HL Deb 23 June 1972 vol 332 cc502-31

11.30 a.m.

THE LORD CHANCELLOR

My Lords, it gives me very great pleasure indeed to be able to rise to move the Second Reading of this Bill. As many of your Lordships will know, I have wished from the first to find a place for it in our overcrowded legislative programme, and if it had not had manifest financial implications it would, I believe, have made an admirable candidate for introduction into your Lordships' House instead of into the other place. The credit for the Bill must be shared between the Lord Chancellor's Advisory Committee, who since 1966 have been drawing attention to the need for a scheme of this character, and the Law Society, which in February, 1968, at the request of the Advisory Committee, first devised the scheme which forms the basis of Part I of this Bill. There have also been schemes by the Society of Labour Lawyers and the Society of Conservative Lawyers which, though not followed so exactly by Part II of the Bill, formed part of the inspiration behind it. The actual genesis of Part II can reasonably be ascribed to a joint meeting, held under the auspices of the Society known as Justice, which resulted in a second memorandum of the Law Society, published in July, 1969, and approved in turn by the Advisory Committee in January, 1970.

The principle of the Bill, which after all is what we are discussing on Second Reading, is to fill a gap in the Legal Aid and Advice Act 1949 which has existed since its very inception. The original Bill which became that Act originally provided for legal aid in proceedings, but only for oral advice—advice by word of mouth. Before the Bill reached the Statute Book, as it did, it was amended and the amendment allowed also for assistance in negotiations, but only for assistance in negotiation where this took place within the framework either of the assertion of a claim which could form the subject of litigation or in the course of disputing such a claim. Moreover, in order to attract the advantages of Section 5 of the Act (as the Amendment became) a claim so asserted or disputed must itself be one of the class which, if litigated. would attract legal aid. Thus the Act does not permit more than oral advice where the person concerned is involved in proceedings before tribunals, or in criminal proceedings; or where, for instance, he is negotiating for a lease and the negotiations do not end in litigation, or is quarrelling with a next-door neighbour or his landlord or has a minor consumer problem. Even the provision for oral advice, which is provided under Section 7 of the Act, is limited in scope and thus in the actual use to which it has been put in practice. Thus the existing legislation provides mainly for legal aid and only for a limited kind of advice and assistance.

In July, 1971, the Advisory Committee reported to me that the Scheme on which the present Act is modelled would radic- ally improve the service to the public by helping to resolve different personal and social questions in their earlier stages, which is of course precisely when recourse to litigation can most helpfully be avoided. I agree with their conclusions. The Scheme will fill a recognised gap in the Criminal Legal Aid Scheme, for which of course I am not departmentally responsible, by providing for advice in police stations and in prisons. It can help to provide a remedy for grievances in race relations. It will provide advice for tenants and small landlords. It will reduce the problem of small claims in the consumer field. It will help those appearing before administrative tribunals. It has also been commended in principle by the Committee on the Rent Acts, by the President of Industrial Tribunals, by the Child Poverty Action Group, by Justice itself in their recent Report on Litigants in Person.

No doubt the proposals in the Bill may not be the complete and final answer to everything in the way of legal assistance. Further research into the problem, at the moment generously financed by the Nuffield Foundation, is now proceeding on the advice of the Advisory Committee. But the present Bill which represents the present state of consensus will go a long way along the right road and will itself provide experience on which future legislation may wish to build.

The Bill itself is, as I have indicated, divided into two main Parts, the third Part being really supplementary. The purpose of Part I is to give effect to the so-called £25 scheme. This enables lawyers in ordinary practice to give legal advice and assistance up to £25 without prior permission, and to give legal advice and assistance above £25 with proper authority. The purpose of Part II is to enable the Law Society to employ solicitors and subordinate staff, first to provide an advice liaison service, who of course will work closely with the Citizens' Advice Bureaux and other social agencies, but whose main function will be to identify the real nature of the applicant's problem, and where necessary to introduce him to a suitable solicitor who will operate the main scheme. Secondly, Part II will provide legal advice and assistance, and also, if necessary, legal aid in areas where solicitors in ordinary practice are not available.

Clause 1 of the Bill offers legal advice and assistance to persons with a disposable income of £20 a week or less, and disposable capital of £125 or less—the word "disposable" meaning the rate of income or amount of capital after making deductions for dependants, income tax, rates and a few other matters. The concept corresponds roughly to the existing limits under the Legal Aid Scheme. The Advisory Committee have recently recommended to me that the free capital limit under the Legal Aid Scheme should be raised from £125 to £325. If this recommendation is accepted for legal aid (it is too early for me to make an announcement to-clay whether it will be) the £125 figure under the Scheme will of course be correspondingly increased. This can be done by regulations.

Clause 2 describes the persons who will give the legal advice and assistance. This means solicitors and, where necessary, counsel. There must be, in order to attract the advice, a real problem. The object is not to give an academic exposition of the law; and the law concerned means of course that either of England or of Scotland, as the case may be. Practical advice is limited to advice on what to do about the application of the law. For instance, supposing in a matrimonial case you identify the real problem of the person coming to be a desire to compose the wife's differences with her husband. Then the solicitor would probably send the applicant on to see a marriage guidance counsellor. But if the problem were separation or maintenance or divorce, he would then give the advice himself. If actual proceedings then take place, legal aid will of course be attracted under the ordinary Legal Aid Scheme—the existing Scheme. But even here solicitors may pursue negotiations, short of proceedings, outside the ambit of the existing Scheme, and may give advice as to what to do or say in proceedings to which the existing Scheme does not yet apply at all. This is the reason why I said that the scheme will help people who have to appear before administrative tribunals. Subsection (4) of Clause 2 enables a solicitor who may be in the precincts of the court on another matter to act in proceedings to which an applicant is a party, whether those proceedings are criminal or civil. This will, among other things, go some way to meeting the suggestion by the Society called Justice for a Duty Solicitor in England. There is in fact already such a person in Scotland.

Clause 3 deals with aid in excess of £25. It will be administered through the existing machinery. Clause 4 and Schedule 1 provide for contributions for the applicant in cases where he has more than the nil assessment under the existing Scheme. Clause 5 deals with the machinery for meeting solicitors' costs in excess of contribution. I do not think that at this stage I need refer in detail to Clause 6.

In Part II, Clause 7 entitles the two Law Societies—that is to say, of England and of Scotland—to employ solicitors to give advice and assistance, to give legal aid and to carry out liaison with citizens' advice bureaux and other bodies. Clause 8 describes the arrangements for employed solicitors and for their remuneration. Clauses 9 and 10 are pure machinery. In Part III, Clause 12 gives a regulation-making power, and Clauses 12 to 14 are supplementary.

My Lords, the cost of the Bill is difficult to estimate. We have put Part I at between £1.6 and £2.65 million, based on an assumed workload of 400,000 new applicants a year. There will be some savings, both direct and indirect, in reducing the need to litigate—and I hope they will be great— and in bringing home responsibility to parties liable who might otherwise escape altogether. We cannot estimate the costs of Part II. We shall probably start with a liaison service. There will probably be 12 liaison officers to begin with, each with his secretary and office costing £7,000 a year. Advisory units will probably cost about £13,500, £25,000 or £50,000 each, according to the scale of service provided.

My Lords, I have tried as compendiously as I could to say what the Bill does, and I now beg to move that it be read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

11.42 a.m.

LORD MILNER OF LEEDS

My Lords, on behalf of the Opposition I should like to welcome this Bill and to thank the noble and learned Lord the Lord Chancellor for his comments on the background of the Bill and his explanations. I should like to associate my noble friends with the tribute that the noble and learned Lord has paid to the Advisory Committee. It is a matter of satisfaction to this side of the House that the present Government have brought forward this Bill which the Labour Government were considering, although admittedly this Government have only done so in their second legislative Session.

As the noble and learned Lord has said, this Bill embodies the proposals made by the Law Society in their Memorandum of February, 1968, as developed and expanded in their second Memorandum of July, 1969. It follows upon the Report of the Advisory Committee on the Better Provision of Legal Advice and Assistance, which Report was made in January, 1970, to my noble and learned friend Lord Gardiner, and gave approval to the Law Society's proposals and recommended their adoption. The Explanatory Memorandum of the Bill begins by saying that its purpose is to give effect to the recommendations of the Report. The Report sets out on page 3 the problem which the Advisory Committee was seeking to solve: All those who have considered the matter agree that there are people who would benefit by going to a solicitor but who do not do so. The Report then sets out five reasons. These are: defects in the existing legal advice scheme; insufficient publicity; lack of solicitors in the areas concerned; reluctance to consult a solicitor; and failure to recognise that legal remedies may be available. The Committee says: We agree that people fail to get the legal help they need for one or more of these reasons. This Bill will go some way towards solving these problems. The £25 scheme will help. There have been criticisms of the fixing of the sum of £25 as a limit for permissible expenditure, but the Bill contains power for the authorities to exceed that figure, subject to an assessment by the Supplementary Benefits Commission. The £25 scheme should therefore be regarded as fulfilling a double purpose: it will enable most problems to be dealt with and it will also serve as a lead into the full facilities of both the civil and criminal legal aid schemes.

As I understand it, no limit has been laid down in respect of the expenditure that can be authorised. The scheme will enable a solicitor to deal with an applicant in exactly the same way as he would a paying client. Every client who is found to be eligible can be regarded as one whose bill, initially, will not exceed £25 and who has, in effect, put up £25 to cover either the whole expense or the major part of it, the rest (if any) being payable by arrangement—as so often happens now when a paying client of small means consults a solicitor. The service which the solicitor will be able to give will include not only advising him but also giving the necessary assistance to put that advice into effect, whether it be in a contentious, non-contentious or criminal matter.

This £25 scheme is the foundation on which all the other facilities rest. It is one thing to offer help, but it will not persuade people who are reluctant to consult a solicitor to do so. It will not persuade solicitors to enter areas where they are needed. It will not help people to recognise that legal remedies are available. What would go some way to solve these problems is Part II. Part II refers to the proposed advisory liaison services, neighbourhood law offices, and so on, and I expect that my noble and learned friend Lord Gardiner will comment further on this Part of the Bill. In another place the Government said that they were not going to operate Part II now, but I hope that the noble and learned Lord the Lord Chancellor will be able to assure the House that that statement was not correct.

There are some matters which it has been suggested should have been included in the Bill. For example, the problem of tribunals. But it may be that the appropriate way to deal with this would be by a commencement order under the Legal Aid and Advice Act 1949. The same applies to a matter which is tending to be raised more frequently; namely, representation in the coroner's court. We may have to come back to that in Committee. Changes and improvements in general eligibility for legal aid and, in particular, contributions out of capital are certainly capable of being dealt with by regulations under the main scheme. The noble and learned Lord the Lord Chancellor has to-day referred to this and we hope that the Government will make the necessary orders in the near future. My Lords, we on this side of the House welcome the Bill and hope that it will go some way towards solving some of the defects in the existing legal aid scheme.

11.47 a.m.

BARONESS ELLES

My Lords, it is with a strong feeling of inadequacy that I get up to speak for the first time in your Lordships' House, especially on a Bill which deals primarily with legal matters. I am in fact a member of the Bar, although a non-practising barrister, but it is not as a lawyer that I wish to make some comments on the Bill before your Lordships' House.

For many years I have had experience as a voluntary worker on what used to be called care committees, which are now part of the educational welfare service of the Inner London Education Authority. As a result of this experience I was asked, with other members of my Party, to give evidence to the Finer Committee on one-parent families. It was quite clear in our studies that there was need for legal advice, especially for certain types of matrimonial cases, and we wrote in our evidence of the need for every local authority throughout the country to set up legal centres to operate on one or two evenings a week, or at weekends, and to be well advertised locally. Barristers and solicitors should be asked to give some free time and to contribute to those services, and it was as a result of the publication of this evidence that we received a large number of letters from organisations, both consisting of and concerned with the situation of single parent families. It was quite clear from their evidence and also from individual letters, many of which were very moving, and all of which were extremely disturbing, that there was a great need for legal service and advice and assistance, both of which should be prompt, easily available, competent and also at a moderate price, if not necessarily free.

It is for these reasons that I so warmly support this Bill. If I have spoken somewhat too much about myself to begin with, which is a thing I dislike doing intensely, it is only because, being ultima inter pares, and very few of your Lordships knowing of me at all, I felt that I should at least state the experience that I have of this subject and the reason why I am addressing you so early since having had the honour and privilege of being made a Member of your Lordships' House.

From the evidence that we received there are various points that I should like to make. The first one is on the subject of delay. We were only too well aware of the intolerable situations created in families where there is delay in getting a legal remedy. There is only one thing worse than being poor for a week and that is being poor for two, three, or four weeks or not even seeing the end of the period at which some remedy might be achieved. We read in the Comment and Recommendations of the Lord Chancellor's Advisory Committee of delays up to, I think it is, three months between applying for a legal aid certificate and getting one—omitting all the intermediate steps of making up your mind, seeing a solicitor, getting a letter written to the Legal Aid Committee, and so on. There were delays of something like six months between when the situation arose and before anything could be done.

This must be seen in the context of the figures published quite recently on the marital situation in this country. We have all seen the results of the Divorce Reform Act 1969. In the last two years, over half a million people have been intimately involved in divorce situations. To give a breakdown of the figures, there were over 58,000 divorces in 1970 involving, therefore, if one multiplies by two—one does not have to be much of a mathematician to do that—116,000 individuals, plus a figure which is not very often quoted, of 93,000 children, making a total for 1970 of 210,320 individuals. In 1971, there were over 110,000 petitions which would make 220,000 grown-ups, and it would in fact be a very conservative estimate to imagine another 80,000 children. That makes half a million people who are involved in some kind of matrimonial disturbance.

The other point that was also very clear was that it is not, as people so often imagine, those who live on the real poverty line who suffer from a lack of legal aid. This category of people, however unfortunate and however much poverty they endure, are on long-term supplementary benefits and they get all the forces of the social services to support them and the welfare benefits available. It is the ostensibly better-off families, the ones we are so often told are typical of this country, where the husband works for a reasonable wage, the wife looks after the children at home, where the house is on a mortgage, the car is on hire purchase, as is the cooker and the refrigerator and there is the T.V. rental to pay, to say nothing of the more elementary needs like food and clothing.

It is in these situations that when the breadwinner deserts—and I do not necessarily want to make a point against the men, because on the figures women are just as bad and cannot claim to be any more virtuous—the wife, who in this very unpleasant modern jargon is called the "weaker economic unit", is left to cope with the family and the bills. The only thing that she knows is absolutely certain will happen every week is that she will get bills in and will not have the money with which to meet them.

Under this Bill there are two very real gaps that can be filled to assist in this kind of situation. The first one, which I would suggest and recommend to solicitors—because so often they seem to be unaware of this fact or unwilling to take the step—is that a spouse who is not the legal owner of a property should be advised to register the right to occupation of the matrimonial home under the Matrimonial Homes Act. With great respect and admiration for Lady Summerskill's excellent Act it did not provide any means of informing the non-legal owner of the right to register this right of occupation. This has been a lack and this will go on being a lack unless and until the law on matrimonial property is changed.

The next point I would urge to be done is that when the husband deserts and cannot be traced, the solicitor should take the first step of writing to the D.H.S.S. at Newcastle in order to trace his address. Under the circular issued in 1957 by the Home Office, both the courts and solicitors have the right to do this. Very few people take this step. I have had tragic cases of taking people to court when they have not had their maintenance paid and the courts have never suggested that they should take this step. People may go to the Salvation Army, right at the other end of London, perhaps wasting half a day's pay in bus fares, only to be told that they have to go back to the court before the Salvation Army can get on with their own magnificent work in tracing lost relatives. These are two ways in which I think help will come under the new provisions of this Bill.

I should like to say a few words about tribunals. The Child Poverty Action Group has written an excellent paper on the subject of this Bill and they have pointed out very clearly that the decisions of the tribunals do affect the financial interests of the lives of so many people. Therefore I welcome particularly in this Bill the possibility that people can at least get legal advice and written statements even if they cannot get legal representation at tribunals. I very much welcome this first step and it is a welcome which has an element of hope for the future. If the solicitor is paid £25 for preparing a statement, if he has a burning social conscience there is nothing to stop him appearing at a tribunal even if he does not get a fee.

Speaking of those who give advice, I think this is a slightly difficult point, because in another place there was mention of the idealistic young solicitor. It may be because I myself am getting older, but I find that idealism and youth are really no substitute for wisdom, experience and forensic skill. I would ask all members of both professions to cooperate in making this Bill really work. With the good will of all members of the legal profession this Bill, which on the face of it is a modest one, can contribute greatly to the welfare of people who are so much in need. I thank your Lordships for your patience and courtesy in allowing me to speak.

11.58 a.m.

LORD GARDINER

My Lords, it is my privilege to have the first opportunity of congratulating the noble Baroness, Lady Elles, on her speech. This field of our law is, I feel, one of which she has made a considerable study, and in particular in its effect upon the family. What she said about delay is of course very true; indeed, there was considerable substance, if I may say so, in everything she said. I hope very much that she will continue to give the House the benefit of her knowledge and advice on the remaining stages of the Bill, and we shall all very much look forward to that.

My Lords, like my noble friend Lord Milner of Leeds, I welcome this Bill. On May 15, 1970, I announced widespread reforms which the then Government were introducing, mainly by statutory instruments, in the whole field of legal aid. I accepted the £25 scheme but pointed out that that would require legislation, that it was clearly too late in that Session—and, indeed there was then foreknowledge of the General Election. But I said that if we were returned to power we would attend to it then. We understood why the noble and learned Lord the Lord Chancellor was not able to find time for it last Session, but we are delighted that this Bill is now before Parliament. I would not wish to say or do anything to hold up its swift passage into law. In the six days of Committee and two days on Report stage in the other place, many Amendments were tabled, some of which were accepted by the Government and others of which were not. It is not my own intention to revive any of those points on the Committee stage of this Bill, although, naturally, in saying that I speak only for myself. However, I should like now to raise four points.

Many hours were spent in the other place in discussing the whole question of legal aid before tribunals. There is at the outset a myth building up which I should like if I can to remove. This myth is that the Legal Aid Advisory Committee have decided that the only Tribunal before which there is to be legal aid is the Lands Tribunal. That is not at all the position. Of course, the whole of our legal aid system comes from the Report of the Rushcliffe Committee of 1945, and in paragraphs 169 and 170 of that Report they unanimously recommended that legal aid should be granted to persons within the scope of our recommendation when they are concerned in matters coming before coroners' courts and any tribunal where audience is normally granted to barristers and solicitors.

In November, 1948, the then Government published a White Paper and a draft Bill in this field under the heading Legal Aid and Advice Bill 1948: Summary of the Proposed New Service. While accepting the recommendations of the Rushcliffe Committee, in paragraph 10—I will not read it because it is rather long—the draft Bill would apply legal aid in the High Court, the county court, domestic proceedings in magistrates' courts, but only allow for it being applied to all tribunals before which there was a right of representation by Statutory Instrument. And the reason given was not that they doubted that the Rushcliffe Committee were right in saying that, of course, there ought to be legal aid before all tribunals where there was a right of representation; it was simply because they were apprehensive, they said, that the legal profession might be swamped it everything contained in the Rushcliffe Committee's Report was brought in at the start: they thought that for a start it should be applied in the High Court. county court, domestic proceedings before magistrates, and that they would leave it to a later date to apply it to tribunals by Statutory Instrument.

I remember that Sir Reginald Manningham-Buller (as he then was) who had been a member of the Rushcliffe Committee, protested and said: "Legal aid is just as essential before tribunals as before courts", but the Government, for the reason they had given in the White Paper, left it to be applied to tribunals by Statutory Instrument. When the Act was passed there it was: there was legal aid before the High Court, county court and before magistrates' courts dealing with domestic matters, and at every local legal aid centre there were to be salaried solicitors giving legal advice, for old age pensioners half-a-crown, and so forth.

That was in July, 1949, and then your Lordships remember came September, devaluation, and they said to Lord Chancellor Jowitt: "Of course, you cannot do any of that now". It was a year before he was able to bring it into force in the High Court. We then had to battle—I will not say "against", but there were Conservative Governments in power—for 10 years before legal aid was applied in the county court, another three years before it was applied in domestic proceedings in magistrates' courts, and the salaried solicitors in the legal aid centres never appeared at all.

It was in 1958, when we were in the process of recovering from the enormous balance of payments deficit which we inherited and on our way to turning that into the largest balance of payments surplus the country has ever known, that I said to the Advisory Committee: "I have not got any money at the moment, but I hope to have some before long. Will you consider the whole field of legal aid and advice, and tell me what you think needs doing most?" The basic income figures had not been uprated to allow for the fall in the value of money for six years. There were some forms of action which, I think by mistake, legal aid had never been applied to. There was the whole question of legal advice. There was the question of legal aid before tribunals. I said: "It is no good opening your mouths too wide. Try and tell me what you see as the order of priorities." Under the chairmanship of the noble Baroness, Lady Emmet of Amberley, they did that, and that led to what happened in 1970.

The myth is that they decided that the only tribunal which merited legal aid was the Lands Tribunal. There is no foundation for this at all; that is not at all what they said. As I said, I warned them not to open their mouths too wide. They said that they thought legal aid before the Lands Tribunal was an urgent priority, for the reasons which they then gave and as to the other tribunals they said in paragraph 18: We approached our task with some measure of caution. We hope that the Council on Tribunals, or perhaps a university, will initiate a research project to examine how far people appearing before tribunals are represented, and by whom, and the extent to which people would avail themselves of a service giving them assistance in presenting their cases. We could then re-examine our findings in the light of such a report. That was July, 1968. Four years have now gone by, and a good deal of research work has been done, by the Cobden Trust and others, in this field. It has, for example, been ascertained that a far higher proportion of those appearing before tribunals succeed if they are represented than if they are not.

Therefore, what I should like first to ask the noble and learned Lord the Lord Chancellor is, where do we go from here in relation to tribunals? I shall not be amazed if he says: "What I am going to do, in the light of research work which has now been done, is to ask the Legal Aid and Advisory Committee to consider again the whole question of legal aid before tribunals".

The second point which I want to raise is in relation to a particular tribunal namely, the mental health review tribunals. They are in rather a special position. A man or woman in a mental hospital is of the opinion that he or she has now recovered and ought to be permitted to regain liberty. They are in some difficulty, of course, in pressing that against the advice of a medical officer in the hospital, and the whole proceeding is, of course, strange to them. In 1968 I had an approach from the National Council for Civil Liberties and the National Association for Mental Health. They thought there was a great need for—I do not say representation, but for the assistance of some person to help the patient: not necessarily a lawyer, but someone to whom the patient would talk in confidence and who would go with the patient to the tribunal and, as it were, hold his hand. There was already considerable experience of this service, because in a then recent period the National Council for Civil Liberties had on 78 occasions found someone to act as the patient's friend; but the demand was greater than they could meet.

Accordingly both the National Council for Civil Liberties and the National Association for Mental Health came to me and said that what they wanted to do (and they thought they could find funds for it), was to establish a three-year pilot scheme, carried out in two of the hospital districts, for lay friends—someone, for example, like a former psychiatric social worker who had married and retired and who was prepared to give up time for that sort of work. We had a meeting, which the noble Baroness, Lady Burton of Coventry, will remember, in November, 1968. It seemed to be only right that the chairmen of these tribunals should be consulted to see whether they thought this was a good idea or not. I consulted all the chairmen of the mental health review tribunals, and they nearly all agreed that this would be a good idea. Then, of course, the Ministry of Health had to be consulted; and they also approved. Then, I remember, the Home Office butted in; I was not quite clear why, but as usual they butted in, and they had to agree. But by March, 1970, I was able to inform the two bodies that all relevant Government Departments agreed that this would be a good plan.

A steering committee was then appointed on which the Government Departments interested, arid the N.C.C.L., and the National Association for Mental Health, and the Council on Tribunals, I think, were represented, and they had their first meeting on March 25, 1970. I have been trying for some time to find out what has happened, and ultimately I put down a Question for Written Answer. I received the Answer yesterday, and it was that so far the matter has been held up because the bodies concerned have not been able to find the required finance and have asked for Government assistance. So I should now respectfully like to ask the noble and learned Lord the Lord Chancellor whether that is in fact the position, whether this pilot scheme could now go ahead if the finance were found, and whether the Government are—as I very much hope—prepared to assist.

The third point that I want to raise is on Part II. I do not want now to revive arguments put forward in the other place. I am glad that Part II is in the Bill, but very disappointed that the Government are saying that they do not intend to implement it until some date which I have not yet heard. I hope that the noble and learned Lord will deal with this point, because some of us will be concerned about whether or not Amendments should be put down at Committee stage. Everybody agrees that Part II is right; everybody agrees that what it would provide is badly and indeed urgently needed; and we should like a much clearer explanation than we have so far had about when the Government propose to implement Part II.

The last point want to raise is on the question of the time factor in legal aid. The present position is a rather unhappy one, though I do not really know the answer to it. I should be interested to know what the noble Baroness, Lady Emmet of Amberley, with all her experience, thinks. The Report of the Legal Aid Advisory Committee is a report on the Law Society's statistics for the year. The legal aid year ends on March 31. For some reason which I have never understood—because I know they have a computer—the Law Society take a long time to summarise the year's figures, and it is not until October that this Report usually comes out. Why it cannot come out in July I have never really followed, but that is the position; it nearly always comes out in October and they have got into that habit.

The result is that the Legal Aid Advisory Committee cannot start their work for the year until October and they usually take until the following April, by which time more than a year has elapsed since the year that they are discussing, and since the position which existed at that time. The Report of the Law Society was, as usual, in October of last year. The Report of the Legal Aid Advisory Committee is dated April. I think it is unfortunate that, during the long discussions which took place in the other place—six days in Committee and two days on Report and Third Reading—the Members of the other place did not have a copy of the Report, because it dealt with a number of the very Amendments which they were putting forward. They were told at one stage, for example, on an Amendment to increase the £125 capital disregard, that the Legal Aid Advisory Committee had recommended an increase to £325, but they did not know why, because they had not seen the documents. I cannot help feeling that that was unfortunate.

May I make it crystal clear that I am not suggesting for one moment that the Government were saying to themselves, "This Report gives a good deal of support to Opposition Amendments, so we had better keep it up our sleeve until the Bill is out of the Commons"? I know the noble and learned Lord the Lord Chancellor, and I am quite sure that he would not do that; nor would his officials. I imagine that what really happened was simply that they followed precedent. On the day the Report arrives in the Lord Chancellor's Office, the official who deals with legal aid has of course to prepare a memorandum and to ask the Lord Chancellor for his instructions, the first question being, "Is it to be published?"—and of course it usually is. Then the Lord Chancellor has to find time to consider it and to decide Government policy on the recommendations contained in the Report. Then, if it is to be published, it joins a printing queue, with other printed matter which Ministers want printed. But it is unfortunate in the circumstances that, although the Report is dated April and it is vitally relevant to this Bill, it was not published until Wednesday of last week.

When I speak of the day on which the Report arrives in the Lord Chancellor's Office, I should point out that that is itself a little mystical, because the very experienced official dealing with legal aid—who probably knows more about legal aid than anybody else in the country—is himself the Secretary of the Advisory Committee. What in fact happens is that on some date or other he says, "I, as Secretary of the Advisory Committee, now present to myself this Legal Aid Advisory Committee Report which, as a matter of fact, I have written myself." Apparently, according to the date on it, it has been in the Lord Chancellor's office since April. There are photocopying machines—even the Lord Chancellor's Office has a photocopying machine. Only about a dozen people were really dealing with the matter on both sides in the other place, and I should have thought they could easily have been given photostat copies of the Report. I know that it has to be laid before Parliament, but I know of nothing to prevent something which has to be laid before Parliament from being laid in typescript, or to prevent copies of it from being given to certain people first. If that situation again arises I hope that that course may be taken.

Lastly, my Lords, I should like to know what are the Government's intentions on this Report, which they have now had since April. In particular, I should like to know their intentions on the important recommendations on the assessment of resources in paragraph 10; on those on income in paragraphs 15, 16 and 17; on capital in paragraphs 23 to 26, and on the Citizens' Advice Bureaux and advice centres. I should particularly like to know—and it is very important that we should know this to-day, in order to decide what Amendments, if any, to put down on the Committee stage of the Bill —whether I am right in thinking that all the recommendations contained in this Report could be implemented by Statutory Instrument. If I am wrong and some of them would require legislation, the Committee stage of the Bill is the obvious place in which to deal with them.

THE LORD CHANCELLOR

My Lords, will the noble and learned Lord allow me to interrupt? As at present advised, I think the answer to this question is, Yes. If I am proved to be wrong in that, I will let him know.

LORD GARDINER

My Lords, I am very much obliged to the noble and learned Lord. I hope very much that when he comes to reply he will be able to tell us which of these recommendations the Government are accepting.

12.19 p.m.

LORD HOY

My Lords, may I preface my remarks by extending to the noble Baroness, Lady Elles, our warmest congratulations on her maiden speech? It is always difficult to deliver a maiden speech either in your Lordships' House or in another place, and to have done so so competently must give the noble Baroness considerable satisfaction. Certainly her speech gave those of your Lordships who had the privilege of listening to it a great deal of satisfaction, and we look forward to hearing the noble Baroness on other occasions.

The point that I wish to raise in connection with this scheme is a purely Scottish one, and I do so on behalf of the Law Society of Scotland. At the present time, legal aid schemes are embodied in separate Statutes, one series for England and Wales and the other for Scotland. The development of legal aid outwith legislation or in pre-litigation situations has varied quite materially as between England and Scotland. In Scotland, such work is covered by Section 5 of the principal Act, under a scheme which came into force in 1960 and which is extensively used to deal with matters that, if not settled, could be the subject of a Section 1 certificate; that is to say, a court proceedings certificate. In Scotland, almost the same number of Section 5 certificates are issued as of Section 1 certificates. In England, however, very little use has been made of the Section 5 scheme. In England, the ratio of Section 5 certificates to Section 1 certificates is of the order of 1 to 155. In actual number, for the most recent full year England issued only 924 Section 5 certificates and 143,582 Section 1 certificates. In the same year, Scotland issued 7,850 Section 5 certificates and 7,989 Section 1 certificates—a ratio, as your Lordships will see, of practically 1 to 1.

The Bill therefore was designed to give better and fuller legal aid in England short of litigation; and in the English context, of course, this could best be done by repealing Section 5 and bringing in the £25 scheme, which is of wider scope than Section 5. This will cause little change in England so far as Section 5 administration is concerned; but in Scotland, the obvious way to improve the service, in view of the universal use of Section 5 facilities, is to leave the Section 5 provisions but to expand the scope to the extent of the matters now mentioned in Clause 2 of this Bill, and not to abolish Section 5, as the Bill seeks to do. To abolish the Section 5 scheme in Scotland will, it is feared, lead to considerable administrative problems, and is likely adversely to affect the legal aid services in connection with the advice and assistance given in pre-litigation matters.

If the Section 5 scheme had been as little used in Scotland as it was in England, then the substitution of the proposed £25 scheme would have made a workable method of bringing in a system for supplying legal aid in pre-litigation matters on the wider basis envisaged in Clause 2 of this Bill. But in the Scottish context this can be done far more easily and satisfactorily by retaining Section 5 but widening its scope to embrace all the matters included in Clause 2; namely, oral or written advice on the application of Scots law to the particular circumstances of the person seeking advice, and as to any steps that the person might take by way of settling a claim, bringing or defending proceedings and obtaining further legal or other advice or assistance having regard to the application of Scots law to those circumstances.

My Lords, there is another feature of the Bill which, quite frankly, I did not intend to raise but which has been raised by the Law Society; and therefore, on reflection, I thought I ought to put it before your Lordships' House. One feature of the proposals in the Bill that would be likely to introduce a new factor, should it be applied to Scotland, is the requirement that solicitors should collect contributions from assisted persons. This is likely to cause dissatisfaction, I am told, among legal aid solicitors, who have hitherto had nothing to do with the collection of assisted persons' contributions. At present, the Legal Aid Central Committee have an organisation which collects all contributions in Scotland, whether in respect of Section 1 or Section 5 certificates. This organisation is specially geared for the purpose, and would require to continue to collect Section 1 contributions even if Section 5 legal aid were discontinued. As this organisation must remain in being, contributions under any new legal aid provisions could also be collected by the existing organisation rather than by solicitors. It is in the interests of the client that he does not become involved with the solicitor in questions of payment or non-payment of contributions. Any extra expense of collection by the existing organisations will not be significant, and would be far outweighed by the advantages to the person receiving assistance.

My Lords, the Council of the Law Society of Scotland feel very strongly that Scotland should in fact be included in the Bill; but if Scotland is to remain in the Bill, then the Society would wish that, so far as Scotland is concerned, all that should be done in the Bill is to extend the present scope of Section 5 so as to include therein all matters in respect of which advice and assistance may be given as mentioned in Clause 2 of the Bill. I would conclude by asking the noble and learned Lord the Lord Chancellor to give his mind to this matter, because it is causing concern in Scotland at the present time. We shall be grateful for his opinion on it, and I can assure him that whatever is said in reply will have the consideration of the Law Society of Scotland. Future action will of course depend on the reply that we receive.

12.27 p.m.

BARONESS EMMET OF AMBERLEY

My Lords, I must crave your Lordships' indulgence for not having my name down on the printed list. I put it down this morning after the list had been typewritten. I must ask your Lordships therefore to excuse its absence from the list. I felt I should like to say a very few words to welcome this Bill because it is the result of the work of the Committee over which I have had the honour to preside for the last six years. I am quite certain it will fill a very necessary vacuum in the present arrangements. But may I draw your Lordships' attention to our Report of this year, which has just been published. With reference to what the noble and learned Lord, Lord Gardiner, said about the delay, all I can say is that there has been less delay this year than last year or the year before; I think much of the delay is due to the Printing Office and is not anybody else's fault. It seems unfortunate, in a way—or perhaps fortunate—that this Report should have come out just at the moment when when this Bill is going through the House, but there are two or three points to which I should especially like to draw attention.

Our costs are naturally going up very fast. The majority of our expense so far as the civil side is concerned goes in divorce—85 per cent.—and there is an avalanche, as the noble Baroness, Lady Elles, so properly said, of new petitions for divorce coming up this year, which will very greatly increase our expenses. The inflationary side of our present situation will also give our Committee a great deal of trouble. The limits which were set quite recently are now already out of date. There is the question of the capital value of a house, for instance, which has to be allowed for, or the nest egg which is to be left as capital—all that will have to be looked at again, I am afraid, with a view to raising the limits.

One thing which has worried me with regard to legal aid in the future is the question of legal aid centres. There are a great many experiments going on which are very useful, but I think we have still to "hold our horses" there and to learn from experience the best way to set about providing legal aid in what we call the desert areas. Personally, I favour very much the C.A.B. set-up, for the simple reason that so many of the problems that people bring there are not necessarily legal at all but social. The C.A.B. can separate one from the other and not waste the time of the legal profession on matters which are not legal. I hope very much that within the new local government boundaries, when they are set up, and within the new authorities, when they too are set up, it will be decided very soon where the C.A.B. is going—whether under the top authority or under the lower authority—and that wherever it goes, as much support and strength as possible should be given to that organisation to spread it wider over the country. I am certain that it is the best sort of device that we have for the citizen in difficulties. I think that we have also to anticipate—in view of the avalanche of legislation we have had from both the last Government and this one; and also because I am afraid that those people who draw up our Bills and laws do not make them as necessarily simple to read and to understand for the ordinary citizen as they might be—extra legal costs because the ordinary man and woman in the street does not understand what is going on or how to (shall I say?) "get round the law". In any event, there will be, I think, an increased necessity for legal aid.

My Lords, in conclusion I should like to thank my Committee for the tremendous work that they have done—and my honorary secretary is included in those thanks. I hope that the work which has been done in the past years will bear further fruit in the future. I am not going to touch on the matter of tribunals; it is a very complicated subject and one on which I might keep your Lordships a very long time. But I would say this. To my mind, representation before tribunals need not necessarily be legal; it may be expert, but of quite a different kind. You may need, say, the assistance of a surveyor or medical help. I think that the whole question of tribunals wants very careful consideration and that we should not jump to the conclusion that legal aid is the only way out.

12.33 p.m.

LORD DAVIES OF LEEK

My Lords, it was rather remiss of me not to put my name down to speak. I shall take only one minute in view of the fact that, most constructively and cogently, the noble and learned Lord, Lord Gardiner, dealt with the case in a way that I could not deal with it and because my noble friend Lord Milner of Leeds from the Front Bench mentioned the relationship of this Bill to tribunals. I consider it my first duty to apologise to the noble Baroness for rising before she made her charming, concise and congently constructive speech; it was a delight to listen to. From my experience over many years I want to reiterate the point of the need for some help to be given to those people who have to appear before tribunals in connection with industrial injuries cases. I could tell the House, from over 30 or 40 years' experience, many stories illustrating the layman's difficulties in understanding the law, if it ever made constructive sense, relating to tribunals. Although it may not be the appropriate time now to raise this matter, I hope that the Government, whom I wish to thank for the Bill will bear this in mind, in view of what has been said and in view of the speech of the noble and learned Lord. I very much hope a method will be found to implement aid to those who suffer industrial injuries and who have to appear before tribunals.

12.34 p.m.

THE LORD CHANCELLOR

My Lords, I think I should thank the House as a whole for the friendly reception which this Bill has received, and particularly I would thank those noble Lords and Baronesses who have taken part in the debate. Before I proceed down the list of speakers, I should like to thank the two noble Baronesses. First, because one was a Parliamentary maiden and her speech was a treat to listen to. I hardly thought, when a realised that it was going to be my task on a Friday morning to put what is necessarily a somewhat technical matter, that I should have had the pleasant surprise of welcoming my noble friend, Lady Elles, to her Parliamentary début; and I am delighted to have done so.

Secondly, I am also enabled to say, "Thank you" (and I am not sure whether I have done so before) to my noble friend Lady Emmet of Amberley for the immense work she has done on the Advisory Committee which, under her, has really been the mainstay of progress under this Scheme, under successive Lord Chancellors. I must say that I was sorry to part with her personally, and I hope that she will from time to time give us the benefit of her ripe experience and advice.

To go back to the beginning, the Bill was welcomed from the Front Bench of the Opposition by the noble Lord, Lord Milner of Leeds. He raised two points with which I should deal at some stage in my reply; one about tribunals, which was reiterated by several noble Lords and one about Part II of the Bill which was certainly echoed by the noble and learned Lord, Lord Gardiner. Tribunals, strictly speaking, have nothing to do with this particular Bill. Legal representation before a tribunal was always, as the noble and learned Lord reminded us, within the prospect of the first Bill, the main legislation, of 1949; and I could, with an Affirmative Resolution, apply that Act by regulation so as to give representation before tribunals now. It is within my power to do so if Government policy backed it. It would not be appropriate to have anything about it in this Bill, because this is not a legal aid Bill—if we use "aid", as we do, in the jargon sense of representation; it is a Bill about assistance and advice, which is not the same thing. Therefore I do not want to say a great deal about tribunals, partly because I have not entirely made up my mind about them. I am not as keen a supporter of purely legal advice as is the noble and learned Lord or as was my predecessor, Sir Reginald Manningham-Buller, as he then was.

Since 1949, tribunals have sprouted in almost every direction and performed almost every function. A common factor in many of them—not all, but many—has been that the Minister who brings in the new tribunal says, "We are not going to have any beastly lawyers about here if we can help it. We cannot keep them out entirely, for there are limited companies and disembodied entities who have to be represented; but we are going to have a nice, friendly informal atmosphere, with no legal technicalities of any kind." This is usually applauded loudly in both Houses when it is said; and all the lawyers look doleful. But the next thing is that somebody with a research grant from a university establishes that before these tribunals even "the wicked lawyer" sometimes wins his case when a man without a lawyer does not. Then there comes in the lobby which says that everyone must be represented before these tribunals by lawyers in order to enable him to win his case—forgetting that every case has two sides and that only one side can win. The next thing is that the lawyers are brought in, and the expense goes up dramatically. There has to be a lawyer on each side, and you get all the complexities which you originally set out to avoid. Then at the end of the day, as my noble friend Lady Emmet reminded us, you find that what was originally wanted all along was, say, a surveyor and not a lawyer.

So, my Lords, I am not as wholly "sold" on this policy as some of my predecessors have been. I do not say that I have made up my mind against it; but it is not in the top rank of priorities. I would say basically that it is not really a question of legal aid, of simply providing the money for lawyers to represent their clients before the tribunals; it is a question of social policy, of what tribunals ought to do or to be. Should it be a place where lawyers have a paradise, which is what noble Lords are always complaining about when legislation is introduced in other contexts, or a place where lawyers are discouraged rather than encouraged? If the former, then no doubt there is a strong case for legal aid. If the latter, then I should have thought that there was a poor case for legal aid, and at the end of the day one may find oneself saying one thing about one type of tribunal and something else about another. It was clear, whatever the mythological character of the advice which the noble Lord received, that the Advisory Committee of the day were keener on the Lands Tribunal than on any other, I think rightly. I cannot give a definite answer to-day about that, but I hope that I have opened up the subject. It is certainly not appropriate to this particular Bill.

The noble and learned Lord, Lord Gardiner, then raised a slightly cognate point about his scheme, on which I know he was keen when he was Lord Chancellor, about lay assistance—not legal representation—before mental health tribunals. This has gone on rather on the lines the noble and learned Lord described and is at the moment before my right honourable friend the Secretary of State. It has ceased to be a Lord Chancellor responsibility and the Secretary of State has not reached a final decision on the matter. Therefore I am not in a position to answer the noble and learned Lord's query to-day, but I undertake to draw the attention of my right honourable friend to what the noble and learned Lord said, and I will seek to give him an answer as soon as one is available. As I say, it is not now my responsibility as a Departmental Minister; but, speaking for the Government, I can give that undertaking.

Then there is the question of the activation of Part II. The noble and learned Lord, Lord Gardiner, perhaps took too gloomy a view about the prospects of activating that Part. The idea has got about that it will be three years or so before Part II is introduced. Personally, I hope that that will not be the case. We want to see how Part I operates in order to know where Part II can be most useful and exactly what form it should take. The Advisory Committee will be considering this matter in the very near future, and I hope that Part II will be in operation much earlier than has been suggested. I of course am primarily responsible for the legal assistance and legal aid side of the Bill, but I have more than a sneaking sympathy with what the noble Baroness, Lady Emmet of Amberley, said about the Citizens Advice Bureaux chain being essential to any service of this kind. Curiously enough, the lawyer, barrister or solicitor—I have immense respect for both professions, having served in one for 40 years—tends to be a specialist in some ways. One often finds that the real first need of the bewildered individual when he finds himself caught in the network of our immensely complex society, is a sort of legal first aid. This can be provided by the Citizens Advice Bureaux extremely well, whereas if the same person stopped the Lord Chancellor in the street and said, "I have been charged with an offence under the regulations applying to the parking of cars; what should I do?". Or, "I want to do something with the local authority; can you advise me?", the Lord Chancellor would probably scratch his head and reply, "Write to me about it", and then find out. The Lord Chancellor may have a knowledge of the law—indeed, he is supposed to have such a knowledge—but the law is much more complex than the expert and rather specialist lawyers, barristers and solicitors in the profession always know about.

Therefore, the form which these Part II centres and the relationship which they bear to the Citizens Advice Bureaux will have to be gone into most carefully. There are a number of experimental centres, to which the noble Baroness referred, and they are proving valuable as experiments. They cannot be married directly into the scheme because some of them have no means test or contribution, whereas the scheme essentially does have those things. But they will gain considerably from the scheme, both before and after Part II is introduced, because just as now the lawyers in these centres can act under the legal aid scheme as it exists, so they will be able to act under the legal advice scheme as it will be under Part I. In other words, they will stand to gain automatically from the additional facilities which the Bill will provide.

The noble and learned Lord, Lord Gardiner, then referred to the Report of the Advisory Committee. I am informed that it was submitted on May 1 and published on June 14. It certainly did recommend alterations in both the capital and income Regulations which, of course, are in my power to amend. A Government decision has not yet been arrived at, but I promise the noble and learned Lord that I will try to get on with it as quickly as possible. When the principal Scheme is amended the limits under this scheme, when it is law, will follow suit because we are keeping them in balance with one another.

The noble Lord, Lord Hoy, raised some points on behalf of the Scottish Law Society. I am very fond of this Society, which entertained me right royally at Aviemore last year and even gave me a wonderful crummock as a momento of my stay and my trip through the Lairig Ghru. What will comfort them most—this is why the points made by the noble Lord, Lord Hoy, were, with respect, not particularly good—and what I hope will be conveyed to the Scottish Law Society, is the fact that there is plenty of time for them, and plenty of scope within the measure, even unamen- ded, for them to have conversations with the Lord Advocate which will satisfy them—and preferably with the Lord Advocate rather than with me, because the Lord Advocate is the appropriate Minister.

The commencement date is within the power of the Government under the Bill as it stands. The Secretary of State for Scotland can bring in separate commencement dates for Scotland and can postpone the commencement date for Section 5 if he so wishes. There is, therefore, plenty of scope for discussion, even if I am wrong in what I am about to say. I hope that this will be an undertaking which will give the maximum comfort to the Scottish Law Society.

The answer to the point raised by the noble Lord, Lord Hoy, is, broadly speaking, that it is true that for some reason which I do not wholly understand, Section 5 has been used a great deal more in Scotland than in England. But the fact remains that the Bill as drafted, both for Scotland and England, will do better than Section 5; it will not take away anything which Section 5 gives but will simply give a service which will be more comprehensive than Section 5. In other words, it will add to Section 5, so that that section will be, both in Scotland and in England, a fifth wheel to the coach—it will not actually do any work and it is therefore being repealed under the Bill. The only difference, so far as I know, that the Scots solicitor will notice under Section 5 is that he will find that he must recover contributions from his client instead of from the Law Society recovering them on his behalf.

I do not think that there is any particular reason to differentiate between England and Scotland in that rather esoteric respect. The policy of the Government is that the solicitor should recover the contribution himself and so save about £40,000 a year. Of course he runs some risk of bad debts which, with the "cautious Scot", is probably underlying what they talk about as "administrative problems". I think that is probably what they really mean. At any rate, under the Bill they will get a collective income of between £1½ million and £2½ million a year more as a result of the legal work that they will be able to do. Therefore I hope that, on balance, the "swings" will more than compensate them for the "roundabouts". At all events, if I have not dealt with the subject fully or fairly, as I say, there will be plenty of time for them to discuss it; the commencement date ought to be able to take care of that.

The noble Lord, Lord Davies of Leek, raised, with others, the problem of tribunals, and I hope that he feels that I have dealt with that aspect in my speech. I am grateful for what he said. I thank again the noble Baroness, Lady Emmet of Amberley, for the various points which she raised and which I have tried to take up in the course of what I have been saying. I thank the House very much and hope that we may now proceed to give the Bill a Second Reading.

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