HL Deb 13 February 1964 vol 255 cc654-75

3.44 p.m.

Debate on Second Reading resumed.

LORD SILKIN

My Lords, those of us who are interested in the subject of legal aid will have had the advantage of hearing the noble and learned Lord the Lord Chancellor on this subject once before. It was an unfortunate occasion because I think there was some mishap and the Bill should never have been introduced in this House at that time. But I was glad that on both occasions the noble and learned Lord went out of his way to say that the Legal Aid Bill had been a success and that a great many people who would not otherwise have been able to get justice done had benefited from the provisions of that Act. That is certainly true.

This is not the occasion to go into the statistics or to discuss the workings of the Act; we have done that on a number of occasions. The extent of the successes of assisted persons is really remarkable and it does justify the provisions of this Act in every possible way. I thought I would say that, because it might be thought by the introduction of this Bill that some reflection was cast on the system of legal aid; and I am quite sure that the noble and learned Lord the Lord Chancellor will agree that there is nothing of the kind involved. But we all recognise that injustice can be done or hardship caused to successful litigants who are not State-aided as a result of the assistance given to persons to bring actions. This Bill is an attempt to try to mete out some kind of justice and to alleviate hardship.

My criticism of the Bill is that it is rather vague in the way in which it is going to operate. It leaves far too much to the discretion of the court without giving the court any direction as to how that discretion is to be exercised. In order to qualify for assistance three conditions have to be satisfied. First, the unassisted party must have been the defendant in an action brought by the assisted party. That is quite understandable and, I think, right. But the Bill makes no provision in terms for the position where there is an action brought by an unassisted party and there is a counterclaim brought by the assisted party and the real proceedings are based on the counterclaim. Whether in that case the unassisted party can get relief under the terms of this Bill is not clear.

THE LORD CHANCELLOR

My Lords, forgive me for interrupting for one moment. I thought that I indicated this when I said that that is one of the matters that will be dealt with by regulation under Clause 2 (1). As a matter of fact, I gave the instance of a counterclaim as one of the particular cases.

LORD SILKIN

My Lords, I am sorry but I did not catch the actual terms of that. I know that the noble and learned Lord the Lord Chancellor is getting powers to make regulations. I wanted to confirm that it would be on this point among others. So far, that is all right.

The other condition is that the court must be satisfied that it is "just and equitable in all the circumstances" that there should be relief given to the assisted party. What is going to be the criterion? I cannot say; and the Bill gives no assistance in that direction. Will it be the normal thing for the unassisted party to qualify for help, subject of course to the third condition, or will it be something exceptional? Or will there be any kind of direction given to the court: as to what is meant by its being "just and equitable in all the circumstances" that provision for an unassisted person should be made out of public funds? It strikes me that this provision is so vague that different Judges may interpret it in different ways. There certainly ought to be some guidance given either in the Bill or by way of regulation as to what should be the criterion upon which the court should act.

But once they are satisfied that it is "just and equitable" that relief should be given, then the unassisted party will have to show that he is suffering "severe financial hardship" unless an order is made for his assistance. Again, what is "severe financial hardship"? Does it differ from "financial hardship"? Does it mean, for instance, that you have to show you literally cannot pay the costs that have been caused as a result of the proceedings? Does it mean that you will be bankrupt if you have to pay them? Or, does it mean that your family will be deprived of necessities? It is capable of so many interpretations. This expression, "severe financial hardship" is capable of so many interpretations that I should have hoped that it would be possible to have some kind of clarification, or direction as to what is intended, in the Bill itself. Obviously, as the Bill stands it can apply to very few cases indeed. I imagine that "to be satisfied that it is just and equitable" and also that "severe financial hardship will be caused" would make it apply to exceedingly few unassisted litigants. The measure of this is that, in another place, it was stated that the estimated total cost of this scheme would be something in the order of £40,000. Obviously, that cannot involve very many people, and I hope it will be possible to give some guidance as to what these words mean.

The noble and learned Lord the Lord Chancellor was quite right in saying that in another place these particular words were the subject of a good deal of controversy. And it was not based on Party at all. I think that most of the objection was taken by the noble and learned Lord's own political friends. They wanted to go too far, in my opinion, and to delete these words altogether, so that every unassisted person who was successful in the terms of the Bill should qualify for assistance. I agree with the noble and learned Lord that that would be going too far. But would it not be possible to find some halfway house between severe financial hardship and hardship? If it were possible to devise some form of words where "hardship is caused" to a person as a result of having to pay these costs, then he should qualify for assistance. I think that that would meet with the approval of most people and I should be grateful if, at a later stage, the noble and learned Lord would examine that, without going all the way.

The only other point I want to refer to is the direction to the court that they should take into account the possibility of getting a portion of the costs from the assisted party. This is put in terms in the Bill, though it is already the duty of the court to ascertain whether, in the event of an assisted party being unsuccessful, he should be ordered to pay costs. So far as I can see, in the vast majority of cases he will not be able to make any contribution at all, because already, in assessing the contribution which the assisted party has to make towards the cost of proceedings, the fullest possible levy is imposed upon him, based not only on his own earnings but on his wife's earnings as well—which I always think is most unjust. It seems to me difficult to think of many instances where the assisted party would be in a position to make any further contribution beyond that which he is already asked to make. But what is the point of putting this in terms in the Bill, when it is already the duty of the court to make these inquiries in any case?

I realise that most of the points that I have made can be dealt with in Committee, but I thought I should raise these points so that the noble and learned Lord could look into them. I am sure he realises that at least this question of severe financial hardship will definitely be discussed at the next stage of the Bill. In general, I am sure that every Member of this House will wish to give this Bill support in principle, and we hope that it will receive an unopposed Second Reading.

3.55 p.m.

LORD GARDINER

My Lords, I do not know whether making a maiden speech on the 13th of the month is a sign of courage or of recklessness, but I suppose that the principal worry of all maiden speakers is to ensure that they observe the custom of your Lordships' House in not making a controversial speech. It is, of course, my desire at all times to observe the customs and great traditions of your Lordships' House. At the same time, I have had very little experience of making non-controversial speeches, and I cannot remember when I last made one. However, I shall hope to keep out of trouble if your Lordships will allow me to make some observations on the place of this Bill in our legal system as a whole.

I cannot remember a time when I had not concern, in the Quaker sense, about legal aid. If I look back to the days before the war, legal aid to me meant stopping work at midnight in order, while my wife went to sleep upstairs, to start reading memoranda written by many people about whether we could not one day achieve a system under which it would be true to say that no one in this country could not afford to enforce his legal rights. And sometimes I myself would write such a memorandum, because it has always seemed to me that if men and women have legal rights which they cannot afford to enforce, they might just as well throw them into the wastepaper basket, for all the use they are.

In those days, in the '20s and '30s, as your Lordships will remember, we had a very limited system of legal aid indeed: very little in our criminal courts and, so far as civil litigation was concerned, nothing in the county courts, nothing before the magistrates; it applied only in the High Court, and then only if you had an income of no more than £2 a week or, in exceptional circumstances, £4 a week, and if you have no more than £50 or, in exceptional circumstances, £100. If you fell within those limits, then your litigation was done for nothing, and one might even reach your Lordships' House—though the qualifications for that were still stricter, because you had to have no more than £5 in the world. If you fell a penny outside those limits, you got no help at all. This all seemed to me, on the face of it, a system which lacked common sense. Of course, if you received legal aid for litigation, the litigation was done entirely by lawyers—I would have said free; but that perhaps would not be quite accurate, in view of the fact that every barrister or solicitor who had to go to another town to undertake such a case had to pay out of his own pocket his travelling expenses and hotel bill, so that in fact he ended up with a minus quantity.

Outside the field of litigation, there was a very great need for legal advice in those 20 years in which we had an average of 1½, million—and sometimes 3 million—unemployed, and their families. As your Lordships may remember, all this was catered for, in the main, by bodies of lawyers attending "poor man's lawyer" centres. The three political Parties helped; the trade unions helped their members, and there were one or two religious societies. But it may not be out of place to remember bodies, like the Bentham Committee, which did such valuable work in this field, and Cambridge House, which had the largest legal advice system in London, dealing with 30 or 40 cases in an evening. There were other bodies, like the Mary Ward Settlement, where young barristers and solicitors used to go along in the evening and do what they could. In the main, too, they were financed by the legal profession, though not, I suspect, by young barristers, who had their own problems in that field. I remember that when I started at the Bar it took me three years to earn three guineas.

Such was the legal aid system, so far as it went, before the war broke out. Then, as your Lordships may remember, it all collapsed, partly because of the increased need for solicitors, owing to the complexity of war-time emergency legislation, housing difficulties and, unhappily, the start of the break-up of so many marriages. And out of 19,000 barristers and solicitors in practice when the war broke out, 11,000 joined the Forces. Those who were left simply could not cope, and all over the country the thing just ground to a standstill.

I remember one Saturday, with others, getting together representatives of all the "poor man's lawyer" societies in London to see whether we could present some agreed scheme to the Government. There were, I remember, very different views. Then I went off myself. Perhaps I may mention, just as an example of the intense interest I have always had in this subject, one occasion that I recall. On the day I left Chambers, as I was going out of the door, not knowing whether I should come back to practise at the Bar, I remembered something, and I went back and wrote a letter to the then Lord Chancellor begging him to do something about legal aid. While I was away he appointed the Rushcliffe Committee, of which the noble and learned Lord on the Woolsack was a member. By the time I came back that Committee had reported; and in 1949, as your Lordships know, the Labour Government passed the Legal Aid and Advice Act, the finest system of legal aid, I think, in the world.

I do not say that because all English lawyers feel that all foreign lawyers think that everything to do with English law is better than their own; but for two reasons. The first is because in the last fifteen years I have had an opportunity of seeing the system at work at very close quarters, and in detail, and when Chairman of the Bar Council I was naturally concerned to some extent with its administration. It has seemed to me to work extremely well and to be a system of which members of all Parties may well be proud. It is none the worse, I hope, for being run by the lawyers themselves. All the work on the legal aid committees—local legal aid committees, area legal aid committees and the central committee in London—is done by solicitors and barristers, giving their services free. I should like, if I may, to say, on behalf of the Bar, that the major part of the work has always been borne by the solicitors' branch of the profession; and I would pay my tribute to the extremely efficient manner in which it has been run by the legal aid department of the Law Society. I think that, wherever public money is involved, we should look from time to time to see that it is being spent with due economy. But the system has seemed to me to work extremely well.

The basic principle that people should pay what they can is, I am sure, the right one. As your Lordships may know, the contribution which the legally aided person is required to make is what he can afford. I remember a time, two or three years ago, before the regulations operated by the National Assistance Board were altered, when one-third of all the certificates granted by legal aid committees saying, "Yes; you seem to have a good case", were not taken up simply because the legally aided person could not afford the contributions he was called upon to make. If I emphasise this to-day, it is because I get a little tired, as I think many lawyers do, of continually reading in the papers, or hearing on the wireless or on television, references to our "free legal aid system", which, of course, it is not.

The second reason why I feel, with some confidence, that this is the best legal aid system in the world is because, through my association with the International Commission of Jurists, I have been to meetings of lawyers from all over the world in The Hague, in Delhi, in Lagos and in Rio de Janeiro, and have therefore had perhaps rather more opportunity than most English lawyers of hearing what foreign lawyers think of English law. If it is not thought to be irrelevant, I would say that one is naturally glad when one hears from lawyers of all nationalities the view expressed that English Judges are the best in the world. If I may say so, nothing has been more remarkable during the whole of the period I have been at the Bar than the way in which the standard, both of the High Court Bench and the County Court Bench, has continually gone up. There are reasons, tax-wise, pension-wise and otherwise, for this. On the Bench to-day we lack, perhaps, one or two of the flamboyant characters that we used to have; but they are better Judges for that; and I strongly suspect that we have perhaps the best Bench that we have ever had.

So, too, in any discussion with foreign lawyers of any question of legal aid I have never heard any view expressed except that of course the English system of legal aid is much the best. When it comes to English law, however, the opinions expressed are very different. Naturally enough, they say—and it is true: "You have a system of law under which the Acts of Parliament are contained in 43 volumes of existing Acts, starting with an Act in 1235, so that you may look at 60 different Acts to find the law on one point; 99 volumes of delegated legislation, and about 350,000 reported cases". My Lords, one may remember that the whole of the Code Napoleon was drafted complete in ten months—and it is not perhaps surprising that to some the format of our law hardly seems to be right in an age when we are on the threshold of a scientific revolution. But about our legal aid system, I think I can say that they are all agreed. As a whole, it seems to be working extremely well and smoothly, subject, perhaps, to three points.

The first is that I think we ought at some time to consider whether or not it should be extended to at least some administrative tribunals, because the decision of an administrative tribunal may be just as important to a citizen as the decision of a court. Secondly, there is the difficulty of the man of moderate means who has an action brought against him by a legally-aided person and then cannot recover any of his costs—and it is, of course, that difficulty which this Bill is designed to meet.

But, my Lords, there is a third and much greater defect in our legal aid system: that, while our legal aid system in criminal cases works, as a whole, extremely well and very smoothly until the convicted man leaves the dock, it then completely breaks down. He has to decide within ten days whether or not to appeal. His legal aid certificate has expired. Of course, the solicitor or barrister who has appeared for him may or may not advise him free. But they are under no obligation to do so; and if he is at once whisked away to a prison a hundred miles away it would be unreasonable to expect them to go there. So there he is, faced with a form which muddles up an appeal with an application for leave to appeal. As your Lordships know, broadly speaking, there is an appeal by right on a question of law, which is narrowly construed, and in any other case you need leave. I say "muddled up", because Parliament provided that the Rules of the Court of Criminal Appeal must have Parliamentary sanction—and they have—and for two forms, one for appeal and the other for application for leave to appeal. But the Court, without any Parliamentary approval or sanction—though it has been sanctioned since—put the two forms into one.

So here the man is: he does not know himself what are grounds for appeal and what are not. "Do you wish", he is asked, "to be present at the hearing of your appeal?" "Yes, I do", he says. Do you wish to apply for legal aid?" "Yes", he says. And in the large majority of cases the next thing is that he gets a notice saying: "Your application for leave to appeal has been dismissed." He has not been there; he has not been represented, and he has not been heard. No wonder he thinks that he has been "done". If he has the right to appeal, and his appeal is heard and is dismissed, he is then sentenced to six weeks' imprisonment for having dared to exercise a legal right. It is not done quite in that form, but in the form that, unless the court makes an order to the contrary (which is very unusual) the time up to six weeks taken by an appeal does not count for the purposes of sentence. So the practical effect is that, for having appealed, he gets an additional six weeks in prison, originally based on the time when there were different conditions obtaining with regard to an appellant and other prisoners.

Those conditions do not now obtain. That admirable body, the all-Party body "Justice"—for which my noble and learned friend Lord Shawcross, and my noble and learned friend whom most of us have been used to calling Sir Edwin Herbert, but must now remember as Lord Tangley, have done so much work—has recently published a fully documented Report calling attention to the urgent need which arises in this field. It is there pointed out that the Court of Criminal Appeal is cluttered up with appeals many of which would never have been brought at all if only the man had been able to get some legal advice at the time when he had to decide whether to appeal or not.

I am hoping that perhaps at some time the noble and learned Lord on the Woolsack, whose keen personal interest in legal aid I know, will be able to tell us whether, and, if so, when, the Government propose to deal with this problem. He will not, I hope, tell us that it must await the Committee on the work of the Court of Criminal Appeal which is to be presided over by my noble and learned friend Lord Donovan, and I hope that he will not do that, for two reasons: first, because this is not really a question of the work of the Court of Criminal Appeal—it is really a legal aid question to be considered by the legal aid authorities; and, secondly, because I am not young enough not to know that if the powers that be want to stall on something, the appointing of a Committee is not at all a bad way.

I welcome this Bill, and the only observation which I would respectfully make about it is this. The problem with which it is dealing, while it is increased by legal aid, is not fundamentally a legal aid question, in this sense. Everything has advantages and disadvantages, and having more money than other people has certain advantages. But in any country, whether you have this legal aid system or some other legal aid system, or no legal aid system at all, there will always be solicitors who, in some cases at all events, will take up the cases of poor people, either for philanthropic reasons or simply because they think it is a good case and they are going to make some costs out of it. Your Lordships may remember that one of the results of our present legal aid system was to kill stone dead the "ambulance-chasing solicitors", as we used to call them.

Therefore, in any system it is, I am afraid, one disadvantage in being a rich man that you may find an action brought against you by a poor man and you will not be able to recover your costs. I agree that the anomaly is increased by having a legal aid system, and it is increased in a country where, unlike America and so many countries where each litigant always pays his own costs, under the sporting spirit in which we conduct litigation the loser pays all, and, of course that aggravates him. This is not to deny that there are cases in which a man of moderate means, not requiring legal aid himself but having a large action brought against him by a legal-aided plaintiff, may suffer real hardship from being unable to recover his costs. Therefore I would join in welcoming this Bill, but express the hope, if I may, that the Government at some time—whether they think it has any vote-catching propensity or not—will deal with the two other problems to which I have ventured to refer.

4.15 p.m.

LORD DOUGLAS OF BARLOCH

My Lords, it falls to me to congratulate my noble and learned friend upon his maiden speech, to which all of us have listened with the greatest attention and appreciation. We have known, of course, that he has a great command and knowledge of the law, and we are glad that he is now present with us and able to contribute to our discussions upon this and, I have no doubt, upon many other matters which will come before your Lordships. I am sure that he will always be listened to with interest and attention. He has, in fact, contributed to this discussion a very succinct and able survey of the problem of legal aid generally, and of the situation with which we are now confronted.

I suppose I ought, before continuing, to say that, like many other lawyers, I have an interest in this matter. I have conducted cases for legally-aided litigants, and no doubt I shall do so in the future. In this respect, the legal aid system in this country is, I think, unique and extremely valuable, because its fundamental principle is to try to make available for every litigant the kind and quality of legal assistance which he would be able to get if he were not handicapped by lack of funds, so that there may be no discrimination between the service which is rendered to him as compared with that which somebody else, who has command of ample means, can get on his own account. So the services of the great majority of solicitors and barristers are available to those who are granted legal aid certificates, and they can choose to conduct their cases whomever they please. That, I think, is a very great merit.

The Bill which is before us has arisen out of the seeming anomaly that, in an appreciable number of cases, people who are putting forward claims, and do so having been granted legal aid, do not succeed in them, and the party against whom they have made the claim is unable to recover the costs which normally he would have been able to recover if his opponent had had sufficient means to pay. It may well be said that that is a risk to which people are subjected in any case. They might have claims brought against them unsuccessfully by impecunious people, whether those people are legally aided or not, and the law hitherto has provided no remedy for them. Still, the fact remains that the number of such claims has been increased by the institution of legal aid, and it is regarded as a grievance that people should be subjected to expenses by an institution supported by the State, and not be able to recover the expense to which they have been put.

A particularly galling feature of this arises occasionally. I have experienced it when I have had a claim put forward against a client, and I have been told in effect: "If your client is not prepared to make some offer to settle this, his opponent is going to seek legal aid". If that opponent is not successful in it my client will have to pay the costs anyhow, so it would pay him better to make a small payment and avoid having to run this risk. That is one of the ways in which I think legal aid can become a little obnoxious, although its general principles and its object must be commended by all of us.

This Bill attempts to remedy some of these grievances by giving the court the power in certain cases to order the payment out of the Legal Aid Fund of the costs of the successful party who has not been legally aided. This power is hedged about with very severe restrictions. First of all the court has to find that it is just and equitable that it should make such an order. In the ordinary way, if there is no question of legal aid the practice of the courts in this country is to order the unsuccessful party to pay the successful party's costs. The phrase which is used here, that the court should be "satisfied that it is just and equitable", appears to import some new criterion of an entirely unknown and undefined character. It may be that it is impossible to define it at this stage and that the only way in which the thing, can be done is to use some phrase of this kind and leave it to the experience and the ingenuity of the Judiciary to put an interpretation upon it which, in time, will become standardised and which we shall all then be able to understand. But at the present moment I must confess that it seems to be extremely vague.

There is then the further qualification that the court must be satisfied that the successful unassisted party will suffer severe financial hardship unless such an order is made. Again, I do not know how "severe financial hardship" is going to be determined. It seems that every litigant who wants to invite the court to take advantage of this provision will have to make a very full and complete disclosure of the whole of his resources and income. I suppose that these matters can be referred to masters or registrars in Chambers where they will not receive publicity; and that undoubtedly must be essential, otherwise people who want to apply will be placed in a very difficult and humiliating position—indeed, one which might subject them to other unfortunate consequences.

But, apart from the necessity to disclose the whole of the applicant's financial position, there still remains the question, what is meant by "severe financial hardship"?. I do not feel at all happy about that, on the face of it. It will be said, in the first place, that the unassisted litigant is not likely to suffer a great deal of hardship, otherwise he would, presumably, have been able and willing to apply for legal aid himself. Therefore this provision must mean something a great deal more than that. Here, again, I feel that, there is a case for looking at this phrase once more. I think I should feel happier about it if some other wording than "severe financial hardship" could be adopted, because this is an entirely intangible criterion. I cannot, myself, see by what means it is going to be assessed. In fact, I am not at all sure that this would not be a better provision if this were left out entirely and it were left to the court to say whether or not it is just and equitable to make the order, and to leave it to them. But these are matters which no doubt can be pursued in more detail in Committee. On the general principle of the Bill, I am certainly very happy to welcome it.

4.27 p.m.

LORD CHORLEY

My Lords, I should like to say a few words on this Bill as one of those who were lined up on the last occasion when the pistol went off, who found ourselves near the back and the race never started. I think it is good that the Bill should now come to us when we are in a position to handle it effectively, and I should like to address some remarks to your Lordships rather on the lines of those which I made on the last occasion. Before doing so, however, I should like to add my tribute to what has been said about the maiden speech of my noble and learned friend Lord Gardiner. Those of us who have worked with him on very many public causes for many years, know very well of his eloquence, and his even greater powers of persuasion; and I think this House as a whole, and we on these Benches in particular, are extremely fortunate that we now have the advantage of his counsel and eloquence in our discussions here.

On the last occasion, I recalled to your Lordships that it was the driving energy of the late Lord Jowitt to which we owe the passage of this Legal Aid Scheme which has received so much commendation this afternoon, and I should like to feel that I was on that occasion a humble lieutenant of his. Since then it has developed into a very fine system, and tribute has very properly been paid to it, not only here this afternoon but in other surroundings, as the noble and learned Lord, Lord Gardiner, has reminded us. We are, in a way, now building up a double system of legal proceedings in this country. In a sense, it is parallel with the National Health Service, in which there are now many medical practitioners practising, so to speak, independently, some with a foot in the National Health system, and others entirely devoted to it. That system is not working too badly, but, of course, the emphasis is very much on the National Health side of it. In legal proceedings the emphasis is still more on the private enterprise side than on what one might call the public side. But I think the drive is in that direction, and it may well be that before long a great deal more of the litigation in this country will be conducted on lines in which the State is providing the legal assistance which every citizen ought to have at his disposal in connection with the solution of his legal problems.

This Bill, as has been pointed out this afternoon, is intended to assist the defendant who succeeds in an action which is brought against him by a legally assisted person. Unfortunately, as this type of legal aid has developed it has become more and more realised by that small but very active section of the community who are only too ready to find ways of cashing in on public help of this kind that the scheme can be used as a very effective method of blackmail; indeed, I have even heard lawyers refer to the Legal Aid Act as the "blackmailer's charter". It was referred to very knowledgeably by the noble and learned Lord, Lord Gardiner in his speech, and he drew our attention to the fact that this has always been a difficulty, and no doubt always will be, but that the legal aid provisions have, in fact, very much assisted this type of blackmailing litigant in his endeavours to increase his fortune at the expense of much more respectable citizens.

I believe that, quite apart from today's Bill, there are a number of ways in which the actual machinery of the legal aid could be improved. I have been told by people involved in litigation of this kind that the first thing they knew was the service of a writ upon them. In the ordinary sort of decently conducted litigation there are very often long negotiations, which I should think, from my own not very great experience of it, result in three or four cases out of five in some kind of intelligible and intelligent compromise. That, I think, is greatly to the benefit of everybody concerned, because as we were told in the New Testament long ago: It is much better to make peace with thine enemy while thou art in the way of him. Unfortunately, to a large extent at any rate, it seems that legal aid does not conduce to that type of "making peace with thine enemy"; that is a great pity, because the result is a great deal of expense which could be avoided.

I should like to follow up, first of all, the observation of the noble Lord, Lord Douglas of Barloch, in respect of the last two of these conditions before the making of an order for help with his costs to the successful litigant in these circumstances—this "just and equitable" condition on the second head. I think I am very much in sympathy with what the noble Lord, Lord Douglas of Barloch, was suggesting: that it ought rather to be twisted the other way round; the order should be for the costs unless, in the view of the judge, it is just and equitable that he should not have them. The ordinary rule is that if you win your case you are entitled to costs; and prima facie, it should be only in those cases where it is not just and equitable that the man should have his costs that he should be deprived of them. That would be, I think, an improvement of the Bill.

But the real difficulty, of course, is this qualification about "severe financial hardship". This was in the Bill when we had it here before, and I think that, with the possible exception of the noble and learned Lord, Lord Denning, everybody who took part in that debate, just as this afternoon (I remember the noble Lord, Lord Silkin referring to it), felt that this is altogether too severe a limitation upon a successful litigant getting an order. I remember a speech by the noble and learned Lord, Lord McNair, very well argued, and very convincing, which carried a great deal of weight with your Lordships. All the noble and learned Lord on the Woolsack can say in answer to this is that very careful consideration has been given to it, but that he has not been able to think out any methods by which the wealthy corporation, the millionaire, and other people like that, would not be able to cash in. If there is no other method, I think it would be better that they should have it rather than that middle-class people of limited means should be brought to the verge of ruin—as I have known happen in a number of cases, and as will continue to happen if these words are strictly construed by the judges.

On the last occasion somebody said, "It is true that this is not perfect, but it is half a loaf". I am not sure that it is as much as half a loaf. I do not think it will prove to be more than a few crumbs. The number of these cases that go to appeal, which are the ones in which this aid will be given, is very small indeed. The real burden of the expense is at the trial, when the matter is fought out, with the expenses of all the witnesses, and very often long-drawn-out proceedings; and if a successful litigant on that occasion is not going to have much help, I am afraid that it is going to be a matter of a few crumbs and not half a loaf of bread. I am sure that, with the resources at the disposal of the Government, and the ingenuity they are able to display when they are driven to it, they should be able to think out some method which would at any rate alleviate this position. On this occasion we shall have a Committee stage, which we were deprived of on the last occasion, and I hope that it will be possible to put down Amendments to make this a better Bill than the one now before your Lordships' House.

4.38 p.m.

THE LORD CHANCELLOR

My Lords, with the exception of the observations of the noble Lord, Lord Chorley, this Bill has, so far as I can see, received a very favourable reception from your Lordships' House and I thank your Lordships for it. I should like to say straight away, in reply to something the noble Lord, Lord Silkin, said, that I certainly think nothing that I said in the course of moving the Second Reading could possibly be regarded as any reflection on the operation of the Scheme.

Perhaps before I come to reply to the detailed criticisms made of the Bill, I might refer to the somewhat general observations which have been made. Indeed, the short debate we have had has traversed a wide field. I thank my noble and learned friend Lord Gardiner—I am not sure whether it is proper for me to call him "my noble friend" any longer, although of course we were both for many years on the same circuit; we have known each other for many years; we have engaged in controversy on previous occasions and I look forward to enjoying some controversy with him in your Lordships' House. I listened to his speech, as I know your Lordships did, with the greatest possible interest, and I am sure that he will contribute very greatly to your Lordships' debates. I can assure him that, so far as I am concerned, I thought that he succeeded in being almost, if not entirely, uncontroversial.

I was grateful to him, too, for the tribute that he passed to the Legal Aid and Advice Act. He emphasised the fact that that Act was passed by the Labour Government of that time. That, of course, is true. It was in fact, I think, perhaps the only Act of that Government to which I was able to give complete support, for of course that Act embodied the recommendations of the Rushcliffe Committee of which I was a member, and which was, as the noble Lord, Lord Gardiner, said, set up by Lord Simon when he sat upon the Woolsack. I was grateful to the noble Lord, too, for reviewing the history in relation to legal aid. Of course, the Act passed in 1949 had very limited application during the period of the Labour Government, and, as the noble Lord would recognise, it is since then that it has been gradually extended from one court to another court; it has been extended in scope almost consistently, until now it covers almost the entire range of legal procedures.

He drew attention to the extension of legal aid to tribunals. That is a big and a difficult question, which of course has to be considered. He drew attention, too, as indeed "Justice" has, to the difficulties that convicted persons may have with regard to getting legal aid after conviction. I can say that that is being considered also. He drew attention to the use of the forms between the notice of appeal and application for leave to appeal to the Court of Criminal Appeal. I hope that the whole system of appeals to the Court of Criminal Appeal will fall to be considered by the Committee of which Lord Donovan will be chairman.

I must say that I have never heard, as Lord Chorley says he has heard, the Legal Aid and Advice Act—passed, as I have said, by a Labour Government—being described as a "blackmailers' charter." I do not believe that that really is the case. I recognise, as indeed Lord Douglas of Barloch said, that sometimes people may say, in the hope of getting a settlement, "If you do not settle with me, I will get legal aid and take you into the courts." But it does not follow that because someone says that, he will get legal aid. He has to show that he has a good cause of action, and he has to come within the financial limits. Then Lord Chorley went on to assert that in legal aid cases—

LORD CHORLEY

My Lords, may I just say that I did not associate myself with this view, but I have heard it so described by members of the legal profession, it may be inaccurately, and it may be that there are few people involved in this.

THE LORD CHANCELLOR

My Lords, I am sorry that the noble Lord should have thought it right to give such an accusation the widest possible publicity, as indeed anything that he says in this House naturally has. I want to go on to point out that the noble Lord went on to assert that in legal aid cases service of the writ takes place without notice. I must confess that I am surprised to hear that. It may have happened in some cases; I do not know. For instance, it may have happened where a case has come forward so late that, to avoid the Statute of Limitation from operating, the writ has been served without delay. But when the noble Lord bears in mind that the effect of a legal aid certificate will be to enable solicitors to be employed who can act, as they do in the case of an unassisted litigant, I must confess that I see no reason at all why solicitors acting on behalf of the legally aided client should not follow the normal procedure.

Nor do I think that the noble Lord is on any sound ground when he says that the receipt of legal aid does not conduce to "making peace with the enemy". I do not think it is right to assume that the receipt of legal aid is a bar, in proper cases, to achieving a settlement. But in relation to that, there is one point to which I would draw the noble Lord's attention—namely, that if, as he suggests, you give the unassisted successful defendant such enlarged rights of getting costs against the State if he wins, then, indeed, that may tell against the achievement of a satisfactory settlement.

Now may I come to the criticisms of this Bill. The noble Lord, Lord Silkin, made a point that he thought that there was too much discretion left to the Judges. The Judges always have discretion as to costs. They have laid down certain principles which they follow in exercising that discretion. I quite agree that this proposal leaves a great deal of discretion to Her Majesty's Judges, to whom the noble Lord, Lord Gardiner, paid a well-justified tribute. I think we can rest content in leaving it to them to exercise that discretion properly. I should, in passing, just like to say that your Lordships will know that, under the Bill, the test about it being "just and equitable" to make the order will apply in every court, appellate courts as well as in courts of first instance. I can assure your Lordships that I have given, and indeed I know that my predecessor gave, most careful and prolonged consideration to seeking to devise a satisfactory way of expressing the tests which have to be laid down, if you do not go so far as I gather Lord Chorley would want to go, of giving the successful unassisted defendant the almost invariable right of recovering his costs against the State. I do not think that the Judges will, in fact, have any difficulty in exercising their discretion properly under that phrase.

Nor, indeed, do I think that they will have difficulty in interpreting and applying the test of "severe financial hardship", which applies only in relation to the costs incurred by the successful unassisted defendant in the court of first instance. Again, I can assure your Lordships that most careful consideration has been given to that wording. It was suggested that the words "exceptional hardship" should be used. There is a real risk, if you use that formula, that it would be interpreted more restrictively than "severe hardship". Again, "substantial" was a word that was contemplated, but there were reasons against that which I can, if need he, deploy later. It has been suggested that the word "severe" should be left out, but a successful unassisted defendant who does not get his costs paid or an order for costs against the unsuccessful plaintiff will always suffer some financial hardship, and I believe the concept of "severe financial hardship" for this test is right, if you accept the principle which I invite the House to accept, that the successful unassisted defendant sued by an assisted person should not be put in a better position than he would be if sued by an unassisted person.

I do not think—I can assure your Lordships that great thought has been given by many people to this—that it is possible to give any clearer guidance to the courts; nor is it possible, I think, or indeed desirable, to limit their discretion in the operation of this Bill. In each case they will have to consider the circumstances of the parties. If Lord Douglas of Barloch looks at Clause 2(2) he will see that there is power to make regulations for referring questions of fact relevant to … applications, for inquiry and report by a master, a registrar or a district registrar, as the case may be". I think that answers the question he put about that.

Finally, I would say that I think the noble Lord, Lord Chorley, is wholly wrong in suggesting that this test of "severe financial hardship", if left in the Bill, will mean that in future successful unassisted defendants will still be brought to the verge of ruin, or actually ruined, by the imposition of the costs. I do not for one moment think that that will be the case. If that would be the result, then I cannot believe a Judge would not say that that particular defendant would suffer severe financial hardship if an order for costs against the Fund were not made in his favour.

I think the point made by the noble Lord, Lord Douglas of Barloch, was that the successful unassisted defendant would not get an order for costs in his favour unless he was otherwise able to apply for legal aid himself.

LORD DOUGLAS OF BARLOCH

My Lords, I may not have made myself clear to the noble and learned Lord. What I was suggesting was that if he himself was not legally aided, then one started off with a presumption as to what his financial position was and as to what might or might not be severe hardship.

THE LORD CHANCELLOR

I think we are on the same point. I do not think that follows at all. His means might not be such as to bring him within the scope of the Legal Aid Scheme. On the other hand, he might find himself, while just beyond that scope, faced with having to defend a case which might last a considerable time and incur a considerable amount of cost. I certainly would consider that one of the matters to be taken into account in the exercise of this discretion should be not only the means of the defendant but also the extent of the costs which will have to fall upon him if no order is made. I have no doubt, from what your Lordships have said, that we may have some further discussion on this matter during the course of the Committee stage. We take the view that it is not possible to go so far as the noble Lord, Lord Chorley, has indicated; that we must have some greater fetter in the court of first instance than in the appellate court; and we take the view that this wording, which has been considered and seen by Her Majesty's Judges, and indeed has been seen and considered by the Bar Council and the Law Society, is really wording which is appropriate to achieve the result desired.

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