§ Order for Second Reading read.3.44 pm
§ The Solicitor-General (Sir Nicholas Lyell)
I beg to move, That the Bill be now read a Second time.
The legal aid White Paper, published in March 1987, began with the words:The purpose of legal aid is to ensure that people of small or moderate means receive access to proper legal advice, and to justice.The Bill gives legislative effect to the main decisions announced in the legal aid White Paper. Its central objective is to improve the arrangements for making legal aid and legal advice and assistance available. Efficiency, effectiveness and value for money are the key concepts which underlie the Bill.
Legal aid in England and Wales is one of the fastest growing areas of Government expenditure. The legal aid scheme is now approaching its 40th year. For the first 20 years expenditure never exceeded £10 million a year and help was provided for a maximum of about 150,000 people. Expenditure on legal aid in England and Wales today is running at an annual rate of about £450 million a year, compared with only £100 million just nine years ago in 1979–80, an increase which far outstrips anything attributable to inflation. In the past year, about 2 million people have received help under the civil or criminal legal aid schemes, or the advice and assistance scheme. That is a measure of the growing importance of the legal aid scheme, and a measure of the importance of the Bill.
The scheme as it exists in England and Wales has developed considerably since its beginnings in the report of the Rushcliffe committee in May 1945 and the Legal Aid and Advice Act 1949, which established the scheme. In 1972, the legal advice and assistance scheme was introduced. In 1974, the legal aid legislation was consolidated, and it is the Legal Aid Act 1974 which the present Bill replaces. Since then, the Legal Aid Act 1979 has established the extension of advice and assistance to cover representation—the system known as ABWOR—and the Legal Aid Act 1982 has made some important changes in the criminal legal aid system, including the establishment of statutory magistrates court duty solicit or schemes, which were joined in 1986 by the 24-hour scheme to give assistance to those held in police stations.
The Bill is intended to replace and consolidate all the existing legal aid legislation. In many ways, it also improves on the drafting and presentation of the existing legislation. There is, however, much more to the Bill than that. The aim of the Bill is to provide the litigant who might not otherwise be able to afford it because of his means—and the taxpayer—with a system that is efficient and effective and gives not only the best possible service but the best possible value for money. It must also be a system which is able to evolve to meet changing needs and new methods of giving advice as they develop.
§ Mr. Keith Vaz (Leicester, East)
Has the hon. and learned Gentleman seen the results of the Law Society's survey which was published on Monday this week and which showed that, since 1983, 40 per cent. of the solicitors doing legal aid work either have decided to give up the work because of the remuneration, or are considering giving it up? What effect will the Bill have on those solicitors who are left administering the legal aid system?
§ The Solicitor-General
I read the survey with some care and we shall continue to study it. Nearly two thirds of solicitors did not even bother to reply to the questionnaire. The number of solicitors carrying out legal aid services has increased pretty steadily over the past five years, from about 9,700 to 11,500. That is not to dismiss the points made in the questionnaire. They deserve careful study.
The principal new feature of the Bill is the establishment of the legal aid board. The Government believe that the legal aid scheme has outgrown the structure which was appropriate for it in the early 1950s and which has remained the same ever since. What we now consider is needed is one central body, including among its membership a whole range of expertise—not only barristers and solicitors but experts in management, finance, personnel, administration and the broader forms of advice giving. The aim is to provide a central body which can co-ordinate and manage all aspects of the legal aid scheme with a proper sense of order and strategic direction.
This decision to establish the board is not in any way a criticism of the existing administration. In particular, I wish to place on record in this House the Government's appreciation of the role played over the past 37 years by the Law Society. The close involvement of the legal profession has been one of the strengths of the legal aid scheme in the past, and it is the Government's wish that it should continue to be so in the future. The decision to establish the board is rather a reflection of the different needs of the future. If legal aid is to develop properly in response to the challenges of the 1990s and beyond, it must have the right legislative and administrative framework.
The key to this will be the board, assuming a central role in all aspects of the adminstration of legal aid. Before that can happen, there is a great deal of work to be done, and the sooner it can begin the better. Last December the Lord Chancellor announced that he intended to set up what is known as a shadow board to begin preparatory work as soon as possible. Today he will announce to Parliament the name of the new chairman of the board and of its initial membership. The objective is that the shadow board will begin work straightaway, preparing itself to take over from the Law Society, and planning for the future. It is the Lord Chancellor's hope that the board will be able to take over from the Law Society early in 1989.
The Government are determined that the changeover to the board should be conducted with the minimum disruption. The board will, therefore, initially do no more than take over those functions currently performed by the Law Society's legal aid administration. However, the Governmant's longer term aim is that the board should have overall responsibility for all aspects of legal aid, unless there are strong arguments to the contrary. It will, therefore, be invited to look also at aspects of the scheme not currently administered by the Law Society, such as means assessment for civil legal aid, consideration of applications for criminal legal aid and the determination of all legal aid bills.
There are problems involved and the Government are fully alert to them. For that reason, no decision has yet been taken to transfer any of those functions to the board. Responsibility for civil legal aid means assessment, criminal legal aid grant and any other functions will be given to the board only if it appears to the board and the 886 Government that that is a sensible way of proceeding and that it is in the best interests of the legal aid scheme as a whole.
Some concern has been expressed that the legal aid board will not be independent of Government. I believe that the names that the Lord Chancellor is announcing today will go far to meet those concerns. However, the concept of independence must be put into context. The present legal aid administration is not simply free to do what it likes, and nor will be the new board. The Government will continue to set the broad framework of the legal aid arrangements and will retain their present role over such matters as financial eligibility limits. The Government have responsibility to the taxpayer and to Parliament to ensure that money is spent wisely and for the purposes for which it was voted. It is a responsibility that no Government can abdicate. But within the overall constraints set by Parliament the board will have considerable freedom to manage its affairs in the way that it considers best.
§ Mr. Paul Boateng (Brent, South)
It would considerably allay the fears that have been expressed by the professional associations and the public in relation to the independence of the board if the hon. and learned Gentleman would be prepared to give an unequivocal assurance that the legal aid advisory committee, which over the years has done such sterling work protecting the public interest, will be retained. Will the hon. and learned Gentleman give that unequivocal assurance?
§ The Solicitor-General
I am grateful to the hon. Gentleman for his kind remarks about the legal aid advisory committee. The Bill provides and the proposal is that the legal aid advisory committee should remain in being for at least a year but that its position should then be reviewed. The hon. Gentleman has anticipated remarks that I proposed to make later in my speech. It will be reviewed with an entirely open mind by the Lord Chancellor.
§ Mrs. Gwyneth Dunwoody (Crewe and Nantwich)
The Solicitor-General appears to be trying hard to help. Does he realise that many people are concerned about the position of women, who will continue to need legal aid for cases of domestic violence? There is considerable worry that this change, if any attempt is made to restrict applications for legal assistance, will make matters very difficult for people.
§ The Solicitor-General
I quite understand the hon. Lady's anxiety, but I hope that I shall be able to set her mind at rest. I have seen nothing in the new structure to give her cause for concern. I know from my own not all that distant experience in the courts that many women make use of legal aid for that purpose. I foresee no reason why they should not continue to do so.
A further sector that the board will be invited to consider at an early stage is the provision of advice and assistance. This has grown enormously over the past nine years. Since 1979, expenditure on advice and assistance—which is usually referred to as the green form scheme —has risen from £12 million to £60 million per year, and the number of people receiving help has likewise increased from 300,000 to 1.2 million. Such growth looks set to continue.
887 Both the range of problems for which help is provided has widened and the kind of agency providing such advice has developed greatly. Such bodies as law centres, welfare rights centres, and the invaluable nationwide network of citizens advice bureaux—bodies partly voluntary, partly funded, largely by local government and partly by central Government, have all developed in the field. Many provide high standards of expertise available to clients in accessible and attractive ways. The initial recommendations of the efficiency scrutiny which preceded the legal aid White Paper made radical suggestions which we have rejected, but we see real potential benefit to the consumer in the idea of making greater use of advice agencies in these sectors and it is one of the important areas that the new board will be invited to examine. This Bill provides the powers to enable that to be done.
In legislative terms, the provisions are relatively simple. Part II of the Bill provides that the board shall have the power to make arrangements for the provision of advice and assistance by means of contracts with, or grants or loans to, individuals, organisations or groups.
We contemplate that when the board invites tenders it will specify what is to be provided, by whom and on what terms. The standards which will have to be met will be an important part of the requirements. It will be open to solicitors themselves to submit tenders to do the work, as it will to advice agencies and others. It will be open to the board to make different arrangements in different parts of the country. It follows, of course, that once new arrangements have been made for handling particular categories of case, these will be excluded from the existing green form scheme. Otherwise there would be duplication.
I emphasise two points. First, the Government fully recognise the importance of the level of service to the client. Secondly, the Government have taken no firm decisions on the extent to which these powers should be used nor the areas of work in which they would be appropriate. The Government will await the board's advice. The board will, in any event, be able to exercise its powers by means of contracts only if the Lord Chancellor so directs and only in accordance with his directions.
§ Mr. Alex Carlile (Montgomery)
In assessing the impact of competitive tendering and where it should apply, will the hon. and learned Gentleman look at the impact of competitive tendering upon small towns and rural areas and at the services available to the population in sparsely populated areas? Much free legal advice and basic legal advice is given by small firms of solicitors which fear these provisions.
§ The Solicitor-General
I am sure that the board will look carefully at the hon. and learned Gentleman's point and keep it carefully in mind in weighing up whether or not to accept the contract, to proceed in that method or to continue with the existing method, or with a combination of the two.
In addition to the power to award contracts, the board is given the power to make grants. This is relevant to the position of law centres. The Government's view of law centres remains as it has been since 1979. Law centres may well provide a valuable service to their local communities, but they are essentially a local service, and as such it is more appropriate that they should receive local, rather than central, funding. There is an exception to this. The Lord Chancellor's Department provides funds to seven 888 law centres. The Lord Chancellor now proposes to invite the new legal aid board to take over responsibility for the grants to the seven centres he currently funds. The Department will need to be satisfied that the services provided by those seven centres fit into the general pattern of its plans for advice and assistance. Provided, however, that it is so satisfied, and subject to the Lord Chancellor's agreement, it will be open to it to continue to pay the grants under the powers in part II of the Bill. It will, of course, also be open to those and other law centres to submit proposals for contracts or grants in the general context of the board's plans for advice and assistance.
I should now like to say a word about a class of case that has caused widespread public interest—the type of multi-party action which has recently involved some drugs companies, for example. During the Bill's passage through the other place the Lord Chancellor put forward important amendments which will allow the board to enter into contracts with firms of solicitors for the provision of representation in specified categories of civil proceedings. We envisage that the board would identify particular groups of cases. such as multi-party actions, raising common issues and in which there was no risk of conflict of interest, for which representation might advantageously be provided by particular solicitors. Assisted persons with cases falling within a prescribed category would then be directed to a solicitor under contract to the board, thus securing proper co-ordination of all such cases. That process would involve some restriction on the freedom of choice of solicitor by individuals involved in those cases, but we believe that that price must be paid for greater co-ordination of multi-party actions anyway.
There will obviously be a great deal of work for the legal aid board to do to flesh out the arrangements for the contracting system. For instance, special arrangements for eligibility and means-testing may need to be made for some or all of the litigants falling within the prescribed group. Modifications may be required to the merits test, and separate provision may be appropriate for the statutory charge to be taken from the total sum recovered by all the plaintiffs in a class action. Much detailed work remains to be clone by the board on these and other matters. Nevertheless, I believe that the proposals, which have been widely welcomed, represent a useful way forward for multi-party actions, and perhaps also for other categories of civil legal aid work where the system may be appropriate and cost effective and where it would bring real benefit to the legally aided person.
I have concentrated so far on the provisions in the Bill relating to the legal aid board, to advice and assistance, and to the making of contracts for civil legal aid. because those are the crucial aspects in which the Bill departs from the existing legislation. It may help, however, if I now go briefly through the Bill and outline its main provisions.
Part I begins with a clear statement of the purpose of the Bill, and goes on to provide basic definitions of the terms used throughout the Bill.
Part II contains the provisions relating to the establishment of the board and the power to award contracts and make grants. In part II, the board is given its general power to do such as it considers necessary to provide or secure the provisions of services under the Bill.
§ Mr. Bob Cryer (Bradford, South)
Will the Minister confirm that he has today issued a press release on the composition of the board? If so, has he placed it on the 889 Table for all hon. Members to see? As the matter is relevant to part II of the Bill, it should be widely available, rather than being given a narrow circulation.
§ The Solicitor-General
The hon. Gentleman is absolutely right. My right hon. and noble Friend the Lord Chancellor has today answered a parliamentary question —and I have answered a question in this House—giving the names of the new chairman and members of the board. I hope that the House will agree with my right hon. and noble Friend that it is for the convenience of the House to have the information available today rather than waiting until tomorrow when this debate will be over. I confess that I have not yet placed a copy on the Table, but I shall be happy to make amends as soon as I can.
§ Mr. Boateng
While he is about it, will the Minister tell us how many of the board are black and how many are women?
§ The Solicitor-General
I shall do my best to oblige. I do not know whether any members of the board have been consumers of legal aid in the past. As to the professions, the board includes two barristers and two solicitors out of a total membership of 11. It also includes people with experience of personnel, a number with experience as justices of the peace and a founder member of the legal aid practitioners group, who should bring to the workings of the board some experience from pretty close to the ground. The board's members include people with management experience and a representative—she is also a member in her own right—of the council of the National Association of Citizens Advice Bureaux. The chairman has long management experience in ICI, and until fairly recently was the chief executive of a large public limited company.
§ Mr. Cryer
Would it not have been more convenient for the House had the Minister made the press release available in the Vote Office? The business of arranging a planted parliamentary question and answer is not for the convenience of the House as the question will not be published in Hansard until tomorrow. As the Minister pointed out, the debate will be over by then. At 7 o'clock or thereabouts we shall be reaching a conclusion on the matter. I urge the Minister not to trample on the rights of Parliament. He should make sure that information deliberately published by his Department in conjunction with a Bill is properly made available.
§ The Solicitor-General
I acknowledge what the hon. Gentleman says, but I think that I should make a little progress.
§ The Solicitor-General
If I may, I shall make a little progress and then give way if the hon. Gentleman's question is still pertinent.
Part III sets out the provisions for advice and assistance provided by solicitors. This is intended as a restatement of the existing provisions regarding green form and advice by 890 way of representation. The terms of the legislation differ from the 1974 Act in a number of respects, but the overall effect is the same.
The Government intend to retain in broadly its present form the current structure of regulations for assessing financial eligibility for all forms of legal aid, at least for the foreseeable future. Even when the board is established, the Lord Chancellor will, of course, as now, retain full control over eligibility levels, subject to the consent of Parliament. It would not be appropriate to delegate such an important factor in access to justice.
Part IV deals with civil legal aid. The proceedings for which that is, and is not, available are listed in schedule 2. This largely reproduces the current position.
Part V deals with criminal legal aid. Once again, the scope of criminal legal aid and the financial conditions will remain as they are now. Part V, however, contains powers that mirror those in part II to transfer functions currently performed by the courts to the new board. The Lord Chancellor will, of course, have to be fully satisfied that this is wise before he agrees to such a transfer, which will be made by regulations subject to the affirmative procedure.
Part VI makes special arrangements for legal aid in care proceedings and contempt proceedings. There has long been criticism that care proceedings were entangled with criminal proceedings in the 1974 Act and the Bill puts that right.
Part VII deals with a number of miscellaneous points, and sets out the regulation-making powers. The only one of those to which I would specifically draw the House's attention is that relating to the remuneration of the legal profession. The White Paper made it clear that the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done. It is, however, necessary for the Government also to have regard to the other claims on public funds. The Government must be fair to the taxpayer as well as to the practitioner. The aim is to produce a result that is fair overall; but fairness is inevitably a somewhat imprecise concept. Clauses 34(2) and 34(7) help to clarify the approach that will be adopted by setting out the factors, which include time and skill, earnings, overheads, and number and general level of barristers and solicitors available, to which the Lord Chancellor shall have regard when setting rates. The aim of that list, which is not exhaustive, is to ensure that all relevant factors are taken into account.
Part VII also deals with the future of the legal aid advisory committee. As the legal aid White Paper made clear, once the legal aid board has been established, the role and function of the committee will inevitably change. However, the Government believe that the committee will continue to have a useful role to play, at least during the period of transition to the legal aid board, and in the early days of the board's existence. The Bill, therefore, contains power to retain the advisory committee.
As circumstances may well alter once the board has settled into its new role, the Bill also includes a power to allow the committee to be disbanded by regulations if this should seem appropriate. The Lord Chancellor intends to review with an open mind the committee's continuing role 12 months after the board has taken over its responsibilities.
Mr. Humfrey Matins (Croydon, North-West)
How many are homosexual?
§ The Solicitor-General
I shall have to make inquiries as I am afraid that that information is not immediately apparent from the names of the members. I shall let the hon. Gentleman have an answer as soon as I reasonably can.
Finally, I should mention that, although the majority of the Bill relates only to England and Wales, schedule 4 contains certain amendments to Scottish legal aid legislation.
It is the Government's view that the Bill represents an important step forward in ensuring the future strength and vitality of the legal aid scheme. The legal aid board will have a challenging job to do, but the Government are confident that the end result will be a legal aid scheme that is healthier, more efficient and more effective in the service it provides, to the consumer and to the country.
§ Mr. John Morris (Aberavon)
My sympathies go out to the Lord Chancellor who had to introduce the Bill. It is not a legal aid Bill; it is a money Bill, and the dead hand of the Treasury is seen all over it. It is said that it will consolidate the £10 million savings contemplated in the legal aid White Paper. Its aim is to do much more than that. Its aim is to ensure a firm Treasury rein on growth, to curb any independence and to stifle any additional innovation or expansion that may embarrass the Treasury.
There is much in the Bill that we welcome, especially the setting up of a new legal aid hoard. Although in recent years there has been considerable criticism of some of the Law Society's machinery, especially in some areas of London—basically because of underfunding—it is right for me to join in thanking those who have administered the scheme over the years.
Will the new board be independent? Today the Solicitor-General said that the board will have considerable freedom to manage its affairs. The Lord Chancellor said:The stature of those who will be appointed …will ensure that they are independent."—[Official Report, House of Lords, 29 February 1988; Vol. 494, c. 26.]My hon. Friends and I will study the list of the members to the new board, which we have just received. However, the Lord Chancellor also said:The Legal Aid Board is not going to be free to do what it likes, when it likes and how it likes"—[Official Report, House of Lords, 15 December 1987; Vol. 491, c. 608.]That is a measure of the considerable independence to which the Solicitor-General referred.
The board has wide powers under clause 4, but the key powers to make contracts, grants or loans for the provision of legal services are subject to tight control by the Lord Chancellor. The powers are there, but in practice their operation is held under tight rein.
One of the key tests of the virility of the board will be its desire to carry out research. The record of the Lord Chancellor's Department is lamentable. I need only quote the unhappy predictions of the effect of the cuts in 892 dependant allowances in 1986. If we are to start a new era, despite the Treasury clamp, and if the transfer of responsibilities is to mean anything more than a tidying up operation and an abdication to firm Treasury control, the board must be seen to be innovative in thought and ideas. It must be able to test its thoughts and decisions in practice and to evaluate properly the results of its actions.
We would be a great deal happier if the legal aid advisory committee were to be retained for at least five years until we see how the board proves itself. We would be a great deal happier if there was a firm commitment to retain and extend such bodies as the north-west legal services committee. That committee should extend its services to areas such as south Wales, which has demanded them. Other areas may also need such services. It is to the north and west of Watford that we can see fed in the needs and gaps in legal provision.
I was most interested to hear the Solicitor-General's remarks regarding the aims of the Bill. The curious feature of the Bill, as presented to the Lords, was that it was a Bill without a stated purpose for the legal aid scheme. It was only in the other place, after a hard fought struggle and more than one suggested amendment, that the new part I was included in the Bill. Part I states:The purpose of this Act is to establish a framework"—that does not seem particularly encouraging—for the provision under Parts II, III, IV, V and VI of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.I can only surmise that the draftsman was a classical scholar and that he used those words "with a view" to reminding himself of the Greek fable of Tantalus. That is what the words amount to. The words are not especially effective or conclusive. Today, the Solicitor-General used, without attribution, the opening sentence of the White Paper, which states:The purpose of Legal Aid is to ensure that people of small or moderate means receive access to proper legal advice and to justice.Why on earth were those words not inserted in the Bill? Perhaps here again the Treasury wanted no hostages to fortune.
We should also consider the original draft of the Bill as regards the remuneration of the profession. In the original draft it was said that the Lord Chancellor, in determining the remuneration of the profession,shall be entitled to have regard to a number of factors".In other words, he may have regard to such factors; equally he can ignore them. The catalogue of matters set out in the original Bill have no greater significance than Webbs catalogue of seeds.
The Bill is now much improved. It is now mandatory that the Lord Chancellor shall have regard to a number of factors—I shall not weary the House by detailing them. We shall return to those factors and examine them in much greater detail in Committee.
It has been suggested that one of the purposes of the draftsman, working on his Treasury brief, was to remove the danger of the Lord Chancellor, in common with his predecessor, being taken to court on an application for judicial review. That suggestion has been hotly denied by the Lord Chancellor. We accept, of course, that that was not the Lord Chancellor's intention. My regard for parliamentary draftsmen is such that that must have been 893 a conclusion that they could not miss, given the way that they drafted the original Bill. Be that as it may, a conversion, even on a deathbed, is always welcome.
Of equal if not of greater importance is the failure to retain the principle offair remuneration for work actually and reasonably done".Why should that hallowed phrase be consigned to the dustbin?
Our judicial system requires the legal profession to be independent, competent and industrious and to have the highest standards of integrity. This is not a plea for more money for lawyers. I suspect that if such a plea were made in this House it would fall on deaf ears. A legal aid service poorly paid will inevitably become a poor service. The result will be two classes of justice: one for those who can afford to pay, and a substantially inadequate one for those who cannot.
Our basic objection to the Bill is that the Government, when setting up new machinery for the administration of legal aid, have failed to will the means. Further, they have sought to limit the opportunity for testing the amount of the means to be provided. Legal aid will become more and more a second-class service.
Under-remuneration over the years has severely pruned the rewards to legal aid practitioners. The Govermment talk of value for money. It is about time that money for value was willed.
§ Mr. Tony Baldry (Banbury)
Has the right hon. and learned Gentleman read the speech of Lord Denning in the other place? If he has, how does he reconcile his somewhat Doomsday approach to the Bill with the warm welcome that Lord Denning gave to it, when he said that the present legal aid system needed restructuring, which is what the Bill does? There can be few greater champions of the law litigant in history than Lord Denning.
§ Mr. Morris
I have the highest respect for Lord Denning. He has unique views on many subjects. Perhaps it would have been better if the hon. Member had completed his studies and read also the views of Lord Ackner, Lord Griffiths and every other Member of the House of Lords who deprecated the position that the legal aid service had reached. If the hon. Member reflects on the debates in the Lords—I have read each of them—he will find, not for the first time, that Lord Denning is fairly unique in his views.
It was unfortunate that the former Lord Chancellor but one, Lord Hailsham—they seem to move at an increasing pace in their number and tenure of office—had to be taken to court by the profession. He was the unfortunate puppet who had to dance to the tune of the Treasury. Despite what amounted to victory and the increases in remuneration since, I have no doubt that recruitment to the profession has suffered. We have lost many of the best lawyers who would have headed the profession. They have gone instead to the City and to industry.
Perhaps it is the answer to the hon. Gentleman's endorsement of Lord Denning, but almost on the eve of this debate the Law Society produced evidence on that sector of the profession doing legal aid work. It states, first, that about 40 per cent. of solicitors' offices doing criminal legal aid work are either dropping out of it or considering dropping it altogether. Secondly, in January and February 894 41 solicitors' offices gave up criminal legal aid work. If the rate continues, as many as 700 solicitors' offices might have dropped the work by the end of the year. The Law Society further states that it needs a 38 per cent. rise in fees for criminal legal aid work to restore it to the level of remuneration of 1981. This year the increase in London has been 7.4 per cent. When the Solicitor-General replies, will he say how far the Government contest those figures?
The third point made by the Law Society is that 27 per cent. of offices have given up or are seriously thinking of giving up matrimonial legal aid work. Matrimonial legal aid is of the utmost importance to the weakest in the community, who are frequently women. Women will need help more than anyone from legal aid, although thousands of males may be involved, too.
§ Mr. Hind
The right hon. and learned Gentleman says that many solicitors have given up legal aid work. Does he agree that in relation to crime that is understandable as many members of the profession tend to look down on criminal work? As a member of the Criminal Bar Association, I believe that they do so quite wrongly. This is an important matter to those who represent all interests. What view would the right hon. and learned Gentleman take of funding the legal aid scheme if he were in the position of my hon. and learned Friend the Solicitor-General?
§ Mr. Morris
I am not the steward for the legal aid scheme. The stewardship of the Government is being challenged. I will give the figures later of what has happened since 1979. I put them before the House to find out whether the Solicitor-General accepts them. If he cannot tell us today, I hope that he will do so in Committee. I am worried that more and more people are leaving the profession. The view of the profession is that they are leaving because of poor remuneration.
Whether or not the predictions are right—there is an element of Doomsday involved—it is for the Government to disprove it. For the Government to suggest that all is well is not good enough. Although I cannot vouch for those predictions, there has been so much cumulative aggravation over the years that the profession is becoming conditioned to stopping or cutting down on legal aid work.
I suppose that the production line of newly trained lawyers will keep the system going for some time yet. However, it will be kept going by the young and the inexperienced—until they, too, find something better to do. I repeat that it will become more and more a second-class system. Salary earners, such as the Treasury mandarins, have a blind spot when it comes to considering fee earners.
Several distinguished industrialists have been appointed to the legal aid board, and I would have more confidence in them fixing remuneration than the Lord Chancellor's Department, acting, as it has, as the Treasury's ventriloquist. There should be an independent body to recommend the awards.
Our other anxiety is the steady drip of cutting eligibility for legal aid. The Law Society believes that the number of those eligible for legal aid is declining. Since 1979 a quarter 895 of the population have lost their right to legal aid. Is that accepted or challenged by the Government? Is it the Government's policy to whittle down legal aid year by year, or do they intend to arrest the decline and, if so, how? That goes to the very heart of my observations. A clear statement on this would be helpful before we started our Committee discussions.
The information provided by the Law Society is a serious challenge to the Government's stewardship of the legal aid system. It is because of that stewardship that we are profoundly dissatisfied with the Bill. Legal aid needs to he expanded and not restricted. We shall return to the concern of the Law Society about the proposal to remove wills and conveyancing from the scope of the legal aid green form, but many cases of hardship will be caused.
There is a need for legal aid to cover representation in coroners' courts, applications to the European Court—such applications are frequently made against the Government and are, more often than not, successful—statutory tribunals and industrial, immigration and social security tribunals. In many instances, there is a tremendous imbalance in a tribunal, with one party being represented by experienced and expensive advisers fighting against an unrepresented individual. Proceedings at such tribunals may involve complex questions of the law and consideration of both oral and documentary evidence. It is not true to say that tribunal procedure and practice is straightforward or that it permits the layman to represent himself.
Trade unions perform an invaluable task. In my younger days at the Bar in south Wales, one of the most eminent of the National Union of Mineworkers' experts was known as Dai Common Law because of his expertise. He performed a wonderful task. However, when our constituents come to our surgeries on matters such as mobility and constant care allowances and a whole host of other allowances which involve the claims of hundreds, if not thousands, of pounds over the years, when no legal aid is available, we can only look at their papers and know that they will be going alone and unrepresented the following day before a tribunal.
When I see that legal aid is available for comparatively small claims in our county courts, yet thousands of pounds over the years are involved in those tribunals, I regard it as manifestly unjust that our constituents are not represented in litigation of the utmost importance to them. It has also been argued, although it is not of the highest priority, that defamation cases should be covered.
The Bill has important proposals for contracting out to which the Solicitor-General referred. Before we go down that road, we must be satisfied that it does not lead to a worse service and does not restrict the freedom of choice. If a monopoly is created in any area, be it in subject matter or regarding geography, that will be a retrograde step. It was my impression from the Solicitor-General's remarks that, if there was contracting-out in that area, the green form would he excluded. That would be a diminution of the right to freedom of choice.
We need a great deal of clarification. What is the Government's thinking on the matter? I presume that it does not include representation as well as advice. Have the Government satisfied themselves that there is no danger of inadequate advice leading to greater cost when litigation may follow? When contracting-out is determined for a particular area, what happens when the subject is raised ancillary to other matters when there is green form advice? 896 Will the cheapest tenderer win the contract? What additional funding is envisaged for the agencies that will do the work? How will they ensure a proper geographical spread for contracting-out?
The citizens advice bureau in my area, which does invaluable work, is already having to close a valuable part of its service. Law centres are under constant threat. What is the Government's policy on the funding of law centres, and what will be the statutory basis for the funding of those centres still funded by the Lord Chancellor? Is there to be no change, or are we to see any advance?
Great concern has been expressed about some aspects of the Bill's proposals for civil legal aid contributions and we shall return to that matter in Committee. The power to spread the cost of legal aid contributions throughout a case is of particular concern. The bottom line of the amount of contributions will depend not on the depth of the pocket, but on the length of the case, and opposing parties will have an interest to delay so as to increase financial pressure on the legal aid litigant. In any event, the litigant will not be able to know at the outset what his commitments will be. He will be at the mercy of procedural delays and of his well-funded opponent.
There is much dissatisfaction with many aspects of civil legal aid and the Bill, without curing some problems, may aggravate others. Against that background, we believe that this is both a Bill of missed opportunities and a means of tying the Lord Chancellor hand and foot to the Treasury. In the last century, the jurisdiction of equity was criticised as being dependent on the length of the Lord Chancellor's foot. In the latter part of this century, access to justice for people of small or moderate means will depend upon how the Lord Chancellor's feet are made to dance to the tune of the Treasury. The Bill is the poisoned chalice that he has inherited, his damnosa hereditas, his cursed inheritance. It will cut expenditure in legal aid. It is an enabling Bill with still far too many regulation-making powers subject only to negative resolution.
The Bill has been much improved in the other place in that respect, but, in the absence of an indication of the Government's thinking on so many parts of the Bill, that aspect could have been corrected if the Government had furnished us with draft regulations when the Bill was presented or even at this late stage. At least we would have been able to debate the appropriate clauses, not in a vacuum but with a clear understanding of the Government's thinking. It is not too late for the Law Officers to go back to the Lord Chancellor and ask whether we can have such clarification for the Commons, which, after all, wills the means, so that we can examine how those means are to be spent and ensure that draft regulations are presented to us so that we can properly discuss the Bill.
The future operation of the legal aid board is unknown. We know that the future shape and content will be even more subject to the clammy hands of the Treasury. Although it is an enabling Bill, we do not know what the Government really want to do, except to cut costs. We wish the Lord Chancellor well. His task has been made more difficult by the Bill. He will want to use his discretionary powers in the best way possible, but he may not be allowed to do so. We oppose the Bill because of its uncertainty and the shackling effect of the Treasury and because, having been given valuable legislative time, it is a Bill of lost opportunities.
§ Mr. Ivan Lawrence (Burton)
I declare an interest, because when I can find a spare moment I am a practising lawyer at the criminal Bar, which means that I could well be affected by the provisions of the Bill. I am also the chairman of the joint all-party parliamentary barristers' group.
The right hon. and learned Member for Aberavon (Mr. Morris) has said that this is a money Bill that has the dead hand of the Treasury all over it. The dead hand of the Treasury needs to be all over it. The philosophy of financial freedom in Government affairs died with the previous Labour Government. The secret of the success of the present Government, apart from sound leadership, has been financial control. There is nothing wrong with the principle of financial control provided that the operation of the legal aid scheme is independent of the Government.
There is no doubt that the tender plant of free legal advice and assistance for those who could not otherwise obtain such advice has grown over 40 years into a large and unruly tree. The tree has now to be trimmed, as any plant needs to be trimmed. It has to be attended to and made more productive. The Bill is therefore timely and the Government's main proposals are sensible and necessary.
It is alarming that there should be so much opposition to the Bill from those who are most intimately concerned with the issues that it raises—for example, the Bar, the Law Society and assistance agencies such as the National Association of Citizens Advice Bureaux. Have the Government got it all wrong or have they got it more or less right, the experts having misunderstood it and got it all wrong? The Government cannot be accused of malice towards the legal profession, still less to those who need legal services. The Government are advised by those who have day-to-day knowledge of the working of the system and its needs, people whose very purpose is to analyse the working and to improve the operation of the legal system.
It is possible for men and women of good will to start by fearing the worst and then to find elements that confirm their fears and thereby to come to wrong conclusions. We know how that human process works from our experience in this place.
Two things emerge thus far from the Bill. First, it contains a number of provisions that understandably alarm those who are looking to be alarmed. Everything is to become more centrally controlled with future action left largely to regulations. From Ministers' speeches it is clear that the Government are worried about the lack of proper financial control of spending on legal aid. This issue was brought out clearly in the 1986 interdepartmental scrutiny of the efficiency of legal aid. Such worry usually presages cuts—that is the experience of parliamentarians—and that would be at a time of greatly expanded activity due to the avalanche of legislation that the Government have perpetrated.
Who will suffer if there are cuts? The very poorest may not suffer, but what about those who are not desperately poor? What about the legal profession? The circumstances are certainly there for lawyers to fear the worst.
That leads me to the second conclusion that the passage of the Bill draws from me. The legal profession and those who are concerned with legal advice require reassurance on the likely effect of the Bill on their work and upon the sort of service that it will do so much to provide for those who will need to use it. There is a need also for reassurance 898 about the independence of the scheme from the Government. My hon. and learned Friend the Solicitor-General has given some reassurance this afternoon, but I think that more needs to be given. It is not unreasonable to expect that further reassurance to be forthcoming.
I shall draw attention to issues that I know are concerning the Bar, some of which have been alluded to already by the right hon. and learned Member for Aberavon, who is a vice-chairman of the joint all-party parliamentary barristers' group and who has a close understanding of the legal professions.
First, at a time when welfare state activity is proliferating and people's rights are increasing and expanding, it is no longer good enough for tribunals dealing with social security and employment, for example, to be outside the legal aid scheme, so that poor or poorer people do not get the advice or support that they need to guarantee their civil rights. If we are to overcome this shortcoming, of course, there will be a need for more expenditure. But there is no point in giving individuals rights that cannot be protected or ensured.
Secondly, if there are to be enough lawyers to do the job that is required, the work must be attractively enough paid to make their work worth while. It may be that there have never been so many lawyers and that lawyers have never been so well paid, but if the removal of the principle of "fair remuneration for work actually and reasonably done" means that the result will be a reduction in the payments that are made, we shall soon see fewer lawyers and a worsening service. There are doubts partly because the White Paper made no recommendation to remove the phrase "fair remuneration for work actually and reasonably done," nor was ther any consultation between the Government and the Law Society or the Bar Council. It is easy to understand why the worst is feared.
If my hon. and learned Friend the Solicitor-General says that there is no intention to reduce the service or the pay, we will be driven to ask why it is necessary to remove something which has always been perceived as a safeguard against any Administration's change of mind. No one doubts for a moment the bona fides of the distinguished and eminent individuals who represent the legal profession as members of the Government, but what if the spokesmen change? It is precisely to remove that sort of fear that I say that it is unnecessary to interfere with the existing provisions and to tamper with words that provide reassurance.
Thirdly, why is it necessary to change the method of introducing changes in civil legal aid by secondary legislation from the existing method of affirmative resolution to one of negative resolution, which weakens parliamentary control over such changes? What is the point of that? How can the professions be reassured? How can the advice industry be reassured if such adverse changes are made without any obvious purpose?
Fourthly, why is it necessary to give the Lord Chancellor the power under clause 20(9) to remove the control of the courts to grant legal aid in criminal matters? The court has the evidence before it and sees the applicant. It has dealt traditionally and speedily with applications for criminal legal aid in a way that has caused the minimum of delay before trial. Is not the court the best judge of whether legal aid is necessary and the extent of it?
899 Fifthly, should not a defendant have the right of appeal if he is refused legal aid? Sometimes a decision is manifestly unjust and cries out for a reverse decision. It appears that such an appeal is no longer to be allowed.
I have highlighted five matters—perhaps there are others—that cause concern and upon which reassurance is necessary. However, I thank the Government for the assistance that they have given so far as the Bill proceeds through Parliament. First, it has offered the opportunity for two barristers to serve on the legal aid board, which is what the Bar Council requested. Secondly, there is the inclusion of the five Widgery criteria in clause 22(2) by which tests representation should be granted in criminal trials. Thirdly, there is the promise to enable groups of litigants to obtain legal aid to bring class actions, which will help alleged victims of drugs such as Opren to obtain justice. Fourthly, the legal aid advisory committee will remain in place for at least a year, and then it may well continue if it is seen to be useful after a full review has been completed. I might also add my thanks for the general good nature and helpful attitude adopted by my right hon. and hon. Friends when approached by intended groups about various worries.
The publication of the Bill was greeted with shrieks of horror in many quarters. With the Bill's passage through another place, there has been some reassurance and the shrieks have largely become little more than loud grumbles. Concessions have been made and hopefully more will be made. The use of the citizens advice bureaux as a filter for legal action provided by those who best know about the way in which the benefit system works has grown on everyone provided that there will be adequate resources for those organisations to do their job properly. I hope that my hon. and learned Friend the Solicitor-General will give that assurance clearly today as he was not able to give it in his opening remarks.
At the end of the day, the Government have established their bona fides in the matter. My hon. and learned Friend the Solicitor-General has reminded us that legal aid represents one of the fastest growing areas of Government expenditure. The number of people helped has risen from 150,000 some 25 years ago to more than 2 million today, with a fourfold increase in spending since 1979. That greatly exceeds the rise in the cost of living.
But the Government still have work to do on the Bill. They must still continue to reassure its critics. They can do that by helping with further amendments in answer to the anxieties that will be expressed. It is important that the Government do that so that lawyers will want to join the scheme. The service will remain of a high standard only if that happens and only then will my hon. and learned Friend's statement of the aims of the legal aid scheme—to ensure that people with small or moderate means obtain access to legal advice and justice—continue to be fulfilled.
§ Mr. Peter Archer (Warley, West)
When the hon. and learned Member for Burton (Mr. Lawrence) began to speak, I thought that he was making a bid for succession to the portfolio of his hon. and learned Friend the Solicitor-General. However, as he warmed to his theme, I fear that he fouled his prospects. Perhaps he did not really relish the thought of introducing Bills such as this.
There are many aspects of the Bill that should have been debated if the Government's business managers had 900 afforded adequate time for this debate. One particular aspect was mentioned by my right hon. and learned Friend the Member for Aberavon (Mr. Morris), who expressed concern about the future funding of law centres. I would have liked to pursue that, if only because the first proposal for law centres in this country came from the Society of Labour Lawyers of which I have the honour to be chairman. I remember attending the conference 20 years ago which resulted in the production of the pamphlet entitled "Justice for All". That is how it all began.
I would also have liked to tempt my right hon. and learned Friend the Member for Aberavon to embark on a discussion of Labour's Charter for Legal Rights which also originated from the Society of Labour Lawyers and the Law Centres Federation. But I refrain from embarking on that course, because other hon. Members want to take part in the debate. If I may borrow a forensic expression, I am content to adopt the arguments of my right hon. and learned Friend the Member for Aberavon. Who knows, at a later stage in the proceedings on the Bill, I might have an opportunity to add something of my own.
I want to confine my contribution to the matter which has occasioned the greatest anxiety and which has already been a subject in every contribution to the debate. I want to consider the Bill's effect on levels of remuneration in legal aid cases. Anxiety on that issue has been expressed very cogently already by hon. Members on both sides of the House. Indeed, it was expressed very cogently in another place by many noble Lords and in particular by Lord Ackner, Lord Griffiths and Lord Templeman. They were concerned that the principle of fair remuneration is not expressed in the Bill. It is not simply absent from the Bill, it has not simply been ignored, it has been dispatched. As the Solicitor-General reminded us, the existing legislation is the Legal Aid Act 1974. Section 39(3) of the 1974 Act—which is still the relevant legislation —contains those words.
Until now the Government have not expressed any doubt about the principle of fair remuneration. Command 9077 issued in 1983, which was the Government's first considered reaction to the Benson report after four years of reflection, staled:The Government accepts that legally aided work should be reasonably remunerated.There was no suggestion that the existing statutory formula was in question. Now those words are not in the Bill.
As the Solicitor-General reminded us, clause 34(7) of this Bill lists the matters to which the Lord Chancellor originally "may" and, as my right hon. and learned Friend the Member for, Aberavon reminded us, now "must" have regard in making provision for remuneration. Of course those are all relevant considerations. The Lord Chancellor said in another place, and the Solicitor-General repeated here today, that the word "fair" is vague. I am not sure whether I accept that, but I will let it pass for the moment. The courts deal with words like "fair" every day of the week, but the Solicitor-General said that the list is more specific. What I do not understand is why it is not possible to write in the principle of fairness as an objective, yet still retain that list as relevant considerations in achieving that objective.
That would have a number of advantages. In the admittedly unlikely event of the courts being troubled again about the levels of remuneration, there would be a statutory standard to which they could have regard, 901 whether that was intended or not. It would also remove public anxiety, which is not really surprising in an atmosphere in which the Government have cut the funding of all public services. And, as my right hon. and learned Friend explained, it would provide the Lord Chancellor with a provision to which he could have reference in arguing with the Treasury. He can now point out that he must have regard to the considerations in the list. But the Treasury may reply that he must also have regard to the availability of resources. If the obligation was to provide for fair remuneration, the availability of resources would be a relevant consideration when considering for what purposes to make provision for legal aid, but not relevant when deciding a fair rate of remuneration for specific work. That is as it should be.
If a private company arranges for the supply of some commodity, it will consider the availability of resources when it decides how much to word order. But when the invoice is delivered, it cannot be heard to say that it will pay less than the appropriate price because it does not have adequate resources.
I want to explain why some of us feel so passionately about this. The Legal Aid and Advice Act 1949 was a great step towards the realisation of the principle of equality before the law. That is a fundamental constitutional principle. It has never been questioned as a major objective even though it has not always been attained in practice. It is the nearest that we have approached in this country to a general recognition of the social contract. It is the basis for saying that the law is equally available to us all and we are all therefore under an obligation to respect it.
So it is important that we should be clear what the principle means. The principle does not mean that we all have the same right. Judges, policemen, and tax collectors have rights that are not shared by the rest of us. The principle does not mean that all our rights have the same content. Someone who owns 30,000 acres has rights the content of which are so different from the content of your rights, Madam Deputy Speaker, or mine, that we cannot begin to call them the same rights.
People's respective rights are a matter for political debate. Whether it is fair that some people's rights should be limited to living on £26.05 a week while the managing director of the Burton group has an unfettered right to live on 60 per cent. of £1.3 million a year is a political question. It has nothing to do with legal theory. It shocks the sense of fairness of any decent person, but it does not infringe the principle of equality before the law—[Interruption.] There seems to be some agreement across the Chamber on that and we are obviously making progress.
The principle means that the legal system accords us all equally an opportunity to enforce such rights as we have. Just as the rich family can defend the integrity of its mansion, so the poor family can expect the law to uphold its right to occupy its council house or its bedsit. If we are not all equally afforded the protection of the law in that sense, every new right for which the House legislates will merely widen the inequalities.
One major source of inequality is that some people cannot afford to engage the services of lawyers when they need them. There are other causes. Some people, because of inequalities of education, find it more difficult than others to understand complicated official documents. 902 Some, because of social inequalities, can telephone their solicitor at home or invite their accountant to dinner, or can consult a legal friend on the golf course. Others think of seeking legal advice in the same way that many of us regard a visit to the dentist. Some, because of economic inequalities, can drive to their solicitor's office in a few minutes, while others have to travel by public transport, perhaps changing buses three times in the process.
There will be other opportunities to address those questions. Today, we are concerned with eliminating inequalities that derive from an inability to pay. When the Legal Aid and Advice Act 1949 was introduced, the principle was that in matters covered by its provisions someone who needed legal aid should have available to him the same standard of services as someone who could afford to pay privately. So far as I know, that principle has never been expressly challenged.
One consequence was that the lawyer who acted or appeared for a legal aid client would receive the same remuneration as a lawyer who was privately instructed. True, as Lord Hailsham pointed out in another place, some of us are old enough to remember when the Bar suffered a reduction in its fees of 10 per cent. That was the Bar's agreed contribution to the funding of legal aid, perhaps in order to make it possible in the first instance. But the baseline of remuneration was the same, whether or not the lawyer's client received legal aid. And that arrangement was later considered unfair and was abolished.
But over the past few years, two levels of remuneration have been developing, according to whether or not the client receives legal aid—which has meant that lawyers with enough private work to keep them occupied have not wanted to take legally aided cases. That is confirmed by the results of the Law Society survey published on Monday, to which reference was made by my hon. Friend the Member for Leicester, East (Mr. Vaz).
There are beginning to be two kinds of lawyers—those available for legal aid work and those whose expertise and experience make it possible for them to confine their services to privately funded clients. In another place, the Lord Chancellor referred to idealism in the legal profession. I am sure he did not mean to imply that if someone is motivated by a social conscience it is right to take advantage of him, in the knowledge that such a person would not withdraw his services—that was the argument applied by the Government in respect of nurses.
It is true that many legal practitioners have been prepared to accept legal aid work if they could afford to do so, by way of taking the rough with the smooth. There are some who want the majority of their work to be from aided clients, because then they feel that they are meeting a social need. However, the number of solicitors' firms working on that basis which find that they cannot meet their overheads has been increasing. Some have ceased to practise while others are having to cut corners to survive. The principle that legal aid clients should receive the same standard of advice and representation as those who can afford to pay privately is no longer realised. In many areas, people find that they cannot obtain any legal advice or representation at all. All that has taken place while the words "fair remuneration" are in the Legal Aid Act.
I accept that the Lord Chancellor would like to remedy the situation—I do not dispute that for a moment. But it will not encourage the profession to hope for better things 903 now that those words have been removed, and it will not facilitate the Lord Chancellor's task in his discussions with the Treasury.
Other issues in the Bill also cry out for debate. I have never found it easy to understand why someone who suffers physical injury as the consequence of another's wrong doing should be entitled to legal aid in pursuing a remedy, whereas someone whose reputation is destroyed by a libel should be denied redress, unless he happens to be rich. I have never understood either why someone whose remedy lies in a tribunal hearing should be in a different position from someone whose redress lies in the courts. I endorse what was said by my right hon. and learned Friend the Member for Aberavon.
I am not clear why eligibility for legal aid should be defined by a single, rigid cut-off point, while there are many who could afford to fund a county court action or a day in the High Court—but who would be ruined if they found themselves involved in a series of appeals. In the Law Society's Gazette for 9 March, Mr. Cyril Glasser asked how the Government can be satisfied with a situation where between 1979 and 1986 something like one quarter of households in England and Wales ceased to be eligible for legal aid.
§ Mr. Alex Carlile
I agree with what the right hon. and learned Gentleman has said, but perhaps he should also address the question that exercises me. Why did the Labour Government, of which he was a member, not make the necessary changes to allow people to be represented at tribunals? Is it not also correct to say that the number of people eligible for legal aid fell dramatically during the period of the last Labour Government?
§ Mr. Archer
No. I do not know where the hon. and learned Gentleman obtained that information, but it is totally false. I say that from my own experience, because I was the Minister who introduced the 1979 Bill into the House. It was that legislation which restored levels of legal aid to those which existed initially.
§ Mr. Archer
It is true that a number of steps had to be taken to adjust for that situation. There was, for example, a change in the way in which undefended divorces were dealt with, as I am sure the hon. and learned Gentleman will remember. I am happy to defend the record of the Labour Government. We would like to have done a number of other things. Perhaps I should not divulge to the hon. and learned Gentleman the contents of my private diaries—I shall publish those later!—but they record a number of discussions aimed at redressing certain problems. However, I have one eye on the clock and I know that other right hon. and hon. Members wish to contribute. If the hon. and learned Gentleman will forgive me, I am content to deal with those other arguments in Committee.
They are all matters which should be raised, and which we ought to have debated today had we had more time. However, I can promise the Solicitor-General a lively time when we come to the Committee stage.
§ 5.7 pm
Mr. Humfrey Matins (Croydon, North-West)
I am grateful for this chance to contribute briefly to the debate. I begin by declaring an interest as a solicitor in private 904 practice. None of us doubts that the pressures on the legal aid system have increased dramatically in recent years. The amount spent on the system has also dramatically increased, though little of that is reflected in the fees paid to lawyers. That increase is a reflection of the larger number of people eligible for legal aid, the increased volume of crime, the higher number of divorces, and so on. The cost of providing legal aid has risen alarmingly and the Government are right to concern themselves with that development. The machinery is badly overburdened and without doubt restructuring is needed. Therefore, I broadly welcome the Bill.
I look at the question of legal aid, first, from the applicant's point of view. The position varies depending on whether the applicant applies to a magistrates court in connection with a crime with which he has been charged, or makes an application in respect of an action in a civil court or for divorce. As to the first, the present system appears to work very well, with magistrates' clerks able to grant or refuse applications for legal aid within a few days, or even quicker. At Dorking court, at which I have practised, the clerk, Mr. Kimnell, and his deputy, Mr. Hall, deal with applications within a matter of hours, and never take more than a day. That is good news for the applicant, who is given a decision quickly.
One may contrast that situation with applications for legal aid in a civil action or in respect of divorce. The legal aid office at Brighton, which works very hard and is greatly overburdened, currently takes upwards of three months to determine an application for legal aid. That is bad news for the whole system and is very bad news for the applicant, whose position may often be prejudiced as a result of such unreasonable delays. I do not criticise the staff. Far from it. They work terribly hard. The system, however, is in need of a major overhaul. That is the position of the applicant.
But, at the end of the day, the solicitor needs to get his costs taxed. Here again, the system, in both criminal and civil law, is out of date and in need of reform. The forms which must be filled up for criminal costs to be taxed are becoming more difficult to understand. The duty solicitor forms are almost impossible. In civil law, the bill of costs is prepared by a costs draftsman. The laborious process of taxation takes time and is old-fashioned, involving the allocator, for instance. It is a difficult system and it costs money itself, because there is no remuneration for all the work involved in sorting out the costs.
Three problems that I see in the Bill have been dealt with in earlier speeches. First, I am a little concerned about the possible cutback on the green form scheme. The green form has been a great blessing for many people who have been in need of legal advice in the past few years. A good deal of money has been spent on it, but perhaps we should blame ourselves. We pass so much legislation that the poor chap in the street has a bewildering sense of rights and remedies, and he needs to be looked after.
Let me give an example. A poor man on social security found himself tempted to send for a book advertised in a magazine. It was one of those offers involving "no obligation", and he sent off a couple of pounds. He then found that the company had him by the throat, so to speak: book after book and bill after bill turned up.
That man could go to a solicitor and take advice under the green form scheme. He did so, and the solicitor was able to put him on the same level as the rich company, writing a hard solicitor's letter and getting the company off 905 his back. If that remedy is taken from the poor man—for a solicitor's letter does help—he will be put at a disadvantage compared with the big battalions, and I do not believe that any of us wants that to happen.
The second point that concerns me slightly is the proposal to put out parts of the law to competitive tendering. Will that mean a continuing high quality of service, or will the standard drop? I rather fear it will be the latter.
There is also the question of fair remuneration. Lawyers are often the subject of much ridicule for earning vast fees, but most of us in practice know that legal aid itself does not pay very well, and the rates have not risen substantially in past years. Without a system of fair and proper remuneration, there is a danger that solicitors will stop doing legal aid work. If they do not stop outright, they may not see the client; they will arrange for secretaries and junior clerks to do so. I have already seen that operating in firms in Surrey. The junior people see the clients, who do not receive the necessary advice because the solicitors' practices cannot afford to arrange for a partner or qualified person to deal with them.
I ask my hon. and learned Friend the Solicitor-General to take on board the question of remuneration. I congratulate him on the way in which he has put over the points in the Bill. I know that he will consider what I have said, but I feel that the profession has a right to be slightly concerned.
We could all offer advice on how the legal aid system could save money. Undoubtedly much money is wasted. There is a tendency for some solicitors—and, dare I say, some members of the Bar—to encourage those on criminal charges always to go for trial. That, of course, is not a good thing. Some solicitors, frightened to take a case in the magistrates court, say, "Go for trial. We will sort out the plea later." That means double pay. My hon. and learned Friend says, quite rightly, that barristers would never do such a thing, but solicitors sometimes do, which is a pity. I do not know whether we should consider limiting the right to jury trial, but I feel that we must concern ourselves with the amount spent on duplication by the profession.
§ Sir Nicholas Bonsor (Upminster)
I feel that the Government should be extremely careful before taking the course suggested by my hon. Friend. In the days when I used to practise at the Bar, I fear that it was true that anyone who was convicted of shoplifting and appeared before a stipendiary magistrate stood absolutely no chance of acquittal. It was like a sausage machine. One after the other, the same excuses were trotted out, and one after another they went down. We must be very careful about taking the right of jury trial away from such defendants.
My hon. Friend is absolutely right to mention the importance of jury trial, particularly for those charged with offences of dishonesty. I recognise that right, but I express my concern about the costs.
We must also reform the system in the civil courts. Civil legal aid bills get bigger and bigger. For instance, in the present state of divorce law, practitioners end up with files 12 in thick before they ever get into court. If the parties in a divorce action could be brought to court more quickly or 906 brought before the registrar for a conciliation appointment, the correspondence could be shortened and the enormous costs cut down.
§ Mr. William Cash (Stafford)
My hon. Friend has not referred to public inquiries. Such a case may involve a local authority or water authority with immense resources, QCs galore and considerable administrative back-up. The issue may be one of major regional or national importance. Yet the people on the other side—the objectors—are more or less on their own, as they cannot afford to do much, although there is a legitimate public interest.
Has my hon. Friend any sympathy with the idea of a certificate of public interest being issued by a Minister or a judge in chambers to enable legal aid to be granted to an amenity group? We could then be satisfied, in cases such as the Sizewell inquiry, that a proper and fair hearing had been provided by the opportunity given to the objectors to be represented with the help of legal aid.
Typically, my hon. Friend makes an excellent point, which I am sure my hon. and learned Friend will have taken on board.
We have twin aims. One is to ensure that spending on the legal aid system does not get out of hand. There are signs at present that it is going up too fast. Secondly, a vital part of our democracy is that the poor are not disadvantaged and can start on an equal footing with the rich.
I shall support the Bill, because I think that the Government are right to tackle the problem and they have done so in a sensible way. However, a number of us will watch the position with great interest in the months and years ahead in the hope that those twin aims will be achieved.
§ Mr. Alex Carlile (Montgomery)
I start by welcoming the good parts of the Bill. Without repeating the list of four specific items enumerated by the hon. and learned Member for Burton (Mr. Lawrence), with which I agree—
§ Mr. Carlile
I think that there were four, but we can consider that later.
The right hon. and learned Member for Aberavon (Mr. Morris) listed some of the deficiencies in the existing legal aid scheme. I agree that those deficiencies exist, and have become starker as the years have passed. On the whole, however, it can be said that the legal system has been available over the years to the very poor and to the very rich. It has been available to the very poor because generally they have been able to obtain legal aid. It has been available to the very rich because generally they have been able to buy their legal advice without its causing them too much anxiety. Generally speaking, it has not been available readily to those in the large middle income group which predominates, because they cannot afford to undertake the burden of lengthy litigation.
It seems to me that the Bill highlights a difference of philosophy, a difference between two strongly held opinions. The first, to which I would adhere, is that all citizens should have equality before the law. That means having a widespread legal aid system which enables individuals who are wronged to have their wrongs righted. The alternative view, to which the Bill seems to adhere, is 907 that legal aid should become less available and eventually should be reduced to the level of a safety valve for the poorest in society and in respect of only some aspects of our law. That is the philosophy behind the Bill and I regret it very much.
I should state my professional interest in this matter as a practising barrister working in the criminal and civil common law with which we are principally concerned and also as one of the secretaries of the joint all-party barristers group. Having said that, I should like, as it were, to remove my wig and look at the Bill from the viewpoint of the consumer.
The Bill sets up a legal aid board. From the consumer's point of view there is nothing wrong with a legal aid board. It would be fine if what was being set up was an independent board which was able to consider the merits across the law and what legal aid was required to deal with which items of legislation. That is not what the Bill provides. In my view, it is quite likely that the independent members of the legal aid board will find that they are part of a paper tiger. It will be a paper tiger for one clearly identifiable reason which I would suggest was more or less confessed to by the Solicitor-General; and if he did not confess, his denial was distinctly muted.
The reason is that legal aid is now, for the first time, to be cash limited by the Treasury; for the Bill is principally about the cash limitation of legal aid by the Treasury. That is bound to affect the performance and effectiveness of the legal aid board. This cannot be satisfactory for the consumer or for the organisations representing consumers.
§ Mr. David Martin (Portsmouth, South)
Is the hon. and learned Gentleman suggesting that no cash limits should be applied to legal aid?
§ Mr. Carlile
I shall answer the hon. Gentleman by asking him if he thinks it is right that legal aid should be available to enable those who cannot afford to go to the law to enforce the law in their interests whatever the legislation with which they are concerned. If he believes that to be the case, the answer to his question is yes, and I am not ashamed of saying so. It seems to me to be the equitable and correct answer to the question.
A further matter which will concern the consumer very greatly if he considers the Bill is that the Bill merely sets out a legislative framework. Most of the legislation on legal aid will be made by statutory instrument. It will be made on the drip. That will enable the Treasury to tighten its grip on the tap from which such money as is available for legal aid flows. That seems to me to be profoundly unsatisfactory.
The hon. Member for Croydon, North-West (Mr. Marlins), who is a very experienced solicitor, dealing with everyday legal problems, spoke about the green form scheme. The green form scheme throughout England and Wales has provided all citizens with ready access to straightforward legal advice on simple issues which a lawyer can solve easily but which a citizen may find extremely baffling. The dismantling of the green form scheme will mean that expert advice provided for the citizen will be less readily available.
I believe that with the best will in the world some of the agencies that will be required to provide first-step advice may not be able to-give the same level of expertise. In the long run, the removal of the green form scheme will not reduce significantly the cost of legal aid.
908 In an intervention I raised the problems which many rural and small town solicitors feel that they will face as a result of the changes in contracting-out and tendering. In my constituency in mid-Wales, solicitors provide an immense range of services for the public, and when they do not know the answers they obtain counsel's opinion. Despite popular myth, one can obtain an opinion from a competent junior counsel at very little cost and present it to the client. The client will know or at least will believe that the advice is right. I hope that the legal aid board, the Lord Chancellor's Department, the Solicitor-General and the Attorney-General will not allow anything to happen which will dismantle the fundamentals of the legal system throughout the shire counties of England and Wales.
The Solicitor-General spoke about fair remuneration as an acceptable principle and I accept his belief in that view. He then went on to describe his understanding, and the Government's expression, of the meaning of parts of the Bill dealing with the remuneration of lawyers. It is clear that, although the Government undoubtedly believe in giving lawyers fair remuneration, as the right hon. and learned Member for Warley, West (Mr. Archer) said, they have decided deliberately to reject that principle and give them a little bit less than a fair remuneration.
If the Government start a scheme with this new piece of legislation with a little bit less than fair remuneration, and the Treasury gets its mucky paws on the scheme—as it will, sure as eggs is eggs—one can guarantee that a little bit less will turn into a fair amount less and a fair amount less will turn into a lot less than fair remuneration.
From the consumer's viewpoint, the consequence of that will be very serious. Under the existing system someone may apply through his solicitor for legal aid and if the case becomes more complicated he can apply on an objective basis for the extension of legal aid. Under the existing legal aid scheme he has been able to obtain legal advice of an equal quality compared with the other side.
Despite the 10 per cent., and later the 5 per cent. reduction, the lawyers have been pretty fairly remunerated, and in civil disputes for which legal aid has been available there has been broad equality of representation. That will no longer be the case because the principle of fair remuneration will be removed, and because of one further reason. The new regime for cash contributions to legal aid will penalise those whose cases are complex. I shall give an example. If a man is brain damaged in a road traffic accident, it can take years, however hard the solicitors work for him, for the case to be resolved. It can take years for all sorts of reasons, such as listing difficulties in London, tracing witnesses, but, above all, because of the time it takes to obtain a certain medical prognosis of the injury. In my experience, that can often take five or more years in a case where serious personal injury has been caused.
If cash contributions are to be made throughout the period for which the case continues, it will mean that the plaintiff will be less able to afford to make the contributions. Those of us who have appeared for and against insurance companies in personal injuries cases know that insurance companies understand litigation at least as well as anybody else. This proposal will encourage insurance companies to be dilatory and to deny liability until the last possible moment. They will not pay money into court and will put up every possible obstruction. Some insurance companies do that already and those of us in practice know who they are and so do they. The others 909 will join them. The settlers will join the delayers because of the fact that a plaintiff has legal aid. The rules governing that legal aid are important considerations in the minds of insurance company general managers dealing with personal injury litigation.
There is not time to address the other deficiencies in the Bill. This is far too short a debate on such a major subject. However, I cannot let this opportunity pass without re-emphasising the fact that I believe that it is wrong that people are not able to obtain legal aid for tribunals or defamation actions. I look forward at some future date to the right hon. and learned Member for Warley, West answering the first question that I asked in my earlier intervention.
As the Bill stands I am afraid that it falls far short of satisfying the standard that I hope all hon. Members will set for it. It should provide for equality before the law for everyone; rich or poor, confident or lacking in confidence, whether they understand the law or whether, as is more often the case, it is a complete and baffling mystery to them.
§ Mr. Tony Baldry (Banbury)
The hon. and learned Member for Montgomery (Mr. Carlile) complained about the time for the debate. I imagine that it was agreed between the usual channels. When this day was chosen I assumed that it was because large numbers of Opposition Members wished to be away to campaign in the local government elections. However, having heard the speech from the Opposition Front Bench, I now appreciate that it is because hon. Members for constituencies such as Bolsover (Mr. Skinner) and Bradford, South (Mr. Cryer) could not have stomached hearing their Front Bench spokesman make elegant pleas for more money for lawyers. In fact, all the speeches from Opposition Members could be summed up by the two words, "More money." We have not heard anything about cost effectiveness or efficiency in the system, other than in speeches from my hon. and learned Friend the Member for Burton (Mr. Lawrence) and my hon. Friend the Member for Croydon, North-West (Mr. Malins). We have not heard any suggestion about how in matrimonial legal aid—
§ Mr. Baldry
With respect, I have only just started my speech, and this is a short debate.
As I was saying, we have not heard any suggestion about how we can make matrimonial legal aid more efficient. Lawyers are still remunerated on the basis of time spent and unit items, regardless of how many letters are sent and the value of those letters. Members of the Bar, who sometimes have to plough through bundles of solicitor-to-solicitor correspondence, wish that they could take them individually to the taxing master and say, "Large chunks of this are totally irrelevant." There is no discipline in the system and there is no incentive to make the system more effective or efficient.
My hon. Friend the Member for Croydon, North-West mentioned the way in which civil legal aid is administered. There has been no debate this afternoon as to how we can 910 make that more efficient. I have grave doubts whether any of the court listing officers have ever seen a computer. It seems that everything is still hand written, and there is no sign of word processors being introduced. Those are areas—
§ Mr. Baldry
Perhaps I should declare an interest. The Chamber now seems to be completely full of lawyers. I am a practising barrister. I have trudged through many far-flung and distant Crown and county courts in the past few months and seen how solicitors operate.
There has been a fourfold increase in legal aid costs since 1979—it has increased from £100 million to £400 million. There has been no suggestion as to how we can ensure that the consumers—it is they for whom we are concerned—receive good value. The poor individual who goes to see a solicitor on matrimonial legal aid does not always appreciate the full meaning of the Law Society's statutory charge. It is only when they come to sell their house that that begins to bite. If they understood that a bit more, we might see more efficiency and more determination to resolve disputes, not by confrontation and litigation but by conciliation. Again, it is only from Conservative Members that suggestions have been made as to how we may more properly conciliate.
It is sad that the only suggestions we have heard this week from the Law Society's professional body could also be summed up in the words, "More money." It mentions that some solicitors have given up doing legal aid work. That has been going on for a number of years, for very good reasons. Some firms of solicitors have set up to do criminal legal aid work and are operating a lot more effectively and efficiently than a generality of common law firms dabbling in and doing a little legal aid work here and there. Some firms specialise in criminal legal aid work. In practically every town on the circuit on which I practise there are now one or two firms of solicitors which are, and have been for the past few years, specialising in criminal legal aid work. That is not a reflection of the fact that they are badly remunerated, but simply that market forces exist in law just as anywhere else and it makes more sense for the service to be concentrated and for them to be able to deliver a service in the magistrates courts and Crown courts. Again, we have had no debate this afternoon about how that system could be improved.
Those of us who are practising barristers or solicitors know that there are areas of the law in which few members of the Bar and few solicitors are competent. Such areas include some aspects of welfare law where citizens advice bureaux have been set up for over a decade and are becoming much more professional. I welcome the fact that the Bill will extend the opportunities given to such agencies to provide a decent service and to ensure that people have the benefit of that advice. We have a variety of responsibilities in the House. We have a responsibility to see that people receive justice. We have a responsibility to see that the consumer is well served. We also have a responsibility to the taxpayer. A simple cry of "More money" is inadequate to meet the requirements of a society that is becoming more complex, where the rights and needs of the individual are becoming more complicated and where the tribunals at which they can appear are becoming more numerous.
911 I welcome the Bill because the present structure of legal aid, which has existed for many years, while being worth while, is not watertight. It is time to overhaul that system and introduce different disciplines and elements into the way in which the law is administered. I welcome the fact that on the new legal aid board there will be people with experience of management disciplines. I suspect that that will be a welcome introduction. The presence of people who have experience in personnel management will also be a welcome introduction to the way in which legal aid is administered.
May we, once and for all—although I suspect that it will detain the Standing Committee—hit on the head the debate about fair remuneration? It is, after all, not merely fair remuneration. One should always put it in its full context. It is fair remuneration for work actually and reasonably done. It is always historic; it always assumes a whole host of value judgments. What I might consider fair for a plea at Reading Crown court may well be very different from what the taxing master at Reading Crown court considers fair. There is always argument about value judgments. Under this proposal, such value judgments will be more accurately set out and there will be a greater understanding on the part of all involved of how people will be remunerated, and why.
A simple cry of "More money," without discussion of how we can make the system more cost effective and efficient, how to ensure that county and Crown courts operate more effectively and that time is used to better effect, and how listing officers—I am sure that they work hard—can be better served, with better technology with which to do their work, will mean that we are failing in our duty to ensure that people get justice and failing in our duty to the consumer and the taxpayer.
§ Mr. Brynmor John (Pontypridd)
I shall not follow the hon. Member for Banbury (Mr. Baldry), except to say that he made great play of the issue of failing to ensure that the consumer was well satisfied. I declare an interest as a non-practising solicitor. None of us who has dealt with legal aid cases has had complaints from the consumers of legal aid, except of the normal variety—"I should have won." The complaint behind and genesis of the Bill come from the Treasury because of the amount of money it spends. So some of the cant and sourness that we heard from the hon. Member for Banbury can be safely ignored.
I speak in the debate for two reasons. First, Andrew Roth described me as having the immoderate enthusiasm for the welfare state of a poor man's lawyer, to which I plead guilty. Any just society must provide for equal opportunity for redress of individual grievances, as well as grievances in the mass. The legal aid and advice schemes which have always tried to do that have been not the least significant pillar of the welfare state which, after all, was the historical foundation of the Legal Aid Acts. They aided 2 million people in the past year at a cost of £450 million. We are used to spending billions of pounds in the House without turning a hair, so it is ironic that the Government should cavil at the expense of £450 million to relieve the social tensions that are inherent in an increasingly complex society.
We must accept that it is the welfare aspect of the Legal Aid Acts which has incurred the disfavour of the Government. The Law Society and the noble Lords who 912 debated the Bill in another place made a fundamental error in regarding the argument about the Bill as being one about the means chosen to achieve a set number of ends. It is not a debate about means; it is about ends. For all the smoothness and urbanity of the Lord Chancellor, the Government dislike the legal aid and advice scheme and want to destroy it step by step. They will do that not frontally, but with their well-known salami-slicing tactics, in which the Treasury will play an ever greater part. Why else would the Government include in the Bill such wide enabling powers, which enable all the details to be filled in by secondary legislation, much of which will go unconsidered by the House? Even if we consider it under the affirmative resolution procedure it will be unamendable. Either we take it as a whole or we leave it as a whole, but we cannot apply our collective wisdom to what is suggested.
The second reason why I speak is that my relevant experience derives from the area in which I live, in which I was born and which I represent. I have also practised there all my life. It is part of a county which, according to the current Government publication "Economic Trends", is the poorest in England and Wales. It has a GDP per head of £3,200, which is less than half the GDP per head in Greater London. How can there be any notion of justice in such an area without a substantial legal aid scheme? Without such a scheme the notion of justice would be as hollow as it was in the old legal joke, "Justice is open to all, like the Ritz hotel."
The Lord Chancellor, with his commercial and revenue practice, cannot possibly understand the way in which poor areas such as mine must depend on the legal aid scheme for justice in their legal dealings. Even less can the desiccated Brahmins who inhabit the upper reaches of the Lord Chancellor's Department understand that. Yet they are given substantial discretion by the Bill, of which one example will suffice.
No one who has acted in a personal injury case or who has practised in the provinces can think that the length of a case should determine a person's contribution to legal aid. There are three possible reasons why a case can be delayed. First, it can be delayed by the defendants and their insurance companies' solicitors and so on. Secondly, there can be delays because the medical position is not sufficiently clear for the specialist to give a prognosis that is enough to settle the case. The third reason is that the solicitor may be acting for a man who is himself at fault. The only common feature to all three is that they are not the fault of the assisted person. Why then should he be asked to pay more? Are we really to accept the patronising view that underlies this—that little people have little grievances? By making the legal aid contribution so large, the Government are ensuring that people cannot undertake legal action in long complicated cases.
We have already heard how the legal aid criteria have become less generous as time has gone on, and how fewer people are now eligible for aid than the numbers of whom previous Governments proudly boasted. It is the scientific expertise of the last Lord Chancellor that informs this debate. On a previous occasion when he tightened the limit he said that only 1,000 legal aid applications would be affected each year. It turned out that 4 per cent. of all applications were disqualified. That is the sort of scientific basis on which the White Paper rests and which is miserably embodied here in statutory form.
913 We should be extending the notion of legal aid, not contracting it. First, we should do so for administrative tribunals. There is a sort of grim humour in the fact that the House is being asked to take welfare rights away from the green form scheme and from legal advice on the day after The Times reported the case of McQuorquadale v. the chief commissioner, in which a lady had to fight her case to the Court of Appeal on legal interpretation to stop the deduction of past maintenance payments from her benefit. That is how legalistic some of the framework of welfare rights is, and why it would be wholly disastrous for it to be detracted from, or for access to legal advice or other advice to be denied. We are, under the bland assumption of informality, doing a grave injustice to the people who have to go before welfare tribunals.
I am sorry to see that the hon. and learned Member for Montgomery (Mr. Carlile) has gone. I argued in Government, as well as in Opposition, that the country should seek a system of administrative law to replace the present chaotic jungle of different procedures and tribunals, and that we should have a proper administrative court. Legal aid will have to be available for that sort of justice.
There should also be legal aid in libel cases. The tabloid newspapers have longer rakes for their muck these days; they travel down into different spheres of society. It is a scandal when television believes that it has the right to try and to condemn people on programmes and legal aid is not available in cases of serious defamation. It means that a person's reputation is sacred only if he has the money to defend it.
I make a plea for the legal services committees. There has been one in the north-west of England for a long time and others have been proposed or started in south Wales and the north-east of England. Professional lawyers and many other people who are interested in the law, including welfare workers, get together to ensure that legal services are accessible to the consumers. The chief weakness in extending the legal services committees is the lack of assurance about funding. I do not mean accessibility of funds for a particular purpose but core funding which enables these committees to exist. Assurance of funding has made the north-west committee successful. I hope that even this Government will commit themselves to funding legal services committees of the south Wales and north-east England variety to secure the future.
Whatever the Government say, my view is that the Bill aims to cut legal aid expenditure significantly. The hon. Member for Banbury told us that all that the Opposition have done is to cry for more remuneration for lawyers. We do that because we want a comprehensive system of legal aid advice.
The new buzz word for activity in the law is commercial law, when one is not quite a business man and, in my view, not quite a lawyer either. These practices are set up around the cities. In my area of Pontypridd and the Rhondda, legal firms are not moving wholesale to commercial law, to advise on company flotations in areas in which sometimes there is up to 25 per cent. male unemployment. These firms are heavily dependent on legal aid but, in the past year, six solicitors—some of partner status—have left firms in the Rhonnda to go to firms elsewhere for higher remuneration and more fashionable work. They will not be replaced 914 because of the current remuneration available in areas such as mine. Therefore, the legal aid service to people in my area—I am concerned with this rather than with professional remuneration—who have been injured or suffered matrimonial or other problems will be that much less. I find it offensive to say to my people—the accused, the victims of accidents and the matrimonial casualties —that they are not worthy of the same legal protection as the Ernest Saunders and Jeffrey Archers of this world.
When I decided to become a solicitor, professional status and remuneration were obviously important, but we also had a desire to serve our communities. These days, private practice is more at the whim of the accountants' stopwatch, and the legal profession is less caring. The Bill will signal to many that equality before the law is a hollow sham, a concept not backed up by the means to make it effective and a reality. Only by having a doctrine that is a reality can we have a society that will remain civilised and settle its disputes without regular and increasingly severe explosions of violence. No Government should imperil that concept of justice and equality before the law. Beneath all the fine words, smooth evasions and the bland formulae of the Bill, and the way in which it has been introduced in both Houses, is the underlying concept that the Government do not want to continue universal legal aid and equality before the law. I hope, therefore, that the Bill is denied a Second Reading.
§ Mr. David Martin (Portsmouth, South)
I speak as what might be described as a lapsed practising barrister. Therefore, I can be one of the few in the Chamber to plead disinterest rather than interest in what comes to the legal profession in remuneration or work. I practised chiefly in the criminal courts, mainly defending and doing legal aid work. I did criminal cases but also civil cases. I felt a sense of déjà vu on hearing today's comments on the lack of remuneration for the legal profession and on the second-class service that one always gets from legal aid cases compared with private funding. That was all said when I was called to the Bar in 1969. When I began practising, there was a Labour Government, followed by a Conservative Government and, in the 1970s, another Labour Government. There were still all the difficulties about remuneration of lawyers and the difference in pay between legally aided cases and those paid for privately.
I was interested to hear the comment of the right hon. and learned Member for Warley, West (Mr. Archer) that the original intention was that there should be the same money for private litigants as for those who were legally aided. That was a myth when I practised, and I suspect that it always will be a myth. That is not to say that there should not be the same standards. I did not consider myself to be a second-class lawyer in the standards and service that I gave. Certainly I was young and not as well paid as many who were hitting the highlights, but by no means did I give a reduced standard of service to those whom I did my best to represent.
I was badly paid. I took dock briefs, which continued even during the so-called generous period of legal aid. I took the advice of Lord Keeper Guildford's grandfather, who said, "If you will be contented to be a great while getting a little, you will be a little while getting a great deal." Unfortunately, I did not stay at the Bar long enough to get the great deal. Since my experience, I have always 915 been an agnostic in the face of lawyers' claims that they suffer parsimony in their income, whether from legal aid or not.
Legal aid was in crisis in 1976 when I ceased practising at the Bar. One received far less because of the inflation in the early 1970s. Instead of earning a pound for a pound's work just before 1971 one got 10 shillings, and this became 50p for a pound's work by the time there had been two years of Labour Government. I left the Bar wondering when it would ever be sensibly remunerated. I saw the rebellion against the Lord Chancellor, to which, I regret, he gave way years later. We hear that the Bar is still badly remunerated. According to the practising lawyers, the legal profession is badly remunerated, yet lawyers get more and more and the number of practising lawyers, both solicitors and barristers, increases. It happens all over the country.
We have heard in this debate that some lawyers will cease to do the work. I like the idea of the 40 per cent. — not 40 per cent. who have given up the work but 40 per cent. who have either given it up or are considering doing so. Remember all the fuss—I am sure that you do, Madam Deputy Speaker, because you have a long memory—about how all the sharks and cowboys would take over conveyancing and the lawyers would withdraw from the scene and about how all the Elusian mysteries attached to conveyancing would not he understood by anyone who was not a lawyer. However, even solicitors have gone from strength to strength in conveyancing when competition and, dare I say it, market forces have been introduced. The professional approach of lawyers has been used in the same way, which has been welcome. I welcome the Bill because it carries forward those reforms.
Conveyancing introduced an element of business into the practices of solicitors and barristers, which they very much needed, and a recognition of trade and business, which in their view was not necessarily consistent with the professionalism for which, in my opinion, they overcharged. They now provide a better conveyancing service. We should not listen to the pleas of lawyers that this is the end of the world as they know it. We have heard it all before.
I agree with Opposition Members about the issue of equality before the law. Of course everybody should have equality before the law, but it is difficult to define who should receive legal aid and whether there should be cash limits. The hon. and learned Member for Montgomery (Mr. Carlile) avoided answering my question about cash limits. At first he said that there should not be cash limits, but then agreed that there should be. Whatever service one provides there will always be cash limits. Cash limits should be made while ensuring that there is as much equality before the law as possible. However, there will never be a perfect system because there will always be those who feel hard done by and that they should have had their case heard before a court.
Every Government since 1949 have done their best, but only recently under this Government has legal aid increased in leaps and bounds. The number of people who enjoy legal services through legal aid and the amount spent on them have increased.
Much has changed since 1949; hon. Members' surgeries have changed very much over that period. Reference was made earlier to Dai Common Law. I am a Dai Common Law in my surgery as, I suspect, are other hon. Members. I spend much of my time not referring my constituents to lawyers. They are the last people to whom I refer them 916 because I want them to live happy lives free of worry and conflict. People with grievances are often not happy people. I say to them, "For goodness sake, do not pursue this case. Do not feel aggrieved, but try to understand that life is tough. If you can swallow what you feel is a wrong, you will feel much happier. Once you get into the clutches of lawyers, you will never get out of them." I speak from a great deal of experience—perhaps I am the poacher turned gamekeeper. Having fallen, as an honest man, among lawyers many years ago, I speak with some experience.
Where do I send my constituents? I send them to the agencies in my constituency, such as the excellent citizens advice bureau. I want more money to be provided to citizens advice bureaux, and l think that that will happen as a result of the Bill. I send them to other specialist agencies that defend a particular interest. The ordinary people who staff those agencies are committed, as I am and other hon. Members, to helping ordinary people.
We have been hearing for many years that legal aid should be granted for tribunal cases. The problem is that tribunals were established in the 1940s to avoid the need to go to a lawyer. The original intention was to keep matters out of the hands of lawyers. There were to be tribunals where people spoke ordinary English, not Latin—we have heard only one Latin quotation today, thank goodness—that would be understood by all, and there would be no lawyers to make matters difficult. But the moment that legal matters are introduced into any tribunal, lawyers become involved.
§ Mr. John
Although the hon. Gentleman is speaking eloquently about informality, does he not think that the introduction into tribunals of the doctrine of precedent of commissioners' decisions blows his argument out of the water? The claimant does not have access to reports, but the insurance office and the tribunal do. It is like appearing before a secret society.
§ Mr. Martin
I am arguing that we should get rid of many tribunals and bring them into the mainstream of the courts. I do not understand why county courts are unable to do much of the work that is done by tribunals. I have much sympathy with what the hon. Member for Pontypridd (Mr. John) said about an administrative law system. At some stage there will have to be a complete reform of the court system so that much of the work done by tribunals is returned to the mainstream of the legal system rather than put into separate compartments.
I hardly dare to suggest a programme for the Government as we have been crowding so much into the first parliamentary year, but perhaps we should be thinking of measures to take over the next three years. Perhaps we should undertake the sort of reforms that took place in the 19th century. We should be bringing more work into the mainstream of the legal system rather than, as we have been ever since 1949, creating ad hoc tribunals to deal with particular matters. Trying to obtain legal redress without involving lawyers is like trying to found a new hell without imps or, dare I say it, a new Parliament without Whips. It cannot be done because there must be one if there is the other.
As to the important matter of costs, I understand that under the Bill, if an unassisted party is sued by an applicant funded by the legal aid board and wins. he has no right to costs. It is a gross injustice that one can win 917 case and pay the lawyers, but still find that, even though one's rights have been vindicated, one is left with costs to pay. The only way in which one can obtain costs from the legal aid board is if it can be shown that severe hardship has been suffered or it is considered just and equitable to be paid out of public funds. That is no more acceptable than the present system, under which the costs recovered by a successful party, whether assisted or unassisted, are not in practice fair.
I end with a quotation from Bacon, who likened the law courts to a bush to which a sheep runs for protection in a storm and is bound to lose some of his fleece.
§ 6.7 pm
§ Mr Gordon Oakes (Halton)
I shall be brief because a number of my hon. Friends want to take part in the debate.
The hon. Member for Portsmouth, South (Mr. Martin) used a peculiar expression at the beginning of his speech. He said that he was a lapsed barrister. Having listened to his speech and heard the advice that he gives to his constituents, I understand why he used the term "lapsed barrister". One of my great fortunes is that I am not one of his constituents. Surely if a constituent comes to us about a legal matter, as they frequently do, we should send him to a solicitor, not an agency.
My right hon. and learned Friend the Member for Aberavon (Mr. Morris) said that this was a Treasury Bill and a money Bill. I do not believe that. Money is always part of everything and it is a part of the Bill, but the matter goes much deeper than that. We have seen the Government attack local authorities, trade unions, the media and the BBC, but this is an attack on justice. The Bill creates a two-tier justice system, which is something that Britain has never known.
Let us consider some of the fundamental parts of the proposed scheme. Hon. Members have talked about the green form scheme. When I practised as a solicitor people frequently came to see me for advice under the green form scheme. That is the entry point for the legal profession. People do not know whether they have a case, so they come to solicitors for advice. Frequently, they do not have a case and they are advised on the green form scheme that that is so.
The Government scheme will do what the hon. Member for Portsmouth, South already does, which is send people to an agency, presumably something like the citizens advice bureau. I am second to no other hon. Member in my admiration for what the citizens advice bureaux do. Their offices are staffed by dedicated voluntary workers who attend courses to improve their efficiency in advising the public, and they do that without remuneration or financial reward. Another excellent organisation which helps at times of emergency is the medical profession. Do we feel that we do not need doctors? Do we say that they are not the people to deal with medical problems?
At the point of entry, one needs first-class advice. Hitherto we have had that. One can go to virtually any solicitor for advice. However, 40 per cent. of solicitors have decided that they will not be part of the scheme, and that was before this Bill. When the Bill, which excludes fair remuneration, goes through, that number will rise to 80 per cent., not because solicitors are uncaring, but because 918 they will not be able to afford to do the work. They have their staffs to pay and their own remuneration to take, and they cannot afford to do legal aid work.
The hon. and learned Member for Montgomery (Mr. Carlile) made an excellent point about fair remuneration. Of course the insurance companies, with their enormous resources and vast experience, will put every possible obstacle in the way if they know that the plaintiff in a case is legally aided. They will wear the solicitor out. It will be like pulling in a fish in a fishing match. So many obstacles will be put in his way that the solicitor will pull out because he cannot afford to go on. He will know that as there will no longer be the fair remuneration clause, although he can say that the defence has put so much in his way, and he has had to deal with all the nonsense that they have introduced, the legal aid board will still be able to tell him that he can have only a fixed fee and that he should have done all the work for less. In a civil defence case, the defence solicitors will know that perfectly well and will use it.
The ordinary citizen will be denied justice at the point of access, and there will be a two-tier system of justice. One will have advice from an unqualified, however devoted, person, as against that from a qualified person such as a solicitor who is accepted among the professions, and who has passed one of the hardest examinations to get into his profession. It is rightly difficult to get into that profession because one has to deal with a person's liberties and rights, so one must be properly qualified. Instead of such a qualified person, a volunteer may make the decision. The volunteer may be in the citizens advice bureau, but if he gives the wrong advice, can the citizen sue? He could sue a solicitor for wrong advice, but he cannot sue an agency. There is no way out. That is two-tier justice.
I deplore the fact that we are debating the Bill for such a short time. I have much to say, but I want my hon. Friends to have an opportunity to speak. This is one of the major Bills of the Session, and it is wrong to have only a three-hour debate on it. This is two-tier justice, which hitherto has been unknown in Britain. The Government are introducing it not merely for financial, but for political and philosophical reasons.
The Bill attacks the poor litigant rather than the rich insurance company which contributes to Conservative party funds. The Bill will attack the immigrant, who tends to be poor and who needs legal advice even more than citizens born here. It is a bad Bill and I hope that Conservative Members, many of whom respect the law, have been part of the law and believe—as I passionately do —in British justice, do not want to live in a country with a two-tier system of justice, with one law for the rich and another for the poor.
§ Mr. Michael Irvine (Ipswich)
A great deal of the anxiety felt in the legal profession about this Bill stems from the disappearance of the words that were to be found in the previous legislation. They were:fair remuneration according to work actually and reasonably done.The omission of those words causes worry. Solicitors, and my fellow barristers, see matters listed in clause 34(7) which the Lord Chancellor has to take into account. They see nothing particularly exceptionable in them but they ask themselves whether the omission of those words means that the principle of fair remuneration has been 919 abandoned. They then look at subsection (8) and see that the Lord Chancellor must consult the general council of the Bar and the Law Society and feel somewhat relieved. However, any such relief is dissipated when they look over the page and see that subsection (11) provides:No regulations shall be made under this section which include provision for the purposes mentioned in sub-section (2)(c) or (e) above except with the consent of the Treasury.The anxiety stems from that.
I concede that inadequate remuneration can all too easily lead to inadequate performance and a fall in standards, but I ask my fellow members of the Bar and solicitors to have regard to the substantial increase in Government money and resources which have been devoted to the legal aid scheme in recent years. In 1978–79, it was running at about £100 million a year. This year, the figure will he close on £450 million. By any standard, that is a substantial increase. It is true that costs have also risen markedly during that period, but both branches of the profession have benefited substantially and it is right that I, as a practising barrister, should mention that I have shared in that benefit.
The trouble is that the demand for legal services, rather like the demand for the National Health Service, is virtually infinite. If demand is unleashed without proper regard to the costs of providing services, it will grow uncontrolled and will increasingly become a burden on the Exchequer. It will lead to the courts becoming clogged and to an increasingly severe strain being put on their operation.
I hope that the new legal aid board will ensure that members of the legal profession doing legal aid work are properly remunerated, and that lack of means does not cut anyone off from legal advice and representation when it is needed. However, it should maintain a far more careful scrutiny than has previously been the case as regards waste and abuse. The vast majority of practitioners are competent and scrupulous in ensuring that abuse does not occur. All of us who have practised in the courts know that some abuse and quite a lot of waste occurs nevertheless. I was glad that my hon. Friend the Member for Croydon, North-West (Mr. Malins) mentioned the question of matters that should be dealt with in the magistrates court finding their way at considerably increased expense to the Crown court. That is an example of how costs could and should be saved.
All of us who practise know that in some cases people obtain legal aid who should not have obtained legal aid. We know that in far too many cases, through delay and inefficiency, proceedings meander on, causing frustration to litigants and unnecessary expense to the legal aid fund. The Legal Aid (General) Regulations 1980 already provide for sanctions in that regard. Regulation 104(1) provides:…on any taxation of an assisted person's costs in connection with proceedings (except authorised summary proceedings and proceedings in the Crown Court) any costs wasted by failure to conduct the proceedings with reasonable competence and expedition shall be disallowed or reduced….I believe and hope that the new legal aid board will make sure that such powers are used more rigorously. It is no good the professions calling for fair and reasonable remuneration unless we are prepared to allow the legal aid board to ensure that the waste and abuse, which to some extent exist, are kept under very tight control and eliminated as far as possible.
920 In general, I support the Bill's provisions wholeheartedly, but one important criticism that I have of it is that it leaves untouched the restrictions on the power of the courts to order payment of successful unassisted litigants' costs out of the legal aid fund. That matter was rightly raised by my hon. Friend the Member for Portsmouth, South (Mr. Martin). The grant of legal aid puts the recipient in a very powerful position indeed. I listened with some astonishment to the right hon. and learned Member for Aberavon (Mr. Morris), who spoke of legally aided litigants being subjected to procedural delays and being left at the mercy of well-funded opponents who are privately financed. Far too often the boot is on the other foot, and the legally aided litigant is faced with a not particularly well-off litigant without legal aid. When that happens, the person without legal aid is virtually completely at the mercy of the legally aided litigant.
It is intolerably unfair that a litigant financing proceedings out of his own resources should not only face the disadvantage of conducting a case against a legally aided opponent but in all too many cases should find himself having to bear his own costs, even if he is successful. I am disappointed to discover that in clause 18 the old mistakes are repeated. Subsection (4) provides:An order under this section in respect of any costs may only he made if—(a) an order for costs would be made in the proceedings apart from this Act.That is obviously fair enough. The sting comes in subsection (4)(b):as respects the costs incurred in a court of first instance. those proceedings were instituted by the assisted party and the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made".So a successful non-legally aided litigant in a court of first instance has no hope of obtaining an order for costs against a legally aided opponent unless the other party instituted the proceedings and, in addition, he can show that he, the non-legally aided litigant, would suffer severe financial hardship unless such an order was made.
If ever a case demonstrated the unfairness of that provision it was the case of Kelly v. London Transport Executive (1982), 1 WLR, 1055. In that case the plaintiff suffered a very minor accident indeed and concocted a vastly inflated amount of injury and damage flowing from it. The defendants paid £750 into court. The plaintiff did not take it. The defendants made an offer of £4,000 in desperation, to avoid the mounting costs, and he still did not take it. Eventually, he pressed the matter to a conclusion. The judge who heard the case found him to be an unscrupulous liar. His story was shown to be absolutely untrue. He was awarded just £75 in damages. Because the defendants were unable to bring themselves within the ambit of the provisions now contained in clause 18(4)(b), they received no costs at all, in spite of the fact that long before the hearing they had paid £750 into court and had later made an offer of £4,000. That is a grievous injustice.
It may be argued that such a reform would result in a very substantial amount of extra costs being incurred. I acknowledge that that is a risk and that that argument is important. However, it is a reform which should be considered. If the legal aid fund were at risk for costs, it would concentrate powerfully the minds of the legal aid board and of those acting for the legally aided party. That of itself could well lead to a saving in costs that would 921 counterbalance to some extent any extra expenditure that would have to be met if the reform that I suggest were made.
I strongly believe that the principle of fair and reasonable remuneration should be retained. However, we lawyers do ourselves no service if we think that by a wave of the hand we can rid ourselves of Treasury control. It is not right that we should do so. It is right that the Treasury should be there and that the legal aid board should bring its forces powerfully to bear on the problem of saving costs and making our legal system more efficient.
§ Mrs. Llin Golding (Newcastle-under-Lyme)
First, let me declare an interest. Unlike all the other hon. Members who have spoken, I am not, and never have been, a member of the legal profession. In the distant past, I was a consumer, and it is as a consumer that I want to speak to the Bill.
Like many hon. Members, I have received representations from many groups of people and many individuals who are worried about the effects of the Bill. They are concerned predominantly about the withdrawal of legal aid and advice from people who are often not able to fight for themselves. There is considerable concern, too, about the wide-ranging powers that the Bill gives to the Lord Chancellor to alter the scheme as and when he thinks fit.
The legal profession has expressed its misgivings at the removal of the administration of legal aid from the Law Society to the legal aid board, which is proposed in part II of the Bill. Incidentally, I do not see a proposal in the Bill for the postal ballot of all solicitors to elect the two solicitor representatives to the new board. Perhaps such ballots apply only to groups of workers in unions who are not allowed to have closed shops.
As a consumer I am greatly interested in the question, "Does the present system of control by the Law Society work and, if not, will the proposed system of a legal aid board be any better?" In what way should the Law Society keep control of the administration of public funds? The basic need is for a list of solicitors who hold practising certificates. As many hon. Members will be aware, subject to certain exceptions, a solicitor is not qualified to act as a solicitor unless he has a certificate issued by the Law Society authorising him to practise. He cannot recover his costs in respect of anything done if he does not hold a practising certificate. Indeed, on 25 November 1987 the Master of the Rolls said:A solicitor who practises without a certificate first of all commits a criminal offence and secondly is uninsured.It should not be too difficult for a practising solicitor to remember to register by 31 October each year. However, it is surprising how many fail to do so and how few seem to be brought to account for that failure. Even when they are brought to account, the action taken is not known to the consumer.
Let us consider the case of a firm of solicitors, Messrs Blair Allison. One of my constituents notified the Solicitors Complaints Bureau that that firm had been practising uncertificated from 1 November 1986 to 28 January 1987. I wrote to the bureau on her behalf and received the following reply:practising certificates were only issued with effect from 28 January 1987 (and accordingly they had been practising 922 uncertificated since 1 November 1986). An investigation was undertaken by the Bureau and these matters were considered by the Adjudication Committee at their meeting on 21 October last. Action was taken against the partners but I am afraid I am not in a position to let you know the Committee's decisions in respect thereof.I asked what had happened about my constituent's complaint, what had happened to the money that the firm had made, and what had happened to any costs that may have been paid out in public money. The answer from the Solicitors Complaints Bureau was that we, the consumers, are not allowed to know.
I tabled a series of written questions to the Attorney-General on 25 January. I askedif he will take steps to establish a method of complaints against uncertificated solicitors which is more open to scrutiny than that of the Solicitors Complaints Bureau.The answer was no. I also tabled a question to ask:if he will set up an inquiry into the manner in which the Solicitors Complaints Bureau conducts investigations, with respect to its standards of impartiality.The answer again was no. I also askedwhat steps he will take to prevent the payment of legal aid moneys to uncertificated solicitors; and whether he will make a statement.The Attorney-General replied:When the legal aid administration of the Law Society receives information that a solicitor has undertaken legal aid work whilst uncertificated, no payment is made for the work concerned. Action is taken to recoup any moneys already paid in respect of the appropriate period.The next question I tabled asked:what was the amount of legal aid moneys recovered in 1983, 1984, 1985, 1986 and 1987 and paid in respect of a solicitor who at the relevant time did not hold a current practising certificate; and whether he will make a statement.The reply was:The information requested is not available, but the practice of the legal aid head office is to recover all legal aid moneys paid in respect of a solicitor who at the relevant time did not hold a current practising certificate."—[Official Report, 1 February 1988; Vol. 126, c. 449–50.]I studied the legal aid fund accounts for 1983 to 1986 and I could find no identifiable entry of money recovered from uncertificated solicitors. Therefore, how do we know the size of the problem? Indeed, in a written question to the Attorney-General on 5 February I asked:under which heading in the legal aid accounts for 1985–1986 are to be found sums recovered from solicitors who at the relevant time did not hold a current practising certificate.The answer was:Sums are recovered by deduction from subsequent payments to the solicitors concerned. Recoupments thus lead to the amount recorded in the legal aid accounts as 'solicitors' charges and counsel's fees being lower than would otherwise have been the case.What kind of answer is that from an Attorney-General who discovers that solicitors have been acting uncertificated and claiming money from public funds. That was a little out of tune with his reply to my question on 5 February, which askedwhether he will seek to strengthen the criminal law with the intention of reducing the number of uncertificated solicitors who are acting improperly.The reply stated:I see no reason to do so. Criminal sanctions for an offence under section 20 of the Solicitors Act 1974 are already severe; penalties of imprisonment for not more than two years, a fine, or both may be imposed. Specific offences relating to the commission of certain prohibited acts attract other penalties under the Solicitors Act 1974."—[Official Report, 5 February 1988; Vol 126, c. 772.]Let us consider claims for payment from the legal aid fund—the so-called green form claims submitted by the 923 legal profession. Is the House aware that green form claims are retained for only 12 months after the end of the financial year in which payment of the claim was authorised? Even if a solicitor was found to have been practising uncertificated, the green form giving the detail of the claim would have been destroyed. Unless the case was considered quickly—the Law Society is not known for its speed—there would be no evidence.
How does one prevent the forms from being destroyed on 31 March each year? How does an ordinary citizen, who wishes the Solicitors Complaints Bureau to investigate a complaint, prevent the destruction of such forms? The answer is to take the matter to the High Court, as did Mrs. Peasgood, one of my constituents who prepared and presented her case. She made an application for an order against the secretary general of the Law Society, last year's president of the Law Society, the current president of the Law Society, the director of the legal aid head office, the regional director of legal aid head office, the Chester area director of the legal aid office, two assistant directors at Chester, the director of the Solicitors Complaints Bureau, a solicitor who dealt with complaints at that bureau and the Law Society.
Mrs. Peasgood asked for an order under section 51 of the Solicitors Act 1974 to require the defendants to answer allegations contained in her affidavit of conduct unbefiting solicitors. Two of those allegations were:Conspiracy to conceal illegal conduct and to conceal dishonesty … cheating the public revenue.My constituent was refused legal aid. She took that action not in an attempt to discredit the system or the individuals named, but to make them answerable to ordinary people whose money they are spending. In the course of her action she considered some of the part-time chairmen of the social security tribunal who are practising solicitors. She discovered that some of them seemed to have been practising uncertificated. Thus there appear to be solicitors sitting in judgment on others while acting criminally themselves.
Are the Law Society and the Solicitors Complaints Bureau the correct bodies to run the legal aid scheme? Surely the answer must be no. Will the new legal aid board under the control of the Lord Chancellor do any better, given that he moves with the wind in whatever direction it sends him? The answer must be no.
The Bill has been presented by a Government who are dedicated to control the trade unions by crippling them and by making unnecessary laws against the workers. They have presented this Bill for their predominantly middle-class solicitor friends, and it offers little control over the distribution of millions of pounds of taxpayers' money. It allows hundreds of solicitors to continue to practise illegally, indeed criminally. The Bill demonstrates that, yet again, the Government are ignoring the needs of those in our society who most need help. We should oppose it.
§ Mr. John Fraser (Norwood)
One of the fundamental duties of Parliament is to sustain and support the fair and efficient administration of justice and the exercise of individual civil rights. When a Legal Aid Bill comes before the House, it should be an occasion on which we can celebrate the strengthening of our system of justice and equality before the law—a phrase to which many right hon. and hon. Members have attached importance. It 924 should be an occasion when we push forward the frontiers of representation, for example, before coroners, before tribunals and in serious defamation cases.
The numbers of tribunals and their importance have multiplied immensely since the modern legal aid system was introduced. The judgment of an immigration appeals tribunal can often be a matter of life and death. Tribunal awards in unfair dismissal cases often exceed amounts within the county court jurisdiction. Class actions are becoming increasingly important, not just for the consumers of drugs but for the residential occupants of estates, whether privately or publicly owned. The Bill should be an occasion to reverse the tendency towards a first and second-class standard of legal representation, which has worried hon. Members. The Bill should reinforce the proposition that legal rights are valueless unless the means to be aware of them exist.
Unfortunately, the Bill does not rise to those occasions. Instead, it is a vehicle mainly to enable the Treasury to hack £10 million off legal aid expenditure and to cash-limit the money that is available for legal aid purposes. As has been the case with other social legislation—health, housing, pensions and social security—it is a device to get people to pay more but receive less. The Bill will not reverse the trend towards a smaller proportion of people of moderate means having access to the courts for the redress of legitimate grievances.
The definition of legal aid by the Rushcliffe committee —repeated by the Solicitor-General—was that the real test of "small and moderate means" should be a test of those means in relation to the probable cost of the proceedings, without unreasonable deprivation of the litigant. In many European jurisdictions the test for moderate means is based on the amount to be expended. An example of how the system operates in this country is that if any person has a disposable income exceeding £110 per week, which is not a great deal of money, or capital exceeding £5,000, no legal aid is available for representation no matter the size or cost of the case, although some advice may be given.
I offer as an example the case of an elderly couple with more than £5,000 in the bank. They find that their retirement home is falling apart because of alleged negligence by a well-known firm of builders or an architect. That couple must gamble their life savings on the result of a court case. In those circumstances, no one could argue that their means are not small and moderate in relation to the issue involved. The Bill does nothing to meet the case where an elderly couple are expected to exhaust their saved capital before receiving any assistance from the state. In a case where the defendant is affluent or is protected by an insurance company and the couple have spent all their savings on the fees of expert witnesses and counsel, they should then qualify for legal aid because their disposable income is less than £110 a week. The new law will make it less likely that they will pursue their case or succeed, because their period of contribution will go beyond one year. That will make it more difficult for them to obtain justice. The existing system falls short of equal or adequate access.
The National Consumer Council provided me with several examples. Although about 2 million rented homes are in serious disrepair, last year only about 1,500 housing cases came before the courts. Only 8 per cent. of defendants who risk losing their homes because of possession proceedings are legally represented. About 85 925 per cent. of people who are injured at work and are off work for more than two weeks do not take the first step to obtain civil redress for the injury which they have suffered.
Despite what the Solicitor-General said about increased expenditure on legal aid, a smaller and smaller proportion of the population is now eligible for legal aid. Of course, the Government had to extend criminal legal aid and advice to prisoners at police stations as a price for obtaining the Police and Criminal Evidence Act 1984. Having paid that price, they are now trying to penalise the legal aid system by attempting to get back some of the money lost as a consequence of that Act.
I am grateful to Mr. Cyril Glasser, who wrote an article in the Law Society's Gazette on 9 March 1988. He describes in that article the extent to which the cover of legal aid in general has decreased. He said in that article:During the period of 1979–86, an estimated 13 million people, representing over 25 per cent. of the population, went out of scope for eligibility on income grounds alone. These figures may well have substantially increased over the last two years, so that only just over half the population now qualifies, compared with well over 80 per cent. in 1979.Because of lack of time, I shall not give the other statistics that he has usefully stated there. However, it is clear that, whatever the pattern of expenditure on legal aid might be, the number of people—the number of two-parent households in particular—who qualify for legal aid has reduced substantially since 1979.
In the words of my right hon. and learned Friend the Member for Aberavon (Mr. Morris), the Bill is a missed opportunity. The script for the Bill may have been written by the Lord Chancellor, but the real plot has been devised by the Treasury. The real face behind the mask is found in the penultimate paragraph of the explanatory memorandum to the Bill, which talks about a consolidated saving in public expenditure. In the words of the National Consumer Council, we do not believe that the Bill will improve access to justice
In the time available, I cannot deal with the many and detailed points which have been raised. However, I endorse the views of many hon. Members about the preservation of the legal aid advisory committee. At the beginning of a new scheme, there should be no time limit on how long that advisory committee runs. In many of our national industries and in other areas, for example, in health administration, it is not unknown to have one system of administration for executing a scheme and to have a consumer representative body, rather like the legal aid advisory committee and the social security advisory committee, to comment on what is happening. I endorse the comments of many of my hon. Friends and many Conservative Members on the preservation of the independence of the new legal aid board.
I hope that the Government will not remove from criminal courts the ability to award criminal legal aid on the spot, particularly when the defendant is in custody. The criminal court deals with the urgent question of whether a person should be at liberty and the level of assistance which he should have when before the court. No one is in a better position to judge the eligibility for legal aid on merit. I am not now talking about legal aid on the basis of income.
We agree with many commentators that contracting-out means obtaining advice on the cheap. In the words of 926 the National Association of Citizens Advice Bureaux, they will not accept advice on the cheap or arrangements which will damage their relationship with other agencies or with the legal profession. There is a great danger, particularly in the less populous parts of the country, of creating a monopoly of advice which is given by people who may not be subject to professional codes of ethics. That may put them into conflict with those to whom they will subsequently have to refer cases.
The professions will have to negotiate remuneration with the Treasury. That has always been the case, but I can see no justification for taking out of the wording of the existing legislation the provision for remuneration forwork actually and reasonably done.Of course, the professions will always be accused of special pleading, but the Attorney-General is aware of the problems in the magistrates courts in London, the difficulties of obtaining clerks and running our systems of justice properly because the rate for the job is not being paid to magistrates' clerks. He is also aware of the problems with the Crown Prosecution Service because the right rate for the job is not being paid. He knows that the system of justice continues to break down because there is not fair remuneration forwork actually and reasonably done.There are plenty of examples outside the legal aid scheme of the difficulties that will be encountered if the Lord Chancellor intends to impose upon the profession a system of remuneration that does not bear fair comparison with salaries elsewhere.
When the Lord Chancellor introduced the Bill in the other place, he described it asthe framework for the legal aid scheme through into the next century."—[Official Report, House of Lords, 15 December 1987; Vol. 491, c. 605.]The trouble is that it is not so much a framework as a frame without a picture. The picture will have to be painted in by 53 regulation-making powers that the Lord Chancellor assumes in the Bill. It will have to be painted in through the guidance that he is entitled to give to the legal aid board. It will have to be painted in by the partly hidden hand of the Treasury. The Bill, by its history, letter or spirit, does not seek to reinforce or extend the legal aid service.
One of the Government's principles is give and take. Yesterday, they gave in the debate on one of the clauses of the Finance Bill; today, they take. The Bill represents not the open hand of justice, but the tight fist of the Treasury. For those reasons, and because of the hidden agenda behind the Bill, we shall vote against it.
§ The Solicitor-General
This has been an interesting debate with three themes. First, there is a wide welcome for the new framework set by the Bill, but there were some major misapprehensions in the speeches of hon. Members, particularly of Labour Members, and some reassurances were sought.
The first major misapprehension concerns funding. I want to state as firmly as possible that it is nonsense to talk of cuts or a second-class service. The legal aid system is demand led today and it will continue to be demand led under the new system.
The right hon. and learned Member for Aberavon (Mr. Morris), with the Welsh hwyl steaming in particularly fine form, sought to depict my noble and learned Friend the 927 Lord Chancellor as someone who might easily be seen as dancing to the Treasury's tune, clutching a poisoned chalice. Those hon. Members who know my noble and learned Friend will find that difficult to believe.
We spent rather a long time on the question of fair remuneration for the legal profession. I wish to draw the House's attention to the criteria set out in clause 34(7). The Law Society, for example, has said that its overheads will not be covered. It has been suggested that there will not be sufficient barristers and solicitors to provide the service required. However, one finds in that clause those specfic matters that the Lord Chancellor must take into account. That is a much firmer and better safeguard than the inevitably imprecise concept of fairness. The Lord Chancellor made it clear that we shall be fair and the Bill enshrines the sensible criteria to achieve that.
§ The Solicitor-General
No, I shall not give way. I have already given way to the hon. Gentleman several times and I want to try to answer the points raised in the debate. However, I shall give way to my hon. Friend as he has been here throughout the debate.
§ Mr. Jack
Will my hon. and learned Friend take the opportunity to review the speed of payments to solicitors undertaking such work? That point has been drawn to my attention by solicitors in my constituency who believe that the present system is slow. Will he also, either now or later by letter, answer the point about the Bill's treatment of conveyancing and wills, particularly in respect of testamentary guardianship?
§ The Solicitor-General
I promise my hon. Friend that we shall consider those points carefully. Other aspects regarding speed of payment have already been carefully considered in recent months and I well understand my hon. Friend's point. Although my hon. Friend the Under-Secretary of State for the Home Department has been heavily engaged elsewhere, he will know that we are considering that aspect.
I was asked directly by the right hon. and learned Member for Aberavon whether I accepted the figures in the Law Society's briefing. We shall listen carefully to the Law Society's comments, but that briefing does not come up to the standard that we might have expected from the Law Society. It argues that 27 per cent. of solicitors are ceasing to do matrimonial work, but I have studied that briefing and I see that the hard facts show that, over the past five years, almost double the number of solicitors have come into matrimonial work as have left it. That does not appear to be a sound basis for that statistic.
We also regard as ill-founded the Law Society's claim that 25 per cent. of people have ceased to be eligible for legal aid over the past few years. It is a difficult matter to work out and Mr. Glasser, whose article I have read, makes that clear. However, one can obtain legal aid in many circumstances with an income well above the national average. As the country becomes richer, that may lead to some change in the proportions, but the figure is not to be accepted.
In the time left to me I shall seek to give reassurance on a few important points. The right hon. and learned Member for Aberavon, the hon. and learned Member for Montgomery (Mr. Carlile) and my hon. and learned 928 Friend the Member for Burton (Mr. Lawrence), among others, asked about tribunal representations. The Lord Chancellor is carrying out research on that matter and, when it has been completed, we shall consider it, particularly in relation to one of our priorities, social security commissioners. That is a particularly complex issue, but we shall take no lectures from Opposition Members because, in all the years that they were in government, they did nothing about Strasbourg, defamation, industrial tribunals, social security tribunals and coroners. It is rich for them to suggest that we should have put all those matters right at a time when legal aid expenditure has been increasing at an exponential rate, precisely because the service is demand led. It is nonsense to suggest that we are proposing to dismantle the green form scheme. Many advice agencies do a pretty good job in giving advice on specialised matters, such as welfare benefits. Nothing will be forced upon them, but they will have the opportunity to enter into freely agreed contracts to provide that advice in limited areas and only then will the green form scheme be withdrawn.
High standards of service are part of our priority. The opportunity for appeals on criminal legal aid will remain. I give that assurance to my hon. and learned Friend the Member for Burton. The board will be able to fund legal services committees if it thinks right. That is my response to the remarks of the hon. Member for Pontypridd (Mr. John). The legal aid advisory committee can continue if that be thought right and if the Lord Chancellor and the board think that helpful. Decisions on criminal legal aid will remain with the courts unless and until it seems wise and sensible to do anything different.
The aim of the Bill is to provide the litigant, who would otherwise be unable on account of his means to obtain advice, assistance or representation, with a legal aid system that is efficient and effective and gives value for money both for him and for the taxpayer. We wish to create a system that is capable of evolving to meet the challenges of the decades ahead.
§ Question put, That the Bill be now read a Second time:-
§ The House divided: Ayes 242, Noes 147.931
|Division No. 285]||[7pm|
|Adley, Robert||Brandon-Bravo, Martin|
|Aitken, Jonathan||Brazier, Julian|
|Alexander, Richard||Bright, Graham|
|Alison, Rt Hon Michael||Brittan, Rt Hon Leon|
|Allason, Rupert||Brooke, Rt Hon Peter|
|Amess, David||Browne, John (Winchester)|
|Amos, Alan||Bruce, Ian (Dorset South)|
|Arnold, Jacques (Gravesham)||Buchanan-Smith, Rt Hon Alick|
|Arnold, Tom (Hazel Grove)||Buck, Sir Antony|
|Aspinwall, Jack||Budgen, Nicholas|
|Atkins, Robert||Burns, Simon|
|Baker, Nicholas (Dorset N)||Butler, Chris|
|Batiste, Spencer||Butterfill, John|
|Beggs, Roy||Carrington, Matthew|
|Bennett, Nicholas (Pembroke)||Carttiss, Michael|
|Bevan, David Gilroy||Cash, William|
|Biffen, Rt Hon John||Chapman, Sydney|
|Biggs-Davison, Sir John||Chope, Christopher|
|Blackburn, Dr John G.||Clark, Sir W. (Croydon S)|
|Blaker, Rt Hon Sir Peter||Clarke, Rt Hon K. (Rushcliffe)|
|Bonsor, Sir Nicholas||Coombs, Anthony (Wyre F'rest)|
|Boscawen, Hon Robert||Coombs, Simon (Swindon)|
|Boswell, Tim||Critchley, Julian|
|Bottomley, Peter||Davis, David (Boothferry)|
|Bottomley, Mrs Virginia||Day, Stephen|
|Bowden, Gerald (Dulwich)||Dorrell, Stephen|
|Bowis, John||Douglas-Hamilton, Lord James|
|Durant, Tony||Marshall, John (Hendon S)|
|Dykes, Hugh||Marshall, Michael (Arundel)|
|Emery, Sir Peter||Martin, David (Portsmouth S)|
|Fookes, Miss Janet||Mates, Michael|
|Forman, Nigel||Maude, Hon Francis|
|Garel-Jones, Tristan||Maxwell-Hyslop, Robin|
|Gill, Christopher||Mayhew, Rt Hon Sir Patrick|
|Gilmour, Rt Hon Sir Ian||Meyer, Sir Anthony|
|Goodhart, Sir Philip||Miller, Hal|
|Gorman, Mrs Teresa||Mills, Iain|
|Gorst, John||Miscampbell, Norman|
|Gow, Ian||Mitchell, Andrew (Gedling)|
|Gower, Sir Raymond||Mitchell, David (Hants NW)|
|Greenway, Harry (Ealing N)||Moate, Roger|
|Greenway, John (Ryedale)||Molyneaux, Rt Hon James|
|Gregory, Conal||Monro, Sir Hector|
|Griffiths, Sir Eldon (Bury St E')||Montgomery, Sir Fergus|
|Griffiths, Peter (Portsmouth N)||Moore, Rt Hon John|
|Ground, Patrick||Moss, Malcolm|
|Grylls, Michael||Moynihan, Hon Colin|
|Hamilton, Hon Archie (Epsom)||Neale, Gerrard|
|Hamilton, Neil (Tatton)||Needham, Richard|
|Hanley, Jeremy||Nelson, Anthony|
|Hannam, John||Neubert, Michael|
|Hargreaves, A. (B'ham H'll Gr')||Newton, Rt Hon Tony|
|Hargreaves, Ken (Hyndburn)||Nicholls, Patrick|
|Harris, David||Nicholson, David (Taunton)|
|Haselhurst, Alan||Onslow, Rt Hon Cranley|
|Hawkins, Christopher||Page, Richard|
|Hayes, Jerry||Paice, James|
|Hayhoe, Rt Hon Sir Barney||Patnick, Irvine|
|Hayward, Robert||Pawsey, James|
|Heathcoat-Amory, David||Peacock, Mrs Elizabeth|
|Heseltine, Rt Hon Michael||Porter, David (Waveney)|
|Hicks, Mrs Maureen (Wolv' NE)||Powell, William (Corby)|
|Hicks, Robert (Cornwall SE)||Price, Sir David|
|Hind, Kenneth||Raffan, Keith|
|Hogg, Hon Douglas (Gr'th'm)||Raison, Rt Hon Timothy|
|Holt, Richard||Redwood, John|
|Hordern, Sir Peter||Renton, Tim|
|Howard, Michael||Rhodes James, Robert|
|Howarth, Alan (Strat'd-on-A)||Ridsdale, Sir Julian|
|Howarth, G. (Cannock & B'wd)||Rifkind, Rt Hon Malcolm|
|Howell, Ralph (North Norfolk)||Roe, Mrs Marion|
|Hughes, Robert G. (Harrow W)||Ross, William (Londonderry E)|
|Hunt, David (Wirral W)||Rossi, Sir Hugh|
|Hunter, Andrew||Rowe, Andrew|
|Irvine, Michael||Rumbold, Mrs Angela|
|Jack, Michael||Ryder, Richard|
|Janman, Tim||Sackville, Hon Tom|
|Johnson Smith, Sir Geoffrey||Sainsbury, Hon Tim|
|Jones, Gwilym (Cardiff N)||Shaw, David (Dover)|
|Jones, Robert B (Herts W)||Shaw, Sir Giles (Pudsey)|
|Jopling, Rt Hon Michael||Shaw, Sir Michael (Scarb')|
|Kellett-Bowman, Dame Elaine||Shephard, Mrs G. (Norfolk SW)|
|Kilfedder, James||Shepherd, Colin (Hereford)|
|King, Roger (B'ham N'thfield)||Shepherd, Richard (Aldridge)|
|Kirkhope, Timothy||Shersby, Michael|
|Knight, Greg (Derby North)||Sims, Roger|
|Knight, Dame Jill (Edgbaston)||Skeet, Sir Trevor|
|Knowles, Michael||Smith, Tim (Beaconsfield)|
|Knox, David||Soames, Hon Nicholas|
|Lamont, Rt Hon Norman||Speller, Tony|
|Lang, Ian||Spicer, Sir Jim (Dorset W)|
|Lawrence, Ivan||Squire, Robin|
|Lennox-Boyd, Hon Mark||Stanbrook, Ivor|
|Lester, Jim (Broxtowe)||Steen, Anthony|
|Lilley, Peter||Stern, Michael|
|Lloyd, Sir Ian (Havant)||Stevens, Lewis|
|Lloyd, Peter (Fareham)||Stewart, Andy (Sherwood)|
|Lyell, Sir Nicholas||Stradling Thomas, Sir John|
|McCrindle, Robert||Sumberg, David|
|MacGregor, Rt Hon John||Summerson, Hugo|
|Maclean, David||Tapsell, Sir Peter|
|McLoughlin, Patrick||Taylor, Ian (Esher)|
|McNair-Wilson, M. (Newbury)||Taylor, John M (Solihull)|
|McNair-Wilson, P. (New Forest)||Taylor, Teddy (S'end E)|
|Malins, Humfrey||Tebbit, Rt Hon Norman|
|Mans, Keith||Thompson, D. (Calder Valley)|
|Maples, John||Thompson, Patrick (Norwich N)|
|Thorne, Neil||Wells, Bowen|
|Thurnham, Peter||Wheeler, John|
|Tracey, Richard||Whitney, Ray|
|Tredinnick, David||Widdecombe, Ann|
|Trippier, David||Wiggin, Jerry|
|Trotter, Neville||Wilshire, David|
|Twinn, Dr Ian||Winterton, Mrs Ann|
|Vaughan, Sir Gerard||Winterton, Nicholas|
|Waddington, Rt Hon David||Wood, Timothy|
|Wakeham, Rt Hon John||Woodcock, Mike|
|Waldegrave, Hon William||Yeo, Tim|
|Walters, Dennis||Young, Sir George (Acton)|
|Wardle, Charles (Bexhill)||Tellers for the Ayes:|
|Warren, Kenneth||Mr. David Lightbown and|
|Watts, John||Mr. Kenneth Carlisle.|
|Abbott, Ms Diane||Griffiths, Win (Bridgend)|
|Allen, Graham||Hattersley, Rt Hon Roy|
|Alton, David||Heffer, Eric S.|
|Anderson, Donald||Hinchliffe, David|
|Archer, Rt Hon Peter||Holland, Stuart|
|Armstrong, Hilary||Howells, Geraint|
|Ashton, Joe||Hoyle, Doug|
|Banks, Tony (Newham NW)||Hughes, John (Coventry NE)|
|Barnes, Harry (Derbyshire NE)||Hughes, Robert (Aberdeen N)|
|Barron, Kevin||Hughes, Roy (Newport E)|
|Battle, John||Hughes, Sean (Knowsley S)|
|Beith, A. J.||Hughes, Simon (Southwark)|
|Benn, Rt Hon Tony||Illsley, Eric|
|Bermingham, Gerald||Janner, Greville|
|Bidwell, Sydney||John, Brynmor|
|Blair, Tony||Jones, Ieuan (Ynys Môn)|
|Boateng, Paul||Jones, Martyn (Clwyd S W)|
|Boyes, Roland||Kaufman, Rt Hon Gerald|
|Bray, Dr Jeremy||Kennedy, Charles|
|Buckley, George J.||Kirkwood, Archy|
|Caborn, Richard||Lamond, James|
|Callaghan, Jim||Leadbitter, Ted|
|Campbell, Menzies (Fife NE)||Leighton, Ron|
|Campbell, Ron (Blyth Valley)||Lloyd, Tony (Stretford)|
|Campbell-Savours, D. N.||McAllion, John|
|Carlile, Alex (Mont'g)||Macdonald, Calum A.|
|Clark, Dr David (S Shields)||McFall, John|
|Clay, Bob||McNamara, Kevin|
|Clelland, David||McWilliam, John|
|Clwyd, Mrs Ann||Madden, Max|
|Cohen, Harry||Mahon, Mrs Alice|
|Cook, Robin (Livingston)||Marek, Dr John|
|Corbett, Robin||Martlew, Eric|
|Corbyn, Jeremy||Michael, Alun|
|Cousins, Jim||Michie, Bill (Sheffield Heeley)|
|Crowther, Stan||Michie, Mrs Ray (Arg'l & Bute)|
|Cryer, Bob||Millan, Rt Hon Bruce|
|Cummings, John||Mitchell, Austin (G't Grimsby)|
|Dalyell, Tam||Morgan, Rhodri|
|Davies, Ron (Caerphilly)||Morris, Rt Hon A. (W'shawe)|
|Davis, Terry (B'ham Hodge H'l)||Morris, Rt Hon J. (Aberavon)|
|Dixon, Don||Mowlam, Marjorie|
|Dobson, Frank||Mullin, Chris|
|Duffy, A. E. P.||Murphy, Paul|
|Dunwoody, Hon Mrs Gwyneth||Nellist, Dave|
|Eastham, Ken||Oakes, Rt Hon Gordon|
|Ewing, Mrs Margaret (Moray)||Orme, Rt Hon Stanley|
|Fatchett, Derek||Patchett, Terry|
|Fields, Terry (L'pool B G'n)||Pendry, Tom|
|Fisher, Mark||Pike, Peter L.|
|Flannery, Martin||Powell, Ray (Ogmore)|
|Flynn, Paul||Prescott, John|
|Foot, Rt Hon Michael||Primarolo, Dawn|
|Foster, Derek||Quin, Ms Joyce|
|Fraser, John||Radice, Giles|
|Fyfe, Maria||Randall. Stuart|
|Garrett, John (Norwich South)||Rees, Rt Hon Merlyn|
|George, Bruce||Reid, Dr John|
|Golding, Mrs Llin||Richardson, Jo|
|Gordon, Mildred||Robertson, George|
|Gould, Bryan||Rogers, Allan|
|Grant, Bernie (Tottenham)||Ross, Ernie (Dundee W)|
|Shore, Rt Hon Peter||Wardell, Gareth (Gower)|
|Short, Clare||Welsh, Michael (Doncaster N)|
|Skinner, Dennis||Wigley, Dafydd|
|Smith, Andrew (Oxford E)||Williams, Alan W. (Carm'then)|
|Smith, C. (Isl'ton & F'bury)||Winnick, David|
|Soley, Clive||Wise, Mrs Audrey|
|Spearing, Nigel||Worthington, Tony|
|Steel, Rt Hon David||Wray, Jimmy|
|Taylor, Mrs Ann (Dewsbury)||Young, David (Bolton SE)|
|Taylor, Matthew (Truro)|
|Vaz, Keith||Tellers for the Noes:|
|Wall, Pat||Mr. Frank Haynes and|
|Wallace, James||Mr. Frank Cook.|
§ Question accordingly agreed to.
§ Bill read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).