LEGAL AID AND ADVICE BILL

HL Deb 27 June 1949 vol 163 cc304-42

4.4 p.m.

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT JOWITT)

My Lords, I rise to move that this Bill be now read a second time. I confess that when I became Lord Chancellor four years ago, there were several matters which I was very anxious to see introduced during my term of office. I was anxious to be able to make some real contribution towards the codification and clearing up of our Statute Book, which was obviously eminently necessary. I was anxious to be able to bring in some measure dealing with civil proceedings against the Crown. Thirdly, I was anxious to bring in a Bill to give effect to the recommendations of the Rushcliffe Committee which had been set up by my predecessor, the noble and learned Viscount, Lord Simon, and had been presided over by the noble Lord, Lord Rushcliffe. I was anxious to do these things not merely, or not mainly, because I was alarmed lest we should indulge in any totalitarian tendency—I knew that we should not, and I knew it would be said that we should. I read with some interest that in the Canadian elections which are now going on, all three Parties have accused the two others of a tendency towards totalitarianism, which shows that there is much truth in the old saying: The words which are the counters of wise men are the coinage of fools. In the atmosphere of a General Election we generally find more coinage of that sort than counters.

The noble and learned Viscount, Lord Simon, did well in setting up that Committee, and particularly well in choosing their personnel and Chairman. I am very sorry that for reasons of health the noble Lord, Lord Rushcliffe, is unable to be here to-day. The country owes a great deal to his wisdom, and to the willingness with which he has undertaken public services throughout a very long time. I have no doubt that the noble and learned Lord, Lord Schuster, who served with him on that Committee, will substantiate what I say, that the success of the Committee's unanimous Report was due in no small measure to the wisdom, knowledge and drive which the noble Lord, Lord Rushcliffe, was able better than any other man to bring to their task. I hope we may soon have him back with us and that he will be able to take part in our discussions.

Every country which lives under the rule of law must have, I suppose, some system of legal aid. It may be provided, of course, by charities. It may be organised and ordered by the Judiciary. It may be run by the legal profession. Or it may be run by the Executive. In this country we do not claim to be logical, and our system has been a blending of all four. The Executive has always taken a very small part in it. Beyond making a small grant, they have done little else, and in regard to their part I have nothing more to say. In regard to the work which has been done by charities, it would be invidious to single out particular names. If I mention names at all, I mention them only as types, but bodies like the Bentham Committee, the Society of Our Lady of Good Counsel, Cambridge House, the citizens' advice bureaux and the poor man's lawyer, and innumerable other societies and movements, have done yeoman work in this field. Only last week your Lordships had a debate which called attention to the voluntary services which have been rendered in this country in many fields, and which I sincerely hope will continue to be rendered. Do not let us think that because we are introducing a more adequate and a fuller scheme under this Bill we by any means put an end to the need for voluntary service which has been given in the past, and which I sincerely hope will continue to be given in the future.

The part played by the Judiciary has been confined to the granting of legal aid in criminal cases—I raise here a point of some little substance, I think. They never have granted legal aid in civil cases, and I think there is a good reason why they should not. Equally, I think there is a good reason why magistrates should not arrange for legal aid, because legal aid is generally granted ex parte, without the other party being there and there is a danger—or at any rate a danger of its being thought—that the court becomes obsessed by the point of view of one party which, in the nature of things, is given in the absence of the other. I think it is probably undesirable that the granting of legal aid in civil eases should be undertaken either by judges or by magistrates who may subsequently have to hear the case.

Let me say a word or two about the existing system. In criminal cases legal aid is properly granted by judges and magistrates wherever they think it desirable in the interests of justice, and wherever they think an accused person cannot afford to pay it for himself. The right to a solicitor is granted before magistrates; in murder cases counsel also appear before the magistrates. In indictable offences, both solicitor and counsel appear; and on appeal, also, both appear. Under the existing system, counsel and solicitors are paid by the local authorities. Certain criticisms of the existing system are made by the Rushcliffe Committee. Broadly speaking, it is said that the discretion to grant legal aid has been exercised in a too hesitant and too reluctant way, and that the remuneration to those taking part in the service has been wholly inadequate. Legal advice to-day is organised and staffed by those charitable organisations whose names I have mertioned—the poor man's lawyer in particular. The poor man's lawyer to-day extends to some 120 towns— throughout the country—and the citizens' advice bureaux extend over a rather wider area. The Committee found that the existing organisation was good, but that the system should be more widely extended and brought under some kind of central control.

It is with regard to the civil litigation that the main criticisms lay. At the present time, legal aid is available only for those whose income is strictly limited. A weekly income of £2 or £4 is the criterion here. The £4 is said to be available only in exceptional circumstances; but one poor person's lawyer committee, at any rate, regard all circumstances to-day, owing to the cost of living, as exceptional. But the £2 and £4 limits were fixed in 1919. I do not pose as an economist, and I do not know what £4 in 1919 represents to-day. The noble Lord, Lord Hawke, would know much more about that than I do. It is obviously £6, £7 or perhaps even £8; certainly it is a figure over £4. The capital limits which apply to-daynamely, £50, or in exceptional circumstances £100, were fixed in 1914. Whether or not I am right about 1919 as compared to to-day, I am sure I am right with regard to 1914 and to-day, and if any noble Lord denies it I shall tell him he is wrong. Then the person wanting to avail himself of legal aid has to pay his own out-of-pocket expenses, the cost of summoning witnesses, postages and, in some cases, the costs of advertisements in the paper. It is often impossible for the litigant to pay all those expenses. Under the existing system, solicitors and counsel receive no remuneration whatever.

Finally, there is the criticism of the existing system that, though it is available in the High Court, it is not available in the county court. That has always seemed to me odd, because the county court is the poor man's court, and I should have thought that if there was one court where it should be available it was the county court. But the existing system in no way extends to the county court. To-day, to obtain legal aid in the High Court, where alone it is available, the would-be litigant goes before the poor person's committee of either the London or Provincial Law Society, who investigate alike the means of the litigant and the merits of his case, and then decide whether or not it is proper that legal aid should be granted.

Just to complete the story of the existing system, I would remind your Lordships that during the war, owing to the obvious shortage of barristers and the shortage of solicitors, the system more or less broke down. Consequently, there was started a service of free legal advice, available for all ranks up to sergeant and petty officer in the Services. The Law Society started a divorce department, staffed with salaried solicitors, to conduct divorce cases emanating from the Services schemes, and the barristers were paid a small fee for such cases. I have already expressed to your Lordships my appreciation of the work done in this regard by the Law Society. When I became Lord Chancellor I found myself confronted with a vast mass of divorce cases; the lists were cluttered up, and the position was really hopeless. The Law Society then took on the work. I venture to say that no better piece of public work has ever been done by any organisation in this country than the work which the Law Society did with regard to clearing these divorce lists. That excellent work which they have done we propose to retain under the new system. But, as I said, as a result of the war the system we had established began to creak badly—indeed it showed signs of break—and it was in those circumstances that my noble predecessor in this great office appointed Lord Rushcliffe to make his recommendations.

What were those recommendations? So far as the system in criminal cases is concerned, they found little or nothing wrong. They said that legal aid should be given more readily and more promptly; that the remuneration of the barristers and solicitors taking part in it should be more adequate; and they said—and here I am sure they are right—that the costs should be borne centrally and not locally. Those reforms which they have suggested we carry out in Part II of this Bill. Then, with regard to legal advice, the Committee recommend that the existing legal system should be extended throughout the country, and that there should be central control. That central control is to be exercised by the Law Society, and not by a Department of State. I am sure that is right, because many of the litigants who will desire to bring cases will want to bring them against Government Departments, or large organs of the Government, or great Corporations, and it would be wrong for any Government Department to consider whether those actions should be brought. We carry out those recommendations in Clause 7 of the Bill.

In order to make their Report the Rushclifie Committee obviously had to apply their minds to certain other questions. For instance, there was the question: In what courts should this legal aid be available? Their answer was: In all courts; in all tribunals and in all appeals, save only judgment summonses in county courts, and in cases where the debt is admitted and the only question is the method of payment. We may well come to them, too; I hope we shall. However, I am rather anxious to start this scheme on a modest scale. After all, we are taking a leap in the dark here; we have never had anything quite like this before. There are only some 2,000 barristers and 11,000 solicitors, many of whom deal in non-contentious business. There are a very large number of tribunals, and although solicitors and counsel have a right of audience there, in practice they very seldom use it. There are, for instance, pensions appeals, which are largely undertaken by the British Legion; and others are in the hands of trade unions or surveyors.

I am anxious—if I may put it in this way, borrowing a metaphor from the Health Service—that everybody should not at the same time go and buy their legal spectacles at the public expense. Consequently, we have limited this to certain courts, and we have struck out certain classes of action. If I find that my fears are unnecessary, then I have power under this Bill to come to Parliament to ask for an affirmative Resolution to include those other actions; and I shall not hesitate to do so. But I think it wiser to start modestly, to be sure that we have learned to walk before we start to run. Although it may be disappointing to start off by leaving out, for instance, such a matter as defamation—although my experience leads me to think that there are a great many unnecessary actions by way of libel and slander—we had better see whether the machine is not cluttered up with more important work before we allow them in. Therefore I propose that we should exclude them in the first instance. The Bill provides that I can seek an affirmative Resolution from Parliament, and if I can get that, I can then bring them in. I shall look forward to being able to do so in the not far distant future if I find that this scheme does not cost too much—because we must consider the cost. We estimate at the present time that it will cost £2,000,000. That can be only an instructed guess, but I want to see what it is going to cost, because it may founder altogether if it proves too expensive.

The second question to which the Committee had to address themselves was, what should be the income limit. At once they hit upon the idea that it is difficult to take a hard and fast line, so that a man just within the limit gets his free service, and a man just outside gets nothing at all. Therefore, they hit upon the idea that some shall be free and some shall be contributors. Broadly speaking, the proposal is that if the weekly income is £3 or, as I propose to say by regulations (it is a matter of regulation), £4 in the case of a married man, then he shall get the service free. But in talking about the £3 and £4 I may use the word which the Assistance Board use—"disregards." You are going to have "disregards," and the £3 or £4 may in reality be considerably more. That is set out in the Bill, and I am not going to trouble your Lordships by dealing with it now. The contributory scheme goes up to an income of £420 a year, and with the "disregards," which apply equally to that, it may well be that a man with an income of £600 or £700 will he able to get assistance, he, of course, making what is the appropriate contribution. We accept entirely the Report of the Committee in this respect.

Then they had to consider what the capital limit should be. They were anxious that a man who was going to litigate should not be put in peril of losing what they described as his "nest egg." They recommended the sum of £25 for a single man and £50 for a married man. We consider that rather on the low side, and we have increased it. We propose that instead of £25 and £50 it shall he £75, in the case of a single man, and £150 in the case of a married person, or a man with dependants. The Committee recommended that the Assistance Board should be the persons to assess the means, and with that we agree. Then came the difficult question: Who is to assess the merits of the proposed case? This has an interesting history. In the eighteenth century the would-be "poor person" had to apply to counsel and, at his own expense, obtain the opinion of counsel. He then had to make an affidavit saying that the facts upon which counsel based his opinion were correct; and then, and only then, could he get his legal aid. In the nineteenth century barristers or solicitors used to report on the case to a Master of the Supreme Court. To-day, of course, there are the poor persons' committees of the London and provincial Law Societies who, as I have said, have done excellent work. The only qualification we make to what the Rushcliffe Committee recommended—I think it is a slight qualification—is that barristers should also come in, and with that proposal the Law Society have expressed their concurrence. Both branches of the profession will therefore be able to take a hand in this matter.

There are purists who may criticise the administration by the Law Society, and say: "It is an odd thing that a wholly independent organisation should be able to make themselves responsible for the granting of public money." I agree that it may be unusual, but if they had the same experience as I have had of the Law Society, I feel fairly confident they would be satisfied. Of course, it will have to be under supervision. I have the general supervision, and I must say that in the past I have been able to work very happily with the Law Society, and I hope and believe that the Law Society have worked happily with me. I anticipate no difficulty at all in the Law Society coming to me in an informal way if they want guidance and help; and, equally, in my going to the Law Society in an informal way if I want the benefit of their advice. We can try it. It is an experiment and I believe it will work very happily.

To give your Lordships an illustration of the sort of organisation I anticipate, may I take a region—call it the southwestern region. There are some twelve regions in all. It will consist of something like five counties and Bristol will be its headquarters. We shall have local committees who will consider the merits of these cases in eight towns. There will be legal advice centres in fifty-six towns with the area committee at Bristol. That will consist of twelve members, all unpaid, except for travelling expenses throughout the area. There must be an office and a small staff. There will be fifty-six legal advice centres, and whole-time solicitors will adopt a kind of circuit system, going round the various towns in order that they may be available to advise people who may want to consult them.

What should be done about the remission of court fees? Since the time of Henry III they have been remitted by the courts by practice. Henry VII regularised the matter by Statute. The Rushcliffe Committee say that they should continue to be remitted for all those people who are having a free grant and, of course, in the contributory cases the man should be required to pay up to the extent of his contribution. With that, too, we agree. Now comes a very difficult question. What shall be done about the costs of the other side? Bear in mind that although you have a committee and they investigate the merits of the case, they hear only one side. Anybody who knows anything about the law knows that very often a case which looks the best on paper turns out to be the worst in practice. However carefully you put these cases through the sieve, there will be many which investigation will show ought never to have been brought. Consider the unhappy defendant if the litigant, at public expense, sues him in an action which turns out to be a bad action. He demands our sympathy. On the one hand, therefore, we have the peril to the poor litigant who is fearful lest he should lose everything in paying the costs if he loses the action, and on the other hand we have to consider the very great hardship there may be to the unassisted litigant who may be just above the limit.

The history of the matter is this. The doctrine that the loser pays costs was first established in the reign of Edward I, in 1278. In the reign of Henry VIII it was provided that the poor person losing his case should pay no costs, but that he should incur such punishment as the court thought reasonable. That was the sanction. Queen Elizabeth made that rather more specific: she said that he should incur either a whipping or the pillory. In the eighteenth century the financial sanction came back again. As I have said, there was the necessity of getting counsel's opinion, plus an affidavit by the litigant and, of course, if the affidavit was untrue he was punished for the untrue statements in the affidavit.

But to-day the practice is that the unsuccessful poor person litigant does not pay costs unless the judge specially orders that he shall. The Rushcliffe Committee—if I may paraphrase the sentence—said this: "Let him pay, but do not ruin him; do not take away from him everything he has." In other words, according to the Committee's recommendation, he becomes liable for the cost, but such things as his house, furniture and tools of trade are not to be touched, and any order to be made will have due regard to his financial position. We agree to this, but think that the judge, in considering the case, should have regard to the whole conduct of the parties; and we propose so to provide. I propose also to provide by regulations that it shall be open to a litigant who has won his case against a poor person to make a fresh application for costs if the means of the plaintiff alter. For instance, if he wins a football pool or something of that kind, it is only right that he should pay the costs of the litigant who has been successful.

We now come to the question, should counsel and solicitors be remunerated? In saying that they should be, the Rushcliffe Committee suggested, and we agree, that the solicitors should themselves make some contribution. We think that the solicitors should contribute to the costs to an amount which is estimated to be 15 per cent. of the gross costs, and that the barristers should also submit to a like deduction in respect of their fees. In the county court, the committee said, reasonable remuneration should be paid, but we are not willing to make the extent of the remuneration dependent either on the amount of the claim or on the amount recovered, as they suggested. It seems to us that to attempt that would be getting too near a "contingency basis," against which we have always resolutely set our faces in this country, and I think rightly. The Austin Jones Committee have considered the scale but I cannot yet tell your Lordships whether the scale they recommend will be satisfactory in all cases. I hope it will be. We estimate the cost of this scheme at the present time will be something like £2,000,000—a very formidable sum, and I am very anxious to keep a tight check on it.

As to the Bill itself, I think I have sufficiently described Clauses 1 to 4. It is a fact that this Bill is largely a peg on which I may hang regulations. I believe that it is inevitable that that should be so. I hope your Lordships will not mind, and will trust me to do the best I can with these regulations. After all, they all come before the House and require a negative or affirmative Resolution. Regulations can be annulled by either House if they so desire. But as we are starting a new and experimental scheme, I think we should keep the scheme flexible and I believe that by this method of regulation we can keep it flexible.

Clause 5 deals with a matter of some little importance. What is contemplated is this. Before you get to the stage when you know whether you can bring an action and whether you can apply for legal aid, correspondence often arises. Indeed, correspondence defines what the issue really is. Although the advice which is to be given by the legal advisers is oral, it is contemplated by the Rushcliffe Committee that there should be one letter; but one letter in these legal matters is generally followed by other letters, and if legal advisers are embarking on correspondence of this kind they will need a secretariat and special offices for the purpose. On the other hand, many persons go to legal advisers it circumstances where they have not as yet a prima facie case; they require professional help to get a statement from witnesses, or evidence from insurance companies, and so forth.

To meet this difficulty the procedure outlined in Clause 5 has been devised. What is contemplated is that when a legal adviser finds a client needs something more than mere oral advice he can provide him with a special type of certificate which will entitle him to consult a solicitor who will undertake this correspondence and negotiate for him. At the termination of the work the solicitor will render an account to the area committee, who will pay him what they consider reasonable remuneration for the work he has done. As a check on the expenditure, it is proposed to provide that where a solicitor thinks that the work he will have to do will require more than fifteen pounds in payment he shall apply to the local committee, who will authorise him to incur such additional expenses as are likely to be necessary. As the normal expenditure in these cases is likely to be small we propose to limit these facilities to persons who would obtain free legal aid.

Clause 6 provides for panels of solicitors and barristers. Subsection (2) contemplates the removal of names from the panel. Complaint tribunals will be set up. For barristers the tribunal will be a committee of barristers presided over, we hope, by the Chairman of the Bar Council. In the case of solicitors it will be a committee of solicitors, presided over, we hope, by the President of the Law Society. And there will be in each case an appeal to the High Court. This has been assented to by the Lord Chief Justice, the Bar Council, the Law Society and the Inns of Court. Thus I think we have devised a scheme for a full right of appeal to the High Court which meets the requirements of all branches of the profession. Subsection (7) of Clause 6 provides that in matrimonial cases, where the litigant is not going to contribute more than ten pounds, he shall not have the right to select a name from the panel but the case shall be run for him by the Special Divorce Unit of the Law Society, of which I have already spoken. That action also is in accordance with the recommendations of the Rushcliffe Committee.

Clause 7 deals with legal aid which is to be given by a salaried solicitor. It is contemplated that normally the fee will be 2s. 6d. and that the advice will be of an oral kind. Clauses 8, 9, 10 and 11 deal with administrative and financial matters. Clause 12 deals with regulations which are to be made by statutory instrument. Clause 13 sets up an advisory committee which is to assist the Lord Chancellor. Throughout this scheme I have been most anixous that the legal aid committees and the area committees should be committees consisting exclusively of lawyers—barristers and solicitors. But when we come to the advisory committees, here to my mind we want the lay element, and I shall hope to have some distinguished people from various walks of life—not lawyers—to assist me on that committee.

Clause 14 deals with the necessity of secrecy and the punishment for breach of secrecy. Clause 15 deals with proceedings for misrepresentation—people may get legal aid through misrepresentation of what their means are. Clause 16 deals with rights of indemnity. Where at present a litigant has a right to be indemnified, as, for instance, by an insurance company, we shall, if he comes for legal aid, refer to the insurance company, and if they decline to take up the case, then the local committee will take the matter up and there will be a subrogation to the committee. Equally in the case of trade unions, where there is no contractual right to have the case taken up by the union, he will be referred to the trade union and, if they decline to take up his case, then the local committee will grant him aid.

Part II of the Bill deals with criminal matters. The main alteration to the existing scheme is that a doubt whether legal aid should or should not be granted is now to be resolved in favour of the applicant and, as I have said, the cost is to be borne by central funds. Clauses 19 and 20 are designed to secure prompt granting of aid. Clauses 21, 22, and 23 provide for fair remuneration, and those are the clauses that transfer the burden from the local authorities to the central fund. I have no doubt that there will be many points on this Bill in Committee to which I shall most readily listen, because there is no point of Party involved in it at all. Indeed, as I said before the noble Viscount, Lord Simon, entered the Chamber, he is really in a sense the grandfather of this Bill, just as the noble Lord, Lord Rushcliffe, is the father; all I have had to do is to play the rôle of a godparent. I have had to secure that this Bill gets its place in the sun, and it was not always easy to do that because there were all sorts of rival claims. When difficulties have arisen, I have met the Law Society, the Bar Council and other people interested, and I think I am right in saying that we have been able to iron out almost all, if not all, the difficulties. We have departed so little from the Rushcliffe Committee's Report that I anticipated we should have the support of the noble Lord, Lord Rushcliffe, were he able to be present. It is very important that we should make a success of this scheme. I know the Law Society share my view on this matter. I know that they are determined to do everything they can to make this project a success. If I may say so, their reputation is at stake on this point, and I am confident that if anybody can make the scheme a success, the Law Society can do it.

On the one hand, we must watch carefully lest the scheme get out of control and vast sums of public money be expended on unnecessary litigation. On the other hand, we must try so to manage it that people who have a really good case are not precluded from bringing that case merely because of lack of means. Between that Scylla and that Charybdis the Law Society have to do the best they can to steer a course. The Law Society are fully aware of the fact that the last way in which to regard this Bill is as the two branches of the profession having a field day at public expense. That is not the purpose at all. This is not a "Relief for the Legal Profession Bill," this is a "Relief for the Public Bill." We have boasted, and rightly boasted—because let no one belittle the work that has been done by those who have gone before us and by our existing scheme—that the courts are open to the humblest of His Majesty's subjects. In the main, in broad outline, that statement has been true, but let us make it completely true. So far as is humanly possible, let us see that no one is placed at a disadvantage in matters of justice because his pocket is not full, and that all men, rich and poor alike, shall receive justice. That is my earnest hope in introducing this Bill. I feel that I introduce it under good auspices and deem myself fortunate in that, by historical accident, it falls to me, and not to my distinguished predecessor, to introduce this Bill. I beg to move.

Moved, That the Bill be now read 2^*.—(The Lord Chancellor.)

4.44 p.m.

VISCOUNT SIMON

My Lords, I must first express my apologies for not being able to be present at the moment when the noble and learned Viscount rose to speak. Perhaps I may explain that I was discharging another function which from time to time the noble and learned Viscount puts upon me when the Judicial Committee are hearing an important appeal and which I carry out to the best of my ability. However, I was present in time to hear most of his speech and, if I may say so in an opening sentence, I think the noble and learned Viscount is much too modest about the part which he himself has played, and is playing, in carrying through, as he will do, this reform. I wish it had been possible to have such a Bill a little earlier, but I well understand how difficult it is, even for the most powerful and authoritative Lord Chancellor, to "get his foot in" and secure, in the King's Speech or in the programme of the Session, space for what at first sight appeared not to be a Bill of great, pressing and urgent importance. I know well, both from what the noble and learned Viscount has said publicly and from what I know privately, that he has throughout been most energetic and wholehearted in seeking to have this legislation brought before Parliament. I venture to congratulate the noble and learned Viscount most sincerely on reaching the point when we feel fairly sure that this Bill will reach the Statute Book.

There is, however, one regret, and only one regret, which your Lordships can have at this moment; and it is a very distressing fact. It is that the noble Lord, Lord Rushcliffe, who was the Chairman of the Committee which made this unanimous and most valuable Report, is laid aside by illness and cannot be here. I feel sure that everybody here would wish us it debate to send to him the message that we are deeply interested in these proposals, and congratulate him that the time has come when it is possible to carry them out and place these provisions upon the Statute Book. I was glad that in his speech the noble and learned Viscount the Lord Chancellor referred to the fact that, even without a Bill of this kind, great efforts are made, and have been made for many years by what we may call private enterprise—or, at any rate, organised benevolence—to give help of the sort which this Bill will secure, in far better form, for poor people.

Not a great deal is said about it. It does not occupy a great space in the popular newspapers, but the fact is that for years past, whether in the form of citizens' advice bureaux or what is called the "poor man's lawyer," there has been a sustained effort made by people of good will who are qualified to do it, to represent those who believed that they had a grievance that could he redressed in law, who were doubtful as to what their rights and wrongs were in the matter and who felt that they could not either run the risk of litigation or face the expense of it. When I was first starting at the Bar, I knew the poor man's lawyer system in various centres in the East of London. My own interest happened to be at Toynbee Hall. Once a week, or oftener (I think perhaps my noble friend opposite will also remember it), as young men we did what we could to advise—in my case not always with complete knowledge of the law relating to rent and similar problems—old women and impecunious individuals of either sex, sometimes extremely garrulous people, as to whether they had or had not a case, and whether they ought or ought not to expect the magistrate or county court judge to come to their rescue.

One of the great difficulties was that every now and then you had before you some obviously sincere and earnest person who had absolutely no claim at all to assistance from the law, but who was firmly convinced that it was nothing except his own poverty or the obscurantism of the judge which deprived him of the relief to which he thought he was entitled. It is the most trying thing to have to do, but I know very well that these systems of poor man's lawyers in various centres, and the now much wider citizens' advice bureaux all over the country, have done a great deal by private effort to help in these cases. But that is not enough. It does not cover the whole country; it is inevitably spasmodic; it is not properly organised. And in order to make these essential services successful, the work must be undertaken in the way provided for by this Bill.

Then came the idea that we should have an Inquiry. The Lord Chancellor has spoken very kindly of my part in initiating it, but the idea occurred to many people, and we were fortunate to get together, under the chairmanship of Lord Rushcliffe, so admirable a Committee. They not only went into this business thoroughly, but did the whole thing within twelve months; and, what is more important, they produced an absolutely unanimous Report. Those are very strong recommendations. I am speaking solely of England and Wales because I believe, for reasons which may appear hereafter, that in Scotland there are some considerations which may require to be most carefully weighed before a similar provision can be considered suitable in that country. It may be that the Scots are much in advance of us Southerners in the arrange- ments which at present exist. I am speaking merely of the situation south of the Tweed.

The most important thing in the whole of this Bill is indicated by its title. It is not merely a legal aid Bill; it is also a legal advice Bill. It would be wrong to wait until there was litigation and then to assist one side or the other in the controversy in court. I believe that some people are so ill-informed as to suppose that a competent and a good lawyer spends his life in encouraging people to litigate. I must say that my own experience, such as it is, is that it is much more difficult to persuade people not to litigate than it is to promote that natural pugnacity which so many British litigants display. Nothing is more difficult than to persuade a citizen that the better thing to do is not to go to court. I have often heard people say that there are only two rules for litigation: the first is, if you are wrong do not litigate; and the second is, if you are right do not litigate. That is carrying the principle too far, because quite often very important individual rights are involved. But it is most important, apart altogether from giving legal aid, as this Bill does, that there should also be available under proper conditions, such as the Lord Chancellor has described, preliminary legal assistance. That is the part of the Bill which I believe is going to do an immense amount, both in relieving people's doubts and their anxieties and, I hope, in promoting a better spirit of general citizenship among people of all kinds in the country.

Everybody who has been or is Lord Chancellor knows well that nothing is more pathetic than the contents of the post-bag which he receives from a series of correspondents, individuals who detail at great length, without knowing what they are about, their imagined grievances, However sympathetic one may feel, it is often almost impossible to understand what they are driving at. And, when it is all finished, the best one can do—because it is not right to throw these letters into a waste paper basket unless they come from people who are manifestly out of their minds—is to tell them that they must not attach so much importance to whatever has upset them, that it is better to try to put it on one side and set out bravely with whatever is available for the future.

On the other hand, consider the case of the man or woman of limited experience and small resources who receives a writ or a demand from somebody, ail of which seems very mysterious and far away from anything that he can be expected to comprehend. Such a person often does not know whether or not he should pay or should resist. In these days (I am glad to say they are not the days when I used to help as a poor man's lawyer, for I should be less qualified than ever), when one of the controversies deals with the proper application of the various Rent Restrictions Acts, the problem is a very difficult one. Nothing can be more important than that there should be available, as a matter of good citizenship and good democracy, advice which will help people of modest means in these circumstances to understand their rights. The number of people who write to say, "This may not be the law, but it ought to be equity," when they have not the slightest glimmering or notion of what equity means, is deplorable. One of the great merits of the Bill is that it will help a large number of decent fellow citizens of ours to understand better than they do now that the law is a sensible thing, and that often the best thing to do is to act reasonably and not to fight. The more that is achieved, the more will people of that sort understand that we are all fellow citizens and that the claim on the other side, if it is a reasonable claim, ought to be met. In this way we shall diminish very much, I hope, that occasional sense of bitterness which really arises from a misunderstanding of the elementary idea that the law of England is a sensible thing. If it is not sensible, it is the fault of Parliament, because Parliament has not made it as sensible as it ought to be.

There is another difficulty on this subject which I have mentioned before, because we had several debates on this subject before my noble and learned friend the Lord Chancellor was in a position to introduce this Bill. The truth is that it is much more difficult to organise a system of this sort in the case of legal advice than it is in the case of some other advice. There is a great difference between medical advice and legal advice, and I draw a parallel. One of the differences, I believe, is that there are a certain number of people who want to go to a doctor when they are not ill—a case of le malade imaginaire. There are not many of those people. I have been told that nowadays people like to put themselves on a doctor's list in order to have a chat with him, but from what I have heard recently of the ordinary medical practitioner's activities he has not much time to chat, and I should suppose that to be a passing phase. But the trouble about the law is that there are so many people who, not understanding it very well, think that in law or equity they have a claim when in fact they have not; and there are people who think they ought to resist something when in fact they ought not. It will take a great deal of patience and good sense on the part of the people who are to serve on these committees which the Lord Chancellor is organising, to send away an applicant content with the advice that is given him. I am sure that we all hope they will be able to discharge that task and give a great deal, not only of wise advice but of satisfaction, to the decent, humble citizen who does not always quite understand the reasons for it.

Therefore, my Lords, I do not seek on this occasion to criticise in any way the clauses in this Bill. There are one or two things which occur to me which it may be appropriate to raise at the Committee stage. I content myself by saying, first, that I feel sure that Lord Rushcliffe and his colleagues will now feel that the work which they did some years ago is being rewarded; and, secondly, that we all wish most warmly to congratulate the Lord Chancellor on finding that it is possible for him, with the authority of the whole Government, to bring forward this Bill. It has already passed the House of Commons, and I do not doubt that it will be on the Statute Book in a very short time. Lastly, I would say what I feel most deeply—that if we are aiming at a true democracy in this country, it is not enough to boast about the language of Magna Carta; it is not enough iio say that our Judges are impartial; it is not enough to say that people may trust to the fair administration of British law. If we Want to make this country a real democracy we must take steps to secure that these principles of justice, protection and remedy are available to all people alike, and that it does not depend on whether they are personally able to afford it.

It will always be true that great and important bodies, great corporations and other important interests, will be litigating on quite a different scale. It is right that they should, of course, because very important issues may depend on decisions reached, especially in a country where we have the principle—and I am glad that we have—which recognises that there are such things as precedents in law and that, once a principle is laid down, that principle has to apply in other cases clearly within its limits. There is no other way, in my belief, in which we can secure impartial judgment between one man and another. If impartial justice is to be secured, however, it is essential to ensure that, in practice, it is just as easy to get it if you happen not to be a person of much substance as if you happen to be a person who may regard it almost in the light of a luxury. Therefore, the Lord Chancellor, when he says that this is not a Party measure, is right. The reason why not many noble Lords are present is not that this is a Bill which deals with a technical subject but that there are very considerable attractions outside, one of which, no doubt, many of us hope we shall be able to attend before stumps are drawn. I most earnestly commend this Bill to the House and I believe that we shall do a very good thing when we put it on the Statute Book.

5.3 p.m.

THE MARQUESS OF READING

My Lords, I rather hesitate, after the portentous hint which has been dropped by my noble and learned friend, to say anything at all upon this subject! But we do view with so much satisfaction the fact that this Bill has at last reached the House that I cannot let the opportunity pass without saying a few words. I would begin by saying that that satisfaction is most profoundly shared, I am sure, by the noble and learned Viscount who sits on the Woolsack. There are those of us who, over a period of time, have pressed for the earlier introduction of this measure. We were always assured that in the matter of priorities there were other measures which must take precedence over it. Maybe when those measures appeared we did not always agree that they were of greater importance or acceptability than this particular Bill. But, at last, we now have this Bill, and I pause only to say how genuinely we regret the absence of the noble Lord, Lord Rushcliffe, whose name is associated with the Report upon which the Bill is founded. Not only upon this occasion we miss from our midst a wise and kindly personality who enjoys the affection of us all, and we trust that it will be no long time before he is restored to us in this House.

Deep as may be our veneration for the system of English law, we have at the same time to recognise that, in many respects, it is both too complex and too costly. This Bill does not set out to remedy either of those two fundamental defects. What it does, to a large extent, is to ensure that no person shall be denied access to the courts on the ground of expense; and that is already a substantial advance. Some attempt has been made elsewhere to appropriate to the present Government the full credit for this measure. That attempted "robbery with violence" would certainly not have the approval of the noble and learned Viscount who sits on the Woolsack, for we must all acknowledge the rôles played in this matter, first by the noble and learned Viscount, Lord Simon, who, as Lord Chancellor, appointed this Committee, and secondly, by the noble Lord, Lord Rushcliffe, and his colleagues who so effectively discharged their mission.

I think that the main administrative structure of this Bill will greatly commend itself to the House in general, for it has been wisely decided to commit the administration to the two representative professional bodies, the General Council of the Bar and the Law Society, rather than to hand it over to the mercies, tender or tough, of Whitehall, which might, conceivably, be regarded as laying the foundation stone for the ultimate erection of an unwieldy and unwanted Ministry of Justice. This Bill will confer a boon upon a large number of people, and I hope that in its early stages the machine will not be overloaded. It will require a thorough and careful organisation if the committees responsible are not to be submerged by a torrent of applications and applicants themselves are not to be disappointed by the consequent delays involved. In some respects, as it comes to us, the Bill is not very dissimilar in form to the National Health Service Bill at the same stage of its development. It consists, so to speak, of a rather small, built-up area, contained in the clauses of the Bill, with a large undeveloped tract to be subsequently covered by resolutions introduced from time to time by the noble and learned Viscount who sits on the Woolsack or, at least, by the Lord Chancellor of the day. It is not easy, therefore, to form an appreciation of the entire working of the measure, for at this stage we can judge it only on the broadest grounds.

There are, perhaps, four points upon which some criticism might be directed. The first is that it arbitrarily excludes from the sphere of legal aid and advice certain causes of action, though it is true that, under the powers conferred on him, the noble and learned Viscount who sits on the Woolsack could at a subsequent stage extend the scope of the Bill so as to bring in those forms of action which are at present excluded. The second point which has received some criticism has already been alluded to by the noble and learned Viscount. That is that the scheme applies only to the actual courts of law, and does not extend to the multifarious judicial and quasi-judicial tribunals that now exist and are being rapidly multiplied.

The third criticism is possibly peculiar to myself. It is the apparent complexity of the almost algebraic formula by which the calculation is made as to whether a person is or is not qualified to receive legal aid, or to what extent he may be called upon to contribute towards the expenses. As regards the latter point, I am ready to concede that it is merely because I am the most inept of mathematicians that I regard the formula with some dismay, and I do not doubt that the National Assistance Board, in considering the matter, will rapidly become proficient at the calculation. As regards the exclusion of tribunals, I am reluctantly prepared to accept the position that, on practical grounds, it is necessary to exclude them because of their character and multiplicity. After all, there are only a limited number of members of the Bar and of the Solicitors' profession and they cannot be expected to give their entire time to the working of the legal aid scheme.

As regards the exclusion of certain classes of action, I may say that I have no deep affection for actions for breach of promise, or for enticement or seduction. I have always regarded proceedings by a common informer as a sort of legalised "smash and grab," and if they are excluded from the Act it will cause me no great pain. But I confess that I have very considerable doubts as to the justice of jettisoning from the Act actions for defamation. They may sometimes be trivial, sometimes speculative, and sometimes even blackmailing; but there remain a residue of cases in which a man may have sustained a really grave imputation upon his good name. So long as these cases exist, in my view the legal aid given by this Bill ought to extend to them. A man may suffer a relatively slight injury to his body in a motor-car accident and, given the other conditions, he can come and ask for legal aid in order to prosecute an action to recover damages for that injury, however slight it may be. He may suffer a grave injury to his reputation, yet under the Bill as it stands he may not apply for legal aid in order to vindicate his name. It is all very well to indulge in facile talk in this matter about "over the garden wall" slander. Even slander uttered over the garden wall might have the most serious repercussions upon the life of a small village, and might, indeed, render almost unbearable the life of an individual in that village. Yet under this Bill he is to receive no encouragement in the way of legal aid to clear his name. It seems to me that the Bill should be extended to include defamation, and that the task of deciding whether an action is so frivolous that it should not receive legal aid is one which should devolve on the Committee whose business it is to issue certificates. Certainly I think it should not be ruled out ab initio as a matter for which legal aid cannot be given. I do not want to elaborate that point at this stage, although it may be necessary to discuss it in more detail in Committee.

I have adverted to these points of possible criticism, and to points on which criticism has been made elsewhere, merely because we want to make a good Bill into the best Bill possible. I am confident that both branches of the legal profession, who have given invaluable and ungrudging assistance in the promotion of the existing system of legal aid, will fruit- fully combine to ensure for this new scheme the maximum success which it deserves.

5.16 p.m.

THE LORD BISHOP OF NORWICH

My Lords, I should like to address myself, and ask the House to address themselves, to one particular matter not mentioned so far in the debate. But at the beginning may I be allowed to join with other speakers in a word of general welcome to, and appreciation of, all that this Bill sets out to do. It is true that it deals with procedure rather than with principle, but it rests on a very great principle—the principle of helping people who through no fault of their own are unable to help themselves. I think it is entirely right that the Lords Spiritual of this House should be represented in welcoming such an enactment. For years I worked in a big working-class parish in South London. Cambridge House was actually in my parish, and I was able to see at close quarters the development of what has been mentioned to-day, the poor man's lawyer—a magnificent piece of social service which I am certain has done a great deal to diminish litigation and, where there has been a real grievance, to give sound advice to people in trouble.

This Bill—as I think the noble and learned Viscount the Lord Chancellor has conveyed—is an extension of the same idea, perhaps partly inspired by the success of that great effort of voluntary service. But I think there is some real ground of fear that in one particular class of case, in which I have a particular interest and, perhaps, some knowledge, this Bill might prove to be not a help but even, to some extent, a hindrance. I should like to recall to your Lordships another great Report issued of late—namely, the Denning Report. I would remind your Lordships of the emphasis which that Report laid on the endeavour to prevent unnecessary cases in the divorce courts by the developed use of the recognised means of reconciliation. The Report based its recommendation on the Statutory Procedure (Domestic Proceedings) Act, 1937, and urged that the existing use of probation officers should be extended in regard to matrimonial cases. The consequence of that recommendation is well known to your Lord- ships. Commonly, when minor matrimonial disputes are brought before the magistrates—perhaps it is a wife desiring to apply for a separation order, or the like—the magistrate advises her to consult with the probationer officer. He sees her, talks the matter over with her, brings to bear personal influence, sympathy and the rest. The result, we are told, is that in some 50 per cent. of the cases reconciliation takes place and nothing more is heard in court about the trouble.

I may be entirely wrong but, as I understand it, that whole system is ignored by this Bill. I am dealing, of course, not in the least with legal aid but very much with the legal advice side of the Bill. From start to finish there is no mention made of the probation system or of the probation officer. The implication seems clear that, so far as the use of probation officers is concerned in these matters of reconciliation, persons will in future be referred rather to the area legal committee. That will mean removing these classes of case from the sphere of personal influence into that of legal action, which is surely not what we should wish. I understand that attempts were made in another place to introduce Amendments into the Bill to meet this kind of objection, but obviously it is difficult to insert in what is intended to be a general enactment special provisions to meet certain classes of case.

I should like, however, to urge that consideration should be given to the possibility of inserting into the Bill some such statement as "This Act shall not be taken to limit, or to derogate in any way from, the powers given to a court by the Statutory Procedure (Domestic Proceedings) Act." This may seem a small point to bring up at this stage in the Bill's consideration, but surely, as we think of the wider issues of national life, that is not so. There is nothing, I venture to think, that so gravely threatens the whole moral fibre of our nation at this time as the decline, almost the disappearance, of the belief in the lifelong obligation of marriage, and the consequent increase in divorce cases, the broken homes and the wretched children deprived of what is right in their home surroundings. Therefore, records of marriage reconciliation and marriage guidance have come into the forefront as one of the most important elements of our social life. Efforts are increasing everywhere. Obviously they are meeting a very real need and are having a great effect. The secret of their success is always the taking out of these matrimonial disputes from the area of legal and court action and basing them fairly and squarely on the idea of social personal counsel and advice. If the present Bill were to weaken in any way that development, it would surely be a disaster. There must be many besides myself who feel that it should be made clear in some way—either by Amendment or by some declaration by the Lord Chancellor—that that is not in any way intended by this Bill, but that, on the contrary, the value of all that development is fully recognised, and that every support should be given to all the work so patiently and bravely achieved by our probation officers in the sphere of reconciliation.

5.25 p.m.

LORD MANCROFT

My Lords, I will not stand long between your Lordships and your 59 bus, but I should like to say a few words of welcome to this Bill. I would say at once that although I myself am a member of the General Council of the Bar I have no right to speak on behalf of that Council, and I speak solely on my own authority. There are very few criticisms that can be levelled against this useful and welcome Bill. The noble and learned Viscount on the Woolsack mentioned the question of the grant of certificates in civil cases. I think that matter has not yet been cleared up satisfactorily, and we may hear more about it during the Committee stage. We may also hear more about the question of taxation of costs in magistrates courts.

I should like to join with the noble Marquess, Lord Reading, in his regrets that the Bill has not been made a little more extensive. The noble and learned Viscount the Lord Chancellor was rightly cautious in not wishing to extend the Bill too widely before we see how it will work. I do not think we shall be so flooded out with litigation as some people expect, but we are right to go cautiously. I hope the noble and learned Viscount will see his way in due course, by the method he described, to extend these provisions—certainly to defamation, as was mentioned by the noble Marquess, Lord Reading. But I hope he will do nothing to extend these pro- visions to actions for breach of promise of marriage, which I think should have been abolished a long time ago. I certainly as a taxpayer am not prepared to finance some "gold-digger" who wants to get her claws into the man who has been lucky enough to get away from her in time.

With regard to the extension to other courts, I see the difficulty in respect of bodies like rent tribunals. I would, if I may, remind the noble and learned Viscount on the Woolsack of a case which was heard in the courts a short time ago—namely, Rex v. Chancellor of St. Edmundsbury (ex parte White), reported in 1948, I King's Bench, page 195. It was a case which ran far two days before the Divisional Court and for nine days before the Court of Appeal, and it concerned certain ecclesiastical considerations. That case would not have been covered by the provisions of this Bill. It seems to me that a case of that importance is worthy of consideration.

I have only one other criticism to make. So far as legal aid goes, I think the Bill is admirable. But I am not so happy about the legal advice. Perhaps I may give your Lordships one practical consideration which may show what is troubling me. At the moment I and a small Services charitable organisation with which I am concerned are trying to clear up the affairs of four ex-Service men who on demobilisation entered into a partnership agreement in a window-cleaning business. The business thrived. The brains of the business, the senior partner, then decided to emigrate. Unfortunately, the partnership deed was only on the back of an envelope, and it lacked that precision and that rotundity which the conveyancer seeks to achieve. The chats that will arise out of this, with all the wives squabbling as well, will mean a full-blown partnership action in the High Court, for which the taxpayer will now have to pay. Had the original partnership deed been properly drafted this litigation would never have been necessary. As the Bill stands at the moment I am not certain whether it is possible, either under Clause 5 or Clause 7, for the legal advice envisaged there to be carried so far. I hope in due course, therefore, when we see how it works, that we shall be able to extend Clause 7 a little further. It has been argued that in cases such as the making of wills, the drawing of convey- ances and partnership deeds, the estate or property should bear the costs. I do not think that is a logical argument. However, I do not press the point, because I want to see how it will work.

In conclusion may I say this? This Bill has been compared—rightly, I think, in some respects—to the National Health Service Act, to which it is said to be complementary. It differs from the National Health Service Act in one important consideration, in that the negotiations which preceded this Bill were of such a nature that the Bill is launched in an atmosphere of the greatest possible good will, with all branches of the legal profession eager to make it a success. I would like to emphasise one point, which has been made once or twice in this debate. It is held by some people nowadays that before the National Health Service Bill became an Act there was no free medicine and no free doctoring for any poor person—a poor reward for, and a great insult to, the thousands of doctors and nurses and laymen who laboured staunchly on behalf of the poor for very many years. People have forgotten that. Let it never be said, after this Bill becomes an Act, that there was never any free law for poor people before, because that would be a grave insult to the many voluntary bodies who have laboured long in the cause of legal aid for poor people. That is all I wish to say. I warmly welcome this Bill, and hope that it will not be long before it is a workmanlike and successful Act.

5.32 p.m.

LORD CALVERLEY

My Lords, I agree with the noble Lord who has just resumed his seat that we owe a debt of gratitude to the Law Society and also to the Bar Council, for they, like the doctor, when called upon to give their services in the past, have done so generously. I agree with the noble Lord opposite that he should never allow that to be forgotten. I wish for a few moments to put the point of view of the working magistrate and of the magistrates court. When the Royal Commission on Magistrates Courts, of which I was privileged to be a member, sat, we were told that 99 per cent. of justice in this country was administered by the magistrates courts. I confess that, whilst I see no difficulty in these panels and regional committees, such as the one at Leeds which is to legislate for, say, Sedbergh in North Yorkshire and Bawtry in South Yorkshire, I see great difficulty in their advising clients in the county court and in civil actions in assize courts and higher courts.

I am really concerned as to what is to happen to the magistrates courts where we have a sort of not only perambulation but circulation of these poor women who are going to appear before the courts. If your Lordships will permit a personal note, I may tell you that on Saturday—an easy day—before the court sat I sat in private as an interviewing magistrate and heard fourteen cases, most of them applications for summonses. I had the assistance of a most able justices' clerk, and between us we simmered down those fourteen cases and granted summonses in only three of them. We used our discretion whether we should call in the probation officer or whether we should call in the police court missionary—a service which is, I believe, run by the Established Church and which does great credit to them. In a town like mine, with 300,000 inhabitants, we value that police court missionary for certain types of case and the probation officer for others.

Out of those fourteen cases we granted "illegal" aid to one case—because we are not allowed to grant legal aid to matrimonial cases. But we did it, because we knew that we had a rota of local solicitors willing to do the work for nothing, and, therefore, we could grant aid with confidence, without incurring the displeasure of my noble and learned friend on the Woolsack. But if you multiply those fourteen cases on an easy day, you get something like 4,500 cases per year. They are chiefly matrimonial cases. But I want to emphasise that out of those applications, only about 25 per cent. ever come to court at all, because I agree with the right reverend Prelate that our problem is to reconcile the parties and to try where possible to prevent divorce cases and separations. Your Lordships will realise that we do that in a goodly number of cases when I tell you that only 25 per cent. come to court at all.

But I want to put our predicament to my noble and learned friend on the Woolsack, and I wish to give your Lordships a few figures. In the recent six months we had 390 applications under the Married Women's Act; we had seventy-nine cases of bastardies and sixty-six cases under the Guardianship of Infants Act. In some of those cases, especially under the Married Women's Act, if legal aid is going to be worth twopenn'orth of cold gin—which you cannot get for twopence!—if it is going to be worth a grain of salt, you cannot afford to wait for legal aid to come round from Taunton to Bristol, or even, I suppose, from Land's End to Bristol. I will give a case in point. 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 moans, and she was starving. 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. The woman was given legal aid, and justice was done.

Take bastardy cases. I sometimes alternate my sympathies with the woman—or girl, as she usually is—and sometimes with the man who does not know the facts of life. But sometimes I think that both sides in bastardy cases should be legally represented. What have the magistrates to do? There is no urgency, because the case can be adjourned for a week or a fortnight. The point I am trying to make about these human problems is that we shall not get a woman to go before the covey of conveyancing lawyers who will largely make up the panel. She will be frightened to death of them—as I should myself. Therefore, I appeal to the Lord Chancellor to see that his regulations can be stretched and altered. I should like to make an earnest appeal that he shall give a magistrate the same privilege to grant legal aid in civil cases in the magistrates court as he has at the present time when he grants legal aid in a criminal case.

We want these lawyers to be recompensed. In nearly every large town in this country there is a rota of men who practise in conveyancing work but who are scarcely even seen in the magistrates courts. In this panel of solicitors and barristers, however, we have a body of men who are ready to give their services free if necessary. We want them to be fully recognised and to be available for use not only in criminal cases but in civil cases also—especially matrimonial cases.

I may have a wrong idea of what the Rushcliffe Committee is and what it has done, but, as I understand it, the Committee recommend that a magistrate who hears an application in court or in private shall have the power to grant legal aid, so that justice shall be done expeditiously. I venture to suggest to your Lordships that if you wish this Bill to be a success there must be greater speed; the law must work more quickly than it would with the sort of regional committee which the Lord Chancellor has outlined. I suggest that a suitable body would be a legal committee of the Law Society, presided over by a magistrate who knows the job. I should make the justices' clerk, where he is a whole-time clerk, the secretary of the legal panel, so that a proper panel could be drawn up.

The Bill provides a right of appeal for a solicitor or barrister who suffers under a sense of grievance. I submit the case of the working magistrate. I do not think there is any reason to apologise for his existence. I am asking for bare justice for the lay magistrate in the giving to him of power to grant legal aid in civil cases in a magistrates court, just as at the present lime he has the right to grant legal aid in a criminal case. I wish my noble and learned friend on the Woolsack would reconsider the matter, for many of us are rather disturbed about the position as it stands in the Bill at present. We are seriously disturbed, whatever our admiration may be for many solicitors and barristers known to us. I hope it may he made possible for magistrates to carry on with this good work in civil cases as in criminal cases. I beg the Lord Chancellor to ensure, in this way, that magistrates courts shall continue to dispense justice with expedition and with human understanding, grounded on the great English cardinal virtue of common sense.

5.45 p.m.

LORD SCHUSTER

My Lords, I fear your Lordships may think it is superfluous for me at this time on a warm afternoon to delay you further from giving your approval to a Second Reading on this Bill. But there are several reasons which make it difficult for me to be silent. In the first place I should like, without any disrespect of any kind to the noble and learned Viscount on the Woolsack, to reinforce the observations which he made about the Rushcliffe Committee. This Committee's Report would never have taken the shape it did, and perhaps would never have taken shape at all, had it not been for the extreme care and tact of Lord Rushcliffe as Chairman. Again and again he has devoted himself to work of this kind, without reward or hope of reward. He is an admirable Chairman, completely impartial and possessing great skill in dealing with his colleagues. These qualities mark him out, in my opinion, as a suitable man to preside over a committee or commission of any kind. Most unhappily, he cannot be here to-day, and I fear there is no prospect that he will be here during the Committee stage of the Bill. But he asked me to say that, having read the Bill, he sees nothing in it to which he would object.

I cannot refrain from making one or two other observations. As to Lord Calverley's point it is true that we recommend that in these cases legal aid should be given in magistrates courts by magistrates. I do not want to argue the matter now. It is a Committee point; and I am prepared to listen to arguments on the Committee stage and, if it comes to a Division, to vote whichever way the arguments lead me. I can see the great advantages both of Lord Calverley's proposal and of the proposal in the Bill. I have always had a preference for giving this power to magistrates, but when you consider the rather careful structure of the area committees and the area panels it is not surprising that there is uncertainty in many minds on the matter. My own mind is completely open.

I should like to say a few words about the observations made by the right reverend Prelate. I cannot see anything in the Bill, and there was certainly nothing in the minds of member of the Rushcliffe Committee, calculated to exclude the operations of a probation officer. I cannot see why such action should not be just as open to magistrates in the future as it has been in the past. But the right reverend Prelate talked about certain cases as if, when once the matter got into legal hands, it was inevitable that it would progress to combat and perhaps separation or divorce. In a long experience of divorce matters I have come much into contact with solicitors engaged largely in divorce, and I have always found that their first, and perhaps their last, efforts were directed towards reconciliation. Not long ago I had only too close a connection with a certain divorce case in which the solicitor told me that when he entered the firm the senior partner said to him, "Now remember, our first duty is to preserve and not to break marriages." I think that that may console the right reverend Prelate.

I am grateful to the Lord Chancellor, as he will well understand, for having introduced this Bill. I was a humble member of the Rushcliffe Committee, and it has subsequently been my happy task to preside over other bodies concerned with this same matter. It is true that the Bill will mean the expenditure of a great deal of money, but I do not see how that can be helped. I have always struggled against the expenditure of public money if it could in any way be helped; but I am satisfied that on this particular occasion it cannot be helped. We had very stern and stiff lessons in the war, when we had to deal with Service divorce cases. It had become apparent, first, that the morale of the Army could not be preserved unless some special and costly arrangement was made for dealing particularly with matrimonial offences in connection with the troops; and, secondly, that that must be a matter upon which we should have to rely almost entirely upon the action of the Law Society.

That brings me to this point. I do not think the noble and learned Viscount the Lord Chancellor intended to suggest that, until the Services divorce department was set up, the Law Society had but little to do with poor persons' litigation. Now that we are, as I hope, in sight of the creation of a real, efficient instrument, I think we ought to remember here the action of those who laboured in this cause in the past. In the first place, I mention Lord Cozens-Hardy, owing to whose actions the poor persons' legal services were first brought into operation in 1914. I should like to mention the Law Society, not only for their setting up of the Services divorce department, but for their constant work in respect of this matter ever since 1914. I should like to mention certain individuals, some of whom are now dead. The old poor persons' department failed finally in its object, being operated upon in its infancy by the First World War, and again later in its old age by the Second World War. While it lived it was a success, which was due largely to three men whose names I cannot help mentioning—the late Sir Roger Gregory, the late Sir John Withers and the late Sir Reginald Poole, to all of whom we owe a debt of gratitude.

I cannot refrain from adding also the names of those who before the Rusheliffe Committee was appointed devised the very system which we are now discussing. Among those are the present President of the Law Society, Sir William Gillett, and Mr. Littlewood, who first conceived this sacrificial act on the part of the Law Society. Individual members of the whole community ought to be grateful to them for the immense labour which they have put into it, and for the risks that they have incurred in doing so. I have said all that I have to say, except that I welcome the Bill so far as magistrates are concerned, and where the Lord Chancellor's proposals differ from those of the Report of the Rushcliffe Committee I accept the Lord Chancellor's proposals as an improvement. Like the noble Lord, Lord Mancroft, I am not immediately wanting to extend this further than it need be extended. It is an experiment, and it is desirable that we should start slowly and carefully lest we should wreck the whole scheme by inordinate expenditure and a too great strain on the administrative machine. Therefore I welcome both the compressions which the Lord Chancellor has indicated. If there be any other matter which the Lord Chancellor has indicated as being different from that which we proposed, I am sure it is an improvement on our proposals. I do not think that the noble Lord, Lord Rushcliffe, would complain of my saying that, because he said that he saw nothing to object to in the Bill. With that, and with apologies for keeping your Lordships, I sit down.

5.54 p.m.

THE LORD CHANCELLOR

My Lords, I am grateful for the reception which has been accorded to this Bill. May I deal first with the matter raised by the right reverend Prelate? I entirely agree with him that, if we were doing anything in this Bill to limit, handicap or restrict in any way the reconciliation work in regard to the matter upon which both he and I feel so strongly, it would be a great misfortune. Not only would I not want to do that, but I desire to extend that work in every way I can. I believe that this marriage guidance work is most useful but, for the reasons which I have given, I am not willing that it should ever become a public service. All we can do is to make a contribution to the excellent work that is being done. That we shall continue to do. I am certain that the time for a reconciliation is before the people have got, as it were, set and have made up their minds what they intend to do. It is a question of timing. Therefore, we have had to consider the position of the probation officer. The right reverend Prelate may like to know that the Home Secretary and I are proposing to amend the existing rules relating to probation officers so that their services will he available alike to legal advisers and to local committees under this Legal Aid Bill. I shall urge the Law Society—and I am sure I shall not urge them in vain—to see that their committees make the fullest possible use of the services of the probation officer. I think that this will improve the chances of reconciliation.

At present, the services of a probation officer become available only when a husband or wife applies to the magistrate for a summons. When this scheme comes into operation, this service will still be available at that stage, but it will also be available before the decision to take out a summons has been taken, when the spouse is merely inquiring into the legal position from a legal adviser, or is asking legal aid preparatory to taking out a summons. The probation officers will thus be able to give their help at an earlier stage than hitherto in matrimonial disputes. I am sure that your Lordships will agree that the sooner they intervene the better. I think that that statement gives the right reverend Prelate what he wants, and he can go away now and catch his train in the sure and certain knowledge that he and I, at any rate, are at one in attaching the greatest importance to the work that these probation officers are doing. He may rest assured that there is nothing in this Bill that is going in any way to limit that work. By the alteration of the rules which I have indicated, I hope that not only will their work not be restricted or limited, but that it will be greatly extended. That being so, I think I can send the right reverend Prelate away happy.

I am sorry to say that I cannot send the noble Marquess, Lord Reading, away quite so happy with regard to the limitation of actions for libel or defamation. Frankly, the great danger that I see about this scheme at the present time is that it may prove too expensive. It is idle to think that we are in a position now when we can rightly contemplate taking on still further expense. It is true that this is only £2,000,000, but that £2,000,000 may be the last straw; and the taxpayer is the poor camel. I am really apprehensive about the expense of this scheme. I may be unduly pessimistic. Experience may show that many people do not want to rush and buy legal spectacles, as I said before, but I would rather go slowly and see how it starts. If and when I can come to your Lordships asking for an extension and seeking your approval to an order, I shall be delighted to do so. I agree that actions for defamation may be of a very serious nature and, before coming to the conclusion that for the time being I would exclude them, I looked back on past experience. I find that it has been most rare—I will not say it has never happened—under the existing scheme, which has now been running for a long time, that any person has obtained legal aid in bringing an action for defamation. Further, the actions have this peculiarity. Although in all cases it is difficult to form any appreciation of the true position when you hear one side only, for it is only one side that you can hear, yet more especially is that true in defamation cases. It is exceedingly difficult, on hearing one side only, to make up your mind whether or not it is a good case. Therefore, I beg of your Lordships to be content to walk humbly and to go slowly. Let us see how we get on. I shall be delighted if in the near future, when I see how this scheme works, I can take the necessary steps to bring in defamation. Defamation is not out permanently; it is merely out temporarily so that we may see how the thing works.

Lord Mancroft asked about that, and he also spoke about the drawing up of wills and partnership deeds. That is not within the scheme. We do not contemplate that that should be done. In the vast majority of cases where people are going to have deeds and documents of this sort drawn up, they ought to pay for them, and we do not want it to be done at public expense. In regard to the difficulty of calculating disposable income and the various considerations which the Assistance Board apply, it is no good the noble Marquess saying that he is a bad mathematician. That is a gambit I use myself, and we are perhaps too lazy to apply ourselves to the principles which they operate. If he would come with me for an hour's instruction in the relevant art by some official of the Assistance Board, we should both come away sadder but wiser men. The only difficulty is to find the hour to go.

Finally, I come to the point raised by my noble friend, Lord Calverley. I quite see the difficulty which he enunciated, but he will, I think, agree with me to this extent. As a magistrate he has never before given legal aid in civil matters or quasi civil matters, such, for instance, as bastardy or affiliation, and that sort of thing. He has given legal aid in criminal cases, but not in civil cases. Then I believe he will go further with me in this matter. We have decided that those matters should fall into the civil scheme and not into the criminal scheme. If they fall into the civil scheme, then they must follow the procedure and machinery of the civil scheme. Does he see what the drawback is? He cannot, as a magistrate, decide whether or not to grant legal aid in a civil case unless he hears something about the case. Perhaps to a certain extent he must mildly cross-examine to find out what the facts are or what they are alleged to be. As a judge who is going to decide this case, does he not see that it is most undesirable that he should place himself in a position—as he must—where he is to hear in advance the case expounded by one side, and one side only? That is inherent in the nature of things. If the magistrates are going to grant legal aid in civil cases they must hear the case, and they must hear it presented from the point of view of one person and one person only.

LORD CALVERLEY

Would my noble and learned friend forgive my interrupting? What would happen if there were a different Bench of magistrates to try the case, the magistrate who is granting legal aid having nothing further to do with it?

THE LORD CHANCELLOR

That, perhaps, might be one way out of it. On the other hand, we want this scheme administered on a more or less equal footing all over the country, and if we are going to entrust this matter to the discretion of the individual magistrates, whose number is legion and whose views and discretion is very different up and clown the country, we shall inevitably get a far greater difference of opinion and principle than if we entrust it to local committees. Therefore, from that point of view I would rather, if I could, put this in the hands of the local committees. But I quite agree that the noble Lord has a real point when he talks about delay and difficulties of that sort. I would call his attention to this: that under Clause 12 (3) (b) of the Bill he will find that I have power to make regulations to deal with those emergencies, so that in urgent cases I can prevent all the delay that may arise through an application having to go to a local committee.

As Lord Schuster has said of his attitude to this position, I too can be approached on this matter. I am quite amenable on it, and perhaps I can be convinced. I have not a very definite view on it, but the bent of my mind at the present time is that we are right to put these matters on the civil side rather than on the criminal side, and if they go on the civil side they should follow the civil procedure. If the noble Lord will rub up his arguments it may be that he will be able to convince me that his scheme is better than mine, but I am bound to say at the present time, having listened to him, that he has not convinced me yet, though possibly he may do so in the future.

My Lords, on all these matters, which are, of course, Committee points, I shall be very ready to do what I can to meet your Lordships. But I believe I am right in saying that these subjects have already been thoroughly threshed out between myself and my officials and the Law Society, to whose help I would like to pay a most deep tribute; therefore, these matters have not been considered lightly, wantonly or inadvisedly. I would like to associate myself with the tribute Lord Schuster paid to those who have "blazed the trail" in the past—great names, some of them very dear friends of mine, and, in particular, the names of two men whom he mentioned who, happily, are still with us, and I hope will be with us for many years to come.

On Question, Bill read 2^*, and committed to a Committee of the Whole House.