§ 7.38 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, this is in a sense an annual event. As happens every year, there are four Motions standing in my name on the Order Paper, two for England and Wales and two for Scotland, and with the permission of the House, I shall move them all together. Two of the Motions relate to civil legal aid and legal advice and assistance. Both sets will come into force, if the House approves, the day after they receive parliamentary approval.
As the House is aware, the timing of the annual review of supplementary benefits is changing from November to April in two stages. The first was last July and the second is next month. The last legal aid uprating was on 25th November 1985 and I propose that our uprating this year will combine the supplementary benefit changes since November 1985.
The two Motions for England and Wales deal with the income and capital limits for civil legal aid and advice and assistance. They increase these income and upper capital limits by an average of 3.1 per cent. There is no increase in the lower capital limit, since the supplementary benefit capital threshold is to remain the same as last year; that is at £3,000. It therefore seems preferable to keep the legal aid limit unchanged also. This also applies to the limit for assistance by way of representation, or ABWOR.
The aid regulation (that is, legal aid other than the Green Form) raises the lower income limit (that is, the level below which no contribution from income is payable) from £2,255 to £2,325 a year. The upper income limit—that is, the level above which legal aid is not normally available—is increased by the same percentage; that is, from £5,415 to £5,585 a year. The lower capital limit remains at £3,000 but the upper capital limit (above which legal aid is not normally available) is increased from £4,710 to £4,850. For legal advice and assistance (the green form scheme) the regulations raise the upper income limit from £114 to £118 a week. The capital limit (above which advice and assistance is not available) increases from £800 to £825.
The two sets of Scottish regulations, the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1987 and the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1987, make the same increases for Scotland.
The House will also be aware that further sets of related regulations have been laid but these are not on the Order Paper because they do not require affirmative resolution. They concern legal advice and assistance, and criminal legal aid. The Legal Advice and Assistance (Financial Conditions) (No. 2) 529 Regulations increase the lower income limit for green form advice from £54 to £56 a week and revise the table of contributions. There are identical increases in the lower disposable income limit and a revision of the table of contributions relating to Scotland. These are contained in the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1987.
In criminal proceedings, the Legal Aid in Criminal Proceedings (General) (Amendment) Regulations 1987 increase from £46 to £48 a week the disposable income above which a person receiving aid in criminal proceedings under Part II of the Legal Aid Act is required to pay a contribution; the regulations also amend the scale of contributions.
I have also made and placed before the House, again under the procedure subject to negative resolution, three instruments relating to Northern Ireland which have the same effect on civil and criminal legal aid, and legal advice and assistance.
Looking a little wider than the regulations themselves, there are two subjects concerning legal aid that I also wish to mention. The first relates to administration. There has recently been criticism from the Law Society and others about the sums which the Government have allocated for administration. There has also been criticism of delays. Delays are, at least to me, always a legitimate subject for concern. But it is important to bear certain facts in mind.
Since 1979 the expenditure on administration (the part of it which is the sheer administration of the scheme) has risen from £10.1million to £24.5 million. Last year alone expenditure rose by no less than 18 per cent. For the current financial year an increase of 3.4 per cent., broadly in line with inflation, has been allowed which brings the total for the two years to £25.5 million. Thus there have been no cuts: there has been a steady and sustained increase. Obviously even at £25.5 million the amount allowed is not as much as the Law Society would like. But the demand for legal aid continues to grow and this rapidly expanding service has to operate in conditions in which it has to compete with all the other pressures on the Consolidated Fund. It is therefore incumbent on all those concerned to try to improve productivity, efficiency and value for money and to do the best we can in this regard. I am confident that I can count on the Law Society and all others concerned to do all that they can in this respect.
The House will also be aware that a new White Paper on legal aid was published last Thursday. This sets out the Government's plans for a complete restructuring of the administration in England and Wales. It is our clear aim to ensure that legal aid is operated efficiently and effectively and should provide the best possible value for money. I am confident that the measures proposed in the White Paper will provide a significant contribution to that aim.
My Lords, I beg to move, if the House permits, the four sets of regulations standing in my name.
Moved, That the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1987 laid before the House on 11th March [15th Report from the Joint Committee]; the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1987 laid before 530 the House on 11th March [15th Report from the Joint Committee]; the Legal Aid (Financial Conditions) Regulations 1987 laid before the House on 16th March [15th Report from the Joint Committee]; and the Legal Advice and Assistance (Financial Conditions) Regulations 1987 laid before the House on 16th March [15th Report from the Joint Committee] be approved.—(The Lord Chancellor.)
§ 7.45 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord for guiding it through the arithmetic of the regulations. I was intrigued to notice that the Scottish legal aid and advice regulations come into force on 1st April, whereas the date when the English provisions come into force is not stated. Was there some superstitious feeling that All Fools' day should not govern the matter, or not? Probably not. The noble and learned Lord has indicated that the regulations will come into effect when they have been approved by Parliament.
As the noble and learned Lord has said, the regulations and the alterations in them have become a hardy annual, occasioned by the need to keep in line with inflation from which we continue to suffer. It may well be that in the light of something that has already been hinted at by the noble and learned Lord, and the fact that the government White Paper on legal aid in England and Wales has been published, hereafter these matters will be dealt with at least differently in form.
The proposed changes in the government White Paper on legal aid are important and in some ways quite fundamental. I mention them not in the detail to which we must apply our minds in due course but in support of a request that I make to the noble and learned Lord. That is that before the Government legislate on the strength of the proposals in the White Paper there should be full parliamentary debate in view of their great importance.
For instance, the White Paper proposes a new quango. Quangos were objects of disapproval before the Government came into office, but now we see them turning up time after time. We are now to have a legal aid board which will in effect take the place of the Law Society in the administration of the legal aid scheme. The proposals in the White Paper give the board power to make alternative arrangements for the provision, advice and assistance for particular categories of work. There are also contentious proposals like that which provides that the opposing party should have the right to make representations against the grant of legal aid before the application is determined. That is a proposal which, in the light of the factor of the delay that the noble and learned Lord the Lord Chancellor has mentioned, I venture to think will make even slower the making of the grant.
There are other proposals which will affect the shape of things to come in the legal aid field and which:will allow advice and assistance to be provided in new ways".Many of the proposed changes will require legislation and I implore the noble and learned Lord, before he plunges into these stormy waters, to allow us an opportunity of examining the position before that is done.
531 One paragraph of the White Paper shows the extent to which legal aid offers an important safeguard to those who need but cannot afford legal services. I have always taken the view that since we initiated the whole concept in the times of the Labour Government way back in—
§ Lord Elwyn-Jones
Was it as long ago as that? That is so, and I remember struggling with the then Attorney-General, Sir Hartley Shawcross, as he then was, with the initiation of these proposals which have provided—I will not say equal access to justice—something nearer to equal access to justice for the people of this country. Equal access to justice should of course be an essential to all democratic society.
The extent to which the machinery has been used is set out in the White Paper at page 1. It reads as follows: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".Therefore one sees, as the White Paper says,These figures illustrate clearly the success of the schemes in meeting their basic objective".I hope therefore that the mood of those examining these matters is not a mood to restrict and limit the provision and availability of legal aid and advice in the name of economy. The expectation of saving something like £10 million by virtue of the new proposals looms large in the mind of the Government, but there is a high price to pay if that price is a diminution of legal advice and assistance to the citizen who requires it. In the end, it could well be counter productive.
However, so far as they go, we accept—and as they contemplate—improvements in the provisions to keep pace with inflation. We accept and approve these regulations. We are aware that they are very much interim proposals. We hope that the major debate will take place on the White Paper itself; but if not, then we hope it will take place on the proposals which flow from it. They have caused in part, considerable alarm and despondency in many quarters of the legal profession.
§ Lord Meston
My Lords, I, too, should like to express gratitude at the introduction of these regulations by the noble and learned Lord the Lord Chancellor. I suppose that I must declare an interest as a beneficiary of the legal aid scheme as a lawyer—not yet as a litigant, I hasten to add. Redrawing the upper limit of legal aid eligibility is always important because it affects the marginal cases; those people of modest means who require advice and assistance who are often taxpayers themselves.
The Royal Commission on Legal Services under the noble Lord, Lord Benson, went so far as to recommend abolition of the eligibility limits. Tonight at least I do not suggest that we should go down that road. But paragraph 12.30 of the Royal Commission's report said this:An upper limit of eligibility is arbitrary and may operate unfairly. A person whose resources fall above the line is denied 532 assistance of any kind. It is true that a person whose resources fall just below the line may be required to make a substantial contribution. Nevertheless he will still enjoy a considerable benefit as compared with someone who is ineligible for assistance".These regulations also fix limits at which legal aid contributions are required; and, in so far as that happens, it is a useful reminder that legal aid is not free. Not only does the legally-aided litigant have to make contributions in many cases but the legal aid statutory charge applies on whatever is recovered or preserved.
I take the opportunity to suggest that the time has come for a rationalisation of the workings of the legal aid charge, particularly in matrimonial cases. The £2,500 exemption should, I suggest, be kept in line with the upper limit of capital allowed for supplementary benefit purposes. But, as the noble and learned Lord, Lord Elwyn-Jones, has said, in effect we are really rearranging the furniture of the legal aid arrangements when we know that the Government intend a wholesale move of the system to new premises under new management.
The White Paper last week caused some alarm. In particular, I look at paragraph 48 where it is stated baldly:The Government does not consider that the rates for legally aided work should necessarily be the same as those for privately funded work".The legal aid system is a private service, publicly funded. It must not become a second-class system. I shall not repeat the arguments tonight which are familiar and were heard in your Lordships' House in the debate on criminal legal aid instituted by the noble Lord, Lord Benson, some time ago.
I am also troubled by the suggestion which appears at page 21 that the Government accept the recommendation that special authority will be needed for counsel to be assigned in county courts. What equalises the position of litigants, be they legally aided or not, is that the legally-aided litigant who goes to the busy local solicitor, who himself is not able or not willing to represent that person in court, can still have the services of a barrister from the pool of expertise which the Bar provides: expertise in law and in advocacy. Therefore, by the time the case comes to court the legally-aided litigant is in an equal position to his opposite number who has been able to go to a smart solicitor and afford counsel without difficulty.
County court litigation is not necessarily simple litigation. I have in mind particularly the complexities of the Rent Act where tenants tend to be legally aided and landlords, particularly if they are property companies, have ample means. I would suggest that it is also in the public interest that the Bar—the junior Bar particularly—should have the experience which county court litigation gives. I hope that we think hard about this suggestion before it becomes the law.
Finally, paragraph 42. It is welcome that the Government are applying their mind to the question of delay in processing legal aid. There are some truly horrendous cases. I have heard of instances of it taking up to eight months for legal aid to be processed, even in simple cases and even where the client's means are relatively straightforward. He may either have no income or may have a simple income on PAYE. One has heard complaints over and over again of legal aid 533 authorities ignoring requests to expedite the process and of authorities ignoring letters. As the noble and learned Lord will not mind my saying, justice delayed, is justice denied.
In matrimonial cases in particular it can only add to the distress and worry which the parties by definition are experiencing. It can affect both parties. For example, if the wife finds that she has to apply for legal aid, the husband who does not have legal aid will be held up for months, and solicitors will not be able to answer letters and nothing will happen for months. The agony will be prolonged.
One has heard also that conscientious solicitors in these situations find that they cannot bear the agony on behalf of their clients, and simply carry the loss by doing work under the green form scheme which they are not really meant to be doing and for which they will not be paid. The machinery can only improve.
I would join in calling for a debate on the proposals in the White Paper before they pass any further down the legislative road. It is obviously important from the taxpayers' point of view that legal aid is controlled; but it is also important from the public's point of view that we have confidence in our legal aid system.
§ 8 p.m.
§ The Lord Chancellor
My Lords, I am grateful to both the noble and learned Lord on the Opposition Front Bench and the noble Lord, Lord Meston, for the part they have taken in this debate, which has revolved more about the White Paper than the regulations which are technically under discussion. I do not think there is any magic in the date of 1st April as regards Scotland. I do not know why it should be different from England in this respect, but there it is. If any noble Lord wants to pursue this I am quite willing to find out.
Both noble Lords have asked for a debate on the White Paper. I should be the last to resist that, but as both noble Lords are well aware the allocation of debates rests with the usual channels. Other things being equal, I should regard a debate on this subject as a perfectly reasonable request if dealt with in that way.
One has to recognise how far we have gone down this road in the last 35 or 40 years. It has its origin, as the noble and learned Lord reminded us, in the Rushcliffe Committee on which my late learned friend Lord Dilhorne served, unless I am mistaken. It was therefore a social reform which was brought forward under a Labour Administration, but with all-party support. It started from very modest beginnings. It developed in 1962 into criminal legal aid as well as civil legal aid and in 1972 under my Chancellorship we added the legal advice and assistance scheme which has now come to be known as the green form scheme. I forget whether it was the noble and learned Lord or I who introduced the ABWOR form of representation which has already been referred to.
It has grown to cost, roughly speaking, £400 million a year, which is no mean sum. I predict that it will not be long before it costs £450 million. When people are asking for increases in that sum to be spent on litigants, however worthy, one must remember that they are competing for money with hospitals, schools, pensions, defence and other claims on the Consoli- 534 dated Fund, Therefore it is obvious that a Lord Chancellor who is responsible for the administration of the scheme has to adopt a responsible attitude towards it. I should not have thought that the saving of £10 million was something to cause much alarm or despondency in anybody's heart since it would be more than absorbed by the increases in expenditure to which I have already drawn attention.
The noble Lord referred to the fact that we were introducing a new quango. The truth is that the legal aid administration—which hitherto I have been proud to think has been carried on very largely voluntarily by the services of the two branches of the legal profession as a public service—has outgrown its clothes. Facing the fact that it has outgrown its clothes and also facing the fact that my Scottish colleague the Secretary of State has gone down the quango route, if I may say that, I do not think there was much alternative in front of me except to take over the whole system myself.
I should not think that was desirable in the interests of distancing oneself from the merits of litigation. The great advantage of the existing scheme is that it is operated without my approval of individual cases, either as to merits or as to means. I should not like to alter that feature of it simply because it was being systematised on a slightly different basis. Once one has said that, one has said that a quango is the only route forward.
Reference was also made to the proposal in the White Paper for the opposing parties having the right prior to the grant of legal aid to make representations. They do have that right after the grant of legal aid at present. One has to recognise—this is a hobby-horse which has been ridden many times by the noble and learned Lord, Lord Denning, from the CrossBenches—that the grant of legal aid to an assisted party who is fighting an unassisted party can inflict a great deal of injustice on the unassisted party. If the unassisted party wins, in most cases—I was going to say practically in all—he has to pay his own costs even though he wins the case; in which case he has suffered a degree of hardship which only in extreme cases is remedied by the scheme.
The fact is that we win in civil cases something like 60 per cent. of our plaintiffs' claims, which means that we do not win 40 per cent. of our plaintiffs' claims. When we are dealing with criminal legal aid the European Convention provides for it to be given free in suitable cases where the interests of justice demand it. However, one has to remember that in contested criminal cases at least 40 per cent. of the defendants are convicted all over England and Wales. That means that in 40 per cent. of the cases we have paid out thousands of pounds to enable the defendant to tell lies. That is a very strange use of public money. In matrimonial cases, which form a very important part of civil legal aid, as the noble Lord, Lord Meston, is well aware, whoever else is to blame for the breakdown of a marriage it is not the taxpayer. Therefore one has to examine these things from an objective point of view.
I do not think I need say this about the statutory charge to which the noble Lord, Lord Meston, referred. The object of legal aid is to put the assisted litigant in the same sort of position as regards accessibility to court as the unassisted litigant. If the 535 unassisted litigant goes into a matrimonial dispute with unassisted litigants on both sides—that is, husband and wife—the solicitor's lien will come out of the sale of the house or whatever. The purpose of the statutory charge, whether it is in matrimonial cases or in any other, is to put the assisted litigant in exactly the same position mutatis mutandis as the unassisted litigant. That is to say that if the house is sold for £70,000, even though there is not much cash when the £70,000 comes in, it is not unreasonable that something should be paid to the solicitors and counsel otherwise than by the taxpayer.
My withers are not unduly wrung about this nor am I unduly wrung about the proposal that special authority for counsel should be needed in the county court. Much of my work before the war was done in county courts, very often against solicitors; and very good advocates they were. They had the right of audience then as they have now. I think I probably undercut them a bit, so far as the fee to which I was then entitled was concerned, which may explain how I gained youthful experience. But at the same time it does not follow in every case that counsel who has to travel from London is justified when there is a good local solicitor-advocate on the spot who can do the work.
The fact is that one has to adopt a responsible attitude towards these things. I know that both noble Lords who have spoken recognise this as much as me. It is no good complaining that the Lord Chancellor is niggardly when one has to face the fact that litigation is an unmitigated but a necessary evil. Therefore, one must exercise a due degree of economy in its administration now that much of it is funded out of public money. When I am told, as I sometimes am, that it is very unfair to award smaller fees in some cases for legally assisted work than for unassisted work, I can only say that I, or rather my office, is in fact the best client of many solicitors and barristers—and if you do not give your best customer advantageous terms, all I can say is that you are a very bad businessman. I think one has to be a little less tearful about that than many members of the profession appear to be in their present mood. But having said that, I am very grateful to both speakers. I commend to your Lordships the four Motions standing in my name on the Order Paper.
§ On Question, Motions agreed to.
§ Lord Beaverbrook
My Lords, I beg to move that the House do now adjourn during pleasure until 8.30.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 8.11 to 8.30 p.m.].