§ 7.22 p.m.
§ Read a third time with the amendments.524
§ Clause 1 [Advice and assistance by duty solicitors]:
The Lord Chancellor (Lord Hailsham of Saint Marylebone) moved Amendment No. 1:
Page 2, line 8, leave out ("barristers or") and insert ("persons practising as barristers or as").
§ The noble and learned Lord said: My Lords, I rise to move Amendment No. 1 which is intended to give effect to a suggestion made at an earlier stage by the noble Lord, Lord Mishcon, in order to widen membership of the duty solicitor scheme. It was pointed out that the wording of the amendments, as drafted in the text, would have prevented barristers and solicitors who are not in practice from being additional members of the committees. We think that they should not be excluded, and that is the effect of the amendment which I now propose.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 2:
Page 2, line 15, leave out ("barristers or") and insert ("persons practising as barristers or as").
§ The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 3:
§ Page 2, line 16, at end insert—
§ ("( ) A magistrates' court shall comply with such directions given to it by the Lord Chancellor as he thinks requisite for securing that effect is given at that court to any such arrangements as are mentioned in subsection (4) above.").
§ The noble and learned Lord said: My Lords, we have had two useful discussions on the subject of the duty solicitor scheme. Both the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, expressed some anxiety about a reluctance on the part of some courts to permit this scheme. I have now drafted an amendment, in co-operation with parliamentary counsel, which I feel gives sufficient effect to the anxieties which were expressed. It is in effect an enabling power, because it puts the obligation to make any directions which may be made under the amendment on to the Lord Chancellor of the time. It is therefore a power kept in reserve. It will not solve every problem. For instance, it will not solve the problem of accommodation. However, it will enable the Lord Chancellor of the day to retain a desirable element of compulsion behind his velvet glove which I hope will always remain firmly in place. I beg to move.
§ Lord Elwyn-Jones
My Lords, we are most grateful to the noble and learned Lord the Lord Chancellor for acceding to the suggestion which emanated from more than one part of the House that the provisions for duty solicitors in magistrates' courts should be sufficient to enable them to do their work effectively and to have access to those seeking their aid and, generally, that there should be arrangements to enable them competently to perform their work. The value of the work of duty solicitors is recognised not only in your Lordships' House but generally. We are grate- 525 ful for the willingness of the noble and learned Lord to keep a watchful eye particularly on those courts where, for one reason or another, discouragement has been addressed in the direction of the introduction of the duty solicitors scheme. I will not say that I hope the noble and learned Lord's beady eye will be cast upon the magistrates' courts, but I hope that his beneficial supervision, which is contemplated in the provisions of this amendment, will strengthen the position of duty solicitors and will meet the anxieties that were expressed. I beg to move.
§ Lord Elwyn-Jones
My Lords, I apologise to the noble and learned Lord. I said "I beg to move", accustomed as I am to making suggestions which are sometimes not accepted by the noble and learned Lord. However, he has been most helpful during the course of the passage of the Bill through your Lordships' House.
§ The Lord Chancellor
My Lords, I am very grateful to the noble and learned Lord, even for his description of my eye as being of a slightly heady character— which I am not sure is accurate. At any rate, the noble and learned Lord might well have begged to move because he was very largely the moving spirit behind the present amendment, and I am very grateful to him for the help he has given.
Lord Elwyn-Jones moved Amendment No. 4:
After Clause 2, insert the following new clause:
§ ("Appeals against refusal of legal aid order
§ . The Lord Chancellor may make such regulations as appear to him necessary or desirable to provide that an appeal shall lie against a refusal by a magistrates' court to make a legal aid order under section 28(2) of the principal Act and as to the manner of making such appeals.").
§ The noble and learned Lord said: My Lords, this amendment we considered in Committee and at the Report stage, though in a somewhat different form. It arises out of the importance we attach to the need for some appellate machinery to exist to enable those who have been refused the opportunity of legal aid to appeal against the decision. What has emerged in our consideration of this matter is the remarkable disparity of treatment of such applications as between one magistrates' court and another. Indeed, it has seemed from time to time that whether or not the applicant gets legal aid depends more on which petty sessional court area he lives in than on the needs and justice of the particular case.
§ The noble and learned Lord the Lord Chancellor helpfully analysed some possible explanations of the disparity but at the end of the day one was left with the feeling that the system as it works at the moment is not right and that there is a good deal of dissatisfaction about it. Accordingly, we initially proposed that there should be a right of appeal to the Crown court against refusals of legal aid applications. I readily concede that the burdens placed upon the Crown courts are already almost intolerable and I am aware of the anxiety that I felt, when I was in the position now held by the noble and learned Lord the Lord Chancellor, about the 526 blockage caused and the delay in bringing cases for trial because of the burden of work in the Crown courts. Certainly, we would not want to add to that problem. That is the reason why we did not fight strenuously against the refusal of the first idea—that the appeal should be to the Crown court. But that some form of appeal should exist is, we feel, of very great importance. That is the view of the Bar and of the Law Society. In the proposed amendment, we have left the matter for the Lord Chancellor to make such regulations as appear to him to be necessary or desirable to provide that an appeal shall lie against a refusal by a magistrates' court to make a legal aid order.
§ When we last discussed this matter, I expressed the hope that the Easter Recess might give the noble and learned Lord's mind time to address itself sympathetically to this matter. I cannot claim that that recess has given him much opportunity for peace of mind, if I may say so with great sadness, but I hope to hear good news from the Woolsack on this matter. I beg to move.
§ Baroness Macleod of Borve
My Lords, I entirely agree with the spirit of this amendment but I do not agree with the amendment itself. During the passage of this Bill and during the discussion on this particular amendment, my latent conscience has been very much awoken because I fear that, during the many years when a clerk would come to me and ask whether such and such a person should or should not be granted legal aid because of the facts before me, possibly I may have made a wrong decision. That is why I should like the possibility of an appeal against a decision, although perhaps not put into the Act itself.
I do not like the wording of this particular amendment. I should like to suggest, even at this late hour of the debate on this particular amendment, that the new Legal Aid Committee which my noble and learned friend the Lord Chancellor has introduced into this Bill should be used for appeals of this kind. I believe it right that there should be the possibility of appeals but I am afraid I do not agree with this particular amendment.
§ Lord Campbell of Alloway
My Lords, may I invite your Lordships to consider very briefly two questions? The first is, how can regulations provide for an appeal against refusal when, first of all, the grant is discretionary and, secondly, when there are no settled principles upon which such a grant is to be given? Neither Clause 2 of the Bill nor Clause 28(2) of the principal Act are anything other than discretionary.
The second question is, would your Lordships not think that it would be wrong on any showing, notwithstanding such discrepancies as may exist, to have a re-hearing de novo? This subjects the magistrates' court to a type of revisory procedure which does not obtain in other courts. It would mean substituting the discretion of the revisory court for that of the magistrates, and that, in my submission, would be undesirable as reflecting on the competence of the magistrates, and would be wrong.
Does it not come to this? The proposed amendment, by its drafting, recognises that the grant should be 527 discretionary. It is plain, is it not, that there are no settled principles upon which the exercise of discretion should run. It is wrong that you should have a rehearing de novo by way of appeal, and therefore, in present circumstances, would it not be preferable, I respectfully suggest, that the amendment should he rejected?
§ Lord Mishcon
My Lords, I shall deal very briefly with the points which have been raised during the course of what we all hope will be a short but meaningful debate. In the first place, we all welcome the remarks made by the noble Baroness, Lady Macleod of Borve. We well know of her experience in the courts. She very kindly gives us the benefit of that experience when these matters arise. We welcome, obviously, not only her latent conscience but also her patent conscience, which made her feel (if I may refer those remarks to the noble Lord, Lord Campbell of Alloway) that possibly on occasions she may have made the wrong decision. I am perfectly sure that when the noble Baroness has made a decision she has done so with a very good heart. But there are some cases which practitioners have come across in many courts where the good heart has been absent and where many a needy person who ought to have received legal aid has not got it, but of whom it has been said by my noble and learned friend in another court that he would have got it without any doubt at all. That is just the sort of exercise of discretion, if I may use the word used by the noble Lord, Lord Campbell of Alloway, where an appeal is necessary.
If one did have fixed rules and regulations, one would not need to have an appeal because everyone could see what the regulations were, what the limits were, and whether or not a correct decision had been made. The noble Baroness was in doubt about one thing, if I understood her correctly. It was the type of tribunal that ought to hear this appeal. It is precisely in the hope that the noble and learned Lord will appreciate the openess of this amendment that it was worded in this way. The tribunal is not set out in this amendment. It leaves complete discretion for regulations to be made after proper thought and deliberation as to which tribunal should hear this appeal; but that an appeal should lie is obviously only just in these circumstances.
§ Lord Gardiner
My Lords, I ventured to say in earlier stages of this Bill that this amendment was one that needed careful consideration. In answer to what has been said by the noble Lord, Lord Campbell of Alloway, I wonder if he appreciates that this is a form of social welfare, and that it is the only form of social walfare regarding which there is no appeal against refusal of the grant. The basic facts are unchanged. It cannot be right that you are eight times less likely to get legal aid in Highgate than you are in Hampstead. The noble and learned Lord suggested that some degree of variation might be due to the fact that different courts had different classes of criminals before them. That undoubtedly is so, but it cannot account for cases of that kind. The same is true of Reading and Slough; and what about the remarkable case of Waltham Forest, where in March of last year the refusal rate on applications for legal aid was 5 per cent. and by September it was 25 per cent.? These courts need guidance.
528 The Waltham Forest case, as no doubt the noble and learned Lord knows, was due to the fact that in March of last year a new clerk to the justices was appointed. It was his first post in that position and he was a young man who perhaps took too seriously and enthusiastically a circular he received from the Lord Chancellor's office, to such good effect that the refusal rate was raised from 5 per cent. to 25 per cent. in the six months between March and September. I think that the degree of disparity is becoming a public scandal and something must be done about it. I believe that this proposal is the midest form in which it could be provided for, and l hope very much that the noble and learned Lord will be disposed to accept the amendment.
§ The Lord Chancellor
My Lords, I am very grateful to all who have taken part in this pleasant and rather desirably concise debate. The noble and learned Lord who proposed the amendment said he hoped for good news. The best I can offer is that I hope there will not be bad news, not very bad news at any rate. As I think I pointed out in earlier discussions we have had on the same subject, I do not find this a very easy subject, nor am I implacably opposed to some of the thinking behind the amendment, but I am unattracted to this particular amendment in the particular form in which it is put forward.
As regards divergences between courts—we have been into this before—I quite agree that the courts need guidance whether or not this amendment is passed. I do not doubt that for a moment. I am trying to give it to them after I have ascertained the facts. I promised that before, and I do so again. I do not think the question of guidance completely solves the question because in the end you need a sanction of some kind, and I am very conscious of the kind of point which my noble friend Lord Campbell put forward.
I should rather like to explain, first of all, how my mind is working and then perhaps ask the noble Lord if he would possibly consider giving me indulgence. One does not usually ask for further time to consider a matter after Third Reading, but it is going to another place and so there will be ample opportunity. I would like to explain what it is I am thinking about. I think I have made it plain enough on the earlier discussions we had that I am not attracted to the proposition that we should give an appeal either to the Crown court or to any judicial body against a refusal by magistrates' courts for purely summary offences, because one of two things must ultimately be true in that class of case: either the verdict is one of acquittal or the penalty so slight that when the result is known the applicants will not be inclined to pursue the appeal for legal aid, or it is very serious, either by way of custodial sentence or a verdict of guilty at which they feel aggrieved, in which case they will wish to pursue their appeal to the Crown court, which is by way of a total rehearing and where the refusal rate is something under 10 per cent; I think it is probably rather smaller than that; well over 90 per cent. of applications for legal aid are granted. The fact of the matter is that it would turn out to be a fifth wheel to the coach if there had to be two resorts to the Crown court, one appealing against refusal of legal aid and the other appealing against the verdict when it comes. I would far rather leave that sort of matter where it stands for the moment.
529 The second point is that, where the thing is going for trial to the Crown court in any event, whether because the case is a hybrid one and is sent for trial or because the case is indictable only, again I think that, in the case where there would now be a double order, if any, there is very little advantage in doing what is now proposed. But I do see that, in the case where there would be, as we wish to encourage, a through order covering both committal and indictable proceedings, there is something to he said for further recourse.
I deliberately used the word "recourse" in the earlier stage of our discussions on this matter and not the word "appeal". I did so for a particular reason. The thought that was crossing my mind was not quite the same as but rather similar to that of my noble friend Lady Macleod. One of the difficulties about the grant or refusal of legal aid in these cases is that a body granting or refusing legal aid will very often come to a different conclusion if it knows the nature of the case which the legal aid applicant wants to present. The legal aid applicant is very slow to present the case he wants to present on an application for legal aid for the precise reason that he is afraid that it may get about to the body which may try the case. That I think is a very real difficulty.
I then took advice of Parliamentary Counsel about this amendment, because it was an enabling power and because it could be said against me that an enabling power was a very harmless kind of animal and therefore I need not use the powers if given them. But I was then told by Parliamentary Counsel that, if I accepted this amendment as drafted, I should not be able to refer cases of refusal to a committee of any kind because it would not strictly speaking be an appeal; it would be something which could be called recourse against refusal. My thought at the moment is that, before this Bill reaches the Statute Book, there may be classes of case in which in certain circumstances I would wish to allow an unsuccessful applicant for aid before the magistrates' court recourse to some of the committees which do dispense legal aid.
This is not a promise. I have found this an intractable problem. It will not be an alternative to guidance, because guidance will be necessary in any case in order to create some body of doctrine about the principles on which legal aid is granted or refused by magistrates, and indeed by other courts, in addition to, or supplementary to and more than, the so-called Widgery criteria, which are somewhat imprecise and which will, I think, need amplification and sophistication after the experience we have had.
My thought would be that if the noble and learned Lord will not press this tonight, I will give it further thought. That is the good part of the news. The bad part is that I am not prepared to accept this particular amendment in the form in which it is drafted. I hope I have gone some way to help, though not all the way to give complete satisfaction.
§ Lord Elwyn-Jones
My Lords, I wonder if I could encourage the noble and learned Lord to go a little further. I take the point that the words, "an appeal shall lie" contemplate a court procedure and not the possible informality of a committee procedure by a competent body that might he set up under the direction of the noble and learned Lord. I wonder whether 530 he would be better disposed to the amendment if it were to read,The Lord Chancellor may make such regulations as appear to him necessary or desirable to provide for a review procedure against a refusal".of a magistrates' court to make a legal aid order. That would get round the formal language of, "an appeal shall lie" and might provide the very flexibility that the noble and learned Lord and the noble Baroness were suggesting was desirable. We contemplated in the drafting of the clause that there should be a fairly free rein to be held by the Lord Chancellor in dealing with this problem. I wonder whether he would be disposed to give an encouraging response to that suggestion, so that when the message goes to another place it would have his qualified blessing, or preferably his unqualified blessing.
In view of the lateness of the hour, I do not think it is necessary to re-cover ground that has been debated twice before. I do not think we had the advantage of the presence of the noble Lord, Lord Campbell of Alloway, on previous occasions. If I may say so, he gave me the impression of not taking on board the seriousness of the kind of discrepancy that my noble and learned friend Lord Gardiner mentioned, which is giving general concern. But one of the difficulties, which my noble friend beside me mentioned earlier, is that the readier availability of legal aid in the Crown Court is resulting in more cases going to the Crown Court for the very reason that the chance of getting legal aid in the magistrates' court is so much less. So the effect of increasing the availability of legal aid in the magistrates' court might well reduce the burden on the Crown Court. I put that forward as a factor to be considered.
However, the critical matter—I hope that I am not pressing the noble and learned Lord too much—is whether the noble and learned Lord will go a little further than he has gone and indicate acceptance of some amendment, which obviously I am not in a position to move tonight, on the lines which I have suggested in my own amendment.
§ The Lord Chancellor
My Lords, I can only utter by permission, which I hope I receive. I do not know that I can go very much further tonight. I take on board the kind of point which the noble and learned Lord, Lord Elwyn-Jones, has just made because it would cover, or might cover, the point which I made in my remarks a few moments ago. As the noble and learned Lord knows, I am under various constraints and have to acquire certain consents and concurrences before I can make more than a qualified promise. What I can promise is that this matter will be considered along with others. The noble and learned Lord will not, of course, be oblivious of the fact that I have in the legal aid field various other causes to promote and they may have a higher priority for me than this and, indeed, in the interests of justice. I shall not go into any greater detail than that.
As regards the noble and learned Lord's last point, it is said that some cases go for trial owing to the chance that the Crown Court will be more generous in legal aid. I am not quite sure how far this genuine belief, which is held in some quarters, is correct because, of course, if one goes to the Crown Court in a hybrid 531 case—and it will only apply in hybrid cases—one can, of course, receive a bigger sentence and sometimes one does so. This is one of the countervailing factors which sometimes operate as regards the less optimistic type of defendant. But at any rate I am not unfavourable to the noble and learned Lord's suggestion. I would rather he did not press me to give an unqualified undertaking tonight. It was a nice idea of his to give effect to my point and certainly his suggestion is well worth considering. I do not want to be more hopeful than that, but I shall do my best to see that it is properly considered.
§ Lord Elwyn-Jones
My Lords, I am naturally most grateful to the noble and learned Lord. I am bound to say that I was a little dismayed by the low priority which he seemed to be giving in his final observations to what is proposed. Of course, there are many other things that need to be done. But I cannot repeat too emphatically the feeling that this right of appeal is an essential need in the whole legal aid set-up. My noble and learned friend Lord Gardiner has indicated its unique position as an important branch of social welfare and the only part of it where there is no form of recourse—to use the word mentioned by the noble and learned Lord—least of all an appeal. I am bound to confess that the slight weakening in the final phrase of what the noble and learned Lord the Lord Chancellor has said, tempts me to test the feeling of the House. However, there is not an abundant number of noble Lords present, and so I count upon the goodwill of the noble and learned Lord to see that what we have represented in various parts of the House on this matter will be effectively conveyed to another place. In these circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ An amendment (privilege) made.
§ The Lord Chancellor
My Lords, I beg to move that this Bill do now pass. Perhaps I ought to say "thank you" to all those who have played a part in these discussions because I am very grateful to them. If it were a little earlier I would have thanked them at greater length. I think that we have improved the Bill together, and I hope that all noble Lords who, in all parts of the House, have played a part, will feel that they have had their due meed of attention from the Government, at any rate on this Bill. I beg to move.
§ Moved, That the Bill do now pass—(The Lord Chancellor.)
§ Lord Elwyn-Jones
My Lords, I should like to express gratitude on behalf of those who have been present during the various stages of the Bill, for the assistance that we have received from the noble and learned Lord the Lord Chancellor, both by way of explanation and occasionally by way of concession, although not as often, of course, as we should like. What Opposition has ever been pleased fully by what has gone on?
We take pleasure in some of the important changes that were made—for instance, the provision in Clause 7(3) of the Bill, that where the revocation of 532 an order is contemplated, the person affected shall have:an opportunity of making representations",before such revocation is made. The additional presence of three more lay persons on the new committee which is to administer the system of legal aid, is a valuable addition in increasing perhaps public confidence in the set-up, and providing for the consumer interests—that I think is the fashionable phrase. And in other respects also there have been improvements as a result of the suggestions that emanated from the Opposition, and indeed, other parts of the House.
It is a temptation to go further, but I note also the time of the clock and accordingly wish good progress in another place to this Bill, which is a helpful Bill in a very important social field.
§ The Lord Chancellor
My Lords, I am very much obliged to the noble and learned Lord for what he has said. I shall do my best "to continue to give satisfaction", as Jeeves might have said.
§ On Question, Bill passed, and sent to the Commons.