary of State for Social Services. On that and all other matters that are under urgent consideration, I hope that we shall be able to reach a decision soon.