§ 3.8 p.m.
§ The Lord Chancellor
My Lords, I beg to move that the Bill be now read a second time.
Legal aid in England and Wales has a long history and it is with legal aid in England and Wales that we are principally concerned today. It is almost 500 years since the passing of what could be described as the first legal aid Act. In 1495 an Act of Henry VII was entitled,An Act to admit such persons as are poor to sue in forma pauperis".Times have changed: the 1495 Act consisted of one clause which could be printed on one side of paper; today we have before us a Bill of 43 clauses and seven schedules. But the aim remains essentially the same. My noble and learned friend Lord Hailsham of Saint Marylebone began his legal aid White Paper earlier this year with the words:The purpose of legal aid is to ensure that people of small or moderate means receive access to proper legal advice, and to justice".Henry VII and his 1495 Parliament would have understood that sentiment. We are, therefore, today putting our mark on a 500-year long tradition. The Bill that is before your Lordships will set the framework for the legal aid scheme through into the next century. That is the measure of its importance, and the context in which our deliberations must be seen.
The legal aid scheme as we know it today had its origins in the report of the Rushcliffe Committee. That report was published in May 1945, and provided the basis for the 1949 Legal Aid and Advice Act, which is in effect the grandfather of the Bill we have before us now. The 1949 Act established the civil legal aid scheme, and appointed the Law Society to run it. Criminal legal aid developed rather differently from civil legal aid. It was closely associated with the courts and it remains largely a court-administered system today. In 1972, the legal advice and assistance scheme was introduced. It represented the biggest single development in the legal aid scheme since 1949.
606 In 1974, the legal aid legislation was consolidated, and it is the 1974 Legal Aid Act which the present Bill seeks to replace. Since 1974, there have been two further legislative milestones in legal aid's history. The 1979 Legal Aid Act established the extension of advice and assistance to cover representation (the system known as ABWOR)—assistance by way of representation —and the 1982 Legal Aid Act made some important changes in the criminal legal aid system, including the establishment of statutory magistrates court duty solicitor schemes.
That is the legislative background to the Bill. A good deal of its content represents a straightforward consolidation of existing provisions, though in some cases the content has been modified to streamline the Bill and to give it a more co-ordinated and coherent approach. There is, however, much more to this Bill than simple consolidation of earlier statutes.
The overriding objective of this Bill is to improve the arrangements for making legal aid, and legal advice and assistance, available. Efficiency, effectiveness and value for money are the key concepts which underlie the reforms that the Bill introduces. The Legal Aid White Paper, to which I have already referred, outlined the scale of the operation. During 1986, some 200,000 individuals received legal aid to pursue or defend a civil case; about 500,000 received legal aid in connection with a criminal charge; and about 1,200,000 received advice and assistance from a solicitor. The total legal aid bill in England and Wales will be in excess of £400 million during the 1987–88 financial year, having risen from £100 million in 1979–80. Few, if any, areas of government expenditure have experienced such rapid and sustained growth. Legal aid is a big and growing business.
It is against that background that the Government have had to consider the future of the legal aid scheme. It is a mark, surely, of any prudent administration that it is constantly seeking ways of improving value for taxpayers' money, and of generating a better, more efficient service using that money. This Bill is designed to ensure that the administrative framework for the legal aid scheme is fully capable of responding to the challenge of providing the best possible value for money and the best possible service.
The centrepiece of the Bill is the establishment of the Legal Aid Board. As was made very clear in the White Paper, the decision to establish the new board does not derive from any sense of dissatisfaction with the way in which the legal aid scheme has been administered hitherto. In particular, I wish to pay tribute to the invaluable and crucial role played over the past 37 years by the Law Society. The close involvement of the legal profession has been one of the strengths of the legal aid scheme, and I am sure that the new board will do its utmost to ensure that it continues in the future.
The Government's reason for establishing the board is simple. We believe that the legal aid scheme has outgrown the structure that was appropriate for it in the early 1950s. A new, more comprehensive arrangement is needed in order to ensure that all aspects of the legal aid system can be properly co- 607 ordinated and integrated under one responsible body.
One criticism that can be levied at the present system with some force is that its administration is all too complicated and confused, with too many different organisations involved in ways which have little more than history for their justification. Something new is needed to give order and strategic direction to legal aid. One answer would be for the Government to administer the legal aid scheme directly; but in our view that would be wrong. The scheme needs to be run free from government interference in its day-to-day decisions in individual cases. It would be equally wrong to expect the profession to continue to administer a scheme when the parameters of that administration seem likely to extend to areas—for example, means assessment and the involvement of advice agencies—in which the legal profession cannot be expected to have the necessary expertise. A new board is the obvious answer; and that is what this Bill seeks to establish.
The board will initially do no more than take over those functions currently performed by the Law Society's legal aid administration. Here, I should like to say a word about the staff in the Law Society's legal aid administration. They bring to their work a skill and experience which is respected by all who have dealings with the legal aid system, and which underlie the smooth running of the scheme. My department has already given a clear undertaking to the Law Society that all staff in the area office, and all headquarters staff below area director level, will be made offers of employment by the board. I am happy to repeat that undertaking now. The terms and conditions of service for those who transfer will, when taken as a whole, be no less favourable than those available to them at present.
By transferring only the Law Society's functions to the board, the Government would not be giving it the full powers it will need if it is to achieve a central strategic role for legal aid. For other functions, we are proposing to adopt a cautious and gradualist approach so as to keep to a minimum any disruption that might be caused to the profession and to the client. It is our long-term aim that the board should have overall responsibility for the administration of all aspects of legal aid, unless there are good arguments to the contrary.
That means that the board will be asked to consider taking on directly such functions as considering applications for criminal legal aid, assessing the means of those applying for civil legal aid, and determining all legal aid bills. I know only too well the problems which some of these could cause. It is precisely for that reason that no final decision has been taken on any of them. And I would stress that point: the Bill enables functions to be transferred to the board, but it does not compel such a transfer beyond those presently exercised by the Law Society. We retain a fully open mind. Only if it appears, both to the board and to the Government, that transfer of responsibility for a particular function would be in the best interests of legal aid as a whole will it be allowed to take place.
608 The Government will expect the board to put forward proposals for the assumption of new functions, in the light of its own view of them, and of the best way forward. If the board concludes that there are insuperable difficulties with certain tasks the Government will be sympathetic to the argument that things are best left as they are. The reverse is also true. If the Government are not happy with the board's proposals they will retain the right to maintain the status quo rather than move to a situation which they consider to be less satisfactory.
The Government's overall aim remains that, in due course, the board should have a pivotal role in respect of all aspects of the administration of legal aid. Inevitably, before that becomes a reality there is a very great deal of preparatory work to be done. The Government are anxious to move ahead with that at the earliest possible opportunity. It is therefore my intention to set up what is known as a shadow board as early as possible in 1988. I expect to be able to announce the names of the proposed chairman of the board and its members in the early part of next year
The shadow board will begin work immediately, preparing itself to take over the functions that currently fall to the Law Society and planning for the future. In that way it will be able to move swiftly towards taking on any new functions once it has formally taken over responsibility. My present hope is that the board will be able to take over from the Law Society on 1st January 1989, though inevitably, with so much preparatory work to do, that can be no more than a hope at this stage. It is also subject to your Lordships' views on the Bill.
It is the Government's intention that the board will continue to work through the present network of area offices. The present system of area committees will also remain in being, though of course they will in future be appointed by the board. Neither the Government nor the board itself will be able to interfere in the decisions on the grant of legal aid in individual cases. Such decisions will, as now, be taken in the first instance by officials in the area offices, and an appeal against refusal will lie, as now, to the area committee. There will be no appeal from the area committee to the board. It is the Government's intention that the area committees should continue to be composed of practising solicitors and barristers, thus preserving the involvement of the profession in the administration of the legal aid, which has become such a valuable feature of it.
Much concern has been expressed that the Legal Aid Board will not be independent of the Government. The concept of independence here must be put in context. The Legal Aid Board is not going to be free to do what it likes, when it likes and how it likes with the legal aid scheme, any more than the present legal aid administration has that kind of freedom. The Government will continue to set the broad framework of the legal aid arrangements and will retain their present role over such matters as financial eligibility limits. This is an inevitable consequence of the fact that the Government are providing the money to fund legal aid.
The Government have a responsibility to the taxpayer and to Parliament to ensure that money is 609 spent wisely, and for the purposes for which it is voted. No government can abdicate that responsibility, and the Legal Aid Board will inevitably have to function within that general constraint. To suggest that that somehow restrains the board's independence is to expect for the board a greater freedom than any wholly government-funded organisation has a right to expect. Within the overall constraints set by Parliament, the board will have considerable freedom to manage its affairs in the way it considers best. It is not our intention to interfere in the day-to-day management of legal aid any more than it is to interfere in decisions on individual cases.
The Bill provides that the board will act under the guidance of the Lord Chancellor. Some may read into that a hint of greater government control. But the Government must have a central role to play in any service which distributes public money. I should like to stress that there is nothing new in that. In administering legal aid, the Law Society already acts under the guidance of the Lord Chancellor, and administration has not, in my view, suffered in any way from that.
There has been criticism that the fact that the board is to be appointed by the Lord Chancellor will compromise its independence. Here I have to say again that my overall responsibility for the legal aid scheme makes it essential that I am the authority who appoints the members of the board. But to suppose that that somehow affects independence flies in the face of experience. To take but one example close to home, the fact that the Lord Chancellor appoints the Legal Aid Advisory Committee does not seem to have had an appreciable effect on the independence of that committee. I think that all noble. Lords who know of its activities would have to agree.
Furthermore, the type of person that I shall be looking for to sit on the Legal Aid Board is not the type of person who would allow his personal independence to be compromised. The board is going to be much more active and involved in everyday administration than it is possible for the present Legal Aid Committee to be. To start with, I envisage board members spending two days a week on the board's business, though that is not a hard and fast requirement, and some other commitment may be more appropriate in some cases. I intend to keep an open mind on that matter in order to find what views your Lordships may have on it, and also what arrangements may be most appropriate having regard to the members who will be appointed.
Board members will not be executive directors, but they will probably wish to concentrate on particular matters and my intention is that I shall appoint experts in personnel management, finance and other disciplines to sit alongside lawyers on the board, thus ensuring that the board is able to play a full and active part in the work of the organisation. It is important to bear that in mind, because there seems to have been some misunderstanding of the role of the board members. I shall not be appointing people as representatives of this or that interested group, but because of the individual's particular skills and experience. Nor will members be expected to act as though they were delegates of a particular constituency; that applies to the two solicitors whom 610 I must appoint after consultation with the Law Society, as well as to the other members. What will be required are people who are prepared and able to dedicate themselves to improving the management and operation of the legal aid administration as a whole.
That is of course the rationale behind setting up the board in the first place—to strengthen the management and operation of legal aid. The change to the board will provide an opportunity for some rigorous and adventurous thinking about the organisation and administration of the scheme. Nowhere will that be more important than in the field of advice and assistance, and it is that to which I should like to turn.
Advice and assistance is a rapidly growing area of the legal aid scheme, and it looks set to continue its growth. Such growth is in part a sign of the success of the green form scheme over the years, but at the same time there can be little doubt that the green form scheme today bears little resemblance, in either its size or in the range of problems with which it deals, to the scheme envisaged by its founders. So it is inevitable that some thought has had to be given to the question of whether the green form scheme is the most cost-effective way of providing the service. The report of the efficiency scrutiny of legal aid, which preceded the legal aid White Paper, concluded that there was a better alternative. It argued that, in many areas of work, lay advice agencies were better equipped to provide advice and assistance.
The Government were conscious of the radical nature of that proposal, and were anxious to obtain the widest possible range of views. Comments were therefore invited on the scrutiny report. The balance of responses to that consultation was hostile to the specific recommendations of the scrutiny team in that area. The Government accepted that there was force in many of the criticisms, and the White Paper made it clear that the Government rejected the scrutiny team's proposals as they stood. However, the White Paper envisaged the possibility of substantial change in the advice and assistance scheme. As the White Paper put it:The Government, therefore, intends to take powers to enable the new Board to make alternative arrangements for the provision of advice and assistance for particular categories of work where this would be a more efficient way of providing the service".Those powers are contained in Part II of the Bill.
In legislative terms, the provisions are relatively simple. The Bill provides that the board shall have the power to make arrangements for the provision of advice and assistance by means of contracts with, or grants or loans to, individuals, organisations or groups. Those are wide powers, but such width is necessary to give flexibility to the board when it comes to consider precisely how those powers can best be used. That is something to which the board will be asked to address its mind at an early stage. The Government are certainly attracted by the idea of making greater use of non-lawyer advice agencies in those areas where they have particular expertise. Welfare benefits are but one example. Some solicitors are expert in welfare benefit law, but others have simply bought computer packages prepared by the advice agencies. Traditionally, this is an area of 611 expertise in which the advice agencies have specialised, and it must be in the interests of the client that he or she can get advice from those who are best able to provide it.
The thinking behind the Bill is that the provision of advice and assistance in certain areas of work will be organised by means of contracts. These will specify what is to be provided, by whom and for how much. It will of course be open to the profession to submit tenders to do the work, as it will to advice agencies and others. The Bill makes it clear that it will be open to the board to make different arrangements in different parts of the country. It follows that once new arrangements have been made for handling particular categories of case, these will be excluded from the existing green form scheme. Otherwise there would be duplication.
It will be essential to ensure that the level of service to the client remains fully satisfactory. This is something to which the Government will expect the board to pay particular attention when putting forward its proposals. The board will, in any event, only be able to exercise its powers to provide advice and assistance by means of contracts if the Lord Chancellor so directs, and only in accordance with his directions. This will enable the Government to keep a close eye on standards of service.
I know that some have already said that this part of the Bill is an attack on the green form scheme. It is nothing of the sort. It is an opportunity to produce new and imaginative ways of getting good quality advice from those best equipped to give it to those who need it. I shall expect the board when appointed to discuss with the advice agencies and all who have an interest in the area how this can best be achieved. The board will be able to build on much that has been achieved already, and especially the partnership and working relationship that exist between the Citizens' Advice Bureaux, and other advice agencies and very many solicitors.
The Bill does not lay down a blueprint. As I have said, it will be for the board, in consultation with all who have an interest, to look at all the possibilities and to come up with workable, worthwhile proposals. I am confident that all concerned will respond to this challenge. It may be that we shall all conclude that the present system is the very best that can be devised within the resources available. All I say now is that so far as one can judge at present I should need some persuasion of that.
In addition to the power to award contracts, the board is also given a power to make grants. This brings me to the position of law centres. The Government's view of law centres remains as it has been since 1979. Law centres may well provide a valuable service to their local communities. But they are essentially a local service, and as such it is more appropriate that they should receive local rather than central funding. There is an exception to this. My noble and learned friend Lord Hailsham of Saint Marylebone continued to provide funds to seven law centres which is an arrangement I think that he inherited from his predecessor. I now propose to invite the new Legal Aid Board to take over 612 responsibilty for the grants to the seven centres currently funded. The board will need to be satisfied that the services provided by those seven centres fit into the general pattern of its plans for advice and assistance. Provided, however, that they are so satisfied, and subject to my agreement, it will be open to them to continue to pay the grants under powers in Part II of the Bill. It will of course also be open to other law centres to submit proposals for contracts or grants in the general context of the board's plans for advice and assistance.
There is one aspect of this Part upon which I have not yet touched. That is the board's powers to make contracts and grants extend to representation. There are two reasons for these powers. The first is that it will allow those law centres funded by the board to undertake representation and to meet the cost from the grants that they receive from the board. Second, if at some stage in the future (and I must emphasise that we have no current plans for this) publicly-funded representation were to be extended to more tribunals, it might well be more convenient for the same agency that has provided advice also to provide representation.
The Bill is not designed to allow legal aid, either civil or criminal, to be provided under contract to the board. There is no equivalent provision in Parts IV and V—allowing the civil and criminal legal aid schemes to be withdrawn for areas of work covered by contractual arrangements—to that in Part III in respect of advice and assistance. This is because it is not the purpose of the Bill as it stands to allow legal aid to be contracted out beyond the limited ways that I have described.
I have dealt at some length with the Legal Aid Board and the proposals for advice and assistance because they are the two areas where the Bill differs most from the present arrangements. It may however also be helpful if I now go through the Bill and outline some of its main provisions.
Part I of the Bill deals with the basic definitions used in it. The basic definitions are of "advice", "assistance" and "representation". Some of this, particularly the reference to "representation" may seem strange to those more accustomed to the present expressions "civil legal aid" and "criminal legal aid"; but I hope that the result of careful drafting will be the same. The purpose of using the expression "representation" is simply to preserve a certain uniformity throughout the Bill. I can confirm that "representation" as it is defined covers everything at present covered by civil and criminal legal aid.
Part II is almost wholly new, and it is here that are found the provisions relating to the establishment of the board and the power to award contracts and make grants. It is in Part II that the board is given its general power to do such as it considers necessary to provide or secure the provision of services under the Bill. The House will wish to note that the board is given a specific power to give the Lord Chancellor advice on the provision of services under the Bill. I regard this as of extreme importance. The board will rapidly acquire a good deal of expertise in the legal aid field, and I shall want it to use that expertise in putting forward proposals for improvements.
613 Part III sets out the provisions for advice and assistance provided by solicitors. This is intended as a restatement of the existing provisions regarding the green form and assistance by way of representation. The terms of the legislation differ from the 1974 Act in a number of respects but the overall effect is the same.
Your Lordships will notice that here, as in those parts of the Bill dealing with civil and criminal legal aid, there are general regulation-making powers enabling the Lord Chancellor to set financial eligibility conditions. In the present system, upper and lower qualifying limits are set on the face of the statute though they may be, and regularly are, uprated by regulations. I feel that the specific setting of limits in statute is unduly restrictive and I have opted for leaving definitions of financial eligibility wholly to regulations subject to parliamentary approval. I wish to assure your Lordships that there is no hidden motive behind this. It is my clear intention to retain the present system in being at least for the foreseeable future.
Part IV of the Bill deals with civil legal aid. The proceedings for which this is and is not available are listed in Schedule 2. This reproduces the current position and I have no plans at present to change it.
Part V of the Bill deals with criminal legal aid. Once again, the scope of criminal legal aid and the financial conditions will remain as they are. Part V, however, contains powers which mirror those in Part II to transfer functions currently performed by the courts to the new board. I shall of course have to be fully satisfied that this is wise before I agree that it should take place.
Part VI makes special arrangements for legal aid in care proceedings and contempt proceedings. There has long been criticism that care proceedings were entangled with criminal proceedings in the 1974 Act. This Bill puts that right.
Part VII deals with a number of miscellaneous points, and sets out the regulation-making power. The only one of those to which I would specifically draw your Lordships' attention at this time is that relating to the remuneration of the legal profession. The White Paper said that the Bill would contain powers to enable the Lord Chancellor to set, by way of regulations, the rates payable for all legal aid work. As the White Paper made clear, the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done. It is however necessary for the Government also to have regard to the taxpayer as well as to the provider. The aim is to produce a result that is fair overall. But fairness is inevitably a vague and subjective concept. Clause 32(6) helps to clarify the approach which will be adopted by setting out the factors to which the Lord Chancellor may have regard when setting rates. The aim of that list, which is not exhaustive, is to ensure that all relevant factors are taken into account. As your Lordships may know, agreement has now been reached with the profession on a permanent scheme of payments on account, and the present 10 per cent. deduction in High Court cases (shortly to be reduced on 1st January to 5 per cent.) will be abolished on Royal 614 Assent to the Bill. I think nobody can regard that as a cost-cutting exercise. Part VII also deals with the future of the Legal Aid Advisory Committee. As the legal aid White Paper made clear, once the Legal Aid Board has been established, the role and function of the Legal Aid Advisory Committee will inevitably change. However, I believe that the committee will continue to have a useful role to play, at least during the period of transition to the Legal Aid Board and in the early days of the board's existence. The Bill therefore contains power to retain the advisory committee. As circumstances may well alter once the board has settled into its new role, the Bill also includes a power to allow the committee to be disbanded by regulations if this should seem appropriate. I intend to review the committee's continuing role some 12 months after the board has taken over its responsibilities.
Finally, I should just mention briefly that, although as I said at the outset the vast majority of the Bill relates only to England and Wales, Schedule 4 contains some minor amendments to Scottish legal aid legislation produced by experience since the Legal Aid Board was set up there.
Those are the main provisions of the Bill. The legal aid system in this country is one of the best in the world. The provisions in the Bill not only preserve all that is best in our legal aid system; they enhance it. I hope that that aim will be endorsed by the whole House. This Bill will do much to establish a framework within which the legal aid scheme can advance towards the 21st century in an efficient and healthy state. I accordingly commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.41 p.m.
§ Lord Elwyn-Jones
My Lords, as the noble and learned Lord the Lord Chancellor said, legal aid in England and Wales has a long history. I fear that the chapter contained in this Bill is not going to he its most glorious moment. Indeed, the Bill has been widely attacked not only by the Bar and the Law Society but also by a number of the advice agencies which are now doing their best, with inadequate resources, to deal with the continuing need for legal aid.
The importance of legal aid probably does not need emphasising. It is clearly not a matter for concern only in the legal professions. It is a fundamental part of the administration of justice, providing access to law and justice to about 2 million people each year. Access to legal services in this country has long been regarded as a civil right and not just a charitable provision.
The importance of legal aid was indicated, as indeed the noble and learned Lord said, in the report of the Rushcliffe Committee and is also spelt out admirably in the 34th annual report of the Lord Chancellor's Legal Aid Advisory Committee, which stated:law is not merely an instrument of social control…it is also a positive instrument for defending individual liberties and giving reality to civil 615 rights. Law, in this sense as well as in its restrictive sense, is a necessary precondition for order. If individuals cannot secure their legitimate rights and defend their interests through a system of justice, they will resort to other means in an endeavour to do so…If the rule of law and equality before the law lie at the heart of the social system, then equally legal aid lies at the heart of the legal system".Since the days of the Rushcliffe Committee, which made its major contribution in this sphere in 1945, social, economic and political changes have resulted in increasing demands for legal help both in civil and criminal matters. The law has become more complex and affects more people. For example, matters concerning housing, welfare benefits, the consumer, the environment and employment problems have become increasingly governed by legislation or regulations. Crime has, alas, increased alarmingly and continues to increase.
One asks to what extent the provisions of this Bill deal with and meet the needs of this situation. Is it essentially a means to cut expenditure on legal aid? Is that one of its primary purposes? To what extent the Bill can achieve what it should be doing to deal with the situation I have mentioned we cannot tell as yet because it is largely an enabling Bill with few substantive provisions. It leaves the future shape and content of the legal aid scheme largely in the hands of the Lord Chancellor under the baleful eye of the Treasury.
Indeed, the Law Society has calculated that in addition to the powers given to the Lord Chancellor which can be exercised directly, the Bill creates at least 56 powers exercisable by secondary legislation. We shall be faced with a mass of statutory instruments which will have to make their way through the House. Some of the powers delegated to statutory instrument raise matters of principle and not merely matters of administrative detail. For example, Clause 1(5) on the scope of advice or assistance to be provided says that this is to be dealt with by regulations; Clause 2(4) empowers the Lord Chancellor by order to determine the functions of the Legal Aid Board; Clause 13(2) provides for variation by regulation of the categories if civil proceedings for which legal aid is to be available; and Clause 19(9) provides that restrictions may be placed by order on the competence of the courts to grant legal aid.
The wide sweep of powers to make regulations which are given to the Lord Chancellor in the Bill is in particular identified in Clause 32, which begins:The Lord Chancellor may make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it".Never has a more wide or sweeping power been given to any Minister. In Clause 32(2) there follows a list of matters of major importance which can be dealt with by regulations.
The importance of this mass of subordinate legislation which is contemplated in the Bill is made all the greater when one reads Clause 32(9), which provides for regulations under the Act to be subject only to amendment by negative resolution of the House. We know what a limited power that gives us.
On this side of the House we submit that the Bill should require approval by positive resolution of the regulations, which may have far-reaching effects on 616 the quality, the effectiveness and indeed the availability of legal aid. I hope that the noble and learned Lord will give serious attention to that vitally important change which we shall press upon the House in due course.
I must ask whether when the noble and learned Lord comes to reply to the debate he will give an assurance to the House that adequate time will be given for consultation and representation in connection with this forest of orders and regulations which will in due course appear. Consultation is not markedly spelt out in the Bill. It would be highly desirable that consultation and representation in connection with the subsidiary legislation should take place as soon as possible. Indeed, I hope that before we start the Committee stage of the Bill a good deal of information as to the nature of the instruments will be given to the House. Otherwise, I fear that we shall be working in the dark during the Committee stage.
The noble and learned Lord said that the centrepiece, the heart, of the Bill is the transfer of the Law Society's power and present responsibilities for the administration of legal aid to a Legal Aid Board. The membership is of course not yet identified, but we should like more information as to what qualifications will be looked for in those who are to constitute this important quango. "Quango" became a term of abuse against the Labour Government, but it is now a most honoured feature of continuing legislation emanating from the Government.
The Legal Aid Board is to consist, apparently, of 11 to 17 members, at least two of whom will be solicitors. There is not one word in the Bill about barristers, but we have it—I will not say from the horse's mouth—from the noble and learned Lord himself that the intention is to have barristers. Perhaps we will be told how many. So far as I can see, the provision for legal membership of the board is intended to be minimal. Who are the kind of persons the noble and learned Lord the Lord Chancellor has in mind to carry out these requirements? How independent will be the board? It will have restricted powers and will operate without the valuable assistance it could receive from regional committees on the lines of the North-West Legal Services Committee or the South Wales Legal Services Group, if they were allowed to continue and, indeed, were extended. They are not mentioned in the Bill. Will there be voices on the board which can speak for the services provided by law centres and advice centres?
I was delighted and relieved to hear from the noble and learned Lord that the famous seven law centres which I rescued and which my successor so generously and gallantly maintained are to continue in existence, but, apparently, in the shadowy hands of the Legal Aid Board. To describe the board which is to come into being as a shadow board was, I thought, a disturbing but perhaps significant description of it. The value of the law centres is, I am grateful to hear from the noble and learned Lord the Lord Chancellor, at any rate acknowledged. What the advice centres are concerned about is the nature of the funding and the inadequacy of the funding which they receive. As I shall indicate in a moment, it is 617 intended that more responsibility should be placed upon the advice agencies than at present exists.
The nature and composition of the Legal Aid Board is obviously of very great importance. Will there be voices on the board which can speak for the services provided by the law centres and advice centres and who can speak for the Welsh and English regions' standpoint and needs? That particularly applies for those who can reflect the views of local government, because local government is currently financing most of the provision for advice and law centres. The noble and learned Lord has indicated that the intention is that the burden should continue to remain with local authorites.
As I have already submitted, there is no clue as to the qualifications required of the members of the board. I wonder whether what is provided for in Scotland is a pointer to what we can expect. The Legal Aid (Scotland) Board has three solicitors, balanced by three chartered accountants. The chairman of the board is a chartered accountant. Is that a pointer to what we can expect to happen here? If so, that would not be reassuring. We are happy to hear from the noble and learned Lord that, as the Bill provides, solicitors and members of the Bar will be involved. If I may say so, I expect him, as a former Dean of the Faculty of Advocates, to maintain their importance.
In my submission, the majority of the members of the board should essentially be persons with experience of the machinery of justice and its workings. After all, the major function of the board will be to grant legal aid where it is satisfied that the person, as Clause 14(2) states:has reasonable grounds for taking, defending or being a party to the proceedings".That function can hardly be discharged unless there is a majority on the board with legal experience. It is also important that there should be some provision for consumer representation.
Clause 4(5) provides for the Lord Chancellor to give guidance to the board; and one expects that. However, will that be published? Will it be subject to parliamentary approval in the same way, for example, as are codes of conduct under the Police and Criminal Evidence Act?
Taking a general look at the Bill, there is one provision to which the noble and learned Lord referred, but not very reassuringly. Clause 33(5) provides that,The Lord Chancellor may, by order dissolve the advisory committee on such day as is specified in the order".I ask, why? On what criteria may that power be exercised? The Legal Aid Advisory Committee, set up under Section 21B of the Legal Aid Act 1974, has an unimpeachable reputation as a powerful and impartial voice for the public interest on legal aid affairs. It was appointed to advise and to make recommendations to the Lord Chancellor on matters referred to it which are the subject of public report. I am bound to say that I found its advice of great help.
Members were appointed with specific reference to their knowledge of the work of the courts and social conditions. My fear is that abolition of the 618 committee, if that takes place, will mean the loss of the only official body linked to the new scheme of legal aid in the Bill which is capable of monitoring the effect of the board's work and putting forward suggestions for change which reflect the interests of consumers and users. In my submission, the threat to dissolve the advisory committees puts a question mark on a great deal of the Bill.
As regards the availability of criminal legal aid, six factors determining in what circumstances criminal aid should be granted are set out in the Bill. But what this Bill does not do is set out the Widgery criteria on the basis of which courts now decide to grant legal aid. The principle adopted is that what is important is that the interests of justice should be applied. But, whereas in the Scottish Act the Widgery criteria are set out in Section 24(3), the present Bill does not do so. I should find it far more reassuring if it did. Perhaps the noble and learned Lord will give thought to that before we go into the Committee stage of the Bill.
The Bill envisages certain areas of additional legal work which are to go to the advice sector, particularly in the green form field. I repeat what I have already indicated. If the Government wish to build on the abilities and energies of the advice sector, they should first of all ensure that there is enough provision of such agencies and, above all, that they are adequately funded. It is about that particular point that they have expressed very great concern.
It is regrettable that the Bill has not been used to expand rather than contract legal aid, for instance, through the extension of legal aid to statutory tribunals. The individual citizen is often at great disadvantage when employers and government departments, represented by solicitors and counsel, face him. He may well be unable to get any legal help himself. In other fields, too, there should have been extension rather than contraction of legal aid. They include class actions, proceedings in coroners' courts and, possibly, even proceedings before the European Court of Human Rights.
Many problems arise on the Bill. I was delighted to note that in one part of his speech, the noble and learned Lord indicated that he had an open mind on a particular problem. Knowing him as I do—and as we do—I feel very hopeful that that mind will remain open. If it becomes closed, it will do nothing but harm to the litigants of this country.
§ 4.2 p.m.
§ Lord Meston
My Lords, I feel that I should begin by declaring an interest as a lawyer who receives income from the Legal Aid Fund as it is presently constituted. The immediate problem with the Bill is that it contains no clear statements of principle or of purpose. The Explanatory Memorandum and the Long Title contain bland statements to the effect that the Bill revises arrangements for legal aid. Clause 1 launches straight into definitions and much of the Bill simply provides enabling powers for, as yet unseen, subordinate legislation. One has only to look at Clause 1 to see expressions such as "Regulations may specify", "Regulations may provide", "Regulations may prescribe", and "the Lord Chancellor may 619 direct". Indeed, that is the entire pattern of the Bill. As the noble and learned Lord, Lord Elwyn-Jones, told us, there are some 56 powers to regulate contained within this relatively short Bill. It is, frankly, very unattractive, mere framework legislation.
Of course, it is right that the Government and the Legal Aid Board should retain flexibility with the power to regulate; but surely it is also right that the primary legislation should give clear guidelines for the secondary legislation which it enables to be brought into existence.
Clause 32(2)(f) caught my eye. It provides that the Lord Chancellor may, by regulations,modify this Act for its application to prescribed descriptions of persons or in prescribed circumstances".That seems to me to be a very wide power. For example, if a later government should decide that one shall not be paid for legal aid work done on a Tuesday afternoon; then that would seem to enable it to happen. It is simply too wide. It is because of the width of the powers given by this Bill that it is hard to discern how much of the White Paper proposals are carried into effect.
At Second Reading it is permissible to consider first principles. The noble and learned Lord said that the White Paper began by describing the purpose of legal aid as being to ensure that people of small, or moderate means, receive access to proper legal aid advice. The Bill does not reproduce that statement of principle. However, it is of basic importance that in a civilised society, justice should be open to all and not just to those whoare able to pay. If people are denied rights of access to the courts they become oppressed, particularly in the fields of employment and housing. Of course, in less developed countries that leads to corruption.
However many laws we pass in this House it becomes a futile excercise if they cannot be operated in practice. It is also right that we should remind ourselves that legal aid is not free. The litigant has to make his contributions in many cases. And there is the statutory charge, reproduced in this Bill, enabling the clawback of the legal fees from whatever is recovered or preserved as a result of the litigation.
I would have hoped that there would be some mechanism within the Bill to provide for careful, continuous monitoring of the scope of legal aid, eligibility for legal aid and also for ensuring its availability at a level consistent with the cost of living. It is proposed, I understand, that the method of payment of contributions should become open-ended until the end of any given piece of litigation, rather than being limited as at present to a term of one year. That proposal must lead to the risk of the legally aided litigant being exposed to pressures by his privately funded opponent in litigation. Therefore, I question the wisdom of that alteration.
I would also have liked to see—it may be something one can expect from future regulations—some further rationalisation of the statutory charge; in particular, in matrimonial cases. For too long there have been a great many anomalies. 620 These were highlighted by the Judicial Committee of your Lordships' House in the recent case of Simpson v. The Law Society.
It is an oversimplification to say that legal aid is a public service. It is a private service which is publicly funded. As such it needs the goodwill of the professions and the confidence of the public. If the Government wish to see efficiency maintained, then they must also see the importance of retaining the numbers, the standards and the calibre of the practitioners prepared to do legal aid work.
All of us in legal practice know of colleagues at the Bar who will not take legal aid work. All of us know cases where the client runs out of funds and is told by his solicitor that he, the solicitor, does not do legal aid work and that he must therefore go elsewhere, thus causing duplication of effort and delay to both parties in the litigation. The legal aid system is always going to be denied the services of the best and highest earners who prefer to do other work unless they are prepared to let private work subsidise legal aid work. It is essential that the good, competent, middle range of practitioners is retained by the legal aid system. Solicitors and the Bar are used to working long hours and working hard. We of course are motivated by money, but we are also motivated by the wish to give good service. If the profitability of legal aid work becomes more and more marginal, people will feel that it is not worth spending time on legal aid cases. They will concentrate on private work or on that rare commodity, leisure. Fee earners will feel that they can devote their efforts elsewhere. Work will be delegated to unqualified clerks. It will not be prepared properly or it will not be prepared until the last moment, because obviously the less one is paid, the faster the turnover has to be. It then becomes too fast for the work to be properly done.
In short, the message must be that if the system is to be efficiently run, the pump must be properly primed. The fear is that the cliché about a second-class service will become a reality. I say second class, but we understand that in a sense there will be a third class of service in that, as the noble and learned Lord the Lord Chancellor told us, he will ask the board for workable and worthwhile proposals effectively to subcontract the work. The fear is that financial constraints will lead to subcontracting to organisations such as the Citizens' Advice Bureau which will not have the resources or the expertise. I know that that is the fear of the Citizens' Advice Bureau, which would have been expressed by my noble friend Lord McGregor had he not been indisposed.
The service to the consumer must not be put at risk in that way. The analogy has been drawn of it being rather like asking the doctor's receptionist to decide whether one is ill enough to see the doctor. As to the board. Part II of the Bill tells us what the board can and cannot do. It gives little clear idea as to what it will do in practice. We know that under Clause 4(5) the board will have guidance from the Lord Chancellor. We know from Schedule 1 that it may delegate matters to a committee, but questions have been asked about the board's independence.
621 If my mathematics are right, Part II and Schedule 1 contain no fewer than 43 references to the Lord Chancellor and nine references to the consent, concurrence or approval of the Treasury. In the light of that, one questions the likely independence of the board. At the very least the board's membership should include representation from the Bar and advice agencies. I understood the noble and learned Lord the Lord Chancellor to say that that would be his intention. I hope that he can legislate to that effect rather than merely legislate for solicitor members. Why should solicitors have all the fun? There should be representation from the advice agencies and regional representation, not merely as delegates but as a cross-section of interested bodies able to give the benefit of their expertise.
I shall turn briefly to the subject of remuneration. Under the existing law the remuneration of legal aid practitioners is determined by statute on the principle of fair remuneration. The Bill repeals that statutory requirement. It has caused anger in the professions. Paragraph 48 of the White Paper stated:The Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done".What we have is Clause 32(6), which does not go that far. It merely says:The Lord Chancellor … shall be entitled to have regard, among the matters he considers appropriate, to",and there is then a list of factors, some of which are less easy to understand than others. Those factors have no priority as among themselves. There is no obligation upon the Lord Chancellor to have regard to those factors. Within his powers he can disregard the lot and have regard to completely extraneous factors, from the price of cornflakes upwards. It is not good enough for the legal professions to be left without the reassurance they require in that respect.
The legal professions feel that those provisions leave them with no control and the Lord Chancellor's Department with no visible target. It is not a case of the legal professions expecting to be paid on a par with privately paid work. The professions have long ceased to have any expectation of payment comparable to fees dictated solely by market forces. But they expect to be paid fairly. The noble and learned Lord said that fair remuneration is an abstract concept and must involve fairness to the taxpayer. However, the taxpayer is a potential consumer of legal services. It is in his interests to have the system efficiently administered.
Clause 32 appears weak. It offers no confidence for the future. Surely the noble and learned Lord will not say that his factors provide unfair remuneration, rather that they provide fair remuneration. If that is the position, he could surely restore the principle of fair remuneration to the face of the statute. If not, at the very least the hope is that there will be an advisory committee on fees to give some authoritative information.
I echo what the noble and learned Lord, Lord Elwyn-Jones, said about having the positive resolution procedure rather than the negative, and preferably positive resolutions which can be amended by Parliament.
622 The worry is not just in respect of fees, although the indication is that in that respect the Government have departed from the White Paper. The remainder of the Bill is an unknown quantity because of the unknown subordinate legislation.
How many other departures will there be from the White Paper, some of which was good and some of which was bad? If there are to be cuts in the scope of and entitlement to legal aid, that should be spelt out. The Government assure us that there will not be any in the foreseeable future. If that is so, as I say, it should be spelt out, preferably on the face of the Act. The 1974 Act gave starting points for eligibility. I see no reason why there should not be starting points on the face of the statute.
The White Paper recommended briefly and abruptly that leave would be required to use counsel in the county courts. Will that happen? We do not know. One cannot gather that from the face of the Bill. It is obviously of great importance to the Bar to know whether leave will be required for counsel in the county courts. Without repeating the arguments in favour of having counsel in the county courts, it is of great importance to the consumer.
Many detailed comments can be made about the Bill. We need to be informed of what underlies it before we can be convinced by it.
§ 4.20 p.m.
§ Lord Denning
My Lords, for myself I welcome this Bill. The present structure of legal aid has become rickety. It lets in the wind and the water. It needs restructuring in order to make the system waterproof. This Bill provides the builder to do so: a new Legal Aid Board under a new Lord Chancellor. This restructuring is essential. However, my noble and learned friend the Lord Chancellor has referred back to Henry VIII.
§ Lord Denning
I go back to the first 25 years when I was at the Bar. I know the old system when there was no legal aid for anybody in criminal or civil cases. In my first case before the High Court, a lady had gone to a dentist and while she was having treatment under gas a tooth had broken and gone down into her windpipe. The solicitor and I did the case for nothing, and we won. It helped the young man and the young lawyer on his way. That was civil legal aid.
We also knew all about criminal legal aid. At the Winchester Quarter Sessions or Assizes the man in the dock would ask, "Can I have legal aid?". The judge would ask him, "Have you any money? Have you £1.3s.6d.?", and some friend of his would say, "I have the money here". The judge would then say, "You can have any of those gentlemen sitting there in that row". He could see only the backs of our wigs, and sometimes he would pick me out. For £1.3s.6d., paid by the prisoner or his friends, I would go below into the cells to see him and to take instructions. I would plead in mitigation, or whatever it was, before the judge for £1.3s.6d. Sometimes I was at the London Sessions for two or three days for £1.3s.6d. On the whole it was not a bad system. It did not cost 623 the state anything. However, I agree it was a day when there was one law for the rich and another for the poor.
That was altered by the legal aid system. I remember how the Rushcliffe Committee pondered the issue in 1945. I remember the 1949 Act. That was the greatest revolution in our legal procedure for centuries. I was on the Bench for many years after legal aid was introduced. Those in the profession know that the amount of work in the courts has increased tenfold owing to legal aid. People who could never have had them before now have solicitors and counsel respresenting them. The numbers of judges, barristers and solicitors have increased. A great deal of their income is paid for by taxpayers; by the state on their behalf. Whether it is the biggest rogue or the poorest individual, the state pays. We pay. The taxpayer pays. The legal aid system is not a bad thing; it is good, but expensive. But in the course of time—and I have seen this—abuses have grown up. The system has been misused and abused. With this new structure I hope that the abuses can be overcome.
Perhaps I may give two or three instances of abuses. First, there is the example of the drunken Irishman. Mr. Kelly was a plausible Irishman, described by the judge as a chronic alcoholic. He had a little knock on the head while with the London Transport Executive. He went back to work in a day or two. However, six months later he went to his solicitor saying, "I have suffered from an awful depression ever since that time. I have not got over it. It was all due to that knock on the head with the London Transport Executive". The solicitor took his word for it. Furthermore, he called the doctor, who said, "Oh yes, this depression is all due to that knock on the head".
The London Transport Executive fought that case. Mr. Kelly claimed £100,000 damages and it was proved beyond doubt—the judge accepted it—that it was a bogus claim. The case was dismissed; it ought never to have been brought. The London Transport Executive came to our courts and said, "The Legal Aid Fund supported this man. We should not have heard of this case but for legal aid. We should not have had to pay a penny. It has cost us £8,000 to defend it. Can we not ask for those costs from the legal aid fund? That is the body which brought this upon us". I am afraid the court in which I sat had to refuse what one may think was a most legitimate demand.
My second example is a case involving a forceps delivery which came before this House. A lady was getting on a little in years. She was going to have a rather difficult delivery of her baby. The surgeon was doing his best for her. He said that he would try a forceps delivery. Unfortunately something went wrong and the baby's brain was hit a little when he was trying to pull the baby out. That lady obtained legal aid. She said that the surgeon had pulled too hard and too long and that was the cause of the brain damage. Legal aid was obtained, great medical experts gave evidence on both sides and the court sat for 11 days before the judge. The case came to the 624 Court of Appeal and then to the House of Lords. I am glad to say that the skilful surgeon's reputation was upheld. He had done nothing wrong. It was no fault of his. But goodness knows how much money that case cost, with legal aid on the one side and the medical defence union, or whatever it was, on the other. Is it right that legal aid should apply to this extent?
My last example is a case of attempted suicide. The man was in hospital for nervous depression. In the course of this depression, one night when everyone else was in bed he pulled up the window and jumped down intending to commit suicide. But he did not succeed. He fell only half-way down and was severely injured. He obtained legal aid. He sued the hospital because of his attempted suicide. Of course that case did not succeed.
I give those illustrations only to show how important the system is. Paragraph 37 states:At present, only the applicant has any involvement in the process by which legal aid is granted or denied. Yet the grant of legal aid may have a major impact on his opponent. The Government therefore intends that the opposing party should have the right to make representation against the grant of legal aid before the application is determined".That is a good scheme under this new administration. Those administering criminal legal aid have spoken about this often before. Legal aid is granted in almost every case that goes to the Crown Court. Counsel says to the man who is charged with some trivial matter, "Not guilty. Go for trial before a jury". The matter could perfectly well be dealt with by the magistrates. However, legal aid is available after months. The profession gets its money. The result is the same as it would have been had the man gone before the magistrates.
Under this legal aid scheme the solicitors in the magistrates' court waiting for their cases to come on have an item which was new to me: waiting time. They received so much an hour every time they are waiting before the case comes up. Paragraph 33 states:The Government has decided that, in criminal legal aid court staff should be able to refuse as well as grant applications. This will bring the practice in criminal legal aid more closely into line with civil legal aid and will enable speedier decisions to ge given".That is why I welcome this restructuring of the Bill: to put things right when they are wrong and to prevent abuses when there are abuses. That is why I support everything in the Bill.
However, I have one word of caution. I repeat what my noble and learned friend Lord Elwyn-Jones and the noble Lord, Lord Meston, have said. These regulations are very wide. They are not set out in any detail. The Legal Aid Board has something to do with it, but the Lord Chancellor has the awesome responsibility to make regulations to cover these wide fields of legal aid. It is a complaint that those regulations are not spelt out to this House or in the Bill so that we can see them. But I would not wish them to be. Look at the book containing the present regulations. We do not want to have to consider all those word by word in this House. In a way, therefore, it is good that there should be a general power to make regulations. I think and hope that we can trust the noble and learned Lord the Lord 625 Chancellor to deal with these issues very fairly for the sake of the profession. I support the Bill.
§ 4.33 p.m.
§ Lord Renton
My Lords, like my noble and learned friend Lord Denning, I too, support the Bill on the broad ground that any good scheme is capable of improvement and should be looked at from time to time by Parliament, which established the scheme in the first place. However, I must confess that when I first read the Bill there was much more that I needed to know about it. Having heard the full and helpful speech of my noble and learned friend the Lord Chancellor, many of the doubts that I had have been removed. Some of the doubts held by members of the Bar will be removed when they read his speech.
I should like to refer to the two that perhaps have gained the most prominence. First, the representation of the Bar on the new Legal Aid Board seems to me to be essential. There should be an amendment to the Bill on the lines of the provision that requires two solicitors to be appointed. After all, the Bar under the present scheme has played a very important part. The Law Society's administering committee has always had two leading counsel on it. They have been distinguished barristers, busy men. The area legal aid committees have always had two barristers, generally Queen's Counsel. I served on one many years ago myself and found it a valuable experience. The local committees nearly always have one and sometimes two junior barristers. I was much relieved to hear from my noble and learned friend that the work of the area and local committees will continue much the same as at present under the new scheme.
One matter has puzzled me. It is a very general point. My noble and learned friend described the Bill as an enabling Bill. Then he said in effect that the new Legal Aid Board was to be on trial and that the Government retained the right to maintain the status quo. I hope that I have not misunderstood my noble and learned friend. If I have, he will correct me.
I looked at the Bill to see as best I could what my noble and learned friend was getting at. Under Clause 2,There shall be established a body to be known as the Legal Aid Board".That is obligatory; it is not enabling. Looking at the commencement provisions of the Bill in the last clause, we find that that clause will come into force automatically on Royal Assent. Looking at Clause 32(1), which has been referred to, not always with approbation, in the course of earlier speeches, we find that,The Lord Chancellor may make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it".That does not give the impression that he could do without the board after all. But perhaps I have completely misunderstood the position. I am possibly the only person who has done so, but I think that it might be as well for my noble and learned friend to clear up that point.
We welcome any scheme that will save taxpayers' money if it is justified in so doing. My noble and 626 learned friend said that one of the purposes of the Bill was to enable us to get value for money from the scheme. He told us that the scheme is costing £400 million. From the financial memorandum in the Bill it looks as though only £10 million will be saved. This was clear from the White Paper also. My noble and learned friend the Lord Chancellor did not say very much about how we were going to get more value for money. It looks as though the administration of the board, including the salaries of the members, will be an extra cost compared with what the Law Society does at present. However, I was pleased to hear that my noble and learned friend intends that the staff employed by the Law Society at the centre and in the area committees will be able to assist the new board. That would be a very good thing.
As to the character and composition of the new board, the members will of coure be laymen except for the solicitor and, we hope, the barrister representative. A fear has been expressed in some circles that the members will consist to a considerable extent of retired civil servants. They will, I am sure, be people who are broadly described as "the great and good." Some will come from other professions, some from industry. However, we must bear in mind that the majority will be laymen without experience of the law and of its administration. They will have a tremendous amount to learn and they will have to learn it from the professional lawyers on the board.
I am sure that we were all relieved to hear from my noble and learned friend the Lord Chancellor that it is his intention that the principle of "fair remuneration" shall be applied. Clause 32(6), to which the noble Lord, Lord Meston, referred with some dissatisfaction, goes part of the way towards establishing fair remuneration. However, perhaps I may invite the attention of my noble and learned friend the Lord Chancellor to a document which was issued in one of his predecessors' time, to be precise, on 8th April 1986. It is headed Matters to which the Lord Chancellor proposes to have regard in making the criminal legal aid regulation. I should have thought that what is written there could apply equally well to legal aid and civil cases.
The first paragraph reads:The Lord Chancellor's statutory duty is to have regard to the principle of allowing fair remuneration according to the work actually and reasonably done".It then sets out eight factors. Some of them are included in Clause 32(6) but not all of them are there in quite the way the Bar would hope. If in applying the principle of "fair remuneration" my noble and learned friend applies what was laid down by the department at that time, he will not be going in any way wrong.
Like the noble and learned Lord, Lord Denning, and others in the Chamber, I remember practising at the Bar a good many years before the legal aid scheme came into operation. It meant that many members of the Bar, especially those starting in practice, had a tremendous struggle and did a good deal of work for practically nothing. It also meant that justice was not made available to a very large section of the community—one could really say to the majority of the community. It is a great thing to 627 know that this scheme has worked so well and that Parliament on this occasion is being given the opportunity to make it work even better.
§ 4.43 p.m.
§ Lord Irvine of Lairg
My Lords, every system of social provision can only be as good as its structure and resources. Resources must be efficiently deployed, as the noble and learned Lord the Lord Chancellor emphasised, but the prior issue is the resources made available. So both sound structure and adequate resources are needed. Both are necessary and neither is sufficient in itself.
On the structure and composition of the new board, two out of the maximum number of 17 members must be solicitors. Those two apart, its composition is exclusively down to the noble and learned Lord the Lord Chancellor. No other persons, apart from those two solicitors, with professional or practical experience must be appointed. The remaining 15 are appointments of the noble and learned Lord and are at his sole discretion.
Under Clause 14(2) the board has to decide whether reasonable grounds exist,for taking, defending or being a party to the proceedings'".Surely practising lawyers are best able to decide that. Is it not obvious that a very substantial number, even if not a majority, of the board should have a deep knowledge, based on practical experience, of our machinery of justice? This is particularly so if as the noble and learned Lord the Lord Chancellor told us a little time ago, the board is to make its own proposals for taking on new classes of work. I simply cannot understand how it could ever have been thought right not to stipulate that some members of the Bar must be members of the board. If the board is to be seen to be independent and to enjoy public confidence, it must include in its membership not just experts in finance and management but people whose knowledge of the machinery of justice allows them to know and to say whether what the board is doing is any good.
I gather that the reason for excluding representatives of the Bar is that members of the board will have to make available two days a week. It is said that barristers cannot do that. If two days are really necessary, then I am sure the Bar will make the right people available. Why are the Government starting off with this two-day job description? Surely the ground objective should be that the board must be independent and must be representative—I shall say a word about what I mean by representative in a moment—of all those engaged in the provision of legal services. The job description of board members should be designed to promote that objective.
Is the board to be basically non-executive as distinct from executive? I understand that the answer is yes. The White Paper told us, and the noble and learned Lord the Lord Chancellor has confirmed, that the board will continue to administer the scheme through the existing network of area offices and that existing staff will transfer to the board. If the executive back-up is there, why are two days a week from board members necessary?
628 I hope that we can be told in reply to the debate what precisely is to be required of board members and why representation from every major professional area with knowledge and experience of the machinery of justice in practice is not mandatory. I do not say that they should be delegates or representatives of a particular interest group—the professional area from which they may come—but because of their background they bring with them a pool of professional experience from which it is essential the board should benefit if it is to function in the public interest.
I have referred to the Bar, of which I am a member, but by the same standard I ask: just as there is an obligation to have two solicitor board members, why is there not an obligation to have two board members drawn from the CABs, the advice centres and the law centres? These are the people who have detailed practical knowledge of the legal needs of ordinary people and how they can best be met.
I ask about the new board because I am concerned for the independence of the new system and public confidence in it. So I should like next to ask about the Legal Aid Advisory Committee. From 1949 Lord Chancellors have had the benefit of advice from the committee. It consists of lawyers and non-lawyers, eight legal and five non-legal. It has powers only to advise and recommend. It has an eminent membership. In 1985 the chairman complained of a,lack of a concerted strategy".He added:Law centres remain in limbo; the need for tribunal assistance is accepted in theory, but must await the release of new resources".The year before the committee itself had declared:There is a need to set up a full system of tribunal assistance now … The failure to act in response to our earlier Reports has had its price: people's rights have gone unenforced, their cases unheard".Do the Government intend to allow this critical watchdog to survive? We now know that the answer is, "Yes, but only for the time being". That is encouraging, but not if it is to be dissolved after the new board's so-called transitional period. It is also encouraging, so far as it goes, that the Bill requires the noble and learned Lord the Lord Chancellor when making new appointments to the legal Aid Advisory Committee, so long as it survives, to ensure that his advisory committee,is constituted of persons having knowledge of the work of the courts and social conditions".I quote from Clause 33(2). That is fine while this particular committee lasts. But why, I ask, is the Lord Chancellor not required to ensure that his new, permanent Legal Aid Board at least includes a substantial number of persons who likewise have,knowledge of the work of the courts and social conditions"?How can two solicitors possibly be sufficient?
But, most important, I am deeply troubled that the noble and learned Lord the Lord Chancellor has power by order to dissolve the advisory committee whenever he chooses. This is the committee which in 1985 complained that,lack of clear ministerial responsibility and direction for legal services is a chronic problem".I hope that the survival of this committee will not prove to be dependent on its quiescence.
629 It has been said from many quarters that the best earnest of the Government's commitment to openness in the legal aid system will be a clear commitment to the permanent retention of the advisory committee. Is the truth that the Government are taking power to rid themselves of what they regard as a meddlesome advisory committee, but which the rest of us see as a guardian of the public interest? Are we to take it that the advisory committee is likely to be dissolved after the transitional period to which the noble and learned Lord referred?
Will the new board be adequately resourced? In recent years the Government have done nothing about what is undisputed—that the administration of the legal aid system by the Law Society has become dangerously stretched because of inadequate government funding. Therefore, I ask: is there to be any underaking that the new board will be adequately resourced?
Next, and crucial, is the question of resources for the advice agencies and the law centres. The 900 citizens advice bureaux have local authority funding of about £14 million a year, while the National Association of CABs has a grant of £7 million from the Department of Trade. About £1.8 million of that goes to the CABs. The CABs have 2,000 paid staff and 12,500 voluntary workers. The independent advice centres—about 250—have a total funding of about £10 million a year, with the bulk coming from the local authorities. There are also about 55 law centres, mostly in the large conurbations.
Initially, much of their funding came from the Lord Chancellor's Department and the urban programme, but that is coming to an end. Here too it is now basically down to local authority funding. About £5 million comes from local government, £1 million from central government, and about £700,000 is earned through legal aid. There are also the other specialist centres—the housing advice centres, the money advice centres and the immigration advice centres.
Everyone with knowledge of this area is aware that the story of the generalist advice centres is of serious, geographically based inequalities. The story of the specialist centres is that in very many parts of the country they simply do not exist. Therefore, I ask: do the Government have a policy for a geographically fair network of CABs, advice centres and law centres? If so, what is it? Do they have a policy for their secure funding, and if so, what is it?
The truth is that they have neither. The great bulk of the funding of the CABs, the advice centres and the law centres comes from local government. Most people in the country, I think, would be astonished that there is so little central government funding, that provision is so haphazard across the country, and that local government is not even under any duty to provide any funding for these bodies. Having no other power, they fall back on a residual power to expend very limited sums in the interests of their area or their inhabitants. That is the 2p rate.
Nor are central government under any duty to fund these bodies. The truth is that these bodies, whose work is vital, have no secure funding at all. 630 They are essentially dependent today on discretionary local authority handouts. They are today under continuous threat of closure. In some cases, local authorities are unable to give a commitment to fund for more than a few months at a time. There is simply no coherent strategy, national or local, for the provision of these services, and this Bill does nothing whatever about that. This would seem to be because the noble and learned Lord is content for central government to have no responsibility and leave it to the local authorities who are not even under any duty to provide funds.
Therefore, what it comes down to is that the Government are bringing into being a new board. It will not be seen to be independent. There is no guarantee that the new board will know enough about the machinery of justice even to begin to ensure equal access to it. The watchdog of the advisory committee is likely soon to be under sentence of death. There are no coherent proposals for funding —only a promise of £10 million savings—and emphatically no extension of legal aid to meet the most obvious needs—basically, before the statutory tribunals.
Legal aid is not available for representation before industrial, immigration or social security tribunals. There is no greater denial of justice. I speak with a little experience of the massively complex system of employment and labour law. The legal aid efficiency scrutiny report recommended co-ordinated provision for representation at tribunals. The White Paper said no to that in the feeblest paragraph that can ever have appeared in a state paper. It is so feeble that I quote it. It said:It is not clear that publicly funded representation is necessary for all tribunal proceedings. Another approach might be to simplify tribunal procedure where possible in order to render legal representation unnecessary. The Lord Chancellor's Department has recently commissioned research into the effectiveness of representation at tribunals".I interpose to say that I hope we can hear about this research in reply to the debate. The White Paper continued:Against this background the Government does not intend that there should be any general extension of publicly funded legal representation".I have never in practice witnessed greater unfairness than the legally unrepresented applicant against the legally represented employer in industrial tribunals. This year and last year applicants were unrepresented in over 4,000 contested cases—about 35 per cent. to 36 per cent. of the total of contested cases. These are cases about unfair dismissal, redundancy, sex discrimination, equal pay.
It is a pure myth that tribunal proceedings are informal, or that they could be so that legal representation really does not matter. Procedures are the same as in the High Court, and they always have been. There is examination and cross-examination of witnesses, and a vast amount of legal argument, rightly and unavoidably, because of the complexity of the statutory system which Parliament has laid down, and of case law. There is much more legal argument in the industrial tribunals than in the county court where legal aid is available, and very much more money is often at stake than in the county court. The maximum compensation in ordinary 631 unfair dismissal cases is £8,500, plus a maximum basic award of £4,740. In some very special cases compensation can approach £38,000. I shall be interested to hear in the reply to the debate how it is to be argued that publicly-funded representation is not necessary in the industrial tribunals for equal justice to be done.
We on this side will not be impressed by any proposition that research is needed in order to prove the obvious—that legal representation is necessary. The sentence that I read from the White Paper about simplifying the tribunal procedure to make legal representation unnecessary is either ingenuous or disingenuous. I would be the first to recognise that lawyers are not the most popular breed and that some might welcome their demise; but a complex legal system without lawyers is as convincing as the Cheshire cat without the grin.
We are ready to congratulate ourselves that our legal system of justice is the best in the world. It should therefore cause no surprise that ordinary people have a deep desire for effective access to this superior system. They feel acute frustration from the denial of legal representation, when the other side is legally represented, before tribunals adjudicating on basic rights in a complex system that their Parliament has laid down.
The Bill does not begin to succeed in concealing the fingerprints of the Treasury—they are all over it. It is only hard undertakings about resources that could persuade otherwise. We ask this question: do the Government see the enjoyment of basic legal rights as a major social goal, with citizens having effective access to their rights by knowing them, by being encouraged to claim them and by being legally represented when they claim them?
In opening the debate, the noble and learned Lord the Lord Chancellor asserted the fact that the Government must have a central role in any service that distributes public money. We respectfully agree with that assertion. We want central direction and strategy. Can the House be told why there is no national strategy for a fair distribution and secure funding of the CAB's, advice centres and law centres? Until undertakings about strategy and resources are made, the fear on his side of the House will remain that this Bill will do nothing to prevent the reduction of yet another social service to a third-class ambulance for picking up the poor.
§ 5.3 p.m.
§ Lord Ackner
My Lords, if my noble and learned friend the Lord Chancellor had the gift of immortality and permanence in the office which he adorns, I would express none of the anxieties which I now express. If, contrary to reality, I could have made those two happy assumptions, my personal knowledge of his outstanding fairness and independence would have totally convinced me of his ability to withstand and not to be overborne by what my noble and learned friend Lord Rawlinson of Ewell referred to as the "juggernaut of the Treasury".
That phrase was used in a speech made in a debate some 18 months ago and I believe that my noble and 632 learned friend the Lord Chancellor attended. It was initiated by the noble and learned Lord, Lord Benson, the distinguished chairman of the Royal Commission on Legal Services which sat from 1976 to 1979. The purpose of that debate was to call attention to the concern about the provisions for criminal legal aid; and, secondly, to the need to consider ways of improving machinery for negotiating levels of remuneration in the future. The debate took place against the background of what my noble and learned friend Lord Templeman, a member of that Royal Commission, accurately referred to as:the recent unhappy and successful litigation by the profession against the noble and learned Lord, the then Lord Chancellor [which] demonstrated that the complaints of the profession were well-founded".Your Lordships will recall that the profession—that is both the Bar and the solicitors—brought proceedings for judicial review against the then Lord Chancellor, alleging that he had failed to comply with his statutory obligation. That statutory obligation is to be found in the Legal Aid Act 1973, Section 39(3) which this Bill proposes to rescind. The material words are as follows:The Lord Chancellor in making regulations … as to the amount payable to counsel or solicitor … shall have regard to the principleand I stress these words:of allowing fair remuneration according to work actually and reasonably done.The words are not limited to "fair remuneration", but they are:fair remuneration according to work actually and reasonably done".In his final observations at the conclusion of the debate, the noble Lord, Lord Benson, said that it had been a curious one because usually conflicting views are expressed. However, he said that in the debatethe whole House was looking one way";namely, to the fulfilment of the recommendation of the Royal Commission that an independent review body should be set up to advise—and I emphasise the word "advise"—the Lord Chancellor on all forms of legal remuneration. In agreeing with that recommendation, my noble and learned friend Lord Elwyn-Jones said:A state of near crisis has arisen in the criminal legal aid field, and sadly in the problems of determining what should be fees for criminal legal aid.He added:Present arrangements are no longer sustainable".In that debate my noble and learned friend Lord Hailsham (the then Lord Chancellor) said in terms that he was:wholly wedded to an independent and vigorous profession, fairly remunerated.He further said that he:wholeheartedly accepted the principle of fair remuneration according to the work reasonably and actually performed.Those are the very words embedded in the statute.
The unanimity of your Lordships at that debate has been totally ignored. There is to be no independent review board to advise the noble and learned Lord the Lord Chancellor. My noble and learned friend Lord Hailsham's encouraging observation at that debate that he "was not 633 unfriendly" to the suggestion of such a body to advise his department, has a hollow if not a mocking ring in the context of this Bill. All this, despite the fact that such bodies exist to provide independent advice to the Government in relation to many other activities and professions; the senior Civil Service, the Armed Forces, the senior judiciary, doctors, dentists, nurses, policemen, etc.
However, I emphasise that far, far worse is the fact that the statutory obligation of my noble and learned friend the Lord Chancellor (which I have quoted) is to be removed. In future, the profession is to be left totally unprotected by the courts because the courts cannot compel the proper compliance by the Lord Chancellor with a statutory duty which no longer exists. By removing that vital statutory obligation, one cuts off such access to the courts and that is the reason why it has been done.
To those who would ask why that protection is necessary, I would answer quite simply this: because the whole quality of justice in this country is at serious risk. I am quite satisfied that I speak for the entire judiciary when I say how much we depend for the proper despatch of our business upon the competence, industry and integrity of the profession; and if those standards are reduced, the efficiency and the very quality of justice which the courts administer is bound to decline. Cost-cutting can be counter-productive. This is what has impelled me to make these timid and deferential comments.
The unanimous support of your Lordships at the debate to which I have referred for an independent advisory board was based upon the generally accepted view that the noble and learned Lord Chancellor of the day, however firm his belief that a strong and independent profession was vital to the efficient administration of justice, would be unable to withstand the power and the parsimony of the Treasury.
Your Lordships' House had the great benefit of hearing in that debate the views of the noble Lord, Lord Bancroft, a former Permanent Secretary to the Treasury, who, in relation to the current arrangement, which I remind your Lordships contains the statutory obligation upon the Lord Chancellor to pay a fair remuneration for work actually and reasonably done, said:To call it a system would strain both language and credulity. It places the responsible Minister and his officials in a totally impossible position, by interposing the say-so of the Treasury jack-in-office between them and the professions … It allows of no rational process of argument, let alone negotiation. It imposes a government incomes policy, the existence of which is then promptly denied." [Official Report, 4/6/86; col. 991]He added that we should,end up with the provision of a second-class service to those of our fellow citizens whose circumstances require them to depend on publicly funded legal services.In saying that that would be "a truly dreadful legacy" he repeated that he spoke "as a consumer".
The noble Lord, Lord Benson, said that the Lord Chancellor's officials responsible for the pay negotiations, were,puppets dancing to the strings of the Treasury behind the curtains." [Col. 982.]634 My noble and learned friend Lord Griffiths, who I am delighted to see is present in this debate, put the position in a sentence when he said:The Lord Chancellor's department was working under the shackle of the Treasury." [Col. 1001.]I have been at pains to rely upon the views not only of distinguished lawyers but of laymen whose long experience enables them accurately to assess the reality of the relationship of the Lord Chancellor's department with the Treasury. I have not ventured my own views. Maybe I shall have an opportunity on another occasion. It is a relationship which has been the subject of a recent and very important lecture, prominently reported by the press, given by Sir Nicholas Browne-Wilkinson, the Vice-Chancellor—that is, the head—of the Chancery Division of the High Court. Having commented that,justice is not capable of being measured out by an accountant's computer",he then went on to say this:The old machinery regulating the administration of justice no longer ensures the independence of that system from executive control. Judges are sitting in an environment wholly determined by executive decision in the Lord Chancellor's department, which in turn is operating under the financial constraints and pressures imposed by the Treasury. The yard stick for decision taking is financial value for money, not the interests of justice. What constitutes value for money is being determined by the executive, not judicial decision. The Lord Chancellor's own position, representing as he does simultaneously both the independent judiciary and the interests of Government, is becoming more and more difficult since the price to be paid for obtaining funds for the administration of justice is dependent on satisfying the Treasury that any particular course represents, in their terms, value for moneyThe existence, strength and vitality of an independent legal profession, and public confidence in it, are fundamental to our freedom under the law. I claim—although I should like to—no authorship of those words. They are to be found in Cmnd. Paper 9077 of November 1983. They must have been carefully thought out, because they are the first response by the Government, after four years of thought, to the Benson Commission's report. Clearly there can be no confidence in a legal profession which provides for those who lack means a second-class or a second-rate service.
I earnestly hope that the statutory obligation imposed by Parliament some 13 years ago upon the Lord Chancellor the material terms of which I have quoted will be re-enacted on the initiative of the Government. Its omission in the teeth of paragraph 48 of the White Paper, which stated,In setting rates the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done",will earn for this Bill the short title of the unfair remuneration Act.
As I have sought to emphasise at the opening of my observations, nothing that I have said reflects, or is intended to reflect, any criticism upon the present holder of the great office of Lord Chancellor. His recent appointment has made the winter shorter for all of us. The concern which I voice is concern motivated by an anxiety lest my noble and learned friend the Lord Chancellor should put upon himself a Treasury straitjacket which will prevent his exercising his very considerable talents. That would be to the great detriment of the public interest in the administration of justice.
§ 5.17 p.m.
§ Lord Sudeley
My Lords, this Legal Aid Bill is likely to dictate the character of legal aid for the next 15 years, in the same way as its predecessor of 15 years ago did, and I should like to concentrate on just one aspect of legal aid. The White Paper states that the success of legal aid has largely been due to the efforts of the Law Society. But now I see in the literature of the Law Society on the Legal Aid Bill that anxiety is expressed that for the sake of the good administration of legal aid there will be not enough solicitors who are willing to concentrate on this area; rather that they may neglect it for the sake of privately paid work.
So I hope that it may not be out of place for me to give a quick outline of some of the difficulties experienced over legal aid by solicitors at the grass roots level. On the whole, my observations will be of a general character, though in one or two places I refer to a particular solicitor who has practised in the East End and to whom, for purposes of convenience, I will refer as Solicitor X.
First, there are the problems of tracing the location of clients held in custody rather than in prisons. This applies particularly where a solicitor applies to a judge in Chambers from a magistrates' court for bail and then has to state the present place of custody of the client. While much help is given by the police, it may still be very difficult to do this when clients can be moved on the hour from one place to another. While solicitors can use agents, they may themselves often have to travel long distances and then they are obliged to report in great detail to the Law Society as to why they have done so.
Then there are the various kinds of assistance available under legal aid. A client can consult a solicitor for up to half an hour for £5, which must, on any account, surely be absurd, and thereafter a solicitor can hardly begin to advise a client or to write letters before the £50 limit under the green form scheme has been reached; and so for an extension he has to send back a requisition form. For the filling in of these forms with the figures involved a good deal of time which is unremunerated is required. Under the Bill it is proposed that much of this work should be done by citizens' advice bureaux; but can they cope with this kind of work when over the years they have already referred many cases back to solicitors?
Then there are the magistrates' court cases. Here in particular, owing to the delay caused by unrepresented defendants, magistrates are very much in debt to solicitors. Forgetting solicitors, the Police and Criminal Evidence Act introduced the 24-hour duty solicitor scheme where solicitors so selected speak to clients through the wickets of the gates of their cells in the case of clients who are aggressive or frightened or who may have no idea why they are there.
Since under the duty solicitor scheme no scheme may be worked out for a particular solicitor to act at a selected time, a solicitor may find himself on constant call. For that kind of work he is paid £2950 an hour, and for remuneration he has to fill in a complex form for the Law Society, for the filling in of which he is unremunerated.
636 Then there is matrimonial work. Full legal aid is available for ancillary proceedings but at the end of the day a full bill has to be sent to the Law Society after it has been drawn up by a court's draftsman and submitted to the court and taxed. So it may be some while before the solicitor is paid. While there is a scheme here for payment on account, when solicitor X's firm was paid in that way on one occasion recently only £7,000 out of £30,000 was paid. Then there are the High Court and county court cases. Here again, there may be months of delay before solicitors receive payment. Elaborate bills are submitted for taxation, and after solicitors have agreed to the reasonableness of the taxation an allocator has to be obtained.
Finally, in the Crown Court there is no system of payment on account and elaborate bills have to be prepared for taxation. Solicitor X found in one court that taxation was done by civil servants rather than by associates who have some form of legal knowledge, and in another court solicitor X found that no bill over £1,000 has been or is being taxed for a period of four months. Naturally, to remove all or some of the difficulties that I have outlined would cost more money, but it is important to remember when considering whether the funds allocated for legal aid are sufficient the great increase in the amount of work that has had to be done on account of legal aid owing to the increase in divorce and also the increase in criminal activity.
§ 5.22 p.m.
§ Lord Parry
My Lords, it used to be a maxim that in Parliament one never apologised nor explained. I reject the maxim and apologise to the House that I missed the speech of the noble and learned Lord the Lord Chancellor and that of my noble and learned friend Lord Elwyn-Jones. That was unavoidable, but I apologise.
I shall explain too why I rise to speak as a layman and with trepidation in a House that is obviously particularly crowded this afternoon with lawyers. I rise because I have been asked to do so to reinforce some of the points already made in this debate from all sides of the House and notably in the speech of my noble friend Lord Irvine of Lairg, who made such a forceful contribution a few minutes ago.
I also had the opportunity of seeing the speech made by my noble and learned friend Lord Elwyn-Jones, who helped me by pointing out the passages in his speech that might otherwise have arisen in mine. He reassured me that what I had to say was not redundant, because I am as anxious as the members of the legal profession in this House have shown themselves to be that those who are not of that profession are not frightened away from it nor priced away from it. Those of us who have from time to time access to the law know that even for the articulate and even for those who are used to going into offices in high places it is nevertheless a frightening experience to be faced with the law. Lawyers themselves, although they do not recognise it, are frightening individuals too.
I was asked to contribute to the debate by the South Wales Legal Services Steering Committee, 637 which is anxious, although it need not have been, that certain points already made in the debate should he reinforced. That committee is in favour of the reform of legal aid, directed towards public and equal access to justice regardless of means. Obviously I support that as much as anyone else speaking in this debate. We are all in favour, as are the members of the committee, of properly developed legal services. No lawyer would claim that all lawyers are equally good. There are bad lawyers; there are inefficient lawyers; there are lax lawyers, as there are very good and very caring lawyers and as there are such people in all professions.
I also wish to say that I support an approach which recognises the consumers' interest and involvement. The noble and learned Lord, Lord Denning, pointed out both sides of this argument—both the use and the abuse of the system. He very properly drew our attention to that matter.
When people seek legal aid they are most likely to benefit from advice given to them in advance, even from the opportunity of seeing the lawyer, who is a busy professional man, heavily occupied. It is therefore hound to be a good thing that the regional boards are given every opportunity to present themselves to people in need of such advice as they have to offer. It is absolutely essential that they should be properly supported, that they should have secretariats and that they should be able efficiently to represent the law to those people who are going to get advice on it from the proper sources—from lawyers and from advocates themselves.
I shall not detain the House by going over things that have already been said but I wish to quote from the Royal Commission on Legal Services in Scotland, which stated in 1980:To recognise a potential legal solution to a problem the citizen must have some knowledge of the legal rights and responsibilities involved … Many people are reluctant to enter a solicitor's office unless they are sure that they have a real and important legal problem, but they are less reluctant to approach more informal advice agencies".I believe that despite the instances quoted of abuse of the system there are infinitely more people in this country of ours who are frightened off seeking the proper advice and getting the proper advice, and who are priced away from that advice, than there are those who are ever likely to abuse the system.
I make my own plea as a layman, as one whose mother would be astonished if she had known that her son was going to stand up here and talk about the law in the presence of four former Lord Chancellors and innumerable judges. I add my plea that in dealing with this Bill we ensure that the interests of the consumer come at least as high as those of the lawyer and that those who need legal advice get it through to the end of their complaint in this system of ours.
§ 5.28 p.m.
§ Lord Griffiths
My Lords, I am sure that all in the House would wish for an efficient legal aid system. On the civil side, it brings great benefit to the less fortunate members of society, and, on the criminal side, it is only right that where the state chooses to accuse, the state should take the responsibility of seeing that there are adequate facilities for a defence. 638 That can only work if the system has the support of competent members of both branches of the legal profession.
I venture to speak in this debate because I am anxious that the form of any future legal aid scheme should be such as to avoid the lamentable crisis of confidence that occurred between the members of the legal profession, especially the Bar and the Lord Chancellor's department, over negotiation of fees of which my noble and learned friend Lord Ackner has already spoken. I do not wish to go over old ground.
I am happy to say that that unhappy experience is behind us. I know that under the aegis of my noble and learned friend the Lord Chancellor negotiations are now proceeding in a very different atmosphere. I understand the dismay of the Bar when it read of the shape of the present Legal Aid Bill. There are three particular matters upon which I wish to dwell very shortly. I hope that my noble and learned friend the Lord Chancellor will think that he can accommodate and reassure the Bar upon these matters.
The first and most obvious matter is that no provision is made for members of the Bar to be on the Legal Aid Board. That seems a most extraordinary omission. After all, the Bar knows how the legal aid system works better than most. To turn our backs on that experience is a most extraordinary omission. I accept, as I have heard from my noble and learned friend Lord Elwyn-Jones, that the Lord Chancellor proposes to nominate members of the Bar to serve on the hoard. However, it is a statutory obligation in Scotland. I do not see why it should not be a statutory obligation in this country; and I am sure that it should be.
The second matter is the question of remuneration. In a nutshell, the crisis concerning negotiations on that matter was that the Bar, as it perceived the situation, was negotiating with people who had no power to negotiate because the Lord Chancellor's officials were not under the dead hand but in the live grip of the Treasury. They said, "We hear what you say. We have no money to pay you any more". That was a wholly fruitless exercise. It was because of the fair remuneration clause that the Bar was able to take that matter to judicial review. There is a natural suspicion that the fair remuneration clause has been deliberately removed from the Bill to prevent the profession having access to the courts. I do not labour that point. My noble and learned friend Lord Ackner has explained it better than I could.
I was very reassured to hear the Lord Chancellor's explanation and I am sympathetic to that. After all, "fair" is a very difficult word to define. It depends very much on context. I think that it is much better to spell out what we mean by fair so that everybody can understand what is being talked about. As I understand it, the Lord Chancellor has told us that he has now spelled out in the clause those considerations which should be taken into account when considering the concept of fair remuneration.
The difficulty lies in the drafting. It is not surprising that the Bar is worried. As the clause is drafted, those considerations, which I take it are intended to be the alternative to fair remuneration, are not matters which must be taken into account but matters which 639 the Lord Chancellor is entitled to take into account. I am bound to tell the House that I would rather negotiate with someone who has to be fair than with someone who is entitled to be fair.
I suggest to the Lord Chancellor that the clause would be very much improved if he deleted the words "be entitled to" so that it then read:The Lord Chancellor, in making regulations… shall have regard among the matters he considers appropriate to".There then follow the matters which should properly be considered when dealing with fair remuneration. That would give the Bar the safeguard which it feels has been removed.
§ Lord Renton
Perhaps the noble Lord will allow me to interrupt. I fully agree with him. However, I wonder if he will go a step further and say that the words "fair remuneration" might well come into the clause.
§ Lord Griffiths
I should have no objection to that. However, I should have to think more about the drafting. The drafting I have just proposed is a simple deletion. If fair remuneration were re-introduced in a phrase such as,fair remuneration which shall be taken to meanor some such phrase, I should be more than content.
The other matter which concerns me is that the legislation is absolutely peppered with Treasury constrictions on expenditure. I consider it to be absolutely outrageous that the Lord Chancellor of England is not entitled to approve the expenses of a board member without first getting Treasury consent. However, that is spelled out in Schedule 2 and also in terms in Clause 13. It is only one example. A more important feature appears at the end of Clause 32(11). The Lord Chancellor is not entitled to make any regulations either which affect remuneration or the availability of advice or assistance without Treasury consent.
I accept that we are looking at the available cake and that various departments will be competing for their slice. Naturally, what is spent on legal aid will have to be balanced against what is spent on the National Health Service. We have had only too lively a reminder of that earlier this afternoon and it must be taken into account. However, I think that the day will come when the Lord Chancellor in the interests of the administration of justice, will be fighting his corner in the Cabinet for expenditure, and he should not have to get Treasury approval before he puts forward any regulations. Surely the Lord Chancellor is to be trusted not to put forward regulations which wreck government policy. I should have thought that those matters were bound to be discussed in Cabinet.
What we see in the legislation time and time again—from the ridiculous on expenses to the far more important on the nature of representation to be allowed—is the grip of the Treasury. It reinforces the fears of the Bar that future negotiations may prove abortive because those negotiating—it will not be the Lord Chancellor who negotiates but rather his 640 officials—will be hamstrung by Treasury constraints and therefore not able to listen to reasonable argument.
§ 5.38 p.m.
§ Lord Gifford
My Lords. I begin by declaring an interest as a barrister who gets a high proportion of his income from the Legal Aid Fund. I also apologise, particularly to the noble and learned Lord the Lord Chancellor, in that because of that very occupation I was not able to hear his introduction of the debate.
This is a very important Bill for the quality of justice in our society because it will set the tone for the provision of legal aid for the rest of the century. It is put forward against a background of rising legal aid costs. It needs to be said that legal aid costs are not rising because lawyers are becoming more grasping or citizens are becoming more litigious. They are rising because of the need of people for justice, particularly in terms of the trends of our present society.
For instance, the more there is a squeeze on the expenditure of local authorities and the more that people suffer unemployment, the more there will be social stress. The more homes we have, the more there will be housing below the statutory minimum conditions. With more redundancies, there will be more juvenile crime and more problems over social security benefits. Therefore, in every case there will be more need for good advice and for access to justice in order to deal with the effects of those conditions. Therefore, I believe that we must take stock of the present state of legal aid to see where it needs to be improved, and then see if the Bill achieves that object.
I believe that the original Legal Aid and Advice Act of 1949 was a great pioneering measure of the post-war Labour Government. It was based upon two very important principles, the first being that no one should be denied access to justice through lack of means. By and large, in the way in which the scheme developed it was able to secure those goals. However, there are serious gaps and I wish to draw attention to three of them which are not remedied in the present Bill.
First of all, there is no provision for legal aid for the representation of the next-of-kin at a coroner's inquest. When someone dies in violent or unexplained conditions and the family is devastated the coroner's inquest provides a valuable means of inquiring as to the cause and investigating whether similar fatalities can be prevented. Time and again the distraught family is not able to retain a lawyer to ask the questions that need to be asked at the inquest in order for a fair inquiry to be made. That is the first omission that ought to be rectified.
Secondly, there is an exception under the present law and in the new Bill for defamation proceedings. I have never understood why it should be considered that the reputation of a poor person should be less in need of defence than the reputation of someone who has the resources to tackle the press when it defames someone's reputation. Thirdly, as my noble friend Lord Irvine mentioned, there is the lack of legal aid for tribunals. Industrial tribunals, immigration tribunals and certain other tribunals deal with 641 matters as complex, and difficult to understand and as much in need of legal interpretation—matters which are vital for the interests of the individual and just as important—as do many county courts, for which legal aid is available.
It is unnecessary to grant legal aid for every case because clearly there must be some kind of screening system so that legal aid is available when a lawyer's help is needed. For instance, that situation may arise in the determination of complicated questions before the social security commissioners. But that omission has not been rectified.
The second important principle that was enshrined in the original scheme was that the representation and the advice given under the scheme was to he representation by the lawyer of the client's choice. It is that principle which differentiates the British scheme from those schemes which are operated in many other Western countries in which there is a first-class and a second-class service. In many countries of Europe those who cannot afford to retain a private lawyer have to depend upon some kind of assigned lawyer appointed by the court. There is a stigma and a feeling of substandard and second-class service attached to it.
One looks at the provisions of this Bill to see whether that fundamental principle is to be enshrined. There are powers in Clause 3 of the Bill which give grounds for serious concern. The powers of the board are described in the widest possible terms. Under Clause 3(1),the Board may do anything—… which it considers necessary or desirable to provide or secure the provision of advice, assistance and representation".In the next subsection,the Board shall have power—… to enter into any contract".It is clear that what is intended is contracts with other agencies for the provision of advice or representation.
There is no indication at all in the Bill as to how this provision is intended to work. There are some areas where one can see that it is important for the board to be able to make arrangements with citizens' advice bureaux and similar bodies. Are these arrangements to be additional to the existing right to obtain legal aid from a solicitor, or are they to be alternative?
I should deprecate any contract made by the board which provided for some exclusive arrangement so that a citizen had to go to the local advice bureau or the local public defenders scheme, or whatever it may be. That would lead to a differentiation between a first-class and a second-class service. I hope that the noble and learned Lord, if he has not already done so, will indicate with what bodies and under what kind of terms it is intended that these contracts should be formed.
More generally, the Bill fails to respond to the great advances that have been made in recent years in the provision of legal services to the public. In the 20 years that I have been in practice there has been an upsurge of idealism among lawyers. There are hundreds of lawyers both in public agencies and in 642 private practice who are dedicated to serving the needs of those who are most in need of justice. Several new forms of agencies have grown up in that period and I am most anxious to know what their future is to he under the new dispensation in this Bill.
As my noble friend Lord Irvine mentioned, there are law centres. The first law centre was started in North Kensington in 1970 and there are now over 50 of them. Their work has been acclaimed by all political parties and by the Lord Chancellor's Advisory Committee. They have pioneered new ways of defending the rights of groups of people who would not easily have access to the solicitors' normal private practice arrangements. Yet their future remains in doubt and their funding in a mess. They are largely dependent upon local authorities who arc themselves squeezed for funds. Year after year the advisory committee has appealed to the Lord Chancellor to take responsibility for ensuring that law centres are centrally funded. Like my noble friend, I ask: what is the policy?
Secondly, at the next tier, which is the regional tier there have been the kind of regional legal services committees about which the noble Lord, Lord Parry was speaking. There is one in particular in the North-West which started in Manchester. It extends through the the North-West and brings together lawyers of every variety, judges, solicitors, advice workers and a number of other lay agencies.
Other schemes have been put forward for South Wales and the North-East, but they have no funds. They are capable of throwing up stimulating ideas, which would be very valuable for the work of the new board, about how legal services could be better co-ordinated and arranged. Again, I ask the noble and learned Lord to say whether there is a policy for the funding and continuation of the work of those regional legal services committees. If there is, what is it?
Thirdly and finally, there has been growing up around the country in deprived urban areas a number of private legal aid practices comprising local nieghbourhood solicitors who are finding it desperately difficult to make ends meet under the system of legal aid. The noble Lord, Lord Sudeley, mentioned examples. Much has been said about the need for fair remuneration for barristers. Barristers manage to remain in business, but solicitors in legal aid practices around the country are being driven out of business because with all the paper work which has to be done and the case by case claims, they cannot make a proper living. I ask the noble and learned Lord to pledge that it will be possible for a neighbourhood solicitor's firm, without being charitably subsidised for its work by private clients, to be able to remain in business to serve its neighbourhood area.
Those are some of the questions to which this Bill should address itself and which it does not answer. I hope that in Committee we can improve it so that in the difficult years that lie ahead it can stand as a measure which will ensure justice for those who are denied it.
§ 5.49 p.m.
§ Lord Mishcon
My Lords, in a debate about a subject which possibly can be summed up by the Law Society maxim: "There is no justice without legal aid", I hope, in a short winding up speech, to be able to imitate the temerity and the deference of the noble and learned Lord, Lord Ackner, in what I thought was a most notable speech.
I believe that there has been a predominant note in this very interesting and informative debate, in which so many experts from the legal profession have spoken but to which there has also been a most valuable contribution from those who are knowledgeable in matters of legal aid but who are not members of the legal profession. There is a fear of this growth of subordinate legislation. Some primary legislation seems to omit more than it contains. I believe that the House, in a matter as vital as is legal aid to the social structure of our country, will be especially sensitive about the emphasis on subordinate legislation.
In the course of this debate it has been said that there are 56 powers granted to the noble and learned Lord the Lord Chancellor under this Bill, all of which will be exercised by regulations. The noble and learned Lord, Lord Denning, may be frightened of regulations which appear to be voluminous. I am much more frightened of regulations upon vital matters of principle which go through on negative resolutions. In my humble submission, volume is not as important as is the principle that Parliament legislates and legislates when it knows what it is doing. That is exactly what happend in the previous legislation. In the 1974 Act one can read the directions in regard to legal aid, word for word: where legal aid is to he given and all the principles are laid out. In this Bill, which takes the place of the 1974 Act, we are met with powers of which we know nothing. They are to be regulations placed before the House, in the main for acceptance under the negative resolution procedure.
The noble and learned Lord in his very clear and lucid introduction to this Bill made a reference to the first Act of 1495. If I may be allowed to correct the noble and learned Lord, Lord Denning—which I could never do on the law but can do on history—that was during the reign of Henry VII. If Henry VIII had had the benefit of legal aid, he would have exhausted the fund in no time at all.
The benefit of the 1495 legislation as the noble and learned Lord might have noted, was that although it contained only one clause, at least the nation capable of reading that one clause knew what it was providing. I hope that the noble and learned Lord can steer a Bill through this House which has exactly the same effect; namely, that there are clauses which we know about and clauses which we can pass.
Is this just a theoretical exercise in what Parliament ought to be doing in legislation? In the course of this debate, I think something a little more insidious arose to the reaction that Parliament ought to have to legislation of this sort. Time and again the fist, not exactly mailed but rather exhaustive and deleterious, 644 of the Treasury was seen as being the inspirer of future regulations that come before the House in this way.
I ask the noble and learned Lord—and he knows that I do it with the utmost respect—on behalf of Parliament and in particular on behalf of these Benches to be wary of regulatory powers by means of which Parliament would make him very much more powerful in matters relating to this vital issue of legal aid. He is the one who should have the discretion and not the Treasury working behind him in his department. That is not to be disrespectful of the Treasury. The Treasury has its job to do and its job is to manage the budget of this country a little more favourably than that of the United States of America at the moment and to see that there is not a huge deficit and that the country can afford to pay for services. That is all very right and proper. However, it is Parliament that decides on priorities. It is the nation that, through Parliament, seeks to deal with priorities in social work. It is not the Treasury's job.
My noble and learned friend Lord Elwyn-Jones made this very eloquent plea in his speech, that we must know, and we ask the noble and learned Lord the Lord Chancellor to tell the House, what sort of regulations are coming out of this Bill. May we please know that before the Committee stage—by letter if it cannot be by any other means—so that at Committee stage we know what we are dealing with and whether in fact the principles that I believe all sides of the House stand for are or are not being met.
I could continue to deal with a great number of questions which I put down on a piece of paper to ask the noble and learned Lord the Lord Chancellor. I ask him only a few of them because the time is late and I believe that the House wishes to hear the reply of the noble and learned Lord to this very interesting debate. He will know that his immediate predecessor, the noble and learned Lord, Lord Havers, of whose company we had the privilege earlier in this debate—we well understand why he has had to leave debates early on several occasions—said in the Law Society when we are dealing with the membership of the Legal Aid Board as suggested by the White Paper (and nobody objects to the setting up of that board providing its composition and powers are all right) that the members would include those with particular experience as providers of advice and consumers of legal services, those from the regions and those with knowledge of the disadvantaged sections of society.
That is exactly what was pleaded for from many parts of your Lordships' House in the course of this debate. I ask the noble and learned Lord whether he agrees with that definition of those who ought to constitute this new board.
On contracting out, I ask the noble and learned Lord to assure the House, and certainly the people of this country, that there is not to be any question of invitations to tender so that the people who put forward the lowest prices for the contracts for carrying out these services are the ones who are selected by the Treasury, in its advice to the noble and learned Lord's department, as the sort of people who ought to be given the contract because they have agreed to do the work very cheaply.
645 On the question of the Legal Aid Advisory Committee, many speeches were directed towards its eventual survival and, as I understand the noble and learned Lord, he said in his introductory speech that the matter would be under review about one year after the new board had begun to operate. Can he tell the House what would influence him in deciding that the Legal Aid Advisory Committee should no longer exist? What would influence the exercise of his power? What would be the criteria in his exercising that power to do away with the Legal Aid Advisory Committee?
I thought that the speeches made on remuneration fell more properly from those who were not directly to benefit from any question of remuneration. That is why I found the speech of the noble and learned Lord, Lord Ackner, with all his experience, to be so forceful. I do not intend to participate in any plea. I say this only in regard to the Bar and the profession of which I have the honour to he a member. Competition now exists for those with intellectual abilities in the fields of commerce and industry. If those brains are not to be taken away, in their majority, from a very fine profession—and no lack of popularity will ever make me think it is anything other than a very fine profession—and if we are not to lose those young men, they have to be encouraged by knowing that the remuneration they receive for carrying out this vital work in support of justice in this country will be a fair and decent reward for their labours.
I have made speeches in this House about the Crown Prosecution Service, and others have done so, too. We have pleaded for decent remuneration so that the quality of the service in this vital part of what the state provides shall be kept up to its appropriate standard. Some of us know that there are areas in the country where that standard is at present lamentably low; and I speak with a full sense of responsibility. It is lamentably low because we are not encouraging the right people. It is upon that aspect that I wish to dwell and not on any other aspect when I deal with this question of remuneration for the profession on legal aid. I do not intend to keep the House any longer.
§ 6.3 p.m.
§ The Lord Chancellor
My Lords, we have certainly had a very interesting and full debate on what I regard as an extremely important Bill. I am grateful to all noble and noble and learned Lords who have taken part and who have expressed their views. I assure the House that those views will be very much taken into consideration.
In seeking to sum up the debate, I cannot hope to deal with every point raised, but I should like to cover the main ones. First, I clarify a little the matter raised by my noble friend Lord Renton. It is definitely intended by this Bill to set up a new Legal Aid Board. It will be no shadow but a reality, with statutory powers and duties as set out in the legislation. However, to begin with, it will have only the responsibilities for legal aid administration which the Law Society presently carries; that is, basically, the administration of civil legal aid, and certain rather small ancillary matters attached to that, as well as the administration associated with it.
646 At the moment it has no responsibility for criminal legal aid. Nor has it responsibility, for example, for assessing the means of those who apply. It is contemplated by this Bill that the Legal Aid Board set up with those responsibilities at the outset may have the responsibilities extended to cover criminal legal aid and other fields so that, in that sense, it is an enabling Bill.
That brings me to the second point. As has been said by several noble Lords, in this Bill there are provisions for a good number of regulation-making powers. That is nothing new in legal aid and the noble and learned Lord, Lord Denning, has held up the present arrangements. The situation is that the present arrangements carry a great number of matters in delegated legislation which are important but not immutable. One hopes that the basic framework is set by the statute and that adaptability and development can take place by the use of regulations. That is the purpose of having these regulation-making powers.
I think I am right in saying that, generally, legal aid regulations laid in the past have often been uncontroversial. There is no reason why the time of this House and the other place should be taken up by my explaining what your Lordships already know on matters about which your Lordships have no questions or concern. Therefore, it seems a rather inappropriate step to make all regulations under this Bill subject to the affirmative procedure. Accordingly, up to now we have believed that the correct line to take is to make the regulation-making power subject to negative resolution so that if there is any matter of concern either here or in another place about a particular proposal it can be raised and debated. One of my earliest recollections of being in this House is of the noble Lord, Lord Mishcon, raising a matter of that kind in relation to the procedure and forms available in the High Court of Justice.
Using the negative resolution procedure is economical of parliamentary time while at the same time giving the opportunity to raise any matter of real moment which your Lordships or Members of another place think appropriate. That is the principle upon which the Bill has been drafted. I shall be entirely open to suggestions put forward in Committee that a regulation-making power is of particular significance and, exceptionally, requires the affirmative resolution procedure. These are matters for the Committee stage and I shall be happy to consider them at that time.
Perhaps I should add, on that subject, that I do not expect to have the regulations in draft before the Committee stage. In a sense, that would be putting the cart before the horse. The regulations will exercise powers given under the legislation. Until one knows with reasonable confidence what the powers are to be it is a useless waste of the scarce resources of my department to try to formulate regulations in advance. I may be able to give some idea of what I have in mind for some of the regulations, many of which will be continued from the present system.
The suggestion was made during the debate that the Bill has been drafted with the objective of cost- 647 cutting. Obviously, as the noble Lord, Lord Gifford, said, the cost of legal aid to the taxpayer is rising in rapid steps. I accept, as he said, that that is in part due to circumstances that are unfortunate; for example the rise in crime. Nevertheless, it is a substantial public responsibility to fund this service. Legal aid competes with other public responsibilities, as my noble and learned friend Lord Griffiths said. We were forcibly reminded of that earlier this afternoon in Questions. There is competition for public funds and the Government have to take account of that.
I come next to remuneration and the speeches of my noble and learned friend Lord Ackner, and others, on this matter. In a previous statute there was a provision, with regard to fair remuneration, for work actually and reasonably done. Whenever you quote the full phrase it is apparent that it comes from legislation dealing with the taxation of a particular case, because you have to have work actually and reasonably done before you can apply it and make it subject to this particular test. These regulations are intended to set levels of fees for work to he done but not yet done.
I was very concerned about the appropriate form of this clause, as I think your Lordships may appreciate, when coming to the present office in the circumstances that have been narrated. I think, if I may say so, that my noble and learned friend Lord Ackner, with his customary skill, has put his finger on at least one of the problems of the previous system. Quoting from the noble Lord. Lord Bancroft he said that it was not one capable even of rational argument—never mind a process of negotiation. This is precisely what I seek to alter and make susceptible of rational argument and proper negotiation. I wish to try, with the aid of your Lordships, to isolate the factors that have to he taken into account in order to reach what would be regarded as suitable remuneration. What are those factors?
I should like to take up the point raised by the noble Lord, Lord Gifford, about legal aid practices, sometimes in rather remote and deprived areas. When considering the cost of providing the services, the Lord Chancellor is entitled to take account of variations in circumstances. My noble and learned friend Lord Griffiths understood this approach and, I think it would be fair to say, commended it as at least worthy of consideration. However, he took the view that the words "shall be entitled to" should be omitted, so that it would become a statutory duty to have regard to these matters.
One problem is that there are a great many circumstances to be covered by regulation. The regulations would be expected to reflect changes in circumstances from year to year—although not necessarily annually. Certainly, however, fairly frequent review is required.
Another problem is that of scope and complexity. Considering a particular area in depth is a long and complicated operation. For example, if this year one has gone into great detail in considering the costs of a criminal legal aid practice and has negotiated a suitable set of figures for the regulations dealing with that year, it would seem perhaps not necessary next 648 year to go into it all again. Next year it might be right, on that part of the remuneration regulation, to go for some across-the-board uprating if that was appropriate. Or, if inflation had disappeared and we were in a happy area where there was no inflation, then that particular part of the legislation might be left as it was.
It is therefore necessary, I think, to have some flexibility in applying criteria of this nature. Furthermore, I believe that the criteria set out in the legislation would be a guide to the courts in deciding whether or not a decision of the Lord Chancellor under this clause was subject to review: whether he had properly taken account in the circumstances of the factors which had been set out. Therefore, while I am happy to consider in Committee precisely what form this important clause should take. I should like to explain at least one possible difficulty in using quite the form that my noble and learned friend suggested.
In this connection some reference has been made to a fees advisory body. I can understand that when the only criterion was a vague concept of fairness, it was thought that the only way that that could he put into practice was by reference to some advisory body. In my view there is a great deal to be said for having reasonable statutory criteria and then proper negotiation between the profession—both branches of it—and the Lord Chancellor, together with his officials, to settle these matters.
I was very glad to hear my noble and learned friend Lord Ackner mention the atmosphere in which matters presently proceed. Much depends on the atmosphere in which these negotiations are conducted and I certainly hope that they will continue to be conducted in an atmosphere of co-operation. I feel certain that if, by negotiation, a fee structure can be reached, then that is preferable to any other form of settling it.
The Bill contains power for the new board to contract certain aspects of what is presently the green form system to advice agencies. The Bill is not concerned with advice agencies generally, That is not the function of the Bill. But it is, I think, worth considering whether advice agencies could usefully be used to deal with the people who are frightened of going to lawyers, referred to by the noble Lord. Lord Parry.
Those of your Lordships who belong to the profession may have difficulty in understanding just why people are frightened of going to lawyers. Sometimes, going to a solicitor's office, you can perhaps sympathise with them. Nevertheless, there are people who no doubt need advice as to whether they should see a solicitor. There are areas upon which some people might think that they require legal advice when, in reality, it is a question of receiving information about a detailed statutory code such as, for example, social security legislation and its rates.
I would guess—although I may be wrong—that many of your Lordships who belong to the legal profession would have some difficulty if suddenly faced with a detailed inquiry about the applicable rates of social security to particular circumstances. Generally speaking, the advice agencies have that 649 expertise. It is only right that people should be directed to that expertise.
That is, I believe, important in another way. This matter would be dealt with by contract, as the Bill shows and of course a contract requires agreement on both sides. Therefore there would be a provision for payment to the advice agency in respect of the obligation it was undertaking. In this way there is at least the possibility of a reasonably secure source of income for the agencies. I hope that that will be of some reassurance. I see that the noble Lord, Lord McGregor of Durris, is here now. I understand that he wished to raise a matter of this nature and I therefore hope that those for whom he is concerned might also feel reassured.
§ Lord Mishcon
I wonder if the noble and learned Lord would with his usual kindness, indicate whether or not it was the intention to go out for tender in such matters.
§ The Lord Chancellor
At the moment I am not quite clear about how the matter might otherwise be arranged. One would need to know, to some extent, how people were prepared to react to the possibility of taking on this work by some form of tender. I do not think that the matter is the subject of expressed provision and if the noble and learned Lord has some other method in mind, I would certainly be very interested to hear about it as we get into Committee.
I come now to a question which has been raised a good deal and upon which I wish to say a little. This is the question of the constitution of the board and its independence. It was the original intention of my predecessors that membership of the Bar should be included in the statutory requirement. However, it was also generally thought that something like two days of attendance—at least to begin with—was required if this board was to perform its supervisory and initiating function. I do not wish to go further than to say that it was thought that there might be difficulties in securing suitable membership which would be willing to devote that amount of time to the work. If there is a statutory provision and it proves impossible to secure a person answering the necessary description, there is severe difficulty. I wish it to be possible for one or more members of the Bar to be members of the board. That provision has not been put in because, as I have said, although it was originally intended, it was thought that there might be a difficulty in making adequate and satisfactory arrangements.
I should like to have the best possible board. In a way, the more freedom one has to look around for people of experience and quality, the better. I appreciate the concerns of those who would like to restrict the Lord Chancellor's power to ensure that certain types of members were on the board. I am sure that we shall consider this matter further in Committee, but I thought it right to explain the difficulty.
That brings me to the second point. I should hope that the Lord Chancellor would be able to obtain people of quality and independence for the board. The Legal Aid Advisory Committee is appointed by the Lord Chancellor, and many of your Lordships 650 have spoken of its independence. Noble Lords have gone so far as to suggest that I might be motivated by the terrible desire to get rid of independent comment. That is not so. The Legal Aid Advisory Committee has given valuable advice. It will continue to do so during the transitional period, but the Legal Aid Board is charged with giving advice. If we can obtain people of the same quality on the Legal Aid Board, it may be unnecessary duplication to have the Legal Aid Advisory Committee and the Legal Aid Board giving advice. None of those advisory bodies is completely without the need of a little money to keep it going. On the whole, one would prefer not to have unnecessary wheels on the coach. Therefore, power has been taken in the Bill to dispense with the services of the Legal Aid Advisory Committee after a time, if that should seem right.
It is important that the Bill should be seen as a Bill to deal with the management and strategic direction of the whole of the legal aid system. Your Lordships are asked to settle those principles. Many details will have to be fitted in. Many of those details will develop as the system develops. No one can sec the best solutions for all problems now. We want to have a board that can make use of flexible powers to obtain the best possible results.
I commend the Bill to the House and invite your Lordships to give it a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the whole House.