HL Deb 21 October 1982 vol 435 cc233-9

3.37 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered—(The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[References are to Bill (110) as first printed for the Commons] 1 Clause 1, page 1, line 17, after ("persons") insert (",or any class of persons,") 2 page 2, line 20, leave out ("subsection (4)") and insert ("subsection (1)")

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 and 2. Amendment No. 2 is a small drafting improvement. Amendment No. 1, however, is the substantive amendment and it makes it clear that the duty solicitor scheme could be confined to a particular class of persons if it appeared appropriate to do so. This reflects the fact that those in custody and those charged with serious offences are obviously more important candidates for a duty solicitor scheme than some others and it might be that it was necessary to recognise the fact. I beg to move.

Moved, That this House doth agree with the Commons in the said amendments—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, the noble and learned Lord's explanation is obviously a wholly satisfactory one. It may be necessary to establish priorities for defendants in custody as distinct from those who are not in custody, and the amendments proposed give greater flexibility and, indeed, strength to the duty solicitor scheme.

The Lord Chancellor

My Lords, I am very grateful to the noble and learned Lord for his support.

On Question, Motion agreed to.

COMMONS AMENDMENT

3 After Clause 2, insert the following new Clause: ("Legal aid for appeals in cases of contempt of court. .In section 28(8) of the principal Act (legal aid for appeals to Court of Appeal under Part I of the Criminal Appeal Act 1968) for the words "the criminal division of that court" there shall be substituted the words "or to appeal to that court under section 13 of the Administration of Justice Act 1960 against an order or decision of the Crown Court, the criminal division of the Court of Appeal".").

The Lord Chancellor

My Lords, we now come to a new clause. I beg to move—and this will be the case as regards all the subsequent amendments—that this House doth agree with the Commons in their Amendment No. 3. This amendment makes criminal legal aid available for appeals against orders and decisions made by the Crown Court when dealing with contempt of court. Civil legal aid is at present available for these cases, but, since the Supreme Court Act 1981 transferred them from the civil to the criminal division of the Court of Appeal, it is desirable to rationalise the existing arrangements in that sense. This clause effects the change. I beg to move.

Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, this, again, is a helpful amendment. The structure of the law and practice in regard to contempt is always subject to attack and it is very useful that, in the limited category to which the noble and learned Lord has referred, legal aid should be available.

The Lord Chancellor

My Lords, I am again grateful to the noble and learned Lord.

On Question, Motion agreed to.

COMMONS AMENDMENT

4 After Clause 4 insert the following new clause:

("Refusal of legal aid by magistrates' courts

.—(1) Provision may be made by regulations—

  1. (a) for enabling a person who has been refused legal aid under the principal Act by a magistrates' court to apply to such other court or body as may be specified in the regulations; and
  2. (b) for that other court or body to make any legal aid order that could have been made by the magistrates' court.
(2) Regulations made for the purposes of this section may make provision as to the manner in which, and the time when, applications may be made under the regulations and may make different provision for different cases. (3) Regulations made for the purposes of this section shall be made with the concurrence of the Treasury. (4) Where a legal aid order is made by virtue of regulations made for the purposes of this section, the provisions of this Act relating to legal aid contribution orders shall have effect with such modifications as may be specified in the regulations.").

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their amendment. This is another new clause. It enables the Lord Chancellor to make regulations providing recourse to persons refused legal aid by magistrates' courts. The House will, of course, recall the debates that we had when the matter came before this House. I agreed to try to take this power, and I intend to carry out my obligation to do so by means of the regulations when they are provided.

It is a little more difficult than it seems. Ever since the Widgery Committee it was always held to be doctrine that it was impracticable to introduce a system of appeals against refusals of criminal legal aid. I could well sense the feelings of the House when noble Lords wanted me to make this promise, and I did make it, and it accorded with my own inclinations. My officials are now engaged in the process of consulting those concerned. I cannot yet say whether recourse will be to the Crown Court, to the legal aid committees, or to some other ad hoc body. But I intend to carry out my obligation, and this is the means by which I intend to do so. I beg to move.

Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, we—and I suspect the whole House—are pleased that the noble and learned Lord has accepted the principle of a right of appeal in respect of the refusal of legal aid by a magistrates' court. The problem that worried us very much when we discussed this on a previous occasion was the vast variation in the refusal rates of application for legal aid orders as between one magistrates' court and another. Indeed, it seemed that success in regard to such application very often depended not so much on the merits of the application but on in which court the application was made. We had the fascinating statistics that there were 33 per cent. refusals in Highgate, whereas in perhaps the more salubrious area of Hampstead there were only 4 per cent. refusals. Looking at the matter statistically, it indeed indicates a strange state of affairs, because I hardly venture to think that the nature of the cases coming before the Hampstead court would have been very different in substance from the nature of those elsewhere. This is one of the factors which certainly led us to stress the importance of this matter.

The noble and learned Lord has gone a good deal of the way to meet what was said in different parts of the House on this in Amendment No. 4. We wondered whether perhaps he could go further. As it stands, the amendment gives a power to make the regulations. We wondered whether it could be made mandatory. However, we appreciate that there are difficulties in the way of that. It is not contended that every case that results in a refusal of a legal aid application in a magistrates' court would necessarily call for the power of appeal. As I understand it, over a million of the cases that come before magistrates' courts relate to minor traffic offences. Nevertheless, the wide range of "(2)(a)" cases, as they might be called, remains for consideration.

I wonder whether the noble and learned Lord could give us a little more guidance as to how he intends this power to be used and the kind of machinery that he has in mind. The amendment refers to the power to enable: a person who has been refused legal aid under the principal Act by a magistrates' court to apply to such other court or body as may be specified … I do not know whether the noble and learned Lord has been able to carry his thinking on what the nature of the other body ought to be further than the tentative suggestions that he helpfully made when we discussed the matter further. If further guidance could be given on those lines, I am sure that it would be well received.

The Lord Chancellor

My Lords, I am very grateful to the noble and learned Lord. Again, we had quite full debates on the matter when it was before the House, and I yielded to the pressure which was brought to bear on me. My concession was in the face of what was always held to be established doctrine, but I intend to find a way through it if I can, and I am sure that I shall be able to. It is, of course, true—and I agree that it has a relevance—that there is a surprising divergence between individual magistrates' courts as to the rate of refusal. I did point out some of the difficulties because magistrates' courts have a different pattern of offences before them.

Moreover, it does not, of course, follow that those who refuse it in the fewest cases are those which are necessarily right. But the noble and learned Lord will remember that I have directed my office to investigate the reasons for that wide variation. As regards the type of body to which recourse could be made, I would rather leave the question open until the consultations that I am having are complete. The options really are what I adumbrated before. In theory, you could send it to the Crown Court; in theory, you could refer it to the legal aid committees of the Law Society; or you could create another body ad hoc for the purpose. It is precisely as between those three options that those consultations are primarily directed. I think that that is about as far as I can go. If the noble and learned Lord will look at subsection (3) of the new clause he will see why it cannot be made mandatory on me.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord.

On Question, Motion agreed to.

COMMONS AMENDMENT

5 Clause 5, page 5, line 6, leave out from ("income") to ("of") in line 9 and insert ("and disposable capital are treated as not exceeding the prescribed limits at any time when he is in receipt of supplementary benefit under the Supplementary Benefits Act 1976 and that a person's disposable income is treated as not exceeding the prescribed limit at any time when he is in receipt")

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their amendment. The amendment ensures that those in receipt of supplementary benefit are not required to contribute from capital. The Bill already provides that they cannot be required to contribute from income by Clause 7(8). So this exempts capital as well. I beg to move.

Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)

Lord Mishcon

My Lords, my honourable friends in another place pressed this matter very hard in Committee and the right honourable and learned gentleman, the Solicitor-General, was good enough on that occasion to give an undertaking. That undertaking has now been inplemented and I am sure that we are all grateful for it. As the noble and learned Lord has said, it means that capital will not be taken into account where supplementary benefit is paid. That seems a very logical, sensible and humane thing to do.

The Lord Chancellor

My Lords, I am very grateful to the noble Lord, Lord Mishcon, for what he has said.

On Question, Motion agreed to.

COMMONS AMENDMENT

6 Clause, line 10, leave out from ("paid") to end of line 11 and insert ("on the making of the legal aid contribution order, the court may direct that the legal aid order shall not take effect until that sum is paid.")

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 6. This is simply a clarification giving a clearer meaning to the word "forthwith" and I think it requires no further justification from me.

Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)

Lord Mishcon

My Lords, here again this is a most welcome amendment. Your Lordships may remember that great diffidence was expressed—certainly on this side of the House but in many quarters of the House—about the power to revoke an order where a payment had been ordered to be made and had not been made. This makes it clear that the court will take into account various considerations before revoking the order. They are proper, just consideration, and I think we ought to be grateful for this amendment.

On Question, Motion agreed to.

COMMONS AMENDMENTS

7 Page 7, line 14, after ("paid") insert ("by the legally assisted person") 8 line 17, leave out ("without first") and insert ("unless satisfied, after") 9 line 19, at end insert ("—

  1. (a) that he was at that time able to pay the sum in question; and
  2. (b) that he is able to pay the whole or part of it but has failed or refused to do so.")

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 7, 8, and 9 together because they stand or fall together. I am not absolutely sure whether some of Lord Mishcon's remarks were not perhaps directed to these rather than to the previous amendment which was really of a drafting character. They are, as he indicated, intended to ensure that the courts shall not revoke legal aid unless they are satisfied both that the assisted person is able to pay at the time when he is required to do so but fails to do so, and also—and this is important—that he is able to pay all or part of the amount due at the time when the revocation is in question. That is the effect of it, and I think it is a liberalising amendment.

Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, we agree that these are beneficial amendments, and we agree with them.

On Question, Motion agreed to.

COMMONS AMENDMENTS

10 Clause 9, page 8, line 1, leave out ("section 37(l)") and insert ("subsection (1) of section 37"). 11 line 6, at end insert— ("(2) Provision may be made by regulations for prohibiting or restricting the receipt by counsel or a solicitor acting for a legally assisted person of payments otherwise than under the said section 37.").

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 10 and 11. They enable the Lord Chancellor to make regulations to prohibit or restrict the receipt by counsel or a solicitor acting for a legally assisted person of payments apart from those legal aid monies. This will be done by regulation under the amendments. It is designed to prohibit or restrict the process known as "topping-up", which will be familiar to noble Lords opposite.

Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)

Lord Mishcon

My Lords, while the expression, "topping-up", may be known to the legal profession, I do not know that it is known as familiarly to all your Lordships. It is, as the noble and learned Lord indicated, a rather objectionable practice that there would be of a solicitor, for example—I prefer to choose my own side of the profession in order not to be offensive to any other side of the profession—saying, "Well, I have got a legal aid certificate, but I am afraid that the charges that I would be entitled to thereunder do not console me at all, and therefore I would like to charge you, if I am to act for you, an additional sum." This is prohibited in the civil legal aid and obviously ought to be prohibited in criminal legal aid, and that is so. So that I do not leave the other side of the profession completely out of it, that would similarly apply where there was a question of a silk not being authorised and in fact a silk comes on the scene in order that payment may be proffered to him in respect of his services when that is not covered by the criminal legal aid certificates.

Lord Campbell of Alloway

My Lords, with respect, this could in special circumstances work an injustice. With the greatest respect, I would hope that these special circumstances might be taken into account when the regulations are made in due course. Take, for example, the situation that you have a complicated immigration appeal or application going up to the Divisional Court. It comes, say, from Birmingham or Wolverhampton with an ethnic minority solicitor and an ethnic minority counsel on legal aid who have little knowledge of the practice and procedures of the Divisional Court, or indeed of the Court of Appeal.

There is a difficult point of law involved—perhaps a spin-off of Zamir, something like that. Then what happens is that the local head man of the community passes the hat round and gets a few hundred pounds together so that they can approach leading counsel and pay him some fee to conduct that case. I am speaking from a position in my own experience. From seeing the papers some leading counsel who knew what he was up to was certainly required, and in circumstances like these I am not sure what the basic morality is. If there is a conflict of moralities, I would have thought that one should err on the side of ensuring in special circumstances that everything is done to uphold the highest standards of representation.

The Lord Chancellor

My Lords, I think my noble friend is for the moment forgetting that this Bill has to do with criminal legal aid and not civil legal aid. His example was a civil legal aid one. Under civil legal aid "topping-up" is already prohibited, so that the point is not, as stated, a good one. But I would also point out that the power which I am taking if this be agreed to is one to prohibit or restrict, which I think would take account of any points which may arise but which do not immediately occur to me as I stand here.

On Question, Motion agreed to.

COMMONS AMENDMENTS

12 Page 8, line 13, leave out from ("proceedings') to end of line 15. 13 line 16, after ("(2)") insert ("If the solicitor assigned to the person in question by the legal aid order is the same as the solicitor who gave the advice of assistance") 14 line 30, after ("effect") insert ("in a case to which subsection (2) above applies")

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 12, 13 and 14. They ensure that defendants are given a credit towards their legal aid contributions for any contribution paid in respect of advice and assistance even where different solicitors give them advice and assistance and act for them under the legal aid order. I think again this is a beneficial change.

Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, I agree that this is also a beneficial change.

On Question, Motion agreed to.

COMMONS AMENDMENTS

15 Clause 11, page 9, line 16, leave out ("to him") 16 line 17, at end insert ("either to that person or to his solicitor or partly to one and partly to the other.") 17 Clause 12, page 9, line 41, after ('In") insert ("the definition of "legal aid contribution order" in section 25(1) of the Attachment of Earnings Act 1971, in section 92(1)(b) of the Magistrates' Courts Act 1980 and in") 18 In the Schedule, page 11, line 12, column 3, at end insert— ("In Schedule 4, paragraph 4.")

The Lord Chancellor

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 15, 16, 17 and 18 together. These-are all technical amendments. The first two are designed to ensure that sums due to an assisted person as a result of an order for costs made in his favour may be paid to his solicitor, while the second two amend references to "legal aid contribution order" in other legislation. For instance, Section 14 of the Costs in Criminal Cases Act 1973 is covered by the first two amendments, and the Attachment of Earnings Act 1971, the Magistrates' Courts Act 1980 and repealing paragraph 4 of Schedule 4 to the Legal Aid Act 1974 are referred to in the last two amendments. I think I can fairly describe them as technical.

Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)

On Question, Motion agreed to.