§ Second Reading debate resumed.
§ 4.20 p.m.
§ Lord Hooson
My Lords, at 2.15 this afternoon one of my colleagues informed me that he intended to be in the Chamber this afternoon because he understood that I and other loyal Members of your Lordships' House were going to savage the noble and learned Lord the Lord Chancellor. When I asked him why this should be so, he told me that he understood that both branches of the profession were up in arms at the noble and learned Lord in general and in respect of this Bill in particular. I expressed a certain degree of astonishment because I was armed with the letter from the Law Society which says:You will see from the note that The Law Society generally welcomes the terms of the bill which relates to criminal legal aid".I also received a manuscript letter from the Senate of the Inns of Court and the Bar, informing me that the Bar raised no questions with regard to this Bill.
I was then advised to repair to the Library to gird my loins, as it were, for the fray and to read The Times, which I did. I read the article and the leading article. I must say that though the noble and learned Lord the Lord Chancellor was put in mind of Greek mythology, I thought that it was a piece of English mythology, as it seems to me that the articles have nothing to do with the Bill before your Lordships' House today.
Indeed, the leading article in The Times refers to two omissions in the scope of legal aid; namely, that legal aid should be provided before mental health tribunals—a matter with which I entirely agree, but which is the subject matter of an amendment in my name tomorrow on the Report stage of another Bill coming before your Lordships' House. The other suggestion is that the Government should implement the provision in the Children Act 1975 to provide legal aid for parents whose children might be put in care. I believe that that should be implemented. But it has nothing to do with the Bill before your Lordships' House today.
To a degree, this Bill reflects the recommendations made to the noble and learned Lord the Lord Chancellor in January 1981 by a joint working party of the Law Society and the Senate of the Inns of Court and the Bar. Indeed, those recommendations were based on four principles, and it appears to me—and here I speak on behalf of both my party and the Social Democratic Party in welcoming the Bill—that those four principles have been met. They were that: 769Criminal legal aid ought to be subject to a measure of control and discipline analagous to that already applied in the civil field".Legal aid has worked very well and under control in the civil field, and I think that it is advantageous to society generally to extend control in this way.
The second principle was that:The funds available should be concentrated on proper preparation of cases by solicitors and counsel, which in turn will lead to more economical presentation".That appears to be met. The third principle is that:Work that is not necessary for the attainment of justice need not be done and its cost should not fall on public funds".That is a principle with which I think we would all agree. The fourth principle is that:Work that needs to be done should be properly remunerated. Inadequate remuneration tends to encourage incompetent work ".Therefore, it seems to me that this Bill is much needed and fills a gap. The only unsolicited observations that I have had on the Bill have come from the Child Poverty Action Group, and the noble and learned Lord, Lord Elwyn-Jones, has already referred to the recommendations. I agree with him that their comments need to be read carefully. I received their comments only today and I have not had time to digest them properly. Any points that I wish to raise on their paper I should like to raise later, save for one point.
The Child Poverty Action Group raises the question of the legal representation of children—that is, the granting of legal aid to children—and the provisions of Clause 4(3), which reads:In a case where the legally assisted person has not attained the age of sixteen, the court may, instead of or in addition to making a legal aid contribution order against him, make such an order against any person who is an appropriate contributor in relation to him and whose disposable income, or disposable capital exceeds the limits referred to in subsection (1) above".This really means that parents will be called upon to make a contribution, and the Child Poverty Action Group makes this comment:We are particularly concerned that parents of children who are charged with offences will be tempted not to suffer the financial penalty of a contribution and let their children be unrepresented".I think that it would be entirely wrong for the child not to be represented legally, because the parents would be virtually disowning him or her, or at least refusing to undertake to pay any contribution. I think that the noble and learned Lord the Lord Chancellor should give the House an assurance on that particular point.
I think that the duty solicitor scheme, which is encompassed in Clause 1, is very welcome. This is really first aid and advice for the accused person. Very often the solicitor who sees the sometimes rather confused person in the precincts of a court and is able to tender advice to him, can render a very considerable service, and often does so. Of course, people tend to forget that a person may have no defence but he may be confused about the situation. Talking to a solicitor in those circumstances might save a great deal of time because very often he simply does not have a defence.
With regard to the legal aid costs, I should like to make this point to the noble and learned Lord the Lord Chancellor. It is the experience of the Bar that taxation skills have been somewhat lacking when one comes to the taxation of legal aid bills. In the old 770 days, as the noble and learned Lord will remember, the clerk of assize or his associate, or the clerk of the peace, taxed the bill in what would today be a Crown court matter, and they were very well aware of the complexities of a case and did not judge the complexity of a case by its length. Many counsel and solicitors who have been rather economical in their approach have felt themselves to be penalised because so many taxation masters—who are not skilled and have never practised at the Bar and who have never actually observed the practice at the Bar—have tended to judge the complexity of a case by the length of time it has taken. More skilful advocates or more skilful solicitors will often dispose of a case in half or a quarter of the time that others might take and are consequently penalised on the question of costs. I think that this matter needs looking into.
On the listing arrangements to which the noble and learned Lord the Lord Chancellor referred, again I think that very often there is a lack of liaison between those responsible for listing and barristers' clerks and solicitors generally. In the old days much was done between the judge's clerk, or the clerk of the peace in quarter sessions, and barristers' clerks, so that they were often very much better informed than people are today as to the likely length of a case, which cases were likely to collapse or go short.
I want to raise this last point today, because most of the points that I wish to raise are largely Committee points. It has been suggested to me by a number of people that it is grossly unfair that provision should be made whereby a contribution to legal aid is required when the legal aid certificate is initially granted. That is, it is said, that people are penalised before they have been tried. They are expected to make a contribution towards their legal aid costs in anticipation of the trial. It is said that this conflicts with the principle that a man, or woman, is presumed to be innocent until proved to be guilty. Of course, it is nothing to do with that. If you are not qualified for legal aid and go to seek legal advice, almost certainly your solicitor would require a contribution. Indeed, in civil legal aid cases when an assessment is made of income and capital and the contribution is assessed, then the person so assessed is expected to make an initial contribution and to pay instalments.
It does not appear to me that there is anything wrong in principle in this Bill provided the means whereby contributions on criminal legal aid are extracted, as it were, from the beneficiary of the legal aid when the legal aid certificate is granted and before his, or her, trial. As a result of the trial of course the judge can be in a position to sort matters out and to return the contributions, if that is the appropriate case, and indeed to award costs against the prosecution if necessary. It does not appear to me that there is anything wrong in principle on this matter.
The last point—I am making two last points, I am sorry to say—is that it appears to me that from time to time it is difficult to assess the means of certain people who apply for legal aid. I often think of the case of some pornographers and their managers. The manager is often the chap who is charged. He applies for legal aid and is granted legal aid. His employers are a limited company, often with a small 771 capital, and nothing is known about them, and often legal aid is granted in that kind of circumstance.
I am only giving that as an example of the difficulties sometimes encountered in assessing the means, or the true means, of the people who have offended. I wonder whether the Lord Chancellor has directed his mind to this particular problem, because the legal aid fund must lose enormously during the course of the year on cases of that kind. Having made those short points, may I say that this Bill is to be welcomed, and I am glad to hear the Lord Chancellor say that it is the first instalment of a process on which this House will be embarking over the years of improving the legal aid system generally.
§ 4.33 p.m.
§ Baroness Macleod of Borve
My Lords, in view of the fact that every other speaker in this debate is a professional person who is qualified in the law, it is with a great deal of temerity that I rise shortly this afternoon. Your Lordships may, quite rightly, ask me why. It is entirely because—as the noble Lord, Lord Hooson, mentioned—that I read in The Times this morning (which was printed when it was thought it was not going to be) two articles which have no bearing on this Bill. As a humble magistrate I thought that I had better contribute a few words. That is not to say that I have not taken advice. I have asked the advice of many people throughout the country during the morning.
It is as a magistrate that I welcome and support the intentions of the Bill. I surmise that all those who have sat in a judicial capacity at whatever level would agree that every case is different. When one comes to giving legal aid not only is every defendant and his case different but one must admit that courts also vary, magistrates vary, and the clerks, though of high standard, can also vary. Therefore, I can only speak briefly of my own court, which was a busy court, and five courts sat five days a week, and sometimes on Saturdays.
The object of all magistrates' courts, and indeed all others, is, to the best of our ability, to see that justice is done. However, the courts' time is precious, and also expensive. It is in this context that I should like to pay my tribute to the duty solicitors, whose help and advice the defendants, and we as magistrates, have had in my court for many years. A defendant will come before the Bench and plead guilty. You realise quickly that he does not know what he has pleaded to, and you stand the case down for an hour or two and the duty solicitor kindly gives him advice. He comes back with him into court, and is then able to see that justice is done.
I am delighted to hear from my noble and learned friend the Lord Chancellor that 130 courts now have duty solicitors, but I would suggest that that is nowhere near enough. Other courts should have the benefit of this advice in emergencies where, if you did not have that advice, as one noble Lord has already said, justice might not be done and also justice would have to be put off and the case remanded for legal representation.
Legal aid to me has been most profitable in the juvenile courts, of which I was a chairman for many 772 years. Take the case of six small burglars—and there are lots of cases around today of six small burglars. They do not all come from the same social background. Some of them can come with, and be schoolmates of, those whose parents can afford to pay and do pay, but I would hate to take a case in which a child was not represented because the parents could not afford to pay. There are many other cases like that. I shall not allude to the parents of the child who might be taken into care because, as the noble Lord, Lord Hooson, said, that is not part of this Bill.
Legal aid is costly. The idea of this committee at the magistrates' courts' level is a good one so long as it does not delay justice. It is possible that because it has to go first before a clerk as well as a magistrate that it might be delayed. I would hope not, but at the same time one has to watch not only the cost of a delay but also from the defendant's point of view he wants the case to be over with as soon as possible and to know whether he is going to be able to get legal aid.
On reading Section 1 of the 1974 Act, I wondered whether the amount of £24.50 for the disposable income was a correct and reasonable amount today. Under Clause 4 of the 1974 Act, I wonder whether the amount payable is a reasonable amount today. I am pleased that a contribution, where a contribution has to be made, will be made at the beginning of a case. Your Lordships will know that at the end of a case where the defendant has been found not guilty he is absolutely delighted, and the last thing in the world he wants to do is to pay the court the remainder of the contribution that he is supposed to pay, and it is difficult to get it out of him.
Is my noble and learned friend able to say how much the Law Society and Lord Chancellor's Department are in default in respect of the many cases where legal aid has been given and the amount that should have been paid by the defendant has not been paid? I appreciate that may be a difficult figure to provide. Like other noble Lords, I hope—certainly against The Times—that the Bill will go through, perhaps amended, speedily so that justice will be seen to be done. Legal aid provides a great service; I have seen it in operation and I commend the Bill.
§ 4.41 p.m.
§ Lord Gifford
My Lords, this Bill is introduced at a time when there is unprecedented public disquiet being expressed about the workings of the legal aid scheme generally. The Law Society in their recent annual report expressed themselves in terms very unlike the normal mild tone of that body. They said, referring to the whole of legal aid, both civil and criminal:The continued failure to make a move in virtually, any direction in the legal aid field, even when reforms are almost universally agreed to be desirable, stultifies the legal aid scheme".The Law Society Gazette took up the attack with an article headed "Legal aid: Five fruitless years" and, as noble Lords have said, The Times this morning has joined in, not talking (except in a small passage) about the civil scheme; talking very much about the Bill and describing it as unduly negative and unconstructive. The noble and learned Lord may not think he is at bay, but some very unlikely wolves are beginning to howl around him. I do not think they 773 will be kept away for very long by the proposals in this measure, certainly not unless it receives substantial amendment in Committee. As the noble and learned Lord said, it covers four areas. Of those, three have proposals which are positive but which do not in many cases go far enough, and one is entirely retrograde.
The system of criminal legal aid—let us say this straight away—is by and large a good system; a person accused of serious crime has the right to the solicitor of his choice, and if he does not have the barrister of his choice it is rather the fault of the listing system than the system of legal aid. The system has defects, and my list is not the list which the noble and learned Lord gave. Indeed, at least two of his I thought were merits rather than defects in the legal aid system. The first defect he mentioned was that there was no form of test of merit before legal aid was granted. I hope he will not pursue that in some subsequent piece of legislation. It would be intolerable if a committee were to decide whether a person's defence has merit before that defence has been put before the court. The noble and learned Lord also suggested there was a defect in that a recipient of legal aid could freely change his solicitor. Again, it would be intolerable if there were not the same right of free choice of lawyer under the legal aid scheme as there is with any other form of professional adviser.
The two defects to which I would draw attention are both defects which can, and I hope will, be tackled in the Bill. They both occur mainly at the magistrates' courts level. The first is that there are too many people who do not apply for legal aid in the first place. They do not have a lawyer; they do not know how to go about getting a lawyer; they want to get the case over quickly; and before they realise they would have benefitted from legal representation they have pleaded guilty or have been sentenced and it is too late. That is the defect which the duty solicitor scheme is seeking to tackle.
The second defect is that when people do apply for legal aid, whether or not they receive it depends on the discretion of the court, a discretion which is exercised in extraordinarily different ways from court to court in different parts of the country. The tables were published recently in the Bulletin of the Legal Action Group and they make extraordinary reading. If you live in Reading, you are in a town where only one in 100 people are refused legal aid; if you live along the M.4 in Slough, you are in a town where 28 out of 100 people are refused legal aid; and one could go on multiplying that sort of discrepancy all over the metropolitan area and throughout the country. The difficulty with that sort of arbitrary refusal is that there is no right of appeal.
The Bill as drafted does not, I think, deal even with the first of those problems. It proposes that the duty solicitor scheme should be put into the framework of a Law Society scheme. I say at once that I welcome the introduction of duty solicitor schemes, even though the quality of service offered is patchy from court to court and scheme to scheme, and I would welcome any move to strengthen those schemes. However, what I understand the Bill does not do is provide that there shall be duty solicitor schemes in all the courts of the land. At present there are courts which refuse to allow duty solicitor schemes to be operated by the Law Society; Malborough Street will not allow duty solicitors in, nor will West London Magistrates' Court, and there 774 are a number of others. If we are to tackle duty solicitor schemes by a statutory framework, we must do it properly. The noble and learned Lord has responsibility for the courts as well as for the legal profession and I do not see anywhere in the idea of a scheme run by the Law Society any solution to the defect that there are courts which will not accept duty solicitors schemes.
The second observation that must be made about the proposal as drafted is that it seeks to impose a form of control over duty solicitor schemes through the Law Society area committee—so far so good; there should be control over these schemes because they can be abused—but the only people who will be sitting on the committee which imposes that control will be the lawyers of the area committee plus, under the Bill, a magistrate and a judge's clerk. That is not a sufficiently wide or representative committee. Many lay people know about the operation of magistrates' courts—from, for instance, the probation service, citizens advice bureaux or committees of law centres—and there should be an independent lay element on any committee responsible for monitoring and controlling the quality of duty solicitor schemes. We should not leave it only to the lawyers and the court personnel. Those are therefore the amendments that one would need in order to make real progress, not just by placing duty solicitor schemes into a different kind of structural framework, but by making their coverage complete and by improving their quality.
The second topic of the Bill concerns the making of legal aid orders covering both magistrates' courts and Crown Courts. On the surface, that would seem to be a perfectly logical and sensible proposal, but there is one thing that must be thought of. The lawyers do not get paid until the end of the case, and the lawyers who do the work in the magistrates' courts on committal proceedings are either solicitors or young barristers who are struggling at a time when they have very few ways of earning a living. At the moment they can be paid at the conclusion of the committal proceedings, because the legal aid order runs out at that time. But, if the legal aid order is to run right from beginning to end of a trial that might last for many months, or even a year or two, as some do, and the lawyers, in particular the young lawyers, will be kept waiting for their money, then that needs to be looked at, possibly by way of amendment.
The third area is the part of the Bill which gives new powers to the Law Society committees to take decisions which up until now have been taken only by magistrates. For instance, one of the powers is to decide upon the revocation of legal aid orders. This is the area of the Bill in which one needs to insert power to deal with not only revoking orders, but also granting orders, at least granting orders where the court has refused legal aid and the applicant is dissatisfied. I quite agree with the noble and learned Lord when he says that there are times when it is difficult for the magistrates' court to appreciate all the circumstances; the natures of both the prosecution and the defence are not known. If a power of appeal or review is inserted in the Bill among the other powers which are given to Law Society area committees, then we could deal with what I have contended is one of the most serious defects of the legal aid scheme.
I know not how many deserving cases are refused 775 legal aid unreasonably. There might be a few, there might be many. If there are many, there is certainly scope for a review. If there are a few, the provision of a review would not increase the amount of time and the costs involved. But, whatever the position, we need a system of review of refusal by magistrates of legal aid.
Finally, we come to the new provision for contribution orders. I fail to see what makes this part of the Bill at all necessary. The present system provides for the making of a legal aid order subject to an assessment of means. There can be a down payment at the beginning, if the court so decides. But the time when the contribution is really decided is at the right time, the end of the case, when the judge, or the magistrate, is in a position to see whether the accused person is guilty, whether he has been sent to prison, and whether he has other commitments, such as fines or compensation payments.
The provision under the Bill is that the accused person will have to pay for representation by instalments, month by month, up to the time when the trial takes place. Let us remember that this is a person who is presumed to be innocent, who will already be facing a very severe ordeal; the time spent waiting for trial is a most anxious period. The likely outcome of a proposal such as this is that in many cases the offer of legal aid will be refused because, in particular at a time of recession, such as now, the person is not prepared to suffer the order to pay regular instalments. That is very serious. There is a very high failure to take up offers of legal aid, even in the civil system, when a contribution is being ordered, and it would be much more serious in the criminal system.
When one looks at the details of how the proposed scheme will work, one sees that it will be a disincentive to the honest person, who will pay the instalments, while the dishonest person will see that there is a provision tucked away, in I think, Clause 6 of the Bill, which states that the order to pay the contributions will not be enforced until after the case is over. Such a person will not pay the contributions, and then, facing trial at the Old Bailey on a serious charge, when all the preparation has been carried out, will say, "Revoke my legal aid order, if you dare, and leave me unrepresented if you really think that that will be in the interests of justice".
It will be a bureaucratic nightmare. When people are acquitted, their contributions will normally be refunded, imposing a double process of collection and then refund where at present there is nothing at all. What will all this be achieving? It will be achieving the end—the noble and learned Lord said it—of receiving contributions a few months earlier than would otherwise be the case, because, if the judge orders them at the end of the case, they have to be paid; it is just that they have to be paid later than under the Bill.
In today's debate reference has been made to the Benson Committee. This proposal is no recommendation of the Benson Committee. The Benson Committee found that the system of contributions was inadequate, but it proposed a very trenchant solution.
The committee stated:We cannot see that any useful purpose is served by retaining contributions in the magistrates' courts. We consider, however, that they should be retained in the Crown Court. The procedure 776 we recommend is that when a defendant has been convicted in the Crown Court, the judge should have a discretionary power to order him to pay a contribution towards the costs of his defence".That is the kind of reform which would have been in accordance with fairness.
The present proposal would mean an awful lot of work for the bureaucrats, with less fairness to the individual who has to pay at one end and then receive a refund at the other, or who, if in the end he goes to prison, will have paid out money at a time when his family most needed the resources. So far as this proposal is concerned, I hope that we shall scrap the whole thing, and then concentrate on improving those proposals which I have suggested have merit but need considerable amendment.
§ 4.58 p.m.
§ Lord Mishcon
My Lords, borrowing from his wealth of knowledge of Greek mythology, the noble and learned Lord the Lord Chancellor commenced a most interesting and, as usual, lucid speech by presenting the House with a fearful picture of being torn to pieces by some dogs. I was trying to envisage what kind of noble Lord would ever succeed in tearing the noble and learned Lord the Lord Chancellor to pieces, and I certainly do not want to envisage myself in that capacity. Incidentally, borrowing, if I may, from the study I have made of the noble and learned Lord's illustrious career, I found it most strange that he should refer to a lady who was bathing in modesty. I seem to remember an episode, to which I shall not refer your Lordships at any length, in which, if I may say so, the noble and learned Lord when bathing was announcing his presence with the sound of bells. But as I have said, I do not want to take on the task of baying at the heels of the noble and learned Lord, or certainly not of biting at his presence. I want to appear in another canine capacity and merely stand on my hind legs and beg for some more morsels of help in regard to legal aid.
It is perfectly true, as my noble friend Lord Gifford said, that the whole aspect of legal aid in this country, criminal and civil, has been looked upon with some criticism over recent years. It is also perfectly true—and it is only fair to say this in regard to The Times article, which was looking at the whole of legal aid—that they had before them two reports which are fairly recent. In fact, they were delivered, I believe, on 29th January of this year; and, of course, it was not just the Law Society which delivered its report, it was the Lord Chancellor's Advisory Committee on Legal Aid, who make comments on the Law Society Annual Report and add their own comments. It is fair to say that both of them were highly critical of the whole field of legal aid and spoke of what is needed in order to fill the many gaps that there are in it.
Your Lordships can find that, of course, in regard to every social field, and one has to have regard to the fact—the last Government had to have regard to it—that there is a limit to the national purse. It is quite reasonable, of course, to have that aspect in view. But one cannot help wondering—and I say this to the noble and learned Lord hoping, indeed, that he may agree with me—whether there are not many savings that could be made and much administrative tidiness which could be achieved; for example, if one got rid of the extraordinary departmental way in which we deal 777 with legal aid and law reform, with various organisations looking after different aspects of it with, with respect so far as I can see, very little co-ordination in many respects.
It would be true to say that the untidiest bit of administration appears to be when the Lord Chancellor's Department—and I say this with great deference—is loaded with the expense of legal aid in magistrates' courts and juvenile courts but has not got the administration of those courts within its department. I would have thought that that was a tidying up process most devoutedly to be desired. I remember my noble friend Lord Gifford saying, in the course of his interesting and forceful speech, that there were some magistrates' courts which shut their doors to duty solicitors. That, one would have thought, would be looked after by one department which deals with the administration of legal aid in magistrates' courts and at the same time administers the magistrates' courts and their procedures. This may be a tidying up process and, indeed, a process of economy in regard to criminal legal aid which may be of use in the future.
There is no doubt about it, that a great deal of the cost of criminal legal aid is due to very serious delays in the magistrates' courts, causing a great deal of expense and inconvenience. But, having talked in terms of trying to save money in order that more can be done for criminal legal aid, I wonder whether the noble and learned Lord the Lord Chancellor will be kind enough to give his customary courteous attention to two things which have been talked about in regard to criminal legal aid and the economies which might be effected.
The first one relates to the question of bail. Anybody who has had the slightest practical experience of an appeal from the magistrates' courts on bail knows perfectly well that the following things are very likely to occur. First of all, the magistrates, when they refuse bail, very often find that when the matter goes to the Crown Court the Crown Court judge grants bail. Indeed, I was reading an article only recently—and I do not think it is in any way an exaggerated article—which talks in terms of the very appreciable numbers of cases in the Crown Court where the Crown Court judge allows bail.
My Lords, I am not talking about saving room in our prisons. That is a matter not for this debate, although it has been a matter which has concerned your Lordships more than once in recent times; but if, instead of going through the quite expensive procedure of going before a High Court judge on an appeal on bail, one went to the Crown Court judge in chambers, the cost which would be saved would be quite effective. That is one of the things that I hope the noble and learned Lord will take into account when dealing with some of the economies in relation to criminal legal aid.
The only other example I believe I would want to mention is the committal procedure; and, indeed, my noble and learned friend Lord Elwyn-Jones referred to it in the course of his, as always, helpful and excellent speech. On committal procedures, your Lordships may remember that there was, of course—and this has been referred to—a Philips Committee. Very little, if anything, has been done about the recommendations of that committee, and that, too, was 778 referred to by my noble and learned friend. But there is one aspect I would refer to as an example to show that these procedures have got to be looked at so that we can afford more for legal aid in regard to the yawning gaps which exist and which have been pointed out in the two reports that I have talked about.
Your Lordships may be quite astonished to know that, even where committal is with the consent of the accused, under Section 6 of the Magistrates' Courts Act 1980 the solicitor must attend court in spite of the fact that he has no application to make to the court whatsoever, and certainly no application for bail. This is a complete waste of money and of time. If only one could find—and it should not be hard to find it—a very sensible administrative procedure where bail is not in issue and where the defendant and his advisers say that, indeed, committal must follow, surely there need be no attendance whatsoever and an administrative regulation of this kind, doing injustice to nobody, could be made.
My Lords, I have talked about economies, and I have tried to suggest a couple in regard to criminal legal aid; and now I trespass upon your Lordships' unbounded patience by saying that I do not think it is quite irrelevant, when one is talking, as my noble and learned friend said, of an aspect which is one of the foundations of our very proud system of justice, to say that this is a proper title for legal aid. Indeed, when one hears the cry of law and order—never perhaps more needed in our country—should it not be a cry for justice, law and order?—because the three things must go together.
It is a fact that when we are dealing with criminal law we are obviously dealing with the reputation and the freedom of the subject. Is it really trespassing over boundaries which infringe your Lordships' rules on a Second Reading debate on a legal aid Bill to say that there are two such important aspects? With great respect to my noble friend from the Liberal Benches, there are two aspects which impinge upon liberty and which impinge upon so much of what is important to a subject. One is the infringement of liberty of somebody detained under the Mental Health Act—a tribunal for which we on these Benches pleaded, a tribunal which is such an important tribunal—without the right of a legal representative to argue, under legal aid, for liberty. We were told by the Government that they could see that this was a proper plea but that this was not a matter that the Government could deal with; it was a matter for legal aid procedure and questions of finance had to be taken into account. My Lords, if I cannot raise it now, when can I? If I started to raise it under the Mental Health Bill or my noble friend does so under his amendment, we should be referred back to the Lord Chancellor.
I enjoy a game of football, but not when I am the football. This is how I feel in this position. What could be more important in the whole of the structure of our society than family life and the right of parents to have their own children with them? When that right is attacked by all the power of the local authority, in most cases quite rightfully, endeavouring to remove a child from the parents, are we really operating a legal aid system when the parent is not entitled to legal representation to argue his own case?
My Lords, economies may pay for these things. 779 They are very vital and on a Second Reading of a very important Bill I believe that I am entitled to raise them. But, as my noble and learned friend has said, and he speaks with much more authority than I, the Opposition, for its part, favours the Second Reading of this Bill.
§ 5.12 p.m.
§ The Lord Chancellor
My Lords, the points raised by noble Lords and by the noble Baroness who have taken part in this debate are so numerous and so different that I think I have got myself into an almost irreparable muddle with my papers. I think, however, that the fox has escaped the hounds on this particular hunt. Indeed, the noble Lord, Lord Hooson, whose constructive contribution I much welcomed, pointed out he thought they were mostly on a false line; so that my difficulties are to some extent reduced thereby. The noble and learned Lord, Lord Elwyn-Jones, was, I thought, extremely friendly and helpful about most of the things that he said. He knows very well that between us there are not many differences of philosophy about the application of legal aid and that I took on the system which had been developed under him and that I am doing, stage by stage, my best to improve it.
If the criticisms which were levelled in the Law Society Gazette and the Guardian newspaper are applicable at all, they are applicable to a period of five years, two and a half of which were spent under him and the rest under me; so that we both have our backs bared to the rod if there is a rod legitimately to be applied—which I personally doubt; because at the end of the day there has been no attempt to dispute the proposition with which I began, that over the last 10 years, and confining myself solely to the subject of criminal legal aid, under the system for which both parties are equally responsible, the expenditure on it has risen from £8 million in a year to £100 million in the current year.
Very few, I think, of the criticisms can be described as fair when the fact is that four successive Lord Chancellors—two of whom were me—have been presiding over a system which is the fastest-growing system of social service at present existing in the country when we have to compete against the demands (which have legitimately so much more political sex appeal) of education, health, defence, pensions and lower taxation. I do not think that the case for the hounds has been made out. To be fair to The Times, they are suffering from the loss of their legal correspondent and I hope that they find another.
The noble Lord, Lord Elwyn-Jones, asked me a number of questions. One of them was about law centres. As he remembers, he bailed out seven law centres and I have kept them on just as he preserved them. The other law centres mainly come under departments different from mine and they are currently the subject of discussion. They play a part—of course they do; and an important part—in the systems of legal aid that we operate. I should like to develop this at much greater length. I visited one of the seven—namely, the one at North Kensington, with which I believe the noble Lord, Lord Gifford, has some connection—and I was much impressed with the dedication of the young people who were serving it. But I do not think that one can deal with it on the subject of a Legal 780 Aid Bill except to say that they perform a useful service. What permanent part they will play in our legal aid system I think it is a little early to say, but I shall be very sorry to see any of them lose for loss of funds. Most are funded by a source very different from my department.
I think that one must look at the Benson Commission Report, to which reference also was made in the light of the Benson Commission view (with which personally I happen to agree) that these centres by themselves have to be reviewed against the chain of citizens advice bureaux rather than in isolation as a separate subject; because the idea of law centres without an appropriate chain of what one might call advice centres generally, which are formed by the citizens advice bureaux, and providing perhaps a legally-specialised annex to them, is not one which I think I should be prepared, on the whole, to endorse. But I hope that we may have time, sometime later in this Session, and in one connection or another to revert to that.
The Philips Commission again raises a question which I cannot answer at any length and for a reason which has emerged again and again during this debate. That is, the division of ministerial responsibility between the Lord Chancellor's Department and the Home Office. The Home Office is responsible for legal procedure and the magistrates' courts. Whether this is an ideal arrangement is something about which I am more entitled to speak freely in Opposition than when I am in office. But some ex-Lord Chancellors have sometimes thought that perhaps the perfect frontier has not been reached. Changes in legal procedures have to be announced by the Home Office and carried through by the Home Office Minister. I am told that the answer on Philips is that the Government are not yet ready to announce their decision but that the report is under "active consideration". According to "Yes, Minister", that means that they have lost the file but are trying to find it. I cannot believe that this is more than a wicked satire.
As far as committal proceedings are concerned, I hope it will be possible for an amendment to be moved to the Criminal Justice Bill removing the need for solicitors to attend on uncontested committals. That deals with one of the welcome points also raised by the noble Lord, Lord Mishcon, in his speech. So far as the revocation of legal aid is concerned, it arises when a defendant requests or a solicitor withdraws from the case and the defendant's conduct is such that it is unreasonable to assign new representatives. The Committee will only revoke—and the fact that the Committee will be responsible probably gives better protection than exists at the moment—where the court is not satisfied that it is reasonable to assign new representatives. The involvement of the Committee thus increases the defendant's protection.
Regarding contributions in the context of the Child Poverty Action Group's criticisms, regulations that we propose to make will substantially increase the income levels below which no contribution can be ordered. They will thus help defendants and to that extent—though I do not hope to satisfy him in the entirety of his complaints—I would go along with the noble Lord, Lord Gifford, and others.
The provisions of Clause 4(3) regarding legal aid for children preserve the existing powers under Section 781 32(2) of the 1974 Act. The court will not be obliged to take parents' means into account, and I would not expect them to do so where the parents are effectively disowning the child by refusing to co-operate. The court even then will be able to give legal aid to the child. Of course, if he was effectively disowned by the parents, he would be virtually without means.
My noble friend Lady Macleod raised a number of very welcome questions. I was particularly glad for her contribution to the debate, for she was—as she rightly said—the only legally unqualified person taking part in it. I should like to write to her about her queries. I shall see that is done. Although the noble Lord, Lord Gifford, claimed that he was one of the wolves that would not be kept at bay, he has not really thought out one or two fundamental questions about the philosophy on which legal aid is granted. The object of legal aid—I am not talking simply about the criminal but also civil legal aid, and indeed legal advice and assistance—is not to provide a free social service to everybody. It may be that we shall come to that one day. I do not think that would be desirable; but that is neither here nor there.
From its inception with the report of the Rushcliffe Committee, the philosophy of legal aid of all kinds has been an attempt to put an assisted recipient and litigant, whether in civil or criminal proceedings or non-contentious advice, in the same position as he would be if he were unassisted. This is something which should be recognised throughout the whole system which we are trying to administer. That is to say—take the ordinary civil case—if he brings an action against an impecunious defendant and is made to pay a contribution, he will not get his contribution back in a civil case. An unassisted litigant can, as the noble and learned Lord, Lord Denning, pointed out the other day, be made the subject virtually of a persecution by an impecunious plaintiff and if that impecunious plaintiff loses without means and without merits, the unassisted litigant will be put to enormous cost which he will not be able to recover unless a special order is made by the court enabling him to recover it out of the legal aid fund.
There are many aspects about litigation which are unsatisfactory, and they are not likely to be made satisfactory in the immediate future. I do not see any reason why a person who happens to come just below the eligibility limits should not be made to make a contribution which he will get back if he is acquitted.
When the noble Lord, Lord Gifford, says that it will be intolerable if any kind of merits test is applied, does he really mean that one should not inquire into the means of a person? Does he really mean that the kind of consideration that one puts to one's client when one is appearing in a criminal case, when a frivolous plea is suggested, should not equally apply to the assisted client? When he says that it would be intolerable that he should not be able to change his solicitor or barrister as often as he liked at the taxpayer's expense, does he really mean that every time a person receives unpalatable advice he can go shopping around at the taxpayers' expense to get a new representative who will be less honest and more pliable? I do not think he does. I simply give him the credit of not having looked into the matter as deeply as he will one day.
782 He raised a matter which has given me both some concern and to some extent complaint. As he rightly says, there are one or two courts which will not in fact allow duty solicitor schemes to be introduced. I think that they might be wrong in refusing to do so. Those courts purport to justify their attitude by questioning whether the availability under the ordinary legal aid scheme of solicitors who practise opposite their doors is not sufficient, and they have raised questions about the competence of those who would otherwise appear as duty solicitors. I have always encouraged duty solicitors' schemes. The effect of the Bill will be to allow the Law Society to bring their influence to bear, as well. That is a good thing. I am always reluctant to use the big stick when persuasion and courtesy will achieve a like result with the goodwill of the profession concerned, and the Law Society has been of great assistance to us.
Frankly, at the moment I am not impressed by the suggestion that we should abolish contributions in magistrates' courts altogether. The revenue is not big; it is about £1 million. I suppose one would save a very small proportion of that in administration costs; but I personally follow the main philosophy which is that the assisted litigant should be put in as good a position as the unassisted litigant with due account of means.
I have already dealt in passing with some of the valuable points—not all—raised by the noble Lord, Lord Mishcon. I have told him already that we hope to abolish the need for defence solicitors to attend court on a formal committal in an amendment to the Criminal Justice Bill.
There is a waste of money caused by solicitors having to wait for their case to be called on. I am told that the waste is of the order of £8 million a year, which is a not insignificant sum. It is something with which, by means of better listing, we hope to cope. One of the aims of the Bill, as I have indicated, is to improve the listing arrangements in the Crown Court by the provisions of the Bill by getting information early enough to know what cases are likely to run on and what cases are likely to go short or break down.
I fully acknowledge the problem about an appeal from a refusal by a magistrates' court in the grant or refusal of bail. There is, of course, an appeal by civil legal aid to the High Court and that is something which is subject to a merits test; but it is not my last word in the matter. I recognise that arrangements are not entirely satisfactory. There is a case for providing a defendant who has been refused bail by a magistrates' court with an early opportunity to apply for bail to the Crown Court, but the precise form of any such arrangement would require further consideration. I understand that an amendment to the Criminal Justice Bill to provide such an avenue of application has been put down in another place. I can only say at this stage that the amendment is under consideration.
I am particularly sympathetic to the suggestion, which is quite rightly made in a rather technical matter outside the scope of this Bill, that legal aid should be available to parents in child care proceedings. This has caused me considerable concern. The cost would be about £1 million. I put it rather high on my list of priorities, but, with so many pressures on the way in which existing forms of legal aid are being constrained 783 for one reason or another, I do not think I can give a positive promise with a timescale attached at this stage. But I consider the case to have been made out and I shall look upon it sympathetically as and when resources can be made available. That is the best I can say about it.
With the Mental Health Act, I seem to have lost the file—which means that the matter is under consideration—but I think I can say that there is a less formidable case here than that which I have just mentioned about child care. The belief in legal representation in regard to mental health is something about which I cannot speak from personal experience. It is certainly touching to a professional advocate to know that there is this confidence in legal representation.
The mental health tribunals, so far as I know, have a rather different function in some ways from an ordinary court although they have, quite rightly, been described for the purposes of the European Convention on Human Rights as an independent tribunal. Most courts use representation and direct their inquiries either to something which has happened already, or to the application of legal principles to a defined set of facts. The mental health tribunals do try to peer into the future. I am not myself quite sure how far either the advocate or the judicial procedure is suitable for that kind of inquiry, but I am advised that there is a case for representation before mental health tribunals and I will certainly convey to those who are responsible for them the views which have been expressed in this regard.
There is at the end of the day a general feeling as a result of this debate that this Bill will provide a genuine advance on something which has been built upon before, and I think that is the right conclusion to draw from it. I cannot promise the noble Lord, Lord Gifford, the kinds of radical reforms he asks for. Successive Governments have built on these foundations and I am afraid that so long as I am here I shall have to go on building. I do not think I can say more than that.
I am grateful to the House for the courteous way in which this Bill has been received and I hope we shall have interesting debates on Committee. Certainly I shall ask those who advise me to go through the debate and see what points I have not dealt with, and write to the noble Lords concerned, because I am perfectly sure there are aspects with which I have not dealt. I shall try to see that those defects are remedied. Having said that, I beg to move that the Bill be now read a second time.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.