§ [The Question was as follows:
§ To ask Her Majesty's Government whether they will consider introducing legislation to enable a defendant in a civil action in which the plaintiff is receiving legal aid himself to receive legal aid.]
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)My Lords, I fully appreciate my noble friend's desire to help in solving a problem which, as I have stated to your Lordships recently, causes me considerable concern. I will naturally consider his suggestion carefully, but I am sure my noble friend will realise that his suggestion would involve using the Legal Aid Scheme for a purpose fundamentally different from that for which it was intended. For the Legal Aid Scheme is primarily intended, and I may say is primarily used, to enable people of slender means to get redress for their wrongs in the courts. His proposal would mean a considerable extension of State-subsidised litigation for the benefit of persons in quite different financial circumstances. I am, therefore, doubtful whether a solution on these lines would prove desirable.
LORD SALTOUNMy Lords, I am very grateful to the noble and learned Viscount for his Answer. May I put this further question? The institution of legal aid was to remedy what everybody felt to be an injustice and if, in doing that, it has created another injustice, would it not be better to modify the scheme to avoid any injustice?
§ THE LORD CHANCELLORMy Lords, the search for absolute justice is naturally the guiding star in my legal life. I think my noble friend will agree that there was an injustice which had to be remedied. I can only assure him that I am working very hard to get the best level of justice for everyone, and I shall bear in mind what he says.
§ LORD SILKINMy Lords, would the noble and learned Viscount, in his examination of this matter, bear in mind 1217 that there are many defendants who are successful in actions but are not legally aided and who fail to get their costs from the plaintiff? Would he think it right that the State should pay for those as well?
§ THE LORD CHANCELLORMy Lords, clearly that is one facet of the problem which I must bear in mind. I should like to say, as we have discussed the matter, that I am quite sure, having ben responsible for the Scheme for six years, that it does an enormous amount of good. As I ventured to put it in a slightly lighter mood to your Lordships a short time ago, the sneer has often been cast on the law and legal proceedings that "they are open to everyone, like the Ritz Hotel." I think that we have prevented that sneer from having a foundation, and I shall go on trying to improve the Scheme.
§ BARONESS HORSBRUGHMy Lords, may I ask the noble and learned Viscount whether he does not think that there might be some scheme for a means test of defendants? Because surely there are cases where a would-be defendant cannot go to the courts—in other words, cannot, as the noble and learned Viscount has said, go as to the Ritz—because he dare not undertake something that may involve such tremendous costs for him. If he is a man of slender means he is in this way also debarred.
§ THE LORD CHANCELLORYes. But I should assure my noble friend the noble Baroness, that the Legal Aid Scheme is open to defendants as well as to plaintiffs, and that defendants can have exactly the same assistance, so far as their costs are concerned. With regard to the financial consequences of losing the action, that, as I think my noble friend would agree, is not a matter which the Government can help.
§ LORD MORTON OF HENRYTONMy Lords, may I put to the noble and learned Viscount this aspect of the matter? It seems to me that the proposal put forward by the noble Lord, Lord Saltoun, gives rise to this difficulty: that nobody can bring an action on legal aid unless he has satisfied the relevant committee that he has a reasonable chance of success in his case. I also apprehend that any defendant applying in the same action for legal 1218 aid would have to convince the committee, possibly the same committee, that he too had a substantial chance of success in the case. It would seem strange that the State should subsidise both the plaintiff and the defendant with legal aid. With all sympathy with the noble Lord's suggestion, I do see that difficulty in it.
§ THE LORD CHANCELLORMy Lords, I am sure that the whole House will be grateful to my noble and learned friend for a new and up-to-date version of Morton's Fork.