HL Deb 18 March 1986 vol 472 cc908-23

5.50 p.m.

The Lord Chancellor rose to move, That the regulations laid before the House on 3rd March be approved. [15th Report from the Joint Committee.]

The noble and learned Lord said: My Lords, I rise to move the affirmative resolution standing in my name on the Order Paper. The House will have seen, however, that there are three other resolutions also relating to legal aid, against which the noble and learned Lord, Lord Elwyn-Jones, has given notice of his intention to pray. With the permission of the House, I shall deal with all together so far as my speech is concerned.

I have the honour and privilege—possibly also the misfortune—to preside over the largest and most rapidly rising social service of them all. In 1979, when I commenced my second term of office, total legal aid expenditure was £134 million. In 1984 and 1985, the total was £346 million. In both cash terms and in real terms, it has risen in proportion. Notwithstanding that, we have managed to introduce the formal arrangements for the duty solicitor scheme in magistrates' courts; the 24-hour duty solicitor scheme for suspects held in custody; the provision of payments to solicitors and counsel on account of legal aid bills; the extension of assistance by way of representation to proceedings before mental health review tribunals; and now, in the resolution that I am about to move, an increase in the capital allowance for assistance by way of representation to £3,000.

The subject of this affirmative resolution is the Legal Advice and Assistance (Financial Conditions) Regulations 1986. They increase the capital eligibility limit for assistance by way of representation—known in the horrible jargon of the trade as ABWOR—from the present figure of £800 to £3,000; that is, the same as the lower eligibility limit for civil legal aid.

As the House will know, assistance by way of representation is the form of legal aid used for domestic proceedings in magistrates' courts and also for proceedings before mental health review tribunals. The financial eligibility conditions for such assistance have, until now, been tied to those of the green form scheme. For the most part, that is a sensible arrangement: in both cases it is the solicitor who undertakes the means assessment, and it is clearly sensible to have common limits. However, it did give rise to one significant anomaly.

When assistance by way of representation was introduced for domestic proceedings in magistrates' courts in 1980, it replaced full legal aid. But the capital eligibility limit for legal aid has always been higher than that for the green form. That is deliberate. The green form scheme is intended for the provision of preliminary advice and assistance and the average cost of the advice given under it is around £50. Someone with disposable capital of £800 can reasonably be expected to pay that. The average cost of a legal aid bill is of course substantially higher, so a higher capital limit is appropriate. The introduction of assistance by way of representation, therefore, tied to green form eligibility, meant that some people whose disposable capital put them within the limits for legal aid could not qualify for such assistance.

In practical terms, that did not matter greatly while representation was confined to domestic proceedings in the magistrates' courts, because the alternative of full legal aid remained for those who fell between the two stools. However, when assistance by way of representation was introduced recently for proceedings before mental health review tribunals, the position was different because legal aid was not available as an alternative.

The solution was obvious: to raise the capital limit for assistance by way of representation to the level of the lower legal aid limit. However, the legislation as it then stood did not permit the setting of different eligibility conditions for ABWOR and green form. In last year's Administration of Justice Act, therefore, I took the power to make separate arrangements for the two types, and the regulations now before the House are the result of that new power. I announced in 1983 my intention to make that change as soon as time could be found for the necessary legislation. The regulations fulfil that commitment and I commend them to the House.

The other Motions with which we are today concerned relate to the change in the dependants' allowances given when assessing the means of applicants for legal aid. Those changes apply to both civil and criminal legal aid and to advice and assistance, which is why there are three sets of regulations.

When assessing the means of an applicant for legal aid, various deductions are made from the applicant's gross income in order to arrive at what is called his disposable income, which is what determines the extent of his entitlement to legal aid. Certain expenses are allowed in full at the actual cost to the applicant (for example, tax and national insurance, and, in civil and criminal legal aid, actual housing expenses). Allowances are also made in respect of each dependant the applicant possesses. Those allowances are for a set sum. For many years now, that sum has been set in relation to similar allowances given for social security benefit. Hitherto, the legal aid allowances have been set at a level 50 per cent. above the equivalent social security levels. The regulations laid before the House on 19th February will reduce that 50 per cent. premium to 25 per cent.

It is important that that should be seen in context. As I have said, since 1979, expenditure on legal aid has approximately trebled. In real terms, it has even doubled. Perhaps I could give a few additional figures. For civil legal aid, net expenditure in 1979–80 was £25.4 million; in this financial year it is expected to be around £84 million. For advice and assistance, net expenditure was £11.9 million; in this financial year it is expected to be around £62 million. For criminal legal aid in 1979–80, net expenditure was £60.8 million; in this financial year it is expected to be £155 million. Nothing could give a clearer indication of the importance that the Government attach to legal aid.

Furthermore, significant improvements have been made to the legal aid scheme. I mentioned earlier the duty solicitor scheme in magistrates' courts, the 24-hour duty solicitor scheme from the beginning of this year for suspects held in custody; the provision of payments to solicitors and counsel on account of legal aid bills; the extension of assistance by way of representation to proceedings before mental health tribunals; and now, the increase in the capital allowance for assistance by way of representation to £3,000. The 24-hour duty solicitor scheme, which came into operation in January, is one of the most important developments in legal services for many years.

It really is vain to suppose that legal aid can be looked upon in isolation from other competing demands on public expenditure. The rate of growth we have seen over the past few years shows no sign of moderating. Next year, we expect to spend about £380 million. That is about 15 per cent. more than the comparable figure for the present financial year; that is, 1985–86. This is after the savings which we expect to make from the dependants' allowance changes have been taken into account.

It is important that this point is fully recognised by those who suggest that the Government are cutting the legal aid scheme. Nothing of the kind. It is mounting rapidly by the extent which I have mentioned. Even after the dependants' allowance changes have been made, expenditure on legal aid next year is expected to be some 15 per cent. higher than this year.

The changes will of course mean that some people who would previously have qualified for civil legal aid will not now do so. But by definition these are people who would in any event have been at the top of the contribution range and would therefore already have been paying towards the cost of their case. Even so, I am told that they can be numbered at fewer than 1,000; and it is important to remember that that is 1,000 out of 250,000 civil legal aid applications each year.

Some people within the limits will have to pay more by way of contribution than they do at present, but again this needs to be seen in perspective. These will be those applicants whose incomes are at the higher end of the qualifying range, and they will be asked to pay no more than they can reasonably be expected to afford. At present nearly 80 per cent. of civil legally aided persons receive their legal aid free of contribution. Some of these will now be required to pay a small amount; but the large majority will in practice be totally unaffected by the changes, and anyone who is receiving supplementary benefit or whose income is at around supplementary benefit level will still receive non-contributory legal aid.

The point, however, that I must come back to—and which I cannot stress strongly enough—is that the money available for legal aid is not limitless. It has to compete with other claims on the public purse—claims which we hear every day in the field of education, housing, sickness, pensions and other social services. Rates of growth such as we have seen in recent years cannot be allowed to go on without bearing some of the burden of increasing Government expenditure. The reduction in the dependants allowance premium is necessary because we have to do something to moderate the rate of growth. It is against that background that I have had no alternative but to lay before the House the necessary regulations. I beg to move.

Moved, That the regulations laid before the House on 3rd March be approved. [15th Report from the Joint Committee.]—(The Lord Chancellor.)

6.2 P.m.

Lord Elwyn-Jones

My Lords, I begin with the small silver lining over the dark cloud which the noble and learned Lord the Lord Chancellor is creating in the field of legal aid and advice by these regulations. I approve of the first affirmative resolution which increases the disposable capital limit for availability by way of representation for ABWOR under the Legal Aid Act from £800 to £3,000. In practice, not many beneficiaries will enjoy benefits from the change. The primary beneficiaries from the increase will be mental patients who have slowly built up savings while under care. How many extra applications will flow from that we do not know, but there will be a small amount. So far as it goes, this little, modest improvement is welcome.

It is in stark contrast with the rest of the instruments that we are dealing with. For the first time since the inception of the legal aid scheme in 1950 the Government are cutting back eligibility for legal aid—in this case to those most needing it. The changes proposed in these three orders will have a significant effect on the ability, above all, of families to benefit from legal aid. Last year more than a million-and-a-half people received the means of proceeding by way of legal aid. These regulations reduce by one-sixth the sums allowed for dependants in the income means test used to assess applicants' entitlement to legal aid and, if they are entitled, the amount of their contributions. This is achieved by reducing from 50 per cent. above supplementary benefit to 25 per cent. above those levels. The result will be that the amount of the cuts—and they are cuts so far as concerns those who have previously benefited in this field—that will result is estimated by the Goverment, as I understand it, to be £7.5 million a year. That is the amount that it is estimated will be saved. That sum will fall almost exclusively on families with children.

The estimate that I have from the Law Society, which strongly opposes these regulations—as do the CABs and other bodies—is that some 9,000 additional legal aid applicants will be asked to pay an increasing contribution; increasing the number by 20 per cent. The savings will be concentrated on families; as opposed to single legally assisted persons whose position remains largely unaffected.

The types of families that these regulations are directed against, and who are most likely to have to bear the brunt of the changes, will be large families with two wage earners or a single parent with a number of children perhaps in part-time work. Those are the very people whose resources are most likely to be strained already. Regarding contributions, the family with three children will now begin to pay contributions at an earnings point which is over £1,000 lower than is the case now and will lose over £750 in allowances. I submit that the changes will have a significant effect on the ability of families to enjoy the benefits of legal aid.

Last year more than a million-and-a-half people received legal aid to defend criminal charges, obtain divorces, child custody and maintenance, to enforce housing, employment and other benefits, to sue for compensation in respect of injuries inflicted upon them by negligence and to exercise many other legal rights. The result of these regulations will be that the parents of Britain's 6 million families with dependent children stand to lose most from the cuts.

The noble and learned Lord explained the process of assessment. Financial liability is assessed by considering various disposable income factors, but all the tests bring into play the important element of the allowances for dependants. The most significant effect of the cuts will concern civil legal aid. The annual allowance now for a child aged 16 will, if the regulations are approved, be cut from £1,420 to £1,183. From 12th March the difference of £237 will be added to the applicant's disposable income, raising the contribution by £60, or possibly resulting in disqualification from the scheme altogether. Reduced allowances for a full complement of dependent spouse plus three children will amount to around £850, with additional contributions, assuming the applicant is still able to qualify, of £210. I submit that this is sadly a case of aiming the cuts at those who are most in need of help. The curious formula is applied that the greater the need, the greater the reduction in legal aid. It is a crazy logic, an anti-social logic and an unsympathetic logic.

A similar system of financial assessment of contributions applies to criminal legal aid, which is dealt with in Statutory Instrument No. 274, with the exception that there is no upper eligibility limit on income. A very high proportion of criminal defendants are unemployed and therefore are not potential contributors under the legal aid scheme; but the additional contributions in that field that will be demanded as a result of the cuts in allowances again increase the burden on defendants' families or discourage them from benefiting from legal aid in civil proceedings.

The great sadness of the proposals which the noble and learned Lord feels obliged to bring forward tonight is that they will seriously damage the reforms which I proposed as Lord Chancellor in 1979 and which were faithfully implemented, if your Lordships will allow me to say so, by the noble and learned Lord who succeeded me. The savings which I was able to achieve in legal aid expenditure in my time, by reducing the scope of legal aid in divorce cases (as a result of making divorce simpler to obtain) were used at that time—and this practice was continued by the noble and learned Lord—to increase eligibility and to reduce the high burden of contributions.

The present changes will turn against that trend and will reduce the proportion of the population which is eligible to receive legal aid. The new rules will adversely affect people who are seeking legal aid both in the civil courts and in criminal cases, as well as those who need help under the legal advice and assistance schemes. As I have said, the entire burden will be borne by families.

If I may say so, although legal aid costs little (in spite of the figures which have been given by the noble and learned Lord) compared with other means-tested benefits, it is not a marginal benefit that society can readily do without. Legal aid underpins many other public benefits by helping citizens to enforce welfare, housing, employment and other rights and above all by promoting access to justice. As I have said, the changes proposed in these instruments are objected to by responsible bodies such as the Law Society and the National Association of Citizens Advice Bureaux. They run counter to the approach of all political parties in recent years, which has been directed to the purpose of ensuring that lack of money shall be no bar to the citizen and his family in obtaining justice in the courts.

I ask and urge the noble and learned Lord the Lord Chancellor to take these orders away and to look at them again. They run counter to what the noble and learned Lord has done in the past and I hope that he will stand firm and reject them now.

6.14 p.m.

Lord Wigoder

My Lords, I am beginning to find that my attendance in your Lordships' House is inducing in me a state of schizophrenia. I come on Mondays and Wednesdays and listen to Government Ministers, who are very often Cabinet Ministers, extolling our economy and telling us what a prosperous society we now live in. I leave your Lordships' House with my head held high and proud of being a member of such a society. I also come on Tuesdays and Thursdays to your Lordships' House, and tonight I find the noble and learned Lord on the Woolsack (who is, if I may say so, the most generous of men) constrained to have to put forward on behalf of his department niggardly proposals of this sort. It is being done in the name of saving a paltry sum in the region of £7½ million a year.

I say "a paltry sum", and there are of course many individuals who would regard it as a paltry sum, but there are certainly many other individuals who would wish to save £7½ million a year of their own money if they could. We are not taking about individuals; we are talking about the nation. We are talking about a state of affairs such that in the other place this afternoon figures not of £7½ million but of scores of billions of pounds have been quite freely mentioned in discussing the national economy. I think that in those circumstances it is idle to say that the sum which it is proposed to save by these orders represents a significant amount.

Nor indeed do I accept the argument that this is only one item and that there will be many other items like this which in due course will add up to a significant amount. If my arithmetic is correct, it would take 150 similar savings of this order to amount to one billion of the billions of pounds that have been talked about so freely in another place today. So I cannot regard the saving in this case as being significant or one which is worth making if there is an element of injustice involved.

Clearly there is an element of injustice, and I do not believe that that element of injustice will be offset in any way by the increase in the other order and the raising of the eligibility limit for ABWOR. I note that the noble and learned Lord on the Woolsack did not attempt to estimate how much that measure would cost. I hope that he will be able to give us an estimate of that expenditure when he comes to reply. I suspect that it is a sum which is very much less than the proposed saving of£7½ million which is involved in the other orders. In those circumstances, we on these Benches will of course want to support what the noble and learned Lord, Lord Elwyn-Jones, has said. I adopt his arguments and it would be quite superfluous of me to seek to repeat them.

When I said that the measures which are proposed are niggardly, I did so for several reasons. First, they will remove altogether something like 1,000 people from eligibility to legal aid, advice or assistance. Secondly, they will mean that a great many more than 1,000 people—and again, though I may not have heard this correctly, I do not think that the noble and learned Lord on the Woolsack gave any estimate of the figures—will find that they are obliged to make a contribution if they are to exercise their legal rights. The figure I have seen is something like 9,000 families, but perhaps it may be more than that.

I think the significance of this figure lies in the fact that it is known from experience that once people who apply for legal aid are ordered to make a contribution, somewhere between a quarter and a third of them will decide that in those circumstances legal aid is beyond their means and something which they do not wish to pursue. In effect, increasing the number of people who will be required to make contributions is tantamount to telling that number of people that they will not be able to pursue their legal remedies. This is what is left of the great concept of legal aid in our society.

The third reason why this is a niggardly proposal is because of what has been said by the noble and learned Lord, Lord Elwyn-Jones, as to how it is to be decided which people are to be deprived of legal aid or ordered to make a contribution in future. The effect of these three orders is very simple: the more children that a man has, the less eligible will he be for legal aid. That is an astonishing criterion. I do not know—and perhaps the noble and learned Lord on the Woolsack can tell us—whether either the Law Society or the Legal Aid Advisory Committee were consulted about this. I am bound to say that I should find it astonishing if either of those bodies were consulted and agreed that this was a fair and equitable way of reducing the burden of legal aid.

In those circumstances, it is perhaps hardly necessary at this hour to say any more. I agree entirely with what my noble and learned friend Lord Elwyn-Jones has said when in his Motion he describes these proposals as retrogressive. It is a word that is entirely appropriate and quite indisputable.

Lord Denning

My Lords, may I first address myself to the wider Motion: That this House regrets the retrogressive actions of the Government in regard to Legal Aid and Advice". I go back 50 years or more when there was no legal aid. If a man had to be defended in the criminal courts, he would be put up to be arraigned and he would say to the judge: "Can I have a dock brief?". The judge would point to one of us there and say to the man, "Have you £1.3.6d?". If he had it he would say, "Yes". The judge would say, "You can choose any of those gentlemen sitting there". He would point to us. The man could only see the back of our wigs. And then for that £1.3.6d. it was the etiquette of the Bar that one would have to defend him to the best of one's ability day after day if need be, for £1.3.6d.; but at his expense, not at the expense of the taxpayer. That was in the criminal courts.

In the civil courts, let me tell you, my Lords, of my first case. It was a case where a lady had gone to a dentist and under the anaesthetic her tooth had broken and dropped down her chest, and she was very ill in consequence. She wanted to bring an action against the dentist. She had no money. Under the poor prisoner defence scheme the solicitor took it up, only getting his out-of-pocket expenses. I took up the case for nothing. Fortunately, we won and she received her remedy without any expense to the state at all through the services of the lawyers.

That was all before 1950 when the Rushcliffe Committee introduced legal aid. We were astonished by it. My word, talk about retrogressive, my Lords! Governments from that time to this have been most progressive. Everyone in the civil courts in such a case as I have mentioned, could get the action on; and the lawyers—both solicitors and counsel—would be paid by the state all the way through. If they lost, they did not have to pay the other side's costs. It was a jolly good thing for the poor people.

Then afterwards in the criminal courts—oh how it went on!—the burglars, the crooks, all of them were brought up and they would be able to get their defence. They probably had none at all but they would plead Not Guilty and have a solicitor and counsel all at the expense of the taxpayer. We were paying for it. The lawyers would defend their clients right the way through. Sometimes they carried it on for too long because of the fees they were getting. But there it was: legal aid, not only in civil cases—which I have told you about—but in the criminal cases all the innocent and all the guilty were paid for by us; all the lawyers were paid for through legal aid.

What a wonderful system of progress it has been! I have said so many times how legal aid is perhaps the greatest revolution to have come for years in the legal profession. No longer is there the jibe of one law for the rich and another for the poor. The poor get their representation in the courts at the expense of the taxpayer. There is only this one qualification: "Let him pay as much and contribute as much as he can reasonably afford". Surely that is sensible: to contribute as much as he can reasonably afford.

There it is, talk about retrogressive, in the time of this Parliament we have had legal aid extended: we have had the advice beforehand, help in the magistrates' court, we have had duty solicitors in attendance when a man is charged. When a man is charged, he goes to the police station, and as soon as he is taken there he is asked, "Do you want a solicitor and can you afford one?" He replies, "yes, but I have no money. He is told, "It does not matter about money, we will telephone the solicitor", and the taxpayer pays. No wonder the bill has gone up to over £300 million, or whatever it is.

I am not saying it is wrong; all I am saying is that it is very progressive. Legal aid has been a wonderful service to the community, paid for by the taxpayer. I would not say that the actions of the Government have been retrogressive in any way; I would rather perceive that they have been progressive.

I now come to the Motions for alteration. I agree that they seem insignificant. However, in the papers which I have received—and it is much better to take an example—they say that a family of husband, nonworking wife and three children aged four, eight and 13, with a gross income of £10,460, is currently eligible for free legal aid—not paying anything. The husband will now be asked to make a contribution of £190. If he is suing for damages for an injury and has a case, is it very unfair to ask him, with an income of over £10,000, to contribute £190, which is not so much perhaps as the cost of a new television set or whatever it may be? It is a contribution of £190 from the man who is being defended, if he has that income, instead of the defence being at the expense of the state. Is it not fair? That is the whole point of this. What is a fair contribution for him to make?

So I do not think that it is retrogressive; but we have to remember, as I stressed at the beginning of my speech, that the legal aid bill is enormous; it runs into hundreds of millions. Surely the Government are right to say. "Well, we have to look at our ways and means. We think those who can contribute ought to contribute". I do not know the rights and wrongs of it but those who advise the noble and learned Lord the Lord Chancellor—and I hope that there has been consultation even on this slight alteration—feel that just this small alteration means that the contribution will be just what is fair and reasonable. It is small; it is only £7½ million. In assessing what the proper contribution would be, I would go by those who help and advise the noble and learned Lord the Lord Chancellor on the finances of it. I hope that he has considered all the representations, and as long as it is confined to a fair contribution all well and good.

For those reasons, at the moment I would trust the Government and those advising them that this is a fair alteration to make. Therefore, I would not support the amendment and I would approve the measure.

6.30 p.m.

Lord Campbell of Alloway

My Lords, I support the Motion to approve the regulations and oppose the prayers and the Motion of the noble and learned Lord, Lord Elwyn-Jones. Some time ago, in answer to a Written Question that I put down on 17th February, as to whether the Government were proposing to make any changes in the operation of the legal aid scheme—this appears at cols. 497 and 498—my noble and learned friend the Lord Chancellor gave a very full reply. This heralded these four regulations, three of which are sought to be annulled but the fourth of which, increasing the capital eligibility, the noble and learned Lord, Lord Elwyn-Jones, does not oppose. Notwithstanding the hostile reaction of the Law Society—I have received today a packet of documents from it in which it is claimed, no more nor no less, that these regulations, shatter the carefully constructed reforms planned by the noble and learned Lord, Lord Elwyn-Jones, between 1977 and 1979—these regulations have to be seen in context with the substantial improvements offered, referred to in the Answer to the Written Question, as well as in context with available resources—a phrase that has a very important impact in any system of responsible government.

As I sought to mention in the debate on the Roskill Report, such resources (although some seem to think otherwise) are not within the personal gift of any Lord Chancellor. The cost of legal aid expenditure has doubled in real terms since 1979. There is now, we are told, a £30 million over-run, and £380 million, I believe, is to be spent next year. It is therefore small wonder that the noble and learned Lord, Lord Denning, should say, "Well, we have to look at our ways and means". It is a matter for Government. Hence, the Motion of the noble and learned Lord, Lord Elwyn-Jones, which regrets the retrogressive actions of this Government.

But on reasonable examination, are these regulations retrogressive? Have they not to be seen in context with the proposed improvements to which my noble and learned friend the Lord Chancellor referred in answer to the Written Question? That Answer referred to changes in the operation of the statutory charge; to the extension of the advice and assistance scheme to allow solicitors to visit the housebound; to the extension of ABWOR—that terrible term—to proceedings under Section 47 of the National Assistance Act; and to the extension of ABWOR to applications under the Children and Young Persons Act. It is stated, looking ahead: The Government also accept that the following improvements should be made at an appropriate time in the future". How are improvements to be introduced unless one indulges in a measure of prudent housekeeping?

There is, of course, in this respect, the increase in the capital eligibility sum. All these factors have to be taken into account with the reduction in allowances given against income for defendants when assessing eligibility for legal aid, civil and criminal, from 50 per cent. to 25 per cent. Assuredly, this will remove from legal aid some of those who should otherwise have qualified. That is, frankly, a pity. But, with the greatest respect to the noble and learned Lord, Lord Elwyn-Jones, are these really the needy? Are they the impoverished? Are they the destitute members of society who most need it? In this, is it not proper to keep a sense of balance? There is really, in respect of these proposals, no justifiable sense of outrage. There is no unfair and unjustifiable discrimination against those who simply cannot afford to pay for legal aid and advice.

I take the point that a cut may be a cut in the eyes of the beholder, but not in the way in which it is regarded by Government. I take the point that the Government would even resent, perhaps, the suggestion that there was a cut when the amount of expenditure increases. I can, however, see the difficulty as regards the recipient.

One has also to take into account the quality of legal aid and advice available. It is of a very high quality indeed. It is very important that the poorest in the land—the pauper is in no way disadvantaged by these proposals—can find the finest and most expensive advocate. That is marvellous. The standard is maintained. But it costs the state a bit of money. For my part, I would prefer that standards were maintained as high as they are rather than that there should be any reduction of standards by cutting expenditure.

It appears from what the noble Lord, Lord Wigoder, says that about 1,000 people will be removed from eligibility. Again, that is a pity. But seen in perspective, it is not a very great percentage of those concerned. The noble Lord, Lord Wigoder, says that more people will have to make a contribution. Yes, my Lords. That, also, is a pity. However, when the noble Lord goes on to say that when these people are told that they will have to put their hand in their pocket to find a penny piece they will not do so, and therefore it is unfair because they will not then receive legal aid, the logic of any criticism, certainly criticism of the Government, seems to dissolve.

Like the noble and learned Lord, Lord Denning, I worked on the Western circuit in the days when there was no legal aid. I agree with the noble and learned Lord that "retrogressive" does not seem an apt term to use against a Government who propose to spend £380 million in the forthcoming year. For those reasons, I support the Motion and oppose the prayers.

6.40 p.m.

Lord Hatch of Lusby

My Lords, it has always seemed right, since I read these regulations, that they should not be debated here simply by lawyers, as has happened so far. Therefore, although my name does not appear on the list—and I did not know there was a list until today—I indicated my intention to speak. I would hope that I am speaking for the people who are affected by legal aid and the victims of these regulations.

I am also concerned that we are debating these regulations tonight but that apparently there is no means by which they are to be debated in another place. I should have thought that something which touches the lives of so many citizens of this country should be debated by their elected representatives, and not simply by the unelected members of your Lordships' House.

I should also like to ask the noble and learned Lord on the Woolsack, who opened this debate, one or two questions concerning the effect of these regulations. For example, will the regulations involve extra administrative costs at the changeover? If that is the case, will those costs not fall mainly on the DHSS rather than on the department of the noble and learned Lord? Will this not then be an extra charge on an important government department which has nothing to do with the law?

The second question I should like to ask the noble and learned Lord is whether this is an executive action by his department, or whether there have been any consultations with those organisations—both legal and those giving citizens advice—to discover before the regulations are made what kind of effect this will have on the people involved.

My noble friend Lord Elwyn-Jones has taken himself out of the legal straitjacket and spoken—most movingly, I found—for the ordinary people who will be involved in the changes that are now proposed. I believe that every member of this House, including the noble and learned Lord on the Woolsack, would agree that the central objective of legal aid is to ensure that lack of money is no bar to justice. If that principle is to be maintained, how is it possible to argue that some people who are today entitled to legal aid should not be entitled to that legal aid tomorrow? Is this not removing the opportunity of justice on the basis of the amount of money that an individual possesses?

When the noble and learned Lord introduced these measures the only reason he gave for them that I could discover was that there is competition for public expenditure. It has already been said that these measures will save something like £7 million a year. But how many people will be affected by that saving? Is this the way that the Government believe in honouring that principle—which again I believe the noble and learned Lord would totally accept—that lack of money should be no bar to justice?

I should also like to ask the noble and learned Lord why there has been such a hurry. As I understand it, the first of these regulations was not laid until 17th February; the last on 3rd March. Again if I understand it correctly—and I hope that the noble and learned Lord will correct me if I am wrong; indeed, I am sure that he will—they came into operation on 12th March. Are we then being asked to legislate retrospectively? Did these regulations come into effect last week? If so, they came into effect presumably by executive action without approval from Parliament. However, the whole kernel of the case against these regulations has been outlined very fully and very movingly by my noble friend Lord Elwyn-Jones.

The reduction of the allowances for children is the central issue to which we should address our minds. The reduction in the allowances for a child of 16 is, I understand, to be 16.6 per cent. What will this mean, particularly to families? As my noble friend pointed out, these cuts are aimed at just those people who are most in need of help. Apparently, the greater the need for help the greater is the reduction in legal aid and the increase in contributions.

This Government have claimed that they are concerned for families. It is surely the families who will be most severely attacked by the new financial arrangements included in these regulations. As the noble Lord, Lord Winstanley, has pointed out, anybody who has anything to do with families in this country knows that many families do not pursue their rights because they do not believe they can afford to do so. Under these regulations, there will be more. Nobody can say how many more. The Government are saying that in order to save this piddling little amount of £7 million more people in this country will not pursue the justice which is their right.

It seems to me as a layman that the families of defendants in criminal cases will be most bitterly attacked. They will feel these measures more severely even than those in the many civil cases that today claim legal aid. Why?—because the defendant in a criminal case has no choice but to defend himself. No one supposes that the family of that defendant is anything other than innocent, yet, when the assessement of legal aid is entered into, it is the family income, including the benefits, which are added to the defendant's assessed income and contributions are levied on it. Families will suffer if defendants are convicted. But should families suffer in order to give defendants the right to the legal aid assistance that can give them a proper defence?

As my noble friend has pointed out, in civil cases when families need to take action to protect their housing, or to enable them to gain the welfare benefits to which they are entitled or defend themselves in matters of employment these proposals attack the family. All these are matters which deeply concern the family. I hope that the noble and learned Lord who has introduced these regulations will address himself in his further speech to telling us why it has been felt necessary by this Government to take away that defence from some of these who have been protected in their social life, above all in their family life, by the present legal aid provisions. Why is it that the Government, who claim to be a Government protecting the family, are quite deliberately and openly reducing the rights of the family to apply the laws of this country and to claim the justice of a British citizen?

6.50 p.m.

The Lord Chancellor

My Lords, while I am grateful to all noble Lords who have taken part in this debate, I am bound to say that having listened to all the speeches I am not particularly impressed with the case against me as it stands at the moment. I shall, if I may, deal in a moment with the intervention of the noble Lord, Lord Hatch of Lusby, who made a series of thoroughly bad points, but it seems to me that the critics cannot have it both ways.

When a sort of Doomsday approach is adopted towards these very small changes, with people saying—I think quoting from my noble friend Lord Campbell of Alloway, to whom I was grateful for his support—that the whole line is shattered by these minute changes, I am bound to say that that does not live very well with the correct estimate of the noble Lord, Lord Wigoder, that the saving is £7.5 million and the description of it by the noble Lord, Lord Hatch of Lusby, as a paltry sum. You cannot have it both ways. You are either shattering this grand social edifice or you are saving a paltry sum, but you cannot be doing both. That is nonsense.

If I may say so, dealing now with the noble Lord, Lord Hatch of Lusby, we are always glad for laymen to take part in even the most intricate of legal debates. They add a breath of common sense; they stop us convoluting ourselves in intricacies and logical difficulties. But I must tell him, first of all, that he began by saying that these regulations could not be debated in another place. Of course that is nonsense, and he ought to know it. If regulations need an affirmative resolution, they require an affirmative resolution. If they are subject to negative resolution, they are subject to negative resolution; and as a matter of fact they are being debated next Tuesday, the 25th. That is the sort of remark which is not particularly helpful.

The noble Lord asked me what is the extra administrative cost to the DHSS, which he gloomily said was one of the departments most in need. The answer is, nil. There is no additional cost to the DHSS. There was no hurry. The regulations were laid on 19th February, we gave the proper 21 days' notice, and apparently the noble Lord has not studied his constitutional law even to the extent of studying Section 1, negative procedure. It is that the regulations come into force unless they are prayed against. This, I am bound to say, was a series of tear-jerking attempts which have utterly failed to jerk a single tear anywhere in the Chamber.

Now we come to the more substantial meat of this. The 24-hour duty solicitor scheme, which was one of the improvements introduced this year in January, will cost between £20 million and £30 million at least this year. We are being asked to save £7.5 million, which shows the proportion in which this has to be viewed. When it was clear to me that I would have to make some saving somewhere, I inquired as to that which would do the least harm to the recipients of legal aid. I was clearly and unequivocally advised that this was the right choice to make. Obviously no one, but no one, who is responsible for a spending department welcomes a pressure of any kind upon him, but this was the advice I received and nobody has suggested an alternative which would have cost less.

As for the idea that the percentage of persons who would be excluded from legal aid—which has been fixed at about 70 per cent. Of the population ever since the 1979 reforms of the noble and learned Lord, Lord Elwyn-Jones, which I was broadly able to applaud and have applauded ever since—

Lord Elwyn-Jones

Until now!

The Lord Chancellor

No, my Lords, even now. The noble and learned Lord raised it to 70 per cent. Of the population entitled to legal aid.

I think the result will be practically unobservable. There will be about a thousand people out of 250,000 people removed from legal aid. As for those entitled, a man with two children can earn, after the changes, up to £13,024 and still be entitled; a man with four children will qualify up to £16,108. That is the fact of the matter which is said to be so bad. I was very grateful to the noble and learned Lord, Lord Denning, for putting the matter in its historical perspective. He gave the example of the contribution of £190, but he did not put the case as strongly as he might have, because that £190 is only payable over a period of 12 months so far as I know. Really this is not a very good case.

In the meantime, one has to face the realities of the situation. We soon will top the £400 million mark on this social service. I am as much in favour, and have always been as much in favour, of this social service as anybody else. I do not claim enormous credit for those vast sums being expended on it because it is in fact a reflection of the number of people who commit, or who are charged with, crimes. I do not get any joy out of that. They are of course entitled to defence. A very large number get off, so they are presumed to be innocent, but a great part of this sum is caused by people who give false evidence in their defence and do not get off. Although they are entitled to be defended under this scheme, and rightly, I must say that my withers are slightly unwrung, because if there is one person who is innocent of the offence of which they are being convicted it is the taxpayer.

I was very grateful to the noble Lord, Lord Wigoder, for saying that I was a generous-hearted man. It is probably more than I deserve, because some of my friends think that I am a bit mean. But one thing I do not either claim to be or plead guilty to is being generous with other people's money or niggardly with other people's money. I am a member of the Cabinet. I have to be the steward of the whole Consolidated Fund. Every penny that comes out of these regulations comes from the legal aid fund. That is funded by moneys provided out of Parliament, and money which comes out of that fund has to be at the expense of other spending departments or else the taxpayer.

That is the reality of the matter. It is not a question of whether I am generous. It is not a question of whether I am niggardly. It is a question of whether I am being responsible as a member of the Cabinet for the whole of government expenditure, and whether I have fought my corner with sufficient success.

As a matter of fact, though it is not for me to brag, if it be true that I have got away with a saving of only £7.5 million I should receive a pat on the back from those who favour more money on legal aid. My withers are slightly unwrung. I think that I have done rather well by legal aid on this matter. If we are looking at the realities of this, legal aid largely goes on matrimonial cases in civil law, and in criminal law on people who plead not guilty and get convicted. The taxpayer is innocent of the breakdown of marriage. We provide generous legal aid in such cases for the ancillaries, and we provide generous legal defence even for those who plead not guilty and turn out to be telling lies.

The last of the points I should like to make is that the noble Lord, Lord Hatch of Lusby, went so far as to say that in criminal legal aid people are hit hardest, but nobody will be taken out of legal aid in the criminal field because there is no upper limit. In criminal cases all that will happen is that some people will be asked to pay a slightly bigger contribution and, according to the best advice I have, they will be able to afford that extra contribution.

This is a very small matter to have taken up the time of the House for so long, but I attach a great deal of importance to my administration of this fund. I have done the best that I can for the people who gain by it. I have also done the best that I think I ought to do as a steward of the public money which I am just as much as is the Chancellor of the Exchequer. That is all I have to say. I am not guilty!

Perhaps, before I put the Question, as I know that the noble and learned Lord wants to divide' somewhere, I should ask him to give me some indication where he wishes to divide.

Lord Elwyn-Jones

My Lords, I must obey the orders of my Chief Whip. I understand that the procedure to be followed is that the Motions in regard to the statutory instruments will now be put. I shall not move my Prayers against those Motions, but I shall certainly move the Motion standing in my name which is: That this House regrets the retrogressive actions of the Government in regard to Legal Aid and Advice".

The Lord Chancellor

My Lords, I am much obliged to the noble Lord. The Question is therefore that the Motion standing in my name be agreed to.

On Question, Motion agreed to.