§ 4.28 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR
My Lords, in rising to move the Second Reading of this Bill, I fear that I shall inevitably detain your Lordships for some little time. I am, as Lord Chancellor, responsible to Parliament for the Legal Aid and Advice Act, 1949, which this Bill proposes to amend, and which, with the equivalent Act for Scotland, is the understructure for the whole of our provisions for ensuring that justice is obtainable by the less well-off members of our community, and that access to the courts is open to all. Your Lordships will forgive me for observing that this is a matter with which I am deeply and seriously concerned.
The object of this Bill is to put the Legal Aid Scheme, again broadly speaking, into the shape envisaged by its sponsors, a Committee under the chairmanship of the noble Lord, Lord Rushcliffe, whose wise counsels so many of us remember both here and in another place. That Committee reported in 1945. They devised a comprehensive scheme for legal aid which was adopted almost completely by the Government and which took shape in 1949 in the Legal Aid and Advice Act and the Legal Aid (Scotland) Act. Unfortunately before the Acts were in operation economic circumstances compelled a limitation in adoption to only those parts of it which were related to legal aid in the Supreme Court in England and in the Court of Sessions and Sheriff's Court in Scotland, and those alone were put into immediate operation.
Without criticising that decision in any way, it is true to say that it has bedevilled planning ever since. On the one hand, as part and parcel of the financial climate, the cost of living rose, nullifying to a large extent the objects of the Act. On the other hand, important parts of it had never come into play at all. Whenever money was available the difficult choice has faced the Government, whether to restore to those parts of the Act already in force the financial conditions enjoyed when the Act was passed, or whether to extend the Act to those parts which had so far benefited nobody. Gradually, we have 702 been able to extend the Act almost, though not entirely, to the whole scheme envisaged by the Rushcliffe Committee and by Parliament. It is now the Government's intention to restore the financial provisions of the Act to their original scope.
Before dealing in detail with the objects of the Bill, I should perhaps explain the Legal Aid and Advice Schemes, what they are and how they work. It will be remembered that the Legal Aid Schemes are contributory, and contributory in more than one sense. There is the contribution which the State makes to the Legal Aid Fund; secondly, there are the contributions which the assisted litigants themselves make towards the total costs of their cases, with the exception of those litigants who are of really modest means; and thirdly there are the contributions which the lawyers also make, for under the Schemes they forgo a certain percentage of the costs which would normally be payable in respect of their services. Legal aid will now be provided in proceedings in most cases. I do not think I need enumerate them all to your Lordships.
Last year the Secretary of State for Scotland and I were able to bring into force Section 7 of the Act to provide for oral advice for poor people from solicitors in ordinary practice. This year we have been able to bring into force Section 5 of the Act which enables the poor to get the full services of a solicitor in writing letters, collecting evidence and the like in matters which might eventually lead to litigation but which have not as yet reached that stage. Your Lordships may regard these two most recent extensions of the Act as most important because it is only by explaining to a layman what his legal rights are, and, more often, what they are not, and, when necessary, writing letters on the matter on his behalf, that litigation can be prevented and difficulties removed without all the waste of time, money and emotions that legal actions cause.
These three schemes of oral advice, of legal aid in matters not involving litigation and legal aid in litigation, are administered by the English and Scottish Law Societies in consultation with the General Council of the Bar and the Faculty of Advocates respectively. I 703 hope you will allow me to say, although I am head of the legal profession, that the country owes the lawyers a very considerable debt for their administration of these schemes. It is an immense undertaking, and thousands of barristers and solicitors are involved in it in one way or another. They grant legal aid, control legally-aided cases, manage the Advice Scheme and collect moneys due to the Legal Aid Fund. Over 20,000 cases are granted legal aid each year and over 80,000 live cases are on the books. The annual turnover is over £5,000,000 a year, of which less than half comes out of public funds. We are particularly indebted to the Law Societies for their efficient handling of this great Scheme. The one matter which the lawyers do not deal with themselves is the investigation of the resources of applicants for legal aid in litigious matters. That is done by the National Assistance Board.
The whole Scheme in England is subject to annual review by my Advisory Committee. This Committee is not composed of practising lawyers but represents the lay interest in the Legal Aid Scheme. The noble Lord, Lord Citrine, ought to approve of that, in view of the very admirable speech he made on a legal Bill the other day. The Reports of this Committee, first under the chairmanship of Sir George Aylwen, and latterly under the chairmanship of the noble Viscount, Lord Bridgeman, who unfortunately is unable to be in his place to-day, have been of inestimable value to myself and my predecessors. They have map read our course and have ensured that the public got value for its money, whether spent in contributions or spent in taxes. I am most grateful to the noble Viscount and the other members of his Committee for the interest they have taken in these matters and for the keen sense of responsibility with which they have watched over the fortunes of the Scheme.
In January, 1959, I requested them to consider the financial provisions of the Legal Aid and Advice Act and of the Legal Aid (Assessment of Resources) Regulations, the two instruments which define financial eligibility for legal aid and the financial terms upon which it will be offered. The Committee reported in June and their Report was presented to Parliament last December. Let me first explain how the financial 704 provisions of the Act and the Regulations interlock. Although the Advisory Committee's task related only to England and Wales, their views bore, of course, equal relevance to Scotland, and the Bill relates to both countries. Both sets of Acts and Regulations are the same, so that in speaking of one I am speaking for both.
The Act provides financial limits below which legal aid is available, either free or on payment of a contribution. Those limits are described by references to what is called "disposable" income and "disposable" capital. Disposable income and disposable capital is income and capital after making certain deductions and allowances, and those deductions and allowances are prescribed in the Assessment of Resources Regulations. With reference to those Regulations, the Committee recommended changes with regard to both income and capital. Their first recommendation related to rent. Under the recommendations of the Rushcliffe Committee fifteen years ago, a legally-aided person received no rent allowance for the first 15s. a week of his rent. The Committee recommended that in future the full rent should be allowed. That recommendation was adopted last September, increasing the allowances of nearly all assisted persons by 15s. a week.
The allowance for children has always been the same as the allowance made under the National Assistance (Determination of Need) Regulations. They have therefore increased as and when the Determination of Need Regulations have been altered. The allowance for a spouse or an adult dependant is fixed in the Legal Aid Regulations. The Committee's second recommendation was that the allowance for a spouse shall equal the National Assistance allowance. I hope my noble and learned friend Lord Conesford does not share the disapproval of Mr. King in Stalky and Co. in regard to the use of the word "spouse", otherwise one has to use the words "husband" and "wife" each time. If he does, I apologise, because I shall continue to use the word "spouse". The immediate effect of this recommendation was to increase the allowances by a further 15s. a week in respect of married applicants. That recommendation was also carried out in amendments made to the Regulations last September.
705 With regard to capital, there is now an allowance of £75 where an assisted person is married or has other dependants. There is no increase in the allowance, however many dependants (children, for example) he may have. The Advisory Committee recommended that in future there should be an allowance of £75 in respect of the first dependant, £50 in respect of a second and £25 for any other dependant. I propose to implement that recommendation as soon as this Bill passes.
I now come to compare three things: the financial provisions of the Act, the Advisory Committee's recommendations about them and the proposals in this Bill. Section 2 (1) of the Act provides that legal aid shall be available where disposable income is £420 a year or less. The Advisory Committee pointed out that the cost of living has increased by over 75 per cent. since the Rushcliffe Committee reported, and recommended increasing the figure of £420 to £750. This increase, of just over 78 per cent., would therefore restore the limit in real terms to that recommended by the Rushcliffe Committee. They pointed out, moreover, by reference to the Blue Book on Income and Expenditure, that this would make legal aid available, broadly speaking, to the same number of incomes as had been eligible in 1949 when the Legal Aid and Advice Acts were passed.
These were cogent reasons for accepting their figure. But the effect of their recommendation can really be studied only by seeing what the result of the recommendation would be after taking into account all the allowances made under the Assessment of Resources Regulations. I have already described the allowances for rent and for wives and children. Allowances are also made for income tax and rates, expenditure on house repairs, expenses incurred in travelling to employment, trade union subscriptions, superannuation payments, National Insurance contributions, any other insurances or reasonable hire purchase commitments, and, to use the words of the Act, other matters for which a person must or reasonably may provide. When these are taken into account, the effect of the Committee's proposals would be that legal aid would be available for a single person with an income of considerably over £1,250 a year and 706 to a married person with children with an income of considerably over £1,500 a year.
The Government feel that gross limits of about those amounts fully protect those of small or moderate means who, under the Long Title to the Act, are to be catered for. People with incomes of above the figures I have just mentioned have resources—ipossibly their own houses and facilities generally—which enable them to raise cash to meet the demands of litigation. We have therefore come to the conclusion that an upper disposable limit of £700 a year and not £750 is about right for this purpose. That will enable people with between £1,250 a year, and £1,500 a year, depending upon whether they are single or married or the number of children they may have, to get legal aid. This is an increase of over 66 per cent. above the present figure which was approved by Parliament in 1949, and the cost of living has increased by only 52 per cent. since then. The latest Blue Book on National Income and Expenditure, which was not available to the Advisory Committee, shows eligibility for legal aid will still be greater than it was in 1949. Clause 1, subsection (1), of the Bill therefore seeks to amend Section 2 (1) of the Act by altering the figure of £420 disposable income to £700 disposable income.
I now turn to the upper capital limit. Under the proviso to that section of the Act, a person may be refused legal aid if, (1) he has disposable capital of more than £500, and (2), it appears that he can afford to proceed without legal aid. The Advisory Committee recommend no change in that provision and none appears in the Bill. In another place this recommendation came in for some criticism and I therefore asked the Advisory Committee to look at it again. They issued a report last February saying that on reconsideration they were still of the same opinion as they had been last June. It must be remembered that this is a purely discretionary provision. Legal aid can be refused under it only if it appears to those granting legal aid that there are sufficient resources available to the applicant to meet the costs of his contemplated litigation. The test is expanded in the Regulations. Under paragraph 8 of Regulation 5 of the Legal Aid (General) Regulations, 1960, the 707 Committees are to refuse an application only if they think the maximum contribution which the assisted person will pay, if he gets legal aid, will meet the litigious costs in full. The Act requires a contribution of all the disposable capital less £75, and by a further provision in the Bill that £75 is to be increased to £125. Refusals of legal aid under the discretionary power can therefore occur only when there is a contribution of more than £375 out of capital, that is, £500 less £125, irrespective of any contribution which may be required from income.
My Lords, it is useless to offer legal aid, for example, in a county court proceeding, where the full costs are likely to be £50 or so, and to tell the grateful recipient that the maximum contribution he may have to pay to the Legal Aid Fund is going to be £375. He would really get no benefit from legal aid in those circumstances, for although the Act makes special provision in cases of assisted persons losing their action they could hardly come into play when the total cost was £50 and it was known that he might have been found capable of contributing over seven times that amount to the Legal Aid Fund. Similarly there is really no justification in giving a person legal aid for a maximum contribution of at least £375 when he wishes, say, to take divorce proceedings which are certain to be undefended. The costs in that case would probably be less than £100, and the only benefit he would then get would be at the expense of his lawyers, because in cases of that kind the lawyers forgo a percentage of their taxed costs. One asks, why should the lawyers make this sacrifice when the man is fully able to pay?
I have now dealt with the financial limits above which a person may be refused legal aid. Section 3 of the Act defines the financial limits below which a person will get that legal aid for nothing. The present income limit is a disposable income of £156 a year. The Advisory Committee recommend that that should be increased to a disposable income of £275 a year, an increase of about 76 per cent., thus putting the clock back, in real terms, to the time of the Rushcliffe Report. In addition to that argument they expressed the view that a single man or woman with five guineas a week after payment of his 708 rent has nothing to spare for contributing towards his legal costs. Again I would ask your Lordships to examine this proposition in the light of the allowances which are made. I have already described the kind of allowances they are. All that is left for someone to pay for from his disposable income is food, clothing and footwear, fuel, light and power and replacements of household goods. If your Lordships are following me, you will remember the list I gave of items which come into deduction before disposable income is arrived at.
The effect of adopting the Advisory Committee's proposals, after deducting the allowances, would have been to allow a single person earning something over £10 per week to get legal aid for nothing. In the opinion of Her Majesty's Government £10 a week is about the limit at which free legal aid should be granted, and we therefore propose in Clause 1 (2) of the Bill a free income limit of £250—not the £275 recommended by the Committee. The effect of that is that a single person will have over £4 16s. a week for his ordinary living expenses—that is, for the items I have just mentioned—apart from those items for which special allowances are made: those in the list that I gave your Lordships earlier. It is an increase of 60 per cent. on the existing limit—8 per cent. more than the cost of living has increased since 1949.
The free income limit has another effect, because it is those with incomes above that figure who pay a contribution towards the costs of their cases. The Act provides that the contribution shall be one half of the excess over the free income limit. The Advisory Committee have recommended that the proportion should in future be one-third of the excess, and that recommendation has been adopted and also appears in Clause 1 (2) of the Bill. This is a most important provision. It is a great advance on the original Rushcliffe Scheme and I am delighted that we are now in a position to relax the rate of contribution in this way.
That completes the picture so far as income is concerned. This may be, therefore, a convenient moment to look at the effects. Taking actual cases which have been before the National Assistance Board, and adjusting them to meet the new circumstances, we get these results. First, a single person with no dependants 709 who has a gross income of £520 a year (or £10 a week), paid a contribution of £64 before September, 1959. After the Assessment of Resources Regulations relating to income were amended last September, he would have contributed £44 10s. Under the proposals in the Bill he will pay no contribution at all.
Take a case which is very common in the Legal Aid Scheme—that of a separated wife, with two children, whose gross income is £750 a year and who has family allowances of £21. Before September, 1959, she would have paid £104 in contributions. At the present moment she would contribute £79 10s. 0d; and after the passage of the Bill she will contribute £21 10s. 0d. That is a very considerable advance. As my third case, I take a married couple, with three children, with an income of £1,000 a year and £47 derived from family allowances. Before September, 1959, they would have got no legal aid at all; neither would they get it at the present moment. But hereafter, after this Bill has become law, they will be eligible for legal aid at a contribution of £61 10s. 0d. Finally, those who just qualify for legal aid would pay a maximum contribution from income of £150.
I turn now to capital. As I have already explained, a contribution of all the disposable capital less £75 is required under Section 3 (1) of the Act. The Advisory Committee recommended increasing this free capital to £125, and that is provided by Clause 1 (2) (b). It will be appreciated that this relates to disposable capital, and, just as allowances are made from income, so allowances are made from capital to form the disposable capital. I have already referred to allowances for dependants and what I propose to do about them. In addition, certain types of capital assets are especially protected. The owner-occupied house is valued only at one-half of its value free from encumbrances above £2,000; and because house values have increased in the past years I am proposing to raise the £2,000 to £3,000.
Secondly, the contents of a house, save in exceptional circumstances, and articles of personal clothing and tools and equipment of trade, are ignored. The older of us have to stop and think what that means. To-day there are some 10 710 million television sets, so that in two houses of three the contents to which I have referred would include a television set; and where the applicant uses his car for his business—for example, a commercial traveller—the car would also be included. Finally, the Board have a special discretion to adjust the allowances from capital in special circumstances. The most frequent circumstance is that of a person who is using capital to eke out a small income. Adjustments are made for that reason and, because the general financial provisions will now be more generous, the Board will be able to act with increased generosity in those circumstances. It has always been thought right to differentiate between the ways capital and income were treated under the scheme. As we all know, the tendency nowadays is to live up to one's income, and it is impossible to expect a litigant with a fairly modest income to alter his whole way of life so as to provide for all his costs out of his income. But capital, as the Rushcliffe Committee pointed out, as Parliament agreed in 1949, and as the Advisory Committee agreed last year, can and should be used for the emergencies of litigation.
My Lords, the Advisory Committee wisely recommended that the new limits should be capable of more rapid adjustments than they have been in the past. Subsection (3), read with the preceding subsections of Clause 1 of the Bill, accordingly provides that the limits can be increased (but not decreased) by Regulations, subject to the Affirmative Resolution procedure. This has always been a feature of National Assistance, and the effect may be seen from the fact that, while the legal aid rates have remained unchanged since 1949, the National Assistance rates have been increased under this procedure seven times since 1948.
Subsection (4) of Clause 1 makes transitional provisions to enable those whose incomes have been determined for the period in which the financial limits are changed to get proportionate benefit from them. Clause 2 gives power to reduce the lawyers' contribution to the Legal Aid Scheme. At present, following the recommendations of the Rushcliffe Committee, barristers and solicitors acting for legally aided people get 85 per cent. of their taxed costs in 711 proceedings in the superior courts. It is right that I should point out—and I am sure that the noble Lord, Lord Milner of Leeds, will make this point clear—that that is taxed costs, the whole costs, and not profit costs, so the deduction is made from their total costs.
The Advisory Committee recommended that that 15 per cent. should be reduced to 10 per cent. But in England, at any rate, legal costs are in a transitional stage. Only recently have the Supreme Court Rule Committee increased very considerably the amount of litigious costs in the High Court and Court of Appeal, and without expert advice it is hard to see exactly how solicitors and barristers will be placed, taking into account, on the one hand the large increases they may have to meet in their overhead expenses and, on the other hand, the greater benefits they will receive under the new Rules of Court. In these circumstances I have invited the Chairman of the Bar Council and the President of the Law Society to investigate the position of the two professions and to let me have a report. I understand that the report from the Law Society, which is perhaps the more complex, will reach me very soon, and it will, of course, receive early and careful consideration. I think that the Bar Council and the Law Society fully agree with me that it is right that the lawyers should carry on with the centuries-old tradition of not charging full fees to those of small or moderate means. On the other hand, it is only right and proper that they should be fairly remunerated for the work.
Clause 3 applies only to Scotland. Their Scheme requires applications to be made in considerable detail, and solicitors inevitably are put to expense in satisfying the Scottish conditions, and that is provided for. The English Scheme does not require this provision because solicitors do not have to do the same amount of work as their Scottish brethren in preparing applications for legal aid, and where the client cannot afford to pay them himself they are entitled to be remunerated under Section 7 of the Act, as helping to complete an application for legal aid comes within the definition of oral advice. Finally, Clause 4 of the Bill resolves a minor accounting difficulty.
712 My Lords, I have detained you for a long time over a small Bill, but the background is complex and that has taken me some time to explain. But, in the result, taking into account the more liberal allowances and the reduction in the amount of contribution, I am sure that your Lordships on both sides of the House will welcome this Bill as remedying the ills which the rising cost of living has led to and in alleviating the conditions of litigants of small and moderate means. I beg to move that the Bill be read a second time.
§ Moved, that the Bill be now read 2a.—(The Lord Chancellor.)
§ 5.5 p.m.
§ LORD MILNER OF LEEDS
My Lords, the House is greatly indebted, I am sure we shall all agree, to the noble and learned Viscount on the Woolsack for the review he has given both of the contents of the Bill now before the House and of the history and attainments (if I may use the expression) of the Legal Aid Scheme. It was first brought into the law of the land by the Act of 1949, and was gradually extended by the various ways and in the various matters to which the noble and learned Viscount has made reference. I like to think of the Legal Aid Scheme as really implementing, if not wholly, at any rate to a large extent, the promise made by King John in Magna Charta: that justice should not be sold or denied or delayed to any man. I think that this Scheme, added to, as it has been, year by year, and now put on an even more favourable basis to applicants, goes a long way, though not the whole way, towards carrying out that very desirable end.
The Scheme also has in mind another general principle; that hardship should, wherever possible, be alleviated. Of course, that hardship may, in certain circumstances, be equally as great to a man or woman of quite considerable means, as to a man of very modest means. There was a case the other day—in fact there have been a number of cases lately—which took a considerable time, possibly a fortnight or three weeks. To a man with, if you like, £5,000 or £10,000 in capital, a case in the High Court, with leading counsel, might well use up the whole of his capital and cause him hardship equal to that caused to a man who had only 713 £500 capital and was called upon to make a contribution of a large proportion of that sum in a case which he was bringing or defending. Therefore it may be that in the years to come we shall have to consider even greater increases in the limits of disposable income up to which relief or legal aid has to be given.
I recollect the introduction of this Scheme, in another place. It was introduced with a great deal of—shall I say?—timidity on the part of all concerned, because it was not at all clear how it would work out: whether there would be a great increase in litigation or whether it would be a flop; whether the various limits set were high enough or low enough. Gradually, however, it has become apparent that the scheme, even on its original basis, and still more so as it has developed, has in fact been a great success. If I may say so, I think that is due in very great part to the support and sympathetic attitude which has been taken by the noble and learned Viscount on the Woolsack and by his Department, and to the work of the Law Society. And, not least, it is due to the efforts of some 10,000 solicitors and barristers who have operated the Scheme at, as I think, a discount, if not, indeed, almost a cut price; because the proportion of 15 per cent., as the noble and learned Viscount has explained, is not 15 per cent. of profit costs, but 15 per cent. of the total taxed costs, and it takes no account of the costs which might be properly charged as between a solicitor and his own private client in an ordinary case. Therefore, the contribution made by lawyers in both branches of the profession is a very substantial one. My own view is that on the basis which has hitherto existed, many of these cases have been carried on by solicitors and barristers at a loss. I shall probably say a word or two about that later.
My Lords, the noble and learned Viscount on the Woolsack has told us how the Scheme was originally brought in, and how it then applied only to the High Court. Since then, it has been extended to the county courts; it has been extended to enable legal advice to be obtained under the Act—a very valuable extension—and I think I am right in saying that it has been, or is about to be, extended to magistrates' courts. Yet there are still other courts to which this Bill does not apply. One hopes that 714 eventually the principles of the Legal Aid Scheme may be extended to litigation in the House of Lords; to proceedings before the Judicial Committee of the Privy Council; perhaps to coroners' courts, where frequently poor people require help to represent their points of view; and, it may be, to various tribunals, and even, perhaps, to arbitrations. I think that in one form or another the noble and learned Viscount on the Woolsack has power, subject to either Negative or Affirmative Resolutions, to make Regulations or in other ways to bring the various courts not at present within the purview of the Act within it; and to enable those who have business to do in those courts, and who are unable to bring their cases or applications without assistance, to do so.
My Lords, the noble and learned Viscount has explained that, in effect, there is a means test before one can obtain legal aid. He has explained that the disposable income limit up to which one can obtain that aid has hitherto been an income of £420 a year. That limit has now been raised—or will be raised when this Bill becomes an Act—to £700 a year. I think the noble and learned Viscount said that that was rather more than equivalent to the original £420. But it is curious that the Advisory Committee recommended the figure of £750, and that the Government have thought fit to cut this down to £700. The limit of £500 capital remains because, as I understand it, that is not, so to speak fixed: it is subject to discretion. In appropriate cases, where hardship would be caused to an individual having £500 worth of capital and who had to make an adequate contribution from that sum to the anticipated costs of litigation, there is a discretion to deal with the matter. In such a case the figure of £500 is not final. Then, again, the figure of income below which no contribution is required, in any circumstances, is increased by £250. Of course your Lordships will appreciate that these changes take account of the change in the value of money, and they extend the benefits of the Scheme to many who would not otherwise be able to have these advantages.
My Lords, I do not wish to be pernickety, but I think that, having regard to the great success of the Scheme and to the advantages it has conferred on 715 many thousands of people, it is unfortunate that it was not carried further ere this. Even under the Bill before the House, the cost is estimated at little more than £2½ million a year—a comparatively small sum to confer this great benefit, year by year, on some 20,000 to 30,000 persons who would not otherwise be able to obtain the justice to which they think they are entitled. I think I am therefore justified in saying that it is unfortunate that the increases in this Bill have been delayed so long, though I admit that year by year the noble and learned Viscount on the Woolsack has extended the Scheme so as to cover the different courts and the question of advice. To that extent, the matter has therefore been under review, and improvements have been made since 1949.
I should like to revert just for a moment to the question of the 15 per cent. discount which, under the Scheme as it is at present, solicitors and barristers have to allow from their taxed costs. Here I ought perhaps to declare an interest in that matter. But I should like to press it upon the noble and learned Viscount on the Woolsack that, apart from the query as to why this particular profession should be singled out to do "cut-price" work, it is common knowledge that in the legal profession, as in every other profession, costs have gone up enormously: rents are up, and clerks, assistant solicitors and secretaries are all difficult to obtain at prices which many solicitors can afford to pay. Indeed, I think there are instances where people apply under the Legal Aid Scheme for the help of solicitors who in fact are not earning as much as the applicants. That applies particularly, of course, to country practices, where solicitors have some distance to go to the local district registry, to the assizes, or whatever it may be. In my view, there is no justification for asking lawyers in either branch of the profession to work for less than the normal costs. In any event, if the basis is taxed costs, they will be working at less than the costs which would be obtainable from one's own private clients, because there are many items of work done by solicitors (and by barristers) which are not admitted for the purpose of taxation but which are still incurred for the benefit of the litigant, if he be a litigant, and which enure to his benefit. 716 I therefore hope, my Lords, that the noble and learned Viscount on the Woolsack will give some consideration to the question of doing away altogether with the 15 per cent. discount or allowance which lawyers at present are having to forgo in these legal aid cases.
There are two other points which occur to me. The first is that I sometimes think—and I believe others think with me—it rather unfair that where an assisted person brings a case to court against an unassisted person and the assisted person loses, the unassisted person (and, presumably he is the defendant in the majority of cases), who has won his case, should have to pay his own costs and should not have recourse to the Legal Aid Fund for reimbursement in whole or in part. This is commented on in the Ninth Report of the Law Society on Legal Aid, which says:During the year under review the attention of the Council"—that is, the Council of the Law Society—has been drawn to the view expressed in Parliament and the Press that provision should be made whereby the opponent of an unsuccessful person could in proper cases have his costs paid out of the Legal Aid Fund. The Council consider these criticisms are well founded and in their view provision should be made accordingly.One hopes that that may soon be brought about.
The other question which occurs to me has relation to Scotland. I do not profess to be an authority on Scottish law, but I gather that the practice in some directions is rather different there. I have sat at times on a certifying committee in England which has had to judge whether an applicant had a prima-facie case on which a certificate should be given for him to secure legal aid. As your Lordships will appreciate, in sitting on a committee having to give a decision on that question, one has statements before one of witnesses on the one side only, and no information as to whether there is any objection from the other side, or any particulars of the defendant's case, and a decision has to be come to on information supplied by the one side only, without hearing the other side. I understand that in Scotland the certifying committee asks the prospective defendant whether he or she has any objection to the giving of legal 717 aid. That gives an opportunity to the unassisted person to put forward any case or any points which he or she has by way of objection.
One of the functions of trade unions is to take up cases on behalf of their members and to bear the expense. A member submits an application and the solicitors to the trade union consider the case and its possibilities and may advise that there is no case. There have been instances where, notwithstanding that expression of opinion and the eventual decision of the trade union not to support the case, the individual concerned has gone to the legal aid certifying committee and obtained leave, because, of course, the certifying committee had no knowledge that the trade union had already investigated the case and come to a decision against the applicant. It is a difficult matter, and some may think a reflection on trade unions, in one sense, if that sort of thing happens, but they do their best for their members and if they are of opinion that a member has no case, the certifying committee should have information and pay some regard to that fact. It is possible for there to be abuse of the Legal Aid Scheme in some instances, and it would appear that the practice in the Scottish courts, whereby the certifying committee asks the prospective defendant whether he or she has any objection to legal aid might be considered as being a useful practice to institute in the English courts. That, however, requires careful consideration.
I am afraid that I have detained your Lordships for some time. We on this side of the House wholeheartedly support the Bill. We think it will bring help and relief and, we hope, justice to a great many people who would otherwise not be in a position to take steps to obtain what they believe to be their rights. We hope that when the occasion arises the limit will be raised again when necessary; and this. I gather, will be possible without recourse to Parliament, because the noble and learned Viscount the Lord Chancellor and the Secretary of State for Scotland will have power under this Bill to make regulations. I hope that that will be done from time to time, if and when the necessity arises, and also that the scope of the Legal Aid Scheme may eventually he extended to those portions of our legal system to 718 which at the moment it does not extend. We support the Second Reading of the Bill.
§ 5.27 p.m.
§ LORD OGMORE
My Lords, I, too, should like to thank the noble and learned Viscount on the Woolsack for the full and detailed explanation he has given of the provisions of the Bill, and also for the illustrations which he had carefully prepared for us. After listening to the noble and learned Viscount I think that probably the new figures are about right. It is very much a question of judgment and opinion; one could take one basis for an increase, or another basis, but I should imagine that the basis proposed, which has been obviously carefully worked out by the noble and learned Viscount and his advisers, is about right.
As to the wider considerations other than those contained in Clause 1 of the Bill, I think we should all agree that this is a most remarkable scheme. It is a social service which is, to a large extent, in the early stages and mechanics of it, done voluntarily. The committees which consider whether there is a case for a certificate act voluntarily; it is run by a voluntary organisation, the Law Society, and also, to some extent, the Bar Council, in conjunction with the Lord Chancellor's Department and the courts. It is, I suppose, a remarkable instance of the British way of doing things in an empirical fashion. Here is a great social service which was started in quite a small way and is being built up largely on a voluntary basis.
In the early days of the system certain criticisms were levelled at it by those who had experience of it. The first, I think, was that not all the courts were covered. The noble and learned Viscount has brought more and more of those in, and now, by and large, except for one or two elevated ones whose decision the average litigant is not likely to want to seek, that loophole has been stopped up. Then there was what, to my mind, was a much more important criticism: namely, that the litigant did not come before the committee until things were pretty far gone and he wanted to go to court. There was no system of advice. I think it was a most important reform when the Lord Chancellor, I believe last year, brought in the new situation that the person who felt himself or herself aggrieved could seek 719 legal advice. It has been my experience in thirty years or more of practice that time and time again if you can get at the person who is aggrieved early enough you can do a great deal without any recourse to litigation. I should think that for every case that appears before the court at least ten are settled out of court without even any pleadings being exchanged between the parties or a writ or summons being issued. That, to my mind, is of great value to the public, and particularly to those who desire to take advantage of the Legal Aid Scheme.
The third criticism was the one just mentioned by the noble Lord, Lord Milner of Leeds, which I was going to mention in any case, namely, what happens to the successful defendant—that is, where a person who takes advantage of legal aid goes to the court and is not successful. The successful defendant has been put to considerable expense, and as at present—I am subject to correction by the noble and learned Viscount—I believe he has no recourse against anyone unless he can get something out of the plaintiff. That is not very likely, or such a person would not have obtained legal aid in the first place. I confess that it is a very difficult, question to answer.
Of course, the offchance of that ought not to dissuade the Committee which is giving the legal aid certificate; if they think the plaintiff has a resonable chance, then they should give him a certificate. The fact that he might lose owing to some point of law which they cannot be expected to decide, should not dissuade them from giving him a certificate. Yet a good deal of injustice, harm or damage may accrue to the successful defendant. Is it right to load the scheme up with his costs? That is really what one has to decide: whether the public should bear the costs which now the successful defendant has to bear.
I think the whole attitude towards litigation has completely changed, even from the day when I started in practice. When people go to litigation nowadays, if, they are plaintiffs they expect to win, and if they are defendants they do not expect, if they win, to bear any costs or charges whatsoever. That is quite different from the old days. I remember my grandfather telling me when I was a boy that he had had a case, and had 720 won it. I said, "Did you get anything as a result?" He said, "Good gracious, no! I won the case." It did not seem to worry him at all that he had got nothing out of it. I am sure that in those days, particularly perhaps in Wales, where people are a little more litigious, when one won the case the fact that one got nothing out of it was regarded as a comparatively minor matter. The sporting outlook on litigation is not now present at all—not in England, at any rate.
One must have regard for the fact that this will become more and more a factor, and complaints will be made more and more by those who successfully defend a suit that they cannot get anything out of the plaintiff by way of costs which they have suffered in the action. I am glad I have not got to decide that problem. It is very difficult to decide how we are to put it right. At the present moment, at all events, the Lord Chancellor has dealt successfully with two of the main criticisms of the Scheme, and I have no doubt that, in the course of time, if he has the time on the Woolsack to deal with it, he will be able to deal with the third.
§ 5.33 p.m.
§ LORD SPENS
My Lords, may I raise one short point? I should like to add my word of thanks to the noble and learned Viscount on the Woolsack for all that he has done in this Scheme. But as one who has come recently from another place representing constituents, I may mention that I had three cases of exactly the same kind last year. They were all cases where the plaintiffs had obtained certificates that they were entitled to legal aid. They were told that they had a good case, and that they could go ahead. According to their own stories, no one had warned them that they were liable to make a contribution towards the costs. I do not know what the regulations are. I should have imagined that a plaintiff, after getting a certificate, should have signed something saying that he knew that in any circumstances he might have to make a contribution. If the regulations do not require some sort of signature from a plaintiff that he knows that he may have to make a contribution, then I would suggest to your Lordships that the new regulations should include something of that sort.
721 One was accustomed to the complaints of those who were dissatisfied with having been turned down by the committees, but it was a new thing to me to have a complaint from educated people who had started their litigation without knowing that they had to make any contribution. One, at least, said that in no circumstances would she have started the litigation if she had thought she was liable to make any contribution out of her limited amount of capital. I hope that that matter will be attended to by the regulations, if it is not already there.
§ LORD CONESFORD
My Lords, I shall not delay the House for more than a moment. I rise only to welcome this Bill and to congratulate my noble and learned friend upon it. I should like also strongly to agree with what was said by the noble Lord, Lord Ogmore, on the great value of the extension which enables advice to be given, and not merely assistance with litigation.
§ 5.37 p.m.
§ THE LORD CHANCELLOR
My Lords, I am grateful, first of all, collectively to all your Lordships for what you have said. If I may take the penultimate point first, that raised by my noble and learned friend Lord Spens, I am informed that there is a plain statement on the form of application that a contribution may be required. In view of what my noble and learned friend has said I will look into the point specifically and see whether we can give it any greater prominence, but, in fairness to those running the Scheme, I should like to tell him that it is on the form. I am sorry that his constituent should have missed it. I agree with what the noble Lords, Lord Ogmore and Lord Cones-ford, have said about the importance of the advice provisions. I have always shared their view, and I am glad that I shall be able to secure that those provisions shall come into operation.
The debate was opened after my speech by an interesting and informative speech from the noble Lord, Lord Milner of Leeds. It is tremendously important that everyone should recognise, as all your Lordships have recognised to-day, that (to put it in the slightly more cheerful terms in which it has often been put before) the statement that "the Courts of Justice, like the Ritz Hotel, 722 are open to everyone" is something which we have definitely decided to end. We know, and will agree, how important a badge of civilisation good judges and good courts are, but unless we can see that people of middle and lower ranges of income can come to these courts, then they are not really fulfilling their purpose in the State. I am sure we are all in agreement upon that.
Everyone has had in mind the position of the successful unassisted defendant. The noble Lords, Lord Milner of Leeds and Lord Ogmore, mentioned it, and we have all had it in mind. Of course there comes a point, quite irrespective of our Party political views, which we must all consider; and that is what it is fair to put on to the general body of taxpayers and what chance the individual must take for himself in life. The chance of being sued unsuccessfully is one which, of course, has always been there, and one must remember that all the State is doing is to give the other person, whose case, after all, has been investigated by the original committee, the chance of bringing that case. I find it very difficult to accede to the view that that is necessarily a matter for the general body of taxpayers. None the less, I am greatly concerned about the problem.
I believe that there are certain things that I can do, because it has been suggested that the assisted litigant should go to the Court of Appeal only with leave of the court. But, just to show the difficulty of the problem, I have had the figures prepared for me. These show that the overall percentage of successful legally-aided appellants is over 44, whereas the overall percentage of successful appellants to the House of Lords, where leave has to be obtained, is only 32 per cent. That just shows the sort of difficulty that arises.
I think there are two important matters which are not sufficiently known. The unassisted person's opponent is entitled to refer the case to the area committee when he thinks that the assisted person has unreasonably refused a fair offer to settle the case, whether or not that offer was made without prejudice. I think that that should be made clear, and amendments to the Regulations with this effect will be put before me when the Regulations have to be amended to provide the financial limits for legal aid in matters 723 not involving litigation. I believe that that will be a strengthening of the procedure by which representations can be made, and may prevent unmeritorious cases being continued. I shall do my best, and of course it is a matter for individual judges, with whose discretion I am very chary of interfering. However, I feel that I might be able to bring to their attention the great importance of exercising their powers so that assisted persons do, in fact, pay all their opponents' costs they reasonably can. Sometimes it has been said to me that they are rather inclined towards an assisted person and let the matter go. I will pursue both those lines, and I hope that they will have some effect; and, as I have said, I shall always consider the more general problem although it is one on which I have grave doubts.
The noble Lord, Lord Milner of Leeds, asked me to consider the question of doing away with the deduction. Of course, I will consider very carefully what he said, and I will consider the memorandum that I receive from the Law Society. I must say that, sentimentally, I should be rather sorry to see it go. For hundreds of years it has been a tradition of the profession to make some gesture. We all have memories of very long days in court, with practically no fees, in our early years, though we must not make our successors suffer the same thing just because we suffered it ourselves. At the same time, I believe there was a real satisfaction in making the contribution that we made. The whole question is one on which I have invited the Law Society to put their 724 views before me, and I can assure the noble Lord they will be considered.
I addressed your Lordships for a long time in opening this debate, and I think that I have dealt with most of the points. I should only like to add my own contribution to the state of mind which the noble Lord, Lord Ogmore, described so charmingly. One of the most moving experiences of my life was appearing in a magistrates' court in North Wales. My client had two charges made against her: one was for assaulting the police and the other was for a breach of the local market regulations. I got her off the assault and she was convicted and fined 40s. for the breach of the market regulations. I went back with my solicitor and found her in floods of tears. I said, "I am very sorry", and she said, "Oh, it's not the fine, Mr. Maxwell Fyfe; it's you having lost the case after all you did." I thought it exactly exemplified what Lord Ogmore said, and I should like to close on that irrelevant but, to me, always charming note of the delights of litigation in the Principality of which I am so fond. I thank your Lordships very much for your reception of the Bill.
§ On Question, Bill read 2a; Committee negatived.