HL Deb 22 November 1984 vol 457 cc690-7

3.44 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone) rose to move, That the four sets of regulations laid before the House on 31st October be approved.

The noble and learned Lord said: My Lords, I beg to move the four Motions standing in my name on the Order Paper and, with the permission of the House, I shall move them en bloc. The first two Motions relate to legal aid and legal advice and assistance in England and Wales. The other two relate to Scotland.

On this occasion last year I said that I had decided to make a November uprating for the financial limits as administered, since it was more convenient to uprate the legal aid limits at the same time as the increases in supplementary benefit. This is because the dependants' allowances for legal aid are automatically increased in line with those for supplementary benefit, and it is not only more convenient but also less confusing for applicants to have all the increases coming into effect at the same time.

The first two Motions increase the income and upper capital limits respectively for civil legal aid and for legal advice and assistance. The increase is 4.7 per cent. This maintains the present relationship between legal aid and supplementary benefit. But there is no increase in the lower capital limit for legal aid. Alignment of this limit with the supplementary benefit capital limit was introduced last year. Since the supplementary benefit limit is to remain the same as last year—that is. £3,000—it seemed preferable to keep the legal aid lower capital limit unchanged also.

The Legal Aid Regulations raise the lower disposable income limit (that is, the level of disposable income below which no contribution is payable) from £2,050 a year to £2.145. The upper income limit (that is, the level above which legal aid is not available) increases by the same proportion from £4,925 a year to £5,155. As I have said, the lower capital limit is to remain at £3,000; the upper capital limit above which legal aid is not normally available is, however, to be increased from £4,500 to £4,710.

The Advice and Assistance Regulations raise the upper disposable income limit for the green form scheme from £103 a week to £108 a week. The capital limit above which assistance is not available increases from £730 to £765.

The two sets of Scottish regulations—the Legal Aid (Scotland) (Financial Conditions) Regulations 1984 and the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations 1984—make the same increases in the financial limits for Scotland.

The House will also be aware that I have made a further set of regulations for which an affirmative resolution is not needed. These are the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations. These increase the lower disposable income limit for the green form scheme from £49 to £51 and revise the scales of contribution which an applicant for advice and assistance may be required to make. A similar increase in the lower disposable income limit and a similar revision of the scales of contributions, relating to Scotland, is contained in the Legal Advice and Assistance (Scotland) (Financial Conditions) (No. 2) Regulations 1984.

I am also proposing to increase the financial limits for criminal legal aid. The Criminal Proceedings (General) (Amendment) Regulations 1984 increase from £42 to £44 a week the disposable income above which a person receiving legal aid in criminal proceedings under Part II of the Legal Aid Act 1974 is required to pay a contribution; the regulations also amend the scale of contributions. These are subject to the negative resolution procedure.

I should also inform the House that I have made, and placed before it under the procedure subject to negative resolution, three instruments which have the same effect on the legal aid and legal advice and assistance provisions for Northern Ireland.

At the time of the last uprating I informed the House that I proposed to increase the capital limit for assistance by, way of representation (which is an extension of the legal advice and assistance scheme and provides representation for certain specified proceedings before courts and tribunals) to £3,000; that is, to the same level as the lower legal aid capital limit. As this requires primary legislation, I have had to wait for an appropriate opportunity; that opportunity will arise with the Administration of Justice Bill, which is to be introduced during this Session, and I intend that Bill to contain an appropriate amendment to the Legal Aid Act 1974. My Lords, I beg to move.

Moved, That the Legal Aid (Financial Conditions) Regulations 1984, laid before the House on 31st October, be approved.

Moved, That the Legal Advice and Assistance (Financial Conditions) Regulations 1984, laid before the House on 31st October, be approved.

Moved, That the Legal Aid (Scotland) (Financial Conditions) Regulations 1984, laid before the House on 31st October, be approved.

Moved, That the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations 1984, laid before the House on 31st October, be approved.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord for introducing and explaining these legal aid (financial conditions) regulations. Two sets of them relate to England and Wales and another two sets relate to Scotland. Indeed, it would be very astonishing, and a very dangerous course for the Government, to differentiate between the respective scales for Scotland as compared with those for England and Wales. They are the same; and the need for the continued existence of legal aid and advice is of course common throughout the country. We shall be interested to see when the Northern Ireland provisions arise that they conform to the same financial scales as apply to those that are being introduced today.

With regard to the financial limits for criminal legal aid, I confess I was not aware that those changes were being made. As I understand it, they do not arise on the regulations that we are considering today. But of course it is equally important—if not more important—that the financial arrangements in regard to criminal legal aid should be just as beneficial—if not more so—to those seeking the help of legal aid in the criminal courts as in the civil field. Your Lordships may think that it is essential that eligibility limits should be raised regularly and realistically and should keep up with the rate of inflation, otherwise those needing and entitled to receive legal aid and advice would diminish in number as long as inflation continued.

I am interested to note the percentage increase in the financial eligibility which is provided for in these regulations. Last year it was 6–25 per cent.; but the noble and learned Lord says that these regulations provide for an increase of 4.7 percent., and perhaps he will give us an explanation. It may well be that the difference is explained by the different rate of inflation in the respective period.

Another figure which perhaps the noble and learned Lord can also give to us is what percentage of the whole population is covered by these provisions of eligibility for legal aid. Last year I think that the figure was about 70 per cent. of the whole population, which is gratifying so far as it goes. It does not mean that the legal aid is free. On the contrary, contributions above the levels that are indicated in these regulations will be expected from those who become eligible for legal aid. But as a matter of interest it would be reassuring to know that the coverage for the whole population is substantial.

As I have said, we welcome the extension of availability of legal aid. It has provided a great service to the community and it is one of the most important social services. I am not making a party political point of this; I very rarely make party political points. The scheme was initiated way back in the 'forties, when my noble friend Lord Shawcross and I, with full all-party support, had some part in introducing it. A great deal of benefit has accrued to our people at large by the existence of these regulations, and I think they are probably unparalleled in any other equivalent society. So let us keep on with them, maintain them, and earn enough money to increase an extension of them even more to our people as a whole.

3.53 p.m.

Lord Wigoder

My Lords, these are extremely modest proposals and it is therefore not surprising if I extend a somewhat modest welcome to them. They do not seek substantially to increase the number of people who are eligible for legal aid or advice or assistance. They merely seek to ensure that the number is not reduced as a result of the effects of inflation. That is in itself to be welcomed, but it is a very limited step forward. It is not easy on that particular narrow issue to make a passionate or enthusiastic speech, and I do not propose to do so. I should like, however, very briefly, to raise two closely associated matters.

First, when we are discussing—as we are at the moment—the eligibility of people for legal aid, it is crucially important to ensure that those who are eligible for legal aid in fact receive it. I am concerned particularly about the procedures in relation to criminal legal aid before some of the magistrates' courts, not those presided over by metropolitan magistrates in London, where it has been known—certainly throughout all my time at the Bar and indeed even in more recent years—that there are some courts, particularly in London, that are extremely reluctant to grant legal aid even to people who are obviously eligible for it. Whether they take the view that they are in some way contributing to the national economy by declining to grant legal aid, I do not know. I know that occasionally and unhappily those who appear before those courts get the impression that the courts are taking the view that it appears to them, before a case has been tried, that the defendant ought to be convicted and therefore they are reluctant to expend public funds in order that the defendant might be given the opportunity of raising any doubt about his guilt.

The noble and learned Lord is very well aware of what are called the Widgery rules, as to guidance to courts as to when legal aid, particularly criminal legal aid, should be granted. There have been recent figures produced in the press, as the noble and learned Lord may have seen, which show the most remarkable variation in the granting of legal aid in some of the London courts. Although the noble and learned Lord will appreciate the difficulty of any direct intervention to those courts, he might consider that it would be helpful if the attention of the courts was drawn very forcefully to the Widgery rules and the courts were invited to adhere perhaps rather more strictly to them than one or two have been doing in London.

The other matter that I draw to the attention of the noble and learned Lord—though I know it is never far from his mind—is whether it is possible in the near future to extend to some extent the categories of people to whom legal aid or advice or assistance might be granted. I gather from all the speeches on the gracious Speech that were made from the Government Front Bench that the economy is now booming and it may well be that there is just a very limited amount of money to be available so that legal aid and advice and assistance might be extended. If that is to be so, I respectfully urge the noble and learned Lord to consider in particular the tribunal system of this country, and the possibility that some citizens who appear before that body might be given legal assistance.

I know there is always the possibility that having lawyers present before a tribunal may add to a totally unnecessary degree of formality in the proceedings. On the other hand, there are very many tribunals in which the orderly presentation of evidence is important. There are many tribunals not presided over by a legally qualified chairman or with the aid of a legally qualified clerk where points of law may arise, and in those circumstances there are strong arguments to be made for extending our legal aid and advice system to as many tribunals as possible as soon as it is practicable in expenditure terms. I would not want to suggest at this stage that it might be possible to do so to all tribunals; but I invite the noble and learned Lord to consider in particular those tribunals where the liberty of the subject may be at stake, or where the health of the individual may be in issue. Perhaps the noble and learned Lord will be able to indicate that he views with approval, for example, the report of his own Legal Aid Advisory Committee, which has urged that legal assistance should be available in particular for those who are asking for bail in front of the immigration appellate authorities.

I would suggest for my part, too, that just as assistance by way of representation has been of very great help to people appearing before the mental health review tribunals—an advance much appreciated by everyone concerned with those tribunals—that might be extended as soon as possible to the vaccine damage tribunals, where again there is a strong case for helping the ordinary citizen to make out his case.

I add two other priorities: they are the social security commissioners, who deal with matters of great moment to individuals, and the industrial tribunals, which, similarly, have to take decisions of great gravity. However, I accept that those latter two categories of tribunal deal with a very large number of cases and, unless it were possible to provide some sort of preliminary sieve, it would be financially impracticable at this stage to move forward in that direction.

I hope that the noble and learned Lord will be able to give a little encouragement to those who welcome the present operation of the legal aid and advice and assistance procedures and who would like to see its extension, as soon as possible, to many citizens in this country to whom it would be of the very greatest importance.

Lord Wilson of Langside

My Lords, from this Bench I express, as it were, the Scottish interest and extend a welcome to these measures which is, not surprisingly, similar to that of the noble Lord, Lord Wigoder. I always enjoy the statutory joke of the noble and learned Lord, Lord Elwyn-Jones, on these occasions about the importance of ensuring equality of benefit to Scotland and to England. This I do welcome.

I share, too, his reminiscences about the introduction of the legal aid scheme in 1949 by the Labour Government of which I was then something of a supporter, albeit as a humble activist. Indeed I remember that the scheme was greeted with such hostility by the Scottish Bar that only two of us—I was surprised at my own courage because I was a very junior member of the faculty at that time—were prepared to speak for it. The paradox of that is that the Bar could not have survived without it. Were any attempt made to take it away today there would be a revolutionary situation in Edinburgh.

For my interest and from my experience I have only one remark. I speak only from knowledge of the Scottish position. I hope that the Government are carefully monitoring the operation of the criminal legal aid scheme—I confine my observations to the criminal legal aid scheme—to ensure that the benefits of this great scheme go in the first place to those for whom they were intended—that is to say, that they go to secure an improvement in the administration of criminal justice and to protect the innocent against the possibility of guilt. I have made enemies in my own profession by saying this, but there was a feeling—just a feeling. I put it no higher—that perhaps the legal profession was too much the beneficiary of the scheme.

The Lord Chancellor

My Lords, I am grateful to all noble Lords who have participated in this discussion for the knowledgeable comments they have made. I make only two remarks of a general nature. One is that all three schemes—the green form scheme, the aid scheme and the criminal scheme—are among the most rapidly growing and I think actually are the most rapidly growing of all the social services. Demands to increase them in the light of that fact and in the light of the kind of constraints to which all government departments are subject are not likely to reach very extensive degrees of acceptance. I do my best and I do not think that I have done badly in keeping the coverage about the same, keeping it in line, roughly speaking, with the inflationary targets set year by year. If I were to ask for a larger range of applicability I think that I should almost inevitably have to spread my butter rather less thickly on the places where it is most needed. That is my first general observation.

Secondly, I refer to the comments of the noble and learned Lord, Lord Wilson of Langside, and of the noble and learned Lord. As they correctly stated, the original 1949 scheme was introduced under a Labour Government, but it was produced as the result, I believe, of the Rushcliffe Report. My late friend the first Lord Dilhome was on that committee. It was never a matter of party controversy as such.

In reply to the noble and learned Lord, yes, 4.7 is the figure to keep in line with the supplementary benefit figures. It is the same. Therefore inflation is the basic yardstick by which it is measured. Yes, 70 per cent. of households is the right percentage which is supposed to be covered if these regulations are now passed.

I am not altogether in agreement with what was said about magistrates' courts. As the noble Lord, Lord Wigoder, raised the subject and the noble and learned Lord also mentioned it, though it is not entirely relevant to the present discussion, it is an important question and should be answered in broad terms. In the Lord Chancellor's Department, we entered into quite an extensive survey of the grant of criminal legal aid in magistrates' courts. The noble Lord, Lord Wigoder, was quite right in referring to the Widgery criteria. By and large they are conformed with.

The pattern of work in the different courts is not necessarily the same. One does not, as a rule, give criminal legal aid, for example, for a parking offence. The first of the criteria relates to danger to reputation or to liberty and the others are covered considerations such as, "Does the defendant speak English sufficiently well to understand what is going on without professional help? Has he some impediment in speech, sight or hearing?" That would be common to all courts. I do not think it could be made a general charge against magistrates' courts that the merits of the case heard in advance of the hearing have anything to do with the grant or withholding of legal aid. I think that would be unjust to them. I think they try conscientiously to apply the Widgery criteria.

I accept at once that the study which we introduced indicated disparities which suggested that there might be differences of interpretation between one court and another, attributable to what constitutes a criminal offence and so on. As a result, we gave guidance in a rather long document which was sent out. Whether and how far it will be successful, one does not know, but it was supposed to be couched in fairly intelligible language to tell magistrates, roughly speaking, how the Widgery criteria should be construed and applied.

As I said at the outset, we operate under the constraint of the kind of financial limits to which all Government departments are subjected and one has to choose very largely between keeping the aid on a sufficient level for those who already get it and trying to extend it. I am not very much in favour of extension. Take for instance defamation cases. Logically speaking, one can see very little answer to the demands that defamation cases should be within the scope of legal aid. However, they never have been so, and I can see reasons quite different from the pure financial constraint which have led successive Lord Chancellors to say "No" to the siren voices of those who want to add them.

As regards tribunals, that is of course a very much more difficult matter because there is such a wide range of tribunals about which one has to speak. There are some to which legal aid in the ordinary course is given. I think that the Lands Tribunal is one, unless I am mistaken. There, the process is virtually one of an ordinary litigious process before the ordinary courts. But a great number of these tribunals were introduced in the first place precisely in order to render professional representation unnecessary and there always is a strong lobby of laymen at any rate—lawyers are rather less keen—to say that you ought to simplify the procedure in front of these tribunals so that the ordinary man or woman can speak for himself or herself and that the lawyers should be kept out of it. I gather from something that he let fall in his own speech that the noble and learned Lord, Lord Wilson of Langside, might be of that school of thought. But in the main we will consider individual cases subject to what I have said about resources if and when a demand can be successfully put forward towards it. However, the more you introduce lawyers, the more formal the procedure will get and the more expensive it will become for the taxpayer.

Having said that, I should like to say to the noble Lord. Lord Wigoder, that one has to remember in relation to criminal legal aid that the criteria are not always exactly the same. For instance, the civil legal aid applies to potential plaintiffs; criminal legal aid applies solely to actual defendants. They can go to the green form scheme in advance of the case but it does make a difference to the nature of the grant. Again, in matrimonial cases—and I remember that I complained (I think probably wrongly) at the time when legal aid was withdrawn from the main divorce proceedings—the parties to a divorce case are there because they have to be there. There is inevitably a virtual necessity for lawyers to come into it at every stage once you get to the stage of questions relating to custody and access, care and control, and ancillary relief, maintenance and division of property. As long as people are above the financial limits, they more or less have to have it.

Having said that, my Lords, I am grateful to noble Lords for what they have said. I hope that this is not too controversial a matter and, unless there is something that I have inadvertently left out, I should like to beg to move that these four Motions be agreed to.

On Question, Motions agreed to.