§ 4.41 p.m.
§ LORD GIFFORD rose to call attention to the 23rd Report of the Lord Chancellor's Advisory Committee on Legal Aid and Advice, and to work being done by neighbourhood law centres in providing legal services in deprived urban communities; and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion which stands in my name on the Order Paper. In doing so, may I declare an interest. I am a barrister and receive briefs from the neighbourhood law centres, the subject of this debate, and also have an interest—although it is not a financial one—as honorary secretary of the North Kensington Neighbourhood Law Centre, which pioneered the new movement to which this Motion refers.
§ In debates about the legal aid scheme and the legal profession, it is customary, especially for lawyers, to sing the praises of the legal aid scheme which was inaugurated by the Legal Aid and Advice Act 1949. I will follow that custom only to this extent—that judged against the ultra-conservative traditions of the legal profession, both in this country and abroad, the 1949 Act was a bold and radical measure. But judged against human needs, particularly of working class people who are more vulnerable to injustice and who need help and guidance through the labyrinth of law and legal procedure, the present provision of legal services is grossly inadequate and in need 1048 of a full reappraisal. The process of reappraisal is already under way, and it is my hope that this debate can be a further contribution to it.
§ My Lords, if my tribute to the existing state of legal services is somewhat barbed, my tribute to the Lord Chancellor's Legal Aid Advisory Committee is quite unqualified. Under the chairmanship of the noble Lord, Lord Hamilton of Dalzell, and through the voluntary efforts of its members and the devoted works of its tiny staff, that Committee has done a job which in other fields would require a very sizeable bureaucracy. They have not only been the scrutineers of the legal aid scheme but have identified with increasing force and clarity the areas where that scheme falls down.
What does the Advisory Committee now tell us of their view of the present state of affairs? I wish to refer to Part III of their latest report. Having reviewed the operation of the legal aid scheme and made some fairly sharp comments about the financial limitation and about the lack of legal aid for tribunals—in short, they have looked at the overall picture—their conclusion in paragraph 22 says:
We are continuing to gather evidence on the subject from a variety of sources, but while it is unsafe to generalise, and the position varies a great deal in different parts of the country, we have little doubt that:
This is a devastating summary of a very unhappy state of affairs. The remarks come as no surprise to any social worker or community organisation, or anyone who knows the field. But these remarks should shake the complacent belief of many lawyers in the basic adequacy of the existing legal aid scheme.
§ My Lords, the reasons for this state of affairs having not so much grown up but come to light, are not difficult to find. Legal aid work, particularly in the civil field, is much less profitable to solicitors than, for instance, the conveyancing of valuable property, or acting for commercial firms or for the well-to-do. By and large, solicitors are not geared to the problems of the poor. Their offices are situated in the wrong places, they are open at the wrong time, and their practitioners are expert in the wrong areas of law. If a tenant or a claimant on social security finds his way to one of their offices, he will be lucky to get the first-class service he should—lucky, indeed, to get a service at all. If his problem lies in a tribunal rather than a court—and to him there will be little difference—he will learn that he either has to pay or go without any representation at all. And although very many solicitors try hard to cope with the problems of giving a service in poorer areas while at the same time making a profit, the picture overall is closer to that deplorable case pictured in a recent television programme where a social worker rang nine solicitors without success in an attempt to get action taken on behalf of an old lady who had been illegally evicted.
§ My Lords, it is in direct response to this depressing situation that neighbourhood law centres have come into being. They have been funded by grants from charities, by local authorities, and in one or two cases by the urban programme. They are a kind of legal clinic, staffed by salaried solicitors committed to meeting the needs of the working-class community. They are open in the evenings and at weekends; most have a 24-hour service for emergencies. Their function goes beyond merely the fighting of individual cases and rescuing individuals who have been aggrieved. The centres can use their resources to do badly needed preventive work; educating the community through pamphlets and meetings, by people going to classes and advice given to groups of people, tenants' associations, and so on, so that they in turn can advise their members. This type of activity prevents people, through ignorance, being faced with situations where they do not know their rights and cannot fight for them.
§ My Lords, there are now 10 centres operating in London. There is a centre 1050 in Cardiff, and in other cities plans are being made for further centres to open. In particular, I should like to mention Belfast, where an admirable non-sectarian project is, unhappily, being threatened with inability to start through what seems to be the depressingly unco-operative attitude on the part of the Northern Ireland Law Society. The verdict on law centres comes from many sources. First and foremost it comes from local people in the areas concerned who not only have been flocking to the doors for advice, but, as was shown by a survey carried out by the Nuffield Foundation in North Kensington, these neighbourhood law centres are trusted. People trust the law centres, and according to this survey the centres have been obviously successful in lifting the burden of worry from people who otherwise would never have ventured to consult their solicitor.
The verdict has also been given by the Advisory Committee. They say in paragraph 25:
We regard law and advice centres as much to be welcomed; the urgent need for them in many parts of the country is in our view, beyond argument.
This verdict was of course also given by my noble and learned friend the Lord Chancellor on March 21 when he spoke in terms which I wholly endorse, and concluded:
I for my part intend to do all I can to see that funds are available for such centres."—[OFFICIAL REPORT, 21/3/74, col. 382.]
I can assure my noble and learned friend that the purpose of the debate is merely to help to push him in a direction in which I know he wants to go.
§ It is important to say that these law centres have grown up with the approval, and often with the enthusiastic encouragement, of the legal profession as a whole. More recently there have been some signs of conflict from elements of the legal profession, conflict which I regard as regrettable and wholly unnecessary. Last week the Chairman of the British Legal Association, Mr. Jeffrey Gordon, described law centres as the "enemies of the profession". They are not. That is unconstructive talk and it is not, I venture to point out, the attitude which I and those working in law centres have found from the Law Society itself. The Law Society has, by and large, been helpful in granting the waivers which are needed under the Solicitors Practice Rules to 1051 enable law centres to operate without charge and to advertise their presence to the community.
§ But the Law Society is getting into a somewhat invidious position. On the one hand, it is the trade union of the solicitors' profession and must reflect the views of its members. On the other hand, it has a public duty to determine, by the grant of waivers, the terms upon which law centres and other such agencies may operate. If Part II of the Legal Advice and Assistance Act 1972 were implemented, which gives the Law Society itself the power to run law centres, their position would, I believe, be even more difficult. I believe most strongly that the right way forward is not through Part II of the 1972 Act, which represented an adventurous step forward when it was passed, but was really behind the times; the thinking of many involved in the field of legal services has progressed far beyond the limited provisions which it enacted. I believe that the way forward is now through a Central Government agency, taking over the overall duty and responsibility of ensuring that legal services, of the most effective kind from the public's point of view, are available throughout the country. Such an agency would need to be an independent Commission, I think, rather than a Government Department. There would perhaps be legitimate anxiety if the Government were to be thought to have too direct a control over the practice of lawyers.
§ The Commission, answerable through the Lord Chancellor's Department, would have several responsibilities. It would channel funds to law centres and determine where new centres were needed. It would supervise their operation, while at the same time allowing a very high degree of local management and control. It would pull together the many other ideas and schemes which are now coming forward, because it is not only law centres which are new developments in the field of the provision of legal services. In some areas duty solicitor schemes would well serve the interests of the local people. In other areas solicitors could be attached to Citizens Advice Bureaux. In other areas law centres are obviously required. In other areas a better co-ordination of local solicitors would suffice. The Commission could determine priorities, assuming an 1052 overall duty to act in the public interest. It could resolve, for instance, the difficult question of representation in tribunals.
§ This is a matter which is being investigated by the Advisory Committee at present. But there is obviously a strong case for responsible, unqualified people, and organisations, to take part in representation, and a Commission of this kind could supervise and could approve organisations which ought to receive public funds for that purpose. The body could also, and would have to also, have a responsibility for the overall administration of legal aid, both civil and criminal; but in doing so, of course, it would utilise to the full the expertise and the public spirit of Law Society staff members who have operated the civil scheme excellently until now. I believe that the public would respond to such an initiative. The need for it is becoming urgent, with some law centres running out of funds, others refused funds for political reasons by their local authorities—and local authorities clearly are not the best organisations to hold the purse strings of law centres, which are inevitably going to be reminding them of, and no doubt challenging them about, their responsibilities for housing and other matters. Other law centres are unable to raise the money to get going.
§ Talking of money brings me to my final plea, because if the problem has been identified, which I think it has, if the will to solve it is there, and certainly under this Government I believe it is, if the means of solving it are becoming more and more agreed, as I believe they are, there remains only the provision of the necessary funds. Although civil legal aid costs less than £14 million, it has been constantly starved of funds. Successive Lord Chancellors—and I shall be very interested to hear what my noble and learned friend Lord Gardiner says on this—have had to admit failure in getting more than a modicum of extra funds from the Treasury. I ask my noble and learned friend to press his case with his colleagues, not only with a new determination but with new arguments; because I would suggest that the Treasury's unwillingness to provide very much money for legal aid may well have reflected, and may understandably have reflected, the reluctance in the public to see too much money going into the 1053 pockets of lawyers. There is now a new mood. The public has seen that lawyers are beginning to work in different ways, in ways which correspond far more closely to their ideas of justice; the public will not only welcome but will increasingly demand that money should be provided to consolidate and to expand the new movement in legal services which I have tried to describe. I beg to move for Papers.
§ 4.59 p.m.
§ LORD GARDINER
My Lords, I have been concerned with legal aid and advice more or less all my life, and I am afraid that even at my now advanced age I find it very difficult to keep out of any discussion of the subject. I am, therefore, grateful to my noble friend Lord Gifford for having introduced this Motion this afternoon. In the Motion, he referred to one Report, but there are really two Reports. There is the Annual Report of the Law Society in this field, and then there is the commentary on that Report made by the Lord Chancellor's Advisory Committee. So far as the Law Society's Report is concerned, they say in paragraph 7:Without question the major defect is the inability to provide legal aid to the poor and not-so-poor in tribunal cases. This is particularly so in areas where stress is related to housing problems. Though Part I of the 1972 Act represents a helpful advance in relation to that field, its value is grievously hampered by the fact that these matters are dealt with predominantly in administrative tribunals where representation is not available under legal aid.Then they say:The second major defect is one to which attention has been drawn by The Law Society over a number of years. Though the original financial limits were evidently intended to ensure that there should be universal access to the protection of the courts and tribunals and to the necessary services of lawyers, irrespective of financial resources, this was never in fact the case and the number of persons denied what is no less than their civil right has manifestly increased.In a sense this is the heart of the matter. Those of us who are concerned about this problem have always had a very simple case, which is that it is absolutely useless to go on and on passing Acts of Parliament giving poor people legal rights, if they cannot afford to enforce or defend their rights; because if they cannot afford to enforce or defend them they may just as well throw their 1054 legal rights into the wastepaper basket. Secondly, if I may be forgiven for another generalisation, subject to some of the observations which my noble friend made, with which I agree, what in the main those concerned with this subject are fighting for is simply that the decision which Parliament made 24 years ago should now be implemented.
Up to the last war, our system of legal aid was simply that if you had an income of not more than £2 a week or, in exceptional cases, £4 a week, and if your assets (which included your furniture) were not worth more than £50 or, in exceptional cases £100, then you had the action done for nothing. This was done entirely at the lawyer's expense. Although all young lawyers were anxious to play their part in this field it meant for them, when they might not themselves actually be earning a living wage, that if they had a week's case at Derby they would have to pay their own train fares and hotel hills. Of course all this broke down when the war broke out and the lawyers went away.
I do not know why I did it, because I was only a junior barrister, but I called a conference of all the Poor Man's Lawyers Associations in London to consider the breakdown of the system. I remember that when I left Chambers to go off myself, I reached the door and then went back and sat down and wrote a long letter to the then Lord Chancellor, Lord Simon, begging him to do something about legal aid. While I was away he appointed the Rushcliffe Committee. Some of these Royal Commissions and Committees are very good, some very bad, and some indifferent. The Rushcliffe Committee was an absolutely first-class Committee, and when the postwar Government tinder Mr. Attlee passed the Legal Aid and Advice Act 1949, it simply implemented the recommendations of the Rushcliffe Committee.
These were that the old system was to be swept away, everybody would have to pay what they could afford, and the State would make up the difference. This was to apply in the High Court, the county court, in domestic proceedings before the magistrates, and in every tribunal before which there was a right to legal representation. At all the local legal aid centres all over the country, there were to be salaried solicitors giving legal 1055 advice for what people could afford to pay; half-a-crown for old age pensioners, and so on. When that Act was passed, most of the poor man's lawyers closed down, and even the Bentham Society, the co-ordinating body, wondered whether there could be anything further for them to do. Within a few months came devaluation, and they said to Lord Jowitt, "You cannot do this just for the moment". The Act had been passed and it needed only a series of Orders to bring it into effect. He brought it into effect in the High Court. Then there was a General Election, and we had to fight for years to get it introduced in the county court, more years for domestic proceedings before the magistrates' court, and even to-day it has largely not been introduced before tribunals, with exceptions.
At paragraph 8 of their Report, the Law Society go on:… there should no longer be any specific exclusions of types of case (e.g. defamation)… Again, the power to extend legal aid to the Privy Council or the Coroner's Court has not been exercised. Though the cases in which legal aid would be appropriate in the Privy Council are relatively few, many of these affect life and liberty and it has become increasingly difficult for the Council to arrange for those whose cases come to the Privy Council to obtain the necessary legal assistance.Then they point out that the Report of the Committee on Death Certification and Coroners—now nearly three years old—"supports the view that legal aid should be available." Then, on financial limits, they say in paragraph 9:considerable damage has been done to the Scheme during the past twenty-three years by inflation recurrently producing an unacceptable stringency which has only tardily been mitigated.The Lord Chancellor's Advisory Committee—and I should like to join in the tribute that my noble friend Lord Gifford paid to them, because over the years they have been an admirable body—in commenting on the Report of the Law Society said in paragraph 6 that although legal aid has been extended to the National Industrial Relations Court and the Commons Commissioners and Restrictive Practices Court, it has not been extended to the Privy Council, the Coroners' Courts, or the Court of Protection, and that they would like to see it extended to certain civil proceedings 1056 in the magistrates' courts, and no longer exclude defamation as one of the legal proceedings.
Then on the financial limits, in agreement with the Law Society, they say in paragraph 7:…the whole basis of the financial limits for legal aid and for legal advice and assistance needs to be examined afresh. In particular, we see advantage in the possibility that the present limits on income and capital should be abolished…Then they say in paragraph 11:We must emphasise, however, that in our view the limits are still much too low. The increases which took effect on 1st January amounted to only 75 per cent. of those which we recommended in our Interim Report to your Lordship which we made as long ago as 15th January 1973…Then coming on to Parts I, II and III of the new Act they say in paragraph 17:Although we are, in general, satisfied with the way in which the new scheme is working we must emphasise that its full potential cannot be realised until it can be used in conjunction with the law centres and liaison officers to be appointed under Part II of the Legal Advice and Assistance Act 1972. Only then can it operate in all its aspects as an integrated whole.Finally they turn to Part II of the 1972 Act. As they say this, which…empowers The Law Society to set up law centres and to appoint liaison officers, has still not been brought into force. We deplore this and regard the continued failure to implement this part of the Act as both serious and short-sighted. … Part II centres, set up by The Law Society, would perform two valuable roles; they would contribute towards meeting the urgent need which so clearly exists and they would provide valuable data, under controlled conditions, which would help to answer the question, which we discuss more fully in the next Part of this Report, of how the needs of people can best be met in areas where legal services are inadequate or non-existent.Then, as to the courts, they point out:The costings which we gave in our last Reports show that the sums involved are trifling.I agree. Of course all Lord Chancellors have their financial difficulty in this field, and I cannot tell my noble friend Lord Gifford what I think is the answer to this, because I am not sure myself. There is something to be said for all legal aid being under the Lord Chancellor. At the moment, as we all know, criminal and civil does not always divide very neatly. Criminal is under the Home Secretary, civil is 1057 under the Lord Chancellor. I have wondered whether it might be better if they did not come under either office, because this is a form of social welfare. The Minister for Health and Social Security deals with all other forms of social welfare and has about £5,000 million—or had when I was a member of the last Government. It might be very much easier for him to find the money out of his general fund, than for the Lord Chancellor who has to make special application for it.
There is a case to be made against this which is that as criminal, civil and legal aid have largely to be administered through the courts and by the Law Society, who are used to dealing with the Lord Chancellor but not used to dealing with the Minister for Health and Social Security, it might not work out so well. But it is lamentable that at this time, 24 years after the Legal Aid and Advice Act was passed, we should have a Report from the Advisory Committee which concludes, as the noble Lord, Lord Gifford, has reminded us:… we have little doubt that:Of course, my Lords, instead of discussing the extent to which Government should help political Parties, we are now discussing only how far Governments should help poor people, so it is not unreasonable that the Chamber should be a great deal smaller in the number of noble Lords present. But I regret the fact that nobody, either on the Conservative or the Liberal Benches, shows sufficient interest in the position of poor people for any one of them to have taken the trouble to speak in this debate.
- (a) there are many people whose legal rights are, for a variety of reasons, at present going wholly by default;
- (b) some of these are unaware even that they possess such rights; others realise it but either do not know how to obtain help in enforcing them or lack the money or the ability, or both, to do so."
§ LORD WINDLESHAM
My Lords, if the noble and learned Lord would give way I must apologise for not putting my name down, but I do intend to speak later in the debate.
§ LORD GARDINER
My Lords, I am delighted to hear it. I hope that we shall not get any animosity between the 1058 lawyers and the non-lawyers. There is a good deal in what my noble friend said about lawyers. It is basically, I think, a fault of legal education, which, as he may know, in this country has always been and still is very bad. All my life I have fought wholly unsuccessfully—I have not always been so unsuccessful in other fields—to have the subjects of penology, criminology or even elementary psychology, included in the Bar examination. I am afraid it is true to say that lawyers are not properly educated in welfare law, which means such a great deal to so many of our poorest citizens.
I have made some substantial study of actual cases in the field of the administration of the cohabitation rule and I have been very shocked at what I regard as the heartless and insulting way in which that rule is administered. These women, who are mainly widows or deserted wives or mothers of illegitimate children, have their assistance books and therefore their livelihood taken away, and are theft told that they can appeal. But of course they do not know how to appeal. I have observed that if you get somebody like a welfare worker, or a lecturer in a university or some educated person taking the trouble to familiarise themselves just with that one branch of the activity, they do not find it at all difficult to pick up. There is a case to be made out, I think, not only for neighbourhood law centres in general but also in co-operation perhaps between people like social workers and the lawyers, all working in the same field. I hope therefore that the noble and learned Lord on the Woolsack, while I am familiar with his difficulties, may have some good news for us to-day, particularly in those fields which his Advisory Committee has pointed out would cost very little money to implement.
Finally, my Lords, may I bowl rather a fast one by asking a question which I must say at once that the noble and learned Lord on the Woolsack is under no obligation to answer—although I have given him notice of it—because strictly it is rather outside the Motion and is really for the Home Office rather than Lord Chancellor's Office. But I have always felt that one of the greatest needs in the whole field of legal aid is legal 1059 aid for bail. I do not know whether your Lordships may have read a research work carried out by Mrs. Dell on women in Holloway—women on remand—but I was surprised to find that so many of them had not applied for bail. When asked they simply said, "What is bail?" It is peculiar that while the Government conceded an Amendment to the last Criminal Justice Act to provide—quite rightly, I thought—that no convicted criminal, however serious his crime, was to be sent to prison for the first time unrepresented, we still send them straight off to prison the moment they are charged if they do not get bail.
The then Government said that they could not deal with this because they had a Home Office Working Party on Bail and nothing could be done until it had reported. I only discovered by a Parliamentary Question a little time ago that the Committee reported as long ago as last November, but the Home Office kept it under their hat. Its Report has at last been published this week. I am delighted to see that recommendations are made, the effect of which would be that after eight days in custody a person would then get legal aid for bail. While not going all the way to deal with the position it would certainly go a long way. But the question I wanted to ask the noble and learned Lord the Lord Chancellor about that is whether I am right in thinking that these recommendations can be implemented without legislation? If so, when does he expect the Report to be implemented?
§ 5.17 p.m.
§ LORD MELCHETT
My Lords, I rise with considerable trepidation to support the Motion that the noble Lord, Lord Gifford, has moved. I am the only non-qualified lawyer speaking in the debate this afternoon—anyhow, among the advertised speakers. I suppose that anyone debating a technical subject like legal aid with four barristers and a solicitor, particularly if they include two former Attorney-Generals and one former and the present Lord Chancellor will have to watch his step. So I shall try to be careful in what I say.
I should first like to support what the noble Lord, Lord Gifford, said about the present legal aid system. Present limits 1060 on capital and income are obviously too low, and I wholeheartedly endorse the Law Society's and the Lord Chancellor's Advisory Committee's views on this matter. In particular, I welcome the acceptance of the principle of an annual review of the financial limits. These limits have never been remotely generous, even at the moment when they are fixed, and in a period of inflation—with which we seem to be constantly faced—the limits start off as adequate and rapidly become more and more stingy. Other failings in the present scheme have already been mentioned by the noble Lord, Lord Gifford, and the noble and learned Lord, Lord Gardiner. The lack of legal aid in cases before tribunals is a major defect, particularly in the inner city areas where housing problems are most acute. It is at this point, my Lords, that I want to turn to the work being done by neighbourhood law and advice centres.
The first point that should be stressed is the diversity of the various bodies providing free and informal legal advice. The noble Lord, Lord Gifford, spoke of neighbourhood law centres, but there are, of course, various other local centres giving legal advice free to people needing it in their area. On the housing side, I have some experience of a local neighbourhood aid centre in Pimlico. Pimlico, as noble Lords may know, is called a "housing stress" area. That means that in the last four years planning permission for conversion has been granted on one in seven properties in the area. But to "convert" a property you have to move out the people living in it. In Pimlico, much of the property which has been converted, or which is under threat of conversion was, or is, occupied by people with some statutory rights to their tenancies, while most are living in fairly low-price rented accommodation. Unfurnished tenants have statutory rights to stay in their accommodation and I sincerely hope that furnished tenants will soon have them as well. But people are just not aware of their rights.
Having taken part in a small house-to-house survey of the area, I can assure your Lordships that the provision of free legal aid and advice for people appearing before rent tribunals would have been of little practical use to the tenants of Pimlico, without a great many other things being done at the same time. 1061 People have to be told about rent tribunals' existence and about their powers; advised that the provision of one old wardrobe and a broken washbasin does not make them a furnished tenant; told that if the landlord sells the building, or says that it will be pulled down in six months, or offers them £50 to get out, that does not mean they actually have to go.
Application forms for the rent tribunal have to be given to people, and help and advice have to be given in filling them in. In Pimlico, leaflets in Spanish, explaining all this and rather more, were printed and distributed, because there is a substantial Spanish-speaking population in the area. Last came help and advice at the rent tribunal hearing itself. All this involves an enormous amount of work and effort; advertising to people what their rights are, telling them where locally they can get free advice, and then actively encouraging them to stick up for themselves and for their rights. In my view, this is not a job which can be done by lawyers working in their traditional role. Indeed, much of it is work that need not necessarily be done by lawyers at all. I shall return to that theme later.
I confess that I find it quite extraordinary that the Chairman of the British Legal Association should see fit to describe neighbourhood law centres as enemies of the solicitors' profession. As the noble Lord, Lord Gifford, said, these centres fill a need that private solicitors' practices have proved themselves entirely unable to meet. They reach a group of people who have never had access to legal advice in the past. Indeed, if anything, they create more work for the legal profession. I have never failed to wonder at the basic attitude behind this sort of criticism. Lawyers, or at least many of them, come into daily contact with depressing examples of the cruelty of men and women to each other, with appalling examples of poverty, deprivation and a great number of other unpleasant things. Yet with a few notable exceptions lawyers never seem to have in sight the eradication of their own jobs; at least, in the areas I have mentioned. What I am saying is that any lawyer who sees a chance that the amount of work available for lawyers to do in the future 1062 might decrease ought to be delighted, not the reverse.
The Law Society, in its Report to the noble and learned Lord the Lord Chancellor, drew attention to the fact that many people who need help are still unaware that they can obtain it, and some are reluctant to visit a solicitor's office. The Council of the Law Society feels that this problem can be overcome with time, but, in my view, it will be an extremely long time—far too long. If people will not come to solicitors, it is no good the solicitors sitting back and bemoaning the fact. They must go, as a few now do, to the people. They must find out the needs of the people and they must respond to those needs.
My Lords, I have the honour of being a trustee of an organisation called Release, which is a voluntary body based on London. Release can, I think, fairly claim to be the first source of alternative or informal legal advice in this country. It was started in 1967 in response to a particular and well-defined need; that of the predominantly young people, mainly in London, who were being charged with drug offences in increasing numbers during the late 1960s and the early 1970s. Indeed, the numbers continue to rise every year.
Thus Release started as a specialised legal advice agency, specialising in drug cases. However, it soon found that people do not divide their troubles into convenient compartments labelled, "Citizens' Advice Bureau", "My GP.", "Civil Law", "Social Security", "Criminal Law", and so on. So Release adapted and the organisation now deals with every sort of problem, or refers people to other sympathetic organisations for specific help. The need for this sort of organisation is overwhelming, as the noble Lord, Lord Gifford, said. In 1971, for example, Release dealt with over 80 new cases each week. People go to an organisation like Release because they are wary of approaching statutory bodies, and because they mistrust the Establishment in general. By being unorthodox and informal, Release is often able to bridge the gap between a problem and a conventional solution.
Two American criminologists described an interview between a client and 1063 his lawyer in an inner-city area in the United States of America as, "A wild exercise in the imputation of attitudes. The lawyer projects values and attitudes which the client, if he is swift on the uptake, feeds right back. They both need an interpreter." The criminologists go on to suggest that other staff can provide this interpretation service between client and lawyer. They are saying that if the client is not quick on the uptake and does not understand what the lawyer is driving at the result is total confusion and misunderstanding between the two.
Because organisations like Release—and there are others—are multidisciplinary agencies, they can take action on several fronts at once. This really meets the point made by the noble and learned Lord, Lord Gardiner, about the need for lawyers to be skilled in skills other than those they are trained in. For example, a girl arrives at the Release office by taxi wanting advice on an abortion. It transpires that she has been charged £6.50 for the taxi ride from Victoria to North Kensington. Release are able to give the girl the advice that she wants and to report the taxi driver to the police, providing all the necessary evidence. The scope and flexibility of the legal advice that an informal and loosely-structured agency like this is able to give is its great strength.
As another example of its activities Release staff, together with volunteer doctors and lawyers, attend all the major "pop" festivals in this country and are able to give on the spot 24-hour free advice and help, when and where it is most needed. In another area, Release axe able to provide a great deal of expert advice and information on the problems of U.K. citizens and others who are arrested and imprisoned abroad—something that the, I hope, imminent release of Timothy Davey should remind us happens all too frequently. That is something which statutory bodies and, indeed, British Embassies around the world, seem very reluctant to help with. I do not somehow see very many solicitors or barristers packing up free parcels of magazines and medicines to send off to someone who writes for help from his or her prison in Iran, or wherever it may be.
1064 Release also has an emergency telephone service which is staffed 24 hours a day. This is similar to those in other neighbourhood law centres. This service provides help and advice to people when they often feel most desperate; for example, at 4 o'clock in the morning when a friend has just been arrested. It seems to me that this is one of the crucial areas in the debate on legal aid and advice. The quality of the advice is, of course, of major importance; but equally, or even more important, is the availability of the advice. The vast majority of people who are arrested do not have their lawyer with them at the time and, indeed, few have a lawyer at all. The legal aid system, however good, will never be able to provide a solicitor to walk at the shoulder of all the persons who are at risk of being picked up by the police at any given moment. As a vital next-best-thing, duty solicitors and 24-hour advice services are enormously important, but the ideal for which we should be striving is for people to be their own lawyer—at least in one sense. Specialist advice and help will always be needed, but the only way really to deal with the problems which I have been talking about is for people to be educated to cope to a far larger extent from their own resources.
As I said earlier, a lot of the advice and help given by informal legal advice agencies is not really a lawyer's job. Certainly, very few lawyers are trained to it. A mixture of skills is required and there must be people with medical, psychiatric, counselling and legal expertise and—and this is vitally important—people who can communicate sympathetically with those who come for help, so that needs and problems can be matched up with the relevant skills. Very little or none of this sort of training is given to lawyers, as the noble and learned Lord, Lord Gardiner, said, but, far worse, very little or no legal training is given to everyone else.
I should like to urge the noble and learned Lord the Lord Chancellor to look after the present in the various ways suggested this afternoon, including providing for duty solicitors, increased availability of free legal advice, increases in the financial aid for, and numbers of law centres. I would also urge that any central agency set up to administer law 1065 centres for the giving of legal advice should be free, both in theory and practice, of Government control, because if one is trying to communicate in this sort of area any suspicion that the agency is controlled from above in some way will undoubtedly put off some people, particularly those who are in most need of the advice which law centres have to give.
I would also stress the need for, as it were, a massive increase in adult legal education through advertising leaflets, and a much more active seeking out of people in need of advice and help—and this is something which local law centres are ideally suited to do. In conclusion, I would also urge the noble and learned Lord the Lord Chancellor to look to the future, and encourage far more legal education of a practical sort in all our schools.
§ 5.31 p.m.
§ LORD STOW HILL
My Lords, the last speaker expressed some hesitation in intervening in this debate. He should not have done so because he spoke obviously with a wealth of first-hand experience in the field in which a scheme of this kind must operate. It is I who should be hesitant in intervening in the debate following, as I do, three noble Lords who have had such a direct participation in this work, this desperately important social work. I preface my remarks with a word of sincere gratitude to my noble friend Lord Gifford for introducing the debate and enabling us to discuss the 23rd Report of the Council of the Law Society and the Report of the Advisory Committee of the Lord Chancellor upon that Report.
As my noble and learned friend Lord Gardiner spoke, and as I listened and enjoyed, if I may say so, the fervour with which he spoke, I thought that he was so absolutely right in saying that the provision of legal help is really one of the basic and most important social services which are indispensable to a civilised community. I suppose that if one looks at the experience of the ordinary pater familias as he goes through life, with the responsibilities of a family upon his shoulders, in the middle or lower income groups, one of the frightening events which he has to encounter on occasion in his passage through the years is 1066 a legal dispute. Those who are not lawyers and have not made their living out of the law, I believe, view with the utmost trepidation, and indeed despair, the prospect of having to become involved in litigation or, indeed, to have to make up their mind on complicated legal problems which affect their ordinary life. Before the Act of 1949 most of them fought shy of it, and citizen after citizen was not accorded the rights which in our democracy it was intended that he or she should enjoy.
My Lords, if I venture to intervene in this debate it is at least in part because, in a sense, I was in at the birth of the 1949 Act. The noble and learned Lord, Lord Jowitt, then sat upon the Woolsack; Lord Shawcross was the Attorney-General, and I sought to assist in a rather more modest capacity as Solicitor-General. I think back on the conferences that we had at that time and wonder why some of the features which at present are to be seen in the 1949 Act were allowed to become incorporated in it. One feature is that which is referred to by the Advisory Committee—the exclusion of defamation proceedings. I remember why it was so; it was dealt with in the Rushcliffe Committee proposals. There was a kind of fear that there would be a whole number of rather blackmailing slander and libel actions brought if they could be brought with the assistance of the scheme. I should think, particularly at the moment, that perhaps the balance of public opinion has shifted rather the other way, and that we now think that the protection of the private citizen against large media organisations of which he may become the victim really should be brought much more to the forefront. I personally agree with the Advisory Committee's suggestion that the exclusion should be terminated, and I am glad to know that that is a matter which is under consideration.
My Lords, I should like to take this opportunity, if I may, of adding something that I hope my noble friend Lord Gifford will think is not inappropriate on my part and which he did not include in his speech; that is, a word of very sincere thanks to the Law Society for the work which it has done over the years in administering this very admirable scheme. I think I should perhaps underline the value of their work by inviting your Lordships to look at the Table which appears on page 27 of the 1067 document that we are considering, and to note the total amount of damages recovered in the last 23 years. The Council of the Law Society's Report is dated October, 1973. The total amount of damages recovered was no less than £123,227,000. If one looks to see the number of certificates issued in that period, one sees that they were no fewer than 1,811,000. It virtually means, therefore (does it not?), that in that period of 23 years many of those nearly 2 million citizens who probably had rights or at least claims before the courts would not have been in a position to assert those claims. How much of that £123 million worth of damages would have gone into the rightful pockets of those who had been injured is very much a matter of speculation.
My memories go back a long time. My noble and learned friend Lord Gardiner referred to the proceedings in formê pauperis with which he and I were more familiar in past years. He referred to them in disparaging terms, which I should certainly endorse if I may do so. Despite the good will of the many members of the Bar and the solicitors' profession who tried to implement it, obviously that scheme fell woefully below what was required. I think it was rather worse than that. In the days before the last war, in the 'twenties and the 'thirties—I was called to the Bar in January, 1926—the courts were full of personal injury claims, largely claims arising out of motor accident cases. There was an ugly term that ran about the Bar and the solicitors' profession then, and it was "ambulance-snatching". Perhaps I am naïve, perhaps it is because I left the Bar ten years ago, but I do not hear that term now. There was claim after claim for personal injury damages which I should have thought undoubtedly offended against the laws of maintenance and charity, as I am quite sure that my noble and learned friend would agree; and I am sure that he would also agree, and that my noble friend Lord Gifford would agree, that the legal aid scheme brought that practice to an abrupt end. Again, I may be naïve or out of touch, but I should have thought that that was no longer any real problem in the exercise of the legal administration to-day.
1068 My Lords, it was an extremely dangerous matter: the situation out of which a speculative action was brought, very often on no adequate grounds, upon the terms that the person complaining of an injury would hand over, if the action were won or if it could be settled, far too large an amount of the damages which he was awarded. That was a very bad system, and it was strongly disliked by both professions; but, nevertheless, it took place, and I hope that we have seen the last of that forever. I like to think that this £123 million worth of damages went into the right pockets; namely, into the pockets of those who were injured.
My Lords, in connection with what I have just said, I should like to add this remark, which I hope your Lordships will not think wholly inappropriate to the subject of this debate. Personally, I have very great sympathy with the view not infrequently expressed—and now, I believe I am right in thinking, the subject of the inquiry under the chairmanship of the noble and learned Lord, Lord Pearson—as to whether in personal injury cases the test should be negligence at all. Should one not incorporate as part of our national insurance system a provision under the terms of which if you are injured in a motor car accident, if you are knocked down in the street, you should automatically be entitled to damages whether it was your fault or not? It has always seemed to me for years, and the view has now much more often been expressed, that it is such an absurd irrelevance, if say the father of a family steps off the pavement in front of a motor car without looking properly to his right and to his left, then he and his family should be deprived of all damages because he commits that act of negligence. I very much hope that in due course we will alter the law so as to ensure that if you are injured, your leg has to be amputated, you are permanently incapacitated for work, or something of the sort, your family should not suffer simply because you were negligent in failing adequately to look to your right before stepping off the pavement into the path of an oncoming car.
I should like to link with that observation a point which emerges directly from the Report, and that is the question of representation at coroners' inquests. In years gone by I suppose I appeared in 1069 dozens and dozens of cases before coroners. They were nearly all cases in which an insurance company was really the client and somebody had been involved in a fatal accident and counsel appeared for that person—the driver perhaps who had run somebody over—and represented his case before the coroner. What happened over and over again was that the supposed pater familias having stepped off the pavement, the witnesses who might have supported his case were cross-examined by counsel, instructed in effect by an insurance company, perhaps made concessions in the evidence which, had the family been represented, might have been explained in re-examination or something of the sort, which made it so much more difficult for those who later on might have represented the family in respect of that accident to obtain damages which might have been perfectly properly recoverable had the evidence been tested by counsel not only for the insurance company but also by counsel for the family of the person who had been killed in the motor accident.
I add one more remark on coroners in favour of the view which is suggested in the Advisory Committee's Report that there should be representation at coroners' inquests—that being under investigation. I speak in no terms of criticism of coroners; they are admirable people who discharge their duties conscientiously and painstakingly. But anybody who has appeared before them on a great many occasions must have been involved in or heard the kind of case in which, for example, a child is scalded to death because he upsets a bowl full of scalding water on himself. The child has been in the custody of the grandmother. The coroner thinks it necessary in the discharge of his duty—I do not say for any other motive whatsoever—to make a very disparaging remark as to the degree of care which the old grandmother was exercising when left in charge of the child. Such a remark might make the rest of her life an absolute misery. If the full case had been put, perhaps the remark would not have been made; but there she is, unrepresented, and the coroner thinking it his duty to do so, makes an observation which may hurt her for ever and induce a great deal of misery in that person's life and in the family.
1070 There should be some form of procedure whereby representation at coroners' inquests should be available. The difficulty, of course, is that the fatality occurs and the inquest takes place quite soon afterwards, and there probably is not time to consider the question as to whether a certificate for legal aid should be granted. But it is possible that the procedure referred to in the Report for emergency certificates might be used for that purpose. I emphasise that I do not criticise coroners; they obviously have to do their duty even if it hurts. But I think that when people may be hurt in that way it is highly desirable that their case should be put by lawyers on their behalf, and that they should not appear wholly undefended in a situation of danger of that sort. That is the comment I should like to make, and I am glad to think that the matter is being investigated.
I want to ask the noble and learned Lord the Lord Chancellor, a question which has already been foreshadowed by my noble and learned friend Lord Gardiner. The Advisory Committee refers to the income and capital limits as being much too stringent, and makes the criticism of the Report which my noble friend Lord Gifford read out. At page 39 of the document one can see the kind of reason why the criticism is made as to the financial limits. If one looks at Appendix B, for example, one sees that in the case of a married couple with two children aged four and eight—and I just take an example—they cannot get free assistance unless their incomes does not exceed £1,211. In the present situation, with inflation as it is—the prospect of inflation continuing one hopes at a slower rate—surely that limit, just to take that as an example out of the Appendix, is much too low. I notice in the Report that it is said that the number of legal aid certificates granted has decreased by some 9 per cent., and that despite the fact that, as I understand it, the sudden increase in the need for legal aid which eventuated after the Divorce Reform Act, 1969, has now levelled out.
The question I should like to ask is what the noble and learned Lord the Lord Chancellor, feels with regard to the recommendation in paragraph 7 at page 32, from which my noble and learned 1071 friend Lord Gardiner read out these words:… we see advantage in the possibility that the present limits on income and capital should be abolished, so that all persons would be eligible for legal aid. The levels of contribution would be on sliding scales, adjusted to their financial resources.Although I have not had an opportunity to examine that proposal in great depth, I should have thought that there would be substantial advantages if you have a sliding scale which, as it were, automatically fixes the contribution and makes it apparent whether you qualify for legal aid or whether you do not.
I do not know whether the noble and learned Lord has had an opportunity in the course of his comparatively short tenure of his very high and august office—to which I hope without impertinence, as I think I may claim to be one of his oldest friends, I warmly welcome him and I am sure that the House will agree with me in that whatever their political opinions are—to give some thought to that point, or whether he has formed any provisional view about it. I do not know that it has appeared in previous Advisory Committee Reports to predecessors of the noble and learned Lord; but it would. I should have thought, be a very interesting and possibly very valuable way of approaching the enlargement of the income and capital limits at present applicable which, as my noble friend Lord Gifford has pointed out, excludes so many people from the advantages which the Act intends that they should have.
My Lords, I would say in conclusion that with the comparatively limited knowledge that I have—though I suppose everybody who has been a Member of Parliament for many years has some knowledge, because of his consulting room and visits by his constituents—I venture to agree with the criticism made in the Advisory Committee's Report of the failure to provide the law centres. They are envisaged, as my noble friend said, in Part II of the 1972 Act which repeals Sections 5 and 7 of the 1949 Act which has been shown to be quite inadequate for the purpose for which they were intended. When I say that I endorse the criticism, I realise that there is always another side to any criticism, but I venture to express the hope that the powers 1072 conferred by Part II of the 1972 Act will be exercised as soon as they reasonably can. Although one knows the difficulties from the financial point of view and otherwise, it is perhaps right to call attention in the course of this debate to the great importance of setting up the law centres, especially when one bears in mind the extremely good work done by the neighbourhood law centres, as described by my noble friends Lord Gifford and Lord Melchett. My Lords, those are the comments I would venture to offer in what I submit is a very important debate.
§ 5.52 p.m.
My Lords, the time is running out very quickly and in the circumstances, as I agree with practically all that has been said by noble Lords who have spoken before me, there is little need to deal with the various aspects that have been raised. I should like to compliment the noble Lord, Lord Gifford, on the fact that he has introduced this debate, in a very interesting and comprehensive manner. Noble Lords who have spoken so far have been extremely learned in the law and are recognised as such. As a humble solicitor I do not come into the same category and, consequently, I should like to say a few words in regard to what the Law Society and lawyers have attempted to do as a corporate body in order to meet the situation.
I would say a once that we are not by any means satisfied with all that has been done. Speaking as an ex-Member of another place—I am a solicitor speaking as an ex-Member of another place—I realised that when we held surgeries those of us who work in the legal profession must have had thousands and thousands of cases brought to us which would have required legal aid, had we ourselves not known the answer to the problem. I should like to speak on what the Law Society has done, and from what I am about to say I hope your Lordships will appreciate that in future they are anxious to help in whatever way they can to deal with the situation which has arisen.
When in 1946 the Law Society planned the legal aid and advice scheme—and I say that the Law Society planned it—it was recognised that the need of the country for legal aid could be met only by mobilising to the full the resources of 1073 existing solicitors in their offices. But it was appreciated that there must also be a link between the profession and that part of the public which, through lack of means, had until then been excluded from the benefit of legal services and access to the courts. For this reason the Society advocated the creation of a task force of salaried solicitors to establish a countrywide advice service. Provision for this was, as your Lordships will remember, included in the Legal Aid and Advice Act 1949. The Law Society was aware of this position and was taking steps long before the issue was raised, as it has been raised to-day. Economic reasons resulted in the deferment of important parts of this scheme which had been intended to be comprehensive in character. Among the facilities deferred was the ambitious advice scheme.
When, after nearly 10 years, the Statutory Advice Scheme was authorised under that Act, it was a severely truncated scheme—not the scheme put forward by the Law Society. Though more useful than some of its critics were prepared to acknowledge, it manifestly lacked the impact on the problem of unmet need which the original scheme had been intended to achieve. Efforts to make the statutory scheme more effective proved disappointing and this was a matter of concern both to the Law Society and to the Lord Chancellor's Advisory Committee, as was evidenced by a series of Annual Reports during the earlier part of the 'sixties. The gravity of the problem to be met became more and more clear, and in 1968, stimulated to a considerable extent by the experience of using staff lawyers in America, public interest was awakened which led to proposals being made by the Law Society for a radical answer.
The Law Society proposed a two-pronged attack on unmet need for legal services. The first element was the establishment of an effective advice scheme which would include not merely (as originally envisaged) oral advice, but which would enable solicitors to take up the client's problem there and then and to incur an expenditure of up to £25, if necessary, without any reference to the legal aid authorities. If this proved to be insufficient to meet the client's problem, authority to exceed that expenditure 1074 could be granted speedily by those authorities.
The second part of the Act provided for the establishment of a task force of a highly flexible nature, which could forge close links between the profession and the social agencies, particularly the Citizens Advice Bureaux, which would be likely to become aware of the need for legal help. Moreover, this task force was to be able to establish whatever types of salaried legal officers might be found necessary to meet the problems that afflict districts with acute problems which could not be tackled by such normal legal services as might be available in the locality.
The Law Society's aim from the outset has been to establish a mixed system which would combine the resources of the practising profession with a salaried element able to fill the gaps which would otherwise be left; and, at the same time, to work with the private practitioners in enhancing their ability to absorb the work required to be done. Once again, economic problems led to a partial implementation of the 1972 Act, leaving in cold storage the all-important element without which the advice scheme itself would lack the necessary impact in areas of urgent need. The basic advice and assistance provisions are now working well, but the piecemeal implementation of the legislation—and this is what we have to deal with—and the failure from the outset up to the present date to add to the scheme as a whole the necessary element of direct impact, has left a damaging vacuum which we recognise and which has to be filled, so far as possible, by charitable initiatives on the part of the legal profession.
This has taken two forms. There has been increasing activity on the part of the local law societies and their districts. There have also been quite separate initiatives taken by concerned solicitors who have managed to obtain charitable funds from one source or another, or subventions on local authorities or the urban development projects to establish a number of neighbourhood law centres, mainly in London—that, of course, is the main point with which the noble Lord, Lord Gifford, was dealing. These solicitors are doing a valuable job with inadequate resources. The need 1075 for such centres is directly attributable to the fact that the 1972 Act has not been implemented so as to make it possible for a progressive attack to be made on the problem through our national legal aid scheme, with the advisory liaison service which it so badly needs and with the establishment of salaried law officers in places of special need. In the absence of such facilities the Law Society welcomes the initiatives that have been taken in the ways described and, in particular, the growing evidence of the concern of members of the legal profession to go out to the people and to ensure that so far as possible they get the help which they need and have hitherto lacked.
The role of the English legal aid system is to ensure that the protection of the law is available to those sections of the community which, for lack of means or misconceptions as to the function of the law and the lawyers in protecting their interests, have failed to benefit from the administration of justice and from the advice and other services which they need. It aims at ensuring for them full equality under the law with their better-off neighbours and the means for resisting the encroachments on their rights which can so easily occur in a complex society such as ours—and which have already been described by many of your Lordships to-day. In short, the English legal aid scheme is an integral part of the administration of justice in this country; and it is of the utmost importance that it should be strengthened and developed so as to fulfil effectively its proper social task.
Although the Law Society is intensely disappointed that it is still not possible to go forward to tackle fully and effectively the scandal of unmet need within the ambit of our national legal aid scheme, undoubtedly much more needs to be done to mitigate this lack. It is actively pursuing the possibility of establishing some centres of an experimental kind which may provide evidence as to what will prove most helpful when authority is given to proceed under the legal aid scheme. It is also watching with sympathetic interest the current developments in the field. There is a representative either of the Law Society or of a local law society on each of the management committees of the independent centres so 1076 far set up. The aim is to ensure that a situation will be established in which private practitioners and those working in these centres will fulfil mutually supportive roles in achieving the greatest possible advantage for the public.
I should like to conclude by saying that I hope it will be understood that the legal profession itself is extremely anxious that legal assistance and knowledge should be given to those who are in need of it: they are as anxious as anybody in the country. Of course, they realise the difficulties of an individual who does not know what his rights are or how to exercise them. I can assure the House that the Society will give all possible assistance on these matters—and, of course, I have followed what the noble and learned Lord, the Lord Chancellor, has been doing and saying on these matters—as will lawyers throughout the country. It is a mistaken idea, as I have often said both inside your Lordships' House and outside it, that lawyers have no consideration for their fellow men. That is simply untrue. As some of your Lordships may recollect, even in political Parties lawyers have voluntarily for many years given their services, and they are prepared to give their services to all who need them, but, of course, they cannot do the impossible.
Some matters require a considerable amount of time and attention, and unfortunately it is true that the profession is insufficiently well-staffed at the moment, which represents an added difficulty. Certainly it is perfectly true that there are not enough solicitors (and I believe the same is true of barristers) to do the work that is needed. However, I am sure that both professions will do everything possible to assist members of the public to exercise the rights to which they are entitled, and to give the legal help which should be as available as possible. Often with all kinds of legislation, people do not know to what they are entitled. For example, the legislation concerning the Rent Acts placed many people in great difficulties. We think that people's rights should be advertised to the greatest possible extent in all such matters of legislation, and this is not always done. Anything which can be done to facilitate the giving of information and assistance to those who need it is something which we wholeheartedly support, and I am sure the Bar would welcome that also.
§ 6.7 p.m.
§ LORD WINDLESHAM
My Lords, I should like to take this opportunity to intervene briefly in the debate before the noble and learned Lord the Lord Chancellor replies. I do so with some hesitation because, with the exception of the noble Lord, Lord Melchett, I am the only speaker who is not either a barrister or a solicitor. Even the noble Lord, Lord Melchett, I believe, is a student of criminology, so that his knowledge borders on this professional territory. Indeed he spoke from first-hand experience about a subject on which he obviously knows a great deal. We listened to him with interest and respect.
I had hoped that one of my two legally qualified noble colleagues might be able to speak from this Front Bench on the Motion of the noble Lord, Lord Gifford, this afternoon. However, my noble friend Lord Hailsham of Saint Marylebone is at this moment, as the noble and learned Lord who sits on the Woolsack will know, carrying out public duties in Australia on behalf of the legal profession. Therefore he is unable to be here to-day. Again, my noble friend Lord Colville of Culross is in court outside London and cannot get back in time to take part in our debate.
The noble and learned Lord, Lord Gardiner, if I may say so, was somewhat premature in his criticism that whereas some of us on these Benches and also on the Liberal Benches were in our places to take part in the earlier debate, it seemed that none were intending to take part in this debate concerning what he described as "the needs of poor people". The timing of the debate may have something to do with that but, with great respect, I think it is a misreading of the situation. The reason is not because this debate is about "poor people" but because, from its wording, there seemed to be every prospect that it would be rather a legal one and dominated by lawyers—which indeed has turned out to be the case. Experience in this House has shown that when lawyers are discussing legal subjects they seldom encourage laymen to intrude. There is a moral here, and it is one which goes far beyond the confines of debates in your Lordships' House. It is of significance to society as a whole that the law and the legal system should not become regarded as some 1078 great arcane mystery capable of being understood only by lawyers. Nor can they afford to be remote. If legal systems become remote and inbred, only appreciated and valued by the few, they are in danger of being undermined and fading away.
I suggest to those of your Lordships of great legal experience who have spoken to-day that a rough and ready understanding of the law, a feel for it, if you like, is a mark of the democratic system itself. It has been the hallmark of the Common Law for a substantial period of time that there has been a sympathetic public feeling towards the law and an intrinsic understanding of it. As the noble and learned Lord, Lord Gardiner, and others, pointed out in their speeches, there is not much point in having rights unless people are aware of what they are, and know how to act on them. This has been one of the themes of the debate, and I expect it is one which the noble Lord, Lord Gifford, is pleased to have seen emerging in this way.
Neighbourhood law centres are a step in the direction of a better and fuller understanding of an individual's legal rights and, as such, must be welcome to all of us. Neighbourhood law centres are also increasingly becoming a part of community development projects. These are a relatively new series of programmes, often still in an experimental stage, working towards stronger and healthier local communities. The actual needs and aspirations of people in a delimited community rather than the established and perceived needs should be harnessed to determine the course of public policies aimed at meeting those needs.
The concept of welfare law has already been mentioned in the debate to-day. I recall that in making his maiden speech from the Woolsack, the noble and learned Lord, Lord Elwyn-Jones, said this in the debate on the address in reply to the gracious Speech on March 21:Our second aim is to encourage greater expertise by the legal profession itself in the fields of welfare and social law. I believe there is increasing awareness that training in welfare law should be a necessary part of all lawyers' equipment. The task of making the public more aware of the legal services available to them is not easy. As the Advisory Committee report, many people are unaware even that they possess certain legal rights, while others realise it but do not know how to obtain help 1079 in enforcing them.—[OFFICIAL REPORT, col. 382.]This is important, and not only to the users of legal services. It is important to lawyers themselves. Experience in the field of social or welfare law, whatever it is called, early in their career should have a broadening effect on the characters and on the professional values of lawyers. Later generations, some of whom will no doubt reach the Benches of this House, may thus be able to debate legal subjects in ways which make them more attractive to laymen. Lord Gifford's debate to-day has in fact been attractive to laymen. I was able to follow nearly all the speeches, but not quite all of them. It has been a good start. I hope that what the noble and learned Lord the Lord Chancellor is going to say in reply will indicate the Government intend to ensure that real progress is made in this direction in the future.
§ 6.14 p.m.
§ THE LORD CHANCELLOR (LORD ELWYN-JONES)
My Lords, it is gratifying as the noble and learned Lord, Lord Stow Hill, said, that the noble Lord, Lord Gifford, should have obtained time for this Motion, and should have called attention to the 23rd Report of my Legal Aid Advisory Committee, and to the work being done by neighbourhood law centres. I, and I am sure the whole House, especially the lawyers, welcomed the "intrusion", as the noble Lord, Lord Windlesham, described it, of the non-lawyers in this debate. I should like to commend the most notable speech of the noble Lord, Lord Melchett, who showed great expertise in this field. It is an old observation that war is much too serious a matter to be left to the generals; the lawyers will readily agree that the law and the legal service are much too serious a matter to be left to the lawyers. The sad thing is that so much of the initiative in this field has to be undertaken by lawyers who are generally thought to be as unwilling to reform the law as a tiger to reform the jungle. But that is not true. It is fitting but regrettable that it is only the lawyers who can apparently blow their own trumpets, for others will not often do it for them.
Emphasis has been laid in more than one speech during the debate on the strik- 1080 ing paragraph, paragraph 22, of the Advisory Committee's Report. I should like to echo the tribute which the noble Lord, Lord Gifford, has paid to the work of that Committee. In their conclusion the Committee presented in the most striking terms the challenge that now faces us as a society and as a Government. The problem that we face is not a new one; the problem of under-provision in the courts for those who most need the courts' assistance. It has existed with us throughout the ages; and to-day we have had some very vivid illustrations of it and the extent of it, and the tragedies that it causes in families and individuals, in the illustration given by the noble Lord, Lord Melchett, and others, in the course of this fascinating debate. The difficulty is that for far too long the provision of legal assistance has been treated as a poor relation in the field of social services. It is high time that it was recognised for what it is—a major public service. I was delighted to hear the observations of my old friend the noble and learned Lord, Lord Stow Hill, affirming that proposition.
As the noble and learned Lord, Lord Gardiner said, it is becoming increasingly apparent that much of Parliament's efforts are wasted for lack of effective means of enforcing rights conferred by Parliament on different sections of the community. It is idle to enact provisions which seek to give protection to one section of our people, or to grant remedies, benefits and entitlements to another, but to deny those concerned the technical and other advice and assistance which they need to identify those rights and, having identified them, effectively to enforce them. Report after report draws attention to this, but still very little is done about it.
I hope the Government are determined to redress the balance. Much of what has already been said to me since I became Lord Chancellor has been directed to the machinery for providing legal services, and for responsibility for controlling it. While this is undoubtedly an important matter, the urgent problem is not so much the question of machinery, as the need for expanding the services that are so desperately needed. Our resources are all too scarce and scattered for the tasks that they 1081 have to meet and it is essential that we employ the resources as best we can with a proper sense of priorities. Solicitors and barristers in private practice have a vital role to play and I would never wish to suggest otherwise. But I am convinced, as has been said by more than one noble Lord, that they cannot provide all that is needed. In the deprived areas in our large cities I believe that the only effective solution is the provision of law centres, although I readily recognise the value of other agencies and organisations of the kind the noble Lord, Lord Melchett, referred to.
There are several reasons why in my view the emphasis should be upon the provision of law centres. The most obvious one is economic. It is neither reasonable nor realistic to expect solicitors to set up their practices in areas where it is difficult, if not impossible, for them to make a proper living. Moreover, in the areas that I have in mind there is often, with no fault on either side, a gulf between the outlook, and sometimes even the language (particularly in the case of immigrants), of ordinary professional men and their prospective clients. That has already been referred to in the debate. To win the confidence of people at this level of need calls for something more than legal skills. One must have some knowledge of social welfare and its problems. Some solicitors in private practice of course are able to achieve this with great success, but in the nature of things many cannot do so.
In the areas that I have in mind it is I believe only law centres that are likely to be able to meet people's needs, and then only with great difficulty and with a great deal of effort. Moreover, such centres—and this is one of their values—are not limited to assisting individual clients but, as the noble Lord, Lord Gifford, has said, can offer a wider range of help. They can make a positive attack on ignorance of the law by the distribution of pamphlets and other literature. Working in a small area, they can relate to local needs. By working in this way for groups of individuals, centres can and frequently do achieve more than can be achieved by the conventional individual casework approach with which we are all familiar.
1082 This is of course breaking new ground for lawyers, but it is ground which in my view has lain fallow for far too long. The time has now come to take a new look at the way in which legal services for the poorer sections of the community can best be provided. Until now we have traditionally relied on lawyers in private practice. I believe we must now start to move towards the pattern, which has been pioneered in the United States, of law centres staffed by salaried solicitors. We must decide how we are to advance. I myself have little doubt as to what the answer should be. It is that there is an urgent need for the work both of the private practitioner and of the law centres. We must deploy all our legal services to the full. The situation is a developing one and we must be imaginative and flexible in the way in which we meet the demands upon us—demands to which the Advisory Committee have so clearly drawn our attention.
However, I should like to strike a note of warning. There is some degree of hostility at present between the different groups who are responsible for providing legal services. Constructive criticism and proposals for improvement can of course do nothing but good, but suspicion, hostility and failure to understand the needs and aspirations of others will be seriously damaging and will indeed dissipate such limited resources as we have. Law centres and private practitioners have different jobs to do. They must be recognised, and recognise each other, as complementary and not in opposition or in competition with each other. When one reads what the Advisory Committee have to say, it is quite ludicrous to regard the two as competing for a limited pool of work. We confront, my Lords, not a pool but an ocean.
What is essential is to use law centres intelligently and to ensure that they do work for which private practitioners are not effectively geared. There is a danger, when one considers the very serious needs of the deprived areas, of generalising from the particular. Conditions vary widely in different parts of the country. In many places solicitors in ordinary practice can provide a very adequate range of legal services. We must be careful to see that law centres are provided only where they are needed, 1083 but that they are in fact provided where they are needed. There are two reasons for this submission that I make. The first is the obvious one, that the best possible use must be made of our limited resources, and the second derives from the special privileges which attach to law centres. They are exempt from some of the normal professional restrictions, and are entitled to advertise and make their services known in a way which solicitors in private practice are not able to do. If a law centre is set up in a place where private practitioners can meet the needs of the community there will be duplication of effort, waste of resources and the likelihood of hostility of the kind that I have referred to.
The special privileges of law centres which I have just mentioned derive from exemptions granted by the Law Society from the Solicitors' Practice Rules. This has the fortuitous effect of enabling, and indeed requiring, the Law Society to determine whether a particular law centre should be permitted to operate, and of deciding the kind of work that it should do. Your Lordships may feel that there are certain disadvantages about this, particularly in the coherent planning of new centres throughout the country. This is something I propose to consider further in the near future in discussions with the Law Society and others concerned.
As to the general working of the overall provisions of legal aid which have been referred to during the debate, under the Legal Aid and Advice Act 1949 (which as your Lordships know was, along with the other relevant legislation, consolidated in an Act which came into force last week) legal aid—that is, professional assistance for proceedings in court—is provided for in nearly all the main courts in this country. They range from your Lordships' House, where some of the notable legal decisions have been made under the flag of legal aid, to the majority of civil proceedings in the magistrates' courts. The Advisory Committee, as the noble and learned Lord, Lord Gardiner, has pointed out, draw attention to certain gaps in the statutory cover provided for by the 1949 Act, but happily they are relatively minor ones. They point out that at present legal aid is not available in the Judicial 1084 Committee of the Privy Council, nor in coroners' courts.
I noted carefully what was said about coroners' courts by the noble and learned Lord, Lord Stow Hill; and from my own early professional experience I bear in mind vividly some scars of appearances in those tribunals; but perhaps that is a somewhat unkind observation and it may be middle age which is betraying my recollection. But certainly it is something we are investigating. There are, moreover, certain types of proceedings in which legal aid may not be granted, and the most important, as has been pointed out, is in regard to defamation. With the help of the Bar Council, the Law Society and the other Departments concerned, my Office are at present studying these areas which are not covered and they will be reporting on them to me in due course. So far as defamation is concerned, the provision of legal aid is a matter within the terms of reference of Mr. Justice Faulks' Committee, which is likely to be reporting fairly soon.
The Advisory Committee, as several noble Lords have pointed out, draw attention to the financial limits for legal aid. I am glad to say that they have referred the whole question of those financial limits to the Law Society and the Supplementary Benefits Commission, and I look forward to receiving their comments in due course. The Committee made the interesting proposal, to which the noble and learned Lord, Lord Stow Hill, referred, that there should in future be no limits as such, so that in theory everyone would be eligible for legal aid on a sliding scale of contributions, although obviously above a certain income level nothing would be gained by applying for legal aid. This is a far-reaching proposal which will need careful examination and costing, and this it will receive. It would certainly meet the criticism that exists at the present time, that one has to be either very rich or very poor in order to be able to litigate.
There has been much criticism of the fact that legal aid does not extend to representation before administrative tribunals, although this would have been possible under the terms of the 1949 Act. The Advisory Committee considered this in 1968 and decided at that time that legal aid was needed only for the Lands Tribunal, and effect was given to that 1085 recommendation. The Committee has been looking at the matter again and the working paper it circulated has aroused widespread interest. I look forward to receiving the Committee's Report later in the year. I have no doubt at all that this is an area in which legal aid can be of the greatest importance, in view of the proliferation of tribunals and the impact which their work makes upon the whole range of problems of the community.
Legal aid under the 1949 Act is available to everyone, irrespective of his nationality or place of residence. In this respect, I am happy to say that we are more generous than some neighbouring countries. For the benefit of our own citizens we should naturally like other countries to follow our lead in this respect. This is one of the matters which we shall be discussing at a Conference of European Ministers of Justice at Vienna, which I hope to be attending at the end of this month. I am glad to say that there is increasing interest internationally in the development and availability of legal aid.
So much for the 1949 Act. The 1972 Act deals with legal advice and it made important provision for what is known as the £25 Scheme, under which a solicitor in private practice can do up to that amount of work for a client, and more if he gets the necessary authority. This is a substantial improvement upon the old position. Steadily increasing numbers of people are taking advantage of this scheme. In its first full month of operation, in May of last year, there were just over 1,100 cases authorised for payment. This had risen by September to over 9,000, and the figures for February and March of this year were 13,439 and 15,886 respectively.
My Lords, Part II of the 1972 Act empowered the Law Society to set up law centres and to appoint liaison advisory officers. So far, as your Lordships will know, that Part of the Act has not been brought into force. The previous Government thought that before bringing it into force it would be desirable to get more experience of the working of the advice and assistance scheme under Part I. I am not sure, however, that Part II is really what is needed. It would certainly be an advantage for the Law 1086 Society to be able to set up law centres and I hope that, as soon as this is practicable, they will do so. But I believe that Part II is defective, in that it takes no account of the needs of independent law centres. There are now twelve of these in existence, most of them, as we have been told, in London. They are doing extremely valuable work. It is too soon for me to say exactly what framework would be most suitable for them, and in that respect I am sorry that I shall be disappointing the noble Lord, Lord Gifford, to-day. I very much hope, however, that a way can be found of drawing together the general responsibility for the different types of law centre so as to use our limited resources to the best advantage.
My Lords, I should like here to pay tribute to all that the Law Society have done in carrying out their statutory responsibilities during the past twenty-five years; and I welcome the observations that were made by my noble friend Lord Janner, a distinguished member of the Law Society. I recall that after the Rushcliffe Committee reported there were I considerable misgivings about the proposal that the legal profession should become responsible for administering the large sums of money which were intended, in effect, to remunerate their own members. I can only say that the Law Society, ably assisted, if I may say so, by the Bar Council, have, in my view, effectively discharged the trust imposed upon them.
Nevertheless, as has been said on many occasions in this debate, there is increasing evidence of failure to reach many of the people who need legal services most. I must emphasise that there is no criticism of the Law Society in saying this. Their responsibility is to ensure that legal aid is provided for people coming within the various schemes. What we now need to do is to tackle the new problems which are pressing on us. The main one is how to deploy our resources to meet the needs we are faced with. On all these matters my Department is in close touch with the Law Society and with the other bodies working in this field, such as the Citizens' Advice Bureaux, the Legal Action Group, the Law Centres Working Party and many others from which I am receiving the I most valuable help and information.
1087 I should like now to mention the matters of particular concern upon which I would welcome comments by your Lordships in due course; and, indeed, by all who are concerned in this field. First, of course, must be the question of finance—the eternal bugbear, the eternal problem. Funds are limited, as we all know. Where can the money available best be used? In considering this, it is essential that we should get our priorities right. I therefore intend to examine all our expenditure on legal aid and make sure that we are using our resources to the best advantage. The proportion spent on divorce, for example, causes me concern. It takes up the bulk of the expenditure in the civil legal aid field. It is not, however, an easy problem, and I fear that I can say no more about it this evening.
Next, what are the best lines of advance for the development of the new law centres; and, indeed, for the keeping alive of the ones which presently exist? Ought they to continue as independent bodies or would it be better, as I have suggested, for them to be brought together within some coherent scheme? Then the question arises, under what guidance or control that scheme should operate. All these are critically important matters about which in the course of—is it ten weeks in office?—I have not yet reached any final decision.
A further question is: what are the most effective steps that we can take, as has been mentioned more than once in the debate, to increase the knowledge and expertise of the legal profession itself in the fields of welfare and poverty law? The noble and learned Lord, Lord Gardiner, put great emphasis on this. Then how can we ensure that the public of all ages, particularly those still at school, become better informed of their legal position in differing circumstances and how can they best learn of the resources and remedies that are available to them? I have put these various points in a series of questions and I hope that before long we shall arrive at answers to them, and I shall welcome any advice from your Lordships with regard to them.
Before I sit down—and I apologise for the length of time that I have taken—I feel I should try to deal with some of the "fast balls" that the noble and 1088 learned Lord, Lord Gardiner, bowled in my direction in regard to legal aid for bail. To be warned that a fast ball is coming of course makes life very much easier, but Lord Gardiner referred to the Working Party on bail procedures and magistrates courts' recommendations and asked whether legislation would be necessary to implement its recommendations, and how much could be done without legislation. We know that next to money time is the rarest Parliamentary commodity. Only one of the Working Party's recommendations, replacing the personal recognisance by an offence of absconding while on bail, would appear to require legislation, but there are several others where legislation would be appropriate, although a good deal could be achieved by exhortation. These are: the presumption in favour of bail, giving reasons for refusing bail and the right of a surety whom the police have rejected to apply to a court. Other recommendations may need time for implementation if they are accepted, because of the demands on resources. Those include the collection of standard information about bail applicants, which would require some training of court staff, the greater use of bail for medical and psychiatric reports and the provision of further bail hostels.
Then the question was asked: how soon are the recommendations of the Working Party likely to be implemented? My right honourable friend the Home Secretary indicated in his Statement in another place that he would not announce his intentions in respect of the detailed recommendations until he had been able to assess public and professional reaction to them, but as I have indicated, the majority of the recommendations can be implemented fairly quickly by means of a circular to the courts, although later legislation is not ruled out.
As to the proposition that a person remanded in custody should have legal aid by the time he appears in court again after an eight day remand, the Working Party on Bail recommended that a person who is remanded in custody should ordinarily be granted legal aid, and I believe and understand this to be the common practice. The machinery for considering applications for legal aid in magistrates' courts is such that they can be dealt with speedily, and it is accepted that when a defendant who is eligible for 1089 legal aid is remanded in custody it should usually be possible to ensure that legal aid is granted by the time of his next appearance in court, and I hope that now will be the regular pattern.
Before I sit down, I fear I have to express one note of disagreement with one observation made by the noble and learned Lord, Lord Gardiner. I cannot accept What he said about heartlessness in administering the cohabitation rule. The Government are fully aware of the difficulties that are caused in practice by the nature of the rule to those who have the unpleasant task of enforcing it. I will certainly bring to the attention of my right honourable friend the Secretary of State the observations of the noble and learned Lord, but I am sure he will understand that where a painful rule has to be enforced it sometimes presents those who have the unpleasant duty of doing it with painful situations, so I hope he will be able to take a kindly view of what they seek to do. I apologise for the length of my observations to your Lordships but thank the noble Lord, Lord Gifford, for introducing this fascinating debate.
§ 6.47 p.m.
§ LORD GIFFORD
My Lords, noble Lords have taken the debate into many areas which I could not have covered. I am delighted that they have done so and I agree with much of what has been said. I was most pleased that the noble and learned Lord, Lord Gardiner, made special reference to the matter of legal education and the education of lawyers. In a sense I feel that this is a "chicken and egg" problem. If there are no opportunities for lawyers to be educated to help the poor then there will not be much demand for education. Equally, people will say that the profession cannot help the poor because it is not educated to do so. My feeling is that already in the law faculties of universities great changes are being made in the kind of courses offered. These are now pushing forward into the professional training establishments and I hope that my noble and learned friend has some success ensuring that those establishments provide a better education than they have done so far.
My noble and learned friend Lord Gardiner, and the noble Lord, Lord Melchett, spoke about the need for co- 1090 operation between laymen and lawyers. Their stressing of that aspect of the matter was one of the key parts of the debate. I was fascinated to hear the report of—I think it was the Pimlico project—from the noble Lord, Lord Melchett, because that underlined the need for lay endeavour in mobilising a community to be aware of its rights. I am sure that he wanted some sympathetic legal participation to be a resource for that kind of scheme. Equally, the other way round, the law centres themselves are far from being cut off from the community which they are in, far from being limited to merely providing a kind of charitable solicitors' service. They, too, want to be that kind of resource for the community in ensuring that people are aware of their rights and thereby can avoid becoming entangled in litigation and lawyers.
The noble and learned Lord, Lord Stow Hill, and the noble Lord, Lord Janner, praised the Law Society for the administration by the Law Society of the legal aid scheme. I endorse that praise. The problem as it appears to outsiders probably more clearly than to lawyers as we saw from the speech of the noble Lord, Lord Melchett, is that that scheme, well though it may have been administered, has reached out to far too few people and it is not for me (and it is not necessary) to apportion blame for that situation having arisen.
However, the profession in these circumstances cannot be surprised that a new radical public sector, if one may so describe it, in the provision of legal services has now begun to emerge. As the noble and learned Lord the Lord Chancellor said, that has rather overtaken the recommendations which form the basis of Part II of the Legal Advice and Assistance Act 1972. I firmly believe that when we look at the job which is now being done, both in casework and in educational work, by the independent centres, Part II is no longer to be seen as a solution to the problem.
My Lords, of course I was delighted with the remarks of the noble and learned Lord the Lord Chancellor on law centres, his view of them and his recognition of their role as an educational role for the community as well as the solicitors services. As the noble and learned Lord, the Lord Chancellor, said, 1091 they are set up not in opposition to, but are complementary to the private profession. That complementary relationship is seen in a number of ways. One such way is when tenants and others who are subject to injustice start to take action and sue their landlords, or sue the suppliers of goods, and those defendants have to find lawyers to represent them. That is one element of the complementary relationship. A more healthy element is that the law centres cannot, and do not want to, cope with the vast burden of casework which their existence brings to light. So there is a very effective referral system between law centres and private solicitors.
My Lords, I recognise that my noble and learned friend cannot today provide answers or announce new schemes and frameworks. The point about making representations about machinery is, of course, that we are really not talking about machinery, but about money. In order for money to be provided, the machinery has to be there to administer it. I am impressed at the speed with which the noble and learned Lord is digesting the information coming to him, and I urge him to work it out and come to a view as soon as possible, because delay must continue to cause deprivation in many areas of this country. Through the framework of the urban programme (if that can be utilised) or through the implementation of a new scheme which could channel many people to law centres, thereby obviating the need to be dependent on difficult local authority and charitable finance, the indictment and the challenge presented by the Advisory Committee can be met. It can be met in a way which brings confidence and, indeed, a respect for the law to many people who do not now have that confidence or respect. My Lords, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.