§ 4.44 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones) rose to move, That the Legal Advice and Assistance Financial Conditions) (No. 2) Regulations 1977, laid before the House on 15th February, be approved. The noble and learned Lord said: My Lords, the two sets of regulations which I am about to invite your Lordships to approve are connected with each other, and with leave I will introduce them together. The Legal Aid (Matrimonial Proceedings) Regulations restrict the grant of legal aid in undefended divorce proceedings in England and Wales. The Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations increase the upper disposable income limit for legal advice and assistance from £35 a week to £42 a week, in this way making advice and assistance more widely available. They are both regulations which I have made under the Legal Aid Act 1974, but which require the approval of each House of Parliament before they can come into operation. They have already been approved in another place, and they now come before your Lordships.
§ My Lords, these regulations form the final stage in the implementation of my plan, which I first announced in the House in June of last year, to extend so-called special procedure and restrict legal aid in undefended divorce cases. I explained the proposals fairly fully then, but I hope that your Lordships will bear with me while I recapitulate them briefly. The first and major consideration is the overriding need to control the growth of public expenditure on civil legal aid, which has been rising rapidly in recent years. It increased from £11½ million in 1971–72 to £34½ million in the current year, 1976–77. In five years it has thus trebled in money terms and something like doubled in real terms. The Government decided some time ago that this increase could not be allowed to continue, and the White Paper on Public Expenditure, published last February, therefore announced that, by adjustments in the scope of the scheme and other economies, the Government intended to keep expenditure on civil legal aid level in real terms after this financial year. At the same time, 955 the White Paper envisaged that expenditure on legal advice and assistance (as opposed to the whole of legal aid for court representation), and on legal aid in criminal cases, would continue to rise in real terms, and be allowed to rise.
§ Although my paramount objective is to curb public expenditure in this field, there is another consideration which I have very much in mind. I am well aware of the need to improve legal services, and in particular to make the financial conditions of legal aid more generous so that more people can qualify. If possible, I should also like to establish a few more law centres in the areas of greatest need. Resources for these desirable purposes can be released only by reducing expenditure on other legal services. Fortunately, a measure is at hand which by a reform of divorce procedure offers the prospect of making the necessary reduction in the growth of expenditure on civil legal aid without, I believe, loss of necessary legal services to the public. At the same time it offers a fair, though I admit not certain, prospect of also releasing some further resources for desirable improvements.
The main step involved is the extension of the "special procedure". This amounts in most cases to postal divorce, to all types of undefended divorce cases. Under the special procedure, where the registrar is satisfied that an undefended case is straightforward, a decree is granted by the judge without the parties having to attend a hearing in open court. Special procedure already applies to some classes of undefended divorce proceedings, and, as the Solicitor General put it in another place it,
combines economy with humanity. It has rendered it unnecessary for thousands of people to appear in court and join publicly in the dissection of their dead marriage. It has also reduced the cost of proceedings in a major field of litigation, whether the cost is met by legal aid or by private funds"—[Official Report, Commons, 15/7/76; col. 1134.]
§ The Matrimonial Causes Rule Committee has now made the necessary amendments to extend the special procedure to all remaining classes of undefended divorce with effect from 1st April of this year. This means that the special procedure will now be available in cases brought on the "unreasonable behaviour" 956 ground and where there are children of the marriage under the age of 16. I should, however, make it clear that this will in no way diminish the rights and protections which the law confers on wives and husbands, and on their children. In particular, in every case where there are children under 16 the judge will continue to be bound by the statutory requirement to satisfy himself, before granting a decree absolute, that the arrangements proposed for the children are satisfactory or the best that can be made in the circumstances. He will normally do so by asking the petitioner to discuss the proposed arrangements with him informally in his private room.
§ My Lords, the effect of these changes which have been made is that in the vast majority of divorce cases which are undefended the court will grant a decree without a hearing in open court. It follows that there will be no need for legal aid for representation at such a hearing. Accordingly, legal aid can be withdrawn from the decree proceedings in all but a few cases. Legal advice and assistance will continue to be needed so as to provide the litigants with all necessary help and guidance in connection with the decree proceedings. Full legal aid will also continue to be needed for the ancillary proceedings concerning children, maintenance and property, which in most cases nowadays are, frankly, the only areas in which the issues arise. Nevertheless, the abolition of the hearing in open court on the decree, and the consequent restriction of legal aid, can be expected to lead to substantial savings in public expenditure.
§ The special procedure having already been extended, the two sets of regulations now before the House are designed to make the corresponding restriction of legal aid and extension of legal advice. The Matrimonial Proceedings Regulations provide, in effect, that full legal aid is no longer to be available in any undefended divorce cases which are brought under the special procedure. Regulation 2 provides that legal aid, as opposed to legal advice and assistance, may be given for the proceedings leading to the decree only where the case is defended, or where it is heard in open court (which may occasionally happen where there is some technical or evidential difficulty), or where the applicant suffers from some physical or 957 mental incapacity which makes it impracticable for him to proceed without legal aid.
§ Regulation 3 provides that full legal aid will continue to be available wherever necessary in all cases for ancillary questions, which I have mentioned, concerning maintenance, property and the arrangements for the children. It also provides that legal aid will continue to be available for applications for leave to present a petition for divorce before the expiration of three years from the date of the marriage, for, as I expect your Lordships know, a petition may be presented in those circumstances, within three years, only where a judge is satisfied that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. Legal aid will also continue to be available for an application for an injunction, or for the purpose of making or opposing any other application, or for satisfying the court on any other matter, which raises a substantial question for determination by the court.
§ In thus restricting the grant of legal aid for the decree proceedings in undefended cases brought under the special procedure, it has never been my intention to deprive divorcing couples of the advice and assistance which clearly are so necessary at a time of great personal stress and anxiety. I thought that I had made this clear last June. Nevertheless, I have received a number of representations against my proposals based on the misunderstanding that I had proposed to withdraw legal advice and assistance as well as legal aid. This is not the case, and the Financial Conditions Regulations now before your Lordships will help to ensure that all necessary help will be given to litigants who are in the unhappy position of seeking divorces. Under the statutory advice and assistance scheme, the solicitor will be able to provide all the necessary preliminary advice to his client, undertake negotiations with the other spouse on the various matters to be settled, draft the divorce petition and its necessary supporting documents and advise his client how to present them to the court and obtain the decree.
§ In order to ensure as far as possible that those who would formerly have been eligible for legal aid will in future be eligible for advice and assistance, the 958 Financial Conditions Regulations increase the upper disposable income limit for legal advice and assistance from £35 a week to £42 a week, in that way bringing it into line with the corresponding limit for legal aid. That is all that they do, and I hope that I may confidently assume that this increase in the scope of the advice and assistance scheme will be welcomed in all quarters of the House. I have also taken two other steps to ensure the continuing availability of necessary legal services in undefended divorce, which I ought to mention to complete the picture.
§ The first also concerns legal advice and assistance. Under the Legal Aid Act 1974, the solicitor cannot give advice and assistance in excess of £25-worth of work without the approval of the area committee of the Law Society. Hitherto, prior authority has had to be obtained in every case to exceed the £25 limit. However, I have now modified this requirement by other regulations, which are not before the House, which have enabled me to authorise the Law Society to notify solicitors in advance that approval will be given for work to be done up to £45-worth in undefended divorce cases where the work includes drafting the petition and supporting documents with a view to obtaining the decree. The £45 in itself is not an absolute ceiling. As at present, there will be no particular financial limit on the work which can be done where the area committee is satisfied in advance that the work is necessary. But the decision to allow up to £45-worth of work to be done in these divorce cases without prior authority will, I believe, save time and expense, both for the solicitor and for the legal aid administration. It will also indirectly, but significantly, help the clients.
§ My Lords, the other point which I should mention concerns court fees. At present, the court fees of divorce litigants who are legally aided are paid out of the legal aid fund. The effect of restricting legal aid, if no countervailing measures were taken, would be that the litigants would normally have to pay the court fees out of their own pockets. The fee on presenting the petition is £16, and on issuing a notice to proceed is £10. Plainly these are amounts that we could not require all litigants who are eligible for legal aid to pay. I have accordingly amended the Matrimonial Causes Fee 959 Order so as to provide that the fees shall not be payable by litigants in divorce cases who are receiving supplementary benefit, family income supplement or legal advice and assistance. The existing discretion to remit court fees in any other case where to require payment would cause hardship will also continue.
§ My Lords, I apologise for describing these regulations at such length, especially in view of the importance of the matters for discussion which are to follow, but as they form part of a plan which aroused a good deal of interest and some initial controversy in the legal profession, I thought it right to give a full explanation. They have been prepared in close consultation with all relevant judicial and professional authorities, including particularly the Law Society, which administers the civil legal aid scheme. Indeed, I should like to pay tribute here to the help which the Law Society have given in preparing the implementation of my proposals. My Advisory Committee on Legal Aid has examined the whole scheme in detail, and in their 26th Annual Report they concluded that in all the circumstances the restriction of legal aid in undefended divorce on the lines I propose is the only acceptable course.
§ In conclusion, my Lords, these regulations are part of a scheme which offers the best prospect of bringing expenditure on civil legal aid within manageable limits without damage to the public, and the only hope of releasing resources to make improvements in legal aid where they are most needed. The regulations are the result of long and careful consideration and consultation, and I commend them to the House.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, the noble Baroness may not do so at this stage. The Question must be put before anything else is done.
§ The LORD CHANCELLOR
My Lords, I venture to think that the noble Baroness was going to use the well-known formula, "Before the noble and learned Lord sits down…" Let us not dwell too much on technicalities. If the noble Baroness would like to intervene I shall gladly give way.
§ Baroness EMMET of AMBERLEY
My Lords, I should like to ask the noble and learned Lord whether this raising of the allowances from £25 to £45 would help in this particular instance. One is naturally concerned at the great increase in cost of legal aid. I am always interested in it. I heard of a Crown Court the other day where there were 18 adjournments, which is where a lot of the money goes. Would this extra £45 help, before it comes to the court, to reduce that figure?
§ The LORD CHANCELLOR
My Lords, I think that the provision I have made would be helpful in that case. If the noble Baroness has a particular case in mind perhaps she will let me know. I am sorry that she has got me and herself in trouble with the noble and learned Lord, Lord Hailsham. Perhaps he will forgive us both in the fullness of time.
§ Moved, That the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations 1977, laid before the House on 15th February, be approved.—(The Lord Chancellor.)
§ 5.3 p.m.
§ The Earl of MANSFIELD
My Lords, according to my recollection, the noble and learned Lord moved the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations but I think he has spoken to everything on the Order Paper which does not affect the noble and Learned Lord, Lord McCluskey. Perhaps it would be convenient if I do the same, and possibly go one further step by saying that I shall not bother the noble and learned Lord, Lord McCluskey, because, as I understand it, the regulations applying to Scotland bring that part of the United Kingdom into line with the rest of the country so far as these particular provisions are concerned.
§ Baroness PHILLIPS
My Lords, may I intervene? If we are to be precise in the Motions before the House, may I say that I do not think that the noble and learned Lord referred to the order concerning the judges. The noble Earl has just said, "all the orders".
§ The Earl of MANSFIELD
My Lords, if we are to be really precise, I am not "learned". The "Number of Judges" refers to Scotland; and I was being 961 precise. There is no doubt that when the noble and learned Lord, last June, announced the extension of the scheme originally propounded by my noble and learned friend Lord Hailsham and which has been described as "Post Office divorces" over a rather wider field—that is to say, in cases where, for instance, there are children of the family under 16—there was, I will not say "uproar" but considerable disquiet in a number of circles. They were not only legal circles but also included a number of worthy organisations who have the care and welfare of persons who find themselves in these unpleasing circumstances when their marriages break down. It is fair to say that that disquiet was not allayed until probably after the turn of the year. I think that the proceedings in another place and the very full account which the noble and learned Lord has given us this afternoon of what the regulations are trying to achieve will, to a large extent, allay whatever fears may still exist.
Taking the Matrimonial Proceedings Regulations—because they are really at the heart of the issue—I think the fears were that either a potential petitioner or a respondent (in fact, either of the parties to a marriage which has broken down) could, so it appeared at first blush, find themselves possibly without the advice or assistance of a solicitor at probably the one time in their lives when they need it most. It was that which caused the disquiet.
It is, I think, a matter of satisfaction, first of all, that the £25 limit is to be in certain circumstances raised to £45. It should be remembered that even if the advice which is given goes beyond that limit, it can be extended if the appropriate legal aid committee is consulted. If a person who falls within the financial criteria is in need of legal assistance, either as a petitioner or possibly, more importantly, as a respondent—and it may be that the noble and learned Lord did not mention that—he or she can get all the assistance they need always provided the local committee are satisfied that they need it. That, I think, is an advance.
So far as the actual regulations are concerned, as I appreciate, Regulation No. 2 is perfectly straightforward. I assume that subsection (2), the type of situation which is envisaged where a petition is directed to be heard in open 962 court, would be some sort of case where there may be doubt as to the domicile of the petitioner or whether the court was competent to hear the petition at all. I do not know; and perhaps the noble and learned Lord will reassure me on that point. So far as the Matrimonial Proceedings Regulation is concerned, it is vital that at any stage in proceedings where it is necessary for a court to do more than merely pronounce the marriage to be at an end, to dissolve it, the petitioner or respondent should be able to obtain legal assistance.
There is an interesting provision at the end of the Legal Aid (Matrimonial Proceedings) Regulations which says almost everything that anybody could want to hear. It says:…for the purpose of making or opposing any other application, or satisfying the court on any other matter, which raises a substantial question for determination by the court.The efficacy of that provision will depend entirely on who ever it is who has to decide whether the question for determination by the court is substantial. One wonders who is to be the person who makes that decision and what the noble and learned Lord the Lord Chancellor proposes to do, hopefully, to ensure that whoever does exercise that discretion exercises it in what I might call a benign fashion; because it is really the last reassurance which may be needed (if any is needed) that the position of people who are the subject of broken marriages is being cared for; but it could be detracted from if a rather hard line were to be taken by those who decide it Subject to what I have said—and I have raised only two very small points—I would imagine that this is a matter which we could say has now been successfully resolved.
§ 5.10 p.m.
§ Baroness PHILLIPS
My Lords, we are all grateful to the noble and learned Lord for presenting these three orders to us, and of course we would all agree with the idea behind them; namely, to control public expenditure in legal aid and, indeed, simplify regulations. The noble and learned Lord explained everything very satisfactorily. I have only one or two reservations. He said—I think I quote his words correctly—that he was instituting a few more law centres. Since the regulations come into effect fairly soon, I 963 am a little concerned whether we are going to give a great deal more work to the county court officials, and whether they are ready for this.
To the ordinary layman, the forms with which they are presented in any civil or, indeed, criminal litigation are always rather frightening. This was where legal aid and the solicitor were so invaluable. I am sure that the county court officials will be helpful. I am a little concerned that maybe we are ahead of this in that they will suddenly have a great avalanche of work. Will they be prepared for it, my Lords? We know that the noble and learned Lord is a humane and compassionate man and will recognise that this is a situation in life, among others, where one needs help, advice and sympathy. Therefore, I hope that he will bear this in mind when considering the implications of these orders.
§ 5.12 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, as my noble friend Lord Mansfield has dealt with the matter so fully, I do not want to prolong this debate, except for one or two matters. I will tell the noble and learned Lord frankly that I am not wholly reassured by what is being done. I should like to tell him, roughly speaking, why. Obviously in so far as he is shifting in effect from legal aid during the divorce proceedings to legal advice and assistance before them, I do not suppose that many people would unduly quarrel with what he is doing. Of course in itself that does not save any money. Legal aid and advice before the proceedings begin, on the assumption that the divorce is of the postal, undefended or unopposed kind, is very important because that fact will determine whether the right issues are formulated to the court, whether the petition is going to be opposed—and of course if it is opposed he is not saving any money at all, because legal aid continues to apply—and whether the right issues are going to be brought forward after the hearing.
If legal advice and assistance is going to be given on a scale which is adequate to ensure that not an undue proportion of new defended divorces appear on the scene, and the right issues are brought 964 before the court at, during and after the hearing, no one is going to complain. But if in fact that is going to take place I question how much money the noble and learned Lord is going to save. If, on the other hand, he is going to skimp on that stage, then he is going to find that more divorces are going to be opposed because the wrong points are made and because litigants in person have a tendency to ask for too much from their opponents—especially when they are embittered spouses—and he is going to find that the scheme is going to be wasteful of judicial time and not a particularly money-saving device.
I was concerned by what seemed to me to be his very easy assumption that it is a good arrangement for a circuit judge or a High Court judge, whoever is trying the case, to have a private interview in his chambers with one of the spouses, or perhaps both, without the assistance on either side of legal representatives. My experience of divorce proceedings is that legal advice in that conversation is almost always productive of time saving, and ensures that justice is done far better than anything else. A judge left to himself to have a private conversation with one of the litigants is not always likely, especially if his list is crowded, to identify the right points or to see that the right answer is given. These applications in chambers involve very difficult questions, even where the matter is not opposed, as to the rights of children who are not before the courts and not able to speak for themselves in a great number of cases, and as to the rights of women who are not always very good judges of their own financial requirements at the moment at which divorce is obtained. I have doubts as to whether this is humane, necessary or advantageous.
I am more than confirmed in my doubts when the noble and learned Lord frankly concedes that one of his objects in saving the money is to set up a number of new law centres. I am not opposed to law centres as such, but he is taking away money from something where the need has been established for something which is necessarily discriminatory, because the new law centres will be in only a very few areas of the country and will not be generally applicable to the community as a whole. If one is going to save money, the method which is generally 965 applicable and in force should be kept and the new experimental and discriminatory centres—at any rate in their first stages discriminatory—ought to be held over until the time when the financial situation is easier. I believe his priorities are wrong. I know that this order is going to be passed. It would be utterly wrong for this House to vote against a set of measures of this kind; it would throw the business of Government into confusion if one did so. But I must say to the noble and learned Lord that I realise he has probably acted under pressure from the financial authorities in the Government, with whom I also have sympathy, but I do not at the moment go along with what he is doing.
§ 5.17 p.m.
My Lords, I am confused about paragraph (ii) of Regulation 2; namely, about who may direct the petition in undefended divorce or separation and in what circumstances, and who may submit a prayer that such a direction be given. Similarly, I feel very strongly that the noble and learned Lord's heady reasonableness hides what I believe will be the horror that will result from these new regulations. Let us assume that a woman goes along in an urban area to a busy solicitor in order to obtain a divorce and is handed a lot of complicated forms. I have seen these forms and they are complicated. Let us suppose that she discusses these in the local "boozer" with her friends and then sends them back to her solicitor. The solicitor will probably hand them over to an articled clerk saying, "Deal with these". The forms will probably be sent back to the court improperly or erroneously filled in, and pieces of paper will be going back and forth for a very long time. I am certain that it will confuse the situation. Similarly, will the court officials be properly geared to handle the petitions as and when they come flowing into the courts?
§ 5.19 p.m.
§ The LORD CHANCELLOR
My Lords, I am grateful to your Lordships for what has been on the whole a welcome response to these orders, save for the qualifications which the noble and learned Lord, Lord Hailsham of Saint Marylebone, 966 has indicated. I assure him and other noble Lords that we have entered into most careful and prolonged consultations with all concerned with the carrying out of these proposals. The judges registrars and the officials of the courts have all assured me that they think that this "package", if I may so describe it, is a workable one and that it will be saving in public expenditure, which is of course one of the main objects of the whole exercise. I can assure those who still have their doubts that we believe that this "package" will not effect hardship or difficulty to those who are in the stressful period of seeking and bringing divorce proceedings.
I was asked some specific questions in a helpful speech from the noble Earl, Lord Mansfield. As to the circumstances in which a case would be directed to be heard in open court, I think the noble Lord himself identified them—cases, for instance, where the registrar was not satisfied, on the petitioner's affidavit, that she was entitled to a decree at all or, for example, as I think he suggested, where there was an unresolved question of the domicile, or where in a behaviour case the registrar might not be satisfied that the acts complained of amounted to intolerable conduct. That is the kind of circumstance that would result in the proceedings going to open court with full legal aid.
Then with regard to the provision in the general terms of Regulation 3 and the culminating words, of course the decision as to whether legal aid would be granted would fall to be made by the Legal Aid Committees of The Law Society; but The Law Society may, and often does, express general views about when it should be granted and I would expect a reasonable liberal interpretation of those words which provide so much discretion. I am extremely grateful to my noble friend Lady Phillips for her expression of reasonable satisfaction with what I have suggested, knowing, as I do, her intense personal concern for the welfare and happiness of all concerned in this field. I have had discussions personally with representatives of court staffs and registrars and they have satisfied me that they can cope with the additional work that will arise. I believe they will be able to cope. I do not think the burden on court staff will be affected a great deal by the additional procedures which I have indicated.
967 We are supplying a booklet for the guidance of petitioners in person, an explanatory leaflet, a specimen form of petition with notes for guidance and notices which the court will send to the petitioner, telling her at each stage of the proceedings what to do next. We are reasonably satisfied that those pro formas, plus the assistance the parties will get from the officers of the court, should enable them to cope satisfactorily.
On the question of savings, to which the noble and learned Lord, Lord Hailsham, referred, I believe there will be a substantial saving of money because the very simplification of procedure with which we are concerned here reduces the amount of legal services which need to be rendered. The lawyers will need to do less, even though they provide all the necessary preliminary advice and assistance, so there should be a corresponding reduction in costs. As I have said, I hope the savings will be such that not only shall I be able to make a significant contribution to the reduction in public expenditure—which I apprehend the noble and learned Lord, Lord Hailsham, would enthusiastically support—but I would hope, also, to be able to save a little to raise somewhat the level at which legal aid becomes available, and for the setting up of a limited number of law centres in areas of the greatest need where they can render the greatest service.
§ On Question, Motion agreed to.