HL Deb 12 November 1970 vol 312 cc827-39

4.27 p.m.

THE LORD CHANCELLOR rose to move, That the Legal Aid (Financial Conditions) Regulations 1970 be approved. The noble and learned Lord said: My Lords, I fear that in rising to move these Regulations I have a somewhat technical story to tell. In case noble Lords are subject to what I now must learn to call "narcolepsy" as a result of my noble friend's answers yesterday, I can reassure them by giving them two facts in advance. The first is that this set of Regulations has been passed by the Special Orders Committee as containing nothing which ought to arouse the special animadversions of the House. The second fact is that although, technically, this set of Regulations is different from the set of Regulations which the noble and learned Lord who preceded me on the Woolsack laid a little earlier in the year, the effect will be almost exactly the same, with some administrative advantage; some people marginally better off and nobody any worse off.

These Regulations are made under the provisions of subsections (1) and (2) of Section 1 of the Legal Aid Act 1960. Those subsections, in turn, amended Sections 2(1) and 3(1) of the Legal Aid and Advice Act 1949. Having increased the limit for free and contributory legal aid laid down in 1949, the amending sections of 1960, to which I have referred, provided that further increases might be prescribed by Regulations subject to an Affirmative Resolution of both Houses of Parliament. This is the first occasion on which that power has been exercised. However, I should warn the House that the present proposals, which I am about to describe, should be read together with the Legal Aid (Assessment of Resources) Regulations 1970, which also were laid by me but which are subject to the Negative Resolution procedure. So read, the present proposals will benefit a considerable number of people.

In the first place: Regulation 4 of the Financial Conditions Regulations make transitional provisions for re-assessing contributions in current cases. All those whose "period of computation" (which in the jargon of the art means the twelve months period covered by the assessment of an applicant's resources) has more than two months to run will be reassessed under the transitional provisions, so that there will be an immediate improvement for current cases, except where that immediate improvement so calculated would be minimal. The effect will be immediately, and as a result of the transitional provisions, to reduce contributions in approximately 50,000 current cases.

As regards future cases, the effect of the new Regulations will be to bring about 16,000 more people every year within the limit within which they will have to pay nothing at all for legal aid. In addition to these 16,000 people, about 40,000 people a year will pay less contribution in future when they make their applications than they would have had to pay had the present Regulations remained unaltered. Moreover, about 7,000 people a year who would now be outside the financial limits for legal aid altogether will in future qualify for legal aid.

I come to the actual provisions. First, the Regulations increase the financial limits within which people are eligible for legal aid, both the financial limits within which they are eligible for legal aid without payment or without charge, and those financial limits for people who are eligible for legal aid with a contribution. I should however say that they only increase the income limits; the capital limit is not altered. The figures are as follows: First of all, for free legal aid the present limit is £250 a year; the new limit, up 20 per cent., by £50, will be £300 a year. Next, contributory legal aid. The present limit is £700 a year, as a result of the new Regulations I am proposing, the limit will be raised by 35.7 per cent., to £950 a year. In each case the figures per annum which I have just given are figures relating to what is technically called "disposable income"—that is, income which the applicant can be expected to receive over the twelve months following the date of the application after making certain specified deductions. These deductions are maintenance of dependants, repayment on loans, income tax, expenses of employment, rates, rent, and other matters for which provision can reasonably be made. These deductions are provided for in the Regulations of 1960, as amended, and the Supplementary Benefits Commission are responsible for calculating the disposable income on these lines.

As I have said, the present Regulations, which are subject to Affirmative Resolution, cannot be read alone. They have to be read in conjunction with the second set of Regulations subject to the Negative Resolution procedure, but will, subject to that, come into force at the same time as these Regulations. These second Regulations require the Supplementary Benefits Commission to disregard £104 of the disposable income of every applicant for legal aid. On an average this will have the practical effect of raising the financial limits that I have been mentioning by a further £50. The result of this happens in this way. The provision in the second group of Regulations replaces what in the former Regulations was a general mopping-up provision requiring the Commission to allow. such amount as is just and equitable in respect of any other matter for which the person concerned must or reasonably may provide. The curious can find the phrase which I have just quoted in Rule 12 of the First Schedule. The most frequent allowance under this provision is for hire-purchase payments and insurance premiums. The average overall amount allowed has been £54, so that the average applicant will now be allowed £50 more than previously. A person with no special commitments will of course get the benefit of the full £104 and will be better off still. The person with special commitments of exactly £104 will get the rise in the basic rates covered by the Regulations I am now discussing, but will not get the benefit of the further £50, although if his commitments exceed £104 a further allowance can be made.

This method of increasing the financial limits was suggested by the Legal Aid Advisory Committee in their Nineteenth Report which was laid before Parliament on May 28, 1970, just before the General Election. They advocated it because it would save administrative costs involved in confirming the exact amount to be allowed in every case. It will benefit a number of applicants fortuitously, but advantageously to them, and I think no one will be worse off. It will now be necessary only to confirm the comparatively small miscellaneous expenditures in the small minority of cases where the special commitments are likely to exceed £104. The Government accepted this recommendation and therefore withdrew the Legal Aid (Financial Conditions) Regulations laid before Parliament by my predecessor, which proposed increases in the financial limits to £350 for free and £1,000 for contributory aid respectively, replacing them by the present two sets of Regulations, which, as I say, in the average case have exactly the same effect but reduce administrative expense.

The effect of the two Regulations combined is as follows. Taking the worst case—that is, where the special commitments amount to £104 or more, the contribution paid being one-third of the difference between the free limit and the disposable income, the effect will be to reduce contributions by one-third of £50, or £16 13s. 4d. Take the average case with disposable income of £600: the contribution is again one-third of the difference between the £600 and £250, £116 13s. 4d., if the Regulations are unaltered. In future the contribution will be one-third of the difference between £600 and £300; that is, £100.

The applicant with average special commitments is rather better off—he will gain a further £50 as a result of the new allowance. The new free legal aid limit will be effectively £350 instead of the £300 (that is a 40 per cent. increase) and the new contributory limit will be £1,000 (42.9 per cent. increase)—the figures which the previous Government proposed. Contributions will be reduced by up to £33 6s. 8d. Again, taking the £600 as the datum, the contribution will in future be £83 6s. 8d. instead of £116 13s. 2d. In the best case, where there are no special commitments, contributions would be reduced by up to £51 6s. 8d., which will be £65 6s. 8d. compared with £116 13s. 4d.

My Lords, the cost of the proposals will be divisible into short term—the immediate cost—and the long term. In the short term there will be to the Fund an immediate loss of contribution, in some cases through refunding amounts already paid and in others by collecting less. This loss is estimated to amount to £960,000 in the next twelve months. This loss, however, will be offset by the acquisition of contributions from the 7,000 new users of legal aid who are expected to contribute about £800,000. The immediate net cost in the ensuing year, to November 17, 1971, is thus £160,000. The effect in a full year on the actual cost to the Legal Aid Fund will not, of course, be felt until the Law Society begins to make payments to solicitors and counsel in respect of work done on behalf of the new users. This will come gradually as their cases are completed and the costs are taxed. Eventually it is estimated to reach about £483,000 net a year. To this must be added the loss of contribution in the other cases referred to. But some of the £960,000 lost to the Fund will in any event have been repaid to the assisted persons, on receipt of costs from the other side, and the net reduction is estimated to be £643,000 making a total cost of £1,126,000 in a year altogether.

My Lords, there is a second set of Regulations, relating to Scotland, which I will move should the House think fit to approve these Regulations. I do not propose to make a separate speech in relation to the Scottish Regulations since they only translate the same thing into the decent obscurity of a learned language. My Lords, I beg to move that the first set of Regulations be agreed to.

Moved, That the Legal Aid (Financial Conditions) Regulations 1970 be approved.—(The Lord Chancellor.)

4.43 p.m.

LORD GARDINER

My Lords, the whole House will be grateful to the noble and learned Lord the Lord Chancellor for his lucid explanation of these Regulations. I and my noble friends strongly support them and hope that they will be passed by your Lordships. I confess that when at Question Time I saw no less than nine right reverend Prelates present I hardly thought that they had come to support the Army Act. I thought that possibly their interest was in poor people getting proper legal aid and advice, or perhaps in the Animals Bill. As eight of them have now left the Chamber, I can only conclude that I must have been wrong.

My Lords, I welcome these and the associated Regulations because they mean that our position in regard to legal aid is in effect what it was about nine years ago, the principal object of them being to restore the figures so as to allow for the intervening fall in the value of money. I should like, I hope not improperly, to take this opportunity to ask the noble and learned Lord the Lord Chancellor what the proposals of the Government are in a field which, as he knows, is giving great concern to everybody who is familiar with it. I refer to the wholly inadequate provision that we make for legal advice—advice which, if given at an early stage, might well save a great deal of the money which is paid out in respect of legal aid.

Your Lordships may remember, because I referred to it in a debate in this House in May of this year, that the Conservative Lawyers' Association had deplored the gross inadequacy of our provision for legal advice in a publication called Rough Justice, and the Society of Labour Lawyers said the same, but making rather different proposals, in their publication, Justice for All. The Law Society, while equally deploring the situation, made their own proposals. It was in those circumstances that I asked the Advisory Committee on Legal Aid and Advice for their assistance as to which of these schemes they thought the best. They gave the matter thorough consideration, and on May 28 their Report was published, advocating what has come to be known as the £25 scheme, and I need not detain your Lordships with the details of that, Of course, their Report was actually made before it was printed and published. Therefore, about a fortnight before the Report was published I was able to say in this House that the Government welcomed the Report as to the £25 scheme, but that it would be impossible to put through the necessary legislation in that Session of the last Parliament—and indeed the General Election followed within two or three weeks.

My Lords, if that Government had been returned, they would, I hope, have carried through the necessary legislation in this Session. It is for those reasons, and because of the very general concern, which, as the noble and learned Lord the Lord Chancellor knows, is shared by the entire legal profession and quite regardless of political views, that I venture to hope that when he replies he will be able to tell us what the Government proposals are in this regard.

This morning I opened the current issue of the Law Guardian, and I saw a letter from a solicitor which said: So far as can be judged, the Law Society's £25 legal aid scheme is everywhere applauded, but still we find yet another Lord Chancellor being forced to say to us in effect: 'Sorry boys. A jolly good idea, but it would cost £1.5 million per annum. We must think about it'. I cannot think that they can have read what I said in this House in May, when I fully accepted the scheme in principle and made no such excuse. I merely pointed out that the necessary legislation could not be passed in the last Session. The letter goes on: This in the face of the astronomic sums, by comparison, which are spent annually on all other forms of social services. How much longer must we endure the role of a Cinderella service? Fine words do no good—only deeds will cure the worsening situation, to which more and more: solicitors daily allude. My Lords, I hope very much that the noble and learned Lord the Lord Chancellor will tell us what prospects there are of dealing with this worsening situation.

4.47 p.m.

BARONESS EMMET OF AMBERLEY

My Lords, it requires temerity to speak on this matter after both the noble and learned Lord the Lord Chancellor and the previous Lord Chancellor, but as Chairman of the Legal Aid Committee I should like to make one or two comments. In the first place, my Committee will be pleased that these Regulations are to be made, which are in accordance with the recommendations that we made last year. I know that in quoting the figures that this will cost, your Lordships may think that a great deal more money is being spent on legal aid. I should like to point out, if I may, that the amount of legal aid money that the civil authorities spend is infinitesimal compared with what is spent on the criminal side, and I think perhaps one might get a little better proportion between the two if the criminal side was closely investigated.

With regard to the £25 scheme, my Committee has this very much at heart. We had hopes of getting it through last year and we realise that at the present time the economic situation will make it extremely difficult. But I hope that the noble and learned Lord the Lord Chancellor will lend his weight—and his weight is considerable—to help us get further with this scheme which we believe will in the long run not only help a great many distressed people who find it difficult at the present time to make use of the system, but will ultimately end in some saving in money and a great deal of saving of time. My Lords, I will convey to my Committee what has been said, and I know that they will be delighted to hear that these Regulations are coming into force.

LORD JANNER

My Lords, I should like to intervene for just a few moments, because as a practising solicitor one meets these problems in relation to legal aid very frequently. I should like to thank the noble and learned Lord the Lord Chancellor for having introduced these Regulations, but I would point out, and perhaps underline, what has been said by my noble and learned friend Lord Gardiner in respect of legal advice.

A considerable difficulty arises when a person of slender means is not able to take advice, or has to spend a considerable amount of money in relation to his own income in order to obtain advice. Very frequently, men and women are deterred from going to lawyers because they cannot afford to seek the advice that is necessary. I hope I am not entirely out of order—in fact I am sure that following my noble and learned friend Lord Gardiner I must be in order. I believe that the important thing is that a person should feel that access to the law is available to him. In many cases people are disturbed for years by grievances, or imagined grievances that could be dealt with if they took advice, and it seems to me that not only would it be of benefit to individuals to seek that advice, sometimes before entering into litigation which is costly for them, but also that it would and could relieve the courts of very many cases which are now taken before them. In these circumstances I hope that the noble and learned Lord the Lord Chancellor will take note of what has been said in this regard and do what he can to help this necessary assistance to be available.

4.52 p.m.

THE LORD CHANCELLOR

My Lords, I am extremely grateful to those noble Lords on both sides of the House who have contributed to this short discussion, and I am also grateful to them for the general welcome they give to these particular Regulations. If I may come straight to the question which was posed from the Opposition Front Bench by the noble and learned Lord, Lord Gardiner, I of course recognise that there is a gap in the Legal Aid Scheme at present in the field of legal advice. I told him, I think on the occasion of the Queen's Speech or at any rate about that time, that of the various schemes which are put forward to fill that gap the one which attracts me most is the one which was recommended by the Legal Aid Advisory Committee, namely, the so-called £25 scheme. On the other hand, I cannot myself offer any hope for this Session of Parliament, or at any rate for this financial year—it may be that the Session will last rather longer than some Sessions have done.

The noble and learned Lord, Lord Gardiner, said that he hoped that had a different complexioned Government been returned it would have passed the scheme this Session. Well, one could always hope. My own judgment of the matter is that the noble and learned Lord's hopes would probably have proved false. It has turned out to be the case—whatever may be the cause, and I suppose we shall be debating that next week, and therefore I do not want to say anything particularly controversial now—that for one reason or another public expenditure has been going up very fast. There have been a number of inflationary wage settlements, one last week which would affect Government expenditure in the local and public field by more than the total possible cost of this new proposal. I rather doubt whether a Labour Government would have been bold enough to give this scheme the priority in this Session which the noble and learned Lord hoped it would have been given in the conditions which we are now facing in the economic and financial field.

I can assure the noble and learned Lord that I say this with some regret, and I say it not without sympathy for the scheme, because I accept that there is a gap and that any Lord Chancellor would be pleased to sponsor a scheme of this kind. On the other hand, a Lord Chancellor is a member of an Administration and must share financial responsibility for the total claims which the Administration makes on the public purse. I would have said, quite frankly, that in the present financial year it would be a difficult thing to give this scheme priority. We are going to discuss next week the needs of school children, the needs of the old and the needs of the Health Service. It is a question of priority.

The one thing which, with great respect to the noble and learned Lord, I would not accept is the housemaid's baby argument: it is only a little one. If we are going to take seriously the threat posed by inflation we cannot afford to make little additions to what we take from the public purse. Every Department must bear its own share of the hair shirt we have got to wear, if I may use a mixed metaphor. We have to take seriously this battle against inflation, and that means the Lord Chancellor with his family of small children just as much as the Secretary of State for Social Services with his family of very rapidly growing children. I am afraid I could not put the claims of this particular individual social provision as high as some of the others which excite human sympathy more.

I am not prepared to say, simply because the legal aid system makes one of the smallest claims on the public purse, that it is necessarily a Cinderella. That has not been so in the past. However long legal aid goes on, if it goes on a hundred years, it will never be comparable to the old age pension or the public education system. It does not follow that because the pounds spent on it are less it is a Cinderella at all. On the contrary, it was one of the first social provisions proposed after the war by a Committee of which, unless my memory has misguided me, my noble and learned friend Lord Dilhorne was a member. Therefore I do not think it can be called a Cinderella simply because one cannot add to it relatively small sums when other social services are being reviewed as stringently as is now necessary.

I was very glad that the noble Baroness, Lady Emmet, took part in the debate, because it gives me an opportunity of saying how grateful we are to her for the work the Committee does and how very much we value its advice. She made the very good point that the cost of legal aid is far more severe in the criminal field than in the civil. As she knows, and as the noble and learned Lord knows, the Lord Chancellor has to watch his step when he talks about criminal legal aid, because under the division of responsibility in, I think, both Labour and Conservative Governments, at the moment criminal legal aid is the responsibility of the Home Office, and the Lord Chancellor meets a barbed wire fence if he seeks to encroach upon it. But I will say, with some delicacy, because I think it needs to be said, that I agree with a good deal of what my noble friend said about it.

When I was at the Bar, which is not very long ago, I felt it my duty to take a certain number of legal aid cases in the criminal field. Although the courts, and I think the profession, on the whole would give legal aid in an even wider range of cases than those in which it is being given now, I am quite sure that some money in the criminal field is not now being very wisely spent. That is nobody's fault. I should like to be perfectly candid with the House. When counsel accepts instructions to defend a person who is charged with a criminal offence, he has to treat that client just as well and just as honourably as he does a paying client; that is to say, his duty is owed to that client and not in any form to the Chancellor of the Exchequer. He has therefore to apply exactly the same criteria of professional ethics to that client as to a paying client. It so happens that as a result of this undoubted fact, from which there is no escape, one sometimes finds oneself defending a case in which the wiser counsel would have been, had one been entitled to pursue it, to make a plea in mitigation on a plea of guilty, rather than to take up a fortnight of the court's time in emphasising the gravity of the client's offence on a plea of not guilty. I want to be perfectly candid about that, and I sympathise with my noble friend in what she says about it. But it is not an easy dilemma from which to escape, because I do not think that the profession would accept obligations different in aided cases from those in non-aided cases. Although I have some idea as to how it might be done, so far as I am concerned it is not going to be done in terms of any diminution in the standards of honour pursued by the Bar and the solicitors' profession. I do not think it is at all an easy way out.

The noble Lord, Lord Janner, whose speech I also appreciated, made the point which was made by my noble friend; namely, that there would be some claw-back if the £25 scheme were adopted. Of course I accept that; but it is difficult to quantify and I doubt whether you could make out a case that it would actually claw back more than it cost. A great deal of the legal advice given in the £25 scheme, if that scheme were adopted, would, I suppose, be, "For Heaven's sake! do not go to law, because you will not win." That would be a quite valuable piece of advice if people were willing to take it; indeed, it is the advice one has been constantly giving all one's professional life.

But the test of whether it would be a saving, on balance, to the Legal Aid Scheme would depend not upon the number of cases where that advice was given, but on the number of cases where that advice was given under the £25 scheme and otherwise the person would have become legally aided under the existing scheme. This will be a relatively small number of cases, because before a person can get legal aid under the existing scheme that person has to persuade some kind of committee that he has some kind of case. Therefore, you have to cancel out the frivolous cases at both ends. I do not know what the end of the equation would be, but I think that if you are going to go in for the £25 scheme—I hope I have not spoken unsympathetically about it at all; certainly, I did not intend to—you will have to reckon that it will cost a few million pounds odd net to the Exchequer in order to implement it.

Having said that, I do not want to indicate for a moment that when the time comes, and if I can persuade my colleagues that it has sufficient priority in relation to other demands, it is not something which I would gladly see carried out. But I cannot give the noble and learned Lord the comfort for which he asked. I hope I have also been extremely candid with the House.

On Question, Motion agreed to.