HL Deb 28 October 1976 vol 376 cc740-8

8.48 p.m.

The LORD CHANCELLOR (Lord Elwyn-Jones) rose to move, That the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations 1976, laid before the House on 18th October, be approved. The noble and learned Lord said: My Lords, the purpose of these regulations is to increase the financial limits for legal aid in civil matters and for legal advice and assistance, thus making legal aid and advice somewhat more widely available. Under the Legal Aid Act 1974, this cannot be done unless the regulations are approved by Resolutions of each House of Parliament. The corresponding Scottish regulations standing in the name of my noble friend Lord McCluskey are in similar terms to the English ones, and what I say about the English regulations apply to the Scottish regulations.

However, there is one point which applies only to the English regulations, and this is that since I signed the Advice and Assistance Regulations, a printers' error has resulted in the word "capital" appearing immediately in front of the word "Act" in Regulation 3 so that it refers to the "capital Act". Indeed it is a capital Act, but I do not think we need introduce this adjectival reference into the terms of the regulations. So this word should be deleted.

Since 1973, the income limits for legal aid have been revised annually to take account of the annual increases in supplementary benefits. This ensures that the availability of legal aid is not eroded by inflation. The legal aid income limits were last increased in January of this year to take account of supplementary benefit increases which came into effect in November 1975. New regulations will now increase supplementary benefits again with effect from 15th November. The regulations embody a rise of about 16.5 per cent. in the ordinary weekly rate of shortterm supplementary benefit for a single person. The Legal Aid Regulations which I now commend to your Lordships make similar increases in the income and capital limits for legal aid, advice and assistance.

There are two sets of regulations to reflect the two branches of the scheme, one for legal aid and the other for legal advice and assistance. The Legal Aid (Financial Conditions) Regulations 1976 raise the lower disposable income limit for legal aid (below which no contribution is payable) from £570 a year to £665 a year, and they raise the upper disposable income limit (above which legal aid is not available) from £1,790 a year to £2,085 a year. The "disposable income" is a person's net income after allowances have been made for dependants and deductions for expenses such as income tax, rates, rent and so on.

These regulations also increase the lower capital limit (below which no contribution is payable) from £250 to £300, and the upper capital limit (above which legal aid is normally not available) from £1,200 to £1,400. This is the first increase in the capital limits since December 1972 and, although I do not suggest that, at 20 per cent., the increase compensates for the inflation since then, it represents a substantial improvement in these days of economic stringency. Therefore I hope it will he welcomed by your Lordships.

The Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations 1976 make parallel changes to those for legal aid. They increase the upper disposable income limit for legal advice and assistance from £30 to £3.5 a week, and the disposable capital limit from £250 to £300. These regulations must be read in conjunction with a third set of regulations I have made, which are not subject to Affirmative Resolution, but which come into force at the same time as the other regulations. These raise from £16 to £20 a week the lower disposable income limit above which a person in receipt of legal advice and assistance is required to pay a contribution. They also make consequential amendments to the scale of contributions for legal advice and assistance.

My Lords, the increases made by these regulations are the minimum necessary to keep the legal aid scheme in line with inflation. We cannot at present unfortunately afford to do more, but we cannot do less if we are to maintain the scheme at its present level. I believe and hope they are wholly uncontroversial and I have no hesitation in commending them to the House. I beg to move.

Moved, That the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations 1976, laid before the House on 18th October, be approved.—(The Lord Chancellor.)

8.53 p.m.

Baroness ELLES

My Lords, thy; House will wish me to thank the noble and learned Lord for his explanation of the proposed increases in income limits for legal aid and advice. I should like to tender to the House the apologies: of my noble and learned friend Lord Hailsham of Saint Marylebone who is not able to take part in this debate tonight. Regarding the limits which are reviewed annually, they show only too clearly—as thy; noble and learned Lord said—the erosive effects of inflation. The noble and learned Lord did not say that these were the effects from which this country had suffered in the past two years, and the conesquences for those whose incomes have been progressively reduced in relation to purchasing power.

The Act of 1974 laid down a figure of £1,175 disposable income as a maximum limit. In 1975 it was £1,790. Now in the regulations awaiting the approval of your Lordships, the maximum figure is £2,085, which is an increase of over 75 per cent. within two years. This figure, being disposable income, is of course less income tax and one or two other legitimate deductions. What we are seeing now with the high basic rate of tax of 35 per cent. is a single man with a gross income of under £3,300 a year, or just over £60 a week, who will be eligible for legal aid even if he has no dependants. With the high cost of litigation, we do not think that this is an unfair figure. Why, if income limits have been raised under Section 6, have the limits on capital been what I can only call so meagrely raised from £1,200 to £1,400? Although a person may have an income of nearly £60 a week gross, he may be refused legal aid if his disposable capital exceeds £1,400. That is not a very big figure by today's standards. Certainly if a man had to pay for his own legal aid or assistance, he would not get much for £1,400 these days. If anyone had the ill-fortune to be sued, possibly by someone entitled to legal aid, and was expected to draw on his capital, he would not be able to afford the defence which would be his right in the courts of this country.

Of course we will not object to the regulations tonight; I say that straight away. I would request the noble and learned Lord to look again at some stage at these capital figures, perhaps in the next review, to see whether a rather more generous attitude could be taken in this matter. This will affect a great number of people who need legal assistance and who will not now he able to get it. The increase of a maximum limit for eligibility for legal advice and assistance, which was raised from £24.50p, (the figure of 1974) to £35 a week, shows an increase of about 40 per cent., presumably to keep in line, as the noble and learned Lord said, with the increase in supplementary benefits which will take place on 15th November. By current standards, we entirely agree that 35 per cent. is not a very high sum; it is less than an unemployed man, married with two children, will be receiving weekly after that date.

It should be high time to see that these figures are reviewed to enable those who need free legal aid and advice to get it. We do not feel that the figures as they exist will provide the necessary assistance. We are well aware that we are faced with a regrettable conclusion that the urgent necessity to cut public expenditure, coupled with unparalleled inflation, will have the effect of depriving those who most need legal aid from being eligible. However, if it is possible, it is important to note whether the rise in the income limit will have the effect of including new categories of people eligible for legal aid and advice, or whether it merely reflects the increasing number of the poor in this country who are eligible because of their low incomes in relation to the cost of living. With nearly 3 million people on supplementary benefits, it is more likely, regrettably, to be the latter conclusion.

When the regulations were introduced last year in this House, the noble and learned Lord referred to a study being made concerned with financial provisions. We had an indication of the priorities which he had in mind in June of this year. Since he said last year that the regulations had to take consideration of the study, I thought it correct to raise some of the conclusions which arose from this study. They seem to involve a change in the use of resources from those who are in desperate need of assistance—in the case of those involved in undefended divorce in particular—to those who provide the services; that is, the neighbourhood law centres.

The noble and learned Lord announced that in future undefended divorce cases would not be receiving legal aid, but that the procedures would be simplified by means of pro forma I understand that this will take place in 1977. I can only say that, coming from such a humane person as the noble and learned Lord, I could not believe that he had really taken a final decision. If he has taken that decision, I can only assume that the Government have now given us evidence that deserted wives or husbands will be totally neglected and that the Government have given up all thought of ever considering the Finer Report on OneParent Families because any such decision would put the seal on its total disappearance.

It must be said that, despite systematic efforts and a successful attempt to eliminate and devalue the family as the basis of society at the expense of the State, surely there remain millions of people in this country who still care about the future of their children and about their children's well being. They want, even if their own lives are not successful, to do the best for their children and to preserve a home for them. At a time of acute emotional and financial disaster, the only person to whom one can turn is frequently the lawyer, an independent adviser who can give guidance and advice and who can represent them.

As I understand the statement of the noble and learned Lord, no legal aid certificate will be granted except by a registrar or a judge when the case comes before them. But what about the parties before then? I think the noble and learned Lord cannot be aware of the total despair of parties to a divorce when they are faced with these manifold problems before they come to court. I speak not only for deserted wives, but also for many fathers who have lost their jobs and their money trying to reach a reasonable settlement for the sake of their children before getting into the divorce court. Perhaps the noble and learned Lord will be able to put me right on this, but it seems to me that the withdrawal of aid is going to mean a fundamental change in policy and that the whole process of undefended divorces could be undermined. Surely these cases are defended only because the contentious matters—the children, the matrimonial home and the maintenance and all the human elements—are negotiated by solicitors and, if need be, counsel before the case comes to the court.

With all these matters, surely legal assistance is necessary. We are only too well aware, of course, of the incomes of people who are put into this position. It seems to me and to many of my noble friends that manifest injustice, great unhappiness and an increase in litigation with defended divorces will be the only result of this decision, if it is taken. Pro formas are no substitution for advice or guidance or a representative. Cases of this kind—and I should say that I was doing voluntary work for 15 years with oneparent families and therefore am myself only too well aware of the tragedies that can arise in these cases—are so often cases of emotional blackmail in a highly emotional time.

I very much hope that the noble and learned Lord will give very serious consideration to these matters before coming to this serious decision. It will particularly affect married women who, in nearly all cases, come within the legal aid limits. I happened to look up the average earnings of a woman nonmanual worker, and it is around £35 a week, which is well within the scale for legal aid. One must really ask: if this is a question of priorities, have the Government got their priorities wrong? Is legal aid for criminals more important than legal aid for husbands and wives with children? What is the priority that puts criminals before families? I think it would appear that the Government have got their priorities in the wrong order.

Obviously there will continue to be a great deal of hardship or injustice, and those who will come off worst most certainly will be not only the innocent victims of litigation by those who are supported by legal aid, but also those who arc in desperate need of legal advice in the matrimonial cases to which I have referred. Having said all this, I very much hope that the noble and learned Lord will listen very carefully to these arguments and will reconsider his decision about undefended divorce cases. Apart from these points, we can see no reason why these regulations should not pass.

9.6 p.m.


My Lords, I am naturally grateful to the noble Baroness, Lady Elles, for having Signified her approval to the improvements in the financial arrangements which are provided for in these two sets of regulations. She has extended the scope of the discussions over the field which we discussed in considerable detail in the House a few months ago when, if I may say so with great respect to her, we traversed the various matters she has raised over my proposals with regard to the extension of special procedure to undefended divorces, which will have the result of making court appearances not necessary in the bulk of undefended proceedings and therefore legal aid in court would seem to be rendered superfluous.

However, I ought to emphasise that on the important matters related to the children of the family if there is a dispute, and in regard to issues arising from financial arrangements resulting from the breakup of the marriage, legal aid will continue to be available for those areas which are the really disputed areas in matrimonial differences. What I have strongly emphasised previously is that in regard to the preparation of the petition legal advice under the green form scheme will be available. Indeed, I have made it clear that when the proposals that I have made are introduced—I may say I am still in discussion over their detailed provisions and am very willing to consider the observations made by the noble Baroness tonight—and take effect, I propose to raise the financial limits in respect of legal advice to the same limits as exist with regard to legal aid. That will at least be of some assistance, but I can assure the noble Baroness that I am deeply conscious of the problems which arise. She also will know that we are facing the serious necessity of reducing public expenditure.

I was interested to note that, while the noble Baroness doffs her hat, if that is an appropriate metaphor, in the direction of economies in public expenditure, she is urging me to increase it in this field. However, we will do our best. I have indicated that from the economies which we hope to make by removing legal aid for undefended cases, I hope to be able to do two things: first, to raise the financial limits—and I agree with the anxiety which the noble Baroness has expressed about that—and, secondly, to provide more finance for law centres, which I regard as performing a very important legal and social service to the community.

With regard to the regulations which we are adopting—and I say this without any complaint that a wider range of issues has been raised—all the legal aid financial limits are under constant review and, as I have previously said in the House (and I did so in the debate on 15th June) I regard a substantial rise in the financial limits as a first priority. With regard to the question which the noble Baroness asked me, the effect of the rises which these regulations bring about is not expected to bring new sections of the population into the scheme, but here, again, I hope to do so as soon as resources permit. However, here we are up against the brutal facts of our economic situation. I greatly wish that I could do more, because I regard legal aid advice and assistance as an absolutely crucial social service, which I have urged throughout the time that I have been connected with this subject, ever since I was party in another I place, with Sir Hartley Shawcross as he then was, to introducing the original scheme. However, I am grateful for the support which the noble Baroness has given to the two Motions, and I hope that the House as a whole will give them a fair wind.

On Question, Motion agreed to.