§ 4.18 p.m.
§ LORD MANCROFT rose to call attention to the working of the Legal Aid Scheme; and to move for Papers. The noble Lord said: My Lords, the Legal Aid and Advice Act, to the working of which I draw your Lordships' attention this afternoon, received the Royal Assent in this House on July 30, 1949. The main purpose of the Act, in the familiar words of Mr. Justice Darling so often quoted during the Second Reading stage, was to give the lie to the old idea that 867 the courts of law were—like the Ritz Hotel—open to everybody. I should straight away remind your Lordships that this scheme does not provide free legal aid for everybody. Far from it. The only people who can command completely free legal aid under it are people of the humblest means. For others, a fairly stiff means test is applied.
§ At the time the Bill passed into law it was decided that all its provisions would not come into operation at once. The reasons for that are obvious. There was a desire not to overload the scheme. There was a desire to try out some of the more controversial proposals and see whether they would work. There was also the necessity for getting into operation an extremely complicated administrative system. I think it is greatly to the credit of the Law Society, who were largely responsible for this administration, that it was put into action so smoothly and so well, and I should like at the outset to pay my tribute to them. Unlike many of the other social services, this scheme is not run by the State, but by the legal profession, largely by the solicitors and, to a smaller but equally important extent, by the members of the Bar. The Bar Council played an equal part in getting the machinery going. Here I must say that, since I was a member of the Bar Council throughout the whole of these negotiations and am a practising member of the Bar, I have an interest which I must declare at once, and I shall make no further comment on the part played by the Bar in these negotiations. I do not want to raise this matter at all from the lawyer's point of view, but from the point of view of the litigant and the taxpayer.
§ The other reason why the Bill did not come into full operation at once was quite a different one. During the negotiations and the institution of the machinery we had one of our recurring financial crises—I think it was the devaluation crisis, but I am not certain, because they followed so thick and fast upon each other. For that reason, the Lord Chancellor of the day, the noble and learned Earl, Lord Jowitt—who has asked me to apologise to your Lordships for his inability to take part in the debate this afternoon—was compelled to announce that, for reasons of economy, the operation of the Act had to be seriously curtailed. The only portion 868 of the Act it was proposed to put into operation as soon as possible was that which applied to legal aid in the High Court, and the remainder for the moment was put into abeyance.
§ The scheme was finally launched in October, 1950. Therefore, it is only eighteen months since this scheme was initiated, and it may perhaps be thought that it is a little early to examine the working of the scheme and see what improvements, if any, should be suggested. My principal reason for raising the matter is this. Of course, there have been criticisms: both the professional journals and the daily newspapers have launched criticisms, of a varying degree of authority, upon the scheme. But there has also been within the last six months a series of attacks levelled from the High Court Bench upon certain aspects of the working of this scheme which cannot possibly be ignored. Naturally, criticisms from Judges in high places and of great repute attract much attention. It would be grossly improper for me to make any comment upon any of those particular criticisms. I know that each one is examined by the Law Society; and I know that the result of that examination finds its way eventually to the Lord Chancellor. I would make only this remark, in passing: that for one case which is subjected to judicial criticism, there are probably 999 which attract no criticism. A bad case is news, particularly if the criticism comes from a High Court Judge of great repute; the ordinary run of the mill cases are not news. But there have been accusations that the scheme is being extravagantly administered and that certificates for legal aid are being given when they should not be given. The most recent judicial criticism which I myself saw suggested that Parliament might well investigate the matter and see whether the scheme was, or was not, working properly. It is for that reason principally that I thought it would be desirable that your Lordships' should examine the scheme this afternoon.
§ A report on the scheme by the Law Society to the Law Chancellor has also been issued, and one or two interesting facts appear in that report. The only one to which I desire to draw your Lordships' attention this afternoon is this. Of the cases brought to the High Court bearing legal aid, over 75 per cent. have 869 been divorce cases. I must confess that I regard that as a lamentable state of affairs. This is really at the moment a Divorce Aid Act and not a Legal Aid Act at all. But whatever one's views may be about divorce, one cannot overlook the fact that if the legal right is there it should not be denied to a man, or, as in the majority of cases it is, to a woman, merely because they would not otherwise have been able to afford to exercise that right. But, speaking for myself, and, I believe, for one or two colleagues also, in both branches of the profession, my impression is that the scheme is working remarkably well. The first question I should like to ask the noble and learned Lord on the Woolsack is this: Does the evidence—and all the evidence is in his possession—suggest to Her Majesty's Government that this scheme is working well, or does it not? Is it working well from the point of view of the litigant? Is it doing justice to the litigant? And is it doing justice to the taxpayer?
§ I should like for a moment to consider the point of view of the taxpayer. After all, he is in the queer position of financing one litigant, if not two litigants—one of whom is bound to lose—out of his own pocket. The original scheme was I believe, scheduled to cost something over £4,000,000. But that sum was greatly reduced when the scope of the scheme was cut down, and I think the sum which we imagined it would cost—it must have been a difficult thing for which to budget—was in the neighbourhood of £1,200,000. Again, speaking for myself, my impression is that the scheme so far has cost much less than that. That may be a remarkable thing—and particularly to those whose normal picture of a lawyer is of a man sitting and raising his hands in horror at the thought of a lovely estate being frittered away on the beneficiaries. It may also be a matter of curiosity to those of us who think, that this is the only scheme initiated by noble Lords opposite when they were in office that has cost less than the sum they originally contemplated. If I am right in my assumption that it has cost, and is costing, much less than we thought, is it not logical to ask whether some small extension of the scheme is not now possible without any gross extravagance?
§ I should like to suggest two or three ways in which I feel, without gross 870 extravagance, or, indeed, with hardly any extravagance, the scheme might with profit now be extended. I want to refer first to Part II of the Act. Part II of the Act is that portion which deals with the type of case which was always able to attract legal aid. People often forget that for many years a poor man who found his liberty or his life in jeopardy was always entitled to claim some form of legal aid. Part II of the Act, roughly speaking, is designed to tidy up all those provisions. I do not think it is going to cost very much; and I feel that that might possibly be the first of the proposals to be considered for early implementation. The second is connected with the means test, to which I referred a moment or two ago. This is somewhat stringent. I will not attempt to explain it in detail to your Lordships, because I am absolutely certain to get it wrong. But, broadly speaking, it means that if you have a disposable income of £420 a year or over, you are not entitled to legal aid; but if you have a disposable income of £156 a year or under, you are entitled to legal aid—and in between the two there is a sliding scale. These figures, I believe, were arrived at as far back as seven years ago by the Rushcliffe Committee, to which such a great debt is due for the origin of the whole scheme. Seven years ago the pound was worth—well, not a pound; none of us can remember as far back as the days when the pound was worth a pound; but certainly a very different value from what it is worth now. I suggest that some consideration might be given to a slight amelioration of the means test figures.
§ The third suggestion I have to make is this. One of the accusations levelled, and quite widely levelled, against the scheme is that it encourages a form of gentle blackmail. It is, indeed, very hard on the comparatively poor defendant who is not quite poor enough to be an assisted person. If you desire to bring an action, you being an assisted person, against an unassisted person, you may lose the action. The unassisted person may have put his fortune into fighting the case; it may have been vastly important to him. He wins the action, but cannot get his costs, or, at least, has the greatest difficulty in getting them. That has happened in a few cases. It is causing hardship, and attention has been drawn to that 871 matter. That is the third matter that I suggest might well be considered.
§ My last two suggestions are much more important. As I have said, the scheme is confined to the High Court. The poor man seldom finds his way into the High Court. About 80 per cent. of the actions in which the poor man is likely to be involved are brought in the subordinate courts—I leave aside for the moment the rather controversial subject of the many judicial tribunals which have been set up. It is more than likely that he will find himself either in the courts of summary jurisdiction or in what is, after all, the poor man's court, the county court; and in the county court he cannot at the moment get legal aid.
Many questions of great importance and great legal complexity arise in the county courts. The obvious cases are "running down" actions, actions between master and servant, actions with regard to the law of land and, most important of all, under the Rent Acts. I do not know how many of your Lordships have ever had the misfortune to be connected in any way with the Rent Acts. I suffer from a recurring fear, and one day I shall lose my head completely and put down a Motion in your Lordships' House "to call attention to the working of the Rent Acts." Then the Lord Chancellor will never speak to me again. The Rent Acts were described by Lord Justice MacKinnon as "a welter of chaotic verbiage." They were described by a learned colleague, Lord Asquith, in words in which he paid tribute and the reluctant respect that one feels for a "tough" old sparring partner whom one has never been able to knock out. My learned colleague in the law, Mr. R. E. Megarry, in his monumental work on the Rent Acts makes this dedication:
To the draftsmen of the Acts, with awe and affection, and to the county court bench, with a sympathy as profound as it is respectful.
Those, then, are the Acts which are the daily concern of the poor litigant in the county court. I am not quite certain on which side the poor litigant always finds himself, because in recent days three cases arising out of the Rent Acts have found their way into the Court of Appeal in which the assisted person has been the landlord and the unassisted person has
been the tenant. That is an interesting sign of the times, but I think it shows that there is considerable ground for advocating the extension of the legal aid scheme to the poor man's court.
§ The cost?—I myself do not believe that it would be anything like as high as many people have estimated. I have no reasons for coming to that conclusion, but that is the general opinion, and until I have conclusive evidence to the contrary I shall believe that the cost of extending the scheme to the county court would be much smaller than most people imagine. But it is impossible to extend the scheme to the county courts without bringing in legal advice. You cannot advise a man in conference that you think he has a good case and that that case should be brought in the county court, when he has no ability to attract legal aid in the county court. That is illogical. Indeed, there are many people who think that we were putting the cart before the horse in introducing legal aid before we introduced legal advice.
§ Now the introduction of this Act has had one most peculiar and unfortunate result. As your Lordships know, before the war there were up and down the country a large number of poor man's advice bureaux, poor man's lawyers' organisations and all manner of charitable and semi-charitable organisations doing invaluable work. The result of the introduction of this Act appears to have been to place the vast majority of these legal advice centres in jeopardy. Three of the leading ones—I will not make their case more difficult by mentioning their names—are liable to go out of business altogether. Much can be said for the Welfare State, and a certain amount has been said against it. There is, unfortunately, this one fact to be borne in mind: that the Welfare State is sounding the death knell of private charity. Many of these schemes were deriving funds from people who now say: "I am not going on subscribing as a taxpayer to the Act and also to your advice centre." There are many lawyers who will say: "I cannot afford the time to come to your advice centre and also do my work under the Act." The particular advice centre and ex-Service men's centre with which I myself was concerned has had to "shut up shop" for those very reasons. It is a great pity.873
§ It may be a controversial thing to say, but I believe that one of the principal results of setting up these legal advice centres will be not to encourage litigation, but to prevent it. When I was an undergraduate at Oxford I sat at the feet of the great Dr. Stallybrass. He used to give vent to many aphorisms and epigrams, most of them unrepeatable because he was a confirmed and violent bachelor. But one remark he always brought home to his undergraduate pupils was this: One of the principal functions of every conscientious lawyer is at all costs to prevent his client going to law. We did not receive a large number of legal queries at the poor man's lawyer centre to which I have referred. Many of the queries had nothing to do with the law at all; they could have been solved at the Town Hall or the police court, or very often by the Church, because many of them were concerned with matrimonial disputes. That ground for reconciliation has been largely cut away by the decay of the legal advice centres. Outside London, there cannot be more than about twelve available throughout the country. I believe that a good deal of good would be done by bringing the legal advice centre into operation again. I do not believe that it would be anything like as expensive as some people fear.
§ Those are the principal reforms which I would respectfully suggest to the Lord Chanceller should be considered. There are many more of which your Lordships are well aware. They are all printed in the excellent report made by the Law Society to the Lord Chancellor and by the advisory committee under Sir George Aylwen, again to the Lord Chancellor. I will not weary your Lordships with many details, because I think other noble Lords may mention them and they are too small for individual inquiry. Some of them cost money and some of them do not. To conclude, I should like to repeat that I believe the scheme to be working well. I believe it to be a misfortune that the impression should get abroad that the scheme is not working well and that it is extravagant. I do not believe it is. I realise that this is no time to suggest anything involving further expenditure of money. I have great admiration for the scheme. I believe that in its entirety it is a fine project. It is infinitely superior to anything any other country has, but for the moment it is not working as well as it 874 might, through lack of money. I will not press the point upon the Lord Chancellor, and I shall quite understand if he says that all the reforms I have suggested are impracticable from the point of view of finance. I know that every halfpenny counts. But I think it would be a pity if we were to spoil this fine ship for a ha'p'orth of tar—and it is a ha'p'orth, or possibly a farthing's worth—and I now beg leave to move for Papers.
§ 4.37 p.m.
§ LORD GODDARD
My Lords, my noble friend Lord Mancroft has asked me to say a few words on this matter, although I do not profess to be an authority on the subject. I am certainly not one of the judges who have, in a hostile fashion, openly criticised this Act, although in one or two cases I may have expressed doubt as to the propriety of having given legal aid in those particular cases. The first thing I should like to say with regard to this Act is that we all owe a deep debt of gratitude to the Law Society and to the area committees who have to administer this work. It is done freely, and no remuneration is obtained for it. Naturally, there are teething troubles and rather considerable troubles in some cases. Whether or not the Act is, if I may so put it, wisely administered must, of course, depend largely upon the wisdom of the area committees who allot the certificates and who decide whether a case should be supported or not.
One of the matters which I think requires a great deal of consideration is the granting of assistance to an unsuccessful litigant to take his case to the Court of Appeal. I am perfectly certain that, if justice is to be done to the unassisted litigants, those who at their own expense are fighting the assisted litigant, something should be done to prevent what I may call unmeritorious appeals. It is all very well to give a poorer person—a person of small means—assistance to bring his case before the court. If he has had his action brought at the public expense and has suffered the decision of a judge against him, at any rate there is the presumption that he has not a good case. At present, I understand, what is done is that if the man desires to appeal he goes to the area committee, and his counsel, and possibly also his solicitor, is asked to give an expression of 875 opinion. The area committee then decide whether or not to give the man a certificate allowing him to appeal. Many counsel take a rosy view of their client's case—but there is at least a chance that the judge may have been as right as the counsel! I think it would be most desirable to put some check upon the right of an assisted person to go to the Court of Appeal, and there are two suggestions that I would make to your Lordships—I make them after consultation with the Lords Justices.
In the first place, I think that an assisted litigant who loses his case and desires to appeal should, in the first instance, be required to ask the judge for leave to appeal and that the judge, if he refuses leave, should be required, by rule if necessary, to say why. He may say, "This case raises nothing but a question of fact and apart from exceptional cases, the Court of Appeal will not differ from the judge who has tried the case on a question of fact." I think that would be a good reason for refusing leave to appeal. If the judge refused leave to appeal it would still be open to the assisted person, at trivial expense to himself, to make application to the Court of Appeal. The Court of Appeal would know what were the reasons which moved the judge below to refuse leave to appeal. An alternative suggestion that has been made is that an assisted person desiring to appeal should be required to ask the trial judge for leave and that the reasons given by the learned judge for his decision should be placed before the area committee to assist them in deciding whether to grant a certificate of leave to appeal.
It is all very well to say that we want to help the poorer person. Everybody wants to do that. But the litigant against whom the poor person has brought his action has been fighting at his own expense. If an insurance company are concerned, one must remember that they are not there merely to be "shot at": they have to pay just claims; and if they go to appeal the chances are that they will do so at their own expense. From what I have been told by the Master of the Rolls, and by other Lords Justices who sit in the Court of Appeal, although there have been a considerable number of appeals by assisted persons, only in 876 very few cases have they been successful. That means that an unassisted person has been twice "shot at," and has had to fight at his own expense. Of course, if an assisted person has obtained judgment in the trial court it is obviously right that he should be given the means of supporting that judgment. So far as my experience has gone, this is one of the matters which most require consideration.
Another matter which once surprised me very much was to find that legal aid can be given to foreigners who come over to this country for the purpose of pursuing some claim here. It seems to me very curious that foreigners should be able to come here and bring actions at the expense of the British taxpayer. I remember a case of an Austrian subject who came here to dispute a will. A most careful and lengthy judgment was given by the present Lord Justice Hodson who dismissed the claim. The case went to appeal, and the defendant was put to the expense of defending on appeal an action brought by a foreigner who had obtained representation as an assisted person. If these matters are to be further considered by the Lord Chancellor and Her Majesty's Government I ask them to consider seriously whether or not this assisted litigation ought to be extended to foreigners.
The noble Lord, Lord Mancroft, referred briefly to the second Part of the Act, which deals with the defence of persons at quarter sessions or assizes. That is a matter of which I have had very considerable experience, and in the many addresses which I have given to magistrates up and down the country during the last two years I have begged them to consider whether they are not giving this assistance far too freely, at very great expense to the ratepayers. I do not know whether your Lordships are aware of it, but the vast majority of prisoners brought before the assizes or quarter sessions plead guilty. I think I should not be overstating the situation if I said that the proportion was about 70 per cent. Many of these people find their way into the assizes and quarter sessions because they are old offenders. They are perfectly at home in a court of law; their previous appearances have accustomed them to the sight of a "red judge," or to the Chairman of quarter sessions; and if there is anything at all to be said in mitigation they can say it 877 perfectly well—they are not a bit shy. But where these cases are heard before the magistrates and the prisoner intends to offer no defence at all, I have often wondered whether anyone pauses to consider whether it is really doing the prisoner a kindness to give him counsel.
I am not saying my next words to raise a laugh, my Lords, but they deal with an experience which every judge who goes on circuit has in a large proportion of cases. Counsel for the defence will plead in mitigation, "My client is a named man with two children, and there is a third on the way." There is always a third on the way—I do not know why. Or counsel will plead "My client desires to marry a young woman because she is expecting a child of which he is the father." And that is the whole of the mitigation offered. The prisoner can say that quite well himself. It is also the experience, I think, of all the judges that, if there is anything to be said in mitigation, it comes much better from the prisoner himself than from anybody else, If you are sympathetic to the prisoner and are patient with him, you can get him to talk. If he has anything to say, it sounds so much better, and you are much more apt to believe him if he will say it himself. If there is a real fight in the case, if the man is going to plead "Not guilty" and to put up a real defence, then it is right, of course, to have counsel. In many cases, the only object in granting counsel is that a great many more prisoners plead "Guilty", on the advice of their counsel, than would otherwise do so, with the result that we can get the assizes finished far more quickly. But do not think that prisoners are the least grateful for the assistance from counsel, because, in my experience in the Court of Criminal Appeal, no Monday goes by without our having at least half a dozen cases in which the grounds of appeal are that: "My counsel would not do anything I told him to. He would not ask the questions I wanted him to;" or: "He did not understand the case;" or: "He made me plead 'guilty' when I was entirely innocent." All that man does is to make an attack on his counsel.
Another point is this. If the magistrates give a certificate for defence at the assizes, they have to give both solicitor and counsel. That raises the expense very considerably. The prisoner can 878 always apply to the judge at the trial, and the judge can then allot counsel to him. If this course were adopted, a good deal of expense would be saved. It is my view that at the present time this granting of legal aid ought to be much more carefully considered by justices than it is, and that people should not have a poor person's defence given to them simply because they come up for trial at the assizes. I have often reminded magistrates of a famous charge to a grand jury given by the late Lord Mersey, when he was Mr. Justice Bigham, at Liverpool Assizes—it was just after the first Act giving legal aid to poor persons had come into operation. He said:Gentlemen, there was a time when a prisoner on his trial could say: 'My mouth is closed. I cannot give evidence. The law does not allow it. If I could go into the box and submit myself to cross-examination, how quickly I could convince you that I was innocent!' Then Parliament has said: 'You may go into the box,' which really means 'You shall go into the box, because, if you do not, everyone will believe you are guilty' The prisoner could still say to the jury: 'Gentlemen, I am a poor man. I cannot afford a mouthpiece. If I could only have one of these gentlemen to defend me, he would very soon show you that I was not guilty.' Parliament has now said: 'You shall have counsel.' If that sort of thing goes on, the law will quickly take away from unhappy prisoners all prospect of acquittal.There was in that charge an element of exaggeration, but there was also an element of truth. One of the elements of truth in it that I find is, as I have said, that if a prisoner has something to say by way of mitigation, it does come infinitely better from him than it does from counsel, who has merely to repeat what is said to him. That does not produce the same atmosphere.
Only last November, when I was at Leeds, I had a man before me in what seemed to be quite a serious case. He was not defended. I talked to him and he told me the facts, which seemed to show that there were circumstances of great mitigation in the case. He finished by saying: "and if you do not believe me, you can send for Detective-Inspector So-and-so, and see what he says about it." Of course, one does not believe everything a prisoner tells you from the dock, but it struck me that he was telling the truth. We did send for the detective-inspector. He came and supported what this man had told me, and I felt able to give that accused a 879 conditional discharge, although his record was not without blemish. That sort of thing often does help one. The indiscriminate giving of legal aid at assizes and quarter sessions puts a very great burden upon the ratepayers of the county, and I doubt whether, in the long run, it is really to the advantage of prisoners. But that does not by any means mean that I think the Act should be abolished. It means only that greater care is required in its administration. That, I think, is also the answer to criticisms which have been made about the granting of legal aid in the High Court. A great number of legally aided persons in the High Court have recovered. There have been many cases, however, some of them in the Divisional Court, in which I do not think enough care or discrimination has been shown; the tendency has been simply, if the person comes within the means limit, to grant legal aid. As time goes on, I believe that that difficulty will remedy itself. As I have said, and I say again, we owe a deep debt of gratitude to the Law Society for the care and trouble which they have taken over the working of the Act.
§ 4.58 p.m.
§ VISCOUNT SIMON
My Lords, before the noble and learned Lord the Lord Chancellor replies and gives us information which we shall all be glad to receive, I venture to add a few words, not, indeed, with anything approaching the authority or the experience of the Lord Chief Justice, but largely because, as it happens, I have from the early stages of this particular Act been very much interested in it. I am glad to think that it was in my time that Lord Rushcliffe's Committee was appointed and produced its unanimous Report. I am glad also that my noble friend Lord Mancroft has raised this matter to-day, because though it was only in October, 1950, that the Legal Aid Scheme began to operate, and that this is a short time in which to conduct what is necessarily a partial experiment, I think it will be of great interest to us all to learn from the Lord Chancellor how the scheme is, in his view, working.
For what it is worth, I may say that my own impression has been that, on the whole, it is working well. But what 880 has concerned me, and perhaps others, is this. Admittedly, in existing circumstances, with our financial difficulties upon us, it is quite reasonable to say that we cannot put the whole of this scheme into operation at once. The question then arises which part of the scheme it is most urgent and important to operate. As the noble Lord, Lord Mancroft, has reminded us and as we know, the only part of the scheme which is at present being operated is that which in proper cases will give assistance to the litigant in the High Court of Justice. When one considers the Act itself and the recommendations of the Rushcliffe Committee, one finds that what was contemplated and, indeed, what the Act provided for, was assistance in the High Court, assistance in the county court and—what I, too, think is of great importance—the provision in proper cases of legal advice without necessarily any litigation arising. Of those three things, the one which in fact is being worked is assistance in the High Courts. I agree with my noble friend Lord Mancroft that it would certainly seem that the need for legal aid is in some respects greater in connection with county court cases than it is with the comparatively rare High Court case. I do not mind the assistance in the High Court, but it does not seem to me to be the primary claim upon us.
I agree most heartily with the observation of the Lord Chief Justice that if there is a High Court case and there then arises the question of an appeal from the decision of the High Court Judge, that really is not the class of case which, as a rule, ought to be regarded as having a priority in the scheme and on its funds. as compared with some other cases. As the Lord Chief Justice has just said, the decision of the High Court Judge frequently turns on a view of the facts, and many quite reasonable people honestly imagine that because the decision has been against them they will get it altered in the Court of Appeal. But that is because they do not understand that they will not get it altered unless they can show that there has been something wrong in the application of the law, which is much rarer when the matter has been dealt with by a skilled judicial authority, like a High Court Judge. Therefore, while I am not against it, that 881 does not seem to me to be naturally in the forefront of the claims, if only a portion of the scheme can be worked.
I am a little surprised when I hear from my noble and learned friend the Lord Chief Justice that he has the impression that, so far as there have been appeals to the Court of Appeal assisted under this Act, to a large extent they have been unsuccessful. I must say that my impression was rather the other way. I thought that there had been a good many successes, and to that extent the judgment and assistance of the area committees would be justified. But I do not know the figures. No doubt the Lord Chancellor does, and very likely he is going to give them to us. That is the way in which I am disposed to regard the putting into operation of the scheme in respect of High Court proceedings.
Now when we come to the county court, in connection with which there is at present no operation at all under the Act, there exists a very unfortunate situation, which may be necessary and may be justified but which I think many people feel is deplorable and ought to be repaired as soon as circumstances admit. The extent to which people who would naturally be found in the county court, if anywhere, are in danger of not getting the justice which we all desire them to have, is manifestly very great, largely because the law relating to rents, for example, is so extremely complicated. There must be many reasonable people who do not appreciate what their rights are, whether on the side of the landlord or the tenant. Whilst it is far better that these matters should be adjusted without litigation, if there is to be litigation it is of immense public interest that these people should get the decision which they deserve by all the facts being properly understood and placed before the court. So I look forward with much interest to hear what my noble and learned friend the Lord Chancellor has to say about the prospect of applying the scheme of the Act to the county courts.
But much more important, to my mind, than helping people to litigate, whether in the county court or in the High Court, is to give them advice which will secure that they do not litigate. Speaking from rather a long and varied experience of the work of a practising barrister (and I think that I shall be borne 882 out by others who know the practice as well as I do), I say that it is usually much more difficult to persuade one's client not to go to law than to Persuade him to go to law. He comes to you, very often convinced that he is suffering an injustice and confident that the Law of England will put it right. When I think of all the hours I have spent with various perfectly honest people, trying to persuade them that the right thing to do is to leave the matter alone, I believe that there is enormous importance in securing, if we can, an effective system of legal advice for people who are so likely to be mistaken.
For the State to provide funds by which poor people may be given legal advice is quite a different kind of operation from that which we see in various branches of our social service, where, for instance, people are given medical advice. Apart from the odd cases of people who have purely imaginary complaints or who think that the doctor is able to give them plenty of time for a gossip, most people do not want medical advice unless they feel ill; and, broadly speaking, the right way to deal with them is a matter for a profession of no doubt varying opinions, but still all proceeding with the single object of trying to get that particular individual well. The trouble about giving legal advice is that so many people are under the conviction that in fact they are suffering some legal wrong, when they are not suffering anything at all.
If I may go back to my own memory—here, again, I think the Lord Chancellor will confirm what I say—I may say that every Lord Chancellor in turn, and many other people who are discharging legal duties without being Lord Chancellors, have their postbags filed with letters from people who are quite convinced that they are suffering some gross injustice and that it only requires the Law of England to be properly administered for them to be delivered out of their misery. In a great many cases they are quite wrong. Therefore what is urgently needed in such cases, as it seems to me, is that the poor citizen, whom we all want to help on perfectly level terms with everybody else, should be told in a way which he will understand and accept that the right thing for him to do is to recognise that his case is not one which he can wisely take to court, and that he should either put up with 883 things, recognising that his claim is not after all what he thought it was, or, it may be, search for a friendly compromise. That part of the scheme of the Act is, at present, not in operation at all.
It is perhaps not quite correct to say that nothing is now being done under the Act to assist in the matter. There is something which assists; because the poor person who is disposed to go and lay his grievance before the area committee and ask for legal aid will no doubt be refused it if the committee, to whom we are infinitely grateful, comes to the conclusion that he really has not got a case. Indeed, it goes beyond that, because there are instances where the area committee may, in the first instance, grant a certificate so that a person does get the assistance of a solicitor and barrister, and yet when his case is looked into by these people they are able to tell him that he ought to drop it and not take it into court. I imagine that if he did not accept the advice, the barrister appointed would probably say that he was not bound to serve him. Within those limits there is already some protection to the decent but impecunious citizen who is a little muddled in his mind and has got a wrong idea as to what his rights are. But I should be very happy if it went further.
In his invariably entertaining and informative speech, the Lord Chief Justice referred particularly to assistance given in criminal cases. That usually arises outside the Legal Aid and Advice Act. I do not know whether your Lordships all realise—because many good citizens do not follow the workings of the profession to which I used to belong—that those of us who went circuit in the old days, as the Lord Chief Justice and I did as colleagues together on the Western Circuit, were very familiar with the first efforts to get assistance in criminal cases for the man who had not already got it. Sometimes it took this form. The "Red Judge" at Assizes or at the Old Bailey, on looking through the depositions, had observed that there was some case coming before him in which the accused had no counsel, and he would address you benevolently—he sitting upon his Bench and you in your wig and gown in a humble place lower in the court—in this way: 884 "Mr. So and So, there is the case of Jones here in the calendar. He has no counsel to defend him. I should like you to look into it and see if you can help him." I think most of us have undertaken that duty at that period, and we were proud to do it, though I must say that, in my own recollection, it was done with very little success for the person I was wishing to assist, and at not inconsiderable outlay in the matter of hotel expenses for myself.
There is another method which used to be common, though I do not think it is much used now. It was the practice—I suppose it still is—for a person accused at Assizes or the Old Bailey of a crime, when he came into the dock, if he had no counsel but had a guinea in his pocket, to be entitled to say: "I have a guinea, and I wish to be defended by you"—at the same time pointing at any junior in the court who was wearing his wig and gown. Indeed, I recollect that the practice went so far that one or two very busy juniors used to be careful to keep out of the way if this was likely to happen. There was even a variation of this sort—which I think the Lord Chief Justice may remember. An old offender who knew the ropes perfectly well, on being brought up and arraigned, would take out of his pocket a strip of paper on which he had written down a few names and proceed to announce that he had got his guinea and that he called on Mr. So and So to defend him. There would be a pause. The accused would say: "Not here? Well then, Mr. So and So,"—reading out the second name on his paper. When he gave the third name, if there was still no reply he would put his paper back in his pocket and say: "Then I think I will defend myself"—which was not very flattering to all sorts of aspirants who were not selected for the purpose. I will not say more about criminal work, because what the Lord Chief Justice has said is much more authoritative, and I have no doubt that his observations on that head will be considered.
I conclude with this observation which I feel very much. I think that the origin of the Legal Aid and Advice Act was really the effort which was made—and I think succesfully made—in the last war, to do something to help the soldier who was on service outside this Island and who received distressing news from home. 885 That was the origin of the measure. That was how we came in that period to suggest a plan, worked out by the Law Society with the War Office, the Admiralty and the Air Ministry, by which in each unit during the war there was a welfare officer who was known to the men to be available to help them if they received bad news from home. You could not expect the best morale in the war if a soldier abroad received a letter, perhaps from a neighbour, informing him that things had gone wrong in his own house, or if he were, possibly, distracted by the thought that his wife was in urgent need of help about her rent or her children, or whatever it might be. Therefore, it was as a contribution to morale that great efforts were made in those years by which this immense system was organised and was most successfully worked. My noble friend Lord Schuster, who has now left the House, had a good deal to do with it from the side of the Lord Chancellor's Office. I know some of the people in the fighting Services who helped to carry through that scheme, the result of which was of immense value.
My reflection on this is that the proper working of this legal aid scheme is also immensely important, because it contributes to the good morale of people at home. The best cannot be got out of a workman in a factory if he is worried about matters in respect of which he ought to get the best advice. It must be a most distracting and enervating influence if circumstances exist which make a man say to himself: "I feel that those I care for are not getting justice, but I do not know how to set about putting matters right." It was in the spirit of trying to remedy that that many of us in the old days went down to Toynbee Hall and other places to help the poor man's lawyers, though when I think of the confident advice I gave in the East End of London on various subjects I am really ashamed of the little I knew about the law and how uncertain I am whether my advice was good.
It is a great thing to get the advice right, and that, of course, is one of the things Which will be secured when the Legal Aid Scheme comes into fuller operation. I feel most strongly that the service is justified and necessary, because it is a contribution to decent citizenship. It is not a technical question of whether a 886 particular individual has the law on his side. That is not the point. The point is that we have not got a well-organised democracy if among the services for which we are responsible there is not a service which sees to it that a man shall have a fair chance of getting his rights established, if necessary in the courts, without any regard to his income. It is a falsehood, a most slanderous falsehood, to say that in this country there is one law for the rich and. another law for the poor. It is not in the least true, and it has not been true for a long, long time. What is true, of course, is that ability to fight your case in court will depend upon whether you can afford to fight it once you get to the court. No one who knows anything about it would ever dream of saying that the whole spirit and content and conduct of the English Law is not inspired with the notion that everyone ought to get his rights without the smallest regard to what is his social or financial position.
To my mind, therefore, the great importance of continuing this scheme is that it is one of the ways in which we make our democratic system work with real equality between one citizen and another. For that reason, I very much hope that the Lord Chancellor will be able to give us an encouraging report. Though I have no doubt that there will be things to correct, I trust that there will be no doubt in this House or in the country that the foundation of the scheme is sound and that we ought to persist in it, always within a reasonable measure of what is possible in the way of finance. This is really not a technical or legal question at all, but one which deeply concerns the good life of the whole community of which we form a part.
§ 5.20 p.m.
§ LORD BURDEN
My Lords, my first duty is to express the regret of my noble friend the Leader of the Opposition, Lord Jowitt, at his inability to be present this afternoon. Your Lordships are well aware of the deep interest he has taken in these problems, and he has asked me to tell your Lordships how sorry he is that he cannot be with you. We are all grateful to the noble Lord, Lord Mancroft, for bringing this important matter to the notice of the House, and for his interesting and informative speech. We have all listened entranced to the 887 speech of the Lord Chief Justice. I am sure he would agree with me that the legal aid offered to prisoners is not always accepted. Probably he knows the story of the "old lag," who, when asked by the learned judge if he wanted legal aid, glanced at the Junior Bar and replied apologetically, "If it's all the same to your Lordship, I would much prefer a couple of good witnesses."
The noble Lord, Lord Mancroft, referred to criticisms which have been made by some of our judges of the legal aid scheme. We all agree that the independence of our judges is rightly regarded as an important constitutional safeguard, but in view of the unique position which the Judiciary occupies I think it would be unfortunate if criticism of the Legislature provoked anything in the nature of reprisals. We are all aware of that much overworked dictum of Lord Acton, thatall power corrupts and absolute power corrupts absolutely.But surely it is correct to say that the Judiciary is not above the law: it has to interpret the law. I must not this afternoon pursue the fascinating question of whether the judges actually make the law. Judges, fortunately, do sometimes disagree with one another. Perhaps I may recall the story of a certain county court judge whose geniality far exceeded his knowledge of the law. The results of cases heard in his court were always something of a gamble. On one occasion, counsel was opening an appeal against one of his decisions. "This case was heard by His Honour Judge So-and-so," he said, "sitting in 'x' County Court." "Yes, yes," interrupted the presiding Judge testily. "We know that. Is there any other ground for appeal?"
As a layman—the only layman intervening in the debate, I gather—I do not know whether I am to be ground between the upper and the nether millstones. My only excuse for intervening in the debate is that I have some knowledge of the devoted voluntary service given throughout the country by some 500 citizens' advice bureaux, which, as your Lordships know, form an important part of the work of the National Council of Social Service. I need hardly say that the citizens' advice bureaux are deeply interested in the practical working out of the Legal Aid and Advice Act, 1949. Notwithstanding what 888 has been said by the noble Lord, Lord Mancroft, I feel that the Act is framed on broad and generous lines, its object being, to quote from the title of the Act,to make legal aid and advice … more readily available for persons of small or moderate means. …Unfortunately, as has been emphasised more than once this afternoon, assistance to people whose means are within the limits laid down by the Act is limited to proceedings in the High Court and Court of Appeal, or in the county court when a case is transferred there from the High Court. I agree with the noble Lord, Lord Mancroft, that the provision of legal aid in the criminal courts and county courts, as well as action with regard to legal advice, is most important. The National Committee of the citizens' advice bureaux have considered this matter on many occasions, and, arising out of a wide and varied experience of the local bureaux, they strongly support an extension of the scheme both to the lower courts and to the provision of legal advice.
In the evidence given by the National Council of Social Service to the Royal Commission on Marriage and Divorce, it was stated that:Owing to the fact that a part only of the Legal Aid Act has been implemented, litigation is encouraged and a general impression is given that the Legal Aid Act, as it stands at present, is largely concerned to make possible easier divorce.I do not wish to discuss the question of divorce generally, but it is unfortunate that such an impression of the scope of the Legal Aid and Advice Act should develop. Your Lordships may be interested in the following details of the work of the citizens' advice bureaux. The legal inquiries dealt with by the bureaux during the year 1950 numbered 81,000. This total does not include matrimonial inquiries, some of which may have had a legal aspect and which total 69,250. Nor does it include landlord and tenant inquiries, some of which also come into the legal category. These cases total 122,750. In the first report of the Law Society on the operation of the Act, and the comments and recommendations made by the Advisory Committee, a very strong case is made out for the extension of legal aid to the county courts and to the courts of summary jurisdiction.
889 The deferring of the operation of the sections dealing with legal advice is said to be even more unfortunate. In support of this view, may I quote a few words from the report of the Advisory Committee? Referring to anomalies, and to the fact that the Act does not make available legal advice to anyone bringing proceedings in the county court, or civil legal aid in the courts of summary jurisdiction, the report says:These are serious defects to the present scheme, although we appreciate that the decision to defer the provision of legal aid to these courts was forced upon the Government by the paramount need for economy.But the report goes on to say:We think that the deferment of the legal advice scheme has had far more serious consequences.This very point was emphasised by the noble and learned Earl, Lord Jowitt, in an article written on the Report of the Rushcliffe Committee. I will quote the noble Earl's words:Experience has shown that an even greater benefit for poor and uneducated persons is to have available a system of free legal advice. That has proved itself through the applicants who throng the premises of the charitable organisations now doing this work. The Committee"—that is, the Rushcliffe Committee—therefore, recommended that such a system should continue, and that it should spread throughout the country and not be limited, as at present, to the larger industrial centres, and that it should be administered by the same body that controls legal aid, namely, the Law Society, with the help of the Bar Council.The citizens advice bureaux, in co-operation with the Law Society, are doing everything possible, pending the full implementation of the Act, to provide advice services for the lowest income groups. But while most of the bureaux have made some arrangement for legal advice, obviously 500 bureaux cannot adequately cope with the whole country, particularly in the rural areas. Perhaps I may be forgiven for mentioning a case in a country district which has just come to my notice. It is that of art elderly man and his wife, both invalids. They are being brought to the edge of a breakdown by threats that they will be turned out of their house; whereas, in fact, if they had legal aid, that intimidation would immediately cease. I feel that I must pay a tribute to the splendid help given to the citizens advice bureaux, both at headquarters and throughout the 890 country, by the Law Society. Without this help and co-operation, the non-implementation of the legal advice clauses would have been felt even more harshly by the lowest income groups. In another place, Sir Hartley Shawcross, when dealing with the deferments, said:It is certainly my hope that the voluntary arrangements which have hitherto existed, and to which both branches of the legal profession have in the past made most, valuable contributions, will continue until the rest of the Act is brought into operation.One cannot speak too highly of the public spirit on the part of both branches of the legal profession. But perhaps, as a layman, I may say this—and I put it quite simply: How much longer is this public spirit to be exploited? In the Advisory Committee's report there is an indication of the collapse of some of the existing legal aid services. Their actual words are:The Bentham Committee closed at the beginning of the year after long and distinguished service in some thirty London boroughs. We understand that there are grave doubts about the future of the Cambridge House and Mary Ward Legal Advice Centres. If these follow the Bentham Committee into oblivion, the poor in London will have scarcely anyone to whom to turn for legal advice, and those few oganisations which may continue to exist will be overwhelmed. These organisations depend entirely upon charitable subscriptions for their finances. The public know that Parliament provided an Act to take over the work performed by them, and they see no reason why they should continue to give of their charity, in an atmosphere of steadily rising prices, in order to save the Government from, comparatively speaking, minor expense. It is worth pointing out that these voluntary schemes provide by 'legal advice' the equivalent of both legal advice under Section 7 and legal aid under Section 5 of the Act.My personal inquiries confirm this grave warning. The extent of the work done at these two centres may be judged by the following figures for 1951. At Cambridge House: interviews, 6,527; letters, 9,485; telephone calls, 2,160—giving a total of 18,172. And there were 3,082 new cases. At Mary Ward: interviews, 9,318; letters, 10,830; telephone calls, 3,712—giving a total of 23,861. Here there were 4,500 new cases.
It is true that the London County Council have stepped in and saved the situation for six months, so far as Cambridge House is concerned, but the outlook for both centres is very grim. My noble and learned Leader, Lord Jowitt, concluded the article which I have 891 already mentioned with the following words of Milton:For this is not the liberty which we can hope, that no grievance should ever arise in the Commonwealth; that, let no man in this world expect; but when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of liberty attained that wise men look for.Is it too much to hope, my Lords, that the debate this afternoon may, in some small measure, help towards reaching the ideal so finely expressed by John Milton some three hundred years ago?
§ 5.38 p.m.
§ LORD DOUGLAS OF BARLOCH
My Lords, like the noble Lord who initiated this discussion, I ought also to reveal that I have some interest in this subject, as I am a member of the other branch of the legal profession. I should also like to express to him, and to the Lord Chief Justice, the sincere thanks of the Law Society for the tribute which has been paid to the work which they have done in devising the scheme of organisation, and by carrying through the practical arrangements which have been necessary in order to put the Act into operation to the extent to which it does operate. There have been a number of criticisms in various quarters, but I think that one ought to judge those in the light of the total volume of work which has been done. I understand that in the first year after the scheme was brought into operation there were 67,000 applications for legal aid. That is a measure, in some degree, at any rate, of the need which existed for bringing the legal aid scheme into operation, even if only to a limited extent.
Not all of those applications, of course, were dealt with during the course of the year. Some in fact were withdrawn, and others did not reach the certifying committees, because as a normal rule the matter has to go to the Assistance Board, which is responsible for determining whether the economic circumstances of the applicant justify the granting of legal aid. During that first year, I understand, some 40,000 certificates for legal aid were granted. Not all the cases, by any means, which were considered by certifying committees were in fact acceded to, but I think the proportions were that about four-fifths of the applications were successful and one-fifth unsuccessful. We do not know yet, of course, what the ultimate fate 892 of all those cases was, but it is extremely interesting to note that, of the cases which had actually come to trial, the aided person was successful in 88 per cent. That, I think, indicates that on the whole the judgment of the certifying committees was sound. None of us is clever enough to be able to foretell accurately in every case what the result will be. If we were, there would not be so much need for Her Majesty's judges. But the fact that on an ex parte statement (because, after all, that is the only thing, as a rule, which the certifying committees have to go upon), their judgment was found to be right to that extent, is in itself a testimonial to the care with which this work has been conducted.
Some reference has been made to cases taken to the Court of Appeal. I understand that the total number which went to the Court of Appeal was not very large and that, in the majority of cases, the aided person was successful in his appeal. That, too, on the whole, would seem to be a satisfactory result. The advisory committee have testified that the scheme is working well, and they have made some recommendations. One recommendation is that, in present circumstances, the economic test imposed upon the applicants is too severe, and that it ought to be relaxed. I suppose it is because they felt themselves quite unable to pay the contribution asked of them, that quite a large number of people who have received the information that they could have legal aid upon terms did not pursue the matter any further and did not obtain their certificate. In the cases which have been dealt with, some 43 per cent. of the people were not required to make any contribution at all, and another 8 per cent. were not required to contribute more than £10. That accounts for half of the adjudications made. In the other cases, the amount depends upon the circumstances, and there were a few cases—about a couple of hundred—in which the assessment of the contribution was over £100. I think it is right that the assessment of the means and the contributions should be looked at again, as in certain cases that may well place an obstacle in the way of a person who ought to be given assistance obtaining it.
The other recommendation which the advisory committee made was that the Part of the Act dealing with legal advice 893 should be put into operation. Other suggestions have been made to-day for extending it to the county courts and to the civil jurisdiction of the magistrates' courts. I do not know the reasons which dictated that the first step should be assistance in proceedings in the High Court of Justice. I assume that it was because such proceedings are the most expensive and, therefore, the greatest obstacle to a poor person asserting his rights. Proceedings in the county courts are not so expensive, and proceedings in courts of summary jurisdiction are still less expensive. Nevertheless, very difficult legal questions may come before county courts or courts of summary jurisdiction, and it may be that in such proceedings an applicant ought to have legal advice if his case is to be put well and he is to succeed. My own impression is that the next step which ought to be taken is to put into operation the Part of the Act dealing with legal advice. That may indirectly help many people who are potential suitors in the county courts. It may, as one noble Lord has said, be the means of giving people advice at a very early stage, thereby enabling them to solve their difficulties without any litigation at all. In some cases, of course, it may be the means of preventing very sad and unfortunate circumstances which many of us have come across from time to time. I am thinking of cases where a person has become obsessed with a grievance, and his obsession becomes a mania. If the person had had proper advice at a very early stage, he would quite probably have been saved from getting into a pathological mental condition.
I say nothing at all about assistance in criminal matters. It is many years since I had much practical experience in those courts. I am still inclined to agree with the Lord Chief Justice that there is available at present a very substantial amount of aid, and I should think, especially in view of the bias of English law in favour of the innocence of any person accused of a crime, that there are not so many cases in which positive injustice is done by reason of the absence of more legal assistance in criminal matters. On balance, therefore, I think the extension to legal advice is the next step which ought to be taken in extending an Act which, upon the figures of its working for the first year, has obviously been the 894 means of helping a very large number of people who deserved help and who otherwise would probably not have had it.
§ 5.50 p.m.
§ THE LORD CHANCELLOR (LORD SIMONDS)
My Lords, this has been a very interesting and to me, who am, I suppose, ultimately responsible for the administration of this scheme, a helpful debate. I should like to begin by thanking the noble Lord, Lord Mancroft, for introducing the subject by way of a debate in this House so that some of the facts may be more generally known. I thank him also for the very clear, temperate, and useful way in which he introduced it. I am indebted also to other noble Lords for the comments that they have made upon the administration of the Act. The Act itself is an Act of Parliament and its policy is no longer open to question. It is only its administration which we are considering here to-day. But in its administration we have to follow the policy which guided Parliament in passing that Act.
Now, as I see it, there are two strands, and the first strand is this. It has become clear to the public mind that it is intolerable that a man should be deprived of his rights, or incapable of asserting his rights because he has not the means to do so—a grievance long felt and often met with, and one which is the subject of the Report by Lord Rushcliffe's Committee, which commanded universal assent. But the other strand is well known, particularly to those who practise in the law. It is this. There is in the minds of many men a deep-rooted but active litigious spirit. It has been so throughout the ages. The noble Lord, Lord Mancroft, if he casts his mind back, will doubtless remember how in ancient Greece the poet Aristophanes pointed a finger of fun at the inveterate litigant. It was still so in Ancient Rome; and, coming down to more modern times and looking across the Border, there are some who will remember poor Peter Peebles, the Scotsman. I see the noble Lord, Lord Saltoun, nods his head in agreement. Nearer home there is the pathetic and tragic figure that walks through Bleak House. It is this spirit which has to be watched and guarded against in the administration of this Act.
895 May I be pardoned a story which, perhaps, would come more effectively from the Lord Chief Justice? It was current in my youth at the Bar. It is about a Yorkshireman (if that offends anyone I can convert him into a Lancastrian) who went to his lawyer and said he was aggrieved and was going to bring an action against a man. His lawyer, an honest man, told him: "You have no case. If you bring your action you will lose it." The man said: "I am going to bring my action: the courts are open to me." The lawyer replied: "You will certainly lose your action." The client asked: "Can't I go to the Court of Appeal?" The lawyer replied: "Yes, you can go to the Court of Appeal, but there also you will lose your action." "In that case," said the client, "can't I appeal to the House of Lords?"—your Lordships will recall that in those days you could go to the House of Lords without first obtaining leave to appeal. The lawyer said: "You will lose there also. I beg you not to embark on this litigation." The client said: "I shall do it: I can afford it." The lawyer then said: "Well, if you must, you must. I beg you not to do it, but as a professional man I must say you are the kind of man I should like to breed from." That, my Lords, is the other strand.
With regard to the administering of the Act, I wish here to pay tribute to the Law Society for the work they have done in bringing the Act into operation and in administering it, aided by the General Council of the Bar. I think they have done a great work. Let me tell your Lordships something of this great organisation, in order that you may be able to assess some of the criticisms which have been levelled against what has been done. In the short space of time which has been available—for the Act has not been in operation for very long—twelve area committees have been set up. Under the twelve area committees there are 112 certifying committees whose duty it is to consider every application brought before them. Above them all there is one Council operating through a subcommittee of the Law Society. These 112 certifying committees in the first year of the Act's operation held no fewer than 2,500 meetings.
The noble Lord, Lord Douglas of Barloch, has been good enough to forestall 896 me by giving your Lordships some figures, but perhaps I may repeat them. Close on 68,000 applications have been considered and 40,000 of these have been given certificates. It is true that the cases take some little time in being considered, but I think that 2,500 cases in which certificates had been given had come to judgment in the year in question. Of those 2,500, to give an approximate figure, 88 per cent. were successful. It is true that a large proportion of the cases were matrimonial cases in which there was no defence, so that I should not put the figure as high as 88 per cent. in all classes of cases; but of cases that went to the Queen's Bench Division, 70 per cent. were successful and others were settled, and when cases are settled it is generally in favour of the assisted person. I think we can come to no other conclusion than that the Act has been administered carefully and skilfully.
Of course there are bound to be cases where the certifying committee, using all the care in the world, may make a mistake. They cannot check every application, nor can they call evidence. It may be that Mr. "A" fully believes the story which he tells, and, if he believes it, how can the certifying committee do otherwise? But Mr. "B," the defendant, has another story, and his may be the more accurate of the two. There may not be any ill-faith attaching to either—it may be a freak of memory in which Mr. "A" was wrong and Mr. "B" was right. So your Lordships may be satisfied, as I am satisfied, that the Act is working extremely well and supplies the need it was intended to supply.
Now I come to the question of appeals to the Court of Appeal. I listened with the greatest interest to what fell from the noble and learned Lord, Lord Goddard, on this subject. First, may I correct the figures which he gave to the House? The fact is not that a large proportion of aided appeals have been successful; the fact is that of forty-nine cases in the year in question which went to the Court of Appeal, twenty-five were successful and twenty-four were not successful. That ratio is not, I must admit, quite what I should like, but your Lordships must consider that there were twenty-five cases where the aided appellant succeeded in winning his case, and he would have justly felt that he had been the victim of injustice had he not been allowed to bring 897 his case. It is a question of degree and balance. One of the rights which any citizen has is to go to the Court of Appeal if he thinks that he has not had justice in the first court. If you have the system of legal aid, you must think twice and thrice before you deny that aid to the appellant who thinks he has a good case and whose lawyer tells him that he has.
I would agree with the Lord Chief Justice that this is a matter which demands careful consideration. I will tell your Lordships, as I tell him, that there is no aspect of the administration of this Act which I have regarded more anxiously, in the short time in which I have had the consideration of the matter, than this question of appeals. I think that something can be done by insisting upon the certifying committee having a transcript of the judgment in every case in which they think an appeal ought to be granted. Of course, you have to be careful there, because if in every case where an unsatisfied litigant asks for aid for appeal you say: "Yes, but let me have a transcript," you will run into much more expense, because the costs of obtaining a transcript are considerable. So the matter must be adjusted nicely to those cases in which the certifying committee think prima facie that there is some case. That is only one way in which I hope we may slightly improve the administration.
I will also take seriously into consideration the proposal which I have heard for the first time to-day, that an aided litigant should not appeal unless he has leave either from the court of first instance or from the Court of Appeal. That is a matter which I have not considered before. I will certainly consider it most earnestly. Then I was asked also as to the cost of the scheme. The costs up to date have, of course, been nothing like what was anticipated, because, as I have told your Lordships, comparatively few cases have yet been brought to trial, where the major cost is incurred. In the current year, which runs from April 1 to March 31, the cost is expected to be about £212,000, but that will very rapidly increase. Again, it is estimated that in a full year the cost will be something like £1,500,000. That is an estimate, and it is only an estimate. Of course. that is a figure which would be greatly reduced if the fashion of divorce were in any way diminished, because from the figures that I have given your 898 Lordships you will see how large a proportion of the costs has been incurred in matrimonial causes.
I am not sure, but I think that some noble Lord criticised the class of case in which, as will sometimes happen, the litigants on both sides receive State aid. I agree that it is a very unsatisfactory spectacle to see two citizens fighting each other in the law courts, each of them at the expense of the taxpayer. But how is it to be avoided if the principle of this Act is accepted? "A" goes to the certifying committee and says: "I have a good case against 'B'," and apparently he has. He brings his action and gets his aid. An action is accordingly brought against "B" who, being a poor man, goes to his certifying commitee and says: "Look, here is an action brought against me by Mr. 'A'." Then he tells his story and, apparently, it is a perfectly good one. The certifying committee are not a tribunal to decide between the two parties and, therefore, aid must be given to each. I imagine that that might well be the sort of case in which the advisers on one side or the other would at an early stage, as they are entitled and required to do under the regulations, report the matter to the committee, and the action might be brought speedily to an end. But the unpleasant spectacle of Mr. "A" and Mr. "B" fighting each other at your Lordships' expense is a thing that I fear cannot be avoided.
The noble Lord, Lord Douglas of Barloch, was good enough to call attention to one point that I particularly desired to mention, and that is this. I think there is a common impression abroad that in these aided cases the whole of the costs of the aided litigant are paid by the State. Perhaps your Lordships have not that impression, but I wish to correct it because I believe it is widespread. It is far from being the case. The Act provides—and the provision of the Act is rigidly enforced—that contributions are made by those litigants who can afford to contribute. The aided litigant sometimes gets all his expenses paid, but in a majority of cases he is required himself to contribute. There are, I think, two aspects of that matter which are worth noticing. The first is that in all the cases where he is required to make a contribution himself, at any rate he is backing his own 899 horse; he is making some contribution and he stands to lose something if he does not win his case. The other aspect of it is that in many cases the contribution will amount practically to the whole of the costs, so that the offer of legal aid comes to nothing. The noble Lord gave the figures of the applicants to whom aid was given during the year 1950–51. No fewer than 12,500 were required to contribute sums of between £10 and £50, and no fewer than 5,800 sums of £50 to £100. A small number of some hundreds were required to contribute an even larger sum. So your Lordships will see that, in the majority of these State-aided cases, the litigant has to make some contribution himself. For that reason, he is not inclined to pursue his claim unless he genuinely believes in it.
I believe that every noble Lord who has addressed the House has commented upon the fact that only one part of the Act has been brought into operation—and that is, legal aid in the High Court. During the time of the noble and learned Earl, Lord Jowitt, that subject was no doubt most carefully considered. It was thought, and rightly thought, as I believe, that in the conditions of the time in 1949 and 1950 it was impossible to put the State to the expense of the whole of this scheme. As the noble Lord, Lord Mancroft, said, it was perhaps at first thought not desirable that the whole organisation should be tested at once. But I cannot help thinking that the most potent reason was the financial reason; and in 1950, when it was decided to bring part only of the Act into operation, it was decided to bring in this part. Are circumstances easier to-day? Can your Lordships think that, if it was not thought proper in 1950 to bring the whole Act into operation, it is easy to do it to-day?
Legal advice and legal aid in the county courts are two of the many things which we all wish could be brought into operation. I can only say, with the rest of your Lordships, that I most urgently wish that the whole of this Act might be brought into operation. But I should be going far beyond my brief if I were to tell your Lordships that the other part will be brought into operation; nor would I care to speculate when it will be possible to do so. I can only assure your 900 Lordships that, for my part, as soon as ever it appears possible that the financial condition of this country permits it, I shall seek to press the Chancellor of the Exchequer to allow the other parts of this Act to be brought into operation. I do not propose to hazard an estimate of what the cost might be. I am inclined to agree with Lord Mancroft that it would not be very large, and it might conceivably work somewhat favourably in saving the expense that is incurred in bringing cases to the High Court. But that is all hypothetical. We are all in agreement that we wish the good days to return in order that we may bring the whole of this Act into operation.
If I do not pick out all the points that have been made I must apologise to your Lordships. If he will forgive me, I do not propose to follow the Lord Chief Justice into the point he raised regarding the criminal courts, because I do not think that that is precisely germaine to the question which the noble Lord, Lord Mancroft, has raised. But one point he did make was about foreigners. It is a little difficult to see why a man should be denied the rights which other people enjoy, assuming him to be resident here perhaps all his life, because he is a foreigner. Although I speak without the book, my recollection is that precisely the same rule has always prevailed under the Poor Persons Rules which were in operation before this Act was introduced. I think that a so-called foreigner has always been in just the same position as a Britisher.
§ LORD GODDARD
My Lords, I apologise for interrupting the noble and learned Lord, but I was not referring to a foreigner who lives here. I was referring to at least two cases of which I have had experience, where foreigners have come to this country for the purposes of bringing their actions.
§ THE LORD CHANCELLOR
I understand the Lord Chief Justice is confining himself to those cases, and I think that that is a matter which should be looked into. However, I do not think there are a great many such cases. It may be that a man came into the country for other purposes, though I concede that he may have come for the purpose of enforcing his rights, and that is a matter that can be considered. Another point 901 that was made by one or more of your Lordship; was on the question of the so-called means test—if I may use a phrase which is sometimes objected to. That has been the subject of a good deal of discussion. It must always be a matter of opinion as to how high or low the line should be drawn and how rigid should be the test. My own view is that if more money is available from the Exchequer for the purposes of operating this Act, it should be devoted rather to the introduction of legal advice than to the alteration of these levels. But that is a matter of opinion, and I do not think that one can be at all dogmatic about it.
I want to say one final word, and I hope I shall have picked up all the points that have been made. It is true that there have been a number of criticisms from the Bench in regard to the administration of this Act. Let me say at once how much I welcome such criticism, because necessarily that is the best check that there can be upon the proper administration of the Act. I would ask Her Majesty's judges who have anything to criticise in the administration of the Act, not only to do so in open court, if they think fit, but also to communicate all the facts as they know them either to the Law Society or to my Department, so that they may be investigated. As I say, I am grateful for all criticism, but I am bound to add that some of the criticisms which have been made from the Bench by Her Majesty's judges have been proved, upon investigation, to be not at all well-founded. Perhaps that fact makes it the more desirable that, rather than criticise the administration in open court, they should communicate what they conceive to be wrong to the proper authorities. There have been one or two cases where criticism has been conspicuously ill-founded. The Lord Chief Justice will not, I trust, think that I am referring to any criticism that he has made.
My Lords, I would end as I began, by saying that I believe the whole community owes a very great debt to the Law Society for the work that they have done in organising the administration of this Act. The whole scheme had to spring full-fledged into existence: it was not a question of gradually working it up. Numbers of people had been waiting for it to come into being in order to bring 902 their cases, and within two months of their organisation being set up the Law Society were flooded with work. They stood up to it, as I venture to think, wonderfully, and I am sure that I shall be expressing the views of all your Lordships if I say how grateful we are to them.
§ 6.16 p.m.
§ LORD MANCROFT
My Lords, I should like to thank the noble and learned Lord on the Woolsack very much indeed for the extremely full and helpful way in which he has replied to this Motion, I am afraid that his reply was very much what I expected it would have of necessity to be. It is difficult to quarrel with the argument he has put forward on the main question of extending the facilities. However., he has made it perfectly clear to us where his heart lies, and we shall hope that when times get better he will put the extension of these facilities high up on his own personal programme of legal reform. I should like also to thank noble Lords who have assisted me in this debate. The noble and learned Lord the Lord Chief Justice referred to the rather odd case of the foreigner coming to this country. I remember that very point being raised on Second Reading in the House. It was suggested that this situation was liable to arise, and I remember the answer being given that the same point was raised in regard to the National Health Service Act—that people will come to this country in order to get National Health facilities. We were told then that this would not happen. In both cases it has happened; and I am very glad that it has. I regard it as a compliment to our medical and legal systems that people should come and try to take advantage of tem. The situation is ridiculous, but it is a compliment.
The only other thing I wish to say is, that five of the six noble Lords who have spoken to-day are professional men, and the sixth is a layman. Nearly all the professional men rejoiced in finding some reason for taking work away from the profession. The only one who wished to give us more work was the layman, Lord Burden. Every speaker, in actual word or by indication, stated categorically that there should not be one law for the rich and another for the poor. In his charming anecdote about that splendid indigenous Yorkshireman, the Lord Chancellor referred to something else—namely, that there is one law for the rich 903 and another law for the very rich. My Lords, with those words I should like to thank the Lord Chancellor once again, and beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.