HL Deb 15 May 1970 vol 310 cc874-87

1.0 p.m.


My Lords, I beg to move that the Legal Aid (Extension of Proceedings) Order 1970, laid before the House on May 4, be approved. The sole effect of this Order is to apply the legal aid provisions of the Legal Aid and Advice Act 1949 to the Lands Tribunal, at an estimated cost of £150,000 a year. My right honourable friend the Secretary of State for Scotland will shortly be laying a similar Order applying legal aid to the Scottish Land Court and to the Lands Tribunal for Scotland, at an estimated cost of £10,000 to £15,000 a year.

While I hope that this Order will be welcomed in the House, it is only the first of a number of steps in this field which the Government are about to take; and as I have, for as long as I can remember, had a strong personal concern in this particular subject, I should be grateful if the House would allow me a few moments to remind your Lordships of the provision which we make for poor people.

My Lords, it has always seemed to me that it is absolutely useless to go on and on passing Acts of Parliament giving poor people legal rights if they cannot afford to enforce or defend them. For most of such people, they may as well throw their legal rights in the wastepaper basket, for all the good they do them. There was of course a time when our only provision was an action in formâ pauperis, and while there were not many such actions there have been one or two outstanding legal cases which have come up for decision in your Lordships' House in an action in formâ pauperis. But to qualify for this the pauper had to take an oath that if he was sold up to-morrow he would be found not to be worth more than £5 in the world. That was subsequently extended to £25, but never, I think, beyond that. By the time the last war broke out, we had got only as far as what is called a "poor person's action". "Pauper" was not thought a very nice word; so such actions were called poor persons' actions, and to qualify for them you had to have an income of no more than £2 a week—this was in 1939—or, in exceptional cases, £4 a week, and capital (which included your furniture) worth not more than £50 or, in exceptional circumstances, £100. If you so qualified, you then had your action done for nothing; otherwise, you got no help at all.

I say "done for nothing", but these actions were done by barristers and solicitors, and it was not only a case of their doing it for nothing: if a young member of the Bar—possibly himself having a good deal of difficulty in making both ends meet—had a two-day poor person's case at, say, Derby Assizes, he had to pay his own train fare and his own hotel bill. But, contrary to what may be thought in some quarters, I think it is fair to say that lawyers in this country have always done their best to help poor litigants. In addition to that form of legal aid, there were in London and in a very few large provincial towns "poor man's lawyers", about half of whom were provided by the political Parties and the other half by Church and charitable bodies. One went along there in the evenings to give legal advice—free, of course.

When the war broke out, there simply were not the lawyers to do the cases, and I remember calling a conference about this. I do not know why I did it, because I was only an ordinary junior barrister; but, as I say, I have always felt a very special concern in this field. I called a conference of representatives of all the poor man's lawyers' associations to see what was to be done and whether we could not devise some much better scheme than this extraordinary scheme under which whether you got £1 a week more or less was the dividing line between whether you got an action done for nothing or whether you got no help at all. But there were so many different views that no conclusion came out of that.

Then I went off myself; and I remember that I was just leaving my Chambers for the last time and had in fact got to the door when I remembered something. I went back, and I sat down and wrote a long letter to the then Lord Chancellor, Lord Simon, begging him to do something about legal aid and advice. While I was away, he appointed the Rushcliffe Committee. Now some Committees, as we know, are good, some are bad, some are indifferent. But the Rushcliffe Committee's Report was, of course, a magnificent Report. The Committee recommended sweeping away the existing system altogether and replacing it with a system under which, within certain income limits of course, you could apply for legal aid; your income would be assessed by what was then the National Assistance Board (now the Supplementary Benefits Commission) to see whether you fell within the scheme; and, if so, what your contribution was to be—because everybody had to pay what he could afford to pay, and it could be paid by instalments. The State would make up the rest, although, of course, if the action was won the costs would in fact be paid by the other side.

Then there were committees of barristers and solicitors, working voluntarily, who would decide whether a man had a reasonable case: and it is some indication of the care which they took of the taxpayers' money that in actions brought under this procedure in the Queen's Bench Division, mainly for damages for injuries either on the road or in factories, their success rate has always been about 85 per cent.—a much higher rate than any solicitor could claim. My Lords, this procedure was to apply in the High Court, in the county court, in domestic proceedings before the magistrates' courts and in every tribunal before which there was a right of legal representation. Then at all the local legal aid offices of the Law Society there were to be salaried solicitors giving people legal advice for what they could afford, from half-a-crown, in the case of old-age pensioners, upwards.

The Legal Aid and Advice Act 1949 provided for all this, and when it received the Royal Assent on July 31, 1949, I thought what a splendid Government this was. They had had both the wisdom and the courage to give independence to India, Burma and Ceylon; they had created the National Health Service; and now never again would anybody be deprived of legal advice or of the means to enforce their rights. That was on July 31. Then came September 18—devaluation and the economic measures which had to follow from that; and the Lord Chancellor was told, "Of course, you cannot actually put this into force now".

My Lords, in the following year he was allowed to put it into force so far as the High Court was concerned. We then had to worry Conservative Governments for ten years before it was applied to the county courts, and another four years before it was applied to domestic proceedings in magistrates' courts. It has never been applied to any tribunal; and the salaried solicitors never existed. Instead, so far as advice is concerned, we had what I might call a mini-advice service which anybody who knows anything about it has agreed for some years now is wholly inadequate to the need for it.

I have naturally been concerned with the position because, in addition to all that, the basic figures both of the mini-advice scheme and of the Legal Aid Scheme itself have not been up-rated for years to allow for the fall in the value of money. Fortunately there is in the Legal Aid and Advice Act provision for a Statutory Advisory Committee, of which the noble Baroness, Lady Emmet of Amberley, is the distinguished Chairman, and I am immensely indebted, as all my predecessors have been, to the Advice Committee for all the care and trouble they have taken. There is an Annual Report by the Law Society, which is generally responsible for the administration of legal aid and advice, and when that Report is made the Advisor)' Committee also report upon it.

Over two years ago I said to the Advisory Committee, "There is no money available at the moment, but we are getting the economy right; and when we can afford it, will you look at all the deficiencies in the system? Do you think it ought to be applied to tribunals; and, if so, which tribunals? Will you kindly make yourself familiar with what all the different tribunals do, and with the need, or otherwise, for legal representation? Will you consult the Council on Tribunals, and will you consider the basic figures and the need to up-rate them, and whether we should not have a proper scheme for legal advice?" The inadequacies of what I have called the mini-advice scheme have been commented on by Conservative lawyers in a pamphlet called Rough Justice, and by the Society of Labour Lawyers, in a pamphlet called, Justice for all. The Law Society also has been working to try to devise a better system.

My Lords, the Advisory Committee have taken a great deal of trouble to look at all the tribunals to see whether any of them, and if so which, were tribunals before which the Committee thought there ought to be legal aid; and they have said that there is in their view, a paramount need for legal aid before the Lands Tribunal. They say in their Report: One tribunal, the Lands Tribunal, is far more akin to an ordinary court of law than it is to other tribunals. It has various functions in connection with the acquisition of land, compulsory purchase, discharge of restrictive covenants, appeals from valuation courts and, recently conferred, functions under the Land Commission Act and the Leasehold Reform Act. They point out that the Lands Tribunal is one tribunal from which appeal goes straight to the Court of Appeal, and they say: Many, and perhaps all, its functions might equally be performed by the Chancery Division or the county court. Had that been the case, legal aid would already have been available in proceedings before it. All those whom we consulted agreed on the desirability of making legal aid available in proceedings before the Lands Tribunal and we accept their view. The Committee also point out that the Lands Tribunal does not permit non-lawyers to appear before them as advocates but only as expert witnesses. The steps, accordingly, which the Government are taking are, first, to lay this Order to apply legal aid to the Lands Tribunal; and, as I have said, my right honourable friend the Secretary of State for Scotland will do the same for Scotland.

Then the Advisory Committee have recommended that with regard to what I have called the mini-advice scheme the basic figures ought to be up-rated, at a cost in England and Wales of £300,000 a year, and of some £25,000 for Scotland. Thirdly, the basic legal aid figures have not been up-rated for ten years. There are of course two basic figures. There is an income beyond which the Act does not apply at all; that is, where there is an income, after making certain allowances and deductions of £700 a year. There is also a bottom limit, because although it is intended that everybody should pay what he can, it has of course always been recognised that the very poor obviously cannot contribute at all; and the figure there is £250 a year—£5 a week. That means virtually, I suppose, people on supplementary benefits.

The result of not up-rating the figures has been, as to the top limit, that every year there have been people who could have got legal aid last year but cannot now do so; and at the bottom end, while no one has been deprived of legal aid, it has meant calling on people for contributions when, obviously, they cannot afford to make them. So the second thing the Government intend to do is to up-rate those figures to date to restore the previous figures—in effect to allow for the fall in the value of money; and this will cost £1,126,000 a year in England and about £100,000 in Scotland.

The first thing that I mentioned, apart from the Lands Tribunal—namely, up rating the basic figures for the mini-advice scheme—can be done, and will be done, by the Negative Resolution procedure; the Order will be made and will be law unless anyone objects to it. To up-rate the legal aid figures for actions means another Affirmative Order and I hope to be able to lay that in the course of next week.

There remains the much better system of legal advice for the future which the Advisory Committee have recommended, which is known in the profession as "the £25 scheme". It is based, I think, on all the different proposals which different people have made, but under it anyone within the financial limit will be able to walk into a solicitor's office and, in effect, get £25 worth of work from him without more ado. But for that legislation will be necessary, and I am afraid that no time can be found for it in this Session. I have, as I have made plain, been concerned throughout my Chancellorship that we have not been able to deal with this problem before, and I am very glad that at long last, both in relation to legal aid and to legal advice, we have been able to do it. My Lords, I beg to move.

Moved, That the Legal Aid (Extension of Proceedings) Regulations 1970, be approved.—(The Lord Chancellor.)

1.18 p.m.


My Lords, I am very grateful to the noble and learned Lord, the Lord Chancellor, for explaining what it has been possible to do so far as legal advice is concerned and in connection with the Committee of which I am Chairman. I should like here to pay tribute to the very hard working and extremely expert members of my Committee and our general secretary, Mr. Thesiger; we have had quite a hard year's work. One must be thankful for small mercies, and we are glad that the suggestion we made about representation in front of the Lands Tribunal will go through. We went through all the tribunals in existence. Many of them had claims, but we felt that the Lands Tribunal was the one which was most difficult for the ordinary layman to approach and understand. I wish that the great brain of our Lord Chancellor could be directed towards the clarification of laws for the ordinary human being. We know that the Jaw is sometimes considered "an ass", but it is also very incomprehensible, and it makes the case of the ordinary person who tries to understand the law extremely difficult.

We are glad to see that the financial limits have been raised. They have fallen very far behind. I must not anticipate our Report for this year, which I think will be in the hands of the printers shortly and in which we make certain recommendations which we hope will be helpful in that respect. What we are most disappointed about at present is that the £25 scheme has not been brought into effect. We think that that would have a very wide result on the whole situation. It would enable people to come and get advice early, which might in itself be an economy, it would help lawyers to establish new centres in what are at present desert places, and I think that in genera] it would be a tremendous help to the whole legal system. Perhaps in the next twelve months, if the economy allows, whichever Government may be in charge, this recommendation of ours will take first priority. We have always in mind that civil legal aid seems to lag rather behind criminal legal aid in the way of financial assistance. In our year's Report, which will be coming out shortly, we have divided the two sides, and I hope the public will notice the difference. May I thank the noble and learned Lord, the Lord Chancellor, for the kind words he said about our Committee. We look forward to another year's hard work.

1.21 p.m.


My Lords, as Chairman of the Council of Tribunals I should like to say how much the Council welcomes this extension of legal aid. We have always felt that we should welcome any measure that was likely to be of assistance to applicants and appellants. In the Council's Annual Report for 1967 we stressed the need for both experiment and research in the field of assistance relating to tribunals, and I should like to pay tribute to the Lord Chancellor's Advisory Committee and to the Chairman, the noble Baroness, Lady Emmet. I should like her to know how much the representatives of the Council enjoyed the discussion that they were able to have with members of her Committee. Anyone who knows the noble and learned Lord the Lord Chancellor, who has heard him speak on these matters, or has been privileged to hear him to-day, knows how closely these matters lie to his heart. We realise that one major difficulty is the problem of finance. Equally, every one of us realises that the noble and learned Lord the Lord Chancellor does not delay when it is possible to take any action. To-day is an example of this, and we should like to express our appreciation to him for what he has done and to say that we hope he will for a long time continue as Lord Chancellor.


My Lords, I am sure that a lengthy intervention at this hour will be very unpopular, but I cannot let this opportunity go by without saying a few words. I think I am the only person present in the Chamber who was very actively concerned with the first Act in 1949, to which the noble and learned Lord on the Woolsack has referred. I was at that time in a very interesting, if rather hard-worked, position of being an aide-de-camp to the then Lord Chancellor, Lord Jowitt. He was much concerned with this scheme, and we all were disappointed when the economic situation prevented its being put into operation in the way in which Parliament had intended.

We had had a song in our hearts, and the noble and learned Lord has described how enthusiastic he felt about the position. I can well imagine, as the noble Baroness who has just resumed her seat has said, with what feeling the noble and learned Lord has moved this Motion to-day. I have known him for a very long time, long before the war, when this was an ideal which we had and which then seemed a long way off. It is splendid that the realisation has come. I know how much he has been concerned with this, from right back in the early 'thirties—and even possibly earlier. Therefore, I should like to congratulate him on making such substantial progress so near to the end of this Parliament. He has held out to us a promise of even more substantial progress in the future.

I do not want to say anything about the advice side of this matter, but I should like to say a word or two about bringing in the Tribunals. From many points of view, the most pressing side of the financial difficulties which arose was that legal aid before tribunals was cut out. This is just a start. I should not have thought that the Land Tribunal was the most important, but no doubt the matter has been gone into, and I am quite ready to accept that it is. There is no question at all that many people are much concerned with the administrative edicts which are put out, and which affect very large areas of the less educated and poorer sections of the population.

I have recently had the opportunity of reading a lecture given by one of the leading constitutional lawyers of the Commonwealth of Australia, who has been spending a year over here, and has been making a special study of administrative tribunals—that is, the inquiry courts which are held by different Ministries into many problems. He was quite appalled at the amount of injustice which he saw done because the people who were brought before these tribunals were so tongue-tied and nervous that they were not able to open their mouths. It was a very moving lecture. When I read it I saw that this Motion was on the Order Paper, and I thought that my friend in Canberra would be very pleased, as I am quite sure that he will.

This will be the "opening round" in making legal assistance before these inquiry tribunals available to a very much larger number of unfortunate people. From many points of view this is more important than the arrangements which exist for giving legal aid in the ordinary courts. In some of the cases that I have seen, sitting as a chairman of quarter sessions for many years, I should have dispensed with some of the legal aid which was given to obvious scoundrels, if that money could have been better spent on people who had real rights, which were adjudicated upon as the result of inquiries held by various Ministries. I am quite sure that this is a red-letter day in the history of legal aid, and I will conclude my remarks by again congratulating the noble and learned Lord on having managed to bring this Regulation before us during the present Parliament.

12.28 p.m.


My Lords, I shall intervene for only a moment for the purpose of expressing to the noble and learned Lord on the Woolsack my own appreciation of the lucid a4nd interesting account which he has given us of the growth of legal aid from the days of the actions in formâ pauperis, which I recall very well, through the poor person's action to legal aid, as it is under the present arrangement. I am sure we shall all welcome the extensions to the scheme which the noble and learned Lord the Lord Chancellor is proposing to carry out.

I was very glad that he paid a handsome tribute to Lord Rushcliffe, who was one of my predecessors as Chairman of the National Assistance Board. In that capacity I saw something of his administrative ability, and he was a great administrator; a man who was always prepared to accept a point of view which was novel, and to try new fields. Looking back over the years, one has seen legal aid grow from nothing into something. There are one or two names which stand out in my recollection. Mr. D. N. Pritt will be recalled very well by the noble and learned Lord the Lord Chancellor. He was a man who in the days when there was no legal aid in the county courts ran an organisation called the Bentham Society, of whose committee I was an original member. It was run entirely by Mr. Pritt, and I think largely paid for by him. It managed, at least in London, to provide a service which the official legal aid service was not able to provide. I once more thank the noble and learned Lord on the Woolsack for the interest that he takes in this subject and for the lucid and interesting account that he gave to us this morning.

1.31 p.m.


My Lords, on behalf of my noble friend Lord Colville of Culross, who unfortunately is unable to be present in your Lordships' House to-day, I should first like to refer to this short Order itself. The Lands Tribunal has earned for itself a very proper reputation as a tribunal which is as near as may be a court of law: the extension of legal aid to parties who appear before it seems to us on these Benches due recognition of that fact. But this Order also recognises the present position where the Lands Tribunal has an important, if specialised, jurisdiction which can affect any citizen in England and Wales. Rates, compensation (such as for compulsory purchase) leasehold enfranchisement and betterment levy are all matters which can raise difficult questions of law, and it is right that no one should have his rights prejudiced for lack of proper representation. I should like to ask the noble and learned Lord about the position of a surveyor who is called as an expert witness. We believe that this could be done under the legal aid scheme. It is all very well to have legal representation, but professional evidence is usually essential for the proper presentation of a case before the Tribunal, and this aspect of the matter is not of great significance to the successful operation of this extension of legal aid.

On the more general matter to which the noble and learned Lord has referred, I would join in welcoming his statement. He has held out a promise of further measures to come, but in the meantime we should entirely approve of what he has said. It would, however, probably be more appropriate for me not to enter into the details of this matter but to leave one of my noble friends to discuss the scope and application of legal aid on a much wider scale as and when the opportunity promised by the Lord Chancellor arises.

1.34 p.m.


My Lords, I am extremely grateful to all noble Lords who have taken part in this discussion. Before I complete it, may I say to the noble Lord, Lord Napier and Ettrick, that if a person gets legal aid, and wants the services of a surveyor, he will be treated as an expert witness and will therefore be paid out of the legal aid funds. I share Lady Emmet's disappointment that we cannot start the £25 scheme in this Session. The reason is that it will require legislation, and I am afraid that it simply cannot be done this Session. I omitted to say that the new scheme, which will altogether take the place of the mini-advice scheme, will cost, in England and Wales,£1½million in the first year, rising to £2,300,000 in four years. The quantum of those amounts is really the measure of our present position.

I am grateful for what my noble friend Lady Burton has said. I am sure that we are right in at least applying legal aid to proceedings before the Lands Tribunal, who, as the noble and learned Lord, Lord Napier and Ettrick, said, deal with complex matters—value and rating. We now have two laws for rating, one for the rich and one for the poor: those who can go to the Lands Tribunal and those who cannot. And your Lordships will remember recent legislation on leasehold enfranchisement. The sort of person that we had mainly in mind was the man who has a small house in a valley in Wales which has been occupied, perhaps, by his family for four generations, and he is just coming to the end of a ninety-nine-years lease at a low ground rent. I am told that in that part of the country the people whom we meant to benefit have not benefited as much as we should wish, because they are more or less bound to pay whatever sum the landlord demands as they cannot afford to go to the Lands Tribunal, which is the Tribunal appointed to deal with those disputes. I know that this extension of legal aid will give satisfaction in that part of the country.

I am grateful also to the noble Lord, Lord Chorley. I deal mainly with civil legal aid, and am only concerned with criminal legal aid in the magistrates' courts. Like the noble Lord, I sometimes feel that we do too much in the field of criminal legal aid, and that the aid could be better employed in extending civil legal aid. I should also like to join with the noble Lord, Lord Ilford, in the tribute that he paid to Mr. Pritt. I was myself an old member of the Bentham Society; I know how much Mr. Pritt did in that field.

I am grateful to all noble Lords who have taken part in the discussion. I am only sorry that in the economic situation we could not deal with this matter before, but I had thought that a time would come. I am doubly indebted to the Advisory Committee who have done what may sound simple, though it has meant a great deal of work because a lot of complicated detail is involved. I hope next week to be able to lay two Orders altering the basic figures, and if we are returned, and the next Session has not by then started, we shall I hope be able to tackle the £25 scheme.

On Question, Motion agreed to.