§ 5.6 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DROGHEDA in the Chair]
§ Clause 1 [Scope and general conditions of legal aid in connection with proceedings]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ LORD MANCROFT
On the Question whether Clause 1 should stand part, may I say that I hope I shall be in order in saying how happy we all are to see the father of this Bill, Lord Rushcliffe, in his place to-day? We hope his restoration to health is now complete. My observations will be very brief. Since this Bill has been before your Lordships' House I have had an opportunity of discussing it with some of my friends and also with other people who, when this Bill becomes law, will be able to profit by its provisions. I have come to the conclusion that few average persons really understand it or realise the benefits that will accrue to them if this Bill be- 1088 comes law. May I therefore suggest to the noble and learned Viscount the Lord Chancellor that before it does become operative—which cannot be for several months—the Government should make the provisions of the Bill clearly understood to all sections of the people, so that humble folk who stand to profit by it can understand what it is about? After all, it is a complicated Bill and I am certain that the full benefits of it are not fully realised.
§ THE LORD CHANCELLOR
I think that is quite a good idea. I think I must rather judge the time; probably we shall have to work out some sort of scheme. I will try to put it forward in simple language, and I know that the Law Society will be only too ready to assist in that direction. I therefore think that I may tell the noble Lord that I am with him in his idea. I agree that the public should know all about this matter.
§ LORD MANCROFT
I am grateful to the noble and learned Viscount.
§ Clause 1 agreed to.
§ Clauses 2 to 7 agreed to.
VISCOUNT TEMPLEWOOD moved, after Clause 7 to insert the following new clause:
. The authority for granting legal aid in civil cases in a magistrates court shall be the justices.
Such aid shall be granted in any such case where in the opinion of the magistrates it is in the interests of justice so to do, and provided that the income and capital of the applicant shall be within the financial conditions of section two of this Act.
§ The noble Viscount said: I beg to move the Amendment which stands in my name. This new clause raises, in a very direct and simple form, an issue to which a large number of active magistrates—justices of the peace and stipendiaries—attach a great deal of importance. They consider that magistrates courts should be courts in which permission should be granted for legal advice and legal aid to poor persons within the meaning of the Bill. I am fully aware that effective arguments can be urged both for the proposals in the Bill and for the proposal in the clause which I have just moved. The proposals in the Bill make a neat and tidy scheme, under which legal committees from one end of the country to the other will deal with the applications for legal 1089 advice and legal aid. It is suggested that it would be a mistake to take magistrates courts out of this general plan and to leave it to the justices of the peace and the stipendiaries to make the decisions which, in other cases, would be made by the legal committees. I admit the strength of that argument. At the same time I am greatly influenced by two facts.
§ First of all, I believe that a decision in the magistrates courts is likely to be much more expeditious than a decision by one or two legal committees, however efficiently the legal committees carry out their business. Secondly—I am thinking now entirely of domestic cases; of quarrels between husbands and wives, and of family rows—I believe that the magistrates court, or the magistrates of a magistrates court, sitting day by day in their own locality, advised by the probation officers and by the police, are much more likely to settle those domestic questions than if they once get into the hands of lawyers, however excellent those lawyers may be. I am told by experienced magistrates that an overwhelming percentage of cases of family rows are settled out of hand day by day by magistrates sitting in their local courts. Instead of this expeditious procedure, it is now proposed that an applicant should have to go, first to the National Assistance Board to prove that his means come within the limits of the Act and, secondly, to a local committee of lawyers. Inevitably, the result will be, first, delay, and, secondly, in a great proportion of cases, to crystallise the family row into a legal dispute, with the result that a much smaller percentage of these domestic cases will be settled quickly out of hand, and a large number of cases that have arisen out of sudden impulse will lead to serious and perhaps irrevocable results.
§ I am aware that when the right reverend Prelate the Lord Bishop of Norwich raised this question of reconciliation the other day the Lord Chancellor attempted to reassure him by saying that the probation officers would be put in touch with the legal committees. But I find amongst the active magistrates in the Magistrates' Association, both lay and stipendiary, a strong opposition to that proposal. They take the view that the probation officer is an officer of the court, and that it will lead to confusion if he or she becomes the adviser of another body. I myself 1090 wonder whether, under the existing procedure, the Lord Chancellor could even instruct the probation officers to become the servants of another body. I have not at hand the Acts of Parliament under which probation officers operate, but I should very much doubt whether a proceeding of that kind is possible, anyhow without new regulations and perhaps even statutory amendments. But, whether or not that be so, I think it is the almost unanimous opinion of the benches of the country that they object to their officers being put at the disposal of other bodies, however excellent those bodies may be.
§ For these reasons, I think it would be much better to leave these questions in the hands of the magistrates courts. By all means have the panels of lawyers; by all means let these panels of lawyers produce the legal advice and legal aid that is necessary. But let the magistrates court decide—and I would emphasise the fact that many of these cases are most urgent; it is a case of deciding them quickly or they immediately get out of hand—as indeed they do decide in criminal cases, whether or not an applicant is entitled to legal aid. I am told by the lawyers that there is all the difference in the world between criminal and civil cases. Not being a lawyer, I do not follow that argument, and I cannot see why if the magistrates courts have on the whole done their work reasonably well in the criminal cases, they should not do it equally well in the civil cases. If by chance there are benches where legal aid in criminal cases has not been given upon a sufficiently generous scale, let the Lord Chancellor issue rules or regulations, and let the Home Office send out circulars upon the subject. But in the meanwhile, do let us not endanger the chance of bringing to a quick end many of these domestic disputes by concentrating too much upon a paper scheme that will undoubtedly lead to great delay. And, of course, it may well lead to a great deal of expense. I am told by magistrates that many of these cases have to be adjourned time after time, and the result will be that if a lawyer is brought in he will have to appear time after time to no purpose. On that account, I hope that noble Lords to-day will agree with the views that I have just expressed, and will leave these very important and 1091 urgent questions in the hands of magistrates courts. I beg to move.
After Clause 7, insert the said new clause.—(Viscount Templewood.)
§ 5.19 p.m.
§ LORD RUSHCLIFFE
Before I say a word or two on this Amendment which, if I may say so, has been moved in most persuasive language by the noble Viscount, Lord Templewood, I should like to express my deep appreciation for what was said in the Second Reading of this Bill, when of course I was not here, about the Committee and their work. I have always taken the view that the thanks of the House and the thanks of the country are largely due to the noble and learned Viscount, Lord Simon. The noble and learned Viscount, Lord Simon, set up the Committee, but he did more than that. He appointed to it a collection of men and women—and the women were just as valuable members as were the men—who, I suppose, for authority and experience could not have been surpassed by any collection of men and women in the country. Therefore, the success of the Committee and its unanimity were due to the Committee itself. I must disclaim what some of my noble friends were kind enough to suggest the other day, that I had any special credit either for the Report or for the unanimity. That was the work of the Committee itself, and in truth and in fact after the Committee once got going it really ran itself. I feel it would be invidious to single out any one member of the Committee as having done more than another to produce these desirable results.
I feel that I should say a word upon this Amendment because although the noble Viscount was perfectly right when he said that the Committee recommended that civil as well as criminal cases should go to the magistrates courts, I say quite frankly that I have now changed my mind. I think the Bill as it now stands is an improvement on the recommendations of the Committee; and I will shortly give my reasons. If I thought these proposals in the Bill would result in needless litigation, and, moreover would lessen the chances of reconciliation, particularly in those cases to which my noble friend referred, I should not support the Bill at all. I 1092 consider that reconciliation is of first and foremost importance in dealing with these matters. With regard to reconciliation it seems to me highly important that steps should be taken before the parties go into court at all. It is a question which we discussed a great deal in the Committee, and there was no question to which the Committee attached more importance than that of reconciliation.
I can express no opinion on what my noble friend said about the legal position of the probation officer, but I certainly hope that some means will be found by the Lord Chancellor to bring in probation officers, either by regulation or otherwise, to assist in this very important work of reconciliation. As noble Lords well know, both men and women probation officers are most valuable and their services are often ill-recognised or not sufficiently appreciated. I am told that it is the intention of the Law Society to allocate to this work of reconciliation certain members of that body who have special experience, and that their business will be, if it is humanly possible, to produce reconciliation rather than that these matters should go to court. I may add that if in practice the fears of my noble friend Lord Templewood prove to be justified, and if my hopes are not realised, I take it that one of the jobs of the Committee to be set up by the Lord Chancellor to advise him as to the working of this scheme will be to report to him, and he will then take appropriate steps in those circumstances to see that this evil is remedied.
With regard to the main point raised by Lord Templewood—namely, whether the magistrates or local committees should be the deciding authority on the question of legal aid, I admit at once that I think the Bill is an improvement on the recommendation of the Committee. As a matter of interest, one of my colleagues on the Committee, Major Manningham-Buller, has also come to the same conclusion, as he said in the proceedings before the Standing Committee in another place. The Committee had a good deal of discussion on this matter, and a substantial majority took the view expressed by my noble friend, Lord Templewood, and a minority—not a large one—took the view that it should 1093 be as proposed by the Bill. There is all the difference in the world, as Lord Templewood says, between civil and criminal cases. The man who asks for legal aid in a criminal case has merely to state that he has no money; there is no full inquiry in the vast majority of cases, and legal aid is granted.
The answer to Lord Templewood's argument—at any rate it was the answer which persuaded me to change my mind—is that in civil cases it seems to me absolutely essential that there should be something in the nature almost of a preliminary trial, a preliminary inquiry before the magistrates. For instance, they have to inquire about a man's financial position. Of course, there is this difference: that in criminal cases there is no question of contribution, such as arises in civil cases. If as a result of this preliminary inquiry Mr. A is given legal aid and his opponent is not, nothing is going to persuade the man who did not get legal aid that he has had a fair deal. He will say "This has all been tried out before. You are not approaching this with an open mind. You have already decided against me, and I cannot accept the view that I have had a fair deal." That seems to me an unanswerable argument to put before my noble friend, Lord Templewood. There are other points, but that seems to me to be so unanswerable that I will not detain your Lordships by dealing with the others.
§ LORD CALVERLEY
Before taking up the last point made by Lord Rushcliffe, I want to say what a great pleasure it is to know that he has been able to come this afternoon. He has made the point that one side in a civil case may be represented and the other not, and therefore there will be a sense of grievance. There certainly will be a sense of grievance. Here we have the Incorporated Law Society, perhaps giving counsel on one side and not giving it on the other. The matter comes to trial, and justice will not even seem to have been done. But if the case comes before the magistrates in private consultation and not in open court, they can decide whether or not both sides should have counsel, or be represented in a court of summary jurisdiction by a solicitor. That is what happens now with our rota, only these poor solicitors do it for 1094 nothing and magistrates have been anxious to ensure that they shall be suitably rewarded. Here, so far as I can see, the magistrates are wiped out and the power of decision is handed over to the Incorporated Law Society.
Mention has been made of the Assistance Board and the means of a person coming before the court. The other day a case came before the court of which I am a member and within ten minutes we knew the exact income and the means of the man who was before us, so that we could try and assess what he should pay towards the upkeep of his wife. I beg the Committee to give this Amendment very serious consideration. I cannot understand the Lord Chancellor deserting his children. The Lord Chancellor and previous Lord Chancellors have created these magistrates. If there is one man in this country who knows how they are working it is the Lord Chancellor, rather than the Home Office. He receives day-to-day reports as to how these men and women are behaving—and, be it remembered, there are over 20,000 of them. I think it is true to say that he has found very little ground for any criticism of their work. He has accepted what they have done in criminal cases, and I would emphasise that we magistrates do not hand out money simply for the sake of handing it out.
The other day, in my own court we had a serious case in which a woman concerned ought clearly to have been represented. We asked her if she would be represented. She asked: "What will it cost?" We told her: "Nothing." She said: "Certainly, I will have a lawyer." As a matter of fact, she wanted two lawyers, but she did not get them. It appears to me that the Magistrates' Association are completely in step with the Rushcliffe Committee—that is, eighteen out of the twenty. The only people out of step are the Incorporated Law Society and a handful of officials in the Home Office. Everybody is out of step except "our Jimmy," so to speak.
§ THE LORD CHANCELLOR
include the poor old Lord Chancellor!
§ LORD CALVERLEY
No, I will not; I want you on my side.
§ THE LORD CHANCELLOR
But I am not on your side.
§ LORD CALVERLEY
And now, if I may, I would like to say a word with regard to probation. One of the most valuable parts of the work connected with the courts is probation work, which is now officially sanctified by law. Those who carry it out are under the oversight of the probation committees of the magistrates, appointed, again by law, for a certain time. They have to give their report to the magistrate at least once a month. If the Home Office—I am still hopeful about the Lord Chancellor—are to have the say in this matter, it may be that these probation officers will have to go from places all over Yorkshire to Leeds, and from places in Northumberland generally to Durham and Newcastle, and from Land's End to Taunton, Bath and Bristol. All this is to be done partly with the object of saving expense. No wonder the Lord Chancellor almost had a fit when he was told that the cost of the scheme would be in the neighbourhood of £2,000,000.
If it is in order for me to do so, I would like to ask him how many new magistrates he has been called upon to make since this Bill was thought of. Now lawyers are coming into it by this way, it is said that we shall want any number of new magistrates because the courts are going to sit much longer. I put it seriously with regard to this £2,000,000, which a very generous Treasury is furnishing for spending purposes—I really cannot understand the Treasury voting £2,000,000—that unless care is exercised there is going to be a racket. I believe that the Incorporated Law Society is now setting up Public Relations Officers. A statement by the Society has appeared in the provincial Yorkshire Press. They mention particular areas and they say what they are going to do. They want area secretaries and their assistants, and they intimate that they will pay to area secretaries a salary of £1,500 a year rising to £1,900. They also want supervising solicitors at salaries of from £1,200 to £1,450 a year. They finish up by stating that they would inform applicants that those selected for the jobs will go on a special month's preliminary training course at the Law Society's London headquarters. That, no doubt, is because they do not know the job which they are to tackle.
1096 I really cannot understand why magistrates should be disowned. After all, magistrates know what they are talking about. They have been doing this job, and now it is going to be handed over to others, and not to lawyers who usually go into courts of summary jurisdiction.
A Commissioner of Assize has had something to say about this. I dare not give your Lordships his exact words but I will paraphrase them. He said that this matter is going to be handed over to conveyancing lawyers who never enter a court and know nothing about the procedure of a court; the men who do know it, he said, are already on the rota. Now we are adding to the list. We have only to say: "We have a case coming on this afternoon. Will you take it? We will give you a guinea or two for doing it?"
What I should like to ask is who is going to act as taxing master. Are this great body, The Incorporated Law Society, going to tax their own costs? I wonder. I should not be at all surprised if that is not the idea. I sincerely hope that the Committee will insist on this proposed clause being inserted in the Bill.
§ 5.37 p.m.
§ LORD MANCROFT
I am afraid that I lost track half way through the speech of the noble Lord who has just sat down. I am not sure now just who or what was the object of his attack. At one point I suddenly realised that he was attacking the conveyancers, and then it seemed to me that he went off and made a very rude attack on the Law Society. I would like to assure him, however, that no one is attacking the magistrates. No one is suggesting for a moment that they are doing a bad job or have not done their best in the past. No one could suggest that they are not doing well.
What I would impress upon the noble Lord is that there is an entirely different set of circumstances now to be considered. For the first time we are now granting legal aid in civil cases. No judge and no county court judge has ever given legal aid in civil cases before. I think that the noble Lord, Lord Rushcliffe, made a strong point when he talked about the prejudicial effect which magistrates granting aid in civil cases must have. I do not, of course, suggest that magistrates are prejudiced or that they would be prejudiced. No one would suggest that for 1097 a moment. But they would undoubtedly give that impression to one of the parties to whom legal aid had not been granted. A question has been raised with regard to speed. As I understand it, arrangements are being made by the Law Society to ensure that rapid decisions can be taken in the urgent cases, and I think it is clear that urgent cases will arise under this Bill. But I must say that I think the question of urgency is overrated. Most cases which will be affected will be of a matrimonial character—bastardy, maintenance, separation and so on. I have never myself been involved in any disaster of that sort, but I understand that a certain amount of warning is given in nearly all of them. If these arrangements are working satisfactorily when the scheme gets into its stride, I think they should go far to make the scheme completely efficient.
It must be borne in mind, however, that we are giving legal aid and not legal spoon-feeding. Let us be certain that we are not going too far. One point raised during the Second Reading debate, which I think applies in this case, is that this Bill is a legal advice as well as a legal aid Bill. We all know of cases in the past in which the sequence of action has been to take out a summons and then to consider whether and what legal advice should be given. That, I suggest, is all wrong. Surely we should give legal advice first as to whether a summons should be taken out, or whether a separation or a divorce is not the appropriate action to be taken. We all know the difficulties of changing from separation to divorce, if circumstances dictate that such a course is advisable. I beg your Lordships, while acknowledging the extremely strong case which Lord Templewood has made, to consider the completely changed circumstances that aid in civil cases involves and at least to give this scheme a trial. As I understand it, the Lord Chancellor has power—that is, if the noble Lord, Lord Rushcliffe, and I should prove wrong—to make arrangements to meet these difficulties. Let us at least give this clause a fair trial. I am sorry to depress the noble Lord, Lord Calverley, to whose speech I listened with bewildered pleasure, but I have to tell him that not only am I out of step with him, but that the Bar Council is out of step with him also.
§ LORD CALVERLEY
Before the noble Lord resumes his seat, will he allow me to tell him that out of 100 cases that come along for private consultation only 12½ per cent. ever go into court at all?
§ 5.40 p.m.
This is an important Amendment, which is backed by very weighty opinion in the country. I am one of those who desire very much to see this Amendment carried. It has the unanimous support of the Magistrates' Association. It has the support of the Rushcliffe Committee. It has the very strong support of the metropolitan magistrates, and it has the unanimous support, so far as I know, of the Justices' Clerks' Association. That is a total body of opinion which is worthy of serious consideration. As has been said, it is for the most part in matrimonial cases in the magistrates courts that this point will arise. I am quite certain that in many of these cases we can do a great deal of harm by granting legal aid at too early a stage. If the Bill is passed unamended, I feel sure that in many cases legal aid will be granted too early, and once it has been granted, the chances of reconciliation will disappear. It has been said that it will seriously lessen the chances of reconciliation, and I am satisfied that that statement is justified. Surely it would be very much simpler if a single procedure were adopted in all cases in magistrates courts, and civil and criminal cases were tried alike in this regard. Whether civil cases should be heard in the magistrates courts at all is another matter, and not one which we are discussing to-day; but given that certain classes of civil cases are heard in magistrates courts, surely it is simpler and easier for litigants to go there to apply for legal aid. If the Bill is passed, inevitably they will go to the magistrates court only to be sent on, to their bewilderment, to some other committee or authority. I do not think for one moment that that will make for convenience.
Another point I should like to make is that in many of these matrimonial cases—and I have here the opinions of several experienced magistrates—one cannot form a proper conclusion until after the case has started as to whether legal aid ought to be granted. If that is so, and I 1099 am persuaded it is, then this Bill as now drafted will not work properly. In some cases it will waste public money by granting legal aid in cases where it ought never to be granted; in other cases it may be the reverse, and the Court may fail to grant legal aid in cases where difficult points of law emerge only after the case has started. The noble Lord, Lord Rushcliffe, supported by the noble Lord, Lord Mancroft, said that an unfortunate impression would be created if one party only were awarded legal aid by the justices. But could not the same thing happen if one party only were granted legal aid by a committee?
§ LORD MANCROFT
The committee are not trying the case later, but the magistrates are.
At the moment it appears to me that the same unfortunate effect will occur. If I am wrong, I shall be told so, but I cannot see it at the present moment. There is a great body of opinion in favour of this Amendment. I strongly support it. And I hope, if necessary, the noble Viscount will press it to a Division.
§ LORD ROCHE
I have a few observations to make, and I think it would be better if I made them before the noble and learned Viscount the Lord Chancellor replied. As I have so often been in disagreement with the noble and learned Viscount, Lord Templewood, I am happy on this occasion to be in agreement with him. It is a very fine point, a nice point, to be defined; there are arguments of great strength both ways. On the whole, judging from my experience as a chairman of Quarter Sessions for some fifteen years, and having been to all the petty sessional divisions in my county and seen the magistrates at work, the choice of having this matter decided by the magistrates is to be preferred to the other course proposed. The misfortune, of course, is that we do not really know what is the alternative system. Under Clause 8, it is to be a scheme to be prepared in futuro by the Law Society. Where the committees will meet, what they will do, and of whom they are to consist—is all in futuro. That may be perfectly right for matters of High Court procedure, but meanwhile these people who are having their matrimonial quarrels want to be dealt with.
1100 I personally am satisfied that a system of committees in a county like that with which I am most familiar, Oxford, would present this difficulty. Oxford is not an unduly large county, being some fifty to sixty miles from end to end. I do not conceive that any scheme would provide for a committee sitting otherwise than in one place in that county. The people in the extreme ends of the county would have to come twenty-five to thirty miles to get to the committee. The people engaged in these disputes are stupid enough as it is. The prisons have been full of people who have gone there because of orders made against them when they did not appear. And the only way of getting them to see reason is for them to be dealt with locally, by the justices' clerks and chairman of the bench. People come to them for advice: they are the natural people to go to, because people know them. I do not believe that half of these people would go to the committee. The wrong ones would get to the committee; the litigious person would get there. But the humble man who has a grievance would never get there at all.
I am far from thinking that we should have one-sided representation. We have the elasticity that a magistrates court has by way of adjournment; the magistrates are the first to see that, where necessary, the other side should be given notice and should be represented. The sum and substance is that I do not believe in application to a committee or anywhere else being made before a hearing. I believe in the hearing being given, and then legal aid being granted if necessary.
Though the noble and learned Viscount the Lord Chancellor was naturally concerned with finance—I read what he said on Second Reading, though I had not the advantage of hearing it—I believe that on the whole the noble and learned Viscount would find that the system of allowing the justices to do it was more economical than a system of committees, whether or not they acted in the alarming way of having secretaries and other paraphernalia as the noble Lord, Lord Calverley, suggested.
§ LORD CALVERLEY
It is in the actual advertisement.
§ LORD ROCHE
The justices are ratepayers and taxpayers and, in my experience, do not throw money about. I think the system of committees would 1101 be much more expensive. If money is being over-spent, there is always a financial control reserved under the Bill. I invite the noble and learned Viscount the Lord Chancellor to accept, if he can, this Amendment and certainly to treat it with more kindness than he seems disposed to do. I wish to give it my support.
§ 5.50 p.m.
§ THE LORD CHANCELLOR
I am sorry that I cannot accept this Amendment with any kindness at all. I regard it as one which raises a fundamental point. Let me, at the outset, clear away some of the misapprehensions. First of all, the noble Viscount, Lord Temple-wood, said that magistrates sitting in their courts, settle out of hand, day by day, a very large proportion of these cases. That is true. But their ability to settle cases out of hand by good sense, persuasion and the like is in no way prejudiced. Indeed, in some sense it may be that the more difficult it is for the lawyers to come in on this thing (according to Lord Calverley) the better chance there is of settling the matter. That position is not in any way interfered with. The next thing I want to say is about probation officers. I certainly intend that these area committees should have available to them a probation officer; and the probation officer, under the Act we passed last year, has to take on such tasks as may be prescribed by rules. Probation officers have to take on many tasks—such, for instance, as looking after a man when he comes out of prison, which has nothing to do with the particular local justices The Home Secretary and I would certainly prescribe those rules.
But the fundamental objection to the whole thing is this. We are now dealing with legal aid in civil cases. Civil cases are cases to which there are two sides. No magistrates court has ever hitherto had power to grant legal aid in civil cases. It is no good saying that they are carrying on the good work, because they have never had this power. I feel it would be most undesirable that they should have it—for several reasons. First—I do not know that this is the most important question, but certainly one that weighs upon me—there is the question of finance. Quite frankly, I am concerned about the great expense which may be involved in this scheme. I warn your Lordships that it is that expense which 1102 may bring down the whole scheme. Therefore I have put it upon the Law Society—and I could not trust to a better body—aided by the Bar Council (and they both know their whole reputations are at stake in this) to see that this expense does not run away with them. They are setting up committees (and they have to be set up whether we pass this Amendment or not) and they are determined to see, so far as they can, that there is no waste. I can control them. They have a series of local committees, area committees and a central committee, and wherever they find money running to waste they can step in and check it. Finally, they come to me. I have my advisory committee, and I examine the whole thing to see whether the money is running to waste. If for the first time—it has never been done before—I am to grant to magistrates courts up and down the country the right there and then to grant legal aid, I may have a most serious leak with no means of control whatever. I shall not be able to turn on the Law Society, for they will say: "All the money has gone down the drain, it is true, but it is the magistrates' drain; we are not responsible for it." I can then do nothing about it.
This has never been done before. Why are you going to do it in magistrates courts, without doing it in county courts or in High Courts? Why do you select as the one class of people who may give legal aid in civil cases the magistrates and not the county court judges? This would cut right across the whole scheme. This matter was debated at considerable length in Standing Committee, and finally there were three members—two from my Party and one from the Conservative Party—on the one side, and seventeen on the other side. I believe the seventeen were clearly right. After Lord Calverley's speech the other day, I asked the Law Society and the Bar Council to reconsider the matter; and they have done so. I would assure the noble Lord, Lord Calverley, that he need not be so suspicious of these people. They are trying to make a success of this scheme, and they are not seeking to feather the nests of the solicitors or lawyers up and down the country. They have told me definitely that they think this Amendment would be a great misfortune. The Law Society are supported in that by the Bar Council. They are people who have given great thought to 1103 the working of this scheme, and I may say that I entirely agree with them.
There is another objection. When this matter was debated in Standing Committee the mover of this Amendment agreed that if the magistrates in these cases granted legal aid to one side, they would be bound also to grant it to the other side, or the worst impression would be created. With great respect to the noble Lord, Lord Merthyr, it is all very well to have an independent committee of the Law Society considering the facts, and deciding whether legal aid should be granted or not. But the Law Society are not trying the case. What you want to do is to remove from any suspicion of unfairness the court trying the case. I think—and as I say, the mover of the Amendment in another place agreed—that it would follow that if the magistrates granted it to one side they would have to grant it also to the other. Then, how undesirable it is that members of the court who are going to try the case should sit and hear from one side only their explanation of the details of the case! I spoke to Lord Calverley about this point the other day, and he told me that on his bench at Bradford they understand it so well that the magistrate who hears the matter does not take part in the jurisdiction.
§ LORD CALVERLEY
§ THE LORD CHANCELLOR
I am glad to hear it. That shows how sensible are the people of Bradford—which I have never doubted. But the clerk, so the noble Lord tells me, was taking part in the adjudication. Is that right?
§ LORD CALVERLEY
§ THE LORD CHANCELLOR
Very well. Lord Roche, who spoke just now, when he made his Report as Chairman of the Departmental Committee on Justices' Clerks (everybody seems to be changing his mind now!) expressed his view of the functions of the clerk in regard to this legal aid matter, and pointed out how undesirable it was that the clerk should advise about the granting of legal aid.
§ LORD ROCHE
I do not think we said anything about legal aid at all. I do not remember that. Could the noble and learned Viscount refer me to the passage?
§ THE LORD CHANCELLOR
I was about to do so. The Report says:Where legal aid is available, either through a Society or through individual solicitors, the proper and best course is to put the applicant in the way of obtaining such assistance.That, I think, is plainly right. I do not think it is the function of the court. I feel it would be a great misfortune if we were for the first time to embark upon the experiment of enabling the court who heard the case to consider the question of granting legal aid.
The noble Lord, Lord Calverley, stressed on the last occasion the need for speed, a matter which I will come to in a moment. He then said:The other day in Sheffield a woman came in to see the justices' clerk and said that her husband had deserted her. She had no means, and she was starving.I pause there to say emphatically that she ought to have gone to the assistance board. The noble Lord went on:She said, 'I have just seen my husband, who is a steward on a ship.' What did the clerk do? He got the magistrate to sign a warrant, 'collared' the man and brought him in.I was really astounded to read that, because there is no power to grant a warrant in that case. A warrant is granted because a man does not obey a summons.
§ LORD CALVERLEY
I meant a summons.
§ THE LORD CHANCELLOR
If you grant a summons, you do not "collar" the man. It is only when you have granted a summons, and the man has not obeyed the summons, that you can grant a warrant.
All this was given to us as an indication of the pressing need of the matter and the necessity for speed. How am I going to meet this difficulty? I think I can go some considerable way to meet it. I realise that there will be some cases of great urgency. I do not think that, as a rule, matrimonial cases are cases of great urgency. They may be sometimes, but not always. I propose that on these local committees there shall be certain persons—I have in mind the chairman, the vice-chairman and the secretary—who should be able to grant emergency certificates and, where the magistrate is dealing with a case which obviously is a case of emergency and 1105 requires speed, he should get in touch with these people—if necessary on the telephone—and they should be able to grant an emergency certificate. It would be on the understanding that if, and in so far as, the means of the applicant proved to be above the level at which assistance is free, the applicant should contribute such an amount as might thereafter be fixed by the assistance board. It would mean that the matter would be reported to the local committee, and in a more formal way they would take cognisance of it. In that way the committee would become seized of the whole matter, and in that way I should got my necessary control. I quite agree that the magistrates and the local committee should be in the closest touch with each other.
There is one other consideration which I would suggest to your Lordships. Not infrequently, these people go to the wrong court. Suppose it is a case of divorce, which is, of course, very elementary to us. A divorce is granted only by the higher courts, and cannot be granted by the magistrates court; the magistrates court may grant a separation, but not a divorce. If somebody goes to the wrong court, the magistrates can give him no aid. On the other hand, if he goes to the local legal aid committee, they can give him the appropriate aid which is available, whatever may turn out to be the right court.
That is really all I have to say. I am afraid that I must regard this as a matter of importance. I will go as far as I possibly can to bring about a liaison between the local committee and the magistrates—I will do everything I can to achieve that—but I am not prepared to allow the magistrates to cut completely across the whole principle of legal aid being given in civil cases and to dispense with any requirements as to finding out the means of the people, which may land this scheme in an expenditure of an extra vast sum of money. I will take your Lordships into my confidence to this extent. Even after this Bill had passed through another place, the whole thing was in jeopardy owing to the economic position, and I have the authority to bring it before your Lordships only on the understanding that I will do everything I can to see that the expense is still further cut down. If I were to 1106 accept the Amendment which, in my view, would add very largely to the cost, I would be departing completely from my undertaking.
Also, I have no means of estimating at all what the extra cost would be. Some magistrates would grant legal aid in almost every case—the nice, dear, kindhearted, benevolent gentlemen—and if it is granted to one side, it must be granted to the other, for the reasons which I have given. Other magistrates in other areas would be much "stiffer" about the whole thing and there would be no uniformity of practice at all. There would not be a central integrating authority, and there would not be the controlling power such as I should have in the system I have put forward. There would be a variety of practice up and down the country, and a vast expense would be added which no one could control. I really cannot contemplate it. When I tell your Lordships that this is an absolutely new departure, it seems to me particularly illogical to apply it to the magistrates courts and not to other courts: I cannot see why it should not apply to the county court. You are simply throwing on one side all the financial check and control of the assistance board. I cannot face it, and I may as well be quite frank about it.
I must ask your Lordships to reject this Amendment. I believe I am right in asking your Lordships to reject it, because I am going to have great powers under this Bill and it is going to be very flexible. If I find that it is not working, I shall not hesitate to say so. I believe I can create that liaison which I want to deal with cases in which speed is required, but I hope to goodness that the magistrates will go on with their very useful work in trying to settle cases day by day out of hand, as they have done for many years, quite often apart from any question of legal aid being granted. Therefore, I am sorry but I must ask your Lordships to reject this Amendment. I do not come to this conclusion lightly or without consideration. As I said, I referred this matter to both the Law Society and the Bar Council, and I think that everything I have said meets with their entire approval. I ask your Lordships not to accept this Amendment, which would have a most serious effect on the whole scheme.
§ 6.5 p.m.
§ VISCOUNT TEMPLEWOOD
The Lord Chancellor made such an overwhelming philippic against this Bill that I should take a long time if I answered him in detail. I would, however, point out to him first of all, that although the noble Lord, Lord Rushcliffe, has changed his opinion—no doubt with very good reasons—and has announced his change to-day, his Committee did recommend the actual plan which I have been proposing. The other comment that I would make is that, at the end of his speech, the Lord Chancellor made a great deal of the financial considerations at stake. I am quite convinced that only the future can judge between us whether his plan is going to be much more expensive than mine. I am confident that his plan is going to lead to a great deal of unnecessary litigation; that it is going to lead to a great deal of unnecessary appearances in court by lawyers, and that the £2,000,000 to which reference has been made will certainly be exceeded in the future. But, as I say, only the future can judge between us.
Now the Lord Chancellor has damned this Amendment with bell, book and candle. I am not sure whether to ask the House to divide or not. However, before I make a decision, may I ask the Lord Chancellor whether he can help us a little further? Before the Bill actually passes to the Statute Book, can he let us see the instructions which he is going to send to the Law Society and the Bar Council? I do not wish to say anything in disparagement of the Law Society or the Bar Council, but, after all, they are interested parties. The Lord Chancellor has pointed to their view to-day as an unanswerable reason for rejecting my proposal. I would have expected that, having given that opinion once on this subject, they would give it again. Can the Lord Chancellor go a litle further than he has gone today, and say that he will circulate, either in draft rules or whatever may be the best form, the actual instructions that he is going to give to these committees, particularly upon the point of urgency? Also, could he tell us specifically what are the actual instructions to be given to the probation officer? This is a point to which the magistrates attach very great importance. If the Lord Chancellor could give me a satisfactory answer on these points to-day I should be 1108 inclined to hold my hand in the matter of a Division—keeping myself free to divide, if necessary, on Report stage.
§ 6.10 p.m.
§ THE LORD CHANCELLOR
I will gladly help the noble Viscount if I can. It is not for me to give instructions; it is rather for the Law Society to promulgate a scheme for me to approve. I would rather not give the noble Viscount a definite answer to-day because, obviously, it needs a little care in the wording, but I think I can indicate plainly what the present trend of my mind is, and I will gladly discuss the matter with the Law Society so that it may be made clear; it is the sort of thing which they would put into their scheme. What I anticipate is that each local committee shall contain certain members who are empowered to grant what I call an emergency certificate. The emergency certificate will enable the prospective litigant at once to consult a solicitor. This would be subject to these two matters: first, that the litigant will in due course have to go, like any other litigant, to the assistance board and say that he is all right so far as means are concerned—I cannot excuse him that. That is the first qualification. Secondly, the emergency certificate would in due course be reported by the secretary, chairman, or vice-chairman, to the local committee, who would be able to pass it—though, theoretically, at any rate, if they wanted to they could throw it over.
That is the sort of scheme I have in mind and I think it indicates sufficiently what the idea is. By my rule I could, if necessary, state that the local magistrates are to be deemed to be the agents of the Law Society for this purpose—although for the reason I have given I do not want to do that. I think that in this way I shall be able to link together the appropriate body which elves legal aid in all classes of civil cases with the magistrates who are adjudicating in what is a civil case in their jurisdiction. I am afraid that is as far as I can go in that matter.
With regard to probation officers, the present Statute says in effect (I quote from memory): "To take on such duties as may be prescribed." "Prescribed" means by rules, and this would need rules. I do not want to have the probation officers dancing attendance all day long 1109 on these local committees, but I want the local committees to be able in proper cases to avail themselves of the services of the probation officer. Probably they would do much better sometimes, rather than spend time in considering whether they are going to grant civil aid or not, to ask the probation officer to have a look at the case. I want to be able to make the services of the, probation officer available to the magistrates. He is not only the servant of the bench of magistrates, be has other and wider tasks; and the Home Secretary and I propose that by our regulations we should make it plain that the probation officer should be ready to help one of these local committees in cases in which his help is needed. That is as far as I am able to go to-day.
§ LORD ROCHE
Would it not be possible, in preparing these draft schemes, to consider whether there might be a provision that justices might recommend to the committee that there should be representation of either one party or the other, or both? I think that would be helpful, and it would meet a perfectly legitimate requirement of the justices and would go far to satisfy some of them, including myself.
§ THE LORD CHANCELLOR
That is exactly what I contemplate, I can certainly give the noble Lord the assurance he wants in that matter.
§ VISCOUNT TEMPLEWOOD
I must consider what the noble and learned Viscount has said. I am not asking the House to divide to-day. I do, however, demur to the implication in both the Lord Chancellor's speeches—namely, that we leave it to the Law Society to make this scheme. The Law Society are no doubt a most excellent body—but they are directly interested in the defence and the prosecution in local courts. And I demur to the suggestion that this House and Parliament should be prepared to accept almost anything they put up to us.
§ THE LORD CHANCELLOR
If I left that impression I left a wrong impression. All I meant to say was that the scheme comes first of all from the Law Society: they promulgate a scheme for my approval, and in due course it is for this House to approve or negative it. It is not the case that I am prepared to accept 1110 anything they put forward. The first draft comes from the Law Society, and I operate on that draft.
§ VISCOUNT TEMPLEWOOD
We shall scrutinise very carefully the draft of the Law Society, I presume that we shall have it before the Bill is brought into operation—indeed, we must have it—and we shall look at it with great interest, particularly from the point of view of avoiding delay. What the noble and learned Viscount has said to-day has not reassured me at all in the matter of delay. Even in his last speech, what he said about delay left me still with an idea that the plan under the Bill is going to lead to unnecessary delay. As I say, so far as this afternoon is concerned I will not ask the House to divide. We shall have to await the next stage, and particularly await the scheme promulgated originally by the Law Society and subsequently approved by the Lord Chancellor. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clauses agreed to.
§ First Schedule [Proceedings for which legal aid may he given under section one]:
§ Part II (Excepted proceedings).
§ THE MARQUESS OF READING moved to delete from Part II "defamation." The noble Marquess said: The Amendment which stands in my name is to omit from Part II of the First Schedule the word "defamation." The point of the Amendment is that defamation (libel or slander) is not included amongst the types of cases which can receive legal aid or advice. I raised this point on Second Reading and the noble and learned Viscount the Lord Chancellor said in reply—and I appreciate the force of his argument—that both from the point of view of the volume of work and the burden of costs there were substantial difficulties in putting into operation a scheme which included at the outset libel and slander, although it was a matter which he was prepared to contemplate at a later stage.
§ Since then, on the discussion on the corresponding Bill for Scotland, I heard one noble and learned Lord say that he hoped that he would never hear anybody advocate that the State should subsidise 1111 —I do not think that was his exact word—actions of this kind. Happily, however, he is spared from that ordeal at the moment by not being in the House. The matter cannot be quite so readily dismissed. The inclusion of defamation was one of the recommendations of the Rushcliffe Committee, and from that point of view it is certainly entitled to earnest consideration. There are cases which I admit are open to abuse, but, at the same time, there is perhaps a kernel of cases of this kind in which, if legal aid is not available, very substantial injustice may be done.
§ Most of us who have practised at any time at the Bar have conducted cases under the existing Poor Persons rules. I can remember from my own experience the case of a girl who was a shopgirl, who was thought, quite wrongly, without any evidence and without any investigation by her employers, to have been responsible for stealing articles from the shop. She was discharged and, when her subsequent potential employers asked for a reference, the whole of this story about the suspicions against her, with various elaborations, came out. If that girl had not been able to obtain some sort of legal assistance, she might for the rest of her life, or anyhow, for many years during her life, have gone around with this character attached to her which had been handed out maliciously by her original employers. That is why I say that in, if you like, a rare body of cases, it may be a very real hardship on a particular individual if he or she is unable on account of financial impoverishment to have recourse to the courts. I do not propose to press this Amendment, but I hope that the noble and learned Viscount will find himself able to give some encouragement by saying that these matters will be kept under the closest supervision and that, if the financial situation makes it in any way justifiable to include these cases, he will not regard it as a matter of principle to exclude them but will allow them to come within the sphere of the Act and thereby obviate the risk of injustice which must persist, although possibly in a relatively small degree, so long as the present exclusion remains. I beg to move.
Page 25, line 38, leave out ("defamation").—(The Marquess of Reading.)
§ LORD MANCROFT
As I supported the noble Marquess on his Second Reading proposal, may I be permitted a few words on this Amendment? I am afraid that I cannot go the whole way and support him now. I agree that in due course defamation should be included, if possible, as a cause of action, but not for the same reason that he has advanced. I have no great love of defamation as a cause of action. I know it is a terrible thing for a lawyer to say, but I have often thought that the best solution in many cases of libel is a "thundering good clump on the nose." I think that the number of injustices that will arise as envisaged by the noble Marquess must be very small. But it does seem illogical that we should say: "Here is an all-embracing scheme of legal aid," and then say: "Some cases are good, some are bad and some are indifferent." Surely we cannot say that.
Logically, if a cause of action is permissible in the King's Court, it should be accessible to legal aid under this measure. On the ground of practical rather than logical reasons, it may be excluded for the time being. If, in due course, we find that we are not being over-extravagant and the scheme is working smoothly, we can consider extending it to cover defamation in certain cases. We may say: "Here is a case of scandalous injustice involving defamation. Let us grant legal aid." Or we may say: "Here is a case of defamation of no legal merit whatsoever, so let us not grant legal aid." Could not the committees go half way and use some such procedure until we can include defamation for all cases? On the whole, I cannot support the noble Marquess who moved this Amendment.
§ THE LORD CHANCELLOR
I will gladly give the noble Marquess the assurance he wants that I do not approach this matter with a closed mind and that, if and when I can do anything about this question, I will. However, I am not prepared to do it for the time being, both because of financial reasons and also because I feel that these cases may take up a great deal of time of the local committees. Frankly, the sort of thing that I have in mind is this, and I am sure the noble Marquess will agree with me. In this matter, I do not want to have subsidised litigation. For 1113 example, there is the case where one woman is talking to another over the garden wall. She says that the other is not a virtuous woman, or that she did not come by her money honestly—which, as things go to-day, when people litigate at their own expense, is taken as a "rub of the green." But if this were to lead to one woman going to a legal aid committee and pronouncing her case—"She said that I was not a virtuous woman, when I am really the most virtuous woman that ever was. It is a monstrous thing to say. Give me some money so that I can take action"—and the other woman going and saying, "I want the money to defend myself," it would be most unfortunate.
There is another peculiarity about libel actions: all cases are difficult to decide when you hear only one point of view. My experience teaches me that this is particularly so in cases of defamation, because the prospective plaintiff comes to you and generally says that there is no word of truth in the statement that has been made. It is only on that basis that you can act. Of course, you cannot find out whether or not there is any truth in the statement. Then it often turns out that it is all too true. That is my experience, and I am frightened lest the bodies who will have to go into these things spend a great deal of time in investigating these "over the garden wall" slanders. If it transpires that I am wrong, that I am perhaps being unduly pessimistic, that the committees are giving universal approval and that the scheme is not costing very much money, and the Chancellor of the Exchequer says to me: "My clear old boy, you can extend your scope a little further. Have some more money", I will then come to your Lordships very readily. I can assure your Lordships that I have no closed mind on the subject. But if, en the other hand, the financial position for a little while is difficult, I had better wait and see what is the state of affairs before I take any action.
However, I will give the noble Marquess the assurance that if and when I can see my way to do it I will make the appropriate recommendation to bring defamation into this scheme, because I agree with him that there may be cases—he gave an illustration of one and I 1114 have known of others—where a real hardship is done by not granting aid. On the other hand, experience of legal aid over many years shows that this is the rarest sort of case to be subject to legal aid. There have been cases, but they have been very rare indeed. It does not seem to be the class of case in which, as things are to-day, litigants require aid. I hope I have given the noble Marquess some satisfaction, and I am grateful to him for not pressing the Amendment.
THE MARQUESS OF READING
I am obliged to the noble and learned Viscount. I was anxious to get it plainly stated that the inclusion of libel was not ruled out as a matter of principle or doctrine, but merely or mainly because of the expediency of the moment. Having received that assurance, I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether the First Schedule shall stand part of the Bill?
§ VISCOUNT MAUGHAM
Before we pass from the First Schedule, may I make an observation about paragraph 1, sub-paragraphs (a) and (b)? I do this because it may be the only chance I shall have of saying anything about those two paragraphs. Paragraph 1 says:Proceedings in any of the following courts—and so on. I feel that if the matter is left there without any thing being said it may be thought that some young man, foolish as I was when I was first called to the Bar, may be asked to advise whether there is a proper or reasonable case for an appeal to the House of Lords from a judgment pronounced by the Court of Appeal, by three of the most eminent judges in the land—apart from those who function in the highest Court. I think the only cases that come before the Judicial Committee of the Privy Council for hearing, apart from cases for leave to appeal, are those where the court has already expressed its opinion.
- (a) the House of Lords in the exercise of its jurisdiction in relation to appeals from courts in England or Northern Ireland;
- (b) the Judicial Committee of the Privy Council ";…
I am sure the Lord Chancellor has realised from the start, that where a person in poor financial circumstances is given legal aid to bring an action 1115 against somebody who may be reasonably well off, if the action fails great hardship is inflicted on the defendant to the action. When I have been sitting in the House of Lords I have known cases where, by a mistake, a case has arisen of a person suing in forma pauperis. When he has lost in the House of Lords he has inflicted upon the respondent very serious costs, because his costs are often much greater than those of the appellant, by reason of the fact that he sometimes employs fashionable counsel. But a fortiori is that the case where the solicitor or counsel is advising as to the propriety of legal aid where the person has to make up his mind that the judges from whose decision the appeal is made—especially if it comes from our Court of Appeal—are wrong. You may say that they are wrong, but it is about 100 to 1 that you are wrong if you take that view.
The advising people will often be men of a very moderate amount of practice and experience in the decision of legal cases, and I suggest, purely for the consideration of the Lord Chancellor, that in the first instance, at least, legal aid in cases relevant to paragraphs (a) and (b) should be given only to a man who is the respondent, and who desires to defend his case with the assistance of counsel. That is a very different case from that in which he is an appellant. I thought that unless something was said here on the subject, it would appear at first sight as if the whole of these cases were in pari materia, and they are not. I hope the rules will make it clear that assistance ought not to be given in cases under paragraphs (a) and (b) to an appellant—I should say in any case, but at any rate not unless some special precautions are taken to show that in the case in question some unfortunate mistake has been made which ought to be put right.
I would only add that the whole of this Bill and its effect throughout the country will largely depend upon whether it is so administered that very few cases where legal aid has been granted are shown to be unjustified by their future histories. If it is granted too freely the courts will be cluttered up with these 1116 actions; the whole scheme will come into disrepute; further Judges will be needed, and everything will go wrong. Therefore, it is most desirable that the rules or general instructions under which people act shall be so worded that the heavy obligation resting on those who advise legal aid shall be fully understood by them.
§ THE LORD CHANCELLOR
I am grateful to the noble and learned Viscount for saying what he has said; and of course there is a great deal of force in it. In the earlier stages of this Bill I tried to express my feeling that there may be great hardship to a man who is not necessarily a rich man but just above the limit at which he can get assistance, if somebody is assisted to "shoot at" him. I am very conscious of that, and I have discussed it. Obviously, with regard to this question of appeal to the House of Lords, which perhaps is a stronger case than the Privy Council, certainly legal aid to an appellant should be granted only in the most exceptional circumstances; and very sparingly. I have in mind that if a case of this sort came along it should not be a matter for a local committee to decide but should go to the very central committee itself to determine; and they should be very hesitant to grant legal aid in these cases. As the noble and learned Viscount has so rightly said, it may be a matter of very great hardship to the other side. That is really all I have to say about it. Of course, I agree that everything depends on the way in which this Bill is administered. I would rather have a slow, steady, and not at all a showy administration. There are bound to be mistakes made, but we must see to it that they are as few as possible. If it got about that a lot of litigants were being encouraged at the public expense to bring actions which had no foundation, this scheme would bring itself into public disrepute—which is the last thing we want. I am grateful to the noble and learned Viscount for what he has said. All I can tell him to-night is that I will not forget the points he has so rightly made.
§ On Question, First Schedule agreed to.
§ Remaining Schedules agreed to.
§ House resumed.