§ 6.25 p.m.
§ The LORD CHANCELLOR
My Lords, we now move to somewhat less controversial territory, namely, the Legal Aid Bill, the Second Reading of which I now move. This Bill will enable me and my right honourable friend the Secretary of State for Scotland to make better use of the money which is available to pay for the civil legal aid scheme. I emphasise that in this debate we are solely concerned with the civil legal aid side. It will also enable me to simplify administration and make it easier for people to obtain legal representation. It is an essential part of the package of improvements in the financial conditions for legal aid, advice and assistance which I referred to on 14th November when moving the resolution to approve the Legal Aid (Financial Conditions) Regulations 1978.
It is now nearly 30 years since the passing of the Legal Aid and Advice Act under which the present civil legal aid scheme was set up. During that time nearly 3 million people have been granted legal aid certificates to enable them to pursue their rights through the courts. I recollect, as I was in another place at the time, that when the original Bill was introduced it was described as a Bill which would open the doors of the courts freely to all persons who may wish to avail themselves of British justice, without regard to the question of their wealth or ability to pay. There is no doubt that the scheme has opened the doors, but of late it could be argued that they have not been opened widely enough.
Over the years since the civil legal aid scheme was started, the demand for legal 894 services has increased while economic circumstances have, unfortunately, meant that the resources available to meet that demand have not always increased correspondingly. In 1950 the cost of the civil legal aid scheme in England and Wales to the taxpayer was about half a million pounds. It is now £44½ million. Despite this enormous increase in the money made available from public funds, it has not always been possible to maintain the coverage of the scheme in the face of inflation, although in recent years Governments have more or less succeeded in doing so.
I think that it will be common ground to say that it would not be right to make fundamental changes in the arrangements for legal aid while the Royal Commissions on Legal Services are considering the arrangements for legal services as a whole. This Bill and the other measures which I have mentioned represent a serious effort to open the doors to justice as widely as possible in present conditions.
My Lords, I should like to begin by outlining my proposals for improving the financial conditions for legal aid, advice and assistance, and then indicate the essential part of this Bill in the package. I propose to lay regulations which will, together with this Bill, achieve a significant improvement in the coverage of legal aid. At least 70 per cent. of households with two parents and two children will become eligible for legal aid, advice and assistance, and well over 30 per cent. will get it free.
The regulations I propose will increase the limit above which one ceases to be eligible for free legal aid from a disposable income of £815 to a disposable income of £1,500. I should point out that disposable income means income after tax, rent or mortgage and other necessary expenses such as travelling to work, have been deducted and allowances made for dependants in the form of further deductions. They will also increase the limit above 895 which one ceases to be eligible for legal aid from a disposable income of £2,400 to £3,600. The limits for capital are to be increased as well. The free limit will be increased from £365 to £1,200, and the eligibility limit from £1,700 to £2,500. These changes will be accompanied by increases in the allowances for dependants when assessing disposable income to take account of the commitments they involve.
Regulations will also improve the limits for advice and assistance—that is, separate and apart from legal aid. The free limit will be increased from a disposable income of £25 a week to £35 a week; the eligibility limit will be increased from a disposable income of £52 a week to £75 a week, and the capital eligibility limit will be increased from £365 to £600. Those figures are in respect of advice and assistance.
The Bill will enable us to reduce the amount of a person's legal aid contribution by regulation and we intend to use this power to reduce the contribution fraction from one third to one quarter. Thus instead of a person's contribution being one third of the difference between the free limit and his disposable income, it would only be one quarter. Clauses 4 and 9 of the Bill, which achieve this for England and Wales and Scotland, are therefore a very important part of the package. It is no use being eligible for legal aid if one cannot afford to pay the contribution.
I would hope to bring the regulations improving the legal aid limits and the allowances for dependants into force at the beginning of April of this year and to make regulations reducing the amount of contribution payable as soon as possible thereafter. The Bill is therefore urgently needed and I hope that it will be given a speedy passage through both Houses.
The advice and assistance scheme is the subject of the other important change made by the Bill. At present, legal representation in court is, subject to one exception to which I shall refer in a moment, available only under a legal aid certificate. A legal aid certificate can only be issued after an applicant's means have been assessed by the Supplementary Benefits Commission and the merits of his case considered by the Law Society. 896 It costs quite a lot for the Supplementary Benefits Commission to assess an applicant's means and for the Law Society to issue a legal aid certificate. This is money well spent in the case of proceedings costing hundreds of pounds. It is not well spent where they cost under £100 and the contribution actually retained is a fraction of that sum.
Indeed, one of the objects of the measures with which I am dealing is, so far as possible, to reduce, or at least to contain, the high cost of assessing applicants' means by reducing the need for the SBC to do so, and by simplifying the procedure itself. Last year, it cost nearly as much to assess applicants' means for legal aid as the Legal Aid Fund received in contributions retained. However, it must be remembered that the cost of legal aid would have been higher if applicants' means had not been assessed by the SBC. The value of assessment procedures must be considered in terms of fraud prevention as well as of contribution retained. However, assessment procedures must be appropriate to the circumstances of the case. Expensive procedures must not be used where the cost of proceedings is small and the safeguards are adequate.
The procedure whereby legal advice and assistance are made available provides us with a satisfactory alternative. In the case of advice and assistance the client's means are assessed by his solicitor. If he is eligible, the solicitor may advise or assist him. Provided that the cost of that advice or assistance does not exceed a specified limit—presently £25—the solicitor may without prior authority from the Law Society send the bill for his costs, less any payment due from his client, to the Law Society which then pays it out of the Legal Aid Fund.
That procedure is not only economic and efficient where relatively small sums are involved, but it is also convenient for the solicitor and his client. They do not have to wait for an assessment by the SBC or a legal aid certificate, but can get down to business straight away. Unfortunately, as the law stands at present, representation is available under the advice and assistance scheme only at the request of the court. It is therefore necessary to change it and that is what Clause 1 does 897 in respect of England and Wales and Clause 6 in respect of Scotland.
Although the objective is simple, it cannot be achieved without some complicated consequential changes as reading the Bill, I fear, shows. The advice and assistance provisions which were introduced in 1972 were not designed to cover representation, and it is necessary to ensure that the necessary adaptations will cover all relatively inexpensive proceedings whenever they may occur.
The first use which I would intend to make of the regulation-making power conferred by Clause 1 would be to make available under the advice and assistance scheme legal representation in matrimonial proceedings in magistrates' courts. Wide regulation-making powers have therefore been taken. That, and the need to adapt the advice and assistance provisions to representation, has produced, as I have said, a slightly longer and more complicated Bill than I should have liked. Minor and technical consequential amendments to existing legislation have tended to obscure the purpose of the Bill—namely, to contribute to the improvement of the financial conditions for legal aid and make representation available under the advice and assistance scheme.
Before dealing briefly with the remaining provisions of the Bill, I should like to say something on the position with regard to law centres. When I moved the increases in legal aid limits last November, I said that I intended to include in my package of improvements to the legal aid scheme some "modest reinforcement" for law centres. Law centres are able to make a valuable contribution, especially in inner urban areas, where there is a severe shortage of solicitors, and I am in no doubt that more centres would improve the quality and availability of legal services in those areas. It is there that additional facilities are most urgently needed to ensure that all sections of the community have adequate access to legal advice, assistance and advocacy, and are able to take advantage of the rights that Parliament and the law have provided. The extension of legal services in this way, is, I believe, a matter of justice, in the sense of giving equal access to the law to all. Experience in recent years has shown that law centres are best able to help in the fields of housing, social security and employment.
898 As the House will know, we are expecting later this year, the report of the Royal Commission on Legal Services and I do not think that it would be right for the Government to embark on any major initiative while the Commission's report is awaited. I am, nevertheless, aware of the growing number of groups which are anxious to embark on law centre projects and are urgently in need of financial support. That is why I am proposing some additional expenditure on law centres. The money will be available as short-term support for both new and existing projects. I very much regret that I am unable to devote more to them. It is all that I can afford.
Turning to the remaining provisions of the Bill, the most important is a power to require different maximum contributions in different classes of case. This is contained in Clause 4 for England and Wales and Clause 6 for Scotland. A power is necessary to deal with those classes of case where, after litigation has been concluded, in practice a majority of contributors receive their contributions back, their cases having been won. The amount returned is substantial. Since legal aid began, contributions amounting to £56 million have been received in England and Wales, of which £30½ million were retained and £25½ million returned to contributors.
There is one class of proceedings where contributions are returned in 90 per cent. of the cases; that is, in personal injury cases. Here it seems to be a waste of time to collect substantial sums of money by way of contribution only to return them to contributors at the end of the day. Indeed, this requirement works particular hardship where there is difficulty in meeting contributions, and people may be deterred from bringing proceedings altogether. Worse still, where children are injured there are a limited number of cases where parents are reluctant to co-operate with contributions and their children's proceedings may suffer in consequence.
A small fixed contribution will not, of course, affect the operation of the Law Society's charge, which will continue to operate on any damages received. Where an offer is unreasonably refused, costs will not be recovered and the assisted person will have to meet them out of his damages.
899 Clause 2 simplifies the machinery for prescribing different prospective limits on the cost of advice and assistance. This power will be needed more often if limits have to be adjusted to the cost of representation in different types of proceedings. Clause 3 provides for the prescription of increased payments where the financial limit for advice and assistance has been exceeded substantially as the result of representation or assistance. Clause 5 makes consequential adjustments to the operation of the Law Society's charge. Clauses 6 to 10 make corresponding provision for Scotland.
Of the remaining provisions of the Bill, your Lordships may like to note Clause 12(2), which applies the Scotland Act 1978—under which legal aid, advice and assistance are devolved matters—to the Bill. There are also a number of minor Amendments set out in the first Schedule; they are either drafting Amendments, which could not be taken into account when legal aid legislation in England and Wales was consolidated by the 1974 Act, or are minor improvements. They include a discretion to depart where appropriate from the existing link with the rules for the calculation of entitlement to supplementary benefit, increased fines and a technical extension of the terms of reference of my Legal Aid Advisory Committee to cover recommendations relating to the administration of legal aid generally. Similar changes are made, where appropriate, to the Statutes applying in Scotland.
Finally, it would certainly not be right for me formally to move that the Bill be given a Second Reading without paying a tribute to the work of the noble Lord, Lord Hamilton of Dalzell, and his committee, who advise me on legal aid matters. The measures which I have announced are, indeed, largely based on their recommendations. They have put an immense amount of work into them and I hope they will feel that their efforts have been rewarded when I say that their advice has been invaluable not only in the task of opening the door to justice wider than before, but also in seeing that it is not blocked by unnecessarily complicated procedures. I am most grateful to the noble Lord and his committee. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 6.45 p.m.
Viscount COLVILLE of CULROSS
My Lords, I would certainly agree with the noble and learned Lord that, in advance of the report of the Royal Commission, one should not embark upon major alterations in the system of legal aid. Some of your Lordships might have been forgiven if, upon first perusing the somewhat bleak text of the Bill, your comprehension was temporarily delayed whether or not this was happening. However, I understand that this is bound to be a technical subject and, of course, it must be drafted in a technical manner.
Consequently, I am sure that the House and those interested in this subject outside the House will have been particularly grateful to the noble and learned Lord for the explanation he gave. Not only did he have an opportunity of explaining the Bill, but he has now outlined—I think for the first time—the rest of the package of which he gave us foreknowledge on 14th November last. He has told us not only what is in the Bill but, very much more importantly, the new limits and alterations that he is proposing to make by way of regulation in due course. He also said a few words about the law centres. Those we shall deal with when the regulations come before Parliament. However, I think I should at once say to the noble and learned Lord that the serried ranks of those sitting on this side of the House—indeed, on all sides of the House—will not wish to delay by one minute the passage of the Bill.
It must be beyond Party politics that the proper administration of justice needs not only the original legal aid that was introduced in 1949; we have now discovered that it also needs the younger sister called "advice and assistance." I am not quite sure whether, in fact, we have added a third member to the family here, called "assistance by way of representation." Perhaps we have almost done so. However, if that is a happy event in this family, it seems to me to be a good thing and one which we should all welcome. I cannot take the metaphor any further, but as between the different schemes and the different adaptations of the system, I agree that there should be the greatest possible 901 degree of flexibility according to the infinite variety of cases that fall to be considered.
It must also be true that, as in the case of so many other numerical and financial limits which we have in modern legislation, Parliament cannot accommodate within its timetable substantive legislation which amends for inflation or for adjustments which are based on experience or on policy. Thus, we must have these regulation-making powers, some of them in this Bill being subject to Affirmative Resolution—I think that most of the changes in limits which the noble and learned Lord has just announced will, in fact, have to be debated in both Houses—others under the legislation being subject to the Negative Resolution procedure. In fact, the Bill takes the process even further than it has gone before, because I think the last matter of substance that required legislation to change it has now been made subject to regulation-making powers.
If one looks at the English statute on this—the Legal Aid Act 1974—which was a consolidation measure, one sees that under every one of the first 19 sections, except under Section 10, there are powers to make at least one set of regulations or, alternatively, to operate by way of scheme, rules of court or, subject to the noble and learned Lord the Lord Chancellor's determination, direction or approval. There is very little substantive law left in the Act itself. Of course, the Bill adds further to regulation-making powers.
Even before I heard the speech of the noble and learned Lord, I understood—I hope correctly—that the purpose was really twofold: to stretch as far as may be possible the fairly limited financial resources that are available so as to assist, in so far as we can, all the deserving cases. Of course, it is for any Government to decide what amount of finance is to be put into this branch of public expenditure, whether by way of legal aid itself or advice assistance, or by way of help to the law centres.
These are fairly substantial increases that the noble and learned Lord has announced. I suppose it will only be after the passage of time when some statistics have come forward that we shall be able to see whether, with the counter adjustments, the cheapening of various 902 other processes under the package deal that is being put forward, public expenditure is being wisely and properly expended. I certainly would not wish to throw criticism in advance upon the changes that have been announced today. Inflation has been enormous, incomes and disposable incomes have gone up colossally, and I should think that a fairly substantial change in this field is probably due.
Not only was that the prime object of the Bill, but I also understood that the attempt was being made to provide the right sort of assistance for every given occasion; not the more expensive legal aid if assistance by way of representation would do, and vice versa. We are also very anxious to ensure that where threshold of income or of capital, which are bound to be arbitrary, happen to occur in the case of any individual, those who are just on the wrong side do not suffer disproportionately; and that is something else that the noble and learned Lord is proposing to do.
Of course, it is only right that precisely the same rules should be made for Scotland as are to be made for England and Wales. If the matter becomes devolved, well, at least in Scotland they will start off level pegging with what happens South of the Border. The Statute is the frame-work alone. All we are here doing is a little carpentry to it, and it is when we come to look at the regulations themselves in due course that the detail and the important features of the picture will be filled in.
There were two things I wanted to ask the noble and learned Lord. One of them arises out of what he said about the way in which the disposable income, and also the capital, will fall to be assessed under the assistance by way of representation scheme. He pointed out that this is done at the moment by the solicitor. The solicitor has guidance in this, I should think, not very easy task in the Schedule to the Legal Advice and Assistance Regulations 1973. Of course the amounts are small, although they are to be increased, as we have heard.
I wonder whether the noble and learned Lord is able to say anything about this. Since that system has been in operation from 1973 onwards experience must have been collected of how it works in practice; whether indeed frauds are detected and 903 whether it is a satisfactory sieve through which to pass the various applicants in these smaller cases. I note that he is now extending this, because of course even if the representation is going to cost more than the basic limit of £35 it will still be the solicitor who assesses the financial characteristics of the applicant.
In the 14th paragraph of Schedule 1, which the noble and learned Lord mentioned, there is an indication that we may be going to depart from the strict application of the rules applied by the Supplementary Benefits Commission. I wondered whether this was an indication that the Government were thinking that the moment had come to move cautiously forward in the direction of allowing the solicitors, subject to the Area Committees set up by the Law Society, to do more and more of this difficult and expensive work at present carried out by the Supplementary Benefits Commission. Can he say whether the experience so far has been satisfactory in this respect so that we would be justified in exploring this, since, as he said, it must be an expensive process to go to the Supplementary Benefits Commission and probably only justifiable where the amount of money and the importance of the case is of very great substance. We plainly could cut back on public expenditure if this is a satisfactory way of checking the means of the applicants.
The other thing that occurred to me as I read through the material presented in this Bill was the question of consolidation. Of course this does not solely depend on the consolidation of statute law because, as I said, there is mainly a succession of regulations and subordinate instruments which make the changes. I have been very kindly lent a copy of the Legal Aid Handbook, which must be the bedside reading of every solicitor who is engaged in legal aid advice and assistance. The last edition was published in September 1976. It is a truly admirable book for those who wish to understand this subject. Since, there was in 1976 at least one set of regulations made; in 1977 in England and Wales there were 12 sets of regulations and in Scotland seven; in 1978 I think there were four in England and Wales, and four in Scotland; already this year there has been 904 one in England and Wales, and now we are promised I would think something like half a dozen more at the beginning of April. In addition there have been amendments to the Act itself in England and Wales by the Administration of Justice Act 1977, and there have been amendments to the legal aid scheme.
That I have discovered with the assistance of your Lordships' Library and by knowing my way round the Printed Paper Office. These facilities are not available to any solicitor even probably in the middle of a large city, and certainly not in the country areas. If consolidation gets very far behind the inevitable spate of subordinate Instruments that come out, I am afraid that from the practitioner's point of view these changes will be missed and mistakes will be made. This may be even more important if, as I have suggested before, it is the solicitors who are going to be doing a good deal of the assessment of incomes and capital, because some of the amendments of course go to that very matter and the regulations that govern it.
Finally, I would suggest to the House and to the noble and learned Lord that the corollary of the flexibility that he is asking for in these further amendments and removals of inhibitions in the Bill, the increased ability to adjust as often as may be needed, is a requirement that we should have as often as possible up-to-date texts readily and quickly available so that all can see exactly what is the latest state of the law on this subject. I do not know again whether the noble and learned Lord could comment on that, as I believe, not unimportant matter. It does not go to the substance of the Bill, and neither does the other matter I raised; and all I can say in conclusion is that I would join in wishing this Bill a swift passage so that we may proceed along the lines that nobody would doubt are needed.
§ 6.58 p.m.
§ Lord FOOT
My Lords, I was asked by the noble and learned Lord, Lord Gardiner, to tell the House, and indeed in particular the noble and learned Lord who sits on the Woolsack, that he very much regretted that he had to hurry away after the last debate to attend a meeting of, I think, Justice. He asked me not only 905 to convey to the House his regret at not being able to be here, but also to convey to the Lord Chancellor his great satisfaction that this Bill had been brought to this House.
I shall not detain the House for more than a minute or two because it is perhaps unnecessary to say very much about the Bill at this stage. It would be a great mistake to conclude from the rather scanty House this evening that this is a matter of concern only to lawyers. It is very much more a matter of concern to the ordinary public. This, I imagine, is the most substantial step forward that has been taken in the field of legal aid since the original Legal Aid Act 1949.
When I was trying to think of what I might say today it struck me that the Bill had two defects, if the Lord Chancellor will permit me to say so. One of them is what the noble Viscount, Lord Colville of Culross, called the rather bleak terms in which the Bill is written. Indeed, I would go so far as to say that if one read the Bill as a piece of consecutive English prose it is well nigh incomprehensible, and certainly I do not think it would be recommended, even by the Lord Chancellor and even to lawyers, as the bedside reading about which Lord Colville was talking.
The second defect of the Bill is that until the Lord Chancellor told us a few moments ago what his regulations were going to contain we had no knowledge whatever of the benefits that would be given to us by the Bill or the scope of it, or indeed how far the promises that had been made would be fulfilled. The difficulty we faced in not knowing what the regulations were to be was not cured even by the Explanatory Memorandum, which says, for example:Clause 1 extends the provisions of the 1974 Act relating to advice and assistance so as to permit assistance by way of representation in circumstances to be specified in regulations".While that is immensely encouraging, it is wholly uninformative. Thus, we had to wait for what the noble and learned Lord told us to know what the Bill really means. When the noble and learned Lord commended it to us, I thought I understood for the first time what Robert Browning was talking about when he spoke of greeting the unseen with a cheer: that is certainly the mood in which the 906 House received the Bill from the noble and learned Lord's hands today.
As a result of that, until the Lord Chancellor explained to us the details of the recommendations and the figures of the matter, we were in the position of being faced with a debate in which we could not know what we were talking about. Happily, that has never proved an inhibition in your Lordships' House, nor prevented noble Lords from taking a full part in the discussion. I am not worried about those two defects because, when we had the debate on 14th November of last year on the temporary regulations which the noble and learned Lord was then introducing, he promised that in this Bill there would be comprehensive and significant improvements, as he put it, and, because I have always a touching, indeed childlike, faith and trust in the noble and learned Lord, I was quite confident that the regulations, when they eventually saw the light of day, would fulfil our wildest expectations. And so it has proved.
I noted the figures as the noble and learned Lord gave them. It would not be possible for me to express any view about the detail of those figures at this stage, but we shall of course have the opportunity of discussing them in proper detail in Committee and when we have the regulations for our approval. It will be time enough then to consider the detail of the thing; meanwhile perhaps I may ask that for what we hope we are about to receive the Lord may make us provisionally thankful.
§ 7.5 p.m.
My Lords, it seems to me, in view of the few noble Lords present, that the importance of the subject we are debating is not fully appreciated, and that is a great pity. I say that because in my view it is a very important one and, as will be clear from what I am about to say, one which has been under consideration in the solicitors' profession for many years. However, at the outset I wish to say that we are greatly indebted to my noble and learned friend the Lord Chancellor for the keen interest he has taken and is taking in this important subject and for the comprehensive speech he made.
I appreciate that it is difficult, even for us as lawyers, to understand at short notice 907 the full extent of it but, as I shall explain, I have been in touch with the Law Society about their views on the matter; they have certain information which may be of interest to the House. I would comment in passing, as a member for about 40 years of the Consolidation Committee, to which reference has been made, that, as and when we get the report of the committee and discuss it further, it will be essential to have a consolidation Bill. The trouble is that if we had a consolidation Bill at the present time it would mean having another consolidation Bill, and I hope that within a short time of getting the report of the Commission we shall further discuss the matter fully.
Viscount COLVILLE of CULROSS
Perhaps I may intervene simply to make myself clear, my Lords, because I understand the point the noble Lord, Lord Janner, is making, having myself served on that committee. In this case, I think it is probably consolidation of the regulations that is needed, and that does not have to go before the committee.
I am sure the noble Viscount understands what I was driving at, my Lords. I do not want the Consolidation Committee constantly to be changing Consolidation Acts. I thoroughly agree that it is highly essential, particularly from the solicitors' point of view, that we should have the law contained in a clear form. I believe our thanks are also due to the Government for the steps they are proposing, as outlined by the Lord Chancellor.
Commenting on the Bill, I wish to refer to what I consider to be a useful perspective based on a traditional and ethical approach. That may sound a little far-fetched, but I think I shall be able to explain what I mean to the House and, while it may not appeal to everybody, it certainly appeals to me. First, however, let me recall that I remember the extremely serious position in which clients were placed in so many cases during the first 30 years—the first half—of my practice in the law. Even if a person, having taken legal advice, had a substantial chance of being successful in pursuing a claim by way of litigation, he was in many cases unable to do so because of financial difficulties.
908 I should like the House to take note of this because time and again, both here and in the other place, people comment on the solicitors' profession in terms which are certainly not justifiable. When they attack the profession they do not realise what it actually does. The noble and learned Lord of course knows that it serves an extremely useful purpose.
The effect of the changes is to make very substantial increases to the upper and lower financial limits for legal aid. I want to comment upon what the Law Society considers to be matters of importance. The allowances for dependants which are deducted before computing an applicant's disposable income are to be increased. At the same time, the assessment of an applicant's resources by the Supplementary Benefits Commission is to be simplified, as we understand it, so as to remove in most cases the necessity for an interview. This is a desirable reform because, as my noble and learned friend the Lord Chancellor said, it will cut down the time taken to grant legal aid, which at present is rather lengthy.
Your Lordships will recollect that Magna Carta stated:To no man will we deny, to no man will we delay justice or right".Even in the Middle Ages steps were taken to help poor litigants, and the legal profession has a very honourable record of doing this on a charitable basis over many centuries. When the Legal Aid and Advice Bill was introduced into the House of Commons in 1949, its sponsor, the noble and learned Lord, Lord Shaw-cross, who was then Attorney-General, claimed that it would open the doors of the courts of justice to the little man and bring about equality before the law. That did not happen at all adequately—far from it. It was only in 1956 that legal aid was made available in the county courts, and only in 1960 that the pink form advice scheme came into operation. (The form contained particulars which every interested lawyer knew about). As the noble Lord, Lord Foot, reminded the House, in 1950 80 per cent. of the population were eligible for civil legal aid The proportion has now come down to under 25 per cent. There are authentic cases, some of which were presented on a television programme about a year ago, of people of modest means, with 909 very modest savings, being outside the scheme on financial grounds. Even people on social security have been excluded, many having found that the contributions required were beyond their means.
In my view, the Bill will bring about a substantial improvement in this unsatisfactory situation, and I gather that about 65 per cent. of the population will become eligible for civil legal aid, and that the contributions which so often in the past have been too great for many people to meet, will certainly now be far more reasonable. Some may say that this is a bonanza for lawyers: In fact, civil legal aid work, particularly in the county courts, is barely remunerative. I do not know whether the general population realises that, but it is a fact. It may be that lawyers whose practices deal only, or in the main, with legal aid cases make a living from such cases, but I can assure your Lordships that there are very few solicitors—and I think that this applies to the Bar, too—who make much from the work which they voluntarily and willingly take on under the scheme.
The Bill makes access to the courts of justice possible for many who have been denied it. It brings equality before the law closer, but this idea which was proclaimed in Magna Carta will not be fully achieved, even with the benefits that will come from the passage of the Bill, which I hope will receive the unanimous support of the House.
I have been in touch with the Law Society regarding the contents of the Bill, and I endorse heartily what the Society feels about it. Substantial increases are to be made to the upper and lower limits for legal aid, which are rather low at present. As a broad generalisation, it is believed that a man with a wife and two children and average commitments for housing will be eligible for free legal aid up to a gross income of about £100 per week. At the other end of the scale, a man with similar dependants and housing commitments appropriate to his gross income, will probably get legal aid, subject to contribution up to a gross income of between £9,000 and £10,000 a year, and in some cases even above that.
I do not wish to detain the House much longer, but perhaps your Lordships will 910 allow me to say a little more about what the Law Society thinks about the Bill. Clause 4 contains an important provision which permits my noble and learned friend the Lord Chancellor to prescribe by regulation the maximum contribution required of an assisted person. This will give effect to the intention announced in his 14th November speech to reduce the fraction of a person's disposable income which is taken by way of contribution. At present this fraction is one third, and we understand that it is intended to reduce the fraction to one quarter. The combination of the raising of the lower eligibility and the reduction of the fraction will have the effect of reducing substantially the contributions which people are requested to make. At present, there are many anomalous cases and, for example, even some people dependent on welfare benefits are required to pay a contribution beyond their means.
I believe that, upon examining the other clauses as well, the House will agree that the Bill provides a very useful contribution to the advancement of legal aid. Along with the Law Society, I sincerely hope that the Bill will become law by the end of March, so that the new financial conditions can be brought into operation in April. I am quite sure that those noble Lords at present in the House will agree that this should be done.
§ 7.20 p.m.
§ Lord HAMILTON of DALZELL
My Lords, I should like to thank the noble and learned Lord the Lord Chancellor for his kind reference to the work of the Lord Chancellor's Advisory Committee on Legal Aid, of which I have been chairman for the past six years. In that time I have been responsible for the last six of its annual reports, in each of which we have urged on the Lord Chancellor of the day various ways in which the Legal Aid and Advice Scheme might be improved. We have had some successes, but regularly we have come up against the stumbling block that some of the improvements which we have recommended could be achieved only by legislation, for which Parliamentary time could never be found. Others involved extra money, to be added to the cost of the scheme, which was in any case increasing rapidly year by year, and we never got very far with them either. Then, any prospect of early 911 action seemed to become even dimmer when the Royal Commission on Legal Services was appointed. Assurances were given that it would not be necessary for all progress to be halted until after it had reported, but to me, at least, it seemed possible that we should not see anything much in the way of change until the Royal Commission's findings were made known.
So, my Lords, my Committee was delighted to learn last autumn that there was a chance of getting a Legal Aid Bill in this Session. This was confirmed in the gracious Speech, and on 14th November the noble and learned Lord announced his intention to introduce a package of improvements, including a Bill to provide those parts of the package which would require legislation; and, accordingly, in our current annual report, now ready for the printer, we record out satisfaction that some of the improvements we have proposed have at last a chance of being implemented. We have naturally been awaiting with eager anticipation both the Bill and the unfolding of the noble and learned Lord's complete package, which was explained to us so clearly and gratifyingly today.
So far as the Bill is concerned, I must confess that when it emerged I found some difficulty in following exactly how it achieved any of the things we were hoping for; and I am glad to learn that I was not alone in this, and that even certain noble Lords learned in the law found themselves in the same difficulty. However, the noble and learned Lord's office quickly provided me with an explanatory note, and the noble and learned Lord has himself filled in the detail today; so I think I now understand what it sets out to do, though not necessarily precisely how it does it. I therefore propose to refer to the principal intentions of the Bill, without reference to the particular clauses which effect them.
Before I come to that, I should like to say how very pleased I am that the noble and learned Lord has found it possible to increase the upper and lower limits of eligibility to the extent that he has told us he intends to. The original Legal Aid Act of 1949, which set up the scheme, declared its purpose as being to make legal aid, advice and assistance available to people of "small or moderate means"; 912 and in its early years the scheme did in fact come close to ensuring that anyone could obtain legal services at a price which he could afford. The burden of my Committee's complaint in recent years has been that the proportion of the population qualifying for assistance under the scheme has been falling steadily, until a stage has been reached where the only people who can afford legal services are the poor, who get them free, and the rich, who can pay for them. The mass of the population in between—those whom the Act no doubt had in mind as being of moderate means—are faced with heavy, if not prohibitive, expenses.
The improvements in the eligibility limits which the noble and learned Lord has announced today will undoubtedly go some considerable way towards restoring the proportion of the population who can be helped by the Legal Aid Scheme—not quite back to the original level, but certainly as much as could be hoped for at a time of economic stringency. But even with this improvement the contribution payable by those whose disposable income falls between the upper and lower limits could represent a very heavy burden. The contribution laid down in the present Act is one-third of the disposable income, and even within the present eligibility levels that is quite enough to cause some people to abandon their efforts to secure their rights when they learn what it is going to cost them. So I fully support the Bill in seeking to introduce flexibility by allowing the amount to be paid by way of contribution, in legal aid as well as in aid and advice, to be varied by regulation.
The noble and learned Lord has told us that the intention is to reduce the maximum contribution payable in legal aid from one-third to one-quarter of the disposable income. That will be a considerable help, but it need not necessarily be the right proportion for ever. A further change may become desirable sooner or later, and it is therefore surely sensible to enable this to be effected at the right moment by regulation, rather than having to wait for another Bill. Another advantage of this provision—and this, too, is something which my Committee has strongly recommended—is that it enables the maximum amount of contribution payable to be varied according to the class of proceedings. The noble and learned Lord has explained 913 to us the value of this provision. It would allow all certificates in certain classes of case to be issued with a nil contribution apart from a small handling charge. At present, the contributions are returned to the applicant in so large a proportion of some types of case that the administrative cost of collecting and returning them almost balances the value of the contributions which are retained by the fund. So, here again, a sensible improvement becomes a possibility.
However, in one respect the Bill does not go quite so far as we should have liked. It has been made clear to my Committee from many sources—indeed, it is probably common knowledge—that the normal attitude of the people of this country is not to seek the help of a lawyer if they can possibly avoid doing so, since they fear that once they have set foot in a solicitor's office they will have committed themselves to unpredictable but undoubtedly heavy expense; and, with the present provisions of the Advice and Assistance Scheme, there is for many people some substance in this fear. In consequence, they do not take their problems to a lawyer, and may well suffer injustice by default. Even the improved eligibility limits which are now proposed are unlikely to cure people's instinctive, if unreasonable, dread of falling into the clutches of the legal profession.
My Lords, will the noble Lord give way? Does he realise that there are Citizens' Bureaux, and does he not realise that what he is saying now does not apply to the average person? When people come to a solicitor's office—and I am speaking from 60 years' experience now—if the solicitor finds that the person is poor or is not sufficiently able to meet the reasonable fees which solicitors are entitled to charge, that person is not turned away. That is the position now, and I hope it will be noted.
§ Lord HAMILTON of DALZELL
My Lords, I do not think that is relevant to what I was suggesting. The point I was trying to make is that people are reluctant to go to solicitors at all because they are afraid of the expense they may be involving themselves in if they do. I think that is probably common knowledge. People know that they should go to a solicitor for a divorce, they suspect that they ought to 914 go to a solicitor to organise their will and perhaps to buy or sell a house, but otherwise they are determined at all costs not to go to a solicitor until they are driven to it. I entirely agree that, if they do go to a solicitor, when they get there they will get all the attention, solicitude and everything else they want. All I am saying is that, on the whole, the people of this country do not go to a solicitor if they can help it.
My Lords, I am sorry to interrupt again, but as an old Parliamentarian I can say that most people who have grievances or who want advice go to the advice bureaux of their respective Members of Parliament, and I know of no colleague in the other place who would dream of telling them not to go to a solicitor or who himself would not ring up a solicitor to obtain advice if the person was not in a position to pay for it.
§ Lord HAMILTON of DALZELL
My Lords, the whole point of what I am trying to say is that my desire is to encourage people to go to solicitors and to make it possible for them to be paid for when they get there. I am not in the least suggesting that there is anything wrong with the solicitors. What I am saying, and still say, is that people have an instinctive reluctance to go to a solicitor if they can avoid it. That is something I think we want to overcome, and I am suggesting how it might be overcome. The suggestion that my Committee has made is that it might be got over if a provision were made and were well publicised that anyone at all could go to a lawyer and have a free diagnostic interview of, say, half an hour, the cost of which would be met by the legal aid fund. In this free interview, the client could explain his problem to the solicitor and be told whether its resolution needed a lawyer's services, and, if so, what sort of expense he might be letting himself in for.
We were told that the cost of this provision would be quite small, since the only circumstances in which the free interview would represent an additional cost would be either where no action by the solicitor resulted from it or where action did follow but the client did not qualify on financial grounds for legal aid or assistance. In any case where action followed which was paid for wholly or 915 partly from legal aid funds, the free interview need represent no extra charge on them. I understand that this could not be done under the terms of the present Bill and I should be grateful if the noble and learned Lord, when he comes to reply to the debate, can tell us why it would not be desirable at least to have something in the Bill which would make it possible to introduce such a scheme, if its merits were to become apparent and accepted, without having to wait for the next time there is a Bill on this subject. After all, the impression that one gets throughout this Bill is that every opportunity is being taken to introduce flexibility so that improvements can be made in the scheme whenever the time seems ripe, without having to wait for another opportunity for legislation. Why not this one?
Our other principal recommendation has been accepted for inclusion in the Bill. That is that the green form scheme should be extended to cover representation in appropriate circumstances. As the noble and learned Lord has reminded us, at present it is confined to advice and assistance with the single exception of duty solicitors' schemes in magistrates' courts. The green form provides a simpler and cheaper but at the same time less precise method of assessment than that for full legal aid. It may therefore very well be suitable for some civil proceedings in magistrates' courts just as much as criminal ones.
It seems possible that it will also be the best method, if, and when the time comes, to provide legal representation in tribunals. There is no doubt that legal representation is needed in some of the more complicated cases in most, if not all, the different types of tribunal. But the tribunal system was designed to be simple and relatively informal, and there is a natural reluctance to run any risk of making it over-legalistic by bringing in lawyers where they are not essential. This is a dilemma which it will not be easy to resolve, but sooner or later it must be resolved; and I am glad that in the Bill we here have another example of powers being taken which make it possible to introduce a scheme for tribunals without having to wait for another chance to legislate.
916 So, my Lords, I welcome the Bill. I hope it will commend itself to your Lordships and that those who understand the mysteries of its verbiage will find that its provisions correctly achieve its stated objects. The Bill is an essential part of the package which the noble and learned Lord the Lord Chancellor has been at such pains to prepare and which will greatly improve the scope and effectiveness of the legal aid scheme. My only concern is that I detect an element of uncertainty in the air about the possible life of this Parliament, and I am therefore most anxious that the Bill should have a smooth passage and pass through all its stages here as quickly as possible.
§ 7.34 p.m.
§ Lord GIFFORD
My Lords, the introduction of a Legal Aid Bill provides the opportunity of reviewing the civil legal aid scheme as a whole. The coverage of the civil aid scheme is extraordinarily, illogically uneven. Sometimes it is first class. In cases in the High Court and in the appellate courts, a person eligible can have the services of the best lawyers in the land. In other areas, the scheme today is niggardly and sometimes nonexistent. In the county courts, for instance, where so many acute family problems and housing problems must be resolved, legal aid is set about with a quite disproportionate amount of bureaucratic "hassles" , both for the client and the solicitor—disproportionate to the amount of money involved and the time spent on them. For the client, there is a lengthy assessment of means; for the solicitor, cumbersome procedures for the taxing of bills. In consequence, the conscientious solicitor, as the noble Lord, Lord Janner, has said, finds it difficult to make a reasonable income and the less dedicated solicitor is deterred from taking any part in legal aid at all.
Then, in tribunals, which are just as much a court to the person who wishes to obtain a benefit or compensation for unfair dismissal or the resolution of an immigration problem, the scheme is not available at all. When it comes to who is eligible, the position today is that only a minority qualify and an even smaller minority qualify under the legal advice and assistance scheme. The consequence is that if one were to sit in the office of a solicitor who has a legal aid practice with 917 a clientele in the lower half of the national income bracket, one would find, in case after case, perhaps even in the majority of cases today, that the solicitor would be saying to the prospective client that he would have to charge sums of money to advise, negotiate or represent the client, sums which the client cannot reasonably afford. Outside the solicitor's office, one would find many more who do not come in, as the noble Lord, Lord Hamilton of Dalzell, said, because of the fear that large outlays of money would be involved. This is not in relation to some luxury of life; this relates to a service without which one could say that people cannot be fully citizens of a democracy. If there is unequal access to the law, then society is not governed by the application of laws but controlled by those who can afford to use the law.
My Lords, I have the honour to be the chairman of the management committee of the Legal Action Group, a body of some 4,000 members, predominantly lawyers but also advice workers of various kinds. The Group has waged a tireless campaign, particularly within the legal profession, to expose and to reform the injustices of our system of justice. Part of the answer is an extension of what has come to be known as the public sector of legal services; namely, law centres and other public agencies. I wish to put only one question to the noble and learned Lord as to the part of his announcement which concerns the public sector. Within the scope of this new package, how much money is to be devoted to the law centres? I do not think that I gathered the amount involved; if I had done I should have been able to assess how much one should welcome that part of the announcement.
Another part of the announcement which more concerns the Bill that we are debating today and is something on which the Legal Action group has equally earnestly campaigned is that we need much greater numbers of solicitors' offices doing legal aid work—able to do it, without undue obstacles, in a comprehensive way and able to respond to the needs of the people who come to see them. That may in the longer term require much more streamlined procedures and better ways of financing the legal aid scheme. I hope also that the Group 918 of which I am chairman has also had its influence within the Lord Chancellor's Office; and T hope that the package announced is in some way a reflection of that influence.
I had been about to say this evening that in his term of office the noble and learned Lord the Lord Chancellor had not yet been able to make any real progress to resolve the kinds of unevennesses, anomalies and injustices to which I have referred—that is, I am bound to say, until today; because the announcement made about the increase in the eligibility limit is, in legal aid terms, a dramatic one. A very substantial increase has been made from about 25 per cent. to (the noble and learned Lord says) 70 per cent. of the population. For securing that, the noble and learned Lord must be congratulated. It is not for lack of goodwill that progress has been delayed until now. It has always been said to be for lack of money. Even now and in the future we shall have to continue to grapple with the problem of securing money for legal services and for the provision of access to the law. As a society, it would appear that we do not put upon justice the same priority that we put on other necessary and important public services, so much so—and I say this with the greatest respect and regard for the noble and learned Lord and his staff—that we do not even have a department with a full responsibility to take into its orbit the provision of legal aid and legal services across the board. As to those wider questions, one can only hope that another legacy of these years of the noble and learned Lord's term of office will be a Royal Commission report with sufficient imagination to grapple with the proposed changes that are needed in the organisation of legal services.
The Bill, even though it is not intended to make big changes, falls to be looked at by reference to these general points of principle, and there are of course many parts of it which are to be welcomed unreservedly. Clause 4 allows for greater flexibility in the proportion of disposable income to the contributed. That was very badly needed. As has been said, contributions have often been a very real hardship and, still worse, a deterrent to many people who have just causes to pursue in the courts.
919 Then we have the proposal for different contributions for different kinds of cases. My noble and learned friend has indicated that personal injuries are the kind of cases envisaged by this new proviso. I hope that that will be introduced soon. The trouble with regulatory powers is that they can so often promise so much and achieve nothing. There is a particular example which needs to be mentioned as a cautionary tale in the field of legal aid. The Children Act 1975 had an express provision to provide legal aid to parents in care proceedings in the juvenile courts. There is as yet, four years later, no such legal aid available, and one always has to be cautious when proposed changes are to be introduced by regulations. I am heartened—and I hope that this is right—by the news that all these regulations are not to be put off until some long time in the future, but are to be introduced within the next month or two.
I come finally to a reservation which I feel bound to express about the new scheme of assistance to representation. It does not appear to resolve the anomalies that I mentioned. If anything, it increases the unevenness and confusion. I hope very much that this will not become a new kind of legal aid on the cheap. What is absolutely vital is that the quality of service which can be provided under the new scheme, and the range of people who can be affected by it, remain unaffected. I say this particularly because there is power in the Bill, as I understand it, for the area committees to refuse legal aid to an applicant on the grounds that it would be more appropriate for him to receive this other form of legal aid. Therefore we can have two possibly conflicting schemes, with different ranges of people eligible for them and different kinds of services being brought within them.
There is power for this legal aid to be granted subject to limits, both as to finances, the money that can be spent, and the kind of work that can be done. Both of those are objectionable. For a client to be told that he can be represented only up to a certain amount artificially limits the amount of money that a solicitor is able to spend and the amount of work therefore, that he is able to do. One of the virtues of the existing legal aid scheme is that once a certificate has been granted, except in fairly rare and limited cases it 920 covers all costs properly incurred. That is as it should be because one never knows in advance precisely what extent of work has to be done to secure justice for a client.
If the limitation of the legal aid is in respect of the kind of work that can be done, it is equally objectionable. Already grave misgivings are being expressed about the operation of my noble and learned friend's divorce measures, where in a divorce case legal aid is available for some kinds of work and not for others, creating serious confusion in the relationship with the client. So I ask most earnestly that this scheme in its operation should not add to the confusion but should be the means by which these various schemes can in fact be harmonised. What we need is for people to be able to be told, when they come to a solicitor's office, either that they are eligible for legal aid, whether it is advice, negotiation or one kind of case or another, or that they are not eligible, or that they are eligible subject to the payment of some kind of contribution.
If there is a need for the simplification—as indeed there is—of the administration of the legal aid scheme, then the answer might better have been to simplify the existing scheme rather than introduce a new one. However, if the two can, as it were, grow together and just be two different administrative ways of achieving the same end in different kinds of cases, then one sees great hopes for it. One sees hopes—and perhaps my noble and learned friend can confirm this—that it can extend beyond the fairly limited area of cases for which it is now proposed and that it is a suitable vehicle of assistance for other cases, in particular for representation in tribunals, because that, of course, is a much greater area of unmet need today.
If, on the other hand, the scheme that is administered and the regulations that are adopted are niggardly and cost cutting, if they limit the number of people available to a small proportion or if they limit the advice and assistance that can be given to a low financial limit, then there is a danger that this kind of scheme opens the way to further scrimping on what is already an under-financed service. I conclude, however, on a note of greater hope; that having heard the totality of my noble and learned friend's package, one 921 can with some confidence say that under his tutelage this new scheme will be used for good, and not for cheeseparing, purposes. With that, I welcome his Bill.
§ 7.47 p.m.
§ The LORD CHANCELLOR
My Lords, I am most grateful for the support that the Bill has received from all quarters of the House, and because it was not only lawyers who contributed, but a distinguished layman in the person of the noble Lord, Lord Hamilton of Dalzell. We are grateful for all he has done and I am grateful, as J said, for the work done by him on my advisory committee over which he presides. There is still a great deal more to be done. While I have no doubt that the improvements both as to quantum and as to administration which my proposals will affect were necessary and ought to be dealt with now—and the noble Lords have agreed with that view—of course we are awaiting the report of the Royal Commission on the provision of legal services for many of the matters which have been raised, such as for instance the provision of legal aid for tribunals and matters of that kind. I hope that it may well be that I shall still be in a position to do something about the provisions, but we shall see.
I should like to make one matter clear. I have a very strong legal aid section in my office with dedicated and able lawyers and administrators. I noted a reference from the noble Lord, Lord Gifford, that he has indeed had encouragement and assistance from them. The noble Viscount, Lord Colville of Culross, identified with his usual clarity what I have been trying to do. He pinpointed that the aim is to provide the right type of assistance for those needing it most. That seems to me to be an excellent purpose and I think that the Bill and the package will help in that direction.
I have been asked a number of questions. The noble Viscount, Lord Colville, asked me how the process of assessment by solicitors was functioning. It seem to be functioning satisfactorily. I have no reason to think that the way it is working is causing problems. I ought to say that the whole position with regard to assessment of resources is being looked at by the Royal Commission. Here again, I await with eagerness their proposals. Some 922 have indeed suggested that we should eliminate altogether the role of the Supplementary Benefits Commission; but here again, as I say, we shall wait to see what is recommended following the overall consideration of that matter.
It is a fair criticism to remark, as did the noble Lord, Lord Foot, on the complexity of this Bill. To describe it in those terms is absolutely right—it is not my favourite night-time reading—but I think there may be some comfort to be taken from the fact that a consolidation of legal aid regulations is in an active state of preparation. I am afraid we have held it back to take account of the regulations which will be made under the Bill, and as soon as those are made it is intended that they should be incorporated in the consolidation. Indeed, I hope that the Amendments which are effected by the Bill—the noble Viscount, Lord Colville, referred to them—will be embodied in the new legal aid handbook which will then contain all the legislation, both primary and secondary, relating to legal aid in a convenient form. I noticed that my noble friend Lord Janner referred to that. It was indeed good to hear him speak of legal aid and I noted the throw-away line when he spoke of his 60 years in practice as a solicitor. I had the privilege of being briefed by him: indeed he once sent me to Addis Ababa on a case, and I would tell your Lordships about that remarkable experience,had we but world enough and time".I just want to say that it was I who taught the lawyers of Addis Ababa to call each other "my learned friend" even though they did not always feel as friendly as that towards their opponents. However, I must not indulge in "anecdotage", having reached a dangerous age.
I am glad to hear from the noble Lord, Lord Janner, of the approval of the Law Society in the respects which he indicated: that is very encouraging indeed. I am sorry we have not been able to satisfy the noble Lord, Lord Hamilton, about the matter of provision for a free initial diagnostic interview. It sounds a thoroughly alarming business but I hope he will agree that, with the new high free limit for advice and assistance, most of the people needing free advice will now be able to get it, certainly far more than was the case previously. The resources for legal 923 aid, advice and assistance are limited, and I confess to the noble Lord, Lord Gifford, that when I made my maiden speech from this place five years ago with a confident trumpet call for a wide extension of legal services, I had not then anticipated that we were running into an economic blizzard that has affected our resources in that field. However, I am glad that even he now recognises, at any rate in this package, that we are making a significant improvement.
There was a question about the failure to give effect, even at this point of time, to the provisions in Sections 64 and 65 of the Children Act. This enables the court to grant legal aid to the parents of children in care and related proceedings, but only where the court has already made an order under Section 64 of the Act that the parents may not represent the child in the proceedings. We have advanced a little in that field in that part of the section has been brought into force—that part which deals with proceedings arising from unopposed applications for the discharge of care or supervision orders. They were proceedings of the kind which led to the discharge of the care order of the poor child, Maria Colwell, with such tragic consequences. That means that, at any rate in that class of case, courts can now grant parents legal aid. I am afraid that time has advanced and I cannot go further into the reasons why there has not been a more general extension. One of the problems concerns the difficulties which arise from setting up panels from which courts could appoint guardians ad litem to represent children. I am advised that this would be expensive for the local authorities and the probation service who would be expected to provide most of the members of the panel. There again, we shall hope to progress in that direction also.
I end by expressing my gratitude for the support these proposals have had. I remember when I was PPS to Hartley Shawcross way back in 1949, when we set out on this road. It has been of great importance to our people. I agree with what has been said. I regard the provision of legal services as a crucial social service. It is not always easy to get all one's colleagues in the Government to agree with that proposition. There is the faint suspicion that it is a way of 924 enabling lawyers to feather their nests, which is an unworthy accusation. I am glad that, at any rate in this Bill, we are moving a little further along that vital road to help the ordinary citizen in his or her affairs.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.