§ THE LORD CHANCELLOR rose to move, That the Legal Aid (Extension of Proceedings) Regulations 1972 be approved. The noble and learned Lord said: My Lords, in this case there are no equivalent Regulations for Scotland because the proceedings in Scotland, which are similar to those covered by these Regulations, already have the benefit of legal aid. Section 1 of the Act of 1949 enables the proceedings in connection with which legal aid may be given in England and Wales to be varied by Regulations which shall not come into force unless and until approved by Resolution of each House. The object of these Regulations is to extend legal aid to proceedings before the Commons Commissioners. The Commons Commissioners are appointed under the Commons Registration Act 1965. Under that Act, common land or town or village greens or rights of common without ownership of such land have to be registered. This process has now been completed. The next step, which has just started, is for objections to be made over the registration of common land or rights of common, and these objections are referred to a Commons Commissioner who may confirm, modify or reject the original registration.
§ Objections to registration can, of course, raise questions of ownership or rights of common. These questions may be of vital importance to people like upland farmers or smallholders who rely upon common grazing to provide some upkeep for their livestock. Although proceedings before the Commons Commissioners will be rather more like proceedings in the county court than proceedings in the High Court, the questions for determination may raise questions of law of common land which can be extremely recondite. Much of it has remained untouched for at least a hundred years. The Commissioners will have to consider ancient grants, they will have to consider manorial records, and they will have to consider even such questions as relate to the mediaeval doctrine of levancy and couchancy, which is the doctrine which fixes the number of animals an owner can place upon a common by reference to the number which 760 he can support upon his own land in winter. Questions can also arise on the law of prescription, and allegations may be made that the right of common has been lost, whether by abandonment, surrender or merger. The Commissioners will also be going into the proof that land was manorial waste, and that will depend upon a study of early records, possibly local traditions and possibly considerations of later transactions or user. I feel that your Lordships will therefore agree that it would not be possible to ask a farmer or smallholder to argue such cases in person. It is for this reason that the Government feel that there is a clear case for extending legal aid to these proceedings without further delay. However, the number of persons likely to qualify for legal aid is likely to be quite small; and the total cost has been estimated to be about £20,000 spread over six years. I cannot, without further notice, break that figure down and show exactly how it has been calculated.
§ It will be recollected that the Government's general policy with regard to extending legal aid to further tribunals is to await the outcome of research by the Nuffield Foundation and others. The Legal Aid Advisory Committee considered that the need for further extensions had not been made out up to the date of their Report in 1968, but next summer they may be in a position to reconsider the question in the light of the Nuffield Foundation's researches. The Government will then review the general policy with regard to extending legal aid to further tribunals. However, for the reasons that I have just given we feel that there is a clear case for extending legal aid to the Commons Commissioners in advance of a decision on the general question. The whole process of investigation will take only about six years, and there is in fact a limited right of appeal from their decisions to the High Court. If legal aid is not extended to these proceedings now, it will therefore be too late. I beg to move.
§ Moved, That the Legal Aid (Extension of Proceedings) Regulations 1972 be approved.—(The Lord Chancellor.)
§ LOR GARDINERMy Lords, the whole House will I think agree that the noble and learned Lord the Lord Chancellor has made out a very cogent case 761 for the passing of these Regulations. Of course, they have to be considered against the general background of those proceedings for which legal aid is available; and, as the noble and learned Lord has said, apart from the courts the only other form of tribunal for which legal aid is available is the Lands Tribunal. It is true that the noble and learned Lord's Advisory Committee, on considering legal aid for tribunals, recommended that legal aid should be available for the Lands Tribunal but not for other tribunals until research work had been carried out. On the other hand that was in 1968, and there is to-day, as I think the noble and learned Lord will agree, an increasing view that it is not right that while there is or is going to be some legal advice available before some tribunals, there should be no legal aid before, particularly, a number of those tribunals in the social welfare field which make decisions of such great consequence to large numbers of ordinary people. I do not know whether the noble and learned Lord has seen the strong leading article in this week's Solicitors Journal, urging once again that there should be legal aid before such tribunals. If he has, perhaps he would be good enough to tell us his view about that. Secondly, can he tell us how much longer we have to wait until the result of this research work can be made known?
THE LORD CHANCELLORMy Lords, I am grateful to the noble and learned Lord for what he said about the Regulations which I proposed. I am of course aware, because we have discussed it previously in this House, of the view which is held by some that legal aid should be more generally available in tribunal proceedings. I have on previous occasions issued a note of caution here. Many of these tribunals were originally designed to get rid of the need for lawyers on either side. They were designed to have an informal procedure in order to achieve that result. One does not want to get into this curious kind of progression where you first of all take something out of the ambit of the ordinary courts and their administrative procedures and say that you are going to have a nice, informal tribunal which will get rid of those horrid people, the lawyers, and then follow it up with legal aid provisions which ensure that legal aid is available 762 in every case. Having been an advocate for forty years, although on a smaller scale than that of the noble and learned Lord, I have no doubt myself that there are advantages in professional assistance before all types of tribunal. There comes a point, however, when an overworked profession can only provide a service of a limited kind; and there are all kinds of factors which have to be taken into account, including the extent to which the facts can be found out by the tribunal without the assistance of lawyers.
However, in reply to the noble and learned Lord's last question I would say that we have some hopes that the Advissory Committee will be looking at the results of the research next summer, and then we shall all be in a position to form a clearer judgment about these matters. I very much doubt whether legal aid will become available before all tribunals. It may well be that the results of the research will indicate that there are some where it is more and some where it is less advantageous. Probably the House will be disposed to agree that, although they listen with both respect and sympathy to everything that the noble and learned Lord says, the Government have been right to take the urgent case first and to await the result of the research before taking a general line on policy. But I have taken note of what the noble and learned Lord has said, and indeed of what other noble Lords have said in the same sense on earlier occasions.
§ On Question, Motion agreed to.