HL Deb 18 February 1946 vol 139 cc648-63

5.26 p.m.

VISCOUNT SIMON rose to ask His Majesty's Government whether their attention has been called to the Report of the Committee on Legal Aid and Legal Advice for Poor Persons which was presented to Parliament in May last; and whether His Majesty's Government are taking any steps to implement the Committee's recommendations.

The noble and learned Viscount said: My Lords, I rise to put the question to His Majesty's Government which is on the Paper. My question has perhaps had rather an unfortunate history since I put it down some time ago. Several times it was on the point of coming on, but for one reason or another it seemed better to postpone it. I make no complaint because I have now actually got an opportunity, at half past five, of putting this matter to the Government. I am greatly obliged to your Lordships who are present for your attendance, because this is a very important question and one which, I trust, will receive much consideration from Parliament as well as widespread attention in the newspapers and among the public. Laymen sometimes suspect a question which has a legal twang about it, but there is nothing narrow or technical about this.

If members of our community are to share equally in the value of the institutions of this country, and if they are, as George III, I think, said, to glory in the name of Britain, then the question of securing legal aid and advice for those who cannot afford to pay professional fees is one of enormous consequence. It is a wicked slander to say there is one law for the rich and another for the poor. Our system of open Courts and incorruptible Judges exists to protect all, rich and poor, who are wronged, and to vindicate those who have rights. That is not the point at all; the point is that many of our poorer citizens do not always get the necessary legal aid and advice to vindicate their rights or to explain where they are wrong. Both sides of the matter have to be considered. There may be just as many people who are under the delusion that they are being wronged, when they are not, as there are people who think they are being denied their rights, when they are.

We have this unanimous Report of Lord Rushcliffe's Committee. I am very glad to see him here. It was a very representative Committee (in the appointing of which I had the honour to take part) which devoted itself to this inquiry with the greatest diligence and skill. Here is the document which that Committee produced. It is a document of the highest possible value. It was produced in May last, and I lost no time in considering its recommendations and its arguments. I was hoping, if the then Government continued, to produce proposals based upon it. I feel sure, without having any knowledge at the moment, that whatever Government may be in power will wish, if they can, to take full advantage of the recommendations in this Report.

The Report recognizes the extent and the value of the legal aid and advice that is already available. Just as the noble Lord opposite has recorded our gratitude to the Civil Service, so we might record the fact that there is a vast amount of good work being done already to provide the poor with legal aid and advice.

The Report gives a detailed account of the work of citizens' advice bureaux and the poor man's lawyers. There are quite a number of us who are old in the law now, who, in our younger days, did what little service we could as poor man's lawyers. In my own case, it was done at Toynbee Hall in the East End. That is a system which has been carried on at many centres for many years, and I do not doubt that it has done a great deal to help people in need to secure justice.

Few people realize how those who are immersed in the professional practice of the law give their voluntary and unpaid help to their fellow-citizens in these and other ways. But what we have got by voluntary means is really not enough, and, apart from that, the problem is one of the greatest urgency. For example, the problem of how to deal with "poor person" cases in divorce is a very urgent problem indeed. We may deplore that there should be so many divorce cases, but we must see that people who are entitled to bring such suits are given reasonable assistance to bring them, and, I hope, to bring them with reasonable promptitude. During the war the former Government helped to institute a special system of help and advice for men and women in the Forces who became involved in matrimonial difficulties. The system worked, in many respects, exceedingly well.

Not only was it doing what was wholly right for individuals, but I have not the least doubt—and I know that this is the view held by authorities in the Fighting Forces—that it was a contribution to morale, because no man can fight his best if he has in his pocket a letter from his wife telling him of that sort of trouble at home, and feels that he has not the slightest means of investigating it or of dealing with it; feels, in fact, that he does not know what to do at all. Those engaged in operating the system during the war worked very hard, and their efforts were attended with a great deal of success.

But the numbers of divorce cases now are threatening to swamp the field of existing facilities altogether. I am quite convinced that this Committee under Lord Rushcliffe's chairmanship are quite right when they say that there must be an organized scheme of legal aid covering the whole country under proper conditions, in which the State should bear the cost. For, in spite of the valuable work that has been done by voluntary organizations giving legal advice in many large towns, and in some small towns too, the whole country is not covered. There are areas in which this facility does not, in fact, exist, and, similarly, the work of the poor man's lawyers—all of course voluntarily organized—admirable as it is, cannot reach, and does not reach, the rural areas. Again, the conditions as they exist at present which must be fulfilled, before you get aid in litigation, so far as aid is provided by the State, are too stiff to cover what is needed.

Your Lordships appreciate, I am sure, that there are two halves to this problem. One question is: How shall you get good advice to the poor citizen who perhaps is served with a writ or with a demand with which he does not know how to deal? The other question is: How is he to be helped if a matter actually comes into Court? There are these two things to be considered. The Rushcliffe Committee, in this document, recommend that England and Wales should be divided into areas of convenient size for administrative purposes, each area covering that of a group of provincial law societies, and that the working of the scheme in each area, both for advice and for help in litigation, should be entrusted to an Area Committee and Local Legal Aid Committees.

That is the framework of the scheme. They go on to say—and I wish to call attention to this because it is confirmed from other quarters—that it is essential that any scheme of this sort that is evolved should be administered by the lawyers; not by the State or by the local authorities. This is not a case where the noble Lord sitting opposite will be called upon to provide additional civil servants to run the scheme. You cannot run a scheme for legal aid, whether it is simply a matter of giving advice or for the purpose of helping in litigation, unless you have a good scheme and it is really administered by the lawyers. It cannot be done by the State or by the local authorities. I have the more confidence in saying so when facing the present Government, because I observe that among the witnesses called before the Rushcliffe Committee were a number of members of the Labour Party including Mr. Silkin, and that the view expressed by the Labour Party representatives to the Committee was exactly what I have said—that the scheme must be run under those conditions which I have just outlined. I think, my Lords, that I need not say much more. I hope that others will find time to say a little on this subject.

To put the scheme in its true setting, you have to compare, in your mind, legal aid and advice with medical aid and advice. There are very serious differences, but it is well to compare them for a moment. It has long been realized that citizens who need medical help, but who cannot pay professional fees, should be aided by a health service. Now, to apply that idea systematically in the realm of the law, is very much more difficult. Amongst other reasons, there is this. Some people persist in thinking that they are being wronged, or that the Courts are unjust, when, in fact, they have experienced the due application of the law of the country which Parliament controls, and when, if any remedy is needed, the remedy is Parliamentary and not the remedy of appealing to the Court.

There are, no doubt, a certain number of malades imaginaires in this world, but there are not nearly so many as there are citizens who believe that an appeal to the principles of equity would, within the law, at once secure them their rights. That is a difficulty. There is not really, as some people suppose, a difficulty from the professional point of view. I claim to know the profession pretty well by this time, and I am perfectly convinced that if a system such as that which the Rushcliffe Committee recommend, were instituted, not only would there be no objection from the professional point of view, but there would be widespread and general satisfaction. Of course, the people who help have got to be reasonably paid. But there is no question at all about the position from the point of view of the profession of the Bar. Everybody wants to see the poor man and the poor woman helped in this matter in the best possible way.

I therefore commend this Report to the House with this simple reflection, that whatever the difficulties may be in the way of poverty, no citizen should fail to get the legal aid or advice which is so necessary to establish his or her full rights. I hold—have long held—that this is an essential reform in a true democracy and one in which this country has an opportunity of setting a lead to the world. I have not moved for Papers but I address my question to His Majesty's Government and I am sure that it will be sympathetically received.

5.41 p.m.


My Lords, as I was chairman of this Committee to which Lord Simon has referred, I should like to make one or two observations. I have never thought it part of the duty of a chairman of a committee to commend and broadcast the merits of the recommendations which his committee may make. The Report is, of course, made to the appropriate member of the Government, in this case the Lord Chancellor, and it is for him, no doubt after consultation with his colleagues, to decide which of the recommendations are meritorious and those upon which he does not agree. None the less, I am extremely grateful to the noble and learned Viscount, Lord Simon, for what he has said and his words of warm commendation for the issue of the Report. I should like to make one or two general observations. At a very early stage in our consideration of this matter we came to the conclusion that a new approach to the whole question of legal assistance was overdue and we thought that the existing facilities for legal assistance were inadequate for present needs. The Report sets out, of course, in our recommendations how we think these facilities can be provided.

I was very glad to hear what Viscount Simon said when he paid a very well deserved tribute to the enormous amount of gratuitous work for poor people, work done without any monetary reward at all, by both branches of the legal profession for years past. That work has been done not only in many cases at great inconvenience to themselves but it has often involved very great pecuniary loss. They do indeed deserve the gratitude of the whole community for what they have done for so long. But this must be remembered, that the enormous increase of legislation, the immense number of new regulations having legislative effect with which we are now confronted, goes side by side with the fact that the number of persons who need this assistance has very greatly increased.

With regard to the Committee I will say this, that I think it was an extremely representative committee. Without going through the whole list, it contained two very distinguished Judges of the High Court, two ladies who were most helpful in our deliberations and who had great experience of magisterial work, two solicitors who had special experience and special knowledge of the matters which we had to consider, the Chief Metropolitan Magistrate, the Director of Public Prosecutions, Mr. Matthew, and others who were of the greatest help and assistance to us in the work which we had to do. It' included two members of your Lordships' House, Viscount Southwood and Lord Schuster, and two members of the House of Commons—one a member of the Labour Party and the other a member of the Conservative Party. From the beginning, we were all impressed not merely by the importance of the problems which we had to consider but also by their urgency. We felt, as Lord Simon has told us that he has felt, that this matter was not only important but extremely urgent.

We began examining witnesses in September, 1944, we held forty-eight sittings and we examined fifty witnesses in addition to a very large quantity of memoranda. We finished our Report the following February and it was in the printer's hands, I think, in March and was laid in May. So from start to finish we only took six months from the beginning of the examination of witnesses up to the time of the laying of the Report. What gave me particular satisfaction, and I think it added very greatly to the value of the Report, was that it was unanimous. So far from there being any minority report, there was no reservation of any sort or kind by any member of the Committee. The Report was completely and absolutely unanimous.

There is only one further thing I should like to say. I saw the other day with interest and satisfaction a memorandum which has been issued by the Home Secretary for every Petty Sessional Division, to Chairmen of Quarter Sessions and to Recorders, in which he expresses the hope that such of our recommendations as do not require legislation and are appropriate to their respective courts should be carried into effect forthwith. At any rate that is a very great step in advance. Beyond expressing the hope that we shall hear from the noble and learned Lord on the Woolsack what are the views of the Government on the Report, which we shall listen to with the greatest interest, I have nothing further to add.

5.47 p.m.


My Lords, it is often said that lawyers differ perhaps as often as doctors, but it so happens that this is a topic on which lawyers have been busily engaged for nearly half a century. They are at one in feeling that justice is not being properly administered if poor people are unable to ascertain their legal rights or having ascertained them are unable to enforce them in courts of law. There have been four Lord Chancellors in succession before the noble and learned Lord on the Woolsack who have done something for the benefit of these people. I myself, if I may mention it, appointed a Committee which has been superseded by the Rushcliffe Committee, in April 1939, to investigate substantially a similar question to that which it fell to the lot of the recent Committee to report upon. It was under the chairmanship of Mr. Justice Hodson and it had started its proceedings when the war came and it became useless to go on with that Committee since a number of the members had disappeared in various ways. Lord Rushcliffe's Committee has presented the admirable Report of which we have all heard and which a good many lawyers in the country have very carefully considered. So far as I know it has unanimous approval. It takes some wide and bold steps which are probably right and I venture to think that the reproach that the poor man cannot get justice in this country will be substantially removed if the recommendations of the Committee are carried into effect. I hope that they will be carried into effect as soon as possible. There is very little for me to say after what has been said by my noble and learned friend Viscount Simon. There is, however, one thing I should like to add to what he said which I venture to think the draughtsmen of the measure should very carefully consider in order that we should not go wrong and by removing one injustice, create another.

Those who read the Report know there are two matters which are really quite separate and which present different problems. Firstly, there is the question of what in the report is called "legal aid." Secondly, there is the question of "legal advice." By "legal aid" is meant assistance in conducting or defending proceedings in the Courts in all the various ways in which that can be done. "Legal advice" of course is different because it means advice on legal matters, drafting documents and so on, enabling poor people to understand what their legal rights are. But with regard to "legal aid"—mainly assistance in the Courts—I venture to think that there is something which may be implied somewhere in the Report, but is not exactly stated, and it is this. A person who needs assistance in litigation has, under Section 141 of the Report, to apply for a certificate, an before a certificate is granted he must show that he has a prima facie case, and that he is in that section of the community for which legal aid is intended.

What I want to have very carefully considered is this, that there is a difference between those two matters, because after all the giving of assistance to a litigant—and I will take for the purposes of brevity the case where it is merely a question of bringing an action—may have this result, that the case may turn out, when it comes on, to be quite ill-founded either in fact or in law and may be dismissed. But then we have got to remember the position of the unfortunate defendant in that action. He is not going to get anything out of the poor person who has been assisted, and is left to bear his own costs which may in some cases practically cripple him in the future. There are all sorts of difficult cases that one can conceive, such as right-of-way cases, libel, slander, and all sorts of cases of tort in which it may be very difficult for the person who is to advise whether legal aid should be given to know whether an action is likely to succeed. In fact it may be quite impossible, because the cases may often depend upon matters of fact. I strongly urge upon the Government, when they do find time to implement the suggestions of this Report, to consider very carefully the instructions that should be given to the people whose duty it will be to grant a certificate in cases where the action may be of a very expensive character, such as a High Court action which may possibly come up to this House for decision, and the defendant will have prima facie almost as good a defence as the applicant for assistance has a prima facie case for bringing the action.

I venture to think that it should only be in cases where there is good reason to suppose that the action will succeed that such a certificate should be given. That, I think, is a matter of considerable importance to the public, because I am very anxious that people should not be going about the country saying that they have been sued by somebody who turns out to have no case at all, and they themselves have been almost ruined in the course of the proceedings. I would only add my little word to the tribute that has been paid to the numerous barristers and solicitors all over the country who have been helping poor people with legal advice and also with legal assistance. I would take one sentence from the report of the Committee who reported in 1928 on this subject, which refers to …the inestimable value which has often been afforded by the barristers and solicitors engaged in giving them legal advice"— and concluding with these words: We would here express our admiration for the way in which these members of the profession devote so many evenings to assisting those who might otherwise have to go without advice. I think everybody who knows the facts will think that tribute is well deserved. I hope the words which have fallen from Viscount Simon and from my noble friend Lord Rushcliffe will help the Government to give a very sympathetic reception to the Report of the Committee of which Lord Rushcliffe has been the Chairman.

5.55 p.m.


My Lords, I apologize to the House for taking up yet more time on one afternoon, but it is not my fault that this Motion ultimately came to fruition on the same day as one standing in my own name. It does, however, happen to be a matter in which, from my own career at the Bar, I have always had a deep personal interest, and, in looking back on those years, one can perhaps say now that one of the most satisfactory of one's recollections is that there were times when one was able oneself to give help of this kind. It is well-known as a principle that every man is equal before the law, but he has got to get before the law before he can attain that equality, and in the past it has perhaps been a path more beset with—difficulties for the man of very limited means than it should have been, or that any of us wanted to see.

Great credit is due to voluntary societies like the Bentham Society and others for the work they have done, but it is not right, and it is not worthy of our legal system, that people with rights to enforce or with claims to resist should be dependent upon what is, after all, charity in order to have those matters resolved and therefore I welcome most warmly the recommendations of the Rushcliffe Report. In quite a different sphere I have had some opportunity in the past six years of seeing how much it meant for the soldier, who after all in most cases is only a citizen in unfamiliar dress, to have set up those special bureaux for advice. All of us knew what was called the problem of the anxious soldier, the man with something upon his mind, generally some domestic trouble, which meant that he was not 'giving his full attention to his duties, and was proving a much less satisfactory soldier than he might have been. The cause was generally traced to some private anxiety of this kind, and there were innumerable cases in which the Services, with their special officers to investigate these cases, were effective in relieving him from those anxieties and reconstituting him into an excellent soldier. It must be a satisfaction to everybody to think that that system on an enlarged and officially-recognized scale has become part of our legal system.

I would only like, if I may, to add one word to what was said by the noble and learned Viscount who just spoke on the provisions of paragraph 141, that the certificate can only be given on proof of a prima facie case, and to suggest, as he did, that that is really insufficient to prevent the risk of speculative action, and it might have been worth considering if, instead of a prima facie case, he had to make out on the certificate that he had a reasonable prospect of success; This Report, as the noble Lord, Lord Rushcliffe, said, was a very large measure. The Government have now sat on it for some months, and perhaps it may soon hatch out into something useful.

6.0 p.m.


My Lords, there has been a very remarkable unanimity in our thoughts about this matter, and I should like to start off, if I may, by paying a tribute to the noble Lord, Lord Rushcliffe, who presided over this Committee. It is by no means the first matter about which the country as a whole has to thank that noble Lord. He has shown himself to be a most valuable public servant in these matters, and, although he was supported in this case by, I think I may say, an exceptionally powerful and well-balanced Committee, yet I have very little doubt that the unanimity of that Committee and the strength of this Report are in no small measure due to the care and the ability of the noble Lord himself.

Now, my Lords, having said that much, I say at once that I have naturally for many months past read this Report and looked at it and come to the conclusion that it was good, not good merely in the sense of the curate's egg—good bits in it, but good as a whole; and I went to my colleagues in the Government—because it was realized that there was a considerable amount of money involved in his, unfortunately—and put the Report to them. Of course, before I can get final approval to details, I must have the Report worked out by the Law Society, because Lord Rushcliffe's Committee recommends that that should be our first step—to put it up to the Law Society to work out a detailed scheme in order that estimates and so on might be prepared. That was done by my predecessor, the noble and learned Viscount, Lord Simon. He referred the matter to the Law Society, and though I have been pressing the Law Society—and I realize how many claims they have on their time—I have not yet received their report, but I am very hopeful that I shall receive it within the next few weeks. In the meantime, what I have done is to submit this matter to my colleagues, and I have to tell your Lordships that I have obtained their approval to the main points in this scheme.

The main points really are these. At the beginning of the Conclusions and Recommendations, after a most interesting survey of the previous history, it is said, in paragraph 124: The Committee has been greatly impressed by the evidence submitted pointing to the need for a new approach to the whole question of legal assistance. That statement we accept; we must have a new approach. Then in the next paragraph but one they say: It follows that a service which was at best somewhat patchy has become totally inadequate and that this condition will become worse. There again we agree; we entirely agree. I have been interested to hear to-day the observations of my two predecessors on the Woolsack. I think myself that one must not press the analogy with the medical profession too far, and I think that one must not press it too far for this reason: that, whereas in the case of the doctor, there is generally speaking no other interest to be served than that of looking after a particular patient and trying to make him survive, one has to remember that in the law, course, in litigation, one has two parties; and therefore the point which the noble and learned Viscount, Lord Maugham, made is one which has been very present to my mind. I would point out to him, and to the noble Marquess who spoke immediately before me, that if they turn to page 33, at the very last line of the Report, they will see that one of the functions of the Local Committee is to be "to decide whether the applicant has reasonable grounds for being represented." If that is to be translated as "a reasonable prospect of success," or that he is "likely to succeed," or whatever the phrase may be, to that I am quite agreeable, and I think that was what Lord Rushcliffe's Report really meant. Therefore it comes to this, my Lords: Subject, as I have said, to the fact that I have not yet had the detailed scheme and estimates (as soon as I get it I shall press forward with this matter), we accept that there should be a wide extension of legal assistance both by way of advice and also by way of legal aid in civil litigation; we accept the fact that it is inevitable that barristers and solictors undertaking the work should receive some reasonable remuneration; and we accept the view stated in the Report that the legal aid scheme should be administered by the legal profession, and not by the State, nor by local authorities. As the noble and learned Viscount pointed out, that was the effect of the report put in by the Labour Party, and in regard to that matter, there has been complete unanimity throughout. My Lords, we accept that.

With regard to legal aid in the criminal and quasi-criminal cases, we agree that the overriding consideration should be whether it appears desirable, in the interests of justice, to grant that aid, and that any doubt should be resolved in favour of the applicant. It is the fact, as the noble Lord, Lord Rushcliffe, pointed out, that the Home Secretary has already circularized the Courts pointing out that they should, so far as they can under the existing law, apply that principle at the present time without waiting for legislation.

When I come to legal aid in civil courts, it is a complex question, and it is obviously the fact that working out the scheme will take much detailed preparation and it will involve, I am sorry to say—your Lordships must face up to it—very large sums of money, and will involve complicated legislation. I hope the noble Marquess will forgive us for adding to the spate, as he puts it, of legislation. Perhaps his objection to legislation is rather to legislation which he does not like, and not to legislation as such. The cost is not merely the cost of administering the scheme, but of course it is the cost of bringing all these cases. No one can do any more than form what I may call an instructed guess as to what that cost will be, but it undoubtedly will be very heavy.

Now, my Lords, that is the position. As soon as I get this detailed report, which I hope to get in the course of the next few weeks, I shall take it up on a more exact basis than I have been able to do heretofore. I have no reason to think that I shall not obtain the support of all my colleagues, but it is inevitable that I shall receive not the criticism but the close attention of the Treasury, and it is right that I should have that by reason of the fact that very large sums of money are here involved. When I have overcome any difficulty there may be, I shall do all I can to press this matter in season and out of season so that I may have my legislation, and put it through as soon as possible. There are, however, difficulties both by reason of the fact that we have a very full programme of legislation, and by reason of the fact that a very considerable staff would be required to run this scheme.

I do not pretend that I think it possible to do this in the course of the next six months. But I am hopeful that, without any undue delay, we shall be able to introduce the scheme, and remove what I say quite frankly has been, in my view, rather a blemish on our legal system in the days gone by. It was easy to say that the Courts were open, but the Courts were open rather in the sense that the Ritz Hotel was open—open to the man who had enough money in his pocket to enter. We must all agree that it is eminently desirable that we should make it plain that the mere fact that a man does not possess financial resources should not deprive him of obtaining justice and a hearing in the King's Courts. Therefore, my Lords, I am able to tell you—and I hope it will be satisfactory to you—that we accept this Report in its broad outline, and we shall do our best to have it translated into the law of the land without any great delay.

6.12 p.m.


My Lords, perhaps I may be allowed to say a word. Your Lordships will probably feel that this has been a useful debate and we all of us are deeply grateful to the Lord Chancellor—and I think we are all of one mind on this matter—for the reply which he has been able to give. I agree with him entirely that the analogy between law and medicine cannot be very strictly pressed. It is true that one man's food may be another man's poison; but when it comes to prescribing for some illness, there is not any competing party who wants him to get worse; and that may be the situation when you have litigation between two parties in the Courts. There was one observation of the Lord Chancellor's which I rather deprecate because it seems to me to be such an exaggeration. I would not like it to go forth from the head of the Law that at present the opportunity of going to Court is like the opportunity of staying at the Ritz Hotel. It is not at all. The County Courts dispose of many claims by very poor people. The main difficulty is that so many people who are threatened with proceedings, or are told by someone that they have got to do this or they will get a writ, simply do not know what to do. It does seem to me most important that they should have better information at that stage. So far it is rather like the advice of a good doctor, but when it comes to litigation I do think the analogy rather fails. Even so, we have got a system of actions in forma pauperis.


I think that applies to the County Court. The trouble arises regarding quite small sums which have to be paid into the Court.


I am not disputing the proposition at all, except to say that I do not want the public to imagine that law is a luxury for the rich only. I may say I am very happy indeed to agree with, and am grateful to the Lord Chancellor. Recently the expression "a prima facie case" was used. The Titchborne claimant, I suppose, had at one stage a prima facie case. At least his alleged mother thought so. But it would undoubtedly involve the other side in a very great deal if he were assisted to start proceedings which were not in the least justified nor, on examination, likely to result in final success. Therefore, I wish to thank the Lord Chancellor most sincerely for his very friendly and encouraging answer.

In conclusion, I would venture just to make one suggestion; perhaps I may even put it in the form of a respectful question. It seems to me we have caught him in this debate some two or three weeks before he is fully charged with the material to answer. That is a piece of mistiming, but I hope I may take it that in a short time—perhaps when he gives me notice privately—this matter may be raised again, in order that we may have more Precise assertion. He cannot answer to-day because he is waiting for information from the Law Society which I hope they will soon provide. I am quite satisfied that it is the intention of the Government to undertake to carry through this matter on the lines he has indicated; it is a very great satisfaction to all of us that that should be so.