HL Deb 19 November 1985 vol 468 cc516-26

4.12 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

rose to move, That the regulations laid before the House on 6th November be approved. [1st Report from the Joint Committee.]

The noble and learned Lord said: My Lords, this is a somewhat parochial matter after what we have been discussing. It is also something of an annual event. There are four Motions standing in my name. With the permission of the House, I shall speak to them all together. I am told—I hope that this will be confirmed—that, assuming that the House accepts this, I can put the Question 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. As in the past two years, these proposals come before the House at the same time as the increases in supplementary benefit, that is, in November. The supplementary benefit changes take place on 25th November. That is the date also proposed for the changes in legal aid.

The first two Motions increase the income limits for civil legal aid and the income capital limits for legal advice and assistance. The increases average 5.1 per cent. This maintains the present relationship between legal aid and supplementary benefit. The regulations raise the lower disposable income limit, that is, the level of disposable income below which no contribution is payable from £2,145 a year to £2,255 a year. The upper income limit, that is, the limit above which legal aid is not available at all, increases by the same proportion from £5,155 a year to £5,415 a year. There is no change in the capital limits. Since the supplementary benefit limit is to remain the same as last year, that is, £3,000, it seems preferable to keep the identical legal aid lower capital limit unchanged as well. Similarly, I propose to hold the upper capital limit at its present level which is £4,710.

The advice and assistance regulations raise the upper disposable income limit for the "green form" scheme from £ 108 a week to £ 114 a week. The capital limit above which assistance is not available under this head is increased from £756 to £800. The two sets of Scottish regulations, the Legal Aid (Scotland) (Financial Conditions) Regulations 1985 and the Legal Advice and Assistance (Scotland) (Financial Conditions) Regulations 1985, make the same increases for Scotland.

The House will also be aware, I believe, that there is a further set of regulations for which an affirmative resolution is not needed at all. These are the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations. These increase the lower disposable income limit for "green form" advice and assistance from £51 to £54 and revise the scale of contribution that an applicant for advice and assistance may be required to make. Similar increases relating to Scotland are contained in the Scottish regulations, the No. 2 regulations, of 1985.

I am also proposing to increase the financial limits for criminal legal aid by the Criminal Proceedings (General) (Amendment) Regulations 1985. These require parliamentary approval but only by the negative resolution procedure. They increase from £44 a week to £46 the disposable income above which a person receiving legal aid in criminal proceedings under Part II of the Act of 1974 is required to pay a contribution. The regulations also amend the scale of contributions.

In addition, I have placed before the House under the procedure subject to negative resolution three instruments for Northern Ireland which have the same effect on the legal aid and legal advice and assistance provisions there.

At the time of the last up-rating I told the House that I proposed to increase the capital assistance for what is called assistance by way of representation. That is given in the jargon of the trade the abhorrent name of ABWOR. That is an extension of the legal advice and assistance scheme and provides for representation in certain specified proceedings before courts and tribunals. I propose to increase the capital limit there to £3,000. That is the same level as the lower legal aid capital limit. I took the necessary power to do this in the Administration of Justice Act that has just received Royal Assent. The necessary regulations will be laid before both Houses of Parliament in the near future. That covers the regulations which I am under a duty to speak to before the House. I beg to move.

Moved, That the regulations laid before the House on 6th November be approved. [1st Report from the Joint Committee.]—(The Lord Chancellor.)

4.18 p.m.

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord for taking us through these regulations. As he says, they are by now an annual event occasioned by the inflation from which we continue to suffer. The effect of the up-rating of legal aid limits will not, as I apprehend, result in increasing the number of people in the community who are eligible for legal aid, advice or assistance. They seek merely to ensure that those who are now enjoying those facilities will continue to do so.

The changes are certainly of the most modest character and we are particularly anxious about the position with regard to capital provision, about which I apprehend that my noble friend Lord Elystan-Morgan may be commenting. The provision of legal aid has been recognised as a highly important social service ever since it was brought into being in 1949.1 wondered whether, without undue pressure upon his department, the noble and learned Lord could give us some picture of the benefit that the legal aid system has brought to the community in terms of the numbers who have enjoyed the facilities within a given period; how many civil actions have been brought under the umbrella of legal aid; and, if this were a possible exercise without massive research, what has been the outcome of the litigation?

As the applications have to go through a preliminary sieve by the appropriate committee of the Law Society, who must be satisfied that there are reasonable prospects of success before permission is given for legal aid to be granted, one would expect and hope that the success factor would be very considerable. If the material is available, I think it would be of great interest to the community to know and see how the scheme is operating. Undoubtedly, without the legal aid and advice schemes hundreds of thousands of our fellow citizens who have benefited from them since 1949 would have been in effect denied access to justice, which would have been an intolerable blot on our administration of justice.

With regard to the provision for ABWOR, to which the noble and learned Lord referred, I wonder whether he could elaborate on that a little for us? To what tribunals do the arrangements apply? As far as I recollect, the Lands Tribunal and the mental health appeal tribunals are the only two tribunals where legal aid is allowed. I wonder to what extent the ABWOR arrangements give the general possibility of legal advice and assistance in other tribunals as well? If it is convenient for the noble and learned Lord to refer to it, perhaps we can have some help about that.

We should also like to know what use is made of the ABWOR provisions, which provide a valuable extension to the legal aid and advice scheme. On the criminal side, a great deal of comment was made last year when we discussed the varying standards and practices between one magistrates' court and another in the granting of certificates and legal aid in criminal proceedings. I do not know whether the situation has improved in the course of the last year. There were previously some startling statistics of the variation between one magistrates' court and another in he willingness or unwillingness to grant legal aid in criminal cases. That again leaves a sense of inequity and unfairness: one gets legal aid or not depending on the magistrates' court one has the good luck or bad luck to be hauled before.

As I understand it from the noble and learned Lord, these provisions apply to both Scotland and Northern Ireland and that is obviously a very desirable measure.

In conclusion, may I fire a warning shot across the bows of the noble and learned Lord the Lord Chancellor—if that does not seem to be an unfriendly operation—with regard to the crisis that is now being reached on the position of law centres. Many of them are now in grave peril of having to be wound up altogether. When we discussed this in detail some time ago, the noble and learned Lord refused to accept any responsibility save for those that apparently I managed to rescue from destruction—according to him, with doubtful legality. I do not accept that for one moment. However, we shall be anxious to know what is to happen to them. Not only has the noble and learned Lord so far abdicated responsibility for them, but, having put me on to the Secretary of State for the Environment, which produced an equally unresponsive reply, there was an attempt to pass the buck wholly to local authorities, which are in increasing difficulty, particularly in the very areas—the impoverished cities and towns—where law centres have been able to render such great service. This is a very grave matter.

The law centre provisions have been a handmaid of the legal aid and advice scheme and if that has to be abandoned the consequences in the matter of social order and social relations within law centre areas will be very greatly aggravated. I hope therefore that the Lord Chancellor may hold out some hope in this field, although I appreciate that it only emerges indirectly from the orders. However, subject to those groans—which I think are legitimate—we support the regulations.

4.27 p.m.

Lord Denning

My Lords, may I say a word about this. In a way this is a small matter of keeping up with inflation so far as the limits of legal aid are concerned. But I wish to throw out a thought. In this country law is now available for the rich; it is available for the poor; but it is not available for the middle classes, and the limits of legal aid ought to be extended to make it available to people of the middle class.

Let me give just two illustrations. Any person of the middle class who is litigating with one of the poorer class is at a grave disadvantage. In one instance, a man sold his business for about £5,000, payable by instalments. The debtor did not pay. The plaintiff was just above the lgal aid limit. He had to go to a lawyer at his own expense. He had to sue the debtor. The debtor got legal aid in order to raise all sorts of defences to that claim. The case took two or three years. It cost the middle-class man £8,000. He got judgment for £5,000—and then nothing out of the other man. He had to pay £8,000 because he could not get legal aid. That is with regard to a plaintiff.

Let us now take the case of a defendant. A man is sued by a poor person who is legally aided, perhaps on a boundary dispute or something like that, and the defendant does not get legal aid because he is just above the limit. In those circumstances the man who has legal aid is at a tremendous advantage. He can go on litigating, put the defendant to no end of expense; and, although the defendant wins the case, he cannot get the costs from the legally-aided plaintiff at all.

Some of these inequalities were stressed during the last Session, when we ventured to suggest that a lot of improvements could be made. All I would ask today is this. Is it not'time that legal aid was extended beyond those poor limits to cover the middle classes of this country? The rich can litigate themselves; they are all right. The companies can litigate themselves. It is the middle classes who deserve to have legal aid available to them. If that were granted they would have to pay a contribution, but there would be discretion with the judge as to costs. That is the most important point. Therefore, I would urge not a minor increase to cope with inflation, but a wider revolution to extend legal aid to the middle classes of this country.

4.30 p.m.

Lord Wigoder

My Lords, it is one of the hallmarks of a civilised society that, because of their inadequate means, its citizens are not deprived of access to the courts. As these four orders represent a modest step in the continuation of the process which was begun many years ago in this country, we of course give them our full support. However, if I may, I would very respectfully echo the forceful point just made by the noble and learned Lord, Lord Denning.

The noble and learned Lord the Lord Chancellor referred to the question of legal aid in criminal cases, and because of that reference I hope that I shall not range too far outside the terms of these Motions if I mention that many of us are very much concerned that those who participate in criminal proceedings should be adequately remunerated. I hope that the noble and learned Lord the Lord Chancellor might perhaps be in a position to give some indication as to when the Government will respond to the submissions recently made by the accountants, Coopers & Lybrand, as to the fees at the moment being paid to the criminal Bar in legal aid cases. Any reply which the noble and learned Lord can give will I know be greeted with great interest.

4.32 p.m.

Lord Simon of Glaisdale

My Lords, I want to make only a few remarks in support of what was said by my noble and learned friend Lord Denning. They arise out of an observation that was made by my noble and learned friend Lord Elwyn-Jones to the effect that these measures, although useful and helpful in keeping the limits within the range of the rise in inflation, have no effect on taking anyone out of the legal aid scheme—they merely keep the same numbers in it.

I venture to put this point to my noble and learned friend the Lord Chancellor. By merely raising the figures in line with inflation, we are driving people out of the legal aid scheme so long as earnings increase in excess of the rate of inflation, as they have for a great number of years now. I know that hardly a day goes by without one or other of your Lordships—including, I confess, myself—urging increased public expenditure on this or that: whatever our favourite impulse may be. I know too that my noble and learned friend the Lord Chancellor is very capable of fighting his own corner when it comes to the allocation of public expenditure. Indeed, my experience was that he was often fighting everyone else's corner as well! When the matter comes to be reconsidered, I would venture to urge on my noble and learned friend that, so long as earnings in their increased rate exceed the increase in inflation, then merely by keeping the legal aid scheme in line with inflation increases we are driving more and more people outside it. That I know is contrary to the wish of my noble and learned friend and of all your Lordships.

4.35 p.m.

Lord Elystan-Morgan

My Lords, although this is an interesting and valuable debate, it lacks the high drama that has characterised some earlier debates on legal aid. I was not present on the occasion, but I read with very great interest the speech of the noble and learned Lord the Lord Chancellor in which he likened himself to Actaeon at the moment of his death, I was about to say at the hands but it was more at the teeth of the sleek hounds of Diana. Certainly, we are not in a position to consider such matters on this occasion; but we are glad of the opportunity which is given us year by year, through the necessity to amend these rates to meet the changes in the value of money, to review, as it were, the position in relation to legal aid.

There are two matters which I should like briefly to mention in my intervention. The first is the question of a consistency to be maintained as much as possible between one legal aid area and another in the grant of legal aid. I seem to remember that one of the annual reports by the legal aid authorities—I believe that it was either in 1981 or 1982—contained certain statistics concerning what appeared to be a capricious difference between certain legal aid areas and others in the percentage of cases that were granted certificates for legal aid.

My understanding was that there was to be further research in this matter. Together with I am sure every other Member of the House, I should be very interested to know how much research is done by way of monitoring and whether there is any ground for suspicions that from time to time a lack of consistency may exist between one area and another in the grant of civil legal aid. Clearly, in so far as the grant of criminal legal aid is concerned, there is inconsistency. It is a matter that many Members of this House, including myself, have turned to during the course of various debates.

I have read with very great interest statistics which appear in the September issue of Legal Action which are based upon researches carried out by the Lord Chancellor's Department. No doubt a great deal of monitoring work has been done. The statistics show that there is a lack of consistency. For example, the lowest percentage of refusal was 10 per cent., which was registered by Area No. 4, the South-Western area. The highest percentage of refusal was 16 per cent., which was the North-Western area, Area No. 7. When it came to the review rate in the South-Western area, Area No. 4, it was as low as 1.7 per cent.; and in the Northern area, Area No. 8, it was as high as 18 per cent.

On the whole these figures do not show any alarming divergences between one area as compared with another. But in my submission this masks the reality rather than underlies it. The real disparity exists, not between one area and another, but between one magistrates' court and another. I believe that in England and Wales there are some 700 magistrates' courts. Very often there are two courts within a stone's throw of each other and sometimes one court has a percentage figure which is three or four times that of the other. I appreciate of course that it is infinitely more difficult to gather this information on a court-by-court basis; but unless and until that is done, I do not believe that the reality of the problem will have been made public.

I turn now to the question that has been raised by my noble and learned friend Lord Elwyn-Jones, by the noble and learned Lords, Lord Denning and Lord Simon, as well as of course, by the noble Lord, Lord Wigoder. That is the question of the poverty trap. There is no doubt at all that hundreds of thousands of people suffer considerable injustice. I am conscious of that in my day-to-day practice at the Bar. I do not believe that anyone would pretend that there is an easy solution. There can be no solution by carte blanche. Nobody would suggest that for a moment. I doubt whether there is a solution by disregarding capital altogether, though it is right to remember that the Scottish Royal Commission on legal services made a specific and, if I remember correctly, unanimous recommendation to that effect. Powerful arguments were articulated in favour of treating capital wholly different from income. I need not go over them now, but it is obvious that that is a tenable argument.

The Benson Committee on legal services for England and Wales came to a slightly different conclusion: that it was wholly necessary to regard capital but, on the other hand, vitally necessary that there should be far more generous scales than those which have been conceived up to now. It is a very real problem. It is a problem that involves the denial of justice. I think it was Anatole France who said (and it has been quoted in this House often), that the Ritz Hotel is open to everybody. The courts of our land are open to everybody. It is the denial of means to enable a person to conduct litigation, sometimes in a defensive capacity, when that litigation has been inspired, and properly so, by the presence of legal aid that is the heart and core of the problem.

4.45 p.m.

The Lord Chancellor

My Lords, I have been given quite a battery of questions to answer—some of which I can, some of which I am likely to forget and others of which I probably cannot; but I shall do my best. I shall try to put this thing to some extent into perspective. I preside, successfully or otherwise, over what is the fastest growing in expenditure of all social services. This is particularly true in criminal legal aid. Indictable crime has been going up at a rate of compound interest of an average of 10 per cent. per year. Of course 90 per cent. of that is criminal legally aided. It must be said that this year looks like being rather worse than the average. The increase over the first six months was about 14 or 15 per cent. or perhaps a little more.

There are very heavy contraints upon me as to what I can do. It is no criticism whatever of noble Lords who have participated in this debate to say that if one is simply concerned with one's own area of departmental responsibility it is easy to find extended uses for other people's money. But if one is a member of the Government one is also collectively responsible for such things as hospitals, schools, teachers' pay, law and order, defence and the health service. One has to weigh the demands of one's own department against the perfectly legitimate demands of other departments and to fit them into a coherent policy. If one is to be loyal to one's colleagues and do one's duty as a member of the Government, one has therefore to moderate personal demands. In presiding over a rapidly expanding service that is what is called demand led—that is, that I do not determine the number of crimes committed every year in this country, or the rate of increase—one has to be very careful indeed.

This year there are a number of pressures upon me which are quite independent of what I have so far been discussing. I am glad nobody has mentioned the 24-hour duty solicitor scheme, but it is not very far from my own mind. I have to find another £20 million for that alone, though it was budgeted by the Philips Commission for about £6 million.

I cannot give an answer today to the noble Lord, Lord Wigoder, but he raised a perfectly germane question of the Coopers & Lybrand report, which is concerned with the remuneration for barristers in criminal legal aided cases. Very closely allied with that is that if one raises remuneration for barristers, I do not think that winter in the shape of solicitors can be very far behind. At the same time that the solicitors come cap in hand my right honourable and learned friend the Attorney-General is trying to set up a prosecution service, members of which will certainly not expect to be paid much less than the defenders. Thus your Lordships can see the kind of problem I am faced with; but I do not think it is anything like as bad as the noble Lord, Lord Elystan-Morgan, evidently believed.

This leads me to refer to my noble and learned friend Lord Denning. To begin with, civil legal aid applies to about 70 per cent. of the population. With respect, to say that the middle classes (whatever they may be; I have always regarded myself as one) are wholly excluded, does not live with that kind of percentage. One cannot include 70 per cent. of the population without including a great number of otherwise middle-class people.

Secondly, we have to recognise that, contrary to the general perception, it is the poor man who always has had the advantage of litigation, if he can get his litigation launched. That is because if he sues a rich man he can get his costs successfully. The rich man probably will not get his costs out of the poor man. That has been so ever since the noble and learned Lord, Lord Denning, was called to the Bar, and probably for 500 years before that. That is a very long time indeed.

Having said that, I should also say that it is not quite true that the legal aid fund cannot be made to pay in the case of a unsuccessful claim or defence; nor is it quite true to say that an assisted person cannot be made to pay. I shall not go into the details otherwise I shall take too long; but that is not quite right. One has to remember also—I think the noble and learned Lord, Lord Denning, did not spell this out specifically—that in order to get legal aid, whether one is financially eligible or not, one has to pass the merits test by the wholly independent system of committees in civil legal aid of the Law Society. They are supposed to apply, and I believe they conscientiously do apply, the same kind of test that an honourable solicitor or barrister would apply in advising an unassisted client whether to defend or not to defend or to initiate or not to initiate legal proceeedings.

The result is, first, that about 80 per cent. of civil legal aid certificates (I do not include matrimonial) succeed and therefore get their costs out of the other side. Secondly, if for any reason at any stage of the proceedings, which may, we fear, last for a long time, it comes to be apparent that either the claim or the defence is without foundation, the legal aid certificate can be withdrawn. Thus, the picture is nothing like as black as I think the noble and learned Lord gave the impression of its being. The answer to the question from the noble and learned Lord, Lord Elwyn-Jones, is, about a quarter of a million. I can give the exact figure. The actual figure for the year 1984–85, the last figure available, was 222,160—about a quarter of a million legal aid certificates granted.

There has also of course been an increase in matrimonial cases. There was a natural surge after we removed the three-year bar but that is plateauing out. It is impossible in the case of matrimonial proceedings, where very often both parties are legally aided, to give a significant figure for success or failure. One thinks that if both clients are reasonable, the case will be settled. However, in either event, both parties lose as a result of divorce. These adjustments, whether they are battles about children or battles about money, which they normally are, cannot be viewed in the way that personal injuries cases can be viewed, as either having succeeded or having failed.

Another general point that I should like to make, which I think should be made in relation to the speech of the noble and learned Lord, Lord Denning, is that over a very wide range, whether one is middle-class, working-class or very rich, the money for litigation comes out of income tax. In the enormous proportion of contract cases which arise in the course of carrying on a business—this must be true—the costs are offset. This is also true in the case of defendants in personal injuries cases, which form a very high proportion of legal aid certificates, because it is the insurance companies which pay the costs—even if one happens to be middle class—and the insurance companies set it off against the Chancellor of the Exchequer, against their profits. Thus one should not at all exaggerate the position of the middle classes.

Nor am I altogether withers wholly wrung by the noble and learned Lord, Lord Simon of Glaisdale. Of course, it is true that if earnings rise in relation to costs, people are—I will not say driven out of the legal aid scheme; they rise gleefully above it because, after all, if they are richer, they are richer, and that is a very good thing and not a very bad thing. However, while dealing with these general topics I must say that, having regard to the fact that my costs are rising so exponentially year by year, there cannot be any case for extending the provision to the entire population, even if one wanted to do so.

The noble and learned Lord, Lord Elwyn-Jones, asked me about the kind of representation which is given the jargon name of ABWOR. Of course, these are mainly for domestic proceedings in magistrates' courts and mental health review tribunals. The mental health review tribunal is the only tribunal properly co-called which I think qualifies for ABWOR, although the Lands Tribunal and one other which I think is called the Agricultural Tribunal count for civil legal aid.

The noble and learned Lord, Lord Elystan-Morgan, and the noble and learned Lord, Lord Elwyn-Jones, asked me a very interesting question about the inconsistencies between individual magistrates' courts in the granting or refusal of legal aid within their jurisdiction. The noble and learned Lord is quite right in saying that the Lord Chancellor's Department conducted a survey of some 60 courts in an attempt to establish what was happening, although one cannot very easily compare one with another because of the different patterns of cases which come before individual courts. For instance, if you have a motorway within your jurisdiction, it quite dramatically alters the pattern of refusals.

Nevertheless, I should be the last to deny the fact which the noble and learned Lord, Lord Elystan-Morgan, referred to and the other noble and learned Lord referred to, that there were at that stage, and shown as a result of that research, inconsistencies which could be explained only by inconsistent patterns of behaviour as distinct from inconsistent patterns of cases.

It will be remembered that in the legal aid regulations I introduced last year, and in response to this piece of research, I introduced an avenue of recourse where magistrates' courts were not prepared to grant legal aid for indictable offences. The new Criminal Legal Aid Committee have directly shown that they play a valuable role in that area. This is a wholly new function and I think that it will have to be allowed to work itself in. We, together with the Law Society, are watching the position closely, but I think before seeking further changes I should like to know how it was working.

A warning shot was fired across what the noble and learned Lord was courteous enough to refer to as my bows, about law centres. I think that would take me rather far into distant and bush country. However, I at once recognise that in deprived areas they have a limited function. I do not think that I have business in what is essentially a local service. However, whether my right honourable friend, who is concerned with urban deprivation and the urban programme, will at some stage feel inclined to make a concession in that area, I should not like to say today.

I should say that, except in areas where there is a shortage of practitioners, the law centre is not designed to be and ought not to operate as an alternative to the green form scheme. The standard scheme for giving legal aid advice and assistance should remain the green form scheme. It is only where that cannot be seen to operate that I should recommend the law centre to have a separate reason for its existence. Over a great part of the country, the green form scheme would be adequate.

I think I have answered a large number of questions put to me. I shall try, if I may, to have this debate carefully monitored and if I have left anybody out by mistake, or left out any points by mistake, I should like, if I may, to remedy it by correspondence.

So far as the noble Lord, Lord Wigoder, is concerned, I am not yet in a position to answer about Coopers & Lybrand for the kinds of reasons that I have been giving: a great many repercussions are involved and a good many related questions would have to be solved. I am examining the report very carefully. I shall, of course, be in touch with the profession about it. I am not in a position to make a statement today.

I am very grateful indeed to all noble Lords who have taken part in this debate and I hope that I have covered a good deal of the ground, if not all, that has been raised in the course of it. With that, I commend the Motion.

On Question, Motion agreed to.