HL Deb 04 February 1988 vol 492 cc1229-46

5.36 p.m.

Consideration of amendments on Report resumed.

Lord Elwyn-Jones moved Amendment No. 8: After Clause 4, insert the following new clause:

("Legal services regional committees.

.—(1) The Board shall establish regional committees for legal services, composed of appropriate groups of legal aid areas or any parts of legal aid areas.

(2) The said committees shall consist of bodies representative of the consumers and providers of legal and advice services and local authorities in each region, and other people interested in the work of the committees.

(3) The said committees shall ensure and facilitate the development of legal and advice services.

(4) The said committees shall advise the Board upon regional needs for legal advice, assistance and representation and the Board shall exercise its powers and duties under this Act with due regard to such advice.

(5) The Board shall provide financial and other resources to the regional committees for the performance of their obligations.").

The noble and learned Lord said: My Lords, we now return to the Legal Aid Bill. When the excitement of departure has abated, which I trust will not take long, I shall move Amendment No. 8, which imposes a requirement on the board to establish, regional committees for legal services, composed of appropriate groups of legal aid areas or any parts of legal aid areas".

It has been common ground in the debates on this Bill that the provision of legal services throughout the country is uneven and in some areas very inadequate. The tragedy is that it is in the areas which most often give rise to the most difficult legal proceedings in social security, housing, immigration, consumer credit and matters of that kind, that we have the least adequate provision in respect of availability of solicitors, legal aid, and advice centres.

The purpose of this important amendment is to impose a duty on the board to establish regional committees for legal services. There is an admirable precedent in what has been done by the work of the north-western legal services committee, and the work that is already being done with inadequate resources in the North-East and South Wales. The legal aid annual reports over recent years have all paid tribute to the work of the existing legal services committees, recognising their importance in the regional development of legal services by identifying unmet needs, pioneering new schemes for the delivery of legal services, and co-ordinating the provision of services in their areas. The aim of this amendment therefore is to impose a statutory duty on the board to establish these committees.

It has been said by the noble and learned Lord in our earlier discussion on this matter that this amendment is unnecessary because there is already power in the Bill for the board to establish these committees. That in my submission is not enough. The board should be under a statutory duty to establish these committees. They should consist, as the amendment states, of bodies representative of the consumers and providers of legal and advice services and local authorities in each region, and other people interested in the work of the committees. The … committees shall ensure and facilitate the development of legal and advice services". The amendment also states that the board shall be under a duty to, provide financial and other resources to the regional committees for the performance of their obligations".

In our view it is not sufficient to say at this stage in the proceedings on the Bill that the power is there. What we are asking for, indeed demanding, is that these duties should be placed on the board. If it be said that the board will surely do what it is empowered to do, what we seek to obtain from the noble and learned Lord the Lord Chancellor, speaking for the Government, is an undertaking that the board will be directed to set up these regional committees and will be told in advance that the relevant financial and other resources will be provided. We say this in the light of the proven record of the North-Western Legal Services Committee which for 10 years has successfully brought together all those concerned with the administration of justice and has achieved great improvements in the northwestern area. Therefore when the noble and learned Lord the Lord Chancellor comes to reply we await a positive commitment and undertaking that the board shall be required to do that which is set out in Amendment No. 8. I beg to move.

Lord Renton

My Lords, as my noble and learned friend the Lord Chancellor pointed out at the Committee stage, the board will, under the terms of the Bill as it stands, have power to establish regional committees and, presumably, area committees, too. To my mind it is unthinkable that they could discharge their duties without a great degree of decentralisation. I should have thought that that is so plain that it would be unnecessary to write it into the Bill.

5.45 p.m.

The Lord Chancellor

My Lords, we discussed this matter, as the noble and learned Lord has said, in Committee. I wish to pay tribute to the work of the North-Western area committee; indeed, I have already done so. As the noble and learned Lord has remarked, I have said before and I now say again that under the Bill the board has power, if it thinks fit, to establish and fund regional committees to help in the discharge of the board's functions. But the amendment goes a great deal further. It places a duty on the board to establish such committees and would give them the task of ensuring and facilitating the development of legal and advice services. It would also require the board to provide financial and other resources to the regional committees for the performance of their obligations.

It seems to me that the result of passing the amendment would be to establish two, or perhaps three, levels of responsibility for legal services. The Lord Chancellor has overall responsibility. Clause 2(2) gives the board the general function of securing that advice, assistance and representation are available in accordance with the Bill. The amendment would seem to establish a third level of responsibility.

Passing the amendment into statute would have at least two thoroughly undesirable consequences. The first is that it would make responsibility for legal services a muddle. Under the Bill the board will have the main responsibility for securing that the advice, assistance and representation would be given. The board will be judged on its success in securing appropriate arrangements at all levels and that is as it should be. The additional obligation on regional committees introduced by the amendment would be an unnecessary muddle and confusion in the administration. If we have learnt anything from history it is that muddle and confusion are very likely to lead to ineffective and costly administration. The lines of responsibility should be clear. The methods by which these responsibilities are discharged should be as open and as flexible as possible. The Bill provides that; the amendment would have the contrary effect.

The second undesirable consequence of the amendment is that it would make the committees responsible for securing legal aid and advice services. The Bill is concerned with legal aid in the shape of the various headings that I have already mentioned. It does not deal with general responsibility for advice services. That would be a further confusing muddle.

The board on being established may think it right to set up committees to assist it in some areas. It is possible that such committees may be needed in all areas. But it is by no means a foregone conclusion that they would always be required. The board itself, through sub-committees operating with particular knowledge, might be able to deal with that. As your Lordships will appreciate from the terms of paragraph 11(3) of Schedule 1, the sub-committees of the board can be composed of people who are not members of the board.

The powers would allow the board to apply its mind to its responsibility and to decide in the light of circumstances at the time whether or not to have regional committees. For example, the situation may vary from time to time and in different areas. The Bill gives the necessary adaptability to deal with that. The amendment would, in my submission, introduce wholly unnecessary and undesirable rigidity.

Lord Elwyn-Jones

My Lords, I regret to say that I find that a very unhappy and unsatisfactory response. The danger in much that emanates from Whitehall and Westminster is preoccupation with London, the London area and the English area. The provinces tend to be starved of resources and to be neglected: at least that is the feeling that exists in several of the places where at present, as I said earlier, the availability of legal services is so sparse and uneven.

It is flying in the face of the advice from the legal aid annual reports to doubt the value of these regional legal services. Indeed, I do not think the noble and learned Lord has ventured to do so. Their value has been proven and the outstanding example is in the North-West. It is right, at this critical stage in the development of legal aid and legal advice under the aegis of the Bill, that a new step forward should now be taken by the setting-up of regional legal services committees as proposed in the amendment.

In view of the importance we attach to this amendment, we feel it right to take the opinion of the House upon it.

5.49 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 107.

DIVISION NO. 2
CONTENTS
Ardwick, L. Jenkins of Putney, L.
Attlee, E. John-Mackie, L.
Aylestone, L. Kilmarnock, L.
Banks, L. Lovell-Davis, L.
Barnett, L. McIntosh of Haringey, L.
Bottomley, L. Mais, L.
Briginshaw, L. Meston, L.
Caradon, L. Mishcon, L.
Carter, L. Morton of Shuna, L.
Cledwyn of Penrhos, L. Mulley, L.
Cocks of Hartcliffe, L. Murray of Epping Forest, L.
Dean of Beswick, L. Nicol, B. [Teller.]
Diamond, L. Northfield, L.
Elwyn-Jones, L. Ogmore, L.
Ennals, L. Pitt of Hampstead, L.
Ewart-Biggs, B. Ponsonby of Shulbrede, L. [Teller.]
Falkender, B.
Falkland, V. Prys-Davies, L.
Gallacher, L. Ritchie of Dundee, L.
Graham of Edmonton, L. Serota, B.
Hanworth, V. Simon, V.
Harris of Greenwich, L. Stewart of Fulham, L.
Hatch of Lusby, L. Stoddart of Swindon, L.
Hirshfield, L. Strabolgi, L.
Hooson, L. Turner of Camden, B.
Houghton of Sowerby, L. Underhill, L.
Hughes, L. Wallace of Coslany, L.
Irvine of Lairg, L. Wells-Pestell, L.
Jacques, L. Williams of Elvel, L.
Jeger, B. Winterbottom, L.
NOT-CONTENTS
Abinger, L. Davidson, V. [Teller.]
Ackner, L. Denham, L. [Teller.]
Ailesbury, M. Dilhorne, V.
Alexander of Tunis, E. Dundee, E.
Ampthill, L. Elibank, L.
Arran, E. Elles, B.
Barber, L. Elliot of Harwood, B.
Bauer, L. Elton, L.
Beaverbrook, L. Enniskillen, E.
Beloff, L. Faithfull, B.
Belstead, L. Ferrier, L.
Benson, L. Feversham, L.
Bessborough, E. Fortescue, E.
Bethell, L. Fraser of Kilmorack, L.
Blatch, B. Gainford, L.
Borthwick, L. Gardner of Parkes, B.
Boyd-Carpenter, L. Geddes, L.
Brabazon of Tara, L. Glenarthur, L.
Braye, B. Greenway, L.
Brougham and Vaux, L. Hailsham of Saint Marylebone, L.
Butterworth, L.
Caithness, E. Halsbury, E.
Campbell of Alloway, L. Harrowby, E.
Campbell of Croy, L. Henley, L.
Carnegy of Lour, B. Hesketh, L.
Carnock, L. Hives, L.
Coleraine, L. Hooper, B.
Colwyn, L. Hylton-Foster, B.
Constantine of Stanmore, L. Jenkin of Roding, L.
Cork and Orrery, E. Johnston of Rockport, L.
Cottesloe, L. Joseph, L.
Cox, B. Killearn, L.
Craigavon, V. Lane-Fox, B.
Craigmyle, L. Lauderdale, E.
Crickhowell, L. Lawrence, L.
Croft, L. Lindsay, E.
Cullen of Ashbourne, L. Lindsey and Abingdon, E.
Long, V. Reay, L.
Lyell, L. Renton, L.
Mackay of Clashfern, L. Rodney, L.
Macleod of Borve, B. Saltoun of Abernethy, Ly
Margadale, L. Shrewsbury, E.
Marley, L. Simon of Glaisdale, L.
Massereene and Ferrard, V. Skelmersdale, L.
Merrivale, L. Strathspey, L.
Mersey, V. Sudeley, L.
Mottistone, L. Swansea, L.
Mowbray and Stourton, L. Terrington, L.
Munster, E. Thomas of Gwydir, L.
Nelson, E. Trumpington, B.
Onslow, E. Ullswater, V.
Orkney, E. Vaux of Harrowden, L.
Oxfuird, V. Ward of Witley, V.
Pender, L. Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.58 p.m.

Clause 7 [Scope of this Part]:

The Lord Chancellor moved Amendment No. 9: Page 6, line 36, after ("section") insert ("this Part applies to any advice or assistance and").

The noble and learned Lord said: My Lords, in Committee your Lordships passed an amendment, against my advice, in relation to the opening part of Clause 7 of the Bill. I asked my advisers, in particular the draftsmen, whether, in so far as it was consistent with producing a technically proper result, they could use all the words of the amendment which was passed. However, I was advised that in order to make the Bill technically adequate while preserving the amendment, the amendment which I now propose, together with Amendments Nos. 22, 41 and 44, are desirable.

The substitution which your Lordships made removed from the clause a reference to the matters to which this part of the Bill applies. The clause goes on to refer to matters to which this part of the Bill applies, and therefore it is necessary to include a provision which makes an application of that reference. That is the purpose of Amendment No. 9.

Amendment No. 10 is intended to make clear that the operation of Clause 7 is subject to, and in accordance with, all the provisions of the later relevant clauses of the Bill which your Lordships left standing. It must be in accordance with the view taken by your Lordships as to what ought to happen. Therefore, these are the amendments that are technically necessary to incorporate into the Bill with reasonable technical correctness what your Lordships decided on the last occasion.

Amendments Nos. 22, 41 and 44 are designed to secure that where a similar provision operates in another part of the Bill, there should be a certain symmetry between the provisions. Otherwise, as many of your Lordships know, the court construing Clause 7 in contradistinction to a later clause wonders why on earth the wording is different and it may not be possible to disclose to them the reason for that under our existing rules. Accordingly, it is wise to make the structure of similar clauses in the Bill as symmetrical as possible. That is the explanation of Amendments Nos. 9, 10, 22, 41 and 44. In the meantime, I beg to move Amendment No. 9.

Lord Mishcon

My Lords, in language which I know the noble and learned Lord, as well as others of your Lordships, will well understand, I reserve my position in regard to the interpretation to be put on the vote which your Lordships registered in Committee by way of an alteration of the clause to which the noble and learned Lord has referred. Subject to your Lordships agreeing to the next amendment which I shall move in a moment, Amendment No. 11, I have no objection to these amendments, because if your Lordships pass Amendment No. 11 I hope that you will then feel that the decision on the last occasion will be carried into effect in a way which ought to be pleasing to the Government. I hope that those last words will be echoed by the noble and learned Lord the Lord Chancellor when Amendment No. 11 is moved.

Lord Renton

My Lords, I feel that there is a simple lesson to be learnt from this; namely, that when against the advice of the Lord Chancellor a simple amendment is carried which looks all right in itself, it may give rise to a very complicated set of purely technical amendments in order to correct the matter. I must confess that I was not present on that occasion, when the Government were defeated by only two votes. However, I somehow feel that had it been realised that there were to be these consequential technical amendments, the amendment that was passed might very well not have been passed.

I know that is a matter of speculation' to which there is no answer. Nevertheless, when moving amendments which are apparently simple, we ought to try to think the matter through, especially if we are voting against the advice of the Minister in charge of the Bill.

The Lord Chancellor

My Lords, it is always open to your Lordships to vote against the advice of the Minister. I share my noble friend's view that on many occasions it may not be wise to do so. However, on this occasion I accept as fully as I can the words of the amendment and I am making the consequential amendments which I am advised are necessary in order that the Bill be technically correct. I appreciate that there will be an argument about Amendment No. 11, and I reserve what I have to say about that until we hear it being commended by the noble Lord, Lord Mishcon.

On Question, amendment agreed to.

The Lord Chancellor Moved Amendment No. 10: Page 6, line 37, at end insert ("subject to and in accordance with the provisions of this section and sections 8, 9 and 10").

The noble and learned Lord said; My Lords, I have already explained this amendment. I beg to move.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 11: Page 7, line 12, at end insert— ("(6) The power to exclude or restrict advice or assistance by regulations under subsections (3) and (4) shall not be exercisable unless the Lord Chancellor is satisfied that the Board will provide or secure the provision of advice or assistance equivalent to that excluded under subsections (3) or (4) in accordance with its powers under Part II. (6A) Any regulations made for the purposes of subsection (6) above shall not come into force unless or until approved by resolution of each House of Parliament.").

The noble Lord said: My Lords, no one will be astonished at the statement that a Minister feels that when his advice has not been accepted, the House has not acted with the amount of intelligence that it ought to have shown. One appreciates that point of view and I pay tribute to the way in which the noble and learned Lord the Lord Chancellor graciously accepted the verdict of the Committee.

I said that I reserved my position in interpreting what the vote was on the last occasion and what it meant. We all missed the presence of the noble Lord, Lord Renton, on that occasion, but we know he will listen with the care that he always does to those who were present, provided they give an accurate and fair account of what transpired.

The Committee was patently disturbed by Clause 7(3) and (4). I will remind the House what those subsections say. Subsection (3) states: Advice or assistance of all descriptions or advice or assistance of any prescribed description is excluded from this Part, or is so excluded as regards any area, if regulations so provide; and if regulations provide for all descriptions to be excluded as regards all areas then, so long as the regulations so provide, this Part (other than this subsection) shall not have effect.". Subsection (4) says; Advice or assistance of any prescribed description is restricted to its provision to prescribed descriptions of persons if regulations so provide.".

That wording may sound complex but it can be put into very simple language in which the word "expertise" will not be included. The simple language is that regulations can be made hereafter to exclude from the green form scheme the giving of advice in certain areas on various matters to persons who may be prescribed by these regulations. In theory, the whole of the green form scheme could be wrecked by regulations hereafter. When I brought this matter to the attention of the Committee it was on a different amendment. My amendment then meant that the Committee was asked to agree that to do this by regulations was absolutely wrong, that primary legislation ought obviously to say what is going to be excluded from the green form scheme and if there was no such clear explanation in primary legislation the power should not be given at all to exclude any person from the benefit of the green form scheme.

I drew to the attention of the Committee and the noble and learned Lord the Lord Chancellor—not that he needed it from me—that there was a White Paper issued by the Government as long ago as March 1987 recommending that there could be certain areas which would be excluded from legal advice, aid and assistance. The areas—I am not going to detail them again to the House now; I did so in Committee—included all aspects of conveyancing and all aspects of wills.

All sides of the Committee were worried by the fact that no indication was given in this primary legislation of what exclusions could be made hereafter. Replying to the debate, the noble and learned Lord, with his usual courtesy and clarity, said—if I may paraphrase his remarks, I believe fairly—that one wanted a fluid position, that one did not want to say now what areas might be excluded, that this would be dealt with by a process of continuing thought and that there was no indication to be given to the Committee at that stage of the areas that might be excluded by the regulations.

One area that the noble and learned Lord would certainly agree in principle should not be excluded from the green form scheme relates to the drawing up of a will for perhaps very needy people, appointing the guardian of an infant child and making provision for that infant child. Other matters, including those, would have to be thought about.

I pleaded with the Committee, on a completely non-party basis, that we were walking into the most dangerous chapters of legislative history (in which this House has always played such a proud part) if, on matters as vital as this, there was no clear statement from the Minister as to what might happen in the future and we were legislating by regulations the nature of which we knew not and which could indeed be wrecking regulations to the whole of the green form scheme. It was on that basis and with that plea which I made to the Committee that the vote took place. The noble Lord, Lord Renton, may be satisfied that it was not on a technical basis, as so often happens in Committee, but on a matter of principle. The Committee was saying, "We do not like excluding our responsibility for such a vital clause as Clause 7 with its powers under subsections (3) and (4) without some clear assurance from the noble and learned Lord the Lord Chancellor as to what he himself had in mind by way of recommendation to the Legal Aid Board or otherwise by way of exclusion of certain areas from the green form scheme.

It is absolutely correct that the amendment that was passed provided that legal aid would be available to any person but then made that subject to what appeared in the rest of the clause. Subsections (3) and (4) were still applicable. We realised that, but we wanted to come forward again on Report having considered everything that the noble and learned Lord had said. The Committee having expressed its view, one hoped that the consistency which your Lordships' House so often shows would determine your Lordships on how to vote on this amendment. May I say, with the deepest respect, we hoped also that it would have a desirable effect on the very learned mind of the noble and learned Lord the Lord Chancellor.

We did the thinking, and the thinking was this. The main objection of the noble and learned Lord the Lord Chancellor and the advice which he tendered to the Committee was the lack of flexibility if one puts this sort of measure in the Bill. That was the first point.

The second point was that in depriving oneself of flexibility and further consultations, one was doing something rather foolish. We have got over that in this amendment which says just this—if I may again use simple language. We do not ask that the primary legislation shall say specifically that nothing is to be excluded from the green form scheme. We do not say that what is to be excluded has now to be announced, though I again plead with the noble and learned Lord the Lord Chancellor when he replies to the amendment to show his mind in regard to these matters rather more than he has done to the House up until now.

What we say is that nothing will be excluded from the green form scheme under this part of the Bill unless its equivalent is provided for by the Legal Aid Board and that it is satisfied that provision can properly be made for an equivalent service being afforded under Part II of the scheme. In other words, we allow for the fact that those services can be contracted out but that they will be provided and that there will be no such exclusion completely from the green form scheme. In Committee—and I would not dream of wearying your Lordships now—I dealt with the points made in the White Paper. I spoke about the injustice, unfairness and wrongness which would exist if a broad provision was made about the exclusion of wills, conveyancing and matters of that kind which were specifically canvassed in the White Paper of March 1987. I do not intend to do that again because the noble and learned Lord courteously dealt with those matters; not in detail, but he recognised that there was at least merit in the argument that the provisions for legal aid and advice in the green form scheme were certainly of a valuable nature.

That is all we ask for in this amendment. Flexibility remains. Counselling, thinking and consideration all remain. All that we are saying, without allowing regulations to take over a legislative power which we think is completely inappropriate especially in this case, is that if one excludes from Part III in the green form scheme any area at present covered by it, then it must be provided for in the contracting-out provisions of Part II.

The vote in Committee was a very clear vote for Parliament not deciding to wreck the green form scheme as it might be wrecked, or to exclude, without totally wrecking, various areas of legal aid work and assistance which is now given. The consistency which I hope we show in this amendment is to recognise that the noble and learned Lord the Lord Chancellor put some points to the Committee which ought to be treated with respect. This amendment, if I may be allowed to say so, similarly ought to be treated with respect by the noble and learned Lord the Lord Chancellor. I beg to move.

6.15 p.m.

Lord Meston

My Lords, I should like to support the amendment. It is not clear what exclusions are envisaged in subsections (3) and (4) of Clause 7. It must remain a concern that those matters are not spelt out. The fact is that flexibility can be misused and if we cannot have the principles clearly stated on the face of the Bill then there should be some mechanism for governing the powers as proposed in the amendment.

I should like to take the opportunity to express one other matter of concern as regards the terminology which may only be as a result of my concern and stupidity. The noble Lord, Lord Mishcon, has referred to "areas of advice" and the White Paper refers to "areas of work". I assumed that that was the sense in which the word "area" was used in Clause 7(3). Then it occurred to me that it might be taken as meaning a geographical area which is the way in which the word "area" is used, for example, in Clause 3 which refers to, different areas in England and Wales and in different ways in different fields of law". I hope that is a matter to which some consideration might be given in order to clear up exactly what is meant, particularly because the White Paper uses the expression "area" in another sense altogether.

Lord Renton

My Lords, I appreciate the noble Lord's motive in moving the amendment. I have been trying to follow through its effect in relation to the Bill as it stands and in relation to what the noble and learned Lord the Lord Chancellor said when replying to the debate in Committee on a previous occasion.

It may be that it is my own intellectual limitation but I find a very strange situation arising from the amendment. In Clause 7(3) we find that there may be exclusions by regulation. The amendment says that there may not be exclusions by regulation unless the Lord Chancellor is satisfied that the Board will provide or secure the provision of advice or assistance equivalent to that excluded". We shall have a plain contradiction if we add that amendment to the Bill.

Lord Mishcon

My Lords, with the permission of the House perhaps I may intervene before the noble Lord sits down. He will find the definition under Part II. What has to be done is that before one excludes anything by regulation, the Lord Chancellor and the board have to be satisfied that it can provide what is excluded under Clause 3 of Part II.

Lord Renton

My Lords, the noble Lord has, no doubt unintentionally, brought me to the very next point that I was going to make. We have to be very careful, as my noble and learned friend on the Woolsack said on a previous occasion, not to have a duplication between Part II and Part III. Also I should like boldly to go a little further and say that we have to be careful not to have a contradiction between Part II and Part III.

The Lord Chancellor

My Lords, Part III of the Bill deals with advice and assistance. Part II enables the board to contract out, for example, to solicitors, legal advice agencies and law centres, the obtaining and giving to clients—that is persons who wish to avail themselves of advice and assistance—of that particular kind of advice or assistance. Under Part II, if the board contracts out a particular service it would seem right that it should not also be provided under Part III by way of duplication. Subsections (3) and (4) therefore embrace necessary provisions to exclude from Part III what is provided under Part II. Otherwise, there is a waste of time. If one sets up a contract with a law centre for legal advice on, let us say, social security benefits and these provisions are made, then anyone can go along to a law centre and obtain advice on social security benefits. That is the arrangement. If at the same time anyone with the appropriate qualifications and means goes along to a solicitor under the green form scheme for the same kind of advice there is a quite unnecessary duplication in the service.

The amendment of the noble Lord, Lord Mishcon, recognises that and in effect it says that exclusion cannot be made under Part III unless there is provided the equivalent service under Part II. So far so good. But Part III contains exclusions which are not related to alternative provisions at all. In relation to legal aid, power to this effect has been included in the legislation for quite a long time. I instance Section 7(2) of the 1974 Act.

Perhaps I may give an illustration. In the White Paper the Government said that it would not be right to continue giving the green form scheme cover to advice required for wills and conveyancing. In any publicly-funded service of this kind it is surely necessary to try to direct the available money—which in no regime is infinite—to the places where it is most needed. If your Lordships were asked to think of two branches of the law in which this form of advice might not be required to be given by a publicly-funded system, I venture to think that conveyancing would come first perhaps, and wills second. Those instances might well occur to your Lordships. That is the idea that is floated as a proposal in the White Paper. If that is to be given effect the Government need power to do that. The amendment put forward by the noble Lord, Lord Mishcon, would cut that out; it would allow it to be done only if the law centre was to provide advice on conveyancing and wills.

I plainly recognise that the general subject of wills and conveyancing is a rather general description and that there may be instances within these classifications where your Lordships would feel it right that green form advice should be available. On the last occasion I instanced the situation of a one-parent family living in rather needy circumstances. The single parent might think it right to nominate a guardian for the children who would look after them in the event of anything happening to the parent. That is a very proper provision and something which might not occur to your Lordships as a very typical example of the kind of will that one sees mentioned in the newspapers from time to time. Nevertheless it is an important will and in the interests of the children.

I clearly see that it might be very wise to exclude that kind of special situation from the generality of the exclusion. These are matters to be considered carefully. I believe your Lordships will agree that these are matters upon which experience may show from time to time that what has been done to date is not perfect and that some improvement might need to be made in the descriptions of either the excluded class or of the exclusions from it.

The powers that are contained in subsections (3) and (4) are designed to cover both those possibilities which have existed since 1974 in relation to legal aid. The objective is to cut out some kinds of aid from the scheme altogether. The defamation action is an example. From the beginning of legal aid, successive governments have thought it right that it should not be available for actions of defamation. That is not universally agreed and your Lordships have argued about it during the course of discussions on the Bill. However, the decision has been taken and it seems to me a reasonable decision. It is an illustration of the fact that legal aid is not universal, and that in using the money the taxpayer has given it is wise for the Government to try to direct it to the types of work for which it is really necessary and will be effective in helping the people who really need it.

That power is required and subsections (3) and (4) of Clause 7 confer it. However, the power is expressed in such a way as to enable us also to exclude from the green form scheme the situation where it has not been cut out altogether but has been provided in another way through contracting out under the Part II provisions. The noble Lord, Lord Meston, referred to the word "area" and also to the other part of the clause. The word "area" is used here—and I believe consistently in the Bill because it is the dictionary of the Bill that is important—in a geographical sense. If a law centre serves an area in which one can get advice of a particular kind, it would be right to exclude that type of advice from the green form scheme in that area. If there is no such law centre or advice agency in a different area of the country it would not be right to do so. It is right to have variation with geographical area in mind.

It is also right to have particular types of advice or assistance. The phrase used for that, in contradistinction to "area", is "any prescribed description". If I were operating the power to exclude, for example, wills and conveyancing in the whole of the country, the prescribed description would be wills and conveyancing. I have no doubt that the draftsman will advise me that it would require to be more carefully drafted but for the purposes of argument that may be sufficiently precise.

We need both of these powers and they are covered in subsections (3) and (4). The effect of the noble Lord's amendment would be utterly to cut out the power to restrict the application of legal aid by reference to subject matter unless it was already provided under Part II. That would not enable us to target legal advice and assistance on the areas which might be important. Your Lordships have been told that this is an important matter and with that I agree. In consequence, I have agreed that these powers to exclude from the scope of legal advice and assistance will be subject to the affirmative resolution procedure. Therefore your Lordships would have to have an explanation of why, if I were to bring this forward, it was thought right to cut out wills and conveyancing from the green form scheme, possibly subject to exclusions, such as I have mentioned, in favour of one-parent families and other cases of that kind. The noble Lord's amendment would effectively demolish that option and might force us to continue to apply money to areas where it was not being particularly well used when there was crying need for it to be used to better effect in another part of the work.

6.30 p.m.

Lord Mishcon

My Lords, in his reply to this amendment the noble and learned Lord said two main things. However, he did not say one very important thing. He said that this amendment would exclude work the nature of which is not thought to be of a high priority in the green form scheme and which therefore, looking at the scheme as a whole, ought to be excluded. He said, secondly, that the House can always voice its opinion in regard to any excluded matter proposed because the regulation will be subject to the affirmative resolution procedure.

The noble and learned Lord has not said that the 1974 Act had a similar provision. But nobody has thought since 1974 of excluding anything that was then available under that Act. But there was a White Paper of March 1987 and that proposed some types of exclusion. So there is a different situation when we repeat that provision here.

Secondly, the noble and learned Lord has still not said what he and the Government have in mind by way of exclusions. Not one single example has been given. There was a general phrase about the area of conveyancing and wills—I am sorry if I use the word in the sense that might be muddling but I do not think it is muddling when I use it in this context. There was no reference to whether conveyancing and wills might be hit, or other matters besides those, or within the areas of conveyancing and wills what might or might not be thought of as being of high priority for needy people. On the last occasion I gave examples of the conveyancing need—because conveyancing sounds such a grand phrase—for poor people in necessary circumstances.

I wonder whether your Lordships will take for granted for one moment that the regulation was of the nature that the noble and learned Lord was good enough to indicate by way of example. A regulation comes before the House that says that under subsections (3) and (4) it is proposed to exclude—I shall continue with the example—matters of conveyancing and wills. I wonder whether the House will be good enough to ponder for a moment what the parliamentary power would then be. Some of your Lordships might think that a very good case has been made out for conveyancing but not for wills, or for wills but not for conveyancing. Your Lordships will not be able to move an amendment to exclude or include either of those items. Your Lordships will either have to accept the whole lot in one swallow or not.

In regard to the speeches that will be made on that occasion, one knows that any Lord Chancellor will listen to them with courtesy and patience. He will have the very distinct option, having taken note of them, to decide that he will still go ahead with the regulation. Your Lordships will know that no power whatsoever is vested in the House to deal with a series of exclusions that maybe put forward in a regulation. Indeed, it is not even a normal procedure for the House to vote against a regulation even though it would have to vote for or against it in its entirety.

In the face of not one single indication from the Government, even at this stage, as to its reaction to the White Paper of March 1987, what does the amendment do? Before I have to take a decision with my noble friends as to how I deal with the amendment on Report, will the noble and learned Lord at least—I shall sit down to give him the opportunity to reply if he would kindly take advantage of it—give an assurance that before the completion of the Bill's passage through Parliament he, or the Government in another place, will give a clear indication of their thinking on what should be excluded under subsections (3) and (4)?

The Lord Chancellor

My Lords, with the leave of your Lordships, I should like to say that the White Paper makes the Government's thinking plain in general terms. I see no reason, on this aspect, to depart from that thinking subject to the need to qualify those exclusions by reference to cases such as I have already mentioned. There may be other similar cases which have not yet been brought to our attention on consultation. I want to make it plain that those powers exist to be considered not only immediately after the Bill has been passed, but from time to time to ensure that the money which the taxpayer contributes towards legal aid is used to its best advantage.

Lord Mishcon

My Lords, I am grateful for the polite reply that the noble and learned Lord gave to my question. I am sure he will not think me in the slightest degree rude if I limit the adjective to the word "polite".

The Government's policy is vague in regard to a valuable scheme—one of the pillars upon which legal aid depends. The green form scheme saves a great deal from the country's coffers by way of preliminary advice so that litigation is avoided. For example, advice on wills is given so that there is no mess in regard to children and so on when people leave this earth. The Government's answer on this matter is so vague that I am afraid I must press the amendment in the same spirit as on the last occasion. I hope that your Lordships will be consistent when we go through the Division Lobbies.

6.43 p.m.

On Question, Whether the said amendment (No. 11) shall be agreed to?

Their Lordships divided: Contents, 45; Not-Contents, 85.

DIVISION NO. 3
CONTENTS
Ackner, L. John-Mackie, L.
Airedale, L. Kilmarnock, L.
Ardwick, L. Listowel, E.
Aylestone, L. Meston, L.
Benson, L. Mishcon, L.
Bottomley, L. Morton of Shuna, L.
Briginshaw, L. Mountevans, L.
Carter, L. Murray of Epping Forest, L.
Cledwyn of Penrhos, L. Nicol, B. [Teller.]
Craigavon, V. Northfield, L.
David, B. Ogmore, L.
Diamond, L. Phillips, B.
Elwyn-Jones, L. Pitt of Hampstead, L.
Ennals, L. Ponsonby of Shulbrede, L. [Teller.]
Falkender, B.
Gallacher, L. Simon of Glaisdale, L.
Graham of Edmonton, L. Stewart of Fulham, L.
Harris of Greenwich, L. Stoddart of Swindon, L.
Hatch of Lusby, L. Strabolgi, L.
Hooson, L. Thurlow, L.
Houghton of Sowerby, L. Turner of Camden, B.
Irvine of Lairg, L. Underhill, L.
Jeger, B. Williams of Elvel, L.
NOT-CONTENTS
Abinger, L. Harrowby, E.
Alexander of Tunis, E. Henderson of Brompton, L.
Allen of Abbeydale, L. Hesketh, L.
Ampthill, L. Hives, L.
Arran, E. Hooper, B.
Bauer, L. Hylton-Foster, B.
Beaverbrook, L. Jenkin of Roding, L.
Beloff, L. Joseph, L.
Belstead, L. Lane-Fox, B.
Bethell, L. Lauderdale, E.
Blatch, B. Lindsey and Abingdon, E.
Boyd-Carpenter, L. Long, V.
Brabazon of Tara, L. Lyell, L.
Brougham and Vaux, L. Mackay of Clashfern, L.
Caithness, E. Macleod of Borve, B.
Campbell of Croy, L. Marley, L.
Carlisle of Bucklow, L. Merrivale, L.
Carnock, L. Mersey, V.
Coleraine, L. Mottistone, L.
Constantine of Stanmore, L. Mowbray and Stourton, L.
Cork and Orrery, E. Munster, E.
Cottesloe, L. Napier of Ettrick, L.
Cox, B. Nelson, E.
Craigmyle, L. Nelson of Stafford, L.
Crickhowell, L. Orkney, E.
Croft, L. Oxfuird, V.
Cullen of Ashbourne, L. Pender, L.
Davidson, V. [Teller.] Prior, L.
Denham, L. [Teller.] Reay, L.
Dilhorne, V. Renton, L.
Dundee, E. Renwick, L.
Elibank, L. Rodney, L.
Elton, L. Saltoun of Abernethy, Ly.
Faithfull, B. Skelmersdale, L.
Ferrier, L. Sudeley, L.
Fortescue, E. Swansea, L.
Fraser of Kilmorack, L. Swinfen, L.
Gardner of Parkes, B. Thomas of Gwydir, L.
Geddes, L. Trumpington, B.
Greenway, L. Ullswater, V.
Hailsham of Saint Marylebone, L. Vaux of Harrowden, L.
Ward of Witley, V.
Halsbury, E. Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.50 p.m.

Clause 8 [Availability of, and payment for, advice and assistance]:

Lord Elwyn-Jones moved Amendment No. 12: Page 7, line 20, leave out subsection (3) and insert— ("(3) Assistance by way of representation under this Part shall not be given without the approval of the Board except—

  1. (a) in proceedings before the Mental Health Tribunal; and
  2. (b) in proceedings before the Social Security Commissioners, and subject to any other prescribed exceptions.").

The noble and learned Lord said: My Lords, the amendment arises from the provisions in the Bill for advice and assistance in Part III. Clause 8(3) provides: Subject to any prescribed exceptions, assistance by way of representation under this Part shall not be given without the approval of the Board". The amendment proposes that two exceptions be specified at this stage in order that they may be put into the Bill and become part of the law on enactment. There are two circumstances where representation should be given. One is in proceedings before the mental health tribunal. Those proceedings are already the subject of enjoyment of advice facilities under the legal aid scheme. The mental health tribunal provided expressly for them in the discussion on the mental health Bill. That is kept in because they are already part of the arrangements.

It is proposed to add for availability for assistance under the green form scheme proceedings before the social security commissioners. In an earlier discussion on tribunal representation when a number of other tribunals were under consideration, the noble and learned Lord the Lord Chancellor seemed to be particularly well disposed towards proceedings before social security commissioners. It may well be that they are—as I submit—in a sense a class apart. Since April 1987 they have dealt with questions of law only.

The DHSS and the Secretary of State for Social Services are invariably legally represented in proceedings before the social security commissioners. This reflects the legal complexity of many of the matters that they have to consider. Claimants, however, who are usually in the appellant's role, are except in a handful of cases unable to afford private representation and have to rely on the free services of law centres, advice agencies and the free representation unit and other admirable bodies, which do their best to help the needy. Since those resources tend to be concentrated in London and in other large urban centres, as I ventured to say earlier, access to their services depends to an unacceptable extent on the geographical location of the claimant in question. The amendment, by putting a duty on the board to ensure that representation is available everywhere in social security commissioners hearings, remedies that situation. I beg to move.

The Lord Chancellor

My Lords, as I understand it, the amendment would have the effect of removing the merits test altogether in respect of proceedings before the mental health review tribunals. The merits test applies not only to the nature of the proceedings but also to the respresentation that is in question. In the case of mental health tribunals the merits test presently applied under the existing system, which would continue to be applied in the future so far as concerns the general statutory provisions and regulations, is this. The ordinary merits test is that the applicant has a reasonable case and that it is not unreasonable to grant aid in the particular circumstances of the case. Under the regulations so far as concerns mental health review tribunals this form of representation shall be approved unless it appears unreasonable that approval should be granted in the particular circumstances of the case. In other words, there is a strong onus in favour of the applicant, but it is not absolutely compelling.

So far as I have been able to discover, the normal result is that an applicant before a mental health review tribunal has this form of representation. There has been at least one exceptional case in which the applicant wished to instruct a solicitor who practised a considerable distance away from the hospital. That was going to involve considerably more expense than getting a solicitor equally able to deal with the matter much closer.

Under the amendment, which has the effect of removing the restrictive merits test altogether, whenever an application is made for representation, however unreasonable the circumstances, the Legal Aid Board's approval will not be required. I doubt whether it is wise to go that far. I entirely accept the noble and learned Lord's desire to ensure adequate representation before mental health tribunals. That is my response to that part of the amendment.

The second aspect seeks a new development altogether in respect of social security commissioners. Representation is not available before the social security commissioners at present. As I said in Committee, the theory under which all these tribunals have been set up is that they should be informal and of a kind in which the tribunal did all the work; all the applicants had to do was state their cases. Those of your Lordships who have had the privilege of attending tribunals in recent times may be apt to question the extent to which that objective has been entirely fulfilled. The noble Lord, Lord Irvine of Lairg, spoke on Second Reading about the weight of representations that sometimes appear at various tribunals, no doubt on occasion at least to good effect.

The social security commissioners tribunal deals with difficult and important questions. I said in Committee—and I repeat—that in my view there is a high priority for extending legal aid to do this when opportunity offers. One has to take account of all the circumstances. We are concerned at present with the basic framework under which we are operating. I think that it would not be right as part of the primary legislation at this stage to include the social security commissioners.

There are other tribunals for which a strong case can also be made. I have not personally had an opportunity of hearing the arguments in favour of these others, but I am sure they will have strong arguments to make. This is my own view in the light of what I have heard so far; but I do not believe it would be fair to reach a conclusion upon this point at this stage of the Bill.

In my submission to the Committee this Bill is concerned with putting the structure in place. The precise scope of the form of representation and the rest of legal aid so far as it is not laid down in the statute would appropriately be the subject of regulation. I would therefore invite noble Lords not to approve this amendment, although I shall certainly have very much in mind the second part of it as we go forward into the future of legal aid.

Lord Renton

My Lords, I just wish to say a word about the mental health tribunals because I have been involved in this subject for many years. I helped to pilot the Home Office clauses of the Mental Health Act 1959 which are really the foundation still of the present law. When we had the more recent mental health Act in your Lordships' House, I think in the last Parliament, I took a close interest in the details of the legislation. I also happen to be the president of MENCAP and I was chairman for a number of years before that.

It has not been brought to my notice that any hardship has been caused under the present arrangements which my noble and learned friend has mentioned. If I have understood his remarks correctly, it is the intention under the new scheme, subject to a degree of flexibility, to maintain those arrangements. Therefore, I would not have thought that there was any need for the amendment so far as it affects mental health tribunals. However, I do not have a close knowledge of the work of the social security commissioners so I shall not comment on that.

Lord Elwyn-Jones

My Lords, with regard to the mental health tribunals, I am also involved as president of the Mental Health Foundation and I am very concerned in this field. I do not know whether an amendment to include the restricted merits test might remedy the difficulties which the noble and learned Lord contemplated about accepting paragraph (a) in the amendment. I do not know whether it would be possible to give thought to that before the next stage.

On the other matter of the social security commissioners, the most I can apparently hope for is a vista of when there will be an extension of the availability of legal aid and legal services. Now that we are told of the enormous wealth at the disposal of the Chancellor of the Exchequer perhaps we may hear of it during the forthcoming Budget and the forthcoming legislation. But in the short term at any rate, and without provoking a denial by virtue of my words, I wonder whether the noble and learned Lord can help a little more about the difficulties which are envisaged in proceedings before the mental health tribunals.

The Lord Chancellor

My Lords, with the leave of the House, as far as I can see, as the noble Lord, Lord Renton, said, the present arrangements are satisfactory. If I understood correctly the effect of the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones, it would simply remove the present merits test. It is a very restricted merits test indeed, in the sense that it is very easy for the applicant to pass the test. In the vast majority of cases, apart from the exceptional one which I mentioned, the applicants seemed to have passed the test. There may be some point which the noble and learned Lord's amendment focuses upon which I have not completely understood. In that case, no doubt we can confer later. But at present my understanding is that the arrangements are as I have described. They seem highly reasonable and only give scope to cut out utterly unreasonable applications, they work well and could be left as they are.

Lord Elwyn-Jones

My Lords, perhaps before the next stage I in turn can take further instructions and guidance from those who were concerned about this. In the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Arran

My Lords, your Lordships may feel that we have reached a suitable moment to break. If so, I beg to move that further consideration on Report be now adjourned; and that we do not return before 8.5 p.m.

Moved accordingly, and, on Question, Motion agreed to.