HL Deb 18 January 1988 vol 492 cc66-72

House again in Committee.

Clause 13 [Scope of this Part]:

Lord Mishcon had given notice of his intention to move Amendment No. 33: Page 11, line 8, at end insert— ("( ) Before making regulations for the purposes of this section, the Lord Chancellor shall consult the Board, the Law Society and the General Council of the Bar.")

The noble Lord said: One can sometimes sense the feeling of the Committee even when it is sparsely attended—or perhaps more so when it is sparsely attended. The feeling I believe is that another amendment moved on the mandatory consultation of the noble and learned Lord the Lord Chancellor with the board, the Law Society and the General Council of the Bar is not likely to meet with the Committee's full approval. In those circumstances, I do not intend to move the amendment.

[Amendment No. 33 not moved.]

Lord Mishcon moved Amendment No. 34: Page 11, line 8, at end insert— ("( ) Any regulations made for the purposes of this section shall not come into force unless or until approved by a resolution of each House of Parliament.")

The noble Lord said: This is another amendment which came before the Committee in quite a series; namely, that the regulations which are so numerously proposed in this Bill have to have an affirmative resolution, as against the negative resolution, in order that they may become effective. That again deals with regulations which affect a very important part of this enactment, and we feel℄I am not going to rehearse all the arguments again—that this is one of those clauses of the Bill which, upon its merits, deserves to have an affirmative resolution of the House so that the House may have an opportunity of debate. In those circumstances, I beg to move Amendment No. 34.

Lord Ackner

I support the amendment. In fact, I support it in a sweeping-up amendment which we shall reach later. This is one of those parts of the 1974 Act which, in fact, is conveniently covered by the existing legislation. I refer to Section 20(8), which lists those regulations which shall not come into force until approved by a resolution of each House of Parliament. Unless it can be suggested that that section has not worked appropriately, I find it difficult to follow why this should be by a negative resolution.

The section to which it refers is Section 7(2), which deals with the scope of the regulations and is therefore covered by the need for a resolution of both Houses. Section 7(1) deals with the scope and general conditions of legal aid. Section 20(8) of the 1974 Act provides that this is one of the sections where the regulations require the approval of each House of Parliament before they come into force. My noble and learned friend the Lord Chancellor said on Second Reading that he would have regard to various categories to which the positive resolution process may be appropriate. It seems to me that Section 20(8) provides a very good indication of those categories where this is possible and should be done. Unless it appears to have worked badly in the past, I hope my noble and learned friend will follow the position consistently. I therefore support the amendment.

Lord Elwyn-Jones

I regret that there has been a misunderstanding of the position and 1 was not in my place to move the amendment but I am happy that my noble friend Lord Mishcon did so; no doubt more ably and eloquently than had I been here.

We return to familiar ground on this amendment. Nevertheless, I submit that the subject matter of it is of importance; namely: representation under this Part for the purposes of proceedings to which this Part applies". This is part of a civil legal aid provision of the Bill and subsection (1) provides that, representation under this Part for the Purposes of proceedings to which this Part applies shall be available to any person whose financial resources are such as, under regulations, make him eligible for representation under this Part". Subsection (2) goes on to state: A person shall not be granted representation for the purposes of any proceedings unless he satisfies the Board that he has reasonable grounds for taking, defending or being a party to the proceedings". The matter that is therefore referred to is of importance and is to be determined by regulations. Those regulations will affect the right to representation, its limits and its possibilities. It is therefore an important question; and, indeed, it carries perhaps at least a degree of controversy; but it is a significant measure to determine the eligibility of availability of representation under the civil legal aid part of the Act. Accordingly, it is of considerable significance and, I submit, of importance.

As I am reminded, the amendment does not contain the words, "without the consent of the Treasury"; but the matter to which I was referring was, as I say, in reference to the ability and freedom of representation under the Act and to the financial provisions relating thereto. Therefore, I invite the noble and learned Lord the Lord Chancellor to apply his generous mind to the importance of ensuring that there should be proper consideration of the proposed regulations by this Chamber and the other place. This is not the first time—nor, indeed, will it be the last—that we shall raise this matter. I therefore hope that the noble and learned Lord will, on this occasion at any rate, think that it is of sufficient importance to require the careful consideration of this Chamber, and that can only be done in relation to regulations by an affirmative resolution.

Our role on the negative side is always negative and is never intended to be more. There is no power when this place deals with negative resolutions, and there is a feeling of the inadequacy of our powers as distinct from the positive duty of the government of the day to carry this place with it in any abridgement of the processes of Parliament. Therefore, I hope that the noble and learned Lord will feel able to accept this amendment in view of its quite fundamental importance in regard to the provision and the availability of civil legal aid.

The Lord Chancellor

Perhaps I may take up one very small point of detail which the noble and learned Lord, Lord Elwyn-Jones, mentioned towards the end of his speech. My understanding of the amendment is that the phrase, shall not be made without the consent of the Treasury". is in subsection (4) of Clause 13 of the Bill. The amendment moved by the noble Lord, Lord Mishcon, but standing in the name of the noble and learned Lord, Lord Elwyn-Jones, comes immediately after that, so the necessity for the consent of the Treasury is preserved. Certainly that is the understanding on which I am operating.

So far as I am concerned, this seems to me to be a kind of regulation-making power which it might be appropriate to require the authority of a resolution of each House of Parliament to operate. The considerations that move me are the general importance of this particular regulation-making power and also the consideration to which my noble and learned friend Lord Ackner drew attention.

In the corresponding provisions of the 1974 Act that is the line that was taken. I am therefore inclined to say that this is the correct balance as regards this particular amendment. I think it right to accept the principle of this amendment. I should like it to be looked at before it is actually put into the Bill because we want to be sure that we have consistency on the amendments and on the principle for which these particular affirmative resolutions are required.

I am quite satisfied that I can justify in principle the two amendments I have accepted so far. There is one outstanding for consideration, but I believe that this one is fairly definite. 1 wish to assure the noble and learned Lord that, in principle, we propose to accept this amendment.

Lord Elwyn-Jones

I am most grateful for that kind, generous and most helpful response from the noble and learned Lord. Obviously it is very good that amendments in my name are moved by somebody else. Greater success seems to be achieved when that occurs. I regret that the position of the Treasury created a certain amount of confusion in my mind but it has been dispelled by the noble and learned Lord. I am most grateful for the response of the noble and learned Lord to my amendment.

The Lord Chancellor

I was hoping that the noble and learned Lord would be prepared to withdraw the amendment on the understanding that I should like to have it looked at by the parliamentary draftsmen. I am sorry that I did not make that plain. I accept the principle of the amendment, but I should like to have it looked at before it is incorporated into the Bill. I am sorry if I was less than generous.

Lord Elwyn-Jones

On the contrary, I am sorry that I was less than understanding. 1 naturally accept that undertaking from the noble and learned Lord and in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

8.15 p.m.

Clause 14 [Availability of and payment for, representation under this Part]:

Lord Elwyn-Jones moved Amendment No. 34A: Page 11. line 11, leave out from ("financial") to end of line 12 and insert ("income does not exceed the amount prescribed in regulations; but a person may he refused legal aid under this Part if—

  1. (a) his disposable capital exceeds the amount prescribed under section 22(6) of the Social Security Act 1986; and
  2. (b) it appears that he could afford to proceed without legal aid.").

The noble and learned Lord said: This amendment would bring the capital limit for eligibility for representation into line with that for income support and family credit, which I understand was £6,000 from April of this year. The amendment would also enshrine the capital limit in the legal aid legislation, though the amount in Section 22(6) of the Social Security Act 1986 is in turn prescribed in regulations under that Act.

However, the amendment would prevent a situation where the capital limits for legally-aided representation differed from those for income-related benefits, which officially demarkate the only accepted definition of the poverty line. In those circumstances, I submit that this is an appropriate and consistent amendment. I beg to move.

The Lord Chancellor

For some years now, it has been the usual practice to raise legal aid eligibility limits in line with increases in supplementary benefit limits. This has had the advantage of convenience, and I expect the practice to continue. Certainly, there is often justification for doing that.

While I agree that it is useful to use changes in qualifying limits for social security benefits as a starting point for considering changes in the legal aid limits, I do not accept that it is necessarily right that they should always coincide. And for that reason, I cannot accept this amendment, which seeks to tie the legal aid capital limit to the income support capital limit. Income support and legal aid are two entirely different things; and it does not necessarily follow that because one limit is right for income support it is necessarily right for legal aid. That is particularly true where capital is concerned. While it may well be unreasonable to expect someone to use up capital resources for every-day living— which is what the income support allowance is for—it may not be at all unreasonable to expect them to use that capital for one-off expense of particular legal proceedings. Indeed, it could be argued that that is exactly the kind of rainy day for which capital resources are accumulated.

I am not saying this is necessarily always so or that in every circumstance it would be justified. I think it is right to keep open the option in every move of the eligibility limits and the possibility that this might be right.

From April this year, the way in which capital is to be assessed for income support I understand is to change. It will then be possible still to qualify for income support with a capital of £6,000, as opposed to the present £3,000 limit.

It is not clear that this would necessarily be right so far as concerns legal aid. That change demonstrates that it is necessary to consider legal aid in its own right, and the limits applying to legal aid, when a change occurs in another benefit such as the income support benefit.

For that reason, I am unable to support this amendment which in a sense reduces the flexibility of the regulation-making powers. I suggest to the Committee that it would be better to retain flexibility because flexibility does not in any way prevent us from giving effect to the wishes of the noble and learned Lord if it would be right at a particular time and in particular circumstances to do so. In the light of that explanation, the noble and learned Lord may feel able to withdraw his amendment.

Lord Elwyn-Jones

I feel that within reasonable limits the consideration should be kept in parallel.

The proposal in the amendment does no more than that. When one thinks of the sum involved in relation to the expenses of litigation and such other considerations, it does not seem an unreasonable suggestion to make.

In our various exchanges from the Woolsack and the Floor of the House, we have been able to maintain this practice and continuum of keeping the limits for legal aid pretty well in line with the social security scene. I do not know whether one can hope that the noble and learned Lord will be willing to look at this again, in the light of the attempt that has previously been made to keep the two considerations in line. I think we have maintained that successfully so far. If the noble and learned Lord is able to give any encouragement to that effect and on those lines we should be very grateful.

The Lord Chancellor

I hope I made it clear that I think there is often a good case for doing that in practice. What I am objecting to is a formalisation of it, making it into a requirement. In practical terms it may well be so, and I should like to be free to consider that in relation to the various changes in the other regulations that may occur. At the moment I would certainly anticipate that it would be quite a strong consideration to try to keep the two in line as they have largely been in the past. The only thing I want to preserve is the flexibility not to do that if the circumstances suggest that it would not be right in particular situations.

Lord Elwyn-Jones

I well understand the necessity for that. Flexibility tends to direct itself in support of the arguments that have emerged, it 1 may say so with every respect to the noble and learned Lord. It has been called in with abundant flexibility to support the contentions of the Government. Nevertheless, in the light of what has been said now and what was said in reply to an earlier amendment moved by my noble and learned friend Lord Silkin, I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Arran

I beg to move that the House do now resume.

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

House resumed.