HL Deb 16 March 1982 vol 428 cc523-46

3 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 [Advice and assistance by duty solicitors]:

Lord Elwyn-Jones moved Amendment No. 1:

Page 1, line 8, leave out from ("whereby") to ("courts") in line 10 and insert ("services to which this section applies are provided by solicitors in attendance as duty solicitors at magistrates' courts and juvenile").

The noble and learned Lord said: Clause 1 of the Bill deals with duty solicitors' schemes which the noble and learned Lord the Lord Chancellor commended on Second Reading and indicated that they have proved their worth, as has been the case. As I understand it, the original intention of the Bill was that access to and remuneration of duty solicitors would be under what is known popularly as the green form scheme. This may explain why the words "advice and assistance" appear in Clause 1(1)(a) of the Bill because they would be appropriate if the remuneration was on the basis of the green form scheme.

The noble and learned Lord the Lord Chancellor indicated on Second Reading that the provisions of Clause 1 will, among other things, enable more satisfactory arrangements to be made for remuneration instead of continuing to require duty solicitors to act under existing schemes for aid, advice and assistance. It would seem, therefore, that special arrangements are to be made for payment of duty solicitors at magistrates' courts. If that is the intention, it may be desirable in the view of the Committee and of the noble and learned Lord the Lord Chancellor that it should be clearly stated in the clause. This explains the existence of Amendment No. 1, which I am now moving. It may be convenient to consider at the same time (because they give rise to the same point) Amendments Nos. 2, 3, 4, 9 and 21. I beg to move the first amendment standing in my name and that of my noble friends.

The Lord Chancellor

I am sympathetic to these amendments, if I may be allowed to say so. They are not absolutely in order as they now stand. A consequential amendment would be required in Clause 13(3), I am advised. The reference to juvenile courts is unnecessary because Section 148 of the Magistrates' Courts Act makes these magistrates' courts in any event. I think the wording of the present text could be misunderstood. I understand that that is also the view of the Law Society. I am not necessarily wedded to the expression "services" which is proposed. Maybe other phrases such as "advice and representation" are more suitable. Subject to those criticisms, if the noble and learned Lord would withdraw his amendment, I will undertake to put down amendments at Report designed, at any rate (and I hope successfully so), to meet the principle underlying this series of amendments.

Lord Elwyn-Jones

I am grateful to the noble and learned Lord the Lord Chancellor. However, on the point of the specific reference to juvenile courts, I do not know that there is any reference to the Magistrates' Courts Act in the Bill itself. For clarification and for the elimination of anxieties that the juvenile courts are not covered as clearly they ought to be by duty solicitors schemes, I wonder whether anything is lost by specifically referring to them in the clause. Perhaps the noble and learned Lord would give thought to that before Report stage as well as to consideration of the amendment as it now stands.

The Lord Chancellor

I am glad to take that point on board and to take advice on it.

Lord Elwyn-Jones

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2, 3 and 4 not moved.]

3.7 p.m.

Lord Mishcon moved Amendment No. 5:

Page 2, line 4, leave out ("two") and insert ("five").

The noble Lord said: If I may say so, a very sensible provision has been made in the Bill for people other than practising lawyers to be members of the relevant committee that will administer this system of legal aid. In the Bill, the addition is made—and I am seeking to make it mandatory; and with your Lordships' permission I will speak to Amendments Nos. 5, 6, 7 and 8 so that you are laboured with only one speech—of a justice of the peace and a justices' clerk. That is obviously extremely sensible. The amendment seeks to increase the Lord Chancellor's nomineeship from two to five and to see to it that, in addition to the justice of the peace and the justices' clerk, there shall be three additional appointments of those who are not practising members of the legal profession. Your Lordships may feel that that is a most unselfish amendment for me to move; but I move it with the greatest of pleasure.

Lord Gifford

I support this amendment. I do so, as noble Lords will know, as someone who, as chairman of the Legal Action Group, has been much exercised with this question of how the consumer interest in the provision of legal services can be taken care of. It is very difficult, particularly in the criminal courts, because there are no convenient associations or unions of defendants in those courts; so that there is all the more need to ensure that those agencies which are involved in the supply of legal services should be accountable not just to lawyers' committees but to committees in which lay people are involved. This is particularly so with the duty solicitors scheme. In a great number of courts the duty solicitors schemes have been a very valuable innovation, providing access to solicitors for those who have no solicitor, who may have been arrested overnight in police stations and who come to court quite bewildered.

There are dangers in the operation of the scheme. The experience has been uneven, and in some cases there is the danger that the scheme is a convenient way for solicitors in a town to parcel out the criminal business among themselves. Therefore, the committees which supervise the duty solicitor schemes—and I speak here to the amendments which deal with both the national and the local committees—need to have people not just aware of the interests of the lawyers but of the interests of the clients. I am thinking of members of the probation service, those who serve on the committees of Citizens Advice Bureaux and of law centres, who are aware of some of the difficulties from the consumer's point of view that may arise from the operation of the schemes.

The Lord Chancellor

Again, I welcome the principle behind the suggestion in this series of amendments. I would regret an exact number of lay representatives above two because this would create an inflexible position in which the number could not be revised in the light of experience. I also would not like to reach a situation—which I am told would be reached on the present text—that if for any reason a justice of the peace or justices' clerk could not be appointed to a committee, the committee could not be appointed at all. This would put more than one person in an invidious position. Subject to these two reservations, I welcome the amendments in principle and again I seek leave—if the noble Lord will be good enough to withdraw the amendments—to see how we can give effect to the thinking behind these matters before we reach another stage of the Bill.

Lord Mishcon

I am most grateful to the noble and learned Lord. In view of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6, 7, 8 and 9 not moved.]

3.12 p.m.

Lord Elwyn-Jones moved Amendment No 10:

Page 2, line 20, at end insert—

("(7) Where arrangements have been made pursuant to subsection (1) above whereby advice and assistance to which this section applies is to be given by solicitors in attendance at a magistrates' or a juvenile court it shall he the duty of that court to secure that reasonable facilities are provided for such solicitors to give such advice and assistance.").

The noble and learned Lord said: The purpose of this amendment is to make sure that courts and their staffs allow duty solicitor schemes to operate. At the present time it is possible for courts—as I understand is the case in Marlborough Street in London and the court in West London—to refuse to have duty solicitor schemes, despite the fact that the value of the participation of duty solicitors is now widely acknowledged. Solicitors are willing to take part in this important endeavour and both national and local law societies have done their best to extend the user of duty solicitors. Indeed, they now operate in as many as 138 magistrates' courts.

There are also courts which, while they have duty solicitor schemes, do not allow them to operate properly. For example, court staff—or even the police in some cases—refuse to allow the duty solicitor to have access to defendants in the court, which is a pretty effective sabotage of the whole idea of the duty solicitor. I am informed by information sent to me by a legal action group that this happened in the Nottingham City Magistrates' Court after the summer disturbances there. This is a situation that needs to be tackled. The Bill would seem to be an appropriate place for it to be dealt with as it is now proposed to establish duty solicitor schemes on a statutory basis.

The participation of magistrates and clerks on the organising committees may help to achieve a greater degree of co-operation, but there may still be those who for whatever reason will simply not allow duty solicitor schemes to operate in their courts properly or at all. The aim of the clause that we are discussing is to establish a statutory framework for ensuring that schemes measure up to minimum standards. Our view is that the clause and the provisions of the Bill need strengthening by imposing a statutory duty on courts to provide reasonable facilities to enable duty solicitor schemes to function.

The exact nature of those facilities will no doubt be set out in the scheme under Clause 1 in due course. But such a scheme cannot place the courts under a duty to co-operate unless there is express provision. One is reluctant, I understand, to bring the sledgehammer of statutory duty to bear when one would have expected magistrates—whether stipendary or otherwise—to co-operate in these schemes. As there are some recalcitrant persons and bodies, it is right that the statutory duty should be imposed which would end what is a very unsatisfactory state of affairs in certain of the magistrates' courts. I beg to move.

Lord Davies of Leek

May I as a layman speak on this amendment. Would I be right in asking whether "reasonable facilities" would mean that if help were needed in a court there would be a certain amount of privacy and organisation so that the client and solicitors could get together without hindrance and without being overheard in the general atmosphere of the court? Am I right in considering that "reasonable facilities" would mean something like that?

Lord Elwyn-Jones

May I take the liberty of assuming that that question is directed to me? The answer is that that of course is a very important facility which ought to be provided and is provided in the 138 courts where the duty solicitor schemes operate.

Lord Davies of Leek

I thank my noble and learned friend.

Baroness Macleod of Borve

As one who has had the benefit of presiding in court with the help of duty solicitors for very many years, I should like to support this amendment. I should like to support in particular the words "a juvenile court". But before it are the words "at a magistrates' or a juvenile court" and I should like to have "and a juvenile court". That would help the magistrates enormously if, for instance, there was a not-too-difficult case and they could perhaps put back the case in a juvenile court to the afternoon where the duty solicitors could be consulted by the parents, for instance, in a care case. If we were able to have consultations with a duty solicitor at that time, it would save the costs of the court and the court's time. Then the case would not have to be remanded for perhaps a parent to be represented. In that spirit, I welcome this amendment.

The Lord Chancellor

As I said on Second Reading, I am anxious not to use the mailed fist on courts if I can proceed by persuasion and consultation. I recognise that there are two courts in London which at the moment do not permit duty solicitor schemes. I understand that the thinking behind their attitude is to ensure the competence of those who are working under the legal aid scheme. As I said again on Second Reading, I am not at all sure that they are right in this attitude. I should like to proceed by persuasion where I can, and it is quite clear that at the moment there may be quarters where a statutory requirement to allow duty solicitors to operate would be resented.

The point about access which the noble and learned Lord raised arises in this way—and I have considerable sympathy with it. It is suggested that duty solicitors should have an unfettered right of access to the cell area at magistrates' courts. I understand that, technically speaking, the cell area is the responsibility of the justices' clerk; but he generally leaves control of access to the cells to the senior police officer on duty. I hope and believe—and I am advised—that the police are well aware of the importance of allowing duty solicitors to contact defendants who may need their services so that the defendants can obtain legal advice before they appear in court.

Of course, the point which the noble Lord, Lord Davies of Leek, made about privacy is of vital importance to legal advice. I understand—and I have tried to make inquiries since I discovered that this point was likely to be raised—that there have been occasions when a very large number of defendants have been in the cells on a particular day and security considerations have made it difficult to allow access to duty solicitors. When that happens it is, of course, particularly important for the court to make alternative arrangements to ensure that defendants can obtain legal advice before being asked to plead.

I would rather not have the mailed fist so nakedly displayed in a statutory duty, but I think there is a good deal in what has been said and I should like to see whether a regulatory power may not be enough: that is to say, a power enabling me to direct in certain circumstances might perhaps be the better way of doing it. There are factors in the present text of the Bill which make it on the whole more likely that objections will be withdrawn. To begin with, the Law Society, under Clause 1, will have the opportunity of seeing that those acting as duty solicitors are competent, which will remove one of the difficulties which I understand have influenced courts against them. Moreover, the provisions we have got now and which we have just been discussing, for a justice of the peace and a justices' clerk to be on the committees supervising the schemes, would help to overcome certain hesitations about accepting them.

There is a difficulty in forcing things on reluctant courts. I think I would be willing to do that in the end if the difficulty continued but I am rather hopeful that, with the Lord Chancellor's power to veto schemes he thinks unsuitable, the Law Society's ability to ensure that the duty solicitors provided are competent and the lay representation on the committee, it may be possible to overcome resistance without the unpleasantness involved in the naked use of legal force. I wonder whether the correct way forward would not be for me to undertake to give the matter further consideration and see whether a regulatory power vested in the Lord Chancellor would not suffice to meet the underlying thinking of this amendment. I am myself prepared to give it as favourable consideration as I know how; and at any rate we can come back to it on Report.

Lord Mishcon

I wonder whether the noble and learned Lord, in the wake of those very helpful remarks, could go one stage further? Everyone would agree it is right and proper that the facilities should be available. The noble and learned Lord feels that it is the presentation of a mailed fist if one makes it obligatory. I know he will pardon me if, with respect, I say that I think it would merely be an efficacious glove and not a mailed fist, because obviously it would not affect in the slightest those courts which are making the facilities available; they would regard it as being merely a repetition of what they are normally doing.

When it comes to the courts which are not, I wonder whether it is sufficient—although the noble and learned Lord was most gracious in saying that he would consider this—to rely upon a regulatory power in the future, if only because an awful lot of happenings where facilities are not made available would obviously have to be brought to the noble and learned Lord's attention before he made the regulation. In those circumstances a considerable number of defendants would have suffered as a result. I would ask the noble and learned Lord this. In the course of his consideration in regard to a regulatory power, will he consider these remarks, for what they are worth?—because I am sure that on all sides we have precisely the same end in view.

The Lord Chancellor

Again, I will happily take that on board. I think perhaps I did not make myself fully plain on the question of reasonable facilities, because it deals with only one part of what the amendments contain. But, in any event, even if a stututory duty to provide reasonable facilities were to be put into the Act, it could not be enforced except by direction from someone; and it would be an extremely clumsy way of enforcing the duty to provide reasonable facilities to have a separate set of regulations about it. In the end, if one is going to give efficacy to a duty of this kind, there ought to be a direction from someone; and I think a direction from the Lord Chancellor would be an appropriate way.

If that is right, it rather adds force to my preference for taking a regulatory power and seeing what can be done by way of containing a moderately mailed fist within a respectably covered glove. I think in the end it has to be a power to direct in individual cases rather than to have the rather crude weapon of something written into statute, because in the end the provision has to be enforced and I do not see how it can be done except by way of regulation and direction from the Lord Chancellor's Office—a last resort from which I would shrink if possible but to which, if it proved impossible to do any more shrinking, I would ultimately have to have recourse.

Lord Elwyn-Jones

We are grateful to the noble and learned Lord the Lord Chancellor for his sympathetic response to this amendment. When one thinks of reasonable facilities, it is some time since I endeavoured to speak to a client in or around the police cells in a magistrates' court. It was very difficult to do that even if one had the right of access, and therefore one does appreciate the difficulties.

I wonder whether, between now and Report stage, it might be possible to deal with the immediate anxiety created by the two London magistrates' courts which are refusing the presence of duty solicitors. If that could be done by way of inquiry between now and Report, with the magnificent machinery the noble and learned Lord has available in his department and with the terror that any communication from so high a source always creates in subordinate bodies and institutions, it would be most helpful. I do not know whether the noble and learned Lord would like to respond to that now. If not, I would ask leave to withdraw the amendment.

The Lord Chancellor

Again I will take it on board, if I may. I have already taken certain steps but I think I had better not specify what they are at the moment. I hope the noble and learned Lord will be satisfied with that.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Legal aid for committal proceedings and trial]:

3.29 p.m.

Lord Gifford moved Amendment No. 11:

Page 2, line 31, at end insert—

("(3) Provision shall be made by regulations for the fees and expenses payable to a solicitor or barrister under a legal aid order made by virtue of this section in respect of work done before the defendant is committed for trial to be assessed and paid after the conclusion of the proceedings before the magistrates' court.").

The noble Lord said: I beg to move Amendment No. 11 and in doing so would declare my interest as a practising barrister, because this amendment deals with the time at which solicitors and barristers should be paid for work done under legal aid. Clause 2 is a provision which allows a magistrates' court to make a legal aid order which will be applicable not just to the magistrates' court proceedings but to the Crown Court proceedings if the case is committed for trial.

On the face of it, it seems a perfectly tidy and logical thing to do. But, in one respect, I wonder whether the consequences have been sufficiently thought through, because what happens when legal aid is granted to a defendant is that the solicitor proceeds to do all the work and instructs the barrister, and at the end of the case a bill of costs is put in and assessed or taxed by the court official and the lawyers get paid. But, clearly, if the legal aid order is to run from the day on which the defendant is first arrested until his trial at the Old Bailey a long time afterwards, the payment will be considerably held up.

The QCs and senior barristers who appear at the trial will not be affected, because they all get paid promptly at the end of the trial. It is the junior barristers and solicitors, who do all the work of the committal proceedings, often involving appearances week after week when there are eight-day remands, who will suffer if the costs cannot be assessed, taxed and paid until right at the end of the case.

I am particularly concerned about the position of young barristers. In any case, they are in a dreadful enough state, from the point of view of finance. They get no pay while they are in pupilage in their first year, and in the second year of their practice this is very much the kind of work that they are given—appearances to make bail applications, adjournments and remands and appearances at committal proceedings. They get that work, but they normally do not get the trials. If they then have to wait for what can be a year or 18 months before their remuneration comes through, then that will be a very serious blow, at what is, among all lawyers, by far the most vulnerable sector.

It is a point of quite general importance, because the worse off that young barristers are, from a financial point of view, the more deterrent there is for those who do not have funds to join the Bar at all, which is already an important factor. So this amendment, which seeks to provide for an assessment and payment of the fees after the committal stage is over, is, I hope, a useful proposal to make. I beg to move.

The Lord Chancellor

Again, this is an amendment with which, perhaps, I have a certain amount of sympathy. I am told that it is defective in its present form, because the phrase, after the conclusion of the proceedings before the magistrates' court". would enable courts to Wait until after the trial in the Crown court, because that would be after the conclusion of the proceedings in the magistrates' court. So I think that the amendment is defective in that respect and needs a new and different formulation.

But, if I may expand a little on the thinking that I have about this amendment, I should first like to define, for the benefit of those who are not so familiar with these matters, two phrases. You can get legal aid, I understand, on committal either on a through order, which gives you legal aid both in the magistrates' court and at subsequent trial at the Crown court, or on separate orders when there is an order for the magistrates' court and an order for the Crown court. I think that the profession is concerned, and the noble Lord, Lord Gifford, has rightly pointed to the fact, to ensure that lawyers acting under a through order—that is, one which applies to both courts—should not receive payment for work done on committal later than lawyers receiving their remuneration under separate orders.

I begin by asserting categorically that it is not the intention to penalise financially lawyers acting under through orders, by comparison with lawyers acting under separate legal aid orders, and I am glad that the noble Lord, Lord Gifford, reminded us all about the difficulties which young barristers sometimes find—and I expect it might even be young solicitors, although their situation is not quite the same—if there is a delay in payment of their fees. That must be so in the nature of things, if no payment is made in respect of work done for the committal and the remand hearings until after the trial. I quite see that point.

I am trying to find ways of getting over these difficulties. One way would be to have a simple standard charge covering all pre-committal work in most cases. Another would be to have a broad brush interim assessment at the end of the committal, with a full taxation at the end of the case. Officials are still discussing with the profession what might be done on these lines. I have already power under Section 39 of the Legal Aid Act to make suitable provision, if we can hit on a suitable method.

In the form in which it is proposed, I find difficulty in accepting the amendment, because it is desirable that, at the end of the proceedings in the Crown court, the taxing officer there can look at all the work which has been done, including pre-committal work, and he must ensure that there is no overlap between taxations for work done in each court. A through legal aid order, in its present form, facilitates this, but the amendment would defeat it.

I think, also, that the amendment in its present form would have the effect, which I believe to be unintentional, of requiring the taxing officer for the committal proceedings to tax any work done before the committal which was done in preparation for the Crown court proceedings. I do not think that would be sensible. I want to encourage early preparation for Crown court proceedings, but it would not make sense to tax some of this work separately from the rest of the preparation. I would at this stage again ask the noble Lord, who proposed this amendment, to withdraw it now in order to permit further consideration on both sides. I am certainly sympathetic to what he said and I intend, if I can, to give what effect is possible to the thinking behind it.

Lord Gifford

I am very grateful for what the noble and learned Lord has said and I certainly do not intend to press this amendment. The matter has been raised and has been met with very clear replies and assurances by the Lord Chancellor. I hope that the work which he reports as being in progress can be brought to its conclusion, or near to its conclusion, by Report stage, so that when we finally pass this clause we know whether this has been arranged through administrative means, or whether some form of amendment of the Bill will be necessary. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

3.38 p.m.

Lord Elwyn-Jones moved Amendment No. 12: After Clause 2, insert the following new clause:

("Appeals against refusal of legal aid.

.—(1) An appeal shall lie to the Crown Court against the refusal by a magistrates' court to make a legal aid order under section 28(2) of the principal Act. (2) Provision shall be made by regulations as to the manner of making appeals to the Crown Court under this section and the time when such apeals shall be made and disposed of.").

The noble and learned Lord said: This proposal for a new clause to cover appeals against refusal of legal aid is a change to which we attach very great importance. One of the defects in the criminal legal aid system at the present time is that grants and refusals vary very widely from one court to the next and, sometimes, it seems as if whether you get legal aid or not if you are in trouble depends more on which petty sessional area you live in than on the needs and justice of the particular situation.

The disparity in the granting of legal aid from one court to another is very remarkable, especially in London but also in other parts of the country. For instance, in South Wales a defendant in the Lower Rhymney valley is eight times more likely to be refused legal aid than someone who appears in the Upper Rhymney Valley. Whether the social standing of those living in the Lower Rhymney valley is far higher than that in the Upper Rhymney valley I know not. I do not happen to come from that particular valley. But in the London scene the situation is quite extraordinary. The average percentage of legal aid refusals in the metropolitan area is 16 per cent. At Highbury Corner, however, it is 26 per cent. and at Wells Street 24 per cent. But way up, or down, in Hampstead it is only 4 per cent. There seems to be no great rhyme or reason for this disparity. In view of the importance of the application for legal aid in the magistrates' court, it seems to us on this side of the Committee (and it may be in other parts as well) that there ought to be a right of appeal to the Crown court against a refusal by a magistrates' court to make a legal aid order.

The provision of legal aid is a crucially important social service. In other branches of the social services the right of appeal from the refusal of a benefit is already a feature of the welfare state system. It seems to us to be right that there should also be a right of appeal against the refusal of legal aid by magistrates, particularly in the light of the extraordinary situation which now prevails. I beg to move.

Lord Wigoder

I support the amendment moved by the noble and learned Lord, Lord Elwyn-Jones. The disparities, some of them quite grotesque, to which he has referred are well known. My own experience was that it was perhaps more due to the idiosyncracies of the justices' clerks than to the idiosyncracies of the justices themselves. It would strengthen the case very much if there were a form of appeal to the Crown Court which would iron out those discrepancies.

I could understand it if the noble and learned Lord the Lord Chancellor were worried about the expenditure which might be involved by a number of appeals, by the time taken up and by the pressures on the Crown Court. I would only venture to suggest to him that perhaps it might be easy to exaggerate the effect of this new clause, if it were placed into the Bill, on the number of such appeals. Once this system got going, the result would be a standard, uniform practice in each area covered by the Crown Court. Those courts which were wrongly withholding applications for legal aid would realise very quickly that they were wrong and would come into line with their colleagues in accordance with the indications given by the Crown Court. After a few introductory appeals of this nature, I should think there would be a general standard which would be accepted by all courts and there would not then be a substantial number of appeals.

I hope that the noble and learned Lord will give the same sympathetic consideration to this proposal as he has given to the other amendments so far put forward.

Lord Gardiner

This seems to me to be the most important of the amendments before the Committee. In any ideal system of justice, any man or woman who comes before a criminal court—maybe innocent, maybe guilty—should be treated in the same way. In practice, this is an impossible standard to achieve, simply because judges and magistrates are human beings and there are bound to be differences. But there does come a point where the differences are so great that manifest injustices are done. This seems to me to have happened in this particular field. It is very difficult to understand how, as I think my noble and learned friend Lord Elywn-Jones has said, Hampstead and Highgate being adjoining places, it should be eight times more difficult to get legal aid in the one than in the other. And Highbury Corner has become a by-word.

The ordinary way of reducing differences of this kind is by providing a right of appeal, which is one of the things the appeal courts are there for. A superior court can enforce its will on a lower court. I should have thought that there was a very strong case indeed for saying that there ought to be a right of appeal against a refusal of legal aid. Personally, I would venture to agree with the noble Lord who has just spoken that it is unlikely that there would be a flood of appeals; probably there will be only a few appeals, and those courts which are not in line will, I feel sure, come into line. Therefore I hope that the noble and learned Lord the Lord Chancellor will give his sympathetic consideration to this amendment.

3.47 p.m.

The Lord Chancellor

There is a very real problem here. To that extent I am wholly sympathetic to the amendment. I am also rather doubtful whether this amendment finds the right answer to it, and I shall try to give my reasons.

To begin with, it is a fact that there is rather a startling variation in the proportion of refusals of legal aid in different courts. Given identical conditions, ideally one would like to see a greater uniformity of practice. I have already initiated inquiries to try to pinpoint the points on which they differ. I make the preliminary point—without making it by way of assertion but simply by way of a warning note—that it by no means follows either that the lowest rate of refusal is right or that the highest rate of refusal is wrong. It may very well be that the truth lies midway between those two extreme positions. One obviously wants to aim at some kind of uniformity of criteria and enable rates of refusals and grants to be compared with one another. The trouble is that the crude figures are not necessarily a very good guide to us yet. That is why I have asked for an investigation to take place.

There are two sets of quite different criteria which apply to the grant or refusal of legal aid. One is based on the means of a defendant. Obviously, if one court is in a different area from another court, there may be a different proportion of defendants with and without means. A very great variation may also exist between those courts which have duty solicitor schemes and those which do not. I would expect to find refusals more numerous where the duty solicitor had been at work to where he had not. Again, the crude figures do not tell us anything about the proportion of defendants represented, which is the significant factor here.

There is another factor which may be of importance but about which I should certainly like to find out more. Courts do not deal with the same types of case. In addition to the means test, there is the interests of justice test. Although I am grossly oversimplifying about this, the Widgery criteria are the ones which are sought to be applied. Broadly speaking, the more serious the case of the defendant the more likely he is, or ought to be, to get legal aid if he passes the means test. There are some courts which take a disproportionately high number of, say, speeding offences which normally do not attract legal aid on their merits. Then the quantity of motoring offences and other trivial offences does not fall evenly as between different kinds of court.

It is exactly these sort of factors which I want to discover more about in order to diagnose the disease, because it is good legal as well as medical practice to diagnose the disease before you prescribe the remedy. I have very great doubts about the prescription of the remedy here. Supposing you were to say that there ought to be some recourse from a refusal to grant legal aid, I am not sure that I should venture to disagree at all. In principle, I believe there should be. But, as to whether it should take the form of an appeal to the Crown court, I have many more reservations.

Let us for a moment forget about the means test cases, which ought to be capable of solution on objective criteria, and take instead a marginal case, such as a motoring case of a more serious kind. Here, a man might be charged with a summary offence of some kind which is just in the "grey" area where one might allow legal aid or might not. The man is charged with the summary offence and then applies to the magistrates' court for legal aid and is refused. He then, under the amendment, has a right of appeal, so the case has to be adjourned to the Crown court in order for the appeal to be heard. When it is heard, it is only an appeal against the refusal of legal aid. It does not really matter whether the appeal succeeds or fails, because one then has to go back to square one, to the magistrates' court, to have the case tried. The next stage may be that the man is acquitted in the magistrates' court and so he need not have appealed against the refusal of legal aid at all. Or it may be that he is convicted in the magistrates' court and a penalty is imposed which he does not really wish to challenge. Therefore, the whole of that preliminary canter has to some extent been in vain.

Let us assume that one does not have that system. One is still faced with the situation that the man has complete right of appeal on the merits of the case to the Crown court again. If he is convicted and he thinks he ought not to have been convicted, he goes to the Crown court and appeals against his conviction. If he is sentenced and he thinks the sentence is excessive, he goes to the Crown court again to appeal against sentence. I know that I am speaking to those who know about this as well or better than I do, but to others I should explain that the appeal to the Crown court is in each case a complete rehearing of the case. On the appeal to the Crown court the second time round, the man can apply for legal aid entirely de novo. It seems to me therefore that the apparatus set up by this amendment would really be a fifth wheel to a coach.

What I should like to do, although I cannot promise to do it at once, is to substitute some form of recourse against a summary court when it refuses legal aid which does not, preferably, consist of an appeal to the Crown court. I want to look at that, if I may, to see if it can be done. The trouble, quite apart from the rigmarole which I have been trying to describe, which would undoubtedly take place on a fairly large scale if the amendment was accepted in its present form, is that it is not only a question of money. A certain amount of money would be involved, but just how much would depend on the number of appeals which succeeded. There would also be a very considerable addition to the burden on the Crown court. This would interfere with what I have tried during my present term of office to make one of the most important priorities in my administrative attempts to deal with justice. I have been trying to get rid of the delays which have accumulated in the Crown court, sometimes to the detriment of justice on both sides of the fence—both the prosecution and the defence. A very large number of appeals to the Crown court, particularly in the South-East and London, which were simply appeals over magistrates 'courts' refusals to give legal aid would make a significant impact on the use of resources.

What I should really like to do, if allowed, would be to take this matter back again, and return to it on Report. As at present disposed, I cannot give any undertaking that the appeal I would give would be to the Crown court. I hope that that is plain; I am not promising to allow this amendment in its present form at all. I should like to try to find some means of recourse other than appeal to the Crown court, because I quite see the point of what has been said; namely, that the degree of uncertainty and variation is far too wide and that, in principle, legal aid can be such an important social service that some remedy against an idiosyncratic or mistaken refusal ought to be available if I can devise one. Perhaps I may be given another chance, but whether I can think of anything by Report I do not know. The reaction I was advised to make was to resist the amendment without making many promises. I should like to have another go at it and be given time for "amendment of life" as they say in the Prayer Book.

Lord Mishcon

This has been an interesting and obviously very constructive discussion on a very important matter. Indeed, I believe that this would be the only national welfare benefit (and it is a very important welfare benefit) where no right of appeal lies. Having heard the very clear words of the noble and learned Lord, I understand them as meaning that he does agree, certainly in principle, that some appellate procedure is necessary; that he feels that the Crown court procedure is not appropriate; and that he is going to give active consideration to bringing back at a later stage of the Bill an appellate procedure, but not necessarily one involving the Crown court. If that is what the noble and learned Lord meant, then we on these Benches are more than happy.

The Lord Chancellor

I thank the noble Lord, Lord Mishcon, very much. I used the word "recourse" rather than "appeal" but I am not sure there is anything between us at all. I should like to do something about this because I recognise that there is a substantial measure of justice in what has been put forward.

Lord Wigoder

May I put just one other thought into the noble and learned Lord's mind? Perhaps he might reflect on the possibility—and I put it no higher than that—of considering an appeal to the Crown court not by way of hearing but conducted in writing.

The Lord Chancellor

I will certainly take that thought on board.

Lord Gifford

I am very heartened by the words of the noble and learned Lord the Lord Chancellor. I wonder if he will also keep in his thoughts a suggestion which I made on Second Reading that we could bring the legal aid committees into this process. They are in Clause 3 already given certain functions with regard to criminal legal aid where, for instance, there is a change of counsel, a change of solicitor, or representation by two counsel. They have a lot of experience, not least from the lawyers' point of view, of knowing what sort of cases can benefit from legal aid. They could deal very easily with the questions which arise on means. Like other noble Lords, I believe the important thing is to attain some form of appeal or recourse, and I for one would not wish to insist upon a particular court or forum.

The Lord Chancellor

I am grateful to the noble Lord, Lord Gifford, for his suggestion and I will certainly take it on board. I ought to have said in my principal speech that there are 50,000 refusals a year. One cannot guarantee that there would be 50,000 appeals but, if there were, this would present the people for whom I am responsible in the administration of justice with a very serious quantitative problem.

Lord Elwyn-Jones

In view of the willingness of the noble and learned Lord the Lord Chancellor to see what machinery of recourse, to use a neutral phrase, can be attained between now and Report stage, I will certainly not press the matter to a Division. I am not sure that I am very enthusiastic about an appeal in writing to the Crown court. There are other more attractive possibilities, certainly from the point of view of the unsuccessful applicant.

Before I withdraw the amendment, I should like to express the delight of us all at hearing my noble and learned friend Lord Gardiner in action once again and seeing him recovered from his illness. We look forward to his continuing participation in our proceedings.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Legal aid contribution orders]:

4 p.m.

Lord Gifford moved Amendment No. 13:

Page 3, line 36, after ("paid") insert— ("(a) by such immediate payment on account of the contribution as the court making the legal aid order may in all the circumstances think reasonable; (b) after the conclusion of the relevant proceedings,").

The noble Lord said: I beg to move Amendment No. 13. With Clause 4 we enter a quite different part of the Bill which is concerned with the way in which people who receive legal aid should contribute, if they have the means to do so, to the expenses of their representation. Before turning to the amendment, or indeed to the Bill, may I make clear that we already have a system by which those who have some means can be required to contribute towards their legal aid. The way it works is this: when legal aid is applied for there is power in the courts to order that there should be an immediate payment, if the person applying has money available to make such a payment, and that is a discretionary matter in the courts. Then, when the case is over, the judge or the magistrates look at the position and decide whether the assisted person should pay a contribution or not.

Of course, where the legally aided person has been acquitted it is very rare for a contribution to be ordered, because normally such a cost would be refundable in any case. But where the person has been convicted the judge looks at the whole situation, including whether there has been a fine imposed, whether there has been a compensation order imposed to make restitution to the victim, what sort of financial and general state the defendant is in, and then he decides whether to make a contribution order, and, if so, whether it should be to the maximum amount which has been ascertained on the assessment.

My general reaction to Clause 4 and the succeeding clauses is that I know of no reason why that system which is now working is not found to be satisfactory. There is perhaps an anomaly in that in the rates at which people's means are assessed there is a difference as between criminal legal aid and civil legal aid, and that is something which the Bill does tackle. But apart from that there should be little reason to change. But the Bill casts that whole procedure aside. It provides that the court which grants legal aid shall immediately and there and then make a contribution order requiring the person to make contributions, and the person must then contribute, either in a lump sum or by instalments, with, as far as I can see, no latitude given to the court as to the period over which this should be paid. Whatever is down in the regulations as being the amount of instalments, having regard to the wages or the capital of the person, that will have to be paid, and paid while the trial is still pending.

It may be said that that is what happens in the civil legal aid scheme, but of course the civil legal aid scheme caters for quite different needs. You have a choice as to whether you take an action against a defendant in the civil courts or whether you defend an action which is brought against you. But in the criminal scheme you are brought before the courts by the authority of the state and you have no choice as to whether to continue with the case or not. I fear that a provision which forces defendants, if they are given legal aid, to pay up that proportion of their capital which is being assessed, which may be quite a heavy proportion, or to pay a substantial amount of their wages as they are awaiting trial, is going to operate as a deterrent; first of all, as a deterrent to a defendant as to whether to accept legal aid offered at all, and, secondly, a deterrent against fighting a case as against giving in and pleading guilty when in fact the defendant is asserting innocence. There will be pressure, added pressure, to take the cheapest alternative in order not to have to meet these very considerable costs.

I know that the general principle of legal aid is said to be that a legally aided client shall not be in a different position from a non-legally aided client; that is to say, if there is money available the money should be paid at once and not some months later. But of course legally aided people, even if they can pay a contribution, are not in the same position. Under the present regulations I think the capital limit is about £1,300, and for someone with, let us say, £2,000 capital, to be ordered to pay £500 or £700 towards legal aid is obviously quite different from a person who has £10,000 or £20,000 capital required to pay the same sum.

This amendment tries to tackle what seems to my noble friends and me to be the worst aspect of this new clause. It seeks to provide that the best features of the present system should be retained, that there should first of all be, at the discretion of the court, a down payment of what is thought to be a reasonable amount in all the circumstances, and, secondly, that the balance of legal aid should be paid at the end of the proceedings either in one sum or by instalments. All that will happen is that those who are required to pay will have to pay rather later than they would under the Bill. I would have thought that there would also be savings in bureaucratic time. A great number of people are acquitted, and under the provisions of the Bill all the instalments paid in will have to be paid out again if they are acquitted. Quite apart from that, the principle behind this amendment is that we should not pass a clause which could create a substantial deterrent to people of modest means from taking up an offer of legal aid. I beg to move.

The Lord Chancellor

I think there is a more substantial difference of opinion here between myself and the noble Lord who has proposed this amendment. The effect of the amendment is to strike at one of the cardinal provisions of this Bill by removing the power for regulations to prescribe that contributions should be paid, or could be paid, by instalments from the date legal aid is provided. In its place the court would have very much the same powers as now to order a down payment at its discretion, but the remainder of the contribution would not be paid until the proceedings had been concluded. The court would, by virtue of Clause 5(5), be able to remit the whole of the contribution, apart from any down payment, whatever the result of the proceedings.

When I became responsible for criminal legal aid a little less than two years ago I did invite suggestions, from those principally concerned in the profession, on what might be done to improve the present arrangements. One of the matters which attracted the most comments was the contribution system. The paper I received from the joint working party set up by the Bar and the Law Society drew attention to the defects of the present system. The paper suggested that we should move to a system similar to that for civil legal aid under which contributions could be payable by instalments from the date on which legal aid was granted. The provisions of Clause 4 followed the suggestions made by the joint working party of the Law Society and the Bar. Therefore, it has very substantial backing.

I should like to spend a little time reflecting mildly on the philosophy of the matter before I come to the defects of the present system. Legal aid is neither a universally available social service nor is it intended to be. Whether or not we ever get to that stage, I do not know, but it will not be while this present Administration are in office, and I doubt whether it is likely to come into force for a very long time, if ever it does. I should not, myself, welcome it. It is based, therefore, on criteria regarding both means and merits in civil legal aid and means and the interests of justice in criminal legal aid. Nor is it an "all or nothing" system. People are expected under the system, whether it is civil or criminal, to pay what they can and the object is to put a person of modest means into the same position as a person who could afford to pay the whole cost of his defence, by either supplementing the deficiency or by providing him with free legal aid where he comes below certain minimum limits. That is part of the philosophy of the matter.

The question about which we are arguing is not what the philosophy should be, but how we apply it in practice, whether or not the present system has defects and, if so, what those defects are and how can they be cured. The present position is that, although a court may order a defendant to make a down-payment on account of any contribution that may be ordered as a condition of granting legal aid, it cannot order a contribution itself until the conclusion of the case that is with a Crown court case—it may be some very long time afterwards. If it does not make such an order at the end of the case, any down-payment which had been ordered at the original hearing—for example, the committal proceedings—must be returned to the defendant without question, whatever the result of the case, even if he is convicted.

The regulations governing the ordering of these down-payments and contributions are, I should have thought, manifestly inadequate. They provide that no contribution may be ordered if the defendant is in receipt of supplementary benefit or if his income was less than £815 in the preceding 12 months and his capital is less than £75. I should have said that those figures were unconscionably low and they mean that defendants with an income well below the supplementary benefit level may be ordered to pay a contribution.

Another defect in the system is that the regulations do not prescribe the manner in which the contribution should be calculated for those defendants with resources above the free limits. Nor do they require courts to order such defendants to contribute at all. Since the free limits are so low, that is perhaps a blessing; nevertheless it would be more satisfactory if the limits were raised to a realistic level, which is what we propose to do, and defendants with resources above the limits were required to contribute something calculated in accordance with regulations.

It would be possible to deal with some of the defects of the present system under the present powers—for instance, by regulation the free limits could be raised, and regulations could also prescribe the method of calculating the maximum liability on the part of a defendant to contribute. What they cannot do—they cannot do it without amendment to the law—is to require the courts to order contributions and they cannot introduce a system of taking contributions by instalments from the date legal aid is granted. My view, for what it is worth, is that it is important to have such powers to create a rational and fair system of contribution towards the costs of criminal legal aid.

At present the practice of the courts in ordering contributions varies considerably, and in view of our last discussion I dare say that noble Lords are not altogether surprised to hear that. I do not blame the courts for varying considerably. The fact is that they do not have adequate guidance in regulations to enable them to make a consistent approach, and they cannot have guidance from regulations without amendment of the primary legislation.

Delaying contributions until the end of the case is, I should have thought, about the worst thing that one could do since it minimises the chance of obtaining some contribution from those defendants who can afford to pay. If a convicted defendant is imprisoned, he will have no income at all, or probably none, from which he can afford to pay any contribution. More usually he will be fined or ordered to make some other monetary payment, in which case he will not be able to make a legal aid contribution and pay the fine. I must say that the few defendants who are privately represented cannot expect to pay nothing until the proceedings are altogether over, and it is difficult to see why those who are legally aided, but who can afford to pay something, should be in a more favourable position. One has to be even-handed about these things.

I emphasise that, in my view at any rate, the new system will not create hardship to defendants. In fact, it will prevent hardship to defendants. The income limit below which no contribution can be required will be more than doubled under the regulations. The capital limit will be increased even more substantially so that the inadequacy of the bottom level will be remedied. Where a defendant's resources change after his contribution has been determined—for instance, if he falls out of work—he will be entitled to have the contribution re-assessed. The amendment would remove from the Bill the power to take instalments of contribution from the date on which the legal aid was granted. It would also remove any assurance that defendants with substantial means would contribute at all. It would thus damage both the effectiveness and the fairness of the new arrangements contained in Clause 4.

In addition, I must say the following. When urgent improvements to the legal aid system are delayed for lack of money—and I regard that as the present situation—it cannot be right to stay as we are. We must ensure that those who cannot afford to contribute are not required to contribute. But we must improve the arrangements so that those who can afford to contribute do make some contribution.

Having said that, I should like to add one further comment. I noticed the noble and learned Lord, Lord Gardiner, in his place. I was very glad to hear what the noble and learned Lord, Lord Elwyn-Jones, said. I was not quite sure whether it was tactful for me to say as much, but I can assure him that his presence in this House is as welcome on this side of the House as it is on the opposite side.

Lord Gifford

I think that for the first time, as the noble and learned Lord has said, we find ourselves entering into disagreement about what is the best way to pass or amend this Bill. I am certainly not happy with the noble and learned Lord's reply. The fact is that those who are in receipt of legal aid are not in the same position, and can never be in the same position, as those who have enough means to take them way over the limits. The one are well-off and the other are not well-off. The requirement to pay represents a very substantial consideration as to whether they should be represented at all.

In the civil scheme someone is offered legal aid and he is told how much he will have to pay for it and he can take a decision, in the light of the amount that he has to pay and the amount that he may gain from the action, as to whether he wants that legal aid or not. I do not know whether the noble and learned Lord has the figures, but I am informed that something like 20 per cent. of people do not, in fact, take up the offers of legal aid after they have applied for them. That is their right and no one would want to change the civil legal aid system for that reason. But, as I said before, with criminal legal aid you do not have the choice as to whether or not you should go on with the case.

I wonder, too, whether the noble and learned Lord has turned his attention to a point I made on Second Reading, namely, what will happen if people dishonestly accept the offer of legal aid and then fall behind with the instalments or do not pay them? There is a provision later in the Bill to say that their legal aid can be revoked, but will a Crown Court in, say, a serious case of robbery, when the whole case has been prepared by the solicitor, revoke the legal aid order because instalments are in arrears, and be left with the defendant in person on a serious charge? I do not think so.

The people who want to buck the system will do so, and the people who are honest enough to pay their instalments or to refuse the offer of legal aid, if they cannot or do not want to afford the instalments, will suffer. I do not think that this aspect has been thought through enough. I shall not ask the Committee to divide on this amendment at this stage because I think that more reflection is needed—perhaps on all sides—as to whether the Bill, unamended, can possibly provide the equitable system which the noble and learned Lord claims. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.22 p.m.

Lord Gifford moved Amendment No. 14:

Page 3, line 36, at end insert— ("( ) The limits prescribed in subsection (1) above for disposable income and disposable capital shall be such that no contribution shall be payable by a person in receipt of supplementary benefit or family income supplement.").

The noble Lord said: I hope that I shall get further on this amendment, particularly after the noble and learned Lord referred to its being a defect of the present system that someone on supplementary benefit could nevertheless be required to make a contribution or down payment to legal aid. This amendment seeks to provide that nobody who is in receipt of supplementary benefit or family income supplement shall be required to make a contribution.

Noble Lords may well be surprised that the regulations could provide for someone in receipt of supplementary benefit to have to make a contribution. But if the criteria are to be the same for criminal legal aid as they are for civil legal aid, such a situation could very frequently arise. Let us take the case of people who are in possession of a modest amount of capital. Let us say that a person who has set aside £2,000 as a nest egg finds himself charged with an offence of shoplifting, or something of that kind. Under the civil legal aid limits, he would have to bring into the account anything over, I think, £1,350 of capital. However, for the purposes of supplementary benefit, the first £2,000 of capital are disregarded and even above £2,000 there is a provision built into the supplementary benefits scheme whereby you have to make, as it were, a notional contribution for each £1 of capital over £2,000. Therefore, someone with capital between £1,350 and, say, £2,500 would have to make a contribution even though he is drawing supplementary benefit. I hope that that will be regarded as being undesirable. There are other benefits, particularly free school milk under the Education Act, which is expressly made available to all the children of those who are in receipt of supplementary benefit. I hope that an amendment such as is proposed here can deal with what could be a very unjust anomaly. I beg to move.

The Lord Chancellor

I think that I can be rather more forthcoming over this proposal than I was over the last. The intention of the amendment is to ensure that the free limit for criminal legal aid is not set at an unreasonably low level. As a matter of fact, that intention is not wholly successfully achieved by the amendment because, under it, it would still be possible—although it would be undesirable—for the income limit for those not in receipt of supplementary benefit or family income supplement to be set below the levels for supplementary benefit and family income supplement. Indeed, that is the position under the current regulations, which lay down that those in receipt of supplementary benefit cannot be required to contribute, but provide a free limit for those not in receipt of supplementary benefit, which is none the less far below the supplementary benefit level.

However, having said that, I think that I can make a rather more sympathetic approach to this amendment than I did to the last. I have already explained that when the time comes to make regulations for the assessment of resources under this Bill, the intention is to raise the free limit substantially, so that those who cannot afford to contribute are not required to contribute at all. This amendment would ensure that those in receipt of the main forms of income maintenance—that is to say, supplementary benefit and family income supplement—cannot be required to contribute towards the cost of criminal legal aid. It is certainly my intention that those with incomes at those levels should not contribute from their income.

However, I am not certain that it is quite so obviously right to exempt them from any contributions from capital. A person may receive supplementary benefit if his capital is less than £2,000, and there is no capital limit for family income supplement. The free capital limit for civil legal aid is now £1,200 and there is a case for continuing to take a contribution from capital above that level, even where the defendant is receiving supplementary benefit or family income supplement. On the other hand, exempting recipients of those benefits from all contributions would further simplify the process of means assessment and help to keep the administrative burden on court staff to a minimum, and that is a point which I can assure noble Lords those advising me have not entirely lost sight of. If I may, I should like to give some further consideration to the amendment. If the noble Lord who moved it will agree to withdraw it now, I shall undertake to give him a more considered view on Report.

Lord Gifford

Before accepting that invitation—which, of course, I do—I should like to ask the noble and learned Lord a question, which he may be able to answer now or, if not, perhaps on Report. Can he give us some more guidance as to what is intended as regards the regulations for the fixing of the disposable income and the disposable capital? I had imagined—and I may be in error—that the same rates would be used as apply to the civil legal aid scheme. Is that necessarily so? If it is not so and the rates can be different from those in the civil legal aid scheme, will they perhaps be more generous than those in the civil legal aid scheme? For instance, perhaps a lower fraction—and this may be dealt with in another amendment—of the disposable income can be ordered to be paid. Generally, before this Bill leaves this House, I think that we should have a clearer indication than we have at the moment as to whether the criminal scheme will operate on quite a different system of rates, which of course could be very confusing, or whether it is intended to harmonise the two.

The Lord Chancellor

They are very reasonable questions, but I am not sure that I can answer them all. If I do not answer them all, I shall either write to the noble Lord or give him a more considered reply on Report. I think that the fraction in civil legal aid is a quarter of disposable income. It is envisaged that regulations will apply the same fraction to criminal legal aid. It is a quarter of the amount by which the disposable income exceeds £1,700 a year. That is arrived at, as is known, by making allowances for such matters as tax, dependants and housing expenses. Without going into the figures—because I am almost certain to mislead the Committee if I try to do so now—I think that I had better undertake to write to the noble Lord. Any further information, or even the information which I give him in the letter, will be available to the House in one form or another by the Report stage.

Lord Gifford

I am very grateful. As to the general reply on this amendment I would only want to make one comment. There may, as the noble and learned Lord says, be a case for making people whose capital is above the present legal aid limit but below the supplementary benefit limit have to pay for their legal aid; but in criminal cases it would, I suggest, be a poor case and I am glad that it does not look as though it is going to be one that the noble and learned Lord ultimately is going to press. I am grateful for his reply, and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

4.31 p.m.

The Lord Chancellor moved Amendment No. 16:

Page 4, line 34, leave out ("by") and insert ("in respect of proceedings in").

The noble and learned Lord said: The intention of this amendment is to enable regulations to be made which will ensure that defendants contribute under only one contribution order when their case passes through more than one court. The subsection intended to be amended is defective because it does not at present allow regulations to be made to prevent magistrates' courts from making a second contribution order when they grant legal aid for Crown Court proceedings. The amendment remedies this defect, and I think it is technical. I beg to move.

Lord Elwyn-Jones

I wondered whether the noble and learned Lord was referring to Amendment No. 16, but it may be that the complexity of the matter has enabled me to escape appreciation that he was on 16. It sounded as though the noble and learned Lord was on 17.

The Lord Chancellor

Well, it is called 16 on my brief.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

Amendment No. 17. In calling Amendment No. 17 I should inform the Committee that there is a misprint in the first line. It should be "subsection (1)" instead of "subsection (9)".

The Lord Chancellor moved Amendment No. 17:

Page 4, line 38, at end insert— ("( ) Regulations made for the purposes of subsection (1) or (2) above shall be made with the concurrence of the Treasury.").

The noble and learned Lord said: I think I can call this pure drafting. For some reason or other, I cannot see any difference between the consent of the Treasury and the concurrence of the Treasury, but apparently some draftsmen use one and some draftsmen use the other. In order to provide consistency of drafting the alteration is proposed to be made. I beg to move.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Variation and revocation of legal aid contribution orders]:

The Lord Chancellor moved Amendment No. 18:

Page 6, line 3, at end insert— ("and where a legally assisted person successfully appeals against his conviction the court which allows his appeal may remit or order the repayment of any sum due from or paid by him or an appropriate contributor under such an order.").

The noble and learned Lord said: This amendment gives appellate courts the same powers to remit and repay contributions from successful appellants against conviction as courts at first instance have with regard to acquitted defendants. It therefore can be said quite plainly that it fills a gap which ought to be filled. I beg to move.

Lord Wigoder

May I ask the noble and learned Lord whether he would agree that in the ordinary way where a legally assisted person has successfully appealed the court shall, in fact, remit the sum involved, or order the repayment of any sum due? Is it really necessary that the word should be "may" rather than "shall" where the appeal court is concerned?

The Lord Chancellor

I suppose in 99 cases out of a hundred the noble Lord is right. I may have to consider this again, in which case I shall write to him. I think there are occasions in criminal cases where it is thought that the defendant has brought additional costs upon the country and brought the charge on himself. But I certainly would think as a general principle that what the noble Lord says is right. I will write to him again if I may. The intention is to put the appellate court in the same position as the court of first instance.

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Enforcement of legal aid contribution orders]:

Lord Mishcon moved Amendment No. 19:

Page 6, line 42, at end insert— ("( ) No legal aid order shall be revoked without the legally assisted person being given the opportunity of being heard in opposition to the proposed revocation.").

The noble Lord said: I can be extremely brief. The Bill at the moment provides under Clause 6(3): Where a sum in respect of a contribution under a legal aid contribution order made in connection with a legal aid order is required to be paid at any subsequent time before the conclusion of the relevant proceedings and is not paid at that time, the court in which those proceedings are being heard may revoke the legal aid order". This amendment merely provides that before the serious step of revocation is taken the person so affected may have the right to be heard. I beg to move.

The Lord Chancellor

I think I can give a qualified welcome to this amendment too. Our intention is that revocation of legal aid for non-payment of contributions should be used only as a last resort and in flagrant cases. It will usually be more convenient to leave the legal aid order standing and enforce the contributions after the case rather than revoke the legal aid and have to deal with the unrepresented defendant in a serious case, which is a very obvious consideration.

Where revocation takes place if solicitors withdraw from the case, at the moment the power is exercised by the court. Under Clause 3 of the Bill it will be exercised by committees. In other words, legal aid will only be revoked where neither the court nor the committee is prepared to assign a new solicitor, and the committees will not deal with applications by oral hearing but on the papers. Accordingly, even if a further safeguard is necessary, it should be a right to make written representations rather than to be heard to use the words on the amendment. If I may, I will make this assurance to the Committee: I will undertake, if the noble Lord will withdraw his amendment, to put down an amendment at Report to cover revocations for non-payment of contribution, and to consider further whether any provision is needed to cover revocations where solicitors withdraw.

Lord Mishcon

I am much obliged to the noble and learned Lord, and willingly withdraw in view of those words.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 to 10 agreed to.

Clause 11 [Consequential amendments and repeals]:

The Lord Chancellor moved Amendment No. 20:

Page 9, line 18, at end insert— ("( ) In section 47(7) of the Supreme Court Act 1981 for the words "section 32 of the Legal Aid Act 1974" there shall be substituted the words" section 4 or 5(2) of the Legal Aid Act 1982".").

The noble and learned Lord said: This is pure drafting. The amendment corrects the definition of a legal aid contribution order and is consequential on Clause 4 and Clause 5(2) of the Bill. Section 47 of the Supreme Court Act 1981 deals with variation and rescission of sentences by the Crown Court. Subsection (7) excludes legal aid contribution orders from the provisions of the section. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Remaining clauses and the schedule agreed to.

House resumed: Bill reported, with the amendments.